Wednesday, July 16, 2014

Cancellation Of Removal And The Operation Of The Stop-Time Rule

An alien otherwise inadmissible can be eligible for cancellation of removal if, among other things, he establishes that he "has been physically present in the United States for a continuous period of at least ten (10) years immediately preceding the date of such application, among other requirements set forth at 8 U.S.C. 1229b. Under the so-called stop-time rule, continuous residence is deemed to end when an alien has been served a Notice to Appear under 8 U.S.C. 1229. In Wang v. Holder, the 7th Circuit Court of Appeals recently decided what form a Notice to Appear must take in order to trigger the stop-time rule.

Yi Di Wang was a Chinese national who was smuggled into the United States in 1999 through the Virgin Islands. Immigration authorities discovered Wang within two days of his arrival and took him into custody. He was personally served with a Notice to Appear and ordered to appear at a date and time to be later determined at the immigration court in New Orleans. While Wang was in custody in New Orleans, he was released on bond. He was later served two notices for subsequent hearings but failed to appear. The immigration court closed the case on the motion of the government. Wang remained in the U.S. continuously for a period of at least 10 years after his initial release and married a Chinese citizen in 2009 with whom he had two children. Wang voluntarily returned to the immigration court in 2010 wherein he announced he was an applicant for a U visa as a victim of human trafficking. The immigration judge granted continuances while the U visa was being adjudicated, but declined to grant any further continuances in 2012 after his U visa had been turned down.

Wang then sought cancellation of removal, but the immigration judge denied his petition, holding that the stop-time rule had been triggered when he was personally served a Notice to Appear two days after he entered the country without admission. Wang argued that the Notice to Appear did not include a date and time for his hearing as required under 8 U.S.C. 1229(a). The Board of Immigration Appeals denied Wang's appeal, holding that the stop-time rule only required receipt of a Notice to Appear to be triggered regardless of whether such notice included the time and date of hearing.

The 7th Circuit affirmed the Board of Immigration Appeals' decision. Applying the two-part Chevron test, the Court concluded that Congress had not addressed the precise question in the statute and left it to the administrative agency to fill in the gaps. It next applied the second part of the Chevron test to determine if the Board's construction of the statute was a permissible construction. Although the Court agreed that the best way to fill the gap might have been as Wang argued to require a Notice to Appear to comply with every detail of 1229(a) to trigger the stop-time rule, it afforded deference to the Board's conclusion that the stop-time rule only required the type of notice and not the specific content of the notice as a permissible construction of the statute.

Wednesday, July 9, 2014

Another Case Demonstrates Roadblock Convictions For Crimes Involving Moral Turpitude Pose For Cancellation Of Removal

Cancellation of removal is a valuable statutory remedy to save an otherwise removable undocumented alien from deportation, but proof of good moral character is an unavoidable necessity to securing it. Get a conviction for a crime of moral turpitude on your record or admit to committing acts that constitute the essential elements of a crime of moral turpitude, and the door slams shut. But what is a crime of moral turpitude? Like many terms in the Immigration & Naturalization Act, it's not defined. The Courts and the Board of Immigration Appeals defines the term to mean "conduct that shocks the public conscience as being 'inherently base, vile, or deprave, and contrary to the accepted rules of morality and the duties owed between persons or to society in general." That's quite a mouthfull, but a recent 7th Circuit Court of Appeals decision in Sanchez v. Holder helps shed some light on its intricacies and the fact that a mere conviction under a criminal statute touching on moral turpitude alone doesn't always answer the question.

The case involved Fredy Arnoldo Sanchez, a 47-year old citizen of El Salvador who unlawfully entered the U.S. in 1987. Sanchez, who resides in Indianapolis, is married to a lawful permanent resident and has four children, all of whom are U.S. citizens. For reasons that are unclear, Sanchez' case languished in removal proceedings for many years after his initial asylum claim proved unsuccessful. At an initial appearance before an immigration judge in 2006, he conceded the government's contention that he was removable from the country. At his next hearing in 2007, Sanchez renewed his petition for cancellation of removal based on hardship to his U.S. citizen children, as well as the special rule for cancellation under the Nicaraguan and Central American Relief Act ("NACARA"). The government contended he wasn't eligible for NACARA relief because of acts he allegedly committed as a soldier in the El Salvadoran military. Sanchez was granted more time to respond to the government's allegations.

A new issue arose when Sanchez appeared at his next hearing in 2009. Since his last hearing, Sanchez had been arrested for leaving the scene of an accident where serious bodily injury occurred, a Class D felony under I.C. 9-26-1-8. Upon hearing the information for the first time, the government argued the crime with which Sanchez had been charged involved a crime of moral turpitude, rendering him ineligible for cancellation of removal. Sanchez was offered an alternative sentencing plea agreement under which he pleaded guilty to the felony charge but was sentenced as committing a Class A misdemeanor charge. He received a sentence of 365 days with 363 days suspended and one year of probation. The Court described a personal affidavit Sanchez submitted to the sentencing court describing his crime as follows:
Sanchez was driving at night on a road without any lights, that it was raining heavily, and that there was a lot of fog. He "heard a noise, which was an impact on [his] car." Unsure whether he could stop safely in traffic, and believing that he had merely hit "a post or a small object," Sanchez continued driving. The affidavit states that he only became aware that he had hit a person when police officers arrived at his residence the next day and told him.
Upon reviewing the facts, the immigration law judge hearing Sanchez' case concluded that he committed a crime of moral turpitude, was ineligible for cancellation of removal and ordered him removed to El Salvador. Sanchez appealed the decision to the Board of Immigration Appeals, which affirmed the immigration law judge's ruling. Sanchez appealed to the 7th Circuit Court of Appeals which held that the Board had failed to follow the required analytical examination required to determine that Sanchez' crime indeed involved a crime of moral turpitude. The Court went on to describe a 3-part examination courts have determined is necessary for ascertaining that fact based on Matter of Silva-Trevino.

The first part of the test requires the adjudicator to determine whether there is any realistic possibility that the statute under which a person has been convicted could be based on conduct not involving a crime of moral turpitude. If it is determined that the statute covers both turpitudinous and non-turpitudinous conduct, then the adjudicator moves to step two. At that stage, the adjudicator must ascertain whether the conduct with which the person's criminal conviction was based involved turpitudinous conduct from the criminal court records. If the criminal court records are insufficient to answer the question, then the adjudicator is required to move to a third step and conduct a further inquiry to more accurately make a determination. The burden rests on the moving party to prove his crime involved non-turpitudinous conduct. Because the Court found that the Board of Immigration Appeals had only mentioned the Silva-Trevino analysis in passing without actually employing it, the Court vacated its order and remanded it back for re-adjudication. The Court further noted that a person could be found guilty under I.C. 9-26-28-1 for crimes other than hit-and-run, allowing Sanchez to make it past the first part of the Silva-Trevino analysis. The Court noted the possibility that Sanchez' appeal still might fail in the event the evidence in the court record is inconclusive with the burden falling on him to prove otherwise, but the Board can't simply end the inquiry early until he's been given the opportunity to prove otherwise.

Monday, July 7, 2014

Recent Case Demontrates Good Moral Character Requirement For Cancellation Of Removal

Cancellation of removal is a statutory form of relief under 8 U.S.C. § 1229b(b) that allows aliens who enter and remain unlawfully in the United States continuously for a minimum period of ten years to petition for cancellation of removal from this country. In addition to satisfying the 10 years of continuous residence in the United States, an alien must also be able to demonstrate that he/she is a person of good moral character. A recent 7th Circuit Court of Appeals decision in Ortiz-Estrada v. Holder is a painful reminder of the consequences of flunking that latter requirement.

The petitioner in this case was 20 years old when he entered the United States from Mexico unlawfully. He is married and has five children, all of whom are U.S. citizens. When Ortiz-Estrada was placed in removal proceedings in 2010, the Court notes that he had already "accumulated an impressive string of sanctions for a variety of traffic offenses" committed during the prior 10-year period. In addition to numerous citations for driving without a valid driver's license and driving on a revoked driver's license, among other things, Ortiz-Estrada had also been arrested three times for driving while under the influence of alcohol.

In 2011, while his removal proceedings were still underway, he was arrested yet again and charged with numerous traffic offenses, including "aggravated driving under the influence." Ortiz-Estrada's attorney kept requesting continuances in his latest traffic arrest, hoping to get the charges dismissed or avoid a conviction before a ruling by the immigration judge on his petition for cancellation of removal. The immigration judge lost patience and denied a further continuance requested by his attorney in deciding his petition for cancellation of removal, citing lack of good moral character based on his past criminal record and ordered him removed from the country.

The Board of Immigration Appeals affirmed Ortiz-Estrada's order of removal; however, the Court of Appeals found that the immigration judge improperly stated prior 7th Circuit cases as standing for the proposition that "an individual with a record like yours lacks good moral character to qualify for residence through cancellation of removal." The Court noted that the Immigration & Nationality Act does not define "good moral character," thus a decision whether an alien has such character "is in an exercise of administrative discretion that a court cannot review." The Court then considered whether the immigration court judge had been allowed "a reasonable opportunity to present evidence on his own behalf" after refusing to grant additional time until Ortiz-Estrada's criminal case was decided. The person challenging an unfavorable decision is required not only to demonstrate that his reasonable opportunity was denied, but also that he was prejudiced the Court observed.

The attorney for Ortiz-Estrada argued that the immigration judge did not give proper consideration to the fact that none of his prior arrests resulted in any felony convictions or the possibility the charges in the pending felony case against him might be dismissed. The Court found his attorney's arguments immaterial and unpersuasive, noting that the attorney had the opportunity to make the same arguments to the judge who heard the case, and that his decision was based on his prior criminal history, not the pending criminal case against him. The Court concluded that both the immigration judge and the Board of Immigration Appeals had sufficient evidence to conclude that Ortiz-Estrada lacked good moral character. Accordingly, the Court found that the immigration judge's refusal to grant a continuance before reaching his decision did not prejudice Ortiz-Estrada. "The lawyer’s procedural argument amounts to a contention that as long as his client goes on violating the traffic laws, he can’t be removed—for even though his record gets worse and worse, there will always be some pending charges that the immigration judge must wait to see resolved before deciding whether to order him removed," the Court said. "Not a good argument."

Monday, June 9, 2014

Access Therapies Barred From Hiring New H-1B Workers For One Year

A troubled staffing company based in Indianapolis that provides physical therapy staffing to health care providers in Indiana and throughout the United States has been barred by the U.S. Department of Labor from hiring new H-1B workers for a period of one year. Access Therapies, Inc. has also been ordered to pay $81,454 in civil penalties and nearly $40,000 in back wages to six physical therapists for violations of the H-1B rules, including failure to pay workers the prevailing wage rate for both productive and non-productive time. It's unclear why the Department's administrative law judge lowered the size of the penalties and the number of back wages that were awarded against Access Therapies back in 2010 by administrative action, which ordered the company to pay over $200,000 in penalties and more than $1 million owed in back wages to more than 60 H-1B employees. Here's the text of the Department's press release:
Under terms of a court order, Indianapolis-based Access Therapies Inc. must pay $81,454 in civil money penalties and $39,946 in back wages to six physical therapists for violations of the H-1B provisions of the Immigration and Nationality Act. The H-1B program allows employers to employ foreign workers temporarily in the U.S. on a nonimmigrant basis in specialty occupations. Access Therapies will be debarred from participation in the H-1B program for a one-year period. 
“The rules governing the employment of nonimmigrant workers in specialty occupations are specific and must be followed completely. Failing to do so denies qualified workers an opportunity for meaningful employment in the American economy,” said Thomas Gauza, district director for the Wage and Hour Division in Chicago. “This case shows that the department will not hesitate to bring legal action against employers that continue to short their employees and violate the law.”  
An investigation by the U.S. Department of Labor’s Wage and Hour Division found, among other issues, that the company misrepresented facts on its application when petitioning for and employing H-1B nonimmigrant workers and, as a result, the division issued the company a determination letter seeking the back wages owed. Access Therapies contested those findings and requested a hearing before an Administrative Law Judge, who issued the order that required the company to pay back wages, civil money penalties and interest, and debarred it from the H-1B program for a one-year period. 
The investigation found employees were due back wages because they were not compensated with the required prevailing wages for productive work time or for preassignment and post-assignment time, as required. Access Therapies failed to withhold applicable employment taxes, such as payments to Medicare, FICA and federal and state income tax. The company is required to pay such taxes, plus interest and penalties, to the appropriate taxing authorities. 
Under the terms of the order, in addition to paying the back wages and penalties, Access Therapies has agreed to enhanced compliance procedures, including records review by the department for a two-year period, and agrees to comply with provisions of the Immigration and Nationality Act in the future.

As a word of caution to H-1B employees, the press release makes no mention of an affiliated company owned by the same two owners and operated by the same employees out of the offices where Access Therapies conducts business. That business is RN Staff, Inc. According to recent H-1B data, both Access Therapies and RN Staff are among the top ten companies in the state of Indiana employing H-1B workers.

I have represented in the past multiple employees who have been sued by Access Therapies and RN Staff, Inc. for allegedly breaching their employment contact with the companies. These companies have filed more than six dozen lawsuits against former employees seeking damages of $20,000 or more, plus attorney's fees, after employees became disillusioned and left their employment, often because they believed that they were not provided a full-time job at the wages they believed they were promised when they entered into a contract with the staffing companies. I have complained endlessly to the U.S. Department of Labor about their slow progress in prosecuting pending cases against Access Therapies. While I'm pleased to see the Department has finally acted, for too many harmed H-1B employees, it's too little too late. The company can simply skirt the one-year bar by using its affiliated company, RN Staff, Inc., to file new H-1B applications, effectively making the one-year bar meaningless. For dozens of other harmed workers, this order provides no relief.

If you don't listen to anything else I write, please listen to this. Never sign a contract to be employed as an H-1B employee in the United States without first obtaining advice from an attorney. Many H-1B employers don't require their employees to sign a written contract. A written employment contract can be a very good thing for an employee, but making sure the terms contained within the contract protect you as much as they protect the employer is essential. If you are asked to start off in an employment situation where it looks like you're paying off a large debt to the employer for the privilege of employment, you need to seriously reconsider your options.

UPDATE: WRTV's Kara Kenney, who has been the only local news reporter who has covered the issues with this problem staffing company, has a good story in follow up to her original investigative report, which you can view by clicking here.

Thursday, February 20, 2014

Word To The Wise: The Government Is Monitoring Your E-Mails And Cell Phone Calls

A troubling incident at a U.S. Customs and Border Patrol office in Indianapolis has resulted in the filing of a civil rights lawsuit by the American Civil Liberties Union of Indiana on behalf of a senior lecturer at Indiana University in Bloomington and raises concern about aggressive NSA spying on people's e-mail and cell phone communications.

According to the complaint filed in the U.S. District Court for the Southern District of Indiana, a childhood friend of Dr. Christine Von Der Haar, Dimitris Papatheodoropoloulos, who is a Greek national, made plans to travel to the United States during the summer of 2012 to visit Dr. Von Der Haar at her home in Bloomington, Indiana on a tourist visa. Papatheodoropoloulos, according to the complaint, is a successful transportation manager who was employed at two Olympic Games and also at the Arab Games in Qatar.

Prior to traveling to the U.S., Dr. Von Der Haar and Papatheodoropoulos communicated frequently via e-mail, the content of which were at times "flirtatious and romantic in nature." Papatheodoropoulos arrived at the Indianapolis International Airport in June, 2012 and was cleared through inspection with an intent of staying in the U.S. until October, 2012. He brought along with him a laptop and hard drives for a computer server to aid him in conducting business during his trip. The computer server to which the hard drives belonged was shipped after his arrival.

When the other items, including the computer server, arrived at the airport, Dr. Von Der Haar and Papatheodoropoulos returned to the airport to pick them up and were directed to the local Customs and Border Patrol office near the airport. When they arrived at the office, they were perplexed when an agent questioned them about whether they had intentions of getting married during Papatheodoropoulos' visit. Agents called Papatheodoropoulos back for questioning while Von Der Haar waited in the waiting area of the office. Before they concluded their questioning of Papatheodoropoulos, they asked to speak to Von Der Haar.

According to the complaint, Von Der Haar was taken to an enclosed office with two uniformed agents present who appeared to her to be armed. They began asking her questions about the nature of her relationship with Papatheodoropoulos and e-mails that she had exchanged with him. The agents asked her if she was having sex with Papatheodoropoulos. At one point, one of the agents acknowledged that they had read e-mail exchanges the two had sent to one another. She was also asked questions about why Papatheodoropoulos had so many cell phones and whether he had brought any with him to the U.S. At no point during the interview was Von Der Haar advised that she had a right to leave or not answer the questions. After they concluded their questioning of her, she waited until Papatheodoropoulos was released about 4 1/2 to 5 hours later.

Following the interview, Papatheodoropoulos was served with a notice that he was being removed from the United States because he had violated the terms of his visitor visa by entering with the intention of immigrating to the U.S. The complaint states that this allegation was untrue. After consulting with the Greek consulate and attorneys, Papatheodoropoulos departed the U.S. in August, 2012. The lawsuit contends that the agents' detention of Dr. Von Der Haar violated her Fourth Amendment Right to be free from unreasonable seizures carried out without probable cause or reasonable suspicion.

Many civil rights advocates have been very vocal after learning of the extent to which the NSA has been monitoring private e-mail and cell phone communications of U.S. citizens. While the government has defended its actions, arguing that its bulk e-mail data collection did not include the content of those exchanges, this case seems to suggest otherwise. Based on this case, one should be cautious and assume that e-mail exchanges with your friends and acquaintances outside this country are being monitored by the government.

Hat tip to Indiana Law Blog.
 

Friday, November 22, 2013

Consider Yourself Warned: Exploitation Of Immigrant Workers By Staffing Companies Is Becoming A Growing Problem

One of the most troubling areas of abuse and fraud in immigration in this country is occurring with the growing trend of staffing companies to sponsor aliens for employment-based visas. When a typical employer goes to the trouble of expending the time, money and resources required to employ alien workers, it acts out of a compelling need to fill jobs that it has been challenged to fill with qualified American workers. Staffing companies offering jobs to professional alien workers, however, are strictly driven by a profit motive of finding warm bodies they can employ to contract out to employers searching to fill jobs. The staffing companies earn their profits from the mark-up they charge to the end employers over their cost of employing the alien workers. The purpose of this article is to alert alien workers of the pitfalls in seeking jobs in the U.S. through a staffing company as opposed to direct employment with the employer who actually needs the valuable labor you have to offer them.

There is a growing phenomenon of staffing companies in the U.S. springing up that almost exclusively target professional immigrant workers for employment. Some of these companies will literally turn away American workers seeking their assistance in job placement at the risk of violating laws protecting workers against discrimination based on their nationality due to their desire of employing immigrant workers because of the added leverage they have in dealing with their employees through their control of the employer-sponsored visa that allows the workers to work legally in the U.S. While this can occur in many categories of professional expertise, it appears that health care professionals are a common target, and physical and occupational therapists are the most popular subset within that category of workers for exploitation by staffing companies.

How do staffing companies exploit foreign workers? The most common problem occurring in the U.S. is for a staffing company to lure an alien worker to enter into a contract in exchange for a promise of employment for a defined period of time at a fixed rate of pay. Recruiters working for the staffing company will entice alien workers to sign the contracts based upon a promise to sponsor and obtain a work-based visa, most typically an H-1B visa or a green card, at no cost to the employee for placement in a job that may or may not actually exist. In the case of H-1B visas, staffing companies will file labor condition applications and non-immigrant visa applications on behalf of the employee representing that a job exists for the sponsored alien worker at a work site where it currently contracts alien workers or has in the past. It's a crime for the employer to make false representations in labor condition and non-immigrant visa applications but enforcement of violators by the U.S. Department of Labor and Department of Homeland Security is so lax that it's a risk unscrupulous staffing companies are often willing to take. Staffing companies sometimes resort to this subterfuge in order to grab a piece of the limited number of work visas issued annually, assuming they will find a job for the alien workers the successfully recruit by the time the work visa is approved, if not soon thereafter.

What staffing companies are often requiring alien applicants to do as a condition to sponsoring them for a work-based visa is to include as part of their contractual obligation a requirement to pay to the staffing company as liquidated damages a fixed sum of money in the event the worker fails to remain employed with the staffing company for the minimum period of time specified in the contract, which is typically two to three years. These liquidated damage clauses can run into the tens of thousands of dollars. In addition, some staffing companies will require their alien employees to sign a promissory note agreeing to repay the amount of liquidated damages specified in the contract in full whenever the employee leaves his or her employment before exhausting the minimum period of employment. What this means is that you begin your new employment with the staffing company owing a fixed amount of debt to your employer that you will have to repay at some point if you fail to work it off by remaining employed with the staffing company for the minimum required period. It's akin to a modern-day form of indentured servitude, which was long ago outlawed in this country.

What happens if you don't pay up after leaving your job? If the employee fails to pay up, the staffing company will sue the employee in the forum where the company is based under a forum selection clause contained in the employee's contract that is often inconvenient for the employee, who may be residing in an entirely different state or country at the time the lawsuit is commenced. Employees who fail to defend the lawsuits, which occurs quite frequently after they relocate and their whereabouts are unknown to their former employer to serve them notice of the lawsuit, wind up with default judgments entered against them which becomes a cloud on their credit record and the unpaid note continues to accrue interest at the rate specified in the promissory note instrument. Satisfaction of the judgment may include the garnishment of the employee's wages at their new place of employment through the filing of a proceeding supplemental by the employer.

Employees who are sued for breaking their contract may have defenses and counterclaims to their employer's claim against them. As a matter of contract law, if one party first breaches the contract materially, the employee can raise that as an affirmative defense which can act to bar recovery by the employer against the employee for subsequently breaching the contract by terminating the contract early, for example. An employee could argue the employer materially breached the contract by failing to pay the wages promised under the terms of the contract. Under Indiana law, an employer can be held liable to the employee under the wage payment statute if it fails to pay all of the wages due to the employee. The wage payment statute permits the employee to recover treble damages, plus attorney's fees, if the employee can prove the employee failed to pay any wages due to the employee.

You might ask why an alien worker who obtains employment in the U.S. through the services of a staffing company would want to leave his or her job knowing the risk of being sued and having to pay serious sums of money to their former employer? There are several reasons. Sometimes, alien workers arrive in the U.S. after obtaining their work visa only to learn that the job they were promised by the staffing company when they signed the contract no longer exists. Employers who directly employ non-immigrant workers will terminate the employee's employment and pay for their return travel back home if they are unable to employ the worker in the job they intended to employ the worker. The law requires them to do so. A staffing company will be out the time, money and expense it invested to bring you to work in the U.S. on a work visa if it sends you back home at its expense. Rather than send you home, it will insist that you stay put until it finds another job opening for you. The staffing company will entice you to stay by agreeing to cover your housing expenses at an employer-furnished apartment or house that you may or may not find suitable for your living expectations.

If a staffing company insists that you remain in the U.S. while it finds another job for you, it is legally required to pay you the prevailing wage rate it represented to the Department of Labor and USCIS that it intended to pay you once you become employed under your work-based visa as if you were working full-time. Unfortunately, unscrupulous staffing companies may refuse to pay you for the time you are benched while waiting for a job assignment, or they may offer you only part-time work assignments, which deprives you of the benefit of the full-time job the employer represented to you when you entered into a contract of employment, and which it represented to the government you would have once you started work under your work-based visa. If the staffing company benches you without pay, you can file a complaint with the U.S. Department of Labor. Unfortunately, prosecuting these complaints has not been a high priority of the Department and complaints sometimes linger for years before being acted upon.

Even alien workers employed by staffing companies that pay them regularly the wages due to them regardless of their work status can become frustrated if their employment requires frequent job changes that require the employee to physically relocate their residence every few months. Staffing companies may only be able to obtain short-term assignments for you at particular work sites. Your contract will typically require you to relocate your job location at the employer's discretion. Even with a housing allowance to offset the hassle of frequent job relocations, it is not unusual for the employee to grow weary and demoralized from packing up and moving just as the employee begins to get settled in and becomes comfortable working at a job site. Adding to the frustration may be disputes between the staffing company and the employer to whom you are contracted over the amount of hours that you are working and for which the employer is being billed. This conflict often results in wage underpayment disputes between you and the staffing company that can further fracture your relationship with the staffing company.

How can the alien worker avoid the foregoing scenarios from playing out? I would advise any alien working seeking work in the U.S. on an employment-based visa to look for employment opportunities that provide direct employment with an employer rather than an indirect employment arrangement through a staffing company. If you are unsuccessful in finding employment through the direct approach, then follow some simple rules to avoid being exploited by a staffing company.
  • Never sign a contract with a staffing company before performing some basic independent research on the Internet about the company. You might be surprised by the amount of information former workers share about their experience working with specific employers. You can also search the U.S. Department of Labor's website database to determine if there are pending or adjudicated complaints against the prospective employer.
  • When discussing potential employment with a recruiter at a staffing company, treat the process as an interview of your potential employer as much as the recruiter should be treating your hiring as a serious interview process. The distance between you and the staffing company often makes in-person interviews impossible but video conference calling can close that distance. If the recruiter asks you to sign a contract without first conducting a serious interview with you as a job candidate and obtaining your biographical, educational credentials and pertinent work history, then you should question the professionalism of the staffing company.  
  • If at all possible, please take the time to retain the services of an attorney to review any contract presented to you and to advise you on the benefits and consequence of entering into a written contract. Keep in mind that if the employer is planning to employ you as a non-immigrant worker, then by the very terms of your work visa, you are only a temporary worker allowed to legally work in the U.S. during the authorized period of time and upon the terms provided in your work visa. If your employment terminates for any reason, so does your work authorization. Employers who directly employ non-immigrant workers often avoid written contracts that act to convert what is otherwise an at-will employment agreement to a legally-enforceable agreement for a specific term of employment for that very reason. Staffing companies choose to use written contracts as a club to compel performance by workers they sponsor for temporary work visas and green cards.
  • Never sign a contract with a staffing company that does not specifically identify the nature of employment you are agreeing to accept, including a specific location of the proposed employment, the wages you will be paid and written assurance that the employment you are agreeing to accept is based on full-time employment that will commence as soon as your work visa is approved, or at least no later than 30 days thereafter, and that you will be paid wages based on the agreed wage amount for full-time employment, including any periods during which you are benched while awaiting a new assignment through no fault of your own or under-employed as a result of being assigned to jobs that require less hours than full-time employment.
  • Because the staffing company has to identify a specific employer, job site location and wage rate in the labor condition and non-immigrant visa applications it files on your behalf, ask the staffing company to state in writing up front that pertinent information. If the staffing company refuses to furnish you this information, it should serve as a warning to you that the job the staffing company says is available does not really exist. By law, the employer is required to provide a copy of the labor condition and non-immigrant visa applications to the employee on request. Always request them and retain them for your records.
  • Never sign a contract with a staffing company that does not include a covenant that requires the employer to abide by all laws and regulations governing the employment of non-immigrant workers and provides that violation of those laws and regulations constitute a breach of the contract by the employer.
  • Never sign a contract that includes an unreasonably high liquidated damages clause. Take into consideration the amount you expect to earn from the job once you are employed, the minimum length of time you are required to work for the staffing company to avoid the consequences of paying damages to your employer and the likelihood of your ability to pay the liquidated damages in the event you decide to terminate your employment early in determining the reasonableness of the liquidated damages sum. The liquidated damages clause should specify that it does not include the cost of filing fees, attorney's fees and other costs associated with obtaining your work-based visa.
  • Never sign a contract with a staffing company that does not include a provision that permits the prevailing party in any dispute that arises under the contract to be awarded their reasonable attorney's fees. Some staffing companies will draft contracts that only provide for an award of attorney's fees to the employer in the event it is required to take legal action against you to enforce the contract. Make sure that obligation is mutual.
  • You should always take the view that any contract the staffing company puts in front of you for signature is subject to negotiation. If the terms of the contract are one-sided and the staffing company says the terms are non-negotiable, you should take that as a warning sign of potential trouble down the road in your dealings with them. Always insist on receiving a fully-executed copy of the contract for your records. Some unscrupulous staffing companies have been known to furnish altered versions of the original contract to the employee when disputes arise later.
  • Retain for your records all communications you have with the staffing company and the employer to whom you are assigned to work, particularly all e-mail communications. If your employer typically communicates information to you over the telephone, document the substance of those conversations in a follow-up e-mail to your employer. You will be delighted at how useful that information can become when disputes arise between you and your employer that lead to litigation. Of course, if those communications document your reluctance to perform your work or other work-related problems brought about by you, you can bet that your employer will have retained records of that correspondence for use against you.
  • Whenever your employer begins acting more like a bully instead of a professional employer by threatening to terminate your legal status and making life difficult for you in general, it's probably time to explore your legal rights before terminating your employment and finding a more suitable place of employment.

Wednesday, November 13, 2013

Comprehensive Immigration Reform Appears Dead For This Year

Congressional efforts to pass a comprehensive immigration reform bill passed earlier by the Senate seems unlikely for this year. House Speaker John Boehner announced today that the House will not attempt to negotiate differences with the 1300-page bill passed by the Senate earlier this year. Boehner is not rejecting the idea of passing some form of immigration reform legislation, just the comprehensive and controversial version passed by the Senate. President Obama had set a year-end deadline for passing the legislation, a timetable the Speaker rejected today. Boehner insists that the House will deal with the issue on a "step-by-step" basis in accordance with its own timeline.