H-4 Visa Holders May Lose Work Permit

There are indications that the Trump administration is preparing to issue regulations rescinding the ability of H-4 spouses to get work permits.  H-4 visas are given to the spouses of H-1B visa holders, highly-skilled foreign workers, the majority of whom are from India.

Until 2015, H-4 visa holders – who often had skill levels comparable to their spouses – were not allowed to work. In 2015, U.S. Citizenship and Immigration Services announced that some H-4 visa holders would be able to work if their spouses were on track for permanent residency in the U.S.

The primary visa holder had to be a beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker, or a nonimmigrant seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

If the application was approved, the eligible spouse would receive a Form I-766, Employment Authorization Document (EAD), allowing them to work during the period of its validity.  The EAD validity period generally will match the H-4 spouse’s authorized period of admission, up to three years.

The 90-day period for adjudicating these I-765 applications, however, does not begin until the companion extension application is approved.

2017 Immigrant Travel Ban Highlights

Since January 2017, three executive orders referring to immigrants have been issued by the president.  All are controversial.  In addition to funding a wall between the US and Mexico and re-prioritizing deportations, there is a proposed travel ban.

Of the three orders, the travel ban was re-written and issued again.

What is the travel ban?  The purpose of the ban is to freeze travel from primarily Muslim countries.  In early February a Washington court stopped (enjoined) the ban.

The president then drafted a new order rather than appeal this old one.

After releasing this new presidential order, a federal court in Hawaii came out with a nationwide injunction striking down all of the travel ban.

As of March 16, 2017, there is  no suspension to travel to the U.S.

Deportation Facts

Your Rights

  • The government needs a warrant signed by a court (not an administrative agency) to search your property

  • You do not have to say anything to an immigration enforcement officer

  • Immigration is a civil matter

The Executive Office for Immigration Review (EOIR) operates immigration courts all over the U.S. If you are a non-citizen, or an attorney with a non-citizen client, this article will cover a few key terms so that you may respond appropriately after receiving a notice from the government.

Notice to Appear

A Notice to Appear (NTA) is issued to bring you or your client before an immigration judge. Service by mail is sufficient if there is proof the government attempted to deliver the NTA to the last address provided. After receiving the NTA it is important to meet with an attorney and discuss the factual allegations presented in it. It is possible that the government may have alleged facts that are not accurate.

Master Calendar Hearings

Most scheduled hearings are what the court calls “master calendar hearings.” A master calendar hearing is an individual’s first appearance before an Immigration Judge. The purpose of the master calendar hearing is to advise individuals of their rights, explain the removal charges filed, take pleadings, identify and attempt to narrow the factual and legal issues, and set deadlines for filing any papers needed for subsequent hearings.

Removal Attorney

So that you may have the opportunity to secure counsel, the law requires 10 days to elapse between service of the NTA and the first removal hearing. Once the 10 days have elapsed, the government is free to pursue a removal hearing regardless of whether you have legal representation.

Courts have said that immigration law is second only to tax law in its complexity. Attorney Dena Wurman has represented clients in immigration hearings and removal proceedings for over a decade. If you received an NTA to appear, she is qualified and experienced to represent you, your client or your family member. For a confidential consultation call (505) 506-9434 or email dena@wurmanlegal.com

Visa Status and Working in the US

 

When applying for permanent residency in the U.S., which includes the authorization to work in a virtually unrestricted way, you must match your current visa intent with your future plans.

Your “intent” is a major factor the government looks at when approving your application to stay and work in the U.S.  If your intent doesn’t match, our application will be denied.

Most people who do not enter the U.S. on a visa waiver program, enter on a B-1 visa is a “visitor” visa.

Non-immigrant visas, such as a B visa, are for individuals with permanent residence outside the U.S. but who wish to be in the U.S. on a temporary basis – for tourism, medical treatment, business, temporary work or study.

The intent of a visitor – according to the government – is to return home.

On the other hand, and H visa is a “dual intent” visa there is much more time to apply for a green card.

Citizenship

When traveling back and forth to a foreign country exceeds half the year, this can add an element of uncertainty to a citizenship application. There is an important term the government uses to map a permanent resident’s time in the U.S. It is called ‘continuity.” Continuous U.S. residence can be broken by traveling and working in a foreign country.

There are two basic requirements for U.S. citizenship.  One is good moral character. The other is to live at least half of the year in the U.S.  You must be living in the U.S. most of the year to 1) keep your green card or 2) apply for citizenship.  There are few exceptions.

Generally, an applicant must wait three or five years as a green card holder before applying for citizenship. This time is counted very carefully on the N-400 citizenship application form.   After the required three or five years pass, a green card holder submits forms to the government along with supporting documents. These forms are then reviewed by a government official and approved by this official. There is also an exam and an English test.  The government has a lot of leeway in approving applications.  Even if your application is denied, you can take it to another government court to appeal a denial.

So let’s take an example of travel that will cause an official to deny an application for U.S. Citizenship.  Here is an actual case of a Chevron employee.

The details of the case were as follows. The applicant spent more than half the year working abroad for a gas company “subsidiary” of Chevron.  The reviewer was not persuaded that the subsidiary the applicant worked for was in fact a U.S. company. If the employee worked for a U.S. company, this would fall under an exception to the continuous residence requirement for citizenship.

In October 2010 this application for citizenship was denied by an immigration officer. On appeal, the court found the subsidiary company was in fact a U.S. company because company shares were traded on the U.S. stock exchange.

Here is an example of how a government immigration official opinion may be overruled on appeal. It also shows how there are exceptions to rules that may apply in individual cases, depending on the facts of the case.

Thankfully, our system has checks and balances to offer people who want to become citizens a second chance.

Changing Non-Compete Landscape and the DTSA

In 2016, the Defend Trade Secrets Act of 2016 (DTSA) was passed and a new federal civil remedy for the misappropriation of trade secrets was created.  This new law grants litigants access to federal courts in any case involving alleged theft of trade secrets.

The DTSA allows employers to protect their trade secrets in federal court, bringing their rights into alignment with owners of other forms of intellectual property.

Agreements that may be subject to this new rule are:

  • Employment agreements
  • Non-compete and non-solicitation agreements.
  • Confidentiality and proprietary rights agreements.

The purpose of the DTSA is to provide uniformity among states although an important intent is that it not preempt existing federal or state laws.  State legislators continue to hold the power to adopt non-compete reform.

The DTSA includes protections for whistleblowers who disclose trade secrets under certain circumstances.  Employers are required give employees notice of DTSA potential immunity in any contract or agreement that governs the use of a trade secret or other confidential information.

DISCLAIMER:  The information conveyed through this article is not intended to give legal advice, but instead to communicate information to help readers understand the basics of the topic presented.

Training HR Staff

Many routine employment applications are completed by non-attorneys and HR professionals have the ability to fill out these forms with minimal training.  For foreign employees, these applications include:

    • TPS
    • NAFTA Canada/Mexico TN Visa
    • Employment Authorization

Simply request an assessment of your issue by completing the contact form on this website.  This office is happy to set up a conference call with your staff!

Non-compete Agreements

By Dena Wurman, MPA, JD

A non-compete agreement is a contract. The purpose is to prevent an employee from working for a competitor and exploiting information derived from the employer. Most courts have found these agreements to be legally binding as long as there are reasonable limitations as to the geographical area and time period.

In a case well-known in the tech industry, Amazon.com Inc. v. Zoltan Szabadi, Amazon went to court in Seattle to enforce their non-compete agreement. They sued a former employee when he went to work for competitor Google, after signing a non-compete. The employee then filed a Motion for Summary Judgment, to nullify the agreement. Court denied in part, granted in part so the employee got out of some of his obligations to Amazon.  But not all of them.

Seattle courts have generally permitted reasonable non-compete agreements. In Washington, a court will enforce a reasonable non-compete if:

1) The restraint is reasonably necessary to protect the business or goodwill of a

party;

2) The restraint does not impose upon the individual any greater restraint than is reasonably necessary to protect the business or goodwill; and

3) The public is not injured as a result of the loss of service and skill of the individual.

Legislators in Washington are trying to change the law now. According to proponents of a house bill, non-competition agreements are used too often. They cause waste. They inhibit individuals from moving between jobs. They are oppressive. The agreements are expensive to challenge in court. Why not just use a nondisclosure agreement instead?

According to opponents of the proposed bill, nondisclosure agreements are insufficient to protect an employer’s investment. Employers provide employee training. Departing employees can steal business. An employee could go to court to get the agreement invalidated, or an employer may not attempt to enforce the agreement if they believe it is unenforceable.

In my own practice, I have had experience with non-competes in the health care and aviation industries. In both cases, there was no litigation. In one health care case, the employer waived the non-compete clause when the employee agreed to voluntary termination. In another, it was modified to a more reasonable geographic region from a worldwide restriction, before it was signed.

Attorney Dena Wurman has helped individuals, business owners, organizations and attorneys in employment matters, most recently as Outside Counsel to the University of New Mexico.

Facing Deportation?

The Executive Office for Immigration Review (EOIR) operates immigration courts all over the U.S. If you are a non-citizen, or an attorney with a non-citizen client, this article will cover a few key terms so that you may respond appropriately after receiving a notice from the government.

Notice to Appear

A Notice to Appear (NTA) is issued to bring you or your client before an immigration judge. Service by mail is sufficient if there is proof the government attempted to deliver the NTA to the last address provided. After receiving the NTA it is important to meet with an attorney and discuss the factual allegations presented in it. It is possible that the government may have alleged facts that was not accurate.

Master Calendar Hearings

Most scheduled hearings are what the court calls “master calendar hearings.” A master calendar hearing is an individual’s first appearance before an Immigration Judge. The purpose of the master calendar hearing is to advise individuals of their rights, explain the removal charges filed, take pleadings, identify and attempt to narrow the factual and legal issues, and set deadlines for filing any papers needed for subsequent hearings.

Removal Attorney

So that you may have the opportunity to secure counsel, the law requires 10 days to elapse between service of the NTA and the first removal hearing. Once the 10 days have elapsed, the government is free to pursue a removal hearing regardless of whether you have legal representation.

Attorney Dena Wurman has represented clients in master calendar hearings and removal proceedings for over a decade. If you received an NTA to appear, she is qualified and experienced to represent you or your family member. For a confidential consultation call (505) 506-9434 or email dena@wurmanlegal.com

Checking Documents as an Employer

immigration pencil

Screening what appear to be legitimate working documents presents a real problem for U.S. employers. Usually, the employee has been on board and fully trained before any fraud is discovered. Terminating an employee at this point becomes burdensome.

In one case, an employer client was presented with two different Social Security numbers, after the first didn’t seem to be legitimate. The second one was a real number.

There are nuances in prosecuting document fraud.  For example, in California, using a false name on a Motor Vehicles application would trigger a referral for criminal prosecution only if the MV Department believes the false information would cause harm. In the case of identity theft, the original owner may be harmed.

Here is a simple way to check whether an immigration document presented by an employee is authentic.

If the employee is the brother or sister of a US Citizen, they may be entitled to a work permit because their relative will sponsor them. The citizen relative will file an I-130 form, and after it is approved and a visa becomes available, file the remaining paperwork in order to get authorization to work. Until the I-485 is approved, this I-797 receipt is not a document that authorizes work in the US.

While a receipt may look legitimate at first glance, and there could be a problem with the receipt dates. Any form filed will generate a receipt. A receipt from the Immigration Service will have a receipt number on it. For example, a WAC receipt number relates to when a form is filed.

If typing this WAC number in the www.uscis.gov system results in two different receipt dates, the form is fraudulent. It is not possible to have one WAC number and two different receipt dates.

This would indicate the document is not legitimate.

For a CONFIDENTIAL consultation on whether a document is real or fake, send a note with your problem.

Please complete the contact form below.

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