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Avoiding National Origin and Citizenship Status Discrimination in the Hiring Process

Posted December 23, 2020Articles

The Immigration and Nationality Act provides two distinct protections against discrimination:

  • Discrimination based on national origin
  • Discrimination based on citizenship status.

Violations of these protections can open an employer up to liability, with consequences ranging from civil penalties, attorney’s fees, compensatory damages, punitive damages, and other costs. The most expensive liability can be in public perception, as these violations are often well publicized.

Discrimination Based on National Origin

This protection applies to all work-authorized individuals and prohibits discrimination based on country of origin, accent, appearance, and similar features.  Examples of discrimination based on national origin include refusing to hire an applicant because of their accent or requiring specific proof of work authorization from Asians and Latino employees, but not white employees.

Discrimination Based on Citizenship Status

This protection only applies to U.S. Citizens and Nationals, Refugees, Asylees, and Recent Lawful Permanent Residents. Examples of discrimination based on citizenship status include restricting certain positions to U.S. Citizens only and effusing to hire an individual because they are a permanent resident or refugee.

Avoiding Discrimination During the Hiring Process

Paper/Application Stage

Given guidance from the Department of Justice, Meltzer Hellrung recommends asking only 2 questions of all applicants:

  • Are you authorized to work lawfully in the United States?
  • Do you now, or will you in the future, require sponsorship to work in the United States?

Employers are not required nor obligated to sponsor an applicant or employee for work authorization or permanent residency Employers are permitted to reject candidates based on a ”no” response to the first question and/or a “yes” response to the second question.  Employers who ask additional questions subject themselves to liability but are not required to ask these questions at all.

During the Interview

It is important that interviewers ask the same questions of each applicant.

Additional information about avoiding discrimination in the hiring process can be found here, including examples of the acceptable follow up questions in response to the questions above. 

Candidates will often provide information that is needed regarding their visa and immigration status when prompted. Employers can only request proof of authorization only after extending an offer. Up until the offer is made, employers must take the applicants at their words. Please note that employers cannot demand specific documents for the I-9 completion. 

To answer any questions or have your hiring materials reviewed, please contact your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com.

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Additional COVID Relief Package Passed Through Congress

Posted December 23, 2020Stephanie Wedel - Sr. AssociateArticles

On December 21st, Congress passed a spending package to fund federal agencies through September 30, 2021 as well provide additional COVID relief.    

This spending package extends the following immigration programs:

  • EB-5 Regional Center Program extended only until June 30, 2021.
  • E-Verify program extended until September 30, 2021.
  • Special Immigrant Religious Workers Program extended until September 30, 2021.
  • Conrad-30 extended until September 30, 2021.
  • Liberian Refugee Immigration Fairness program filing deadline extended until December 20, 2021.

The COVID relief package also includes authorization for stimulus checks to be issued to families where at least one family member files taxes with social security number.  This authorization will also provide retroactive relief to families who did not receive payment under the CARES Act passed earlier this year.

The receipt of the stimulus payment does not count as a public benefit for the public charge requirements because  the public charge restrictions explicitly exclude tax credits and tax deductions.  As these stimulus payments are structured as a tax credit, they are not considered to be a public benefit for immigration purposes, but rather a tax credit exempt from consideration in the public charge rule.

Please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com if you have any questions.

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H-1B Win for Computer Programmer Occupation

Posted December 18, 2020Cheryl Kilborn - Sr. AssociateH-1B

A federal court of appeals recently reversed and remanded a California federal court ruling that upheld USCIS’s denial of an H-1B visa for a computer programmer.

Background

One of the four alternative regulatory criteria to establish that an occupation qualifies for H-1B classification is to demonstrate that a bachelor’s degree (or its equivalent) is “normally” the minimum requirement. USCIS looks to the Occupational Outlook Handbook (OOH), a source it deems authoritative, when determining whether an occupation “normally” requires a bachelor’s degree.

The current version of the OOH states the following regarding the normal educational requirements for a computer programmer:

“Most computer programmers have a bachelor’s degree; however, some employers hire workers with an associate’s degree.”

USCIS routinely relies on the above language to deny H-1B visa requests for computer programmers. USCIS asserts that because a bachelor’s degree is not required 100 percent of the time, that it is therefore not the “normal” requirement. USCIS’s position on this was codified in a March 2017 Policy Memorandum in which it asserted that because an associate’s degree is acceptable, per the OOH, an employer cannot rely on the OOH to demonstrate that its particular computer programmer position meets the criteria for H-1B classification.

Notably, The OOH also states the following regarding the normal educational requirements for a computer programmer:

Typical Entry-Level Education

Bachelor's degree

While USCIS has routinely denied H-1B requests for computer programmers upon finding that “most” is not synonymous with “normally” the court in this case addressed USCIS’s failure to consider the OOH entry that a bachelor’s degree is the “typical” requirement for the computer programmer occupation.

Court’s Analysis

  • USCIS argued that because some employers hire computer programmers with associate’s degrees, per the OOH, a bachelor’s degree is not the “normal” requirement (USCIS failed to address the OOH entry that a bachelor’s degree is the “typical” requirement). The court considered the OOH entry and found the words “normally” and “typically” to be synonymous.
  • USCIS argued that because some employers hire computer programmers with associate’s degrees, per the OOH, that most computer programmers have either a bachelor’s or associate’s degree. The court disagreed finding that USCIS’s logical fallacy misrepresented the OOH.
  • The court also found that USCIS’s failure to consider key evidence within the OOH itself that explained that a bachelor’s degree is the “typical” requirement was “yet another (and independent) reason” why the lower court’s decision was arbitrary and capricious.

What this means for H-1B employers

  • We expect USCIS’s March 2017 Policy Memorandum to be rescinded, in which USCIS asserts that an employer cannot rely on the OOH to demonstrate that a computer programmer is an occupation that “normally” requires a bachelor’s degree.
  • The computer programmer occupation is not the only one for which the OOH states that in some instances employers will accept something less than a bachelor’s degree. The reasoning in this case can be used for other occupations as well.
  • Employers that have the option of suing USCIS in the 9th circuit can benefit from this binding precedent. This case, while not controlling outside of the 9th circuit, is certainly persuasive for other jurisdictions.

Please reach out to your designated Meltzer Hellrung attorney, or consultation@meltzerhellrung.com with any questions. 

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USCIS Extends Flexibility for Responding to Requests

Posted December 18, 2020Stephanie Wedel - Sr. AssociateArticles

On December 18, 2020, USCIS announced that it will further extend selected deadlines for responses to:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant;
  • Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); and
  • Filing date requirements for Form I-290B, Notice of Appeal or Motion.

What does this mean for cases?

Due to the ongoing coronavirus pandemic, USCIS will accept responses or requests listed above that are submitted or filed within 60 calendar days of the due date. The request, notice, or decision must have been issued anytime between March 1, 2020 and January 31, 2021.

If you have any questions about deadlines for any of the mentioned items, please contact your Meltzer Hellrung attorney or consultations@meltzerhellrung.com.

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Department of Labor Ordered to Reissue Prevailing Wage Determinations

Posted December 16, 2020Stephanie Wedel - Sr. AssociateArticles

In a District Court decision on December 14th, the Department of Labor has been ordered to reissue all Prevailing Wage Determinations that were issued on or after October 8, using the levels in place prior to October 7.

When will this occur?

The order does not detail the timeline for the Department of Labor to reissue these determinations, and the Department of Labor has not yet issued a timeline for the reissuance of the determinations. Meltzer Hellrung will continue to monitor the matter and will provide updates as they are available.

Recommendations

The Department of Labor previously announced redetermination requests for prevailing wage determinations issued after October 8th could be filed through January 4, 2021, despite the usual 30-day deadline.  As the timeline for the reissuance of the determinations is uncertain, we recommend taking advantage of the redetermination request deadline to submit requests for any prevailing wage determination issued under the new prevailing wage rule.

Please reach out to your designated Meltzer Hellrung attorney, or consultation@meltzerhellrung.com with any questions. 

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