The Immigration Blog

About an Ever-Confusing American System

Is There a Link Between Immigration and Unemployment?

There is frequently controversy regarding the effects that immigration might have on unemployment rates, especially when a large section of the population is struggling financially. News of corporations seeking H‑1B visas erroneously advances the idea that employers actively recruit foreign workers rather than hire native-born ones. However, there is no link between immigration rates and unemployment patterns. This is due to job market demographics and the benefits immigrants bring to communities.

Different job markets

Immigrants and native-born workers are not usually competing in the same job markets. They offer different education levels and skills. According to the Bureau of Labor Statistics, foreign workers were more likely than native-born employees to work in service occupations, including transportation, natural resources, maintenance and construction. Native-born workers faced a greater likelihood of employment in management, professional and sales positions. There is no competition for positions in this scenario.

The earnings disparity between foreign and native-born workers is very wide. In 2015, the average weekly wage for foreign-born workers was $681, which is significantly less than the $837 average for their native-born colleagues. This is likely due to the differences in service occupations versus managerial or professional ones, and further confirms the lack of competition between foreign-born and native-born employees.

Looking at this alone, immigrants do not compete with most native-born workers for jobs. However, there have been concerns about work availability for working class minorities when immigrants move into their communities.

Jobs not “stolen”

Minority unemployment is often the major issue in these discussions. Even with H-1B visas, companies are not allowed to recruit exclusively among foreign workers or offer those workers a lower salary than would be received by a native-born employee. This visa category also affects only the highly educated, a demographic with low unemployment in the United States. However, in communities where there are primarily service jobs, there is concern that working-class immigrants push out native-born workers with similar skills.

Still, even this conclusion is not backed by the evidence. An Immigration Policy Center Special Report reveals that areas with higher immigration from Latin American countries experience lower poverty and unemployment rates. The same report indicates that immigrants did not displace African American workers, but complemented them. Positions that became available simply could not be filled at the current population level. Immigration helped in these cases.

There are also effects that create jobs. Additional workers spending money in the United States increases opportunities and often require companies (especially retailers) to hire additional employees. Immigrants are also more likely than native-born residents to start their own businesses and employ additional workers—foreign and native-born alike.

Immigrants and their potential employers need to secure the correct visas in order to continue working and living in United States. This process can be challenging and time-consuming. If you require assistance in obtaining an immigrant visa, contact the skilled Pennsylvania immigration attorneys at Baurkot & Baurkot today to schedule a consultation.

Establishing an Employer-Employee Relationship Is Essential for H-1B Visa Purposes

More companies are using the H-1B visa to hire and retain foreign workers. It allows workers to maintain their permanent residence outside the United States while continuing employment here. However, H-1B visas are capped at 65,000 per fiscal year, which makes them very competitive and difficult to secure. One area where an H-1B visa application might fail is in establishing an employer-employee relationship between the worker and the company offering the job. Here is how to prove this connection and increase the chances of visa approval.

Right to control

A presence on the payroll is not enough to show your foreign worker is an employee. The standard most important to U.S. Citizenship and Immigration Services (USCIS) is the “right to control.” This refers to the employer’s influence in the means and manner of the work performed by the employee.

While there is no single decisive element, some factors USCIS will consider include:

  • Employee benefits provided
  • The right to hire, fire and pay the worker
  • Tools and instruments provided to help the worker perform employment duties
  • The existence and frequency of performance evaluations
  • Whether the end product is linked to the worker or the company
  • A company’s control on the schedule and hours of the worker
  • Whether the worker reports to a manager or supervisor

These standards eliminate independent contractors and workers hired through third-party placement agencies from H-1B visa consideration. If a worker invoices for work separately, uses his or her own computer or other tools and sets work hours independent from a company’s preferences, that worker is unlikely to receive H-1B worker status because there is not enough “control” by the employer.

However, a worker who performs duties off-site is not automatically disqualified. If there is a system where the worker checks in and reports progress, there is still the possibility of an employer-employee relationship.

Needed documentation

For this determination to work in your favor, you need good documentation. Examples that work well in the application process include:

  • Job descriptions that describe duties, hours, and expectations in detail
  • Signed employment agreements that outline the details in the job description
  • Letter with an offer of employment, including salary and benefits
  • Any agreements that control off-site work or an authorized third-party workplace
  • Written performance review processes
  • Organizational charts showing the identity of the worker’s supervisor

If you are initially granted a H-1B visa for an employee, you will need to maintain these records if you plan on extending it. Also, keep payroll summaries and time sheets that show that you continue to influence pay and hours.

Securing H-1B visas can be challenging, and you will likely benefit from legal assistance. Contact the experienced and highly skilled Pennsylvania immigration attorneys at Baurkot & Baurkot, who have knowledge of non-immigrant visa processes, to set up a consultation regarding your application and any questions you may have.

ETA Form 9089 and Its Role in the Hiring of Foreign Workers

If you wish to live and work in the United States, one of the easiest ways to make that happen is through employer sponsorship. This starts with ETA Form 9089. Your employer will need to fill this out and submit it before you can secure your work visa. Here is a general overview of how these matters are handled. 

What is Form 9089?

ETA Form 9089 is the Application for Permanent Employment Certification, which is available through the U.S. Department of Labor. It is always completed and filed by the employer seeking to employ the foreign worker.

Once completed, the form contains basic information like the name of the worker, his or her address, the employer’s contact information and other details. It also includes details that could derail the visa approval. Sections F, G, H and I discuss wages and recruitment. There is also Section J, which shows how the foreign worker is qualified for the position. 

Thoroughness and caution required

If there is a place where an employer can make a big mistake, it is in the wage and recruitment section. Basically, employers cannot bring in a foreign worker if U.S. workers are left unconsidered or as a means to forgo market wages. The information in Sections F, G, H and I in Form 9089 help assess that situation.

That is why accuracy on the form is of the utmost importance. Employers need to keep records of recruitments and double check dates and facts on the form. If you are an employee waiting for authorization, make sure you keep any documentation in your control, as well, in case it comes in handy if your employer must appeal.

Also, employers are advised to research prevailing wages in their field very thoroughly, since misrepresenting it can result in a denial. If there is a dispute over the wage information, that research will be instrumental in settling it and allowing the visa process to move forward.

It can take several months before an employer hears back on the application, and if it is denied, there is an appeal process. This can take several more months before the visa is approved and the foreign worker can start in his or her new position.

If you are an employer looking to hire a foreign professional or an employee awaiting a resolution, a knowledgeable Pennsylvania corporate immigration attorney at Baurkot & Baurkot can assist you with matters related to Form 9089. Contact us today for a consultation.

Employment-Based Immigration Depends on Your Job

If you are looking to immigrate to the United States for employment purposes, some professions are preferred over others. Often called employment-based preferences, these are the positions for which an employment visa is most likely to get approved. Here is an overview of this hierarchy and how it can work for you.

Priority workers always come first

The U.S. Department of State’s Bureau of Consular Affairs releases a visa bulletin each month. In this document, it explains the percentages of visa categories that are accepted and their order of priority. It also reviews educational requirements and procedural updates.

Content in the bulletin includes employment-based preferences. It starts by discussing the E1 visa, which is always at the top of the list. These workers include people with “extraordinary ability” in the arts, education, sciences, business or athletics. Professional athletes fall under this visa, as do multinational executives and well-known researchers and professors of the Nobel Prize variety. This type of visa, if you qualify, is easy to secure and often immediate.

The second priority, the E2 visa, is for skilled workers, professionals and other workers. This may include very well-educated people who do not quite meet the level of the E1. If you have an advanced degree and show gifted abilities, you can likely qualify for this visa and can secure it quickly.

Skilled workers and professionals who fall under the third preference category, E3, have less experience than the E2 and must secure employer sponsorship. Preferences below this category still have a good chance of being granted a visa, but additional steps including forms and sponsorship will also apply.

Employer sponsorship

The clients in these employment-preference visas are frequently employers. Preference visas are often pursued in order to secure the most gifted workers in the world. In professional sports, for example, there is frequently a desire to get a new athlete training with a team as soon as possible, so teams and leagues also pursue legal assistance in immigration matters to make this an easier transition while also following immigration law.

Individuals are also beneficiaries. If you are working for a smaller company that does not have the resources to handle your immigration matters, visiting an attorney with your employment offer and proof of sponsorship is frequently the quickest way to get you into the United States and working sooner.

When you are looking at employment in the United States, speaking with an experienced Pennsylvania corporate immigration attorney will help you get started on the process of securing the correct visa. We work for both companies and individuals to make employment preferences work for you. Contact Baurkot & Baurkot today to get started with this process.

Foreign Entrepreneurs Enjoy Numerous Immigration Options

Foreign entrepreneurs who are considering starting or moving their business within U.S. borders should rest assured that it is not an impossible process. In fact, the U.S. government has created a variety of time-tested pathways that allow foreign entrepreneurs to bring their trade overseas. Whether you are considering permanent or temporary immigration to the United States, it’s important to know the options the government provides.

Immigrant Visas

Immigrant visas for business professionals are provided to those who meet the qualifications for U.S. residency and have a particular set of skills or educational accomplishments. The EB-1 Extraordinary Ability visa allows for those who have demonstrated high potential in the arts, sciences, education, business or athletics to immigrate to the United States. That being said, this visa—like most immigrant visas for foreign entrepreneurs—is only afforded to those who can prove they will continue working in their field once living in the United States.

Other types of immigrant visas include the EB-2 Advanced Degree Professional visa—which is for individuals with the equivalent of advanced U.S. degrees or years of workplace experience—a visa for those with exceptional abilities within their field of work and a visa for those with a job offer from a U.S. employer who have demonstrated either exceptional abilities in their field or have an advanced degree.

Nonimmigrant Visas

If you are looking for temporary residency within the United States, there are several available options that may apply to your situation. In contrast to immigrant visas, nonimmigrant visas typically have strict time frames in which you must conduct your business. These time frames are dependent upon the type of visa you apply for and receive as well as the extent of your business affairs.

While there are variety of nonimmigrant visas that you may apply for, one type of visa within this category is the B-1 Business Visitor visa, which grants business visitors the right to set up the details of their proposed business within the United States. This visa can be used to find office space, conduct meetings and more. Additionally, the F-1 Optional Practical Training visa allows students to work toward starting a business that is related to their studies. Nonimmigrant visas may also be available to those with specialty occupations, extraordinary skills or achievements in their field, valuable business investments or those who are being transferred from a company oversees.

If you are a foreign entrepreneur and are considering trying to obtain an immigrant or nonimmigrant visa to the United States, it’s important to speak with a legal professional who can ensure you’re on the right track. To learn more about how to conduct your business in the United States, consult with a knowledgeable Pennsylvania corporate immigration attorney at Baurkot & Baurkot today.

Is a Child Entitled to an Attorney in Immigration Court?

With discussion of immigration appearing frequently in the news media, and given the tenor of coverage of related issues, it’s no surprise that disagreement and debate have come to encompass nearly every corner of immigration law in some way or another. But an ongoing case that’s playing out in federal court in Seattle may be poised to take the debate surrounding the rights of children in removal proceedings to the next level.

The case centers on a lawsuit filed by the American Civil Liberties Union (ACLU) and a number of immigration rights groups, who argue that minor children have the constitutional right to an attorney in immigration court, thus ensuring a fair hearing. Officials from the U.S. Department of Justice (DOJ), however, dispute this, with one official claiming that he has been able to “[train] three-year-olds and four-year-olds in immigration law,” a process that he admits is time-consuming but which he says passes the bar for fairness.

Reaction to these claims has been mixed. While the DOJ argues that the statement was taken out of context, the ACLU attorney whose questioning elicited the response believes the official’s claim should be taken seriously, as he repeated it later in the deposition.

A question of due process

A major part of the disagreement between the two sides involves the question of whether minor children are constitutionally entitled to representation by an attorney. The DOJ argues that the distinction between procedural due process and substantive due process is at issue, claiming that children detained at the U.S. border are entitled to procedural due process—protection from indefinite detention and torture, for example—but not to substantive constitutional rights. In this way, the DOJ says, the minor children whose case is before the court differ from children who have spent significant time in the United States, who would be entitled to such rights as legal representation.

The ACLU, for its part, argues that it doesn’t matter whether a child has been in the United States for years, or if they were picked up at the border yesterday—anyone called to appear in immigration court is entitled to an attorney.

The children involved in the case are between one and 17 years of age, and came to the United States from Mexico, El Salvador, Guatemala and Honduras. The lawsuit was filed in 2014, and the judge overseeing the case has not yet issued a ruling.

Being required to appear in immigration court and faced with removal from the United States is a stressful and uncertain situation for anyone, and may be much more difficult for minor children whose understanding of the situation may not be sufficiently clear. If you have questions or concerns related to your or your child’s immigration case, seeking the counsel of an experienced and knowledgeable attorney is your best approach for achieving clarity and ensuring you’re getting the help you need. Contact the Pennsylvania deportation defense attorneys at Baurkot & Baurkot today for help.

What Is a Habeas Corpus Petition, and What Role Does It Play in Immigration?

Facing detainment or deportation is a reasonable fear in the immigrant community. Even if people follow all procedures stringently with the assistance of an immigration attorney, administrative errors or unfounded criminal charges could place your legal status in danger. Fortunately, there is a possible remedy under habeas corpus if you or a loved one faces detainment.

General purposes of habeas corpus

The writ of habeas corpus is established in the Judiciary Act of 1789. Its original intention was to prevent the unreasonable detention of citizens without due process. Procedures are available in both federal and state courts, but since immigration is a federal matter, use of habeas corpus in those cases is limited to federal district court.

Pleadings in habeas corpus request review of an “arbitrary and lawless” action. It is mainly used to request the release of people who are held in custody in violation of the Constitution, international law or currently valid treaties.

Application in immigration

Habeas corpus is applied in immigration when people are detained and facing deportation. Since these actions often occur without a hearing or other judicial proceedings, habeas corpus appears to be a good remedy on its face.

There is dispute regarding this procedure in immigration matters. The REAL ID Act (Public L. 109-13 Stat 302) limits review in some ways but expands it in others. Since May 11, 2005, the law has removed habeas corpus review for final orders regarding removal and deportation. However, it expanded options for judicial review for these occurrences, and that is intended to take the place of habeas corpus review.

Even with the REAL ID Act in effect, the Supreme Court upheld the use of habeas corpus to challenge the length and conditions of detention. While your immigration attorney would have to take other options to address a deportation order, for example, habeas corpus remains an available strategy for people detained too long or facing mistreatment.

Also, unlawful custody does not have to include physical detention. If the government places other restrictions on liberty, like the inability to obtain a proper ID or even secure a driver’s license, it can be considered physical detention. Many immigrants successfully challenged these limits as unlawful custody even if they remained at home and not in a detention cell.

If you require habeas corpus, your attorney will file the petition in district court after paying a filing fee. Any final decisions in district court can be appealed to higher courts, just as with other civil proceedings. Contact Baurkot & Baurkot if you are in a position where you require a habeas corpus petition from an experienced Pennsylvania immigration attorney to secure your liberty.

Understanding the Risks of a Plea Bargain

When you are facing criminal charges, the first instinct is often to conclude the ordeal as soon as possible. Facing the legal system in this adversarial manner is often terrifying, and that is especially true if you are not a citizen. One way these matters conclude quickly is through plea bargains or agreeing to a lesser offense in order to avoid stiffer penalties and drawn-out trials. Unfortunately, this easier way out for citizens often results in deportation for those who are not.

“Conviction” defined broadly

The Immigration and Nationality Act defines “conviction” as a formal judgment of guilt. It can include a plea of guilty but also no contest, which is made when facts do not support an effective defense. Basically, there does not need to be a formal process of a trial and guilty verdict by a jury. The seemingly cooperative approach of a plea bargain also falls under “conviction.”

Your conviction status remains even if pleas are withdrawn later. For example, if you are pulled over for driving under the influence and agree to alcohol assessment and treatment instead of sentencing, that will withdraw your guilty plea as far as the criminal court is concerned. However, in the immigration sphere, you will still be considered guilty of the offense.

Vacated criminal convictions and expungements are also not guarantees against deportation. The only way a vacated criminal conviction will stop deportation proceedings is if it was vacated for cause. For example, if a judge rules your constitutional rights were violated during arrest or trial, that would vacate your conviction for cause. You can take that order to the immigration hearing to terminate the deportation proceedings.
However, if a judge vacates your conviction solely to avoid deportation proceedings, that will not count in immigration court. Also, expunged convictions are still considered regular convictions under U.S. immigration law.

Proceed with caution

It is very easy to get caught up with wanting your criminal matter concluded at any cost. While getting charges vacated or expunged solves most problems for citizens, it causes new ones for non-citizens. Your only option if you cannot get a conviction vacated for cause is to seek a pardon, but that process can take years.

To complicate matters further, a standard criminal defense attorney may not have sufficient background in immigration law. In other words, while attempting to represent your best interest, your attorney may inadvertently cause your deportation.

That is why if you are facing criminal charges, you need to consult with an immigration attorney before making any final decisions. Your immigration attorney will know whether your new plea deal risks deportation.

Sometimes, a plea deal will work out well for you. Traffic infractions are lesser charges that do not rise to immigration proceedings. So if you plead guilty to running a stop sign (which is an infraction), as a way to avoid reckless driving charges (a misdemeanor or felony), it is unlikely that you will attract the attention of immigration services.

To secure the full picture on how your criminal charges will affect your immigration status, contact a knowledgeable Pennsylvania deportation defense attorney at Baurkot & Baurkot as soon as possible.

Voluntary Departure vs. Deportation

In fiscal year 2015, U.S. Immigration and Customs Enforcement (ICE) removed 235,413 individuals from the country. Nearly 60 percent of these were convicted criminals. But these numbers don’t tell the whole story of the removal process. Being detained by ICE or picked up by U.S. Citizenship and Immigration Services (USCIS) does not automatically result in deportation. Many detainees are eventually released and remain in the country. But of those who do not, not all are deported—some are allowed to depart voluntarily.

The distinction between voluntary departure and deportation is crucial, and misunderstood by many individuals who have entered the United States illegally and found themselves in trouble as a result. Many do not even know they may have a choice. The key reason why choosing between voluntary departure and deportation is so important is that your choice can impact your ability to return to the United States in the future—even if you’re following the letter of the law while attempting to do so. Here’s a look at these two options.

Grant of voluntary departure

Voluntary departure is not an automatic option granted to everyone faced with removal from the United States. For example, having committed certain crimes is an easy way to find oneself ineligible for voluntary departure. But for those who do have this option, it affords some notable benefits. Most prominently, for individuals who haven’t been in the United States for a year or more, it places no restrictions on their ability to apply to enter the country lawfully. (Unlawful presence of more than a year, however, results in a 10-year ban on re-entry.) Finally, it allows individuals to make their own departure arrangements, which can be a real privilege when you consider the alternative possibilities. Although this costs money, being entrusted to leave the United States by the designated date is preferable to being forced out.

Order of removal

An order of removal is decidedly less pleasant, particularly for those individuals for whom a life in the United States has long been a dream, as it places severe limitations on their ability to re-enter the country. (Five- to 10-year bans on re-entry are typical, although some individuals with serious criminal convictions can face lifetime bans.) Simply put, an individual will be issued an order of removal if they have no right to be in the United States or if they have violated the terms by which they were allowed to enter the country. An order of removal is carried out by ICE within 90 days of its being handed down. In other words, an individual must leave the country on the agency’s terms, rather than on their own.

Regardless of the specifics of your case, you are entitled to consult with a legal professional if you face removal from the United States. Get in touch with the highly experienced, knowledgeable and attentive Pennsylvania deportation defense attorneys at Baurkot & Baurkot today to learn more about your options.

How Do You Sponsor an Employee for Permanent U.S. Residence?

Employers interested in sponsoring a current employee for permanent resident status in the United States—or hiring an employee who is not a permanent resident—are faced with a difficult and time-consuming process. However, it is not an impossible one. While there are a number of steps involved, as well as a need for accuracy and completeness when filing paperwork, sponsoring a worker for permanent U.S. residency can be made much more manageable by understanding the process going in.

Preference categories matter

Employment-based immigration to the United States is contingent upon workers meeting a variety of qualifications in terms of their line of work and their demonstrated abilities. The U.S. Congress has identified different classes of workers and ranked them by preference; these preferences dictate which type of employment-based immigrant visa (EB visa) a worker might qualify for. The EB-1 thru EB-4 categories, in general, prioritize truly exceptional workers, those with advanced degrees, skilled workers, unskilled workers in industries lacking sufficient American workers and a variety of others.

The category into which a particular worker falls will dictate the process by which an employer will petition on his or her behalf, including which forms will need to be submitted. A corporate immigration attorney can help you determine the best approach for your and your worker’s situation.

File, then wait

An employer’s first step is to apply for permanent labor certification for the employee through the U.S. Department of Labor. Once this application has been approved, the employer files an immigration petition (Form I-140) on the worker’s behalf. This is filed with U.S. Citizenship and Immigration Services, effectively putting the employee “in line” among other applicants—among, rather than behind, because of preference categories. It’s important to note that, even if your applicant is classified EB-1, you should still file as early as possible, because a number of factors can potentially delay the processing and acceptance of the petition.

The amount of time it takes for a petition to be processed can vary. The only certainty is that the process is aided by ensuring all paperwork is filled out properly and all necessary supporting documentation is provided.

When you have a current or prospective employee who is interested in becoming a permanent U.S. resident, the process of realizing that goal can seem daunting, and its complexity should not be underestimated. However, with the help of a skilled corporate immigration attorney, you can feel confident about taking the necessary steps to bring your employee to the United States (if they aren’t already here) or allow them to stay permanently. To learn more, speak with a knowledgeable Pennsylvania corporate immigration attorney at Baurkot & Baurkot today.