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Employers’ Immigration Update - No. 18, June 2015

H-1B Numbers Up More Than 35%

USCIS received approximately 233,000 petitions for fiscal year 2016 beginning in October 2015. Last year, USCIS received 172,500 petitions, meaning there was an increase of over 35% from last year. USCIS randomly selected petitions to meet the general category cap of 65,000 and the advance degree exemption cap of 20,000. Based on this year’s numbers, it appears that barely more than one in three petitions was selected.

Labor Board Orders Conditional Reinstatement of Undocumented Workers 

“[C]onditional reinstatement is an appropriate remedy where an employer knowingly employed individuals who lack authorization to work in the United States and then discharged them in violation of the [National Labor Relations Act],” the National Labor Relations Board has held in a case on remand from a federal appeals court. Mezonos Maven Bakery, Inc., 362 NLRB No. 41 (Mar. 27, 2015).

Relying on the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Board originally held that back pay to undocumented workers was not an appropriate remedy for the employees’ unlawful termination for engaging in protected concerted activity. However, it did not address the possibility of ordering the workers’ conditional reinstatement. While the federal appeals court in New York affirmed the Board’s conclusion on back pay, it “remanded the case to the Board for consideration of issues relating to petitioners’ request for conditional reinstatement.” The NLRB then granted conditional reinstatement, concluding “conditional reinstatement is the only means available to the Board to provide relief to the discriminatees and the principal means of deterring future unfair labor practices,” because a later Supreme Court decision barred it from awarding back pay to undocumented employees. 

Justice Department Settles Largest-Ever Immigration-Related Discrimination Claim

The Department of Justice has announced that, on May 27, 2015, it “reached an agreement…with Luis Esparza Services, Inc. (LES), a farm labor contractor company based in Bakersfield, California, resolving claims that the company discriminated against individuals because of citizenship status in violation of the Immigration and Nationality Act (INA).” The DOJ “found that LES required work-authorized non-U.S. citizens to produce documents issued by the Department of Homeland Security as a condition of employment, but did not require the same of U.S. citizen workers.” The $320,000 settlement is the largest the DOJ has ever obtained for this type of case.

H-4 Dependent Spouses Eligible to Apply for Employment Authorization

USCIS has begun accepting applications for employment authorization from certain H-4 dependent spouses of holders of H-1B visas. The employment authorization is available to nonimmigrants who meet certain requirements related to the permanent residency process.

Jackson Lewis P.C. © 2020National Law Review, Volume V, Number 161

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About this Author

Sean G. Hanagan, Jackson Lewis, business immigration lawyer, employment eligibility verification attorney
Principal

Sean G. Hanagan is a Principal in the White Plains, New York, office of Jackson Lewis P.C.

Working with human resources professionals and in-house counsel, he helps employers develop business solutions and policies for the hire and movement of international staff. Mr. Hanagan advises on I-9 employment eligibility verification, E-Verify and social security issues, and on best practices to avoid hiring-related discrimination. He defends companies subject to government audits and investigations, and guides employers through...

914-872-6879
Lucrecia M. Davis, Jackson Lewis, Corporate Immigration Lawyer,
Shareholder

Lucrecia M. Davis is a Shareholder in the Houston, Texas office of Jackson Lewis P.C.

With more than 15 years of corporate immigration experience, Ms. Davis has represented a variety of multinational clients throughout a broad range of industries including energy/oil and gas, financial services, pharmaceutical and software consulting. She partners with clients to provide strategic counsel on all matters involving US immigration and nationality law, as well as policy and compliance. She advises on all major employment-based temporary and permanent visa categories, family-based permanent residence matters, and naturalization. 

Ms. Davis has in-depth experience working within the international energy sector and has assisted prominent professionals, including senior executives, scientists, researchers, and engineers with obtaining permanent residence based on demonstrated international expertise and prominence in their fields. 

(713) 650-0404
Minnie Fu, Jackson Lewis, Immigration Litigation Lawyer, Employment VISA Applications attorney
Principal

Minnie Fu is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. Her practice focuses on assisting employers in obtaining employment-related visas and advising employers on compliance with U.S. immigration laws and regulations.

Ms. Fu has twenty years of experience in employment-based immigration matters, including nonimmigrant and immigrant visa matters, developing corporate immigration policies and procedures for best practices, and strategic corporate planning for international personnel employment by...

703-483-8311
David Jones, Shareholder, Collegiate and Professional Sports, Jackson Lewis,
Shareholder

David S. Jones is a Shareholder in the firm’s Memphis office while maintaining a practice in the Las Vegas office of Jackson Lewis P.C. He has practiced law exclusively in the area of immigration and related employment matters for nearly fifteen years. He represents clients in complex matters relating to both immigration benefits and enforcement and in proceedings before the Department of Homeland Security, the Department of Labor, the Department of Justice and the Department of State, as well as in matters related to citizenship status discrimination...

901- 462-2600