Controversy and Uncertainty Surrounding H-1B Visas

Weeks ago, an Oregon plaintiff filed a lawsuit that challenged the H-1B lottery as violating the immigration law which provides that visas will be issued on a “first come, first serve” basis in accordance with their filing dates. The judge dismissed the case, ruling that the official filing of an H-1B visa occurs only when the lottery winners are randomly selected. In the weeks since this court ruling, H-1B visas have reached their cap for the 2018 fiscal year.

How Does the H-1B Lottery Work?

lotteryAmerican employers can file H-1B visa petitions on behalf of highly skilled foreign workers in specialized fields. Each year, 65,000 employment visas are allocated toward these workers, with an additional 20,000 available for U.S. advanced degree cases. Petitioners may file the visa requests beginning on April 1st each year. All petitions submitted within the first five days will go into the lottery, under which a computer randomly selects who will receive H-1B visas. Once the annual cap has been met, however, the United States Citizenship and Immigration Services (USCIS) will continue to accept applications to extend existing H-1B visas, change the terms of employment for immigrants with H-1B visas, and allow H-1B visa holders to change employers or add a second employer.

Controversy Surrounding H-1B Visas

The Oregon case highlights various controversies surrounding the H-1B visas, which President Trump brought into the public eye earlier this year with an announcement that he was considering an overhaul of the visa program to increase the waiting period for receiving visas and restrict the number of H-1B visas available annually. Such changes, if put into effect, would adversely affect technology companies, higher education and the health care industry which all depend on foreign workers to fill STEM positions. While the current administration seeks to refocus on providing jobs to American citizens, many foreign hopefuls—including the Oregon plaintiff—believe different H-1B reforms are necessary. The plaintiff argued that the lottery is unfair, awarding visas to some applicants and denying them to others based solely on the luck of the draw. The plaintiff argued that a waiting list should be implemented in lieu of the lottery. Although the case was dismissed, it highlights potential problems with the current lottery system.

Brownstein & Nguyen has decades of experience helping immigrants navigate the complicated U.S. immigration laws surrounding temporary visas and green cards. Contact us today to evaluate your immigration case.

Federal Crackdown on Sanctuary Cities

Recently, Attorney General Jeff Sessions announced that The Justice Department will enforce President Trump’s executive order to withhold federal funding from sanctuary cities. Under the order, which was announced January 25, 2017, in order to receive federal grants cities must prove that they have complied with federal immigration laws. According to the executive order:

Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation. Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.

The Attorney General contends that protected immigrants in sanctuary cities are often criminals who threaten the safety of U.S. citizens. President Trump has ordered the Department of Homeland Security to publish weekly lists of local authorities refusing to comply with detention requests. But are sanctuary cities legally mandated to comply with federal detention requests, and do these cities really pose a threat to the safety and security of the American people?

The Legality of Sanctuary Cities

During the 2016 presidential campaign, Donald Trump repeatedly invoked the dangers of sanctuary cities. Legally, immigration issues fall under federal jurisdiction. Federal law enforcement agencies, specifically agents of Immigration and Customs Enforcement (ICE), can request that state and local officials notify them when a noncitizen is released from custody. However, it is up to state and local law enforcement officials to determine whether or not to comply with those requests from federal officials. “Sanctuary cities” are jurisdictions that choose to protect their residents and foster goodwill between local law enforcement and immigrant communities, instead of automatically complying with federal detainer requests.

Do Sanctuary Cities Pose a Threat to National Security?

The Trump administration claims to be cracking down on sanctuary cities because of the increased threat of violent crimes when local law enforcement protects noncitizens from potential deportation. But do the facts support these statements? In a study published in January, University of California at San Diego professor Tom Wong analyzed crime rates in 608 sanctuary counties alongside similarly populated non-sanctuary counties. The study found that:

  • city lights at nightAn average of 35.5 fewer crimes are committed per 10,000 people in sanctuary counties
  • The median household income in sanctuary counties is $4,353 higher on average than in nonsanctuary counties
  • Sanctuary counties have, on average, a poverty rate that’s 2.3 percent lower than nonsanctuary counties
  • Unemployment rates in sanctuary counties are 1.1 percent lower on average
  • Sanctuary counties with smaller populations show more pronounced effects

In the end, the decision to comply with federal immigration detainers rests in the hands of state and local governments. Over the following months, we will see how the threat of revoked federal funding affects sanctuary cities.

Trump’s Revised Travel Ban Blocked by Honolulu Judge

On March 6, 2017 President Trump issued his second executive order to-date, banning foreigners from six Muslim-majority countries from traveling to the U.S. The new executive order, which was due to go into effect on March 15, was a revised version of Trump’s first travel ban, which he rescinded after questions of its adherence to the U.S. Constitution were addressed by the 9th Circuit Court of Appeals. Just hours before the second travel ban was to go into effect, a district judge in Honolulu issued a temporary restraining order to block the president’s revised executive order.

Honolulu Judge Blocks Trump’s Second Travel Ban

lady justice statueOn Wednesday, March 15th, 2017 Judge Derrick K. Watson of the United States District Court in Honolulu blocked the nationwide implementation of President Trump’s new travel ban. The revised ban—which included a 90 day freeze on issuing visas to people from Iran, Sudan, Somalia, Libya, Yemen, and Syria (among other restrictions)—was due to go into effect just hours after the federal judge halted the order. American citizen Ismail Elshikh and the state of Hawaii brought the case to the district court, contending that national security was a thin pretext for a travel ban that was based, at least in part, on a discriminatory intent.

Religious Discrimination Inherent in Trump’s Travel Ban

Trump’s first travel ban—which included a travel block of people from Iraq as well as an indefinite ban of Syrian refugees into the United States—prioritized immigrants facing religious persecution. Because the ban targeted Muslim-majority countries, opponents argued this exemption was tantamount to religious discrimination. The Trump administration claimed that the revisions to the executive order rendered the newest iteration religiously neutral, but because of its continued targeting of immigrants from Muslim-majority countries the Hawaii district court disagreed.

The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.

While the government suggested courts should focus solely on the explicit text of the order and not look at other evidence of intent, Judge Watson concluded that the president’s own statements clearly supported an explicit bias against Muslim immigrants.

The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” … The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”

According to the The Washington Post, recent government reports also undermine the stated purpose of the executive order. One report from the Department of Homeland Security found that the majority of foreign-born terrorists likely adopted their extreme ideology after entering the U.S., not before. The second shows that the highest risk of foreign terrorism is likely to come from countries not included in Trump’s travel ban. Judge Watson concluded that:

Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims.

Citing Judge Watson’s detailed decision, Judge Theodore Chuang of Maryland also issued a preliminary injunction of Trump’s travel ban, stating:

[Judge Watson’s] statements, which include explicit, direct statements of President Trump’s animus toward Muslims and intention to impose a ban on Muslims entering the United States, present a convincing case that the first executive order was issued to accomplish, as nearly as possible, President Trump’s promised Muslim ban. In particular, the direct statements by President Trump and (former New York City Mayor Rudy) Giuliani’s account of his conversations with President Trump reveal that the plan had been to bar the entry of nationals of predominantly Muslim countries deemed to constitute dangerous territory in order to approximate a Muslim ban without calling it one precisely the form of the travel ban in the first executive order.
While President Trump has vowed to fight these decisions all the way to the Supreme Court, only time will tell what’s in store for the administration’s failed attempts to enact a travel ban.

3 Takeaways from the 9th Circuit Court’s Executive Order Ruling

The states of Washington and Minnesota (later joined by 17 more states) filed a lawsuit against President Trump’s recent executive order banning entry into the United States by citizens of 7 majority Muslim countries, claiming the ban harms the interests of the states, their citizens and legal residents. On February 9, a three-judge panel of the 9th Circuit Court of Appeals unanimously voted to uphold federal district judge Robart’s temporary block of President Trump’s administration ban. What does this decision mean for U.S. citizens, refugees, and immigrants?

Upholding Checks and Balances

judge's gavelThe administration argued that the judiciary branch should defer completely to the executive branch on orders purportedly affecting national security, primarily because the court is not aware of pertinent classified information that only the president knows. In upholding lower court’s decision, the appeals court rejected this argument, affirming that under the U.S. constitution the courts play a critical role in acting as a check on the power of the executive branch, including immigration matters.

[T]he Government has taken the position that the President’s decision about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. . . There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. . . [T]he Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.

Right to Due Process

The 9th Circuit also held that the states showed a likelihood of success on their contention that the immigration ban violates due process rights afforded to non-citizens as well as U.S. born citizens, naturalized citizens, green card and visa holders.

The procedural protections provided by the Fifth Amendment’s due process clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” . . . These rights also apply to certain aliens attempting to re-enter the United States after traveling abroad.

No Need for Immediate Action

While the Trump administration claimed that the immigration ban was a pressing matter of national security, the 9th Circuit court held that the administration failed to present evidence supporting the immediate need for the order. The court also considered evidence presented by the states that doing so could harm U.S. interests and those of its citizens and legal residents.

[T]he public has a powerful interest in national security and in the ability of an elected president to enact policies. . . [T]he public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.

After initially seeking reconsideration by the full 9th Circuit, yesterday the Trump administration withdrew its request and told the court it would rescind the travel ban, a complete victory for the states. The president has promised to issue a new executive order soon that complies with the law. The states, immigration advocates and affected families and individual will be watching, ready to challenge the president again if he oversteps his authority.

The attorneys at Brownstein & Nguyen have decades of experience with immigration cases in Atlanta. Contact us to evaluate your immigration case today.

What Immigrants Need to Know about the Ban

When it comes to matters of immigration and national security, the courts often defer to the executive branch. But with President Trump’s recent immigration order, announced with much fanfare late Friday, January 27, 2017, concerned immigration advocates, citizens and affected individuals are pushing back. The ban seeks to temporarily block entry into the U.S. for citizens and immigrants from seven countries in the Middle East, and blocks entry for nearly all refugees. The question the administration and country face: is Trump’s immigration ban unconstitutional?

The 411 on the Immigration Ban

statue of libertyTrump’s immigration ban purports to keep Americans safe by heightening border security. According to the presidential administration, the order has been put in place temporarily while the national security team analyzes and updates vetting procedures for U.S. immigrants. The immigration ban:

  • Puts a 120 day suspension on refugee resettlement into the United States
  • Cut the annual number of refugees allowed into the U.S. from 110,000 to 50,000
  • Indefinitely bans resettlement of refugees from Syria
  • Suspends immigration from Iran, Iraq, Libya, Syria, Somalia, Sudan, and Yemen for 90 days
  • Provides exemptions for foreign diplomats and members of certain international organizations
  • Prioritizes refugees facing religious persecution if it is a minority religion in their country of origin
  • Initially included prohibiting green card holders from reentering the United States, which the administration later clarified was intended only to apply to legal permanent residents suspected of terrorist activity

Because the detention of green card holders occurs on a case by case basis, immigrants on student visas or work visas, among others, may be denied re-entry into the U.S.

Is the Immigration Ban Legal?

Many American citizens and legal residents have pushed back against the immigration ban. An order by Seattle federal district judge James Robart placed a temporary restraining order on the executive order on Friday, February 3rd. This was the second federal judge to do so. The matter has gone to the Ninth Circle Court of Appeals, which is currently debating whether to reinstate Trump’s immigration ban. They are expected to reach a decision this week on the legality of the ban.

If you or someone you know may be affected by the immigration ban, contact Brownstein & Nguyen to evaluate your case.

Trump’s Call to Deport Criminals

As the United States prepares for the transition of power to President-elect Donald Trump, it is a time of uncertainty and fear for immigrants in this country, especially those who may have committed a crime no matter how small. Throughout his campaign, Trump proposed the immediate deportation of criminals. During his first  appearance on CBS’s 60 Minutes after the election, Trump vowed to deport up to three million immigrants who have committed crimes. However, this number is likely inflated and includes both those who are in the United States illegally as well as those have obtained legal status.

A 2013 report by the Department of Homeland Security estimated approximately 1.9 million “removable criminal aliens” are in the United States. That number includes legal permanent residents holding green cards and those with temporary visas, as well as people who have been convicted of nonviolent crimes such as theft and not just those convicted of felonies or gang-related violence.

Is This Even Possible?

National security targetThe possible number of immigrants Trump is targeting is extraordinarily aggressive. According to Kevin Appleby, the senior director of international migration policy at the Center for Migration Studies of New York, Trump “would have to conduct a sweep, or raids or tactics such as those, to reach the numbers he wants to reach. It would create a police state, in which they would have to be aggressively looking for people.”

Essentially, what Trump advocated during the presidential campaign would require special “deportation forces” and an unprecedented increase in staff, resources and cost. Even during President Obama’s two terms (from 2008-2016) when deportations reached all-time highs, the largest number of people deported in one year was 410,000 in 2012. In 2015, that number declined to 235,000.

What You Need to Know

Technically, in the eyes of the law, any immigrant in the country illegally could be considered a criminal. Those who are most are risk for deportation as criminals would be those who have already been convicted and are serving current jail sentences under the law.

Under immigration the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, any immigrant who is targeted for deportation/removal can apply for various immigration benefits if they are eligible. These benefits include:

  • Adjustment of permanent resident status
  • Cancellation of removal
  • Waivers of inadmissibility
  • Asylum
  • Withholding of removal

If you are the subject of government action for deportation or removal, you still have rights. Contact the Atlanta immigration attorneys at Brownstein & Nguyen LLC for help.

What Trump’s New Policies May Mean for Immigrants

The 2016 presidential election has left many immigrants and others concerned with immigration reform reeling. President-elect Donald Trump focused heavily on deportation plans and immigration bans during his candidacy. With the new administration poised to take office in just a few weeks, Trump’s policies c0ould have a major impact on U.S. immigrants.

Trump’s 10 Point Immigration Plan

As outlined on his website, Trump’s immigration plan includes:

  1. barbed wire fenceBuilding a wall on our Southern border (paid for by Mexico)
  2. Detaining undocumented immigrants until they’re deported
  3. Immediately deporting immigrants who have committed crimes in the U.S. (including entering the country illegally) 
  4. Ending sanctuary cities
  5. Terminating Obama’s executive amnesty programs for undocumented immigrants, and increasing the number of ICE agents to deport these immigrants
  6. Suspending visas to certain countries until adequate security vetting can be guaranteed
  7. Ensuring other countries take back people when the U.S. orders their deportation
  8. Implementing biometric entry-exit tracking
  9. Turning off jobs and benefits magnets
  10. Reforming immigration to put American workers first

DACA in Jeopardy

The Deferred Action for Childhood Arrivals (DACA) policy, initially put into place by President Obama in 2012, protects immigrants who arrived as children from deportation by giving them access to temporary work visas. President-elect Trump has promised “on day 1” to reverse executive actions like DACA that protect undocumented immigrants. If he does so, it will remove protected status from some 750,000 immigrants, putting them at immediate risk for deportation. Advocacy groups recommend that undocumented immigrants not currently protected under DACA refrain from applying for DACA status until the Trump administration makes clear their plans for immigration and deportation.

A Tighter Stance on Immigration

Never one to mince words, Trump did not shy from denouncing Mexican and Muslim immigration during his campaign. Although the Trump administration has yet to release an official statement on immigration policy, a leak by Trump transition team member (and one-time candidate for a Cabinet position) Kris Kobach outlined several potential Homeland Security plans.

  • Update and reintroduce NSEERS to screen and track immigrants from high-risk areas (the so-called “Muslim registry”)
  • Add extreme vetting for “high-risk aliens”
  • Use authority from the 1980 Refugee Act to reduce immigration from Syria to zero
  • Increase Immigrations and Customs Enforcement (ICE)

On December 22, 2016 the Obama administration officially terminated the NSEERS program. However, the Trump administration could reinstate it or something similar.

Immigration groups are already pushing back against President-elect Trump’s proposed policies, which threaten the rights and freedom of both documented and undocumented immigrants to the U.S.

Brownstein & Nguyen has decades of experience handling complicated immigration issues. Don’t live in fear of deportation. Contact our Atlanta immigration law office to evaluate your case.

Intellectual Property and Tax Considerations for Entrepreneurs

Any entrepreneur knows that starting a business requires you to be a jack of all trades. Once you develop a promising business venture, you must also raise startup capital, determine corporate structure with partners and investors, familiarize yourself with potential legal hurdles, and check every documentation box required by the local and federal government. If you have the legal and business acumen to navigate these waters, there are still a few currents left: taxes and trademarks.

Trademark Issues When Starting a Business

It’s easy to wade into murky waters when choosing a company name, logo, or slogan. Your idea could be owned or trademarked by another company, or associated with another business. Not only is this a marketing issue (after all, you want potential customers to associate your name with your goods and services, not your competitor’s), it can cause legal troubles, too. Avoid potential setbacks by taking these steps to ensure your company name isn’t trademarked:

  • Brainstorm ideas and make a list of potential marketable names for your business
  • Search the web to find other companies with the same name
  • Search state corporations and local licensing office records
  • Search the U.S. Patent and Trademark Office records to find any claims to the exact or similar names
  • Check if the domain name has already been claimed online (if so, that’s a good sign that the name is already in use by another company)
  • Discuss intellectual property rights with an Atlanta business lawyer

Tax Considerations for Entrepreneurs

Many entrepreneurs sink new businesses by not considering tax issues during the business development stage. Forbes’ article 10 Big Legal Mistakes Made by Startups lays out the most common of these tax issues.

  • tax incentives formSales tax. If you fail to implement sales tax, you’re facing a sure audit and significant fines.
  • Payroll tax. These may include deductions from an employee’s wages or a tax paid by the employer (calculated as a percentage of wages paid).
  • Section 83(b). The 83(b) election allows founders and shareholders to pay taxes upfront, at current value, rather than annually, when the share value (and thus taxes) will likely have increased.
  • Choice of legal entity. The choice to start a company as an LLC, corporation, sole proprietorship, or other legal entity can significantly impact tax regulations for the business.  
  • Tax incentives. Your business may be eligible for tax incentives to diminish excess burden.
  • Stock options. Employers should research tax guidelines before offering stock options to employees.

When starting a business, it pays to be prepared. Jay Brownstein has over 25 years of experience representing business owners in Atlanta and throughout Georgia. Contact Brownstein & Nguyen for legal advice on business startup legal issues, drafting contracts and founders agreements, and ensuring proper documentation for your business venture.

Problems Facing Immigrants Seeking Asylum in Atlanta

Over the last several years, refugees and asylum-seekers have become an increasingly hot topic in American politics. But for those fleeing dangerous situations in their home countries, the problem is much more personal. Since 2014, there has been a surge in Central American asylum-seekers relocating across the U.S. Many of those asylum-seekers relocate to Atlanta because of its job opportunities and Spanish-speaking neighborhoods. But while Atlanta has always fallen below the national rate for granting asylum petitions, it has recently dropped from 23% down to just 2%. By comparison, the national asylum grant rate in the United States is 48%.

Problems Facing Asylum-Seekers in America

girl seeking asylumCourts across the country have been flooded with Central Americans seeking asylum in the last two years. New detention facilities and increased deportation sweeps have become the norm, an effort by the Obama administration to slow the flood of immigrants. Central Americans have only a 1 in 5 chance of receiving asylum in U.S. immigration courts, and Mexicans face an even steeper chance. Those who fit the traditional asylum-seeker profile—asylum-seekers fleeing their homes for reasons of religious persecution, political dissent, or forced abortions, among others—are much more likely to be granted asylum than those fleeing war-torn countries or homes ruled by gang violence. There are currently only six judges sitting in the Atlanta immigration court, putting added pressure to hear—and deny—more asylum cases. Many asylum-seekers also have trouble finding Atlanta immigration lawyers, who make up only a small percentage of practicing attorneys in the city. And some of those asylum attorneys, such as Elizabeth Matherne, have grown disillusioned with a system that rejects so many immigrants in need. Although having an immigration lawyer significantly improves migrants’ chances of success, fewer than half of the immigrants in Atlanta courts have legal representation. Many of these cases involve unaccompanied minors facing immigration court alone.

At Brownstein and Nguyen, we have over 20 years of experience helping immigrants find new homes in Atlanta and across the U.S. Don’t struggle through the legal system alone. Bring your asylum case to our Atlanta law offices for a review and legal assistance.

3 Areas of Law to Consider Before Launching a Startup

Entrepreneurs are typically risk-takers by nature. They have the insight not only to land on a potentially profitable business venture, but also the ability to figure out how to finance the business, court investors if necessary, and build relationships that will become the foundation of the startup business. But many entrepreneurs lack the funds to pay for professional marketing, PR and legal counsel before their startup gets off the ground. Instead, they find themselves struggling to study and master a variety of matters across different disciplines, including law, that could have a major impact on the business down the line. Worse yet, often entrepreneurs choose to simply ignore important issues and hope that nothing bad happens later.

At Brownstein and Nguyen, we understand the importance of protecting your business through careful documentation and properly executed business agreements. Here are three areas of law that entrepreneurs would be wise to familiarize themselves on or seek legal counsel about.

Intellectual Property Rights

Company names, slogans and logos as well as other marketing efforts may all be subject to intellectual property rights violations if you don’t go properly investigate before using them to promote your business. It is wise to perform due diligence before selecting a company or business name, including searching state incorporation records and trade names, local business license registrations, and Google searches for similar-sounding businesses. However, intellectual property rights don’t simply cover trade names, trademarks and logos. They also pertain to potential patents and copyrights that protect inventions and artistic creations which may be involved, directly or indirectly, in your business. Penalties for violations can range from injunctions to monetary penalties, either one of which could unravel your business before it gets off the ground.

Vicarious Liability

Did you know that you and your business could be liable for the actions of your partners, shareholders, company officers and employees? Whether it’s an employee injury or other negligent act while performing a work task, or a business tort other wrongful act or omission of a partner, make sure you’re covered against vicarious liability in unforeseen situations. In many cases, this includes ensuring that you and the business are covered by appropriate insurance against such liabilities. You will also want to ensure that partnership or shareholder contracts and employment agreements contain appropriate indemnification language to protect the business.

Contract Basics

Contracts form the basis of most business relationships, and most business litigation cases involve contract breaches. Business owners must educate themselves on what it takes to create a legally-enforceable contract, or they may find themselves embroiled in a costly legal battle down the line. Both written and oral contracts must:

  1. Reach mutual assent between the parties involved.
  2. Cover all materials and important terms, which must be clearly defined.
  3. Lay out the rights and obligations of the involved parties.
  4. Must not violate public policy.

Typical contracts for startup businesses include partnership or shareholder agreements, real estate leases, vendor and supplier agreements, and employment contracts. In addition to the primary agreement of the parties, many of these contracts also cover confidentiality, payment, default, attorney’s fees clauses and termination. It’s advisable to seek legal counsel when drafting any contract that could have a significant impact on the business.

Do you have a question about a new business venture? Stop problems before they turn into legal disputes. Contact Brownstein & Nguyen for business litigation counsel.