Trump’s Travel Ban Survives Latest Trip to the Supreme CourtNews organizations this week are reporting again on President Trump’s so-called travel ban. But what exactly does that mean? We receive a lot of questions about the travel ban in the context of President Trump’s overall stance on immigration issues and how the travel ban affects visas and possible future employment of citizens from other countries. We will discuss in this post a little bit of the ban’s history and who it affects. As for the legal developments on the ban this week, the administration did receive some good news (for a change), but it ain’t over ‘til it’s over.

What Is the Travel Ban?

You may recall that during his campaign President Trump promised restrictions on travel into the United States from certain countries. This was to be part of the new administration’s attempt to combat terrorism. After assuming office, President Trump issued a travel ban by executive order almost immediately. Opposition groups attacked that executive order legally on multiple constitutional and statutory grounds. Subsequently, the administration issued two more versions of the travel ban, assumably to give the executive order a better chance of surviving legal challenges. We are now on the third version of this executive order. Our team blogged about some of the immigration aspects of the original and subsequent executive orders, including here.

The third and latest ban was issued just this past September. The current ban includes restrictions on travel into this country from Chad, Iran, Libya, North Korea, Somalia, Syria, Yemen, and by certain government officials from Venezuela. The basis for the administration’s ban is to restrict travel from countries with a significant terrorist presence that do not have adequate identity management or information sharing.

Why Was the Travel Ban Challenged?

The travel ban, in all versions, has been challenged primarily on establishment of religious grounds. The challenges assert that the travel ban targets countries on the basis of the predominant religion in those countries. Specifically, the ban has been labeled a Muslim ban by some groups.

Actions by the Lower Federal Courts

The latest version of the travel ban was challenged by lawsuits in Hawaii and in Maryland. Federal district judges in both locations immediately enjoined the ban from taking effect until the lawsuits could be finally resolved, and of course the administration filed appeals. The appeal in Hawaii was to the federal Ninth Circuit Court of Appeals in San Francisco, and the Maryland appeal was to the federal Fourth Circuit Court of Appeals in Richmond.

Neither the Ninth nor the Fourth Circuit have yet ruled finally on the issues in the cases. However, relevant to what happened this week, the temporary injunctions that previously had been entered in both cases preventing the implementation of the ban until the courts finally ruled remained in effect during the appeals. In other words, the bottom line was that, rather than allowing the ban to take effect during the legal-challenge procedure, the ban was suspended during the challenge process.

Enter SCOTUS

This week, the Supreme Court of the United States, in a separate order for each case, ruled that the ban could not be halted during the legal-challenge process. So now, rather than the ban being on the sideline during the lawsuit and appeal process, it goes into effect immediately.

These events this week are important for at least a couple of reasons. First, the U.S. now has an actual travel ban, not just a possible one in the future. Second, the Supreme Court may be indicating how it might rule on the ultimate issue of whether the travel ban as currently written is legal. Certainly the Supreme Court will be ruling again soon “on the merits” after the Fourth and Ninth Circuits decide the legal issues before them. Again, the next time the Supreme Court speaks, it likely will be on the true legality of the travel ban and not just the temporary postponement of it. So, it ain’t over ‘til it’s over.

We will continue to post on President Trump’s executive orders and their impact on immigration compliance.

Getting a Green Card Just Got Tougher: USCIS Will Now Interview All Employment-Based Adjustment of Status Applicants   The U.S. Citizenship and Immigration Services (USCIS) recently announced a new policy requiring all adjustment of status applicants seeking employment-based green cards to appear for an interview at a USCIS field office. The adjustment of status application is the final step in the green card process for foreign non-immigrant employees looking to move to permanent resident status without leaving the United States.  Prior to this change, which went into effect on October 2, 2017, USCIS required interviews in only 5 to 10 percent of all employment-based adjustment cases.

The new policy applies to all Form I-485 adjustment of status applications filed on or after March 6, 2017, where the underlying immigrant petition is an employment-based Form I-140 (EB-1, EB-2, and EB-3). The USCIS has indicated that adjustment cases filed prior to March 6, 2017, will be adjudicated in accordance with previous procedures.

The USCIS has stated that the new policy is in compliance with President Trump’s Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and “is part of the agency’s comprehensive strategy to further improve the detection and prevention of fraud and further enhance the integrity of the immigration system.” Critics, however, have charged that the new policy is not necessary because there is no widespread fraud in employment-based adjustment adjudications and will only serve to delay an already lengthy and complex green card process.

What Does It Mean for Employers?

This change affects all employers who sponsor foreign workers for permanent residency. It is essential that the employer make sure that any worker going through the interview is thoroughly prepared. An employee’s misstep during this final vetting process could totally derail the entire green card case at the very last stage.

In addition, because thousands of extra interviews will be conducted annually, there will almost certainly be additional delays in the processing of these employment-based adjustment applications. In fact, the USCIS has estimated that these applications will ultimately account for approximately 17 percent of the USCIS’s entire field operations workload. And, as resources get shifted around, the change will impact the processing times for other types of USCIS filings, such as family-based adjustment applications and naturalization cases.

What Should the Applicant Expect at the Interview?

The applicant could be asked about almost anything, but the USCIS has specifically stated that the following matters will be probed:

  • Any information provided on the Form I-485.
  • Issues relating to the applicant’s eligibility or admissibility, such as any arrests or misrepresentations made to an immigration officer.
  • The applicant’s entire immigration history, particularly whether the applicant has properly maintained his non-immigrant status.
  • Family members applying as derivative to the employment-based principal applicant should anticipate questions about their relationship to the principal and the bona fides of that relationship.

If the field officer conducting the interview is not satisfied with an applicant’s answers and believes that an applicant is not eligible for adjustment, the Form I-485 will be denied.

Will the Field Officer Re-Adjudicate the Form I-140?

Technically, no. The USCIS has said that the interviewing field officers have been instructed not to re-adjudicate the underlying Form I-140. However, the agency has also made clear that the officers will be charged with assessing the validity of the documents used to approve the Form I-140 petition to ensure that the supporting evidence was accurate and credible. If the officer determines that that evidence is not credible, he can recommend that the Form I-140 be revoked by the service center that originally issued the approval.

For this reason, it is imperative that the applicant thoroughly understand the basis for the Form I-140 petition and be prepared to articulate at the interview how his employment qualified for approval. The applicant should review the Form I-140 petition and any underlying PERM application in advance and address any tricky issues with the employer or counsel. The applicant will almost certainly be questioned about the job for which he was sponsored as well as about his own educational background and work experience. Mistaken or sloppy responses could lead to a disastrous result.

Should the Applicant Have an Attorney?

Applicants are entitled to legal representation at their USCIS interviews, and it is certainly best if they are accompanied by counsel. Although attorneys are typically discouraged from actively participating in the actual interview, they can help limit misunderstandings between the applicant and the interviewing officer and ensure that the process does not go off the rails.

Just as important, an attorney can prepare the applicant on what to expect beforehand and work with the employer and the applicant to make sure that the applicant takes the appropriate documentation to the interview. The interview notices that are currently being sent out are generic and somewhat confusing as they include certain documents that do not even apply in employment-based cases. Having a knowledgeable immigration attorney involved in the interview process can help ensure that the employee’s green card does not get denied at the final hour.

Calling ICE about Your Plaintiff Could Make You the DefendantAn attorney representing his employer-client calls Immigration and Customs Enforcement (ICE) to inquire about the plaintiff’s immigration status. Is that potentially retaliation under the employment laws? If it is, can the attorney be sued personally for it? According to the Ninth Circuit, the answer is yes on both counts, and the Supreme Court may have the final say on such a scenario.

 

For those of you who are tempted to stop reading because you aren’t a lawyer (and may not care if your lawyer can be sued)—not so fast. If a non-employer can be sued personally for retaliation, this could have broad application to HR professionals, accountants, private investigators, or other consultants.

Background

Jose Arias sued his former employer, Angelo Dairy, for violation of wage-and-hour laws under the California Labor Code. Dairy hired an attorney, Anthony Raimondo, to defend the case. In 2011 as the trial date approached, Raimondo contacted ICE to see about Arias’s immigration status (which apparently was potentially problematic for Arias). This led to Raimondo having multiple communications with ICE about potentially taking Arias into custody. Additionally, it led to disqualification of Arias’ legal counsel, the California Rural Legal Assistance group, which was barred by statute from representing undocumented aliens. A month before trial, Arias agreed to settle the case “due in substantial part to the threat of deportation created by [Raimondo’s] communications with ICE.” Raimondo had apparently contacted ICE on previous occasions related to other employees who asserted workplace rights against his clients.

After settling his wage and hour suit, Arias then filed a retaliation case against Dairy, as well as Raimondo personally. Arias alleged that Raimondo’s call to ICE was retaliation under the FLSA and intentional infliction of emotional distress.

District Court: The Attorney Is Not an Employer and Cannot Be Sued

The preliminary issue was whether Arias could sue Raimondo for FLSA retaliation when Raimondo was not Arias’ employer. The FLSA’s anti-retaliation statute makes it unlawful for “any person” to “discharge or in any other manner discriminate against any employee because such employee has . . . instituted any proceeding under” the FLSA. The Act defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee…”

Arias settled and dismissed his retaliation claims against Dairy, but not against Raimondo personally. The District Court dismissed Arias’ complaint against Raimondo, finding that an aggrieved employee can only sue his or her employer under the FLSA and that the FLSA’s provisions referred to an employer-employee relationship. The District Court found that Raimondo never acted “directly or indirectly in the interest of the employer” in employment matters. In coming to this conclusion, the District Court considered “the total employment situation and economic realities of the work relationship.” Arias appealed, and the Ninth Circuit reversed.

Ninth Circuit: The FLSA’s Anti-Retaliation Section Is Broader than Just the Employer-Employee Relationship

On appeal, the Ninth Circuit reversed, explaining that the FLSA provisions for wage-and-hour violations and retaliation claims “are as different as chalk is from cheese.” While the employer umbrella for wage-and-hour claims looks to the economic realities test, when a plaintiff alleges a retaliation claim it “is a different animal altogether.” As the court expressed:

This distinctive purpose [of the anti-retaliation provision] is not served by importing an “economic control” or an “economic realities” test as a line of demarcation into the issue of who may be held liable for retaliation. To the contrary, the FLSA itself recognizes this sensible distinction…. by prohibiting “any person”—not just an actual employer—from engaging in retaliatory conduct.  By contrast, the FLSA’s primary wage and hour obligations are unambiguously imposed only on an employee’s de facto “employer,” as that term is defined in the statute. Treating “any person” who was not a worker’s actual employer as primarily responsible for wage and hour violations would be nonsensical.

The appellate court also seemed disturbed by Raimondo’s “underhanded plan to derail Arias’ lawsuit” and history of reporting employee-claimants to ICE.

Attorney Asks the Supreme Court to Decide

Raimondo did not take kindly to the Ninth’s Circuit’s opinion, and on October 31, 2017, filed a petition for a writ of certiorari, essentially asking the U.S. Supreme Court to hear the case.  Raimondo contended that the Ninth Circuit’s conclusion flouted prior precedent on the FLSA’s definition of employer. The petition noted that the majority of circuits use the economic realities test to determine who is an employer, and do not differentiate between a wage-and-hour versus a retaliation-based claim.

Stay Tuned

If the Ninth Circuit opinion stands, it could have far-reaching consequences for the relationships among employers, their attorneys, and others who could be dissuaded from representing employers or from pursuing certain strategies where they could become potential defendants in FLSA retaliation cases. As Raimondo’s petition tries to illustrate, not just attorneys, but also accountants, HR personnel, and even a gardener, could become defendants for playing some role in an adverse action if ICE has been contacted. An attorney may have legitimate, non-retaliatory reasons for asking ICE about an immigration status, but the ruling may chill attorneys from representing employers and hamper employers’ efforts to secure counsel. We will see if the Supreme Court makes a final determination on this significant issue, but the Ninth Circuit’s decision creates the platform for an individual (attorney or otherwise) who is not the employer and does not control the employer to be sued for retaliation under the FLSA.