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Archive for October, 2013

FYI

October 08, 2013 By: admin Category: The situation

AMLEN has received many requests for information since the government shutdown last week which is impacting many services and administration to include the USCIS.

Below are a compilation of frequently asked questions for our readers. We recommend that you check the USCIS website frequently for additional updates.

PETITIONS FILED AT USCIS

My immigration paperwork is pending or is going to be filed with U.S. Citizenship and Immigration Services (USCIS). Will it be processed during the shutdown?

USCIS is funded by filing fees and will continue to process petitions and applications. However, USCIS will likely suffer delays since other government agencies subject to the shutdown must act on your immigration process (for example, the U.S. Department of Labor (DOL). Based on past shutdowns, it is expected that USCIS will allow for the submission of H-1B petitions without a certified Labor Condition Application (LCA). This should allow for beneficiaries to continue employment for extensions and change of employer petitions.

PERM

My employer has initiated a PERM application (for labor certification for immigrant visa) on my behalf. Will that process be impacted by the shutdown?

Yes. The DOL has suspended processing of PERM applications. Prevailing wage requests and PERM applications cannot be filed at this time and pending processes are suspended. Processing delays will likely continue after government financing is restored. It is likely that the PERM backlog will increase substantially.

H-1B, H-2, AND E-3

My employer has initiated one of these visa processes for me. Will it be impacted by the shutdown?

Yes. Because the DOL has suspended processing, any visa that requires an LCA or prevailing wage determination will be affected. As noted above, in the past USCIS has been flexible in accepting petitions even when the DOL could not provide the underlying LCA certification. However, in the case of E-3s, the inability to obtain a certified LCA will prevent beneficiaries from applying for an E-3 visa at a U.S. Consulate, which is usually preferred since E-3s are ineligible for portability or premium processing.

VISA APPLICATIONS AT U.S. CONSULATES ABROAD

Can I apply for a visa and if my visa application is pending will it be processed?

U.S. Consulates will continue to process visa applications while monitoring available funding. The U.S. Department of State and its consulates are funded partially based on fees generated by visa applications and other appropriations, but it is not clear how long these funds will remain available. Visa applicants are encouraged not to delay and pursue consular processing.

SECURITY CHECKS

What if I have applied for my visa at a U.S. Consulate but my case is in administrative processing subject to security clearance?

Since security checks are administered by various federal government agencies that are affected by the shutdown, security checks may be delayed.

CANADIAN BORDER APPLICATIONS

Will TN and L-1 visa applications be accepted by U.S. Customs and Border Protection (CBP) at the border?

Currently all border ports of entry remain open. CBP continues to process Canadian nonimmigrant petitions at the border. If the shutdown begins to impact these petitions, employers may consider filing petitions with the USCIS services centers as an alternative to a border petition.

I have plans to fly to the United States. Will I have any problems arriving?

CBP has confirmed that airport CBP officers are deemed to be essential personnel needed to process flight arrivals. At this time there is no change in operations as a result of the government shutdown.

Will I be able to obtain my I-94 number after entering the United States?

Yes, the website used to obtain I-94 numbers remains operational.

SOCIAL SECURITY NUMBERS

I just arrived to work in the United States, and my employer advised me to apply for a social security number. Will I be able to apply for one during the shutdown?

The U.S. Social Security Administration will not accept applications for new social security numbers during the shutdown. Although an employee may begin working without a social security number, an employee’s ability to obtain other benefits without a number may be limited depending on the organization providing that benefit (for example, banks, state departments of motor vehicles, etc.).

STATE BENEFITS

If I need to apply for a driver’s license, will the shutdown affect my application?

Yes, in many cases it will. State governments that use federal databases to verify a foreign national‘s immigration status may have reduced access to those databases during the shutdown. Therefore, you may experience delays or suspensions of service from state agencies during the shutdown, including in the processing of driver’s license applications.

As noted above, USCIS may decide to accept H-1B extension petitions without a certified LCA for purposes of extending employment authorization, but USCIS will still require a certified LCA to approve the H-1B. Some applicants may be unable to renew their driver’s licenses in states that will only renew licenses based on USCIS H-1B approval notices.

E-VERIFY

Will I be able to access E-Verify for new employees?

No, the E-Verify system is not operational due to the government shutdown. USCIS has thus suspended the “three-day rule” and extended the time period during which employers may resolve Tentative Non-Confirmations (TNCs).

BACKLOGS

After the shutdown is over, how quickly will my case be processed?

Depending on how long the shutdown lasts, it could take weeks for government agencies to work through backlogs. Delays should be expected well after a budget agreement is reached.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

 

Source: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 2013

 

Moroccan-American Community Calls for Enhanced Rights, Comprehensive Perspective on Diaspora Engagement

October 03, 2013 By: Zineb Category: The situation

http://www.moroccoworldnews.com/2013/09/106913/moroccan-american-community-calls-for-enhanced-rights-comprehensive-perspective-on-diaspora-engagement/

Abercrombie Faces a Muslim-Headscarf Lawsuit

October 01, 2013 By: admin Category: The situation



A young Muslim woman hired by Abercrombie and Fitch in 2009 has recently sued the company after being hired and “ was told that her headscarf, though worn based on a religious mandate, was not in compliance with the company’s ‘look policy,’”. She worked at Hollister Co., a subsidiary of Abercrombie & Fitch.
Abercrombie & Fitch has a notorious negative track record when it comes to employee discrimination and the spectacular failure in implementing the principles of the Civil Rights Acts of 1964 as enforced by the Equal Employment Opportunity Commission.
Since 2005,  Abercrombie & Fitch has been a landmark bad employer starting with a class action suit in which female employees alleged that they had been discriminated against on the basis of race and appearance. In recent years, the trend continued to include employees with disabilities where a young woman with a prosthetic limb was forced to work in the back room, out of sight of customers – which then led to her firing some time later anyway.
The EEOC through this case seeks back pay, compensatory damages and punitive damages and injunctive relief to prevent future discrimination. “Ms. Khan held a low-visibility position, willingly color-coordinated her headscarf with the store’s brand and capably performed her stockroom duties for four and half months until a visiting manager flagged her hijab as a violation of their ‘look policy’,” EEOC San Francisco district director Michael Baldonado stated in a press release.
The June 27 lawsuit is the second Bay Area suit the EEOC’s San Francisco office has filed against Abercrombie & Fitch over its failure to accommodate workers who wear a hijab. Just last year the EEOC filed a case concerning Abercrombie’s refusal to hire a female applicant Halla Banafa, due to her headscarf at the “Abercrombie Kids” store in Milpitas. CA.  Halla was asked about her hijab and religious beliefs during her interview for a job at an Abercrombie outlet store  and then not hired. A judge in that case had found in April against Abercrombie on its motion for summary judgment to dismiss an EEOC lawsuit brought on behalf of Halla. In both hijab cases, the company has cited its “Look Policy” and had argued that accommodating the religious headscarf-wearing would have resulted in an undue hardship on its business. We ask: What undue burden did this global retailer face that prevented them from allowing the employee from practicing her faith and wearing a headscarf? Furthermore, their positions has highlighted the type of islamophobic and intolerant position they are so keen to display to their teen customers. The company’s “all-American look” policy has been a focus for prior EEOC litigation resulting in 2005 in a six-year consent decree and $40 million paid to a class of African Americans, Asian Americans, Latinos and women who were excluded from hire or promotions in their workforce.
Given the nature of the case brought up by Ms. Khan in California, her case was taken up by the Council on American-Islamic Relations (CAIR-SFBA) and the Legal Aid Society-Employment Law Center (LAS-ELC). Both entitites representing Ms. Khan sued Abercrombie & Fitch for religious discrimination and won.
Under the settlement reached by the EEOC and Abercrombie, the company will pay both women (Khan and Banafa) $71,000. It also agreed to reform its hiring practices. Abercrombie promised to create an appeals process for when religious accommodations are denied, tell applicants that accommodations to its Look Policy may be available and incorporate hijab scenarios in its manager training. But based on a statement given by the company to CBS News, it seems  that the company will only support partial changes to its corporate policy: “With respect to hijabs, in particular, we determined three years ago to institute policy changes that would allow such headwear.”
 
With the company pursuing its “ business as usual” We might see another lawsuit soon.