A set of several federal court decisions has brought a spotlight on the H-2B program. The H-2B program, in its current form, it allows employers in the United States to hire foreign workers to fill non-agricultural temporary jobs. To sponsor a foreign national for an H-2B visa, an employer must establish that there are not enough U.S. workers who are able, willing, qualified, and available to perform the job; H-2B workers be paid the prevailing wage and their employment not adversely affect wages and working conditions of U.S. workers; and the prospective work is temporary (a one-time occurrence, or based on seasonal, peak load, or intermittent need that cannot last more than one year).
Although the intention of this program is to help the gap that U.S. Employers may have, current court decisions show that this program is unscrupulously used by some companies and attorneys as labor trafficking. One of these cases is David et al. v. Signal International, LLC. In this case, the jury found that Signal International LLC (a maritime construction company), a U.S.-based immigration attorney, and an India-based labor recruiter engaged in labor trafficking, fraud, racketeering, and discrimination while using the H-2B program to bring hundreds of workers to Texas and Mississippi to rebuild after Hurricanes Katrina and Rita.
Another case, Autobuses Ejecutivos LLC, a bus company based in Houston, Texas, had to settle with the Department of Labor for discriminating against U.S. workers by preferring to hire workers on temporary H-2B visas for its bus driver positions. In fact there is plenty of evidence that the H-2B program is wrongfully used by some unscrupulous employers. Ten closed cases over the last 5 years that involved H-2B employers and recruiters that violated various labor laws or settled allegations of violations outside of court. These 10 cases involved diverse employers in different industries with employees in 29 states with violations in areas such as employers failing to pay promised wages, overtime, or both; employers charging H-2B workers exorbitant fees; and employers and recruiters submitting fraudulent documentation to government officials. For example, in one case H-2B workers became indebted to their employer through a series of arbitrary charges. The employer then forced workers to take second jobs at local fast food restaurants to pay these debts.
If one is the beneficiary of an H-2B visa and feels they have been abused or threatened to have the visa revoked if they do not work overtime or certain expenses are not met. You should consult with an experienced immigration and labor attorney to protect those legal rights.
In order to qualify for asylum one must have suffered persecution or fear of future persecution indicated in one of the following grounds: race, religion, nationality, membership in a particular social group, or political opinion.
The hardest one to prove is belonging to a particular social group. This particular group is subject to many arguments and has been the cause of multiple litigation throughout the country. It differs from asylum officer to asylum officer and a difference from immigration judge to immigration judge. Almost everybody has a different opinion of what a particular social group is.
As a general rule, a particular social group is a specific group of people viewed by government as a threat. It is also often described as a group sharing a common characteristic that is so fundamental to their individual identities that the members cannot or should not be expected to change. Problem is to define what that shared characteristic is. It can be gender, it can be color, it can be family ties, or it can even be shared experiences. These shared experiences can be former member of a gang, maybe part of a military corruption, member of a gang cartel, or even some kind of property ownership. In its most vague term a particular social group is a group composed of persons who have a similar background, social status, experiences, or habits.
However this particular area has been the subject of much litigation. The United States of America has specifically recognized tribes or ethnic groups. It has also recognized social classes, family members, dissidents, homosexual groups, police or military, and in some cases even women who may be targeted in their home country.
In recent years the United States of America has recognized gender. This has allowed some women to request asylum based on their fear of genital mutilation or even Islamic dress code requirements. To be considered as a particular social group it has to be perceived as a unique group with its own society. The crucial termed is uniqueness. It is then determined the poor or rich does not qualify as a membership of a particular social group.
One should note that what may be considered a particular social group in a foreign country is not necessarily a particular social group in the United States of America. For example, married women who are abused by male in El Salvador, cannot leave those relationships, and cannot obtain help from the police. This has been found part of a social group. On the other hand, married woman in Canada who are in abusive relationships are not a particular social group. The main reason for his is because it is believed that the Canadian government will do a much better job of protecting their women that the Salvadoran government will.
It is very hard to predict if one particular social group will fall within the requirements of what is a particular social group within the United States of America. One should argue that the grant of an asylum application based on the persecution on account of a protected group will have better chances of being granted that arguing that one is persecuted because of a membership in a particular social group. If one is claiming asylum as membership in a particular social group, they should be advised by an experienced immigration attorney to help them with this process. This will only increase the chance of winning an asylum application.
The Immigration System of the United States of America is a complicated one. In fact, a lot of season practitioners compare the complexity of the Immigration code with that of the Tax code, and that is saying a lot. Some individuals find themselves in removal proceedings after they have been trying to go through the maze that our immigration system is. When this happens, you have to appear in immigration court. One has the option of representing oneself or hiring an immigration attorney. But what happens when you lose your case?
A lot of times you are already a Legal Permanent Resident and because of a criminal conviction or a number of criminal convictions an individual finds himself in removal proceedings. These proceedings can be complicated. Again, one has the option of representing itself or hiring an immigration attorney. Again, what happens when you lose your case?
The first thing to do is not to panic. When you lose your case in immigration court, you have the option to appeal to the Board of Immigration Appeals or you have the option to accept the decision and depart the United States of America. You may request to take Voluntary Departure if that is an option made available to you by the immigration judge. You can take voluntary departure and still appeal your case. Lastly, when you depart from the United States of America, you may re-enter, but you will have to submit some kind of a waiver. Most individuals decide to appeal their case to the Board of Immigration Appeals. The Board of Immigration Appeals is the appellate body designed to review the decisions of the immigration court and the Department of Homeland Security.
The Board of Immigration Appeals will review the decisions made by the immigration judge. When filing an appeal, it must be filed within 30 days of the Immigration Judge’s decision. It is imperative to appeal the case in a timely manner or it will be dismissed for that reason.
Appeals to the Board of Immigration Appeals are based on legal arguments that may demonstrate why the immigration judge should have decided differently. In some cases new evidence can be considered on appeal. This is why deciding on the proper strategy to appeal a case is so important. Many times I have come with appeal strategies that were totally wrong. One should always consult with two or three immigration attorneys seeking their advice and strategy. With that advice then an individual can make the informed decision on which path to take.