The Immigration Nationality Act (ref.)
"The more corrupt the state, the more numerous the laws."
- Tacitus Publius Cornelius (Rome 56-120 A.D.)
This is a local and a partial reference to immigration law. It does not include
literally the amendments following IMMACT 1990. References to amended
statutes are made herein via URL at Cornell University (that will open
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What are the terms of H-1 versus J-1 aliens?
First, let's understand who is an alien, as defined at 8 USC section 1101 "Definitions"
"1101(a) As used in this chapter -"
"(3) The term 'alien' means any person not a citizen or national of the United States."
An H-1 alien
Definition: 8 USC section 1101(a)(15)(H)
"an alien (i)(b) subject to section 1184(j)(2)
of this title, who is coming temporarily to the United States to
perform services (other than services described in subclause (a)
during the period in which such subclause applies and other than
services described in subclause (ii)(a) or in subparagraph (O) or
(P)) in a specialty occupation described in section 1184(i)(1) of
this title or as a fashion model, who meets the requirements for
the occupation specified in section 1184(i)(2) of this title or,
in the case of a fashion model, is of distinguished merit and
ability, and with respect to whom the Secretary of Labor
determines and certifies to the Attorney General that the
intending employer has filed with the Secretary an application
under section 1182(n)(1) of this
title; or . . . " [snip] See the
entire section 1101 at Cornell-Law
The referral in the Code Federal Register at
8 CFR PART 214H:
" (h) Temporary employees--(1)
Admission of temporary employees--
(i) General. Under section 101(a)(15)(H) of
the Act, an alien may be authorized to come to the United States
temporarily to perform services or labor for, or to receive
training from, an employer, if petitioned for by that employer.
Under this nonimmigrant category, the alien may be classified as
follows: under section 101(a)(15)(H)(i)(b) of the Act as an alien
who is coming to perform services in a
specialty occupation, services
relating to a Department of Defense (DOD) cooperative research
and development project or coproduction project, or services as a
fashion model who is of distinguished merit
and ability; . . ."
Restrictions in the Code Federal Register
8 CFR PART 274a CONTROL OF EMPLOYMENT OF ALIENS
. . . . . .
section 274a.12 Classes of aliens authorized to accept employment
" . . . . . .
274a.12(b) Aliens authorized for employment with a specific employer incident
to status. The following classes of nonimmigrant aliens are authorized
to be employed in the United States by the specific
employer and subject to the restrictions described in the section(s)
of this chapter indicated as a condition of their admission in, or subsequent
change to, such classification. An alien in one of these classes
is not issued an employment authorization document by the Service .
. . "
"274a.12(b)(9) A temporary worker or trainee (H-1, H-2A, H-2B, or
H-3), pursuant to section 214.2(h) of this chapter. An alien in this status
may be employed only by the petitioner through
whom the status was obtained;"
Discharge of an H-1 alien
8 USC Sec. section 1184(c)(5)(A)
"In the case of an alien who is provided
nonimmigrant status under section 1101(a)(15)(H)(i)(b) or
1101(a)(15)(H)(ii)(b) of this title and who is dismissed from
employment by the employer before the end of the period of
authorized admission, the employer shall be
liable for the reasonable costs of return
transportation."
See the entire section 1184 at Cornell-Law
A J-1 alien
Definition:
8 USC section 1101(a)(15)(J)
"an alien having a residence in a foreign
country which he has no intention of abandoning who is a bona
fide student, scholar, trainee, teacher, professor, research
assistant, specialist, or leader in a field of specialized
knowledge or skill, or other person of similar description, who
is coming temporarily to the United States as a participant in a
program designated by the Director of the United States
Information Agency, for the purpose of teaching, instructing or
lecturing, studying, observing, conducting research, consulting,
demonstrating special skills, or receiving training and who, if
he is coming to the United States to participate in a program
under which he will receive graduate medical education or
training, also meets the requirements of section (j) of this
title, and the alien spouse and minor children of any such alien
if accompanying him or following to join him;" [snip]
See the
entire section 1101 at Cornell-Law
8 CFR PART 274a CONTROL OF EMPLOYMENT OF J-1 ALIENS
" . . . . . .
274a.12(b)(11) An exchange visitor (J-1), pursuant to section
214.2(j) of this chapter and 22 CFR 514.24. An alien in this
status may be employed only by the exchange
visitor program sponsor or appropriate designee and within
the guidelines of the program approved by the United States
Information Agency as set forth in the Certificate of Eligibility (Form IAP-66)
issued by the program sponsor;"
What are the valid immigration laws?
See 8 USC section 1101(a)(17) "The term 'immigration
laws' includes this chapter" [i.e. Chapter 12 of Title 8
known as the INA] "and all laws, conventions,
and treaties of the United States relating to the immigration,
exclusion, deportation, or expulsion of aliens."
Any foreigner -- whether skilled or unskilled,
whether intending or non-intending citizen in the United States
-- may not be employed unless certified by the US
Secretary of Labor. Immigration laws require labor certification
to demonstrate to the government that an alien worker (non-U.S.
citizen or non-U.S. permanent resident) is not taking the job
away from a U.S. worker, and that the skill and technical
expertise of the alien worker is not already available from the
domestic work force. The U.S. Department of Labor has to certify
that hiring an alien worker will not adversely affect the wages
and working conditions of U.S. workers similarly employed.
This law (since 1952)
has been violated eversince by many employers, but such violations have
been practically disregarded by the Executive Branch, as alleged
elsewhere in this web-site.
excluded classes of aliens
from admission into the United States:
"Aliens seeking to enter the United
States, for the purpose of performing skilled or unskilled labor,
UNLESS THE SECRETARY OF LABOR HAS DETERMINED AND CERTIFIED to the
Secretary of State and the Attorney General that (A) there are
not sufficient workers who are able, willing qualified ... and
available ... to perform such skilled or unskilled labor, and (B)
the employment of such aliens will not adversely affect the wages
and working conditions of the workers in the United States
similarly employed."
Even before IMMACT 1990 any employer
must have obtained a certification for an alien employee given by
the US Secretary of Labor. The ultimate liability has ever been on
behalf of an employer.
"(1) The question of importing any alien as a
nonimmigrant under section 1101(a)(15)(H), or (L) of this title
in any specific case or specific cases shall be determined by the
Attorney General, after consultation with appropriate agencies of
the Government, upon petition of the importing employer. Such
petition, shall be made and approved before the visa is
granted."
See the entire section 1184 at Cornell-Law
Promulgated law IMMACT 1990
actionable as of October 29, 1990
8 USC section 1182(n) Labor condition application
(terms of H-1 program)
"(1) No alien may be admitted
or provided status as a nonimmigrant described in section
1101(a)(15)(H)(i)(b) of this title in an occupational classification
unless the employer has filed with the Secretary of Labor
an application stating the following:
(A) The employer -
(i) is offering and will offer
during the period of authorized employment to aliens admitted or provided
status as a nonimmigrant described in section 1101(a)(15)(H)(i)(b) of this
title wages that are at least -
(I) the actual wage level paid
by the employer to all other individuals with similar experience and qualifications
for the specific employment in question, or
(II) the prevailing wage level for the occupational classification in
the area of employment, whichever is greater, based on the best information
available as of the time of filing the application, and
(ii) will provide working conditions
for such a nonimmigrant that will not adversely affect the working conditions
of workers similarly employed.
(B) There is not a strike or lockout
in the course of a labor dispute in the occupational classification at
the place of employment.
(C) The employer, at the time of filing the application -
(i) has provided notice of the
filing under this paragraph to the bargaining representative (if any) of
the employer's employees in the occupational classification and area for
which aliens are sought, or
(ii) if there is no such bargaining representative, has posted notice
of filing in conspicuous locations at the place of employment.
(D) The application shall contain a specification of the number of workers
sought, the occupational classification in which the workers will be employed,
and wage rate and conditions under which they will be employed.
The employer shall make available for public examination, within one working
day after the date on which an application under this paragraph is filed,
at the employer's principal place of business or worksite, a copy of each
such application (and such accompanying documents as are necessary). The
Secretary shall compile, on a current basis, a list (by employer and by
occupational classification) of the applications filed under this subsection.
Such list shall include the wage rate, number of aliens sought, period
of intended employment, and date of need. The Secretary shall make such
list available for public examination in Washington, D.C. The Secretary
of Labor shall review such an application only for completeness and obvious
inaccuracies. Unless the Secretary finds that the application is incomplete
or obviously inaccurate, the Secretary shall provide the certification
described in section 1101(a)(15)(H)(i)(b) of this title within 7 days of
the date of the filing of the application.
(2)
(A) The Secretary shall establish
a process for the receipt, investigation, and disposition of complaints
respecting a petitioner's failure to meet a condition specified in an application
submitted under paragraph (1) or a petitioner's misrepresentation of material
facts in such an application. Complaints may be filed by any aggrieved
person or organization (including bargaining representatives). No investigation
or hearing shall be conducted on a complaint concerning such a failure
or misrepresentation unless the complaint was filed not later than 12 months
after the date of the failure or misrepresentation, respectively. The Secretary
shall conduct an investigation under this paragraph if there is reasonable
cause to believe that such a failure or misrepresentation has occurred.
(B) Under such process, the Secretary shall provide,
within 30 days after the date such a complaint is filed, for a determination
as to whether or not a reasonable basis exists to make a finding described
in subparagraph (C). If the Secretary determines that such a reasonable
basis exists, the Secretary shall provide for notice of such determination
to the interested parties and an opportunity for a hearing on the complaint,
in accordance with section 556 of title 5, within 60 days after the date
of the determination. If such a hearing is requested, the Secretary shall
make a finding concerning the matter by not later than 60 days after the
date of the hearing. In the case of similar complaints respecting the same
applicant, the Secretary may consolidate the hearings under this subparagraph
on such complaints.
(C) If the Secretary finds, after notice and opportunity
for a hearing, a failure to meet a condition of paragraph (1)(B), a substantial
failure to meet a condition of paragraphs (1)(C) or (1)(D), a willful failure
to meet a condition of paragraph (1)(A), or a misrepresentation of material
fact in an application -
(i) the Secretary shall notify
the Attorney General of such finding and may, in addition, impose such
other administrative remedies (including civil monetary penalties in an
amount not to exceed $1,000 per violation) as the Secretary determines
to be appropriate, and
(ii) the Attorney General shall not approve petitions filed with respect
to that employer under section 1154 or 1184(c) of this title during a period
of at least 1 year for aliens to be employed by the employer.
(D) If the Secretary finds, after
notice and opportunity for a hearing, that an employer has not paid wages
at the wage level specified under the application and required under paragraph
(1), the Secretary shall order the employer to provide for payment of such
amounts of back pay as may be required to comply with the requirements
of paragraph (1), whether or not a penalty under subparagraph (C) has been
imposed."
See the entire
section 1182 at Cornell-Law
8 USC section 1324(a)(2)
Federal law, as of 1952, prohibits
even an attempt to bring
to the United States an alien, for the purpose of unfair commercial advantage
or private financial gain.
Unfortunately, this paragraph has never been enforced against
an American employer, as alleged in these pages, and in particular
at In Re Tal.
Herein, a partial citation of the relevant Statute, section 1324(a),
sub-section (2):
"(2)
Any person who, knowing or in
reckless disregard of the fact that an alien has not received prior
official authorization to come to, enter, or reside in the United
States, brings to or attempts to bring to
the United States in any manner whatsoever,
such alien, regardless of any official action which may later
be taken with respect to such alien shall, for each transaction constituting
a violation of this paragraph, regardless of the number of aliens involved -
* (A) be fined in accordance with title 18 or imprisoned not more than one year,
or both; or
* (B) in the case of -
(i) a second or subsequent offense,
(ii) an offense done for the
PURPOSE OF COMMERCIAL ADVANTAGE
or
PRIVATE FINANCIAL GAIN,
or ...
... .. .. .., be fined in accordance with title 18 or imprisoned
not more than five years,
or both."
See the complete updated section 1324 at Cornell-Law
1324a(a)
"(a) Making employment of unauthorized aliens unlawful
(1) In general
It is unlawful for a person or other entity -
(A) to hire,
or to recruit
or refer for a fee, for employment
in the United States an alien knowing the alien is an unauthorized alien
(as defined in subsection (h)(3) of this section)
with respect to such employment, or"
(The next paragraph governs the sanction for not filing I-9 Form
properly)
"(B)(i) to hire for employment
in the United States an individual without complying with the requirements
of subsection (b) of this section or (ii) if the person or entity is an
agricultural association, agricultural employer, or farm labor contractor
(as defined in section 1802 of title 29), to hire, or to recruit or refer
for a fee, for employment in the United States an individual without complying
with the requirements of subsection (b) of this section."
Note: Sub-paragraph (B)(i) refers to I-9 Form,
which helps the Immigration and Naturalization Service (INS) in enforcing
immigration laws. An employer may not knowingly or unknowingly hire an
illegal worker. This is punishable by law. An I-9 can be used as
evidence against an employer who fails to properly complete and store the
forms, whether or not any of its employees are illegal aliens. Civil and
criminal penalties may be levied against employers for violating IRCA
rules.
"(2) Continuing employment
It is unlawful for a person or other entity, after
hiring an alien for employment in accordance with paragraph (1), to continue
to employ the alien in the United States knowing the alien is (or has become)
an unauthorized alien with respect to such employment.
(3) Defense - A person or entity that establishes
that it has complied in good faith with the requirements of subsection
(b) of this section with respect to the hiring, recruiting, or referral
for employment of an alien in the United States has established an affirmative
defense that the person or entity has not violated paragraph (1)(A) with
respect to such hiring, recruiting, or referral.
(4) Use of labor through contract
For purposes of this section, a person or other entity
who uses a contract, subcontract, or exchange, entered into, renegotiated,
or extended after November 6, 1986, to obtain the labor of an alien in
the United States knowing that the alien is an unauthorized alien (as defined
in subsection (h)(3) of this section) with
respect to performing such labor, shall be considered to have hired the
alien for employment in the United States in violation of paragraph (1)(A).
"
See the entire section 1324a at Cornell-Law
Definition of an unauthorized alien
8 USC section 1324a(h)(3)
"As used in this section, the term 'unauthorized
alien' means, with respect to the employment of an alien at a particular
time, that the alien is not at that time either
(A) an alien lawfully admitted for permanent residence, or (B) authorized
to be so employed by this chapter or by the Attorney General."
8 USC section
1324b. Unfair immigration-related employment practices
"(a) Prohibition of discrimination based on
national origin or
citizenship status
(1) General rule
"
It is an unfair immigration-related employment practice
for a person or other entity to discriminate against any individual
(other than an unauthorized alien, as defined in section
1324a(h)(3)
of this title) with respect to the hiring, or recruitment or referral for
a fee, of the individual for employment or the discharging of the individual
from employment -
(A) because of such individual's
national origin, or
(B) in the case of a
protected individual
(as defined in paragraph (3)), because of such individual's
citizenship status."
[snip]
See the entire section 1324b at Cornell-Law
8 USC section 1324c. Penalties for document fraud
"(a) Activities prohibited
It is unlawful for any person or entity knowingly -
- (1) to forge, counterfeit, alter, or falsely make any document
for the purpose of satisfying a requirement of this chapter,
- (2) to use, attempt to use, possess, obtain, accept, or receive or to
provide any forged, counterfeit, altered, or falsely made document in order
to satisfy any requirement of this chapter,
- (3) to use or attempt to use or to provide or attempt to provide any
document lawfully issued to a person other than the possessor (including
a deceased individual) for the purpose of satisfying a requirement of this
chapter, or
- (4) to accept or receive or to provide any document lawfully
issued to a person other than the possessor (including a deceased individual)
for the purpose of complying with section 1324a(b) of this title."
[snip]
See the entire section 1324c at Cornell-Law
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