September 2010 Archives

Florida State Leaders propose immigration law

Florida Attorney General Bill McCollum, along with Rep. William Snyder and other state legislative leaders, revealed proposed legislation that would curb illegal immigration in Florida, according to a recent Attorney General’s news release. Under the proposed legislation, law enforcement officers would be required to check suspected illegal immigrants’ status during the course of a lawful stop, Florida businesses would be required to use E-Verify to ensure new hires are legally authorized to work, and penalties for illegal aliens who commit crimes in the state would be enhanced.Similar to the controversial Arizona immigration law, portions of which a federal judge preliminarily enjoined the state from enforcing last month, the Florida draft legislation requires aliens to carry immigration documentation or face a misdemeanor that could result in a sentence of up to 20 days in jail for the first offense. The proposed Florida law also makes it a misdemeanor for an illegal alien not authorized to work to seek employment in Florida.Would Florida succeed where Arizona failed? Based on the likelihood that the federal government could succeed on the merits in showing that they are preempted by federal law, and other factors, US District Judge Susan Bolton enjoined enforcement of similar provisions in the Arizona immigration law: * A requirement that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained, or arrested if there is a “reasonable suspicion” that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person; * A provision that makes failure to apply for or carry alien registration papers a crime; and * A provision that makes it a crime for an unauthorized alien to solicit, apply for, or perform work.Nonetheless, attorneys in the Florida Attorney General’s Office have reviewed Bolton’s ruling and made changes to the Florida draft legislation “to strengthen it against potential constitutional challenges.”Florida’s proposed version is tougher. The proposed Florida immigration law goes further than the Arizona law by giving judges and law enforcement additional tools in dealing with illegal immigrants from bond through sentencing. Judges would be permitted to specifically consider a defendant’s unlawful presence in the process of setting his or her bond. The proposed law also includes a sentencing enhancement, so that illegal aliens who commit crimes in Florida would face increased prison time.

Has your Civil Rights been violated in the workplace?

Many employees come to my office to consult with me about sexual harassment or discrimination based upon race, pregnancy, gender or age. On some occasions, the employee may still be employed by the employer. The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered. The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.An EEOC Charge can either be filed with the assistance and representation of counsel or by the employee on their own. If you do it on your own, the EEOC will give you the forms and guidance on how to prepare the Charge of Discrimination. Once a complaint is made to HR or the EEOC, the employer is not legally allowed to retaliate or discriminate against you for making these complaints. However, that does not always mean the employer will follow the rules so you should keep careful notes and documentation of all complaints made, to whom you made them, and any actions taken against you as a result of these complaints.The EEOC has a link on its website that you can use to do an online assessment of whether or not you should bring a charge with the EEOC. The link is at https://egov.eeoc.gov/eas/.It is important to know however that if you choose to file an EEOC Charge, you must do so within 180 days or 300 days of the claimed discrimination or harassment, so don’t wait too long to take this action. You get 300 days if your state has an agency similar to the EEOC such as in Florida, there is the Florida Commission on Human Relations (“FCHR”). You can fill out a charge in person at one of the EEOC offices or do it by mail.Once the EEOC Charge is filed, the Equal Employment Opportunity Commission, a federal agency, has a staff of investigators who investigate your complaints. The employer is supposed to receive a copy of your Charge within ten days. They allow the employer an opportunity to file a formal response and generally will then ask for a reply from the employee. Sometimes, they will seek to interview the employee in person or over the telephone to get more information for their investigation. Sometimes the investigators will seek documents from the employer. Sometimes the EEOC will offer the parties to mediate the claims prior to further investigations. Keep in mind that if you choose to file an EEOC charge on your own, without an attorney, you will not have the support and guidance of an attorney to help you through this process.Once the EEOC completes its investigation, they will issue either a “cause determination” finding that they believed discrimination took place or will issues a “Notice of Suit Rights” which states that although they don’t believe discrimination took place, you can file a legal action against the employer if you choose to do so. If the EEOC issues a “cause” determination, they can choose to file a lawsuit on your behalf, but are not required to do so.Upon receipt of your Notice from the EEOC, if you are going to file a lawsuit, you must do so quickly since any Federal claims under the ADA, Title VII, the Pregnancy Discrimination Act, etc must be filed within 90 days. In Florida and other states, there are also state statutes which provide you a longer time to file suit.In order to obtain the best results, it is often necessary to retain the services of an experienced employment law attorney as early in the case as possible. Call Coane & Associates at 713.850.0066 to schedule your consultation with our experienced attorneys who are compassionate about your rights.

September 2010 Visa Bulletin: A Great Leap Forward for Some...

Recently, we spotted some language written by the State Department in the August 2010 Visa Bulletin which indicated that certain categories might advance rapidly in the September 2010 Visa Bulletin. And for many thousands of people, the September Visa Bulletin is a dream-come-true. Not for those with India and China employment-based (EB) priority dates who have been waiting in line for much too long (Did you hear that, Congress?).For who does the September 2010 Visa Bulletin apply to? In particular, for those in the worldwide EB-3 category for instance -- For professionals and skilled workers, the numbers advanced over 5 months in September while for unskilled workers, the advance was over 10 months. The worldwide family numbers advanced between 2 and 12 months, much faster than they did back in September 2009. The biggest movers in the worldwide family categories were 2A (spouses and children of permanent residents) and 2B (unmarried adult sons and daughters of permanent residents). 2A advanced 10 months while 2B moved forward one full year!Thus, there are people stuck in the worldwide family backlogs have something to cheer about, persons born in the Philippines, a country where demand for visa numbers far outpaces the supply, are positively ecstatic! Family 1st advanced by one full year, 2A by 10 months, 2B by one year, 3rd by 8 months and 4th by 9 months! (Thanks, Congress for listening...)

The immigration service is filing motions to dismiss...

The immigration service is filing motions to dismiss immigration court cases in record numbers. While it had been the policy of some immigration offices to request the closure of court cases, when there is a viable avenue for an individual to immigrate, this has not been the case in many cities around the country.For example, in Houston, Texas, it has always been the local immigration office policy to prosecute deportation cases, even where the individual could easily get a green card, for example, based on marriage to a USA citizen. Instead of saving time and the expense of a trial in deportation court, the local office always had the ability to close an approvable case and handle it informally at the local office. Unfortunately, in cities like Houston, the immigration service took the wasteful and unreasonable position of prosecuting everything, even where the result of the judge approving the green card was inevitable. In many cases, the government attorney would not even affirmatively prosecute, but would waste the time of the judge and money of the immigrant by showing up for trial and allowing the person to get the green card from the judge, anyway. The new nationwide policy of the immigration service is to close all court cases where it would be a waste of time and money to prosecute. The government should be commended for implementing this nationwide policy to save time and money and to free-up the courts for the prosecution of deportation cases where the immigrant has little or no defense.

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