How H1-Bs can protect their status when laid off.

The economy has not left anyone untouched by its dramatic impact. Stories of banking crises, bailouts, rising unemployment, plummeting securities and housing prices, rising inflation, rising gas and food prices, recession, depression, and laid off of foreign employees in the US abound.

Among the many worries of foreign national workers in the US on H-1B, the most worrisome these days is a layoff. This problem is often compounded by undefined terms and often contradictory interpretations of the immigration laws. So what should you do in case of a layoff? First of all you need to know what the law really says; you need an attorney.

After a lay off: The following are suggested steps you should take in the event you are laid off:
Maintain Legal Status: You must show a good faith effort to stay in legal status in the country. You can do this in a couple of ways. If your H-1B status was not revoked when you were laid off you can find an new employer and file a change of employer petition. If you cannot find a new position and get a change of employer petition filed within thirty (30)days you should apply for a change of status to B-1/B-2 visitor status. You will need a copy of your itinerary showing intent to leave the US at the end of the requested B-1/B-2 status. You will also need financial proof, usually in the form of a bank statement, showing that you have enough money to stay in the US. If your former employer revoked your H-1B at the time you were laid off you need to file for a change of status to B-1/B-2 immediately.

Job Search: You should begin your job search as soon as you are laid off, even before you file for a change of status to visitor status. As you know, your job search will become your full time job until you find a new employer. NOTE: The amount of time that an H-1B worker may stay in the US after being laid off or terminated is not defined in the law or the regulations.

Application for Change of Status: Once obtain a new offer of employment; you should have the new employer submit an application to change H-1B employers as soon as possible.
Under AC-21, a worker may begin employment with the new employer as soon as the H-1B transfer petition is submitted to the USCIS. When the USCIS makes their decision on the new petition they have three choices. First, they can deny the petition, in which case you will have to depart from the US. Second, the H-1B transfer request will be approved. Or third, if the USCIS decides that too much time has elapsed since you were laid off or terminated, they will approve the H-1B petition and deny the application to change employers in the US. In this final scenario, after the Notice of Approval has been issued, you may depart the US and apply for a new H-1B visa abroad. If your old H-1B visa has not expired, you may be able to simply travel outside the US and return using your original H-1B visa and the original Notice of Approval (Form I-797) for your newly-approved H-1B petition.
For additional information on adjusting the status of you or someone you know, call us at 405-607-HELP or ask a lawyer at www.immigrationOKC.com.

Head scarfs are not as cool as torn jeans

A head scarf, also known as a hijab or chador, is an item of clothing worn by many Muslim women that represents a symbol of religious identity and observance of modesty.  As far as 2004, the head scarf has become a hot political topic in the Western world when France prepared to ban head scarves from public schools, along with other overt religious symbols.

A little closer to home, in Oklahoma, a case was recently filed against Abercrombie & Fitch clothing store at a Tulsa mall because a young muslim girl wore a head scarf to an interview and was denied employment due to her scarf violating their "look policy."

"An attorney for the EEOC claims that the company violated Title VII of the Civil Rights Act of 1964, which protects workers from discrimination based upon religion in hiring.  Quoting EEOC senior trial attorney, Michelle Robertson, "It is unlawful for employers to treat applicants or workers differently based on their religious beliefs or practices in any aspect of employment, including recruitment, hiring, and job assignments."

Unfortunately, this is not the first time the EEOC has gone after Abercrombie.  In 2004, there was a similar suit based on their "look policy" that accused the company of promoting whites over minorities and cultivating a practically "all-white image."  To find out more about this article go to www.employmentokc.com

www.duiokc.com Now that school's back in, it will become increasingly important for college kids to be careful in either monitoring their drinking or taking a taxi if they have ingested more alcohol beyond the legal limit.  However, with binge drinking becoming ever more prevalent I have posted a link to a drink wheel on my website that will help you figure out if you have gone over your limit to keep you from hurting yourself or others in the future.

However, if you or someone you know finds themselves in a situation involving drinking and driving or any misdemeanor charge, call us at (405) 607-4357 and we can help.

All work and no play could mean you're owed money!

"APPLE'S belief that its employees should work just for the joy of labouring within Steve Jobs' aura was confirmed this week when a former employee sued the outfit for unpaid overtime."

A former MAC technician has filed a class action lawsuit against Apple, complaining that Apple, Inc. is not paying overtime due to it's employees.

Under Federal Law, overtime pay is required for non-managerial employees who do not fall into "exempt" status. In this case, the attorneys allege that "The defendant knowingly had the plaintiff work off the clock and did not pay the plaintiff overtime."

If you or someone you know is working 40 plus hours and not being paid overtime, don't hesitate to call an experienced attorney to help you recover your hard earned money.

Click here to read the actual article

Baby's Daddy or Baby's Momma not helping support your child?

A recent report from KOCO channel 5 stated that since Oklahoma implemented the lottery, over $100,000 in state lottery winnings have been intercepted to pay child support obligations.

"In Oklahoma, state law requires lottery officials to first check whether winners owe back child support before paying out large prizes." To read the actual article, click here.

In case you don't win the lottery, you should contact an experienced attorney to help you recover the back and current child support owed to you and your child

Increasingly we are living in a smaller and smaller world, it is not uncommon for people to leave their country of citizenship to live or visit elsewhere. Usually these experiences with different cultures whether it be Americans visiting or living abroad or foreign nationals visiting or living here, are pleasant. Yet sometimes even the best and brightest may find themselves in trouble with the law. If a person is a foreign national detained in the United States, international law requires that such detainee be informed of their Article 36 rights.

Under Article 36 of the Vienna Convention on Consular Relations (VCCR), local authorities must notify all detained foreigners "without delay" of their right to have their consulate informed of their detention. At the request of the national, the authorities must then notify the consulate without delay, facilitate unregulated consular communication and grant consular access to the detainee. Consuls are empowered to arrange for their nationals' legal representation and to provide a wide range of humanitarian and other assistance, with the consent of the detainee. Local laws and regulations must give "full effect" to the rights enshrined in Article 36. This provision is equally in force and applicable to United States citizens traveling or living abroad in any of the 166 countries that are a party to this convention.

Hypothetical: Overweight woman comes into my office complaining that she was discriminated because of her weight. Her former boss has made abusive comments about her size and has made multiple comments about it. Is she protected under our current disability law? Is weight considered a disability? Weight discrimination is a fairly new issue in the employment law arena. Unfortunately, there are only a few cases covering this topic and usually they are covered by a state statute or public policy that prohibits weight discrimination. For example, persons living in Washington D.C., Santa Cruz, San Francisco, and Michigan are protected against discrimination by special statutes. Outside of these jurisdictions, persons must rely on federal law including the Americans with Disabilities Act, Title VII of the Civil Rights Discrimination Act, and Rehabilitation Act of 1973…which have not proven helpful in states that don't already have these protections. Furthermore, courts have held that the Americans with Disabilities Act only protects persons whose excess weight or obesity relates to a physiological disorder.

Thus, persons who believe they have been discriminated against based on weight should be mindful that there just aren't many cases on this subject when compared to other employment discrimination matters.

Sally Student works in a movie theater as an usher to pay for school. Lately she has been working 60-80 hours a week but has not been getting any overtime. Sally believes that she should be getting paid overtime but is unsure of what the law says about this. Under the Fair Labor Standards Act ("the FLSA") employees that are classified as non-exempt are entitled to time-and-a-half compensation. The FLSA makes it illegal for an employer to withhold overtime pay from a non-exempt employee who works over 40 hours in a workweek. Some employers try to avoid paying overtime by misclassifying their employees as exempt. An employee is considered exempt based on the wages they earn and the duties that their job encompasses. Under the FLSA an exempt employee must make at least $455.00 a week ($23,600 per year) and perform exempt job duties. While Sally Student's job as an usher certainly qualifies her as a non-exempt employee, she is not entitled to overtime pay because she works for the entertainment industry. Under the FLSA certain industries and employers are exempt from having to compensate their employee's for overtime worked, too bad for Sally, movie theaters fall within this exemption.

Even though Sally is out of luck, others who work in industries that do fall within the FLSA may sue their employer for failure to pay overtime wages. In addition, the FLSA enforces penalties on those employers who improperly classify their employees as "exempt." Under the FLSA, an employee whose right to their wages has been violated may not only recover the back wages owed to them but also liquidated damages, and reasonable attorney's fees and costs.

A new development in this area of the law is the question of whether undocumented workers can recover back wages for work they have done. Because this is a hotly contested issue it is important to consult an attorney should you find yourself in this situation. The Supreme Court of the United States in 2002, in Hoffman Plastics Compound v. NLRB held that undocumented workers are not able to recover back wages under the NLRA. Since this decision however, various circuit courts have found ways to enforce an undocumented workers right to be compensated for work they have done.

These courts have allowed undocumented workers to bring an action under the FLSA for unpaid wages and liquidated damages instead of the NLRA. An undocumented worker may be afraid to complain, but the FLSA says employers may not retaliate against employees for bringing an action for overtime wages. Employers who do retaliate may be fined up to $1000.00 or receive a jail sentence of up to six months. Also, under Oklahoma law, it a felony for U.S. citizens to knowingly employ illegal immigrants. Because of this, if an employer knows the worker is undocumented, he might be more willing to pay the overtime wages.

If someone is not being paid overtime wages for their work over 40 hours, they should keep records of all the time they work and save their paystubs. If there are several workers not being paid overtime, the case against the employer might be even stronger and the employees should bring one case together. It is important that workers rights are not violated. There are laws to protect workers from working without being paid for their extra time.