lougoblawg

Don’t get too excited! It hasn’t passed, it is still pending. The Reuniting Families Act was introduced by Senator Menendez (D-NJ). If enacted, the Act will eliminate hardship to many family members of U.S. citizens and Lawful Permanent Residents.

No more wait times for children and spouses of Permanent Residents.
The Act will re-classify spouses and children of permanent residents as “immediate relatives.” What does this mean? Right now, a spouse of a permanent resident is classified as “first preference,” which means he has to wait a long time (years) before he can apply for a green card. Spouses of U.S. citizens do not have to wait and are eligible for a green card immediately. That is because they are classified as “immediate relatives.” The act will re-classify spouses and children of permanent residents to that of “immediate relatives.”

No more “widow penalty".
The “widow penalty” is an unfortunate byproduct of our immigration law. Here is an example. Mary is not a U.S. citizen. Bob is. Bob marries Marry and applies for her as an “immediate relative.” Together with Bob’s petition, Mary files for her green card. Bob dies, however, before his petition is approved. Due to his death, the petition is automatically revoked and Mary is deported. That is what is called the “widow penalty.” Under the proposed Act, the petition will not be revoked. The provision would be retroactive, and anyone who has suffered from the “widow penalty” in the past can reapply for the benefit within a two-year period and can be even paroled to the U.S.

Will help undocumented families of U.S. citizens and permanent residents.
I have heard this story way too many times. The child came to the U.S. with family. The family obtained green cards, some even became U.S. citizens, but for some reason the child did not. He is now undocumented and has no way to obtain permanent residence unless he is placed in deportation and is granted very limited relief. Under the Act, undocumented parents, children and spouses of U.S. citizens and permanent residents will be allowed apply for documented status in the U.S. if they can show that refusal to admit them to the U.S. will result in hardship to their parent, son or daughter.

How about those “roll-over” minutes?
The Act will recapture unused employment and family-sponsored visas from 1992 through 2007 and apply them to the next year, which should help shorten some of those waiting times to get a visa number. Right now, waiting times to get a visa number (which makes you eligible to apply for a “green card") last years, often over ten years. The Act should help shorten these times by capturing unused visas and thus creating “extra” visa numbers for that year.

A companion bill was introduced by Rep. Honda (D-CA) and is currently pending in the House of Representatives. See H.R. 6938

S.2840, which passed both the Senate and the House (now waiting for the President’s signature) provides for accelerated processing of naturalization applications for U.S. military personnel.

The key features of the bill include: 1) establishing an office of FBI liaison in the Department of Homeland Security (DHS), which will accelerate FBI clearance of naturalization applications for military personnel, and 2) establishing a 6-month time line for processing such applications.

Currently, there is no “accelerated docket” for processing naturalization applications filed by members of U.S. Armed Forces or their families, although, generally, these applications take less time than other naturalization applications. Nonetheless, this creates a time table for action.

This is particularly important for families of U.S. military personnel, and here is why. Generally speaking, U.S. military personnel currently on active duty can apply for naturalization at any time, regardless of their immigration status in the U.S. Spouses, children or parents of U.S. military personnel can apply for immigration benefits, but timing is everything for them. If the family members apply before the military person becomes a U.S. citizen, they are facing long waiting lines. Once the military spouse/child/parent is a U.S. citizen, however, their beneficiaries can typically receive immigration benefits and work authorization within a relatively short period of time. If the military member is deceased, the family members can apply for posthumous citizenship and receive immigration benefits after citizenship is granted to the deceased. The processing times of citizenship applications are therefore critical to the family’s ability to live, work or receive education in the United States. Creating a time table for the processing lifts a huge burden off the shoulders of our military personnel and their families.

USCIS provides a wealth of information on military naturalizations. Here is a list of useful resources:
USCIS hotline: 1 877 CIS 4MIL (1 877 247 4645)
USCIS website on military personnel: www.uscis.gov/military
USCIS fact sheet on citizenship through the military
USCIS information on naturalization abroad for military personnel and their families
Overseas naturalization eligibility for certain children of U.S. military personnel
Form N-400, application for naturalization
Form N-426, application for certification of military or naval service
Form N-400K, for children who reside abroad and claim U.S. citizenship based on parentage

All right, for those who don’t know what USCIS is, it is the United States Citizenship and Immigration Service.

For those who don’t know about Twitter, it is a cool way to stay connected with people and receive updates about them. If you want, you can get updates on your cell phone. You should check it out.

Anyway, I can now get updates from USCIS on my cell phone. I am surprised that the feds are taking notice of technology and making good use of it. Although USCIS does not follow anyone, it does have followers. Most of its updates are about office closings (boring, but useful).

Other governmental agencies post updates too. One I find interesting is the U.S. Department of State postings on country travel conditions: http://twitter.com/CSIState. Pretty cool.

NASA does posts too, but I don’t get them on my cell phone: there are a lot of posts!

It’s so funny, some states are on Twitter and follow other states. Did you know that Utah follows Kentucky? And on, and on, and on. When is Ohio getting on Twitter? I am going to tweet about that.

In a decision published on February 21, 2008, the Supreme Court of Ohio upheld a statute of repose on product liability claims. According to the statute of repose, R.C. 2305.10,"no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser.” The Supreme Court upheld its constitutionality, with a modification of its applicability. Instead of the statute being applicable to claims filed on or after April 7, 2005, the court applied it to claims that accrued on or after April 7, 2005, the effective date of the statute. This decision effectively eliminates cases involving old equipment that does not pass scrutiny under the current jury’s view of technology and scientific advances. I believe it is a fair result for old manufacturing companies. Instead of focusing on old equipment, we should focus our efforts on future technological advancements, research and improved product safety.

Click here for the full opinion.

Click here to the Statute of Repose.

Effective January 1, 2008, Ohio’s minimum wages increase to $7.00 per hour for non-tipped employees and $3.50 per hour for tipped employees. These wage rates apply to employers who gross $255,000 in annual sales. Those who gross less than $255,000 in annual sales must follow federal minimum wage laws. For mor information, see the Department of Commerce Press Release.

OSHA implemented a new rule requiring employers to provide PPE (personal protective equipment) at no cost to their employees. Although the rule before this one required the employer to provide PPE, some provisions did not specify that all PPE is to be provided at no cost to the employee. The new rule covers all PPE such as gloves, hard-hats, safety helmets, face shields, etc. There are still some exceptions for ordinary clothing, weater-related wear, prescription eye wear and safety-toed footwear. Click here for the full text of the rule.

In a recently published decision, the Cuyahoga County Court of Appeals ruled that an employee who refused to ship a non-conforming part to a customer and who is fired for this reason can sue under Ohio law for wrongful discharge. See Zajc v. Hycomp, 2007-Ohio-2637.

In this case, an employee was working as a “Designated Supplier Quality Representative.” Part of his job was to act as a customer’s agent and make sure that the parts shipped to the customer conform to specifications. In early May, he was inspecting a part for a borehole (a feature that lights and magnifies the view of an aircraft engine). He was not satisfied with this part, but his supervisor told him to ship the part anyway because the customer needed it. After the plaintiff refused to ship the part, the supervisor told him to clean out his desk.

The employee filed a lawsuit, claiming that he was terminated in violation of a clear public policy. Under Ohio law, employment is generally at-will, unless you have a written contract or are a member of a union. However, employees can sue if they have been discharged in violation of law (such as anti-discrimination laws) or in violation of a clear public policy. As an example, an employee who is terminated for filing a lawsuit against his employer can sue for wrongful termination in violation of public policy. Of course, a clear public policy must exist to make the termination unlawful. In this case, the employee argued that the public policy was that the parts internal to jet aircraft engines created a safety concern for the public. Therefore, it is against public policy to terminate employees who insist that the parts be made safely because it would discourage employees from complying with part specifications and create a danger to the public. The trial court did not agree with the plaintiff and dismissed the case before it got to the jury. However, the court of appeals disagreed and reversed the trial court. This case will therefore proceed to a jury trial, and a jury will determine whether the employer is liable.

For us “legal geeks” out there, the court’s analysis is particularly interesting. Typically, a clear public policy must come from a statute or another body of law. In this case, the plaintiff relied on UCC and the Ohio Product Liability Statute as the source of the public policy. The trial court did not find that these statutes satisfied the “clarity” element. Further, the trial court found that the jeopardy element was not met because persons injured by a defective product can file a lawsuit. The appellate court noted that public policy can be derived from a statute, the Constitution of Ohio and the United States, administrative rules and regulations, and the common law. The Court of Appeals concluded that the plaintiff established the clear public policy element because 1) the UCC allows the buyer to reject a non-conforming part, and 2) the OPLA creates strict liability for defective products. The Court went on to cite federal regulations that provide for a production-inspection system for aircraft parts.

More importantly, the Court of Appeals disagreed with the employer that the source of the public policy must prohibit termination of an employee. Rather, the Court found that the source itself does not need to prohibit the discharge. Employees who are charged with compliance with federal law should not be discharged for refusing to ship parts that do not meet such requirements.

The Ohio Supreme Court upheld the Ohio statutes that criminalize actual or “morphed child pornography.” The defendant Toole claimed that the statutes were unconstitutionally overbroad. He relied on a United States Supreme Court decision that struck down a statute that criminalized “virtual child pornography.” The Ohio Supreme Court distinguished “morphed” from “virtual”. The court found that “virtual child pornography” does not involve images of real children, while “morphed” images still involved real children.

Therefore, the Court found, the statute was constitutional. Of course, the prosecutors have to prove beyond a reasonable doubt that real children were in the images. For that purpose, the court concluded, the jury can make its own determination as to the age of the person by looking at the image – experts are not required to prove that the person depicted is a child.

From a personal note, I side with Justice Lundberg Stratton who agreed with the Ohio Supreme Court’s decision but issued a concurring opinion urging the United States Supreme Court to reconsider its position. Justice Lundberg Stratton believes, and I agree, that all child pornography, whether “virtual”, “morphed” or real should be criminalized because it leads to exploitation of children, inflames the desires of those who prey on children, and has a deleterious effect on all children.

As a side note, if you want to see if any sexual predators live in your neighborhood, you might want to take a look at Cuyahoga County Sheriff’s Department website. You can also sign up to be notified if any sexual predators move into your neighborhood.

For a full opinion of the Ohio Supreme Court’s decision, click here.

For the text of the Ohio Statutes that were at issue in the case, click here (RC 2907.322) and here (RC 2907.323).

Technorati Profile

As discussed in my partner’s blog former CIA Operative Valerie Plame’s lawsuit against many members of the Bush Administration was thrown out on a motion to dismiss yesterday.

At the heart of the lawsuit is an employment law issue: what remedies does a federal employee have against the politicians that employ her? And, if she has remedies, what are they?

Ms. Plame’s case was thrown out in part because she had not taken advantage of some administrative remedies available to her. If you have an employment issue, then talk to an employment lawyer as quickly as possible because many administrative procedures have very strict time limits and other requirements.

Technorati Tags: Plame, law, lawyer, current, event, employment, law

Federal minimum wage rates will increase effective July 24, 2007, to $5.85 per hour. The minimum wages will increase again to $6.55 on July 24, 2008, and $7.25 per hour on July 24, 2009. Overtime pay rate is 1.5 times the pay rate for hours worked over 40 hours in a workweek. For more information on federal minimum wage laws, you can visit the U.S. Department of Labor website.