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  1. BALCA Upholds Denial Where the Employer Made a Clerical Error in the ETA Form 9089

    The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision discussing errors made in labor certifications. In Matter of APT –Advanced Polymer Technology, the employer sponsored the position of R&D Manager/ Chemist for labor certification and stated that it conducted recruitment through an employee referral program, a job search website, and the employer’s website. The case was selected for audit and the employer submitted proof that it had conducted recruitment through a job search website, its website, and on-campus recruitment. The audit response did not address the discrepancy between the evidence of on-campus recruitment provided in the audit response and the employee referral program that was listed in the ETA 9089. The case was denied by the Certifying Officer (“CO”) on the basis that no evidence of an employee referral program was included in the audit response. The employer requested that the case be reconsidered on the basis that its statement that recruitment was conducted through an employee referral program was a clerical error. BALCA reviewed the federal regulations and found that the PERM process does not “permit[] employer’s to make changes to applications after filing. The … program is designed to streamline the process and an open amendment process that freely allows changes to applications … is inconsistent with the goal.” However, BALCA went on to state that the regulations do “recognize the appropriateness of an opportunity to present … evidence that was generated to comply with the record retention requirements.” Unfortunately, BALCA determined that the appropriate time to provide this additional evidence is in the audit response. Since the employer failed to do so, BALCA reaffirmed the denial. It is critical that labor certifications are filed with accurate information. However, this case does give some support for the idea that explanations or clarifying information can be presented in an audit response. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/
  2. Did Far Right Wing Hate Kill Immigration Reform? By Roger Algase


    In my last two posts, I have explained at length why immigration reform legislation in Congress is completely dead, not just partly or temporarily dead, and why no one should expect it suddenly to come back to life any time before the 2016 presidential election at the very soonest.

    As in the case of any killing, it is natural to search around for the culprit or culprits. The obvious culprit, of course, is the House Republican leadership. But why did that leadership, which had at least been making a few noises last summer and fall about how it might it might be willing to consider enacting reform "the right way" by passing "piecemeal" bills, finally decide instead to take out the knives and do away with reform entirely?

    Again, the answer is clear; all but a handful of House Republicans (19 at most, according to the right wing outlet Newsmax) are either strongly opposed to reform or afraid to support it because of strong Tea Party influence in their gerrymandered white dominated districts.

    The Tea Party and its allies are therefore the real culprits in the death of immigration reform, as indeed I have been arguing in many of my posts over the past several months. But why is the Tea Party so opposed to immigration reform, and to immigration in general?

    Is the Tea Party a legitimate movement, with a philosophy of government and ideas which can be taken seriously and with which there can be some kind of dialogue? Is there some common ground which immigration advocates might be able to find with the Tea Party which could be a possible basis for a rational discussion between the two sides??

    To answer these questions, it is helpful to look more closely into the mindset of those who profess to speak for the Tea Party, or to it. One such person is Stephen Steinlight, who calls himself a "senior policy analyst" at the anti-immigrant lobby group which goes under the misleading name "Center for Immigration Studies" (CIS, not to be confused with USCIS).

    I first wrote about Steinlight in a post that appeared last Christmas day, but there was little in the way of good will or holiday cheer in his expressed hatred for Latino immigrants, which included almost every anti-immigrant stereotype and racial slur that has been used against immigrants to America from just about anywhere during the last century.

    I also pointed out the irony of someone such as Steinlight, who has fought well and hard to combat the scourge of anti-semitism according to his biography, engaging in the same prejudice against Latinos that he opposes so vigorously when directed against his own ethnic group, which has been the victim of such terrible persecution within the lifetimes of many people who are still around today (including yours truly).

    Lat us see what Steinlight's latest comments are about immigration reform in order to find out if there has been any evolution in his thinking since last December.

    According to an article by Miranda Blue in Right Wing Watch dated March 27, CIS's Steinlight: immigration Reform A Psychotic' 'Plot Against America' That Will Kill The Constitution, Steinlight, in a recent speech to a Texas Tea party group, called comprehensive immigration reform a "plot against America" that will kill the Constitution and cause Americans to "lose our liberty and become a one party state.".

    He also said that Republicans who support the CIR bill "are psychotic, so greedy as to be politically blind, or just stupid." He also warned that we will:

    "witness what is in essence a population transfer from another country with a different language, a different culture, which will be the dominant demographic in his country."

    As for the many religious leaders of different faiths, Catholic, Protestant and Jewish, who have spoken out in favor of reform, his advice is:

    "God help me, find a baseball bat because then there would be a whole lot fewer of them around - but they are all of them, right across the spectrum, are the leaders of the amnesty."
    [sic] (Bold added.)

    The above statements all belong to the classic language of hate. It is also, almost word-for-word, the same language that was used against Steinlight's (and my own) Jewish forebears in the 19th and first half of the 20th centuries, not to mention Italian, Polish, Middle Eastern, Asian and African immigrants during the same period, right up to the 1965 immigration reform law which Steinlight and many other immigration opponents still condemn because it no longer gave special preference to white immigrants from Northern and Western Europe.

    the link is:

    http://www.rightwingwatch.org/conten...l-constitution

    This, in essence, is the kind of "thinking" that killed immigration reform in 2014. Until this kind of crass bigotry and blind hate is eliminated as a political force in our society, immigration reform will remain a distant dream.

    _________________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. For more than 30 years, he has been devoted to helping business and professional applicants overcome the obstacles of our complex immigration system and achieve their goal of living and working in America.

    His practice centers on H-1B and O-1 work visas, PERM labor certification and EB-1 extraordinary ability green cards, and permanent residence through opposite or same sex marriage, as well as other immigration and citizenship cases. His email address is algaselex@gmail.com













    Updated 03-31-2014 at 02:06 PM by ImmigrationLawBlogs

  3. Immigration Reform (2013 -2014): Rest in Peace, Pt. 2. By Roger Algase

    This post will continue my obituary of the late, lamented initiative known as Comprehensive Immigration Reform (CIR), or simply: Immigration Reform. In my last post, I reviewed some of the more popular theories which immigration supporters were using to try to keep their hopes alive in the face of the ugly reality of the refusal of House Republican leaders to take any action on reform, other than occasional empty gestures designed to throw the pro-reform side off balance.

    I also pointed out that reform supporters have been willing to follow almost any kind of spin, grasp at any kind of straw, in order to convince themselves that reform is non omnis moriar, i.e. not wholly dead.

    But all indications are that the time for reform supporters to keep trying to delude themselves has now run out, or at least is fast coming to an end. Finally, someone has had the courage to describe the unvarnished reality. I refer to a March 28 article by Benjy Sarlin of msnbc: This is what it looks like when immigration reform dies

    http://www.realclearpolicy.com/2014/...ead_18543.html

    Sarlin writes:

    "You can't say they didn't try.

    Supporters of immigration reform did everything they could to pass a law. They threw their support behind bipartisan negotiations in the Senate that led to the passage of a promising bill. They organized religious leaders, CEO's and law enforcement to lobby Republicans [link omitted] in their districts. They even managed to broker a peace deal [link omitted] between unions and corporations.

    None of it worked. Amid a growing consensus House Republican are unlikely to pass a bill [link omitted] any time soon, lawmakers, activists, and the White House are moving onto a post-reform phase focused on immediate relief for undocumented immigrants and wreaking electoral vengeance on the GOP."

    In other words, non omnis moriar for immigration reform through Congressional legislation has now turned into Requiescat in Pace (RIP).

    With hindsight, one can see that the mass self-delusion in the pro-immigrant camp that House Republicans would eventually pass something at least resembling reform, a delusion that lasted for three-quarters of a year, from the time that John Boehner first pronounced the Senate CIR bill DOA in the House last June until now, served an important purpose from the White House point of view.

    It diverted attention away from President Obama's record-setting pace of deportations and took some of the pressure off him to cut back. After all, he, not John Boehner or Bob Goodlatte, is the one who is now about to have deported two million immigrants since he took office, with many more to go.

    But the pressure is now squarely on the president. Sarlin writes:

    "'The clear reality is comprehensive immigration reform is dead this year.' Arturo Carmona, executive director of Present.org, told msnbc. 'We can't continue to have this contradictory policy where President Obama on the one side is saying fix the broken immigration system while he continues to deport our families at unprecedented rates.'"

    Sarlin continues:

    "As the saying goes, time is a flat circle. Immigration activists hope to repeat the cycle [beginning with DACA in 2012] by forcing the White House to take unilateral action, which would set the stage for Latino voters to punish the GOP in 2016, which would in turn pressure Republican leaders to finally cave in on reform."

    This strategy not only makes good sense, having already worked once before in 2012, but it is the only one that is in tune with reality.

    Earlier in his article, Sarlin quotes another, usually more optimistic immigration reform advocate, Frank Sharry, as saying that the chance of Republicans abandoning reform this year only to return to it in the middle of the 2016 presidential primary are "somewhere between zilch and nada."

    What is there to stop Obama from adopting the unilateral approach to reform, which is now clearly the only one left? If he does use the administrative power over immigration enforcement which the Supreme Court affirmed as recently as in 2012, in Arizona v. US, he will certainly come under a storm of criticism for "exceeding his Constitutional powers" from the same Republicans who put through the failed "Special Registration" program targeting Muslim immigrants in the wake of 9/11 without asking Congress for permission.

    He may even face a move for an impeachment circus in the House, but there is zero chance of his actually being removed from office, even if the Koch brothers succeed in buying back control of the Senate for the GOP this fall. All that Obama needs is enough backbone to do the right thing.

    I don't know if the president reads the classics, but he might do well to take to heart Virgil's line from the Aeneid (vi: 261):

    nunc animis opus, Aenea, nunc pectore firmo. ("Now you need your courage. Now let your heart be strong.")

    _________________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. For more than 30 years, he has been devoted to helping business and professional applicants overcome the obstacles of our complex immigration system and achieve their goals of living and working in America.

    His practice centers on H-1B and O-1 work visas, PERM labor certification and EB-1 extraordinary ability green cards, and permanent residence based on opposite or same sex marriage, as well as other immigration and citizenship cases.

    He supports the efforts of everyone who is trying to bring about fairer and more open immigration policies. His email address is algaselex@gmail.com



    Updated 03-31-2014 at 10:00 PM by ImmigrationLawBlogs

  4. Immigration Reform (2013 -2014): Rest in Peace, Pt. 1. By Roger Algase


    As I have mentioned in several previous posts, one of my favorite quotes in all of Latin literature is the line by the great Roman poet Horace (Quintus Horatius Flaccus, 65 - 8 B.C.): Non omnis moriar ("I will not wholly die.")

    Ever since the House Republicans announced last summer that the Senate's Comprehensive Immigration Reform (CIR) bill, S.744 was Dead on Arrival in the House, immigration advocates have been desperately grasping at straws to support their hope that Horace's line applied and that, somehow, CIR would come back to life.

    And there were a few straws to grasp at, or at least it so seemed. First, there was the idea that the House Republicans' "piecemeal" approach to reform would, in the words of one prominent reform advocate, add up to something resembling the Senate bill like "beads on a necklace".

    At the time, I wrote that a noose might be a better comparison than a necklace, and I leave it up to readers to decide which metaphor was closer to reality. But there were other straws to come, such as House Speaker John Boehner's decision, which in retrospect appears to have been only a public relations ploy, to hire Rebecca Tallent, a former immigration staff member of pro-reform Senator John McCain (R-AZ)

    Remember all the excitement at that announcement - but when was the last time that anyone heard from her?

    Then there were various Republican feints, including an announcement that House Judiciary Committee chairman Bob Goodlatte (R-VA) was working on reform bills, none of which have ever seen the light of day except for the regressive "ENFORCE" bill which would, among other things, overturn the Supreme Court's 2012 Arizona v. US decision.

    Then came the much heralded "Principles" or "Standards" that John Boehner announced at the end of January, 2014. They were so loaded with enforcement-only poison pills that no one could have taken them seriously to begin with.

    But only a few days after they were released, Boehner's "Standards" were ripped up into shreds and thrown overboard when he announced that there would be no immigration reform this year - which some Republican leaders have now expanded to mean during the rest of the Obama presidency.

    Then there was the hope that pro-immigration advocates could shame the House Republicans into allowing a vote on reform by sitting-in, fasting, and, most recently, a political stunt such as Nancy Pelosi's discharge petition. The only result has been an increase in the number of hypocritical excuses on the part of the GOP leaders for blocking reform.

    These excuses, which had already ranged all the way from Boston to Benghazi to Border Security, are now centered on the absurd claim that a president who has already deported close to 2 million people in his first five years cannot be "trusted" to enforce the immigration laws.

    But none of this has deterred the pro-reform spin doctors from coming up with more theories about how reform is still alive and will one day pass in a Congress whose House majority party has written off minority voters and cares only about the Tea Party, while the Senate is in danger of being bought for the Republicans this fall by the Koch brothers.

    One of the most popular current attempts to put a good face on a gloomy reality is the "window of opportunity" theory put forward by a number of commentators recently. This theory holds that we only have to wait until after the 2014 House GOP primaries are over by around June. Then, the "moderate, pro immigrant" House Republicans (both of them, or maybe a dozen at most) having survived Tea Party challenges (if they do survive), will then be free to vote their consciences on reform without fear of losing their seats in the fall.

    I apologize again to readers who may not be particularly interested in the classics, but the idea of any Republican representative being free to ignore Tea Party voters in his or her district in the November election reminds me of Ovid's line: postquam evolvit caecoque exemit acervo ("after he released them and freed them from the blind heap").

    This may have happened in Ovid's Metamorphoses, (i: 24) but being released from the blind Tea Party heap is not about to happen in the Republican party any time soon.

    Still, no matter how clear the Republican leadership has made it clear that immigration reform is still DOA in the House, as it has been from the moment it firs arrived there from the Senate last June, the spirit of non omnis moriar has continued to hold sway among reform supporters.

    That is, up until now.

    To be continued in Part 2, which will appear in my next post.

    _______________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. For more than 30 years, he has been devoted to helping business and professional applicants overcome the obstacles of our complex immigration system and achieve their goals of living and working in America.

    His practice centers on H-1B and O-1 work visas, PERM labor certification and EB-1 extraordinary ability green cards, and permanent residence based on opposite or same sex marriage, as well as other immigration and citizenship cases.

    He supports the efforts of everyone who is trying to bring about fairer and more open immigration policies. His email address is algaselex@gmail.com


    Updated 03-30-2014 at 10:56 AM by ImmigrationLawBlogs

  5. Obama's Cynical "Support" for Dems' Immigration Discharge Petition. By Roger Algase

    President Obama is taking his cynical game of pretending to support immigration reform while continuing to deport more than 1,000 people a day to a new level. On March 26, he issued a statement saying that he "applauds" the efforts of House Democrats to force a vote on immigration reform through a discharge petition - which has almost no chance of success.

    See Seung Min Kim's article in POLITICO: Obama endorses House Dem immigration push (March 26).

    As Kim writes in her article:

    "And some [pro-reform] activists were highly critical of the discharge petition, calling it nothing more than a political stunt."

    She also writes:

    "'House Democrats should focus on pressuring the White House to halt deportations and provide administrative relief for our families," said Cristina Jimenez, the managing director of United We Dream, a nationwide coalition of immigrant youth. 'They cannot simply seek political cover by gathering meaningless political signatures while standing on the sidelines and refusing to take action to ease the suffering in our communities.'"

    Obama's hypocritical policy of talking a good game on immigration reform, while letting either his inner Tea Party sympathies or his cowardice in refusing to take on the Tea Party anti-immigrant bigots directly determine what he actually does about deportation, also makes no sense for the Democrats politically.

    If the president continues to "stand on the sidelines" while more than two million minority men women and children are deported by his administration in only five years, no one should be surprised if Latino, Asian and other minority voters, as well as millions of pro-immigrant white voters of good will, also stand on the sidelines in this fall's election, thereby assuring a Republican Senate, Republican gains in the House, and an irrelevant presidency during the following two years which could well be a prelude to a Republican takeover of the White House in 2016.

    Based on past GOP performance, Republican control of Congress and the White House would in all probability put an end to any chance of immigration reform for a decade - or a generation.

    It would also in all likelihood lead to attempts to turn the clock back on immigration - even more deportations, efforts to nullify the 14th Amendment's guarantee of birthright US citizenship, criminalizing the entire immigration system, and giving bigoted state and local officials even greater immigration enforcement powers than the ones which the Supreme Court took away in Arizona v. US in 2012 - all in the interests of maintaining a white supremacist America.

    Cristina Jimenez, who is quoted above, is unlikely to be the only pro-reform advocate who will be asking in the coming months whether the House Democrats should be putting more pressure on Obama to use his administrative power over immigration enforcement, which the federal courts have long recognized, to scale back or halt the deportations until the Republicans finally agree to pass immigration reform.

    That might actually produce some results in persuading America's Deporter-in-Chief to change direction. In contrast, empty political grandstanding with a discharge petition that has no real expectation of being approved may make good headlines, but it is unlikely to accomplish anything.

    ______________________________________________
    Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School who has been practicing business immigration law for more than 30 years. His practice includes H-1B and O-1 work visas, and green cards though PERM labor certification, EB-1 extraordinary ability and opposite sex or same sex marriage, as well other immigration and citizenship cases. His email address is algaselex@gmail.com

    Updated 03-27-2014 at 09:49 AM by ImmigrationLawBlogs

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