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  1. DOL's Attorney-Unfriendly PERM Labor Cert. Filing System, Pt. 1. By Roger Algase


    The following post has been revised as of 8:16 pm on December 27.

    Christmas has always been a festive holiday for me, as it has been for many other good Jewish boys growing up in New York. When I was young, not only did my family have a Christmas tree, with lots of presents, but I believed in Santa myself until one year when I was about 12 or 13 and he failed to solve a chess problem that I had left under the tree for him.

    (Notwithstanding, my belief in Santa was refreshed only a couple of weekends ago when my wife and I were walking around in midtown Manhattan and ran into what must have been hundreds of young people dressed up in full Santa regalia heading to or from various neighborhood bars and looking festive indeed! Some of the young women were even wearing reindeer hats. Surely, one of those young people must have been the real Santa Claus. I cannot believe that they were all impostors.)

    My own Christmas this year, however, was decidedly less festive - the least festive, in fact, that I can ever recall, despite having a rather generous number of Christmas days under my belt. This is because virtually the entire day, from early morning until late at night was spent trying to deal with a US Department of Labor (DOL) online Labor Certification filing system, known as PERM, which was set up to be less than friendly to attorneys trying to file applications on behalf of their employer clients.

    In fact it might not be a gross exaggeration to suggest that if SONY Corporation wants to protect itself more effectively against alleged hacking by North Korea, the company could do worse that to retain the DOL as a consultant to install some the security features that the agency uses to protect itself against immigration attorneys who are merely trying to carry out their responsibilities according to law.

    As every PERM labor certification lawyer knows, the DOL has a number of security features in place to make sure that attorneys do not file Labor Certification (PERM) cases online without the express permission and authorization of the employer.

    Going around these security features by filing hard-copy paper applications through mail or courier is permitted, but not encouraged, and the DOL warns that a number of things can go wrong in that event - indeed that the DOL itself is likely to make sure that something will go wrong. Listing these hazards is beyond the scope of this comment, but I have yet to hear of anyone who has actually filed a hard-copy paper PERM application in the almost one decade since the PERM on-line system was put in place. Verbum sat sapientis. ("A word to the wise is sufficient.")

    In order to use the on-line system, first, the employer must set up a PERM account with the DOL. This involves some back and forth procedures detailed in the DOL's 50 page online user's guide, and can be subject to delays while the DOL investigates whether the business exists, is at the stated address, etc. Naturally, the employer's account must have its unique user name, password and PIN number.

    After the employer's own online PERM account has been set up. the employer must then set up an online attorney's sub-account complete with the attorney's own password and user name, together with the same employer PIN number.

    The attorney then receives an email from the DOL confirming that the above sub-account has been set up (with a warning that the DOL assigned password for the account must immediately be changed and the email deleted - is this to guard against the possibility that the attorney might actually be able to find his or her user name when it is needed)?

    The attorney might also have access to the employer's main account - especially as most employers have better things to do than spending time on PERM filing mechanics themselves - but woe betide any employer who allows the attorney to file a PERM application from the employer's main online account, rather than the attorney's sub-account. This is definitely a no-no and can result in denial of the PERM application if the DOL traces the filing or any other activity on the employer's main account to the attorney's computer, rather than the employer's.

    To return to my own personal Christmas day story, in the days leading up to the holiday, I had been guiding my client through the steps of reinstating its long-unused PERM account (since it is a small company which has not sponsored many PERM cases in the past) and then advising it about setting up my attorney's PERM sub-account. Reinstating the employer's dormant account took a day or two to hear back from the DOL but setting up the attorney's sub-account is relatively simple and only takes a few minutes. It is one of the few features of the system that works relatively quickly. Of course, it can only be done by the employer, not the attorney.

    By the day before Christmas, we were ready to go, (or to rock and roll, as the ancient expression used to say). I spent a lively Christmas eve filling out the ETA 9089 PERM application, with all of its "Kellog" language and other legal as opposed to technical minefields, and finally I reached the last page, which had instructions to input the employer's PIN number before hitting the "submit" button.

    At that point, to use a non-Yuletide expression, everything started to hit the fan.

    To be continued.
    ___________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business, employment and family-based immigration law for more than 30 years.

    His practice is primarily focused on H-1B and O-1 professional and skilled worker visas, J-1 trainee visas, and green cards through labor certification, extraordinary ability and opposite or same sex marriage, among other immigration and citizenship cases.

    Roger has helped immigrants from many parts of the world overcome the obstacles of our complex immigration system and achieve their goals of being able to live and work in America. His email contact address is algaselex@gmail.com


    Updated 12-28-2014 at 12:25 PM by ImmigrationLawBlogs

  2. USCIS Claims it Does Not Rely Exclusively on EDGE Database for Educational Opinions;

    In a March 13, 2014 letter to Joseph Crowley, Member, US House of Representatives, recently obtained by the American Immigration Lawyers Association, USCIS Chief James W. McCament claims that, “USCIS does not endorse or encourage the use of EDGE over other types of credible resource material regarding the equivalency of the educational credentials to college degrees obtained in the United States.”


    We respectfully beg to disagree. In fact, we would suggest that nothing could be further from the truth.


    This response is of particular interest to Philippine educations physical therapists who have five-year “bachelor” degrees in physical therapy that many, including FCCPT, believe are equivalent to US master’s degrees in physical therapy, thus making them eligible for classification in the EB-2 immigrant petition preference category.
    While I understand that from the perspective of making a public statement about a USCIS policy, Mr. McCament probably felt the need to make a bland “we look at everything” kind of claim, the simple truth of the matter, his statement is nothing short of a blatant misrepresentation of current USCIS practice.


    I have read far, far too many denials of EB-2 petitions for Philippine educated physical therapists which claim the denial was made based solely on the fact that EDGE does not recognize the Philippines degree as being the equivalent of a US master’s degree, to believe that USCIS does not endorse or encourage the use of EDGE.


    Not only does USCIS endorse and encourage the use of EDGE, it practically requires slavish adherence to EDGE. We have submitted numerous petitions with which we have provided multiple credible educational evaluations which indicate the Philippines degree is equal to a US master’s degree, as well as letters from state licensing boards (the very people responsible for making the ultimate determination as to whether a foreign educated physical therapist may touch patients in the US), that indicate the Philippines degree is equal to a US master’s degree, and still we receive denials that simply state, “EDGE says it isn’t”. End of decision.


    The fact that so many petitions have been denied in this manner makes it clear this is not the work of some rogue USCIS officer; rather, it is part of a well orchestrated plan (and policy) to deny these petitions using the EDGE database as the reason. As the only reason. To suggest otherwise and claim all credible resources are considered is completely ludicrous.


    Rather than dance around the question by denying USCIS does what we all know it does, Mr. McCarment simply should have said, “EDGE is our ultimate resource. What are you going to do about it?”


    I much prefer being clubbed over the head to being lied to. At least that way, you really know what you’re dealing with.

    This post originally appeared on HLG's Healthcare blog by Dwight Myfelt. http://hammondlawgroup.com/healthcareblog/
  3. District Court Determines that Technology Union has Standing to Sue

    The U.S. District Court for the District of Columbia recently determined that a union that represents technology workers has standing to sue the U.S. Department of Homeland Security on the basis that these workers were harmed by the U.S. Optional Practical Training (“OPT”) STEM extension program. In Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, the court considered whether a collective-bargaining organization that represents science, technology, engineering, and mathematics workers had standing to sue the U.S. government on the basis that the OPT program and OPT STEM extension program had injured the U.S. workers represented by this union. The plaintiff argued that these programs had increased competition for jobs, which harmed its union members. Specifically, three union members were unable to obtain employment with JP Morgan Chase, Ernst &Young, IBM, and Hewlett Packard between 2010 and 2011. During this same time period, these organizations employed OPT STEM employees. The District Court stated that to establish standing, the plaintiff must show that: “(1) it has suffered an injury-in-fact, (2) the injury is fairly traceable to the defendant’s challenged conduct, and (3) the injury is likely to be redressed by a favorable decision.” Since there was no allegation in the complaint that the union’s workers applied for roles that were filled by OPT workers, the first three complaints were dismissed. In reviewing the remaining complaints, the court did find that the three workers “are specialized in computer technology, and they have sought out a wide variety of STEM positions with numerous employers, but have failed to obtain these positions following the promulgation of the OPT STEM extension in 2008.” Since the court found that these workers were “in direct and current competition with OPT students on a STEM extension,” the court found that the plaintiff had standing to sue on the remaining claims. While the STEM program is applauded for providing work authorization to individuals who have needed science, technology, engineering, and mathematics training in the U.S., this case shows that some unions believe that U.S. workers are being harmed. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/
  4. Race, Class and Immigration Law. By Roger Algase

    The following post has been revised as of the morning of December 15:

    All immigrants and immigration advocates can breathe a huge sigh of relief over the fact that federal government funding dodged a right wing bullet by the name of Ted Cruz (and a left wing one called Elizabeth Warren) in order to avert a shutdown which, among many other things, would have wrecked key parts of our legal immigration system by closing the US Department of Labor and the State Department visa offices. Obviously, there was a direct connection between immigration and the shutdown threat, as the Texas Republican Senator made clear by holding up action on the government funding package during the weekend until it finally passed the Senate on Saturday night, December 13, while protesting against President Obama's recent expansion of executive action in order to grant temporary relief from deportation to some 4 or 5 million additional people. most of whom happen to be less affluent and Hispanic.

    As everyone knows, the same Tea Party firebrand was also instrumental in shutting down the government temporarily in 2012 over a different issue, namely extending access to health insurance to 30 or 40 million people who would otherwise not have been able to afford it. This issue affected not only tens of millions of less well off white, black and Hispanic American citizens, but immigrants as well, especially because of the controversy over whether unauthorized immigrants should be given access to healthcare benefits under this law.

    There was also a threat to government funding coming from the left, in the form of an effort by the Massachusetts Democratic Senator, Elizabeth Warren to persuade her Congressional colleagues in the House to derail the funding plan in that chamber because of its perceived giveaways to Wall Street banks and to wealthy campaign donors - an effort which came within only a few votes of succeeding, and which had support not only from the left, but from Tea Party leaders (including, reportedly, Senator Cruz himself) who also opposed benefits for the big banks and wealthy campaign donors.

    Therefore, issues of race and class clearly played a role in the shutdown battle, with its attendant risk to the functioning of at least major parts of America's immigration system (even though USCIS would have stayed open in a shutdown, as was the case last time, since the agency is funded by user fees rather than directly by Congress).

    Do issues of race and class have a direct influence on immigration law and enforcement as well, in addition to indirect effects which would result from a government shutdown?

    As lawyers, we would all like to believe that the immigration laws are color-blind and that they are enforced equally with regard to everyone, regardless of national origin or social status.

    We would like to overlook or disregard any evidence that there may be an underlying structural bias in immigration law taken as a whole against less affluent immigrants and immigrants of color. But does that correspond with the reality of immigration law and practice today?

    Two distinguished authorities on immigration law, Kevin R. Johnson, Dean of the University of California, Davis, School of Law, and Bill Ong Hing, Professor of Law at that same school, have argued recently that race and class always have been and still are fundamental to immigration law, not only in the dark era of the 19th and early 20th century exclusion laws and racially motivated national origin quotas against Asian, Jewish, Italian, Eastern European and other "non-Nordic" immigrants, but also today, especially as applied against Mexican, other Latino and black immigrants.

    See Kevin R. Johnson: The Intersection of Race and Class in U.S. Immigration Law and Enforcement, 72 Law and Contemporary Problems (2009),

    http://ssm.com/abstract=1319795

    and Bill Ong Hing: Institutional Racism, ICE Raids and Immigration Reform, UC Davis Legal Studies Research Paper Series Research Paper No. 197 (December 2009)

    http://ssm.com.abstract=1525578

    Their arguments are powerfully presented and backed up by extensive legal scholarship. They deserve to be taken seriously by anyone who is concerned with immigration law and immigrant rights. I will discuss these articles in more detail in upcoming comments.
    ________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business, employment and family based immigration law for more than 30 years. His approach to immigration law is based, not only on fully understanding and applying the technical rules correctly, but also on asserting each person's right to a full and fair consideration of the merits of his or her case by an immigration system which may often tend to overlook or disregard these basic rights. Roger's email address is algaselex@gmail.com

    Updated 12-15-2014 at 04:42 AM by ImmigrationLawBlogs

  5. Please Refer to Next Post by Roger Algase re: Race, Class and Immigration Law

    The subject matter of this post has been revised and included in my later post on the same topic. Please refer to that post, updated as of December 15, which has the title: Race, Class and Immigration Law.







    Updated 12-15-2014 at 08:03 AM by ImmigrationLawBlogs

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