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  1. Bloggings: Some Common Myths About H-1B. By Roger Algase


    Now that we are in the annual rush to file H-1B petitions starting on April 1, before the pitifully inadequate number of available visas runs out,  it would be useful to look at some of the most common myths which may be preventing many qualified people from using this program.

    Here are a few of the most common myths which I am constantly hearing from H-1B clients:
    Myth Number 1: There are limits on the number of H-1B workers that an employer can sponsor.
    Fact: There are no limits on the number of H-1B workers that an employer can sponsor. If more than a certain percentage of an employer's total workforce (depending on the size of the employer) are in H-1B status at any given time, the employer is considered to be "H-1B dependent".
    However, being H-1B dependent does not prevent an employer from sponsoring more H-1B workers. It only requires the employer to look for US workers first. There are no specific rules about how this must be done.
    An H-1B dependent employer must also avoid firing US workers in order to give their jobs to H-1B employees. However, unlike the case with green card sponsorship, an employer, even an H-1B dependent one,  is NOT required to obtain a labor certification before hiring an H-1B employee. See below.
    Myth Number Two: An employer must show that there are no qualified US workers available for the job before it can hire an H-1B worker.
    Fact: This is one of the most common misunderstandings I have encountered among H-1B clients during the 25 or more years that I have been representing employers and employees in this type of visa. Unless an employer is H-1B dependent, as mentioned above, or is a "willful violator" of the H-1B rules, there is NO requirement to recruit US workers in order to file an H-1B petition and have it approved. 
    Even for H-1B dependent or "willful violator" employers, who are required to recruit US workers, there are few, if any, rules specifying what kind of H-1B recruitment activities are required, or requiring the employer to document those activities. Again, this is in sharp contrast to the complicated and onerous requirements for permament (green card) labor certification. It is important not to confuse between the two.
    Myth Number Three: An H-1B Job Must Be Full Time
    Fact: Part time jobs are also acceptable for H-1B employment. The salary for all H-1B jobs must be at least equal to the "prevailing wage" as determined by various acceptable US Labor Department methods, but the prevailing wage can be determined on an hourly basis, not only an annual one.
    An H-1B petition approval or visa based on part time employment is just as valid as one based on full time employment, as long as the employee works only for the number of hours per week stated in the H-1B petition.
    I will discuss some other common myths about the often misunderstood H-1B specialty worker progam in future comments.
  2. Bloggings: Is it Still Just a Little Too Early for Euphoria About Immigration Reform? By Roger Algase

    It seems that every time the "Gang of Eight" Senators from both parties go into a closed room, there is a rash of articles in the media saying that Immigration Reform is a Done Deal. However, when one looks at the details of these stories, it is hard to find anything new.
    To the contrary, the same tired old arguments about how long unauthorized immigrants would have to wait in legal limbo before even becoming eligible for green cards (not citizenship - there seems to be no agreement yet on whether this would happen at all), and whether there should be an enforcement "trigger" before any such immigrant could become eligible for a green card seem to be going on without end.
    Nor are we hearing anything new about how long the "line" of people waiting for green cards would be. The latest estimates appear to be about 10 years.
    The only tangible result of last November's election seems to have been that instead of debating whether some 11 million unauthorized immigrants should be given relief from deportation at all, which was the issue that killed reform in 2007, the debate now is about what to do after giving them at least provisional relief from deportation.
    As my colleague Matt Kolken has pointed out, this is without doubt a sign of progress. Any arrangement that allows someone who would otherwise be facing deportation to stay and work in the US instead of being locked up and sent home is a major benefit. There would be plenty of time to worry about green cards and citizenship later on - perhaps decades later on. 
    But can't America do better than this? Did 71 per cent of Latino voters chose to create a long term, or even permanent, underclass of minority immigrants last November? Aren't elections supposed to have consequences? Wasn't the 2012 election a resounding vote in favor of allowing 11 million unauthorized immigrants a chance to become full members of American society? 
    How many of that 71 percent of Latino voters who went to the ballot box (despite desperate attempts in some Republican-controlled states to stop them from voting) opted for more immigration enforcement?
    According to the January 7 New York Times, the federal government (pre-sequester, at least) was already spending to the tune of $18 billion a year on immigration enforcement, more than it spends on all other law enforcement agencies combined. How much more money do we need to throw into the abyss?
    Are "enforcement" and "border security" anything more than code words for the anti-immigrant right which wants to keep America as white as possible for as long as possible, and denies the reality of demographic change (just as many right wing radicals deny climate change)?
    But it is not only the fruitless exercise in deja vu all over again (to quote Yogi Berra) about "trading off" legalization for more enforcement that is discouraging about about the current immigration reform negotiations. A March 11 article in Politico, Gang of Eight: No pathway agreement yet quotes Gang of Eight member Senator Lindsay Graham (R. SC) as follows:
    "I'm not going to do a pathway to citizenship unless we get the language on border security and future flow - access to workers in the future to replace a family based immigration system with a merit-based immigration system. But I think that there's a general consensus that a pathway to citizenship is obviously going to be part of the bill." (Italics added.)
    The last sentence of this quote, is, obviously, a way of saying adios to Jeb Bush, whose debates with himself about the pathway may soon fall into the dustbin of history, along with any remaining presidential hopes he may still have had.
    But what about "replacing" the family based immigration system (translation - Latino, Caribbean and African immigrants) with more "merit based" (code word: white and Asian) immigrants? Is this anything other than another sop to the right wing lobby which wants to stop "chain immigration" from Central and Latin America?
    In 2007, the final bill that failed to pass in the Senate also would have drastically cut family immigration quotas, as well as imposing an elitist point system on employment based immigration. We need real reform this time, not more attempts at sabotage.


     
  3. Bloggings: VIOLENCE AGAINST WOMEN ACT (VAWA) REAUTHORIZED BUT THE DEBATE OVER IMMIGRATION REFORM AND SAME SEX MARRIAGE IS FAR FROM OVER, by: Danielle L. C. Beach-Oswald



    MAR. 8 - The Violence Against Women Act (VAWA), drafted by then Senator Joe Biden with Senator Orrin Hatch (R., Utah) passed last Thursday in Congress following a 2012 stalemate on reauthorization.  Although focused on domestic violence, VAWA will likely spark further debates on same sex marriage and immigration reform.
    Three main provisions at issue were domestic violence on tribal lands, protection extended to LGBTQ abuse victims, and providing temporary visas to undocumented battered women.
    There is currently a gap between federal law and Indian law which VAWA hopes to bridge.  Namely, prior to the reauthorization, a Native woman facing domestic violence by a non-Native man, had no remedy against him since Indian law only carried jurisdiction over Indian men in domestic violence cases.  However, the new VAWA provisions implement concurrent jurisdiction.
    According to the National Task Force to End Sexual and Domestic Violence Against Women, Tribal courts will now have jurisdiction over non-Indian defendants with "sufficient ties to the Indian tribe."  This means that if the victim of domestic violence resides on Indian land, works for the Indian country, or is the spouse or intimate partner of an Indian, that tribe has jurisdiction to prosecute domestic and dating violence.
    The second issue which VAWA faced in Congress is the provision extending protection to LGBTQ abuse victims.  As the previous Act stipulated, VAWA was intended to protect women, and opponents contended that by stretching VAWA to include the LGBTQ community, already vulnerable shelters working on shoestring budgets open themselves up to litigation and the government to further debate on same-sex issues. 
    Something is to be said for broadening definitions to reach across and protect others that were not within VAWA as it stood previously.  True, VAWA was intended to protect women against abuse, but what of a gay man abused by his partner and shows up at the door of a women's shelter rather than a men's shelter where he feels unsafe (and rightly so after a violent experience with a man) invoking the protection of VAWA?  Or a woman in an ongoing emotionally abusive relationship that wants justice as per the new definition of abuse?  Or as the ACLU initially pointed out, what of harsh sentences, including mandatory HIV testing of men charged, but not convicted, under the Act?
    These were expected to be a major issue of opposition for Conservatives who opposed VAWA in 2012.  Surprisingly, VAWA passed despite Conservative opposition in the run up to the upcoming seminal same sex Supreme Court case on the Defense of Marriage Act (DOMA).
    "Today is about all the Americans who face discrimination based on sexual orientation and gender identity when they seek help," President Obama said to a cheering crowd at the signing.
    It's hard to say whether this will impact the way that Americans view sexual identity and same sex marriage - but there's no denying the present shift in US opinion - or perhaps the present shift in US political opinion surrounding sexuality.
    The issue of immigration however, seems much more layered and multifaceted in comparison.  Not only dealing with the issue of violence against undocumented women, but the immigration debate, including accountability of employers, employment exploitation, and sexual exploitation.
    On the one hand, you have a situation where women are not legally allowed to be here in the first place - thus flouting US law.  On the other hand, the injustices of ongoing abuse arguably outweigh her legal status to reside and work here.
    Although VAWA won't be able to please both sides of this heated debate, as with any legislation, it needs to cater to the evolution of an ever-changing society while still within Constitutional bounds.
    "Today's signing of the Violence Against Women Act reauthorization into law gives women and all victims of domestic violence across America the peace of mind that their government will not abandon them in their time of need," said one of the original authors of the bill, Rep. Louise Slaughter (D., NY).
    However, one can't deny how contradictory the Violence Against Women Act affords umbrella protections to both marginalized men and women, but fails to recognize these individuals and families under the color of law.  LGBTQ couples are protected from violence even though federal law fails to recognize their relationships, and illegal immigrants can in theory voice their victimization from abusers, yet continue to be rounded up and ripped from their families for crossing the wrong border at the wrong time.  Whether Congress intended to lay the foundations for support of immigration reform and same sex marriage or not, it seems that VAWA may be the gateway to both.
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  4. Bloggings: Bill Clinton Calls For Overturning DOMA. What About IIRIRA? By Roger Algase

    In a March 7 Washington Post oped, former President Bill Clinton called on the US Supreme Court to declare the Defense of Marriage Act (DOMA), which bars same sex spouses from receiving federal benefits (including green cards) available to spouses in opposite sex marriages, unconstitutional. Clinton said that 1996, when he signed DOMA, "was a very different time". He also stated:
    "On March 27, DOMA will come before the Supreme Court, and the justices must decide whether it is consistent with the principles of a nation that honors freedom, equality and justice above all, and is therefore constitutional. As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact, incompatible with our Constitution."
    DOMA is not the only law that President Clinton signed in 1996 that adversely affects the immigration rights of many people. In that same year, he also signed IIRIRA, the so-called Illegal Immigration Reform and Immigrant Responsibility Act, which has denied the same rights of freedom, equality and justice to tens or hundreds of thousands, if not millions, of immigrants and would be immigrants over the past 16 years (after taking effect in 1997).
    As mentioned in another one ot this writer's recent comments, IIRIRA, among other things, provides for the mandatory deportation of lawful permanent residents for many minor crimes labeled as "aggravated felonies" under the immigration laws, even if they are considered low level misdemeanors in the state where the person is convicted.
    I know personally of one such case, in which a long standing green card holder, who had a successful professional practice and had never had any other problems with the law, was deported under IIRIRA because of an incident  which resulted in his having to pay a $100 fine, without any jail sentence.
    How many other thousands of otherwise law abiding immigrants, living in the US legally for many years, have also been caught up in the maze of this draconian provision and been forced back to their countries of origin, never to return, for minor offenses which would only earn American citizens a slap on the wrist at the most?
    And what about IIRIRA's draconian "unlawful presence" bars, and its court stripping provisions that make it difficult or impossible to challenge arbitrary decisions by immigration officers? If America has changed in its attitudes toward same sex relationships since 1996, as it certainly has, has it not also changed demographically? Who could have imagined in 1996 that the US would have an African-American president and that presidential elections would be determined by the Latino vote less than two decades later?
    To put it another way, hate against minorities, whether with respect to sexual orientation or with respect to race, was a more "acceptable" part of America's political culture in 1996 than it is now. This is why both DOMA and IIRIRA were passed and signed that year. As Bill Clinton states, there is no longer any place for DOMA in 21st century America. The same is true of IIRIRA.
  5. Bloggings: Did Jeb Bush Fall Into An Immigration Sinkhole? Or Did He Let The Cat Out Of The Bag? by Roger Algase

    Last Thursday, the entire nation was shocked by the horrifying story of an innocent 37 year old man, Jeff Bush, whose bedroom in his home near Tampa, Florida was suddenly swallowed up in a huge sinkhole that has, presumably, now become his grave. All of our hearts go out to Mr. Bush's family for this terrible loss. 
    For those of us who may be philosophically inclined. this awful event is a sobering reminder of the unfairness and capriciousness of life. Why did something so devastating happen to a man who, so far as we know, had never hurt a single person in his short lifetime on this planet? But I leave it to the philosophers to sort out the deeper meaning of this disaster.
    There is, however, another, much better known, Bush, namely Jeb Bush, the former governor of Florida, who may have fallen into a political sinkhole of his own making. This Mr. Bush has also never hurt anyone in his life (except, in the opinion of many, allegedly having helped steal the 2000 election in Florida for his brother, George W. Bush, leading to the latter's having fallen into another alleged sinkhole known as the Iraq war).
    The political sinkhole that Jeb Bush may have fallen into might not be as wide or deep as the sinkhole of electrified border fences which instantly swallowed the Republican primary candidacy of Herman Cain last year. Nor, arguably, is it as dangerous as the sinkhole of "self-deportation" which played such a large role in burying Mitt Romney's presidential hopes last November. But in one way, Jeb Bush's sinkhole might be even more dangerous for the entire Republican party.
    Specifically, Jeb Bush has just published a book in which he stated that while he supports legalization for up to 11 million unauthorized immigrants, they should not become eligible for US citizenship in the future. In other words, America should have a permanent, mainly Latino, underclass.
    This book, which appears to contradict previous statements that Jeb Bush has made supporting an eventual "pathway to citizenship" for unauthorized immigrants, immediately stirred up outrage and concern among other Republicans. Two articles in the Washington Post sum this up quite well. Both can be found at www.washingtonpost.com/blogs/
    The first, dated March 5, by Chris Cillizza, entitled: What's Jeb Bush up to? suggests that Bush may be positioning himself for a presidential run in 2016 by trying to present himself on immigration in a way that contrasts with another Florida Republican, Senator Marco Rubio, who has been out front on immigration reform and who supports the "pathway to citizenship". 
    If so, Bush's strategy has clearly backfired, as conservative columnist Jennifer Rubin writes in her March 5, Washington Post article: Jeb Bush baffles immigration reform advocates:
    "Bush's reversal created headaches for Republicans in the Gang of 8 and other reformers who have gone out on a limb."
    She also writes:
    "It is not clear whether he intended to throw a monkey wrench into the process or whether it will have a disruptive effect."
    And in an updated column, written after Jeb Bush hastily backtracked and announced that he does in fact support a pathway to citizenship after all, Rubin got the point across loudly and clearly in the title of her post: Jeb Bush tries to mop up his mess.
    Republican Senator Lindsey Graham (SC), a prominent member of the Gang of 8, and other Republican politicians, also lost no time in expressing their disagreement with Bush's initial position against the Pathway.
    Why are other Republicans so horrified by Bush's comment? Are they really all so eager for 11 million mainly Latino unauthorized immigrants, who are generally considered to favor the Democrats, to become US citizens and start voting? Or is there a different strategy at work?
    If the Republicans agree on anything, it is that the pathway, not only to citizenship, but even to a green card with its lesser privileges, should be contingent on the Mexican border being certified as "secure". When will Republicans agree that this has actually happened? The answer is never. Just ask Arizona Governor Jan Brewer and Maricopa County Sheriff Joe Arpaio.
    Therefore, the basic Republican immigration reform strategy is clear: Pretend to support a pathway to citizenship, but make it conditional on an event which will never take place.
    This insistence could derail any kind of bipartisan reform agreement  If Jeb Bush almost fell into an immigration sinkhole, it may be because he let the cat of basic opposition to a pathway to citizenship out of the Republican bag. 


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