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  1. Bloggings: Obama's immigration speech was a farce - immigration reform will come when the Republicans agree to higher taxes on the wealthy. Roger Algase

    President Obama's May 10 speech in El Paso was a mixture of platitudes and farce - except for the hundreds of thousands of immigrants, many of them with American spouses or children, who have already been deported or are facing deportation for nothing more than the "crime" of seeking a better life in America and trying to feed their families, and the many tens of thousands more who cannot get visas or petition approvals because of their even more serious "crime" of being educated, skilled professional workers with technical or business skills that our economy urgently needs to remain competitive and grow out of recession. For these immigrants or would-be immigrants, Obama's speech was closer to a tragedy. 
    If there is any theme at all that can be gleaned from Obama's confused mixture of empty slogans about America's immigrant heritage, which his administration is doing so much to destroy, and self-aggrandizing, chest slapping braggadocio about immigration enforcement, i.e. deporting  more than 400,000 people and throwing away billions of dollars on useless border fences, it is that he is hoping to strike a deal on immigration reform with the Republicans.
    How can  someone as intelligent as Obama, a former editor of the Harvard Law Review and Constitutional law professor, possibly believe such nonsense? The Republicans depend on two groups of core supporters, without which they would not exist. One is the ultra rich, who provide their essential financing. Hence, no tax increases - at least not for the wealthiest Americans and largest corporations. The other group, which the Republicans depend on for their populist appeal, is made up of the anti-immigrant bigots and white supremacists. For this second component of the Republican base, "amnesty", is as much anathema as a more equitable sharing of the tax burden is to the first component. Whatever "amnesty" is called, whatever conditions are imposed, even if unauthorized immigrants have to swim through a moat full of alligators in order to obtain some form of legalization  (to borrow the president's phrase) the Republicans will never agree.
    "No amnesty for illegals" is just as much the Republicans' line in the sand on immigration as no tax increases for the rich is on the budget.  We saw this in the Senate in 2007 and it is even more true now. Therefore talk about how much Obama would just simply love to be more immigrant friendly, but, alas, he cannot do this right now, but not to worry, he is working hard to bring those obstinate Republicans on board, is nothing but a cruel hoax and a cynical charade. Without some form of "amnesty", "legalization", or whatever else one wants to call it, immigration reform cannot even be imagined, let alone actually come into existence.  No one can argue with that part of Obama's speech.
    But even Obama's mockery of the intelligence of American voters by relying on the chimera of Republican agreement on immigration reform pales before his protestations that he has no power to change course on his destructive "enforcement only" administrative policies. Obama, the President of the United States, has no administrative power to grant relief from deportation or to approve more visas or petitions, when the entire immigration system is based on administrative policy-setting and regulation? He might just as well have argued that he had no power to get Bin Laden. Is not the president's so far sucessful lawsuit against Arizona based entirely on the theory that the federal government has broad and exclusive discretionary powers to determine how to enforce the immigration laws?
    But not to worry. Obama has promised to have a talk with DHS Secretary Janet Napolitano, who seems to think that "immigration" and "deportation" mean the same thing.  But Obama does not need to talk to Janet Napolitano himself. He should hire Donald Trump to do so, and the discussion should consist of only two words. Then Latinos, Asians and other minority US voters in immigrant communities might have some reason to think about supporting Obama for re-election next year. Right now they have none.
  2. Bloggings: Obama finally got Osama. Does this mean anything for immigration? Roger Algase

    As ID points out in its May 2 editorial, the name of Osama bin Laden, among many other things, will forever be associated with the beginning of a decade of legal hardship, bordering on outright persecution, for millions of foreign born people in America. But did the September 11, 2001 terrorist attacks (which, according to most estimates, killed some 500 immigrants at the World Trade Center alone) suddenly change a country which once welcomed immigrants into one which now regards them with hostility and suspicion? This question can be answered in one word: IIRIRA.
    As everyone connected with immigration remembers, or should remember, IIRIRA, which among many other provisions that are unfriendly to immigrants, made the phrases "unlawful presence" and "aggravated felony" dreaded household words, was passed in late September, 1996, almost exactly five years before the 9/11 attacks. Certainly, at that time the possibility of domestic terror attacks was an issue, but only one of many, and no one seriously argued that this was the main reason for passing IIRIRA. This momentous anti-immigrant law was rushed through a Republican Congress in the dead of night without any discussion or debate, and was attached to a "must pass" military appropriations bill, only a little over a month before that year's presidential election. President Clinton had no choice except to sign it, or at least so it seemed.
    IIRIRA was also not a reaction to any economic crisis. The economy had emerged from recession and was doing relatively well at that time. This law was instead motivated by a "backlash", as numerous media reports explained, against 30 years of immigration from every part of the world, not just northern and western Europe.  The mantra among anti-immigrant demagogues in the 1990's was not "terror" or "jobs", but "culture", which is nothing but a euphemism for race.  
    There was widespread dissatisfaction in some quarters with the progress that America had made in allowing immigrants from East Asia, South Asia, the Middle East and Africa to become part of our society ever since the restrictive quotas against people from those areas enacted in 1924 were abolished in 1965. There was also, of course, intense feeling against the rapidly growing number of immigrants from Mexico and the rest of  Latin America, even though the Western Hemisphere had not been affected by the 1924 quota restrictions.  
    On September 11, 2001,  Osama Bin Laden gave the anti-immigrant restrictionists the pretext they had been looking for.  For the next six or or seven years. the "War on Terror" became the excuse for every imaginable piece of anti-immigrant legislation or activity at every level of government, from attempts to impose English only laws and restrictions against drivers licenses for unauthorized immigrants, to increased workplace raids and an epidemic, which has now turned into a pandemic,  of RFE's and denial notices for qualified people seeking legal visas or green cards.
    Now that, to paraphrase President Obama, justice has finally caught up with Bin Laden, the media, which initally accurately reported that his demise was mainly symbolic, have since gone into a frenzy of triumphalism by writing obituaries not only for Bin Laden, but of for the entire "War on Terror".  But for immigrants, American restrictionism has moved on. Since 2008, if not earlier, the anti-immigrant mantra has beeen not terror, but jobs.  If and when the economy recovers it will undoubtedly be something else.  A Polish immigrant once told me that there was a saying in his country: "someone who wants to beat a dog can always find a stick".
  3. President Obama releases his long form birth certificate: an additional thought on the birther movement and immigration by Roger Algase

    Further to my post in the April 26 ID, it has now been reported (on April 27) that President Obama has released his long form birth certificate, putting an end to the birther madness once and for all. Why did he not do this much earlier, so his opponents on the far right lunatic fringe would have been forced to look for some other absurd issue to raise against him? Is he not at least partly responsible for giving ammunition to people who refuse to accept the reality of an African-American president?
    In the same way, just as the president had the power to release his long form birth certificate all along, he also has the power to release hundreds of thousands of unauthorized immigrants who are not violent criminals or terrorists and pose no danger to this country from the threat of deportation, pending a complete overhaul of our immigration system to bring it more in line with today's demographic and economic realities. He also has the power to release tens of thousands of skilled and educated immigrants, who have the most to offer this country, from the hardship and anxiety of unjustified and politically motivated petition or visa denials, instead of regarding them with hostility and suspicion as his administration is now doing. 
    Granted, immigration issues cannot be as easily resolved as the fake birther one. But by refusing to use the administrative powers that he already has to relieve more immigrants from the effects of our harsh and often irrational laws, President Obama is only making the situation worse.
  4. Occupational Outlook Handbook and the Term of “Specialty Occupation” in context of H-1B filings

    Whenever you hear about H-1B visa, you hear the term "specialty occupation".
    So, what does "specialty occupation" mean? Why is it important to prove that the proposed position is a "specialty occupation" in order to qualify for the H-1B? What role does the Occupational Outlook Handbook (OOH) published by the Department of Labor play in USCIS' interpretation of "specialty occupation"?
    This article will address these questions and other common issues that H-1B candidates and practicing immigration attorneys face in context of H-1B filings.
    In order to qualify for an H-1B, you have to show that the proposed position is a "specialty occupation". The Immigration and Nationality Act defines "specialty occupation" as "an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States."
    Proving that the proposed position is a "specialty occupation" is not an easy task. There is no defined list of occupations that are definitely considered to be "specialty occupations" by USCIS for the purpose of H-1B petitions. USCIS does not use a title, by itself, when determining whether a particular job qualifies as a specialty occupation. The specific duties of the offered position combined with the nature of the petitioner's business are factors that USCIS considers.
    When determining whether the proposed position qualifies as a "specialty occupation", it is critical to address each of the four-prong definition that can be found in the Code of Federal Regulations (CFR).
    (1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
    (2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
    (3) The employer normally requires a degree or its equivalent for the position; or
    (4) The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
    Even though the language of the regulations suggests that it is enough to satisfy any one of the prongs, it is advisable to address each of them and to submit proof for as many elements as possible with the initial H-1B filing to avoid future RFEs.
    This article is going to concentrate on the first prong of the above-mentioned criteria.
    What is the main reference publication that the Service turns to in its determination of a "specialty occupation"?
    There are a number of publications that could potentially be used for the reference information on the industry educational requirements for a particular position. Among them are OOH and O-NET guides published by the Department of Labor.
    Even though O-NET has an SVP rating and statistics on the industry's educational requirements for various occupations, AAO has held that it does not consider O-NET to be a persuasive source of information as to whether a job requires the attainment of a baccalaureate or higher degree in a specific specialty. USCIS suggests that O-NET provides only general information regarding the tasks and work activities associated with a particular occupation, as well as the education, training, and experience required to perform the duties of that occupation.
    USCIS does not consider O-NET in its determination whether a particular position is a "specialty occupation" because, as the Service states, an SVP rating is meant to indicate only the total number of years of vocational preparation required for a particular occupation. It does not describe how those years are to be divided among training, formal education, and experience and it does not specify the particular type of degree, if any, that a position would require.
    Instead, USCIS turns to the Occupational Outlook Handbook (OOH), a publication of the U.S. Department of Labor for guidance on the minimum educational requirements for entry into the occupation. The OOH has information on management, professional, service, sales, construction, production, administrative, and other occupations.
    It is a regular USCIS practice to heavily rely on OOH in its determination whether the proposed position qualifies as a specialty occupation. Unfortunately, at times, USCIS disregards important evidence showing that the position satisfies other criteria that otherwise would qualify the position as a "specialty occupation".
    In any H-1B case, it is always advisable to check the OOH first. If a particular job is not listed, it is recommended to seek the closest related occupations by searching SOC codes (Standard Occupational Classification) though O-NET. Even though it is critical for the practitioner to carefully classify uncommon positions under the appropriate SOC codes, USCIS does not rely upon the title's designation. USCIS will consider the duties of the proposed position to identify the position title.
    Is a bachelor's degree a minimum requirement for entry into the occupation?
    One of the tricky issues in H-1B practice is that USCIS relies on the explicit language of the OOH. Often, however, the OOH does not use imperative language in describing whether a bachelor's degree is required for certain occupations. Rather, the OOH entry will indicate that "some" or "many" employers "prefer" a bachelor's degree in a variety of fields. Such language leads USCIS to assume that the occupation does not require a bachelor's degree. It is important for an immigration attorney to carefully analyze the language of the OOH before proceeding with a particular position and consider other criteria that the proffered position can meet.
    Is there a requirement of a degree in a specific specialty directly related to the job duties?
    Another issue that is important to note is that USCIS requires the minimum educational requirement to be a bachelor's degree in a specific specialty. In other words, the occupation does not only have to require at least a baccalaureate level of education, but it also has to require the degree to be in a specific specialty directly related to the job duties.
    Therefore, if the OOH states that a bachelor's degree is required, but does not reference specific fields of concentration for such a degree, the position does not qualify as a "specialty occupation", according to USCIS.
    Often, USCIS notes in the RFE that, according to the OOH, the occupation does not require a baccalaureate level of education in a specific specialty as a normal minimum for entry into the occupation and that there is no clear standard for how one prepares for a career, and that the requirements appear to vary by employer as to what course of study might be appropriate or preferred. As a result, USCIS suggests that the proffered position cannot be considered to have met the criterion. This is an example of the RFE for a Budget Analyst position.
    The Service suggests that any occupation that allows for more than one degree specialty will not satisfy the requirements of a specialty occupation. However, it is impossible to allocate a single degree major that all professionals in the particular position, e.g. Budget Analysts, should have. This is because the requirements of a particular job vary depending on the nature of the duties, and its specific emphasis on business management, accounting, etc. The OOH provides a range of specific specialties that Budget Analysts can be trained in. For the position of Budget Analyst, the OOH suggests that employers usually require a bachelor's degree in one of many areas, including accounting, finance, business, public administration, economics, statistics, political science, or sociology.
    Interestingly, for some occupations that the Service recognizes as "specialty occupations", the OOH also provides for a range of acceptable degrees. For example, Software Engineer has been continuously recognized by USCIS as a specialty occupation even though the position may be filled by professionals holding various but similar degrees in computer science, software engineering, physics, computer information systems, information technology, or mathematics.
    Any inconsistency in USCIS' treatment of particular positions should be carefully reviewed by the attorney and should be addressed appropriately.
    Is a general degree, e.g. in business administration, considered a degree in a specific specialty related to the job duties of the proposed position?
    USCIS does not favor general degrees, such as business administration or management degrees. Therefore, positions normally staffed by persons with a degree in a general field may be challenged by USCIS.
    The required degree must be in a specialty field related to the position to be filled. Such interpretation is due to the fact that curriculums for degrees in specific fields, such as biology or computer science, provide the students with the requisite knowledge and expertise necessary to perform the particular tasks of the proposed positions.
    In cases where a business degree is required, it is important to emphasize that the degree along with specialized experience in the field is required for entry into the particular position. For example, relevant case law points out that a position of a showroom manager is a specialty occupation, because the job required a degree in marketing or business "in addition to specialized design experience."
    It is not always possible to prove that the proposed position meets the criterion of a "specialty occupation" based on the first prong. Therefore, a counsel should submit evidence that proves other elements of the "specialty occupation" definition. If USCIS does not consider evidence that proves other prongs of the test, it is important for an immigration attorney to analyze the decision and to consider an option of filing a motion to re-open the case.
  5. Bloggings: Republicans, the birther madness and immigration, by Roger Algase

    Now that the Republicans, led by the Tea Partiers, have persuaded a large part of the mainstream media to take their attacks on unions, social security, medicare and the other gains in social progress that America has made in the past one hundred years seriously under the pretext of fiscal responsibility, while successfully exploiting anti-immigrant prejudice in a time of high unemployment, it might make sense to think that the GOP would try to take advantage of the new respectablilty it has gained for its radical right wing political and economic agenda.  This is why it seems inexplicable that the Republicans would pick this particular time to cast themselves as clowns and buffoons by raising the birther issue over President Obama's legitimacy once again.
    The birther antics of people like Donald Trump and Sarah Palin almost seem designed to mock American voters for having taken their party too seriously. But there is nothing funny in the results of a poll that Ed Schultz mentioned on MSNBC on April 21, puportedly showing that 67 per cent of Republican voters are either not sure that President Obama was born in the US or firmly believe that he was not. If that poll is accurate, the Republicans, and the country, could be in deep trouble. Democracy itself depends on an informed public, not one that can be easily manipulated by the Big Lie into believing somethig that is patently absurd.
    This is, no doubt, why some Republicans leaders are choosing the side of sanity, at least on this issue. Governor Jan Brewer of Arizona, by vetoing a birther bill in her state, evidently realized that if she had signed it, critics would lump that law together with the state's immigration law as two examples of the Republicans' taking leave of their senses. By continuing to defend Arizona's immigration law while vetoing the birther bill, Governor Brewer is at least able to preserve her contention that the Arizona immigration law is a serious attempt to deal with an important issue, whether one agrees with the law or not. This would have been much more difficult for her if she had signed the birther bill. Some other Republicans, even extreme Tea Party radicals like Michele Bachmann, are reportedly having second thoughts about supporting the birther lunacy.
    Therefore, why are some Republicans still attempting to bring up the issue of President Obama's legitimacy, an issue which should have been stillborn? Because they cannot help themselves.  The birther controversy is about one thing and one thing only - whether a black person can be a legitimate US president.  This issue would never have arisen, much less gained so much publicity, if President Obama were white. The birther movement is nothing more than one more indication of how much at least some Republican leaders are so addicted to racist politics that they cannot change, even when the birther controversy threatens to do severe damage to their party and, in the case of Donald Trump at least, to their own personal reputations.
    It is also noteworthy that the birther issue is one that President Obama cannot resolve by his usual instinct of trying to split the difference with his opponents. Either he was born in the US or he was not - there is no middle ground. Or is there? If one looks east on a map starting from the western part of the Pacific Ocean, is not Hawaii somewhere in the broad middle between Indonesia and Kenya (give or take a few thousand miles)? The revival of the birther issue so close to next year's election also shows how slim the chances are of obtaining any Republican cooperation on immigration reform. Despite Governor Brewer's veto, birther politics and anti-immigrant politics are joined together at the hip - from the moment of birth.
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