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The Board of Alien Labor Certification Appeals (“BALCA”) recently affirmed that the content requirements that are specified in the federal regulations for newspaper advertisements in 20 C.F.R. § 656.17(f) do not pertain to state workforce agency job orders. The employer submitted a labor certification for the position of “computer software engineers, systems software” and specified in the Form 9089 that the position required five years of experience. The case was audited and denied because the job order that the employer provided stated that the position had an experience requirement of “greater than 5 years.” The employer appealed the decision and noted that the Illinois state workforce agency job order site only provided a set number of experience options that included “3-5 years” and “greater than 5 years.” The employer stated that it choose the option of “greater than five years because it was the most appropriate since ‘3-5 years’ was not an accurate reflection of tis experience requirement.” BALCA reviewed Matter of Chabad Lubavitch Center, 2011-PER-2614, and noted that the requirements of 20 C.F.R. § 656.17(f) only apply to “advertisements placed in newspapers of general circulation or in professional journals.” BALCA also found that the federal regulations that govern job orders are silent in regards to whether the content requirements of 20 C.F.R. § 656.17(f) apply to job orders, which lead it to believe that the Department of Labor “did not intend to impose these content requirements on all types of advertisements.” Many state workforce agencies provide limited options in regards what can be selected for experience requirements. This case instructs the DOL that it may not deny cases when the state workforce agency fails to allow employers to specify the exact requirements of the position. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/
While the American media continues to obsess over the latest inanities coming from the presidential campaigns, especially that of the current Republican front-runner, one of modern history's greatest moral and humanitarian catastrophes continues to play out in Europe, as UN officials estimate that another 500 refugees, mainly from Sub-Saharan Africa, died trying to reach Europe last month. See Daniel Denvir's article in salon.com - Europe is a moral wasteland (April 24)
"The tragedy won't make headlines for long, and fresh ones are sure to follow. Sub-Saharan Africans, who may represent the bulk of last week's mass drowning, never won much sympathy to begin with. Now Europe, under siege from an insurgent far right, is trying to slam its doors shut on Syrians as well...
...France has imposed a draconian and alienating state of emrgency...and Europe has cut a deal with Turkish President Recep Tayyip Erdogan, exchanging cash and political legitimacy in return for accepting refugees returned from Greece in contravention of international and European law.
Denvir's article continues:
"The accord is purportedly about safety, but the notion that refugees belong in Turkey and not Europe is simply a racist one. They are mostly Muslims like in Turkey, not Christians like in Europe. Ironically, it is Turkey's Muslim population and it terrible human rights record that have long frustrated its desired ascension to the European Union. Now, Europe has proven willing to trade quite a lot to Turkey, where the human rights situation has deteriorated in recent years, for the sake of ethno-national homogeneity."
What does this all have to do with America? Denvir states:
"The U.S., of course, has behaved even more horribly, accepting roughly total 3.100 Syrian refugees since 2011...That included just about 1.200 of the mere 10,000 refugees that President Obama had pledged to settle by this October."
"The leading Republican presidential candidate, of course, wants to bar Muslims from the country."
Daniel Denvir might well have added that this same leading Republican presidential candidate has pledged to send all Syrian refugees who are already in the US back to that war-torn country, divided between a brutal Russian-backed dictatorship and a monstrous, equally violent and inhuman (if not even more so) militant Islamist terrorist organization.
What does this say about America, a country that was founded as a refuge for people seeking a better life of freedom from persecution, based on the principle of equal opportunity for all, that this same candidate appears to have the overwhelming support of voters in his own party (if not convention delegates, who are facing death threats and intimidation unprecedented in this country's modern history if they vote according to their conscience)?
This same front-running candidate now has a serious chance of becoming America's next president and imposing authoritarian government similar to that which other extreme far right anti-immigrant leaders have brought about in Europe and elsewhere within living memory.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School who has been helping mainly skilled and professional immigrants obtain work visas and green cards for more than 35 years. Roger believes that immigration law is not only concerned with the details of applicable laws and regulations, important as these are, but with basic human rights. Roger's email address is firstname.lastname@example.org
Updated 04-25-2016 at 11:31 AM by ImmigrationLawBlogs
Recent POLITICO stories show two sides of Donald Trump's presidential campaign. One story refers to a Trump speech in which he mocked an Indian accent in describing his phone conversation with a credit card call center representative.
Is it just barely possible that this crude and offensive example of anti-Asian prejudice might provide further insight into why Trump is now promising to abolish the H-1B visa, as well green cards through labor certification, which together are the heart of America's employment-based immigration system?
The other story describes death threats being made by Trump supporters against Republican convention delegates if they do not support him. These include 4,000 to 5,000 phone calls threatening violence against the Colorado Republican chairman alone.
"in hotel hallways and across dinner tables, many party leaders attendig this week's meetings shared similar stories. One party chairman says a Trump supporter recently got in his face and promised 'bloodshed' if Trump doesn't win the GOP nomination. An Indiana delegate who criticized Trump received a note warning against 'traditional burial' that ended with 'We are watching you'."
"And also the harassers are typically anonymous, many party leaders on the receiving end of these threats hold Trump himself at least partly responsible, viewing the intimidation efforts as a natural and obvious outgrowth of the candidate's incendiary rhetoric."
And, from the same article:
"Trump's campaign has never explicitly encouraged violence. But it has promoted tactics that have contributed to the delegates' fear."
Are these unrelated reports? Or are they two sides of the same coin of anti-immigrant racism and authoritarian violence coming from the Donald J. Trump presidential campaign? And what do these and other similar news stories tell us about what America might expect from a Trump presidency?
Attorney at Law
Updated 04-23-2016 at 10:15 AM by ImmigrationLawBlogs
The Board of Alien Labor Certification Appeals (“BALCA”) recently determined that the notice of filing that must be posted before a labor certification is eligible to be filed is not required to list every job duty and requirement of a position that is being sponsored. In Matter of Eteam, Inc., the employer sponsored the position of “Programmer Analyst.” On the Form 9089, the employer specified that the position required a master’s degree in Computer Science or Engineering and one graduate course in database management and network security. This post-secondary education must have included software development using Unix and Perl. The case was audited and the employer submitted a notice of filing that did not state the education requirement or the coursework requirement of this position. The Certifying Officer denied the case on this basis. The case was appealed. BALCA reviewed a prior case, Architectural Stone Accents, Inc., which held that the federal regulations that govern notice of filings do not require every job requirement to be listed. While BALCA reiterated that notice of filings play an important role in ensuring that employees can provide information to a Certifying Officer about an employer’s application, it reiterated that the federal regulations “only require the [notice of filing] to contain information specific enough to apprise the U.S. workers of the job opportunity. The Employment and Training Administration did not write a regulation that mandates the employer list specific job requirements in a [notice of filing].” Consequently, BALCA determined that the notice of filing offered by the employer in this case was sufficiently detailed to inform U.S. workers of the job opportunity and overturned the decision. This case provides critical information about the content requirements of notice of filings. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/
Update: April 20, 10:55 am:
Readers who are interested in the following topic may also want to read my Letter to the Editor appearing in the Immigration Daily Letters section for the week April 18 - April 22.
My original post follows:
The headlines are now dominated by two stories: First there are the attempts of the Republican "establishment" (or what is left of it) to stop Donald Trump from obtaining enough delegates to clinch the GOP presidential nomination.
Second, an evenly divided Supreme Court appears to be on the way to a 4-4 tie decision in United States v. Texas that wouid leave in place a 5th Circuit US Court of Appeals decision clearing the way to, if not actually requiring, mass deportation of Latino and other minority immigrants on a scale that is totally without precedent in American history. These two news stories are not exactly unrelated.
While mass expulsion of 12 million minority men, women and children would be something new for America, it would not have been unusual for Hitler, Stalin, Mao or Pol Pot, to mention only of few of the dictators in various parts of the world who have carried this practice out in modern times.
Who filed the U.S. v, Texas lawsuit? It was not Donald Trump. It was the governors of 26 Republican-controlled states. Who are the four Republican-appointed Supreme Court Justices who, at the April 18 oral argument, appeared to be supporting the incredible contention of the 26-Republican states that the Obama administration lacks the power to stop or grant relief from mass deportation?
These 26 state governors and four Republican Supreme Court Justices are not Donald Trump's violence-prone supporters screaming racial, anti-immigrant epithets at his rallies. They represent (in most cases) the same Republican "establishment" that is now desperately trying to wrest the nomination away from Trump because, among other things, they think that his extreme anti-immigrant rhetoric, including support for mass deportation carried out by a Gestapo-like "special task force", a Berlin Wall on the the Mexican border, and barring every Muslim in the entire world from entering the US, will bring the Republican party down in flames in this fall's election.
But are not the Republican "establishment" figures who filed U.S. v. Texas at least partly responsible for creating Donald Trump, or at least paving the way for him? Is he not simply building on the foundation of animosity against Latino, Asian and black immigrants that the "mainstream" Republicans have been exploiting for at least the past two decades, ever since they rammed through IIRIRA in the middle of the night without discussion or debate just a month before the 1996 presidential election?
There is an even greater irony in the U.S. v. Texas lawsuit, as some other commentators are pointing out. In essence this lawsuit is asking the Supreme Court to determine whether all of the estimated 12 million unauthorized immigrants in the US must be deported, or whether millions of them will be allowed to stay, at least temporarily.
What happened to the "plenary power" over immigration doctrine that was developed by the courts in the late 19th century in order to uphold the Chinese exclusion laws? As is well known, this doctrine regards immigration policy as purely a matter for the "political" branches of government, namely Congress and the executive, to determine. According to this doctrine, the courts are supposed to stay out of immigration matters entirely.
Now, in U.S. v. Texas this doctrine is being turned on its head, and the federal courts are being asked to dictate immigration policy to the executive branch. Why this turnaround?
The answer is that in the late 19th and early 20th centuries, "plenary power" seemed to be the best way to keep unpopular minority immigrants out of the United States. In the changed social and political climate of early 21st Century America, having the courts control immigration enforcement instead of the executive branch appears, at least to the governors of the 26 states which brought this racially motivated lawsuit, to be the best way of accomplishing the same goal.
Attorney at Law
Member New York and New Jersey Bars
B.A. degree, Harvard College
LL.B degree (equivalent to present-day J.D degree), Harvard Law School
35+ years representing mainly skilled and professional immigration clients
email address: email@example.com
Updated 04-26-2016 at 01:10 AM by ImmigrationLawBlogs