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The Board of Alien Labor Certification Appeals (“BALCA”) recently issued an en banc decision that discussed whether an employer must include its name on the notice of filing. In Matter of Tera Technologies, Inc. and Matter of USA Wool, Inc., BALCA considered two cases where employers failed to include their corporate names. Both cases were denied by the Certifying Officer. In response to the denial, one employer argued that the omission of its name was harmless because the notice of filing stated “our company,” and any “interested persons would have been aware that ‘our company’ referred to [the employer] because the notice of filing was posted on the company’s premises.” The en banc panel reviewed prior case law and determined that the “vast majority of BALCA panel decisions have affirmed the denial of certification if the petitioning employer’s notice of filing did not include the name of the employer.” This panel stated that the PERM regulations require strict adherence to the regulatory provisions. Consequently, BALCA found that the “clarity of [the requirement of including the employer’s name on the notice of filing] and the ease with which an employer should be able to comply with this requirement belie any suggestion that strict enforcement of this requirement offends fundamental fairness or procedural due process.” As stated in prior blog posts, the PERM process is exacting and BALCA is very unforgiving of errors. The Hammond Law Group is always happy to assist employers with ensuring that all requirements set out in the PERM regulations are met. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/.
The Guardian reports that organizers of an anti-immigrant protest intended to shut down 17 border crossing points in four states have cancelled their "event" because of alleged death threats from Mexican drug cartels. See Immigration protest cancelled over 'death threats from Mexican cartels' , September 20.
The Guardian reports that conservative activists had planned to protest against illegal immigration and against President Obama's immigration policies by using vehicles as barricades to shut down the border crossings.
A similar protest was cancelled in August, allegedly for the same reason according The Guardian.
Of course, no drug cartel should ever have the power to stop Americans from exercising their rights to free speech and to peaceful expression of their opinions, even those consisting of anti-immigrant prejudice.
But anti-immigrant activists might do well to remember that it is exactly this same tolerance for differing opinions, ethnicities, cultures and religions that is built into the foundations of our laws and our Constitution which makes America such a magnet for people from all over the world. Without this acceptance of diversity, which is just as fundamental as the right to free speech, America would not be America.
From The Guardian's report, it is also by no means clear that the proposed demonstrations would have been legal in any event, as they would have apparently prevented federal immigration inspection officers from carrying out their duties, including admitting US citizens and other people who may have had the legal right to cross the border into the US.
Updated 09-21-2014 at 01:34 PM by ImmigrationLawBlogs
The United States is not the only country in the world which has to deal with a desperate humanitarian crisis at its borders.
The Huffington World Post reports (Why Thousands of Refugees Have Drowned Trying to Get to Europe This Year, September 20):
"Tens of thousands attempt the perilous journey across the Mediterranean from North Africa to Europe each year. Paying smugglers small fortunes to be transported in what are often ramshackle boats, they hope to escape war or poor economic conditions and settle in the European Union. Many never make it across. This year alone, nearly 3,000 people are believed to have died while trying to reach Southern Europe."
The article quotes Michel Gabaudan, president of Refugees International, as follows:
"There's a very steep increase in the number of people crossing from the North African coast toward Europe. About 60,000 people crossed last year. Today, in mid-September, we are at 130,000, more than twice as much. There's also been a dramatic increase in the number of people dying at sea. We estimate about 700 people died last year and now the figures are anything between 2,200 and 2,500 without counting last week's deaths."
Gabaudan also explains why many Syrian refugees in Egypt, where they are no longer welcome, are seeking to enter Europe:
"Many of these families have relatives in Europe and they're becoming desperate about their future. We warned them that the trip they were about to undertake wasn't light, their women were at high risk of being abused by traffickers, they could drown and they would certainly not receive an open-armed welcome in Europe. Why would they want to take this risk? They told us their economies are gone; they don't have jobs; they don't have access to services; their children are not going to school. '
It's dramatic that people are reaching that level of desperation."
Gabaudan continues by saying that there is more that European countries could do to help the refugees it they wanted to:
"The High Commissioner for Refugees has suggested several measures to the international community that could reduce the flow of migrants - people recognized as refugees should be given better chances of resettlement in European countries, many people could qualify for humanitarian visas...A lot of measures would give refugees a little bit more hope and reduce the movement. If you reduce the movement, you'll have less people die."
"Right now, in Lebanon, one person in four is a Syrian refugee. It's one in six in Jordan. In Iraqi Kurdistan, one in four are people displaced by the current violence. In our countries, the presence of 40,000 kids at the border becomes national drama and is used politically. The sacrifice we are making is nothing compared to what other countries are making and we seem to ignore that." (Emphasis added.)
Countries on both sides of the Atlantic need to give more priority to legal measures protecting the human rights of refugees, instead of closing their borders against people who are desperately trying to escape intolerable conditions in places such as the Middle East and Central America.
Updated 09-21-2014 at 11:20 AM by ImmigrationLawBlogs
The following comment has been revised as of September 9, 7:35 am:
On September 8, Barbara Weinstein, Director of the Commission on Social Action of Reform Judaism, issued the following statement, which has been circulated by the Washington-based Religious Action Center for Reform Judaism, concerning President Obama's decision to postpone executive action on immigration reform:
"We are disappointed by President Obama's decision to delay executive action on immigration reform until later this year. Because of Congress failure to pass comprehensive immigration reform, family members remain separated, employers continue to face challenges meeting their needs, our nation's security is weakened, and undocumented young people who wish to contribute to the only nation they know as home - and their families- live with uncertainty about their future. The time for action on immigration reform is long past due."
The Religious Action Center of Reform Judaism is the Washington office of the Union for Reform Judaism, which states that it includes nearly 900 congregations across North America encompassing 1.3 million Reform Jews, and the Central Conference of American Rabbis, whose membership includes more than 2,000 Reform rabbis.
The willingness of religious leaders of different faiths to speak out in favor of immigration reform underscores the fact that, perhaps more than any other area of law, immigration law is concerned with profound spiritual and moral questions of tolerance, basic humanity and acceptance of people from diverse ethnic and religious backgrounds which go to the very roots of America's values as a nation.
Jewish religious leaders are far from being the only ones who are concerned about the humanitarian and moral consequences of America's failure to implement immigration reform, whether through legislative or through executive action (both of which have been recognized by the courts as broad in scope and largely immune from judicial interference for well over a century).
Back in February, 2014 a group of religious leaders in Chicago representing the Jewish, Muslim, Catholic and Protestant faiths issued a joint statement in favor of immigration reform, including the following:
"Few issues in our nation's history have brought together such diverse faith groups. but Muslim, Jewish and Christian leaders have united their voices across the nation in support of reform. After all, immigrants have played a vital role on the histories of our religions, and each of our faiths calls on us to welcome foreigners and treat strangers with love, compassion and justice.
We also share a belief in the God-given dignity of each individual, and we want our country's immigration laws and policies to reflect that belief. Reforming our broken, outdated immigration system will help keep families united, contribute to the security of our communities, benefit our economy and demonstrate our compassion." (Emphasis added.)
The final part of the statement includes the following sentence:
"And we encourage religious leaders and people of faith to pray and advocate that our elected representatives will do what is best not just for an individual political party, but for our country and all of the people that call it home."
The above statement was made in reaction to the announcement by Republican Congressional leaders last February that the GOP would not move ahead with legislative action on immigration reform this year. But it applies equally well to President Obama's current refusal to use his sweeping powers of administrative action in immigration which the US Supreme Court reaffirmed as recently as in its decision in Arizona v. United States 567 U.S. __ (2012).
This statement was issued by Rabbi Shoshanah Conover, Temple Sholom of Chicago, Pastor Wilfredo De Jesus, New Life Covenant Church, Francis Cardinal George, OMI, Archbishop of Chicago, Bishop Jeffrey Lee, Episcopal Diocese of Chicago, Imam Matthew Ramadan, Council of Islamic Organizations of Greater Chicago, and Very Rev. Donald Senior, Council of Religious Leaders of Metropolitan Chicago on February 19, 2014.
Roger Algase is a graduate of Harvard College and Harvard Law School who has been practicing employment and family immigration law for more than 30 years. His practice focuses on H-1B and O-1 work visas, and green cards through labor certification, extraordinary ability and opposite or same sex marriage, as well as other immigration and citizenship applications. His email is email@example.com
Updated 09-20-2014 at 06:38 PM by ImmigrationLawBlogs
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision that discussed the content requirements of advertisements that are placed as part of the additional recruitment steps in labor certification. In Matter of Symantec Corporation, the employer chose to place an advertisement on a job search website as one of the three additional recruitment steps that are required in the labor certification process for professional occupations. The Certifying Officer (“CO”) denied the case on the basis that this advertisement included a travel requirement that was not listed on the ETA 9089. Specifically, the advertisement stated that the individual filling the role “may be required to work . . . at various unanticipated sites throughout the United States.” The CO stated that this violated provisions of the federal regulations that discuss the content requirements for the mandatory recruitment steps and referenced Credit Suisse Securities (USA) LLC for support of the idea that the advertising content requirements of the additional recruitment steps must match those that are demanded of the mandatory recruitment steps. After receiving a request from the CO, an en banc panel of BALCA reviewed the case and determined that the content requirements for the mandatory recruitment steps are not imposed on the additional recruitment steps. Specifically, this en banc panel reviewed the relevant regulations and found that they were silent on specific content requirements for the additional recruitment steps. Consequently, it found that the Department of Labor (“DOL”) “did not intend to impose these content requirements on all types of advertisements.” Instead, employers must only advertise “the occupation involved in the application” in the additional recruitment steps, not the “job opportunity.” Finally, BALCA reminded the DOL that a “CO may not deny a [PERM application] based on a petitioning employer’s failure to comply with an unwritten requirement that has no basis in the clear text of the regulations.” The Hammond Law Group applauds BALCA for clarifying the advertisement content requirements of the additional recruitment steps and for this well-reasoned decision. This post originally appeared on HLG's Views blog by Cadence Moore, http://www.hammondlawgroup.com/blog/