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  1. Reform Jewish Group Condemns Obama's Delay On Immigration. By Roger Algase

    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 algaselex@gmail.com

    Updated 09-09-2014 at 08:11 AM by ImmigrationLawBlogs

  2. En Banc Panel of BALCA Reverses CO’s Denial on Advertising Content Requirements

    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/
  3. Dentists May Do Better Than Lawyers In Getting Answers From USCIS. By Roger Algase

    Update, September 2, 9:12 pm:

    I am glad to report that on September 2, I was finally able to speak with a USCIS 800 number customer service officer who was willing to fill out and transmit a request form in the case described below to the USCIS Texas Service Center relating to my request for an extension of time to answer a notice of decision. The decision in question involved reopening a previously revoked I-140 extraordinary ability petition, in order to allow the submission of more evidence of the petitioner's qualifications for EB-1 classification.

    This was good news and a great relief. As described below and in a previous post, my (self-petitioner) client was caught in a Catch-22 situation between the TSC customer service center, which insisted that the correct way to ask for an extension of time to answer was by phone to the USCIS 800 number, and the officers at the 800 line, who said that they had no authority to process such a request and that only the TSC itself could handle it.

    However my enthusiasm at finally, on my sixth try to that number (800) 375-5283, finding a USCIS 800 line customer service officer who was willing to put in a request for an extension of time to answer was somewhat dampened by the fact that the officer did not seem to have the slightest understanding of the reason for the request. Nor did he have a clue about the fact that the USCIS regulations allowed the petitioner to make the request, or what the actual status of the case was.

    Normally, I try to stay calm when speaking with USCIS officers by phone, and over three decades of immigration law practice, I have developed a certain amount of skill in doing this, but this officer was so obtuse that our discussion quickly threatened to degenerate into a shouting match.

    The officer apparently thought that the reason that I was asking for his help was because a case which had been filed more than three years ago and had been approved, reopened, revoked and then reopened again on the Service's own motion after petitioner had filed both a motion to reconsider and an appeal was "beyond the normal processing time".


    This encounter reinforced my previous impression (see below) that training in dentistry might be more useful in dealing with both the USCIS 800 customer service line and the TSC officials themselves than training in law.

    There are some exceptions to this, as I have mentioned in the past. I have found the TSC's own customer service staff members to be courteous, knowledgeable and willing to help. Unfortunately, they are not able to make decisions or take action themselves, but only to pass along requests to the TSC adjudicators or supervisors.

    Persuading these latter officials to answer a simple request for extension of time to respond to a USCIS notice in a complex case with a complex history bears a strong resemblance, as I mentioned in my original post which follows below, to pulling teeth.

    Here is my original post:

    In my August 15 post (updated on August 23), I described the difficulty and frustration involved in trying to get an answer from the USCIS Texas Service Center and the USCIS 800 number customer service center for a simple request for an extension of time to answer a decision from the TSC.

    As I described in that post, USCIS Turns Simple Request For Extension of Time Into an Epic Saga, the decision involved was based on a Service motion to reopen a TSC decision revoking an I-140 petition for EB-1 classification based on extraordinary ability. The revocation decision had raised serious issues involving fundamental fairness and due process which I have also described in previous posts.

    The willingness of the TSC to reopen the case and take another, hopefully more objective look at the facts (with a different adjudicator) was welcome and commendable. However, the normal 33-day period of time to respond to the numerous issues concerning the self-petitioner's EB-1 qualifications raised in the decision to reopen was nowhere near enough to prepare a meaningful answer.

    This was particularly true because my client (the petitioner) was out of the US for most of the month for various urgent reasons and was only able to return a few days before the deadline. It was also important to extend the deadline because of the complexity of the case, involving more than 200 pages of evidence already in the file in a case which was originally filed more than 3 years ago and had been been RFE'd, approved, reopened with intent to revoke (NOIR), revoked, and then reopened again for more evidence (required from the US, Canada, Europe and Asia).

    Unlike an RFE, which usually gives the petitioner/applicant 90 days to answer and does not allow and extension of time, the decision to reopen in this case was more like an NOIR, which allows only 33 days to answer, but gives a Service (USCIS) officer authority to extend the time to answer for good cause.

    When the initial NOIR for this case was issued in late 2013, there was no difficulty obtaining a 60-day extension of time by a simple phone call to the USCIS customer service 800 number. But in the case of this most recent decision, which raises issues no less complex than the ones in the previous NOIR, trying to get even a simple yes or no answer on the petitioner's request for a 30-day extension from either the TSC or the USCIS customer service 800 number has been more like pulling teeth.

    As mentioned in my above post, I first contacted the TSC by email in the early part of August to ask for an extension. Not receiving an answer, I called the TSC's customer service number about a week later and was told that I would either have to ask for the extension by phone to the USCIS 800 number, or send a request in writing directly to the adjudicator on the case.

    I promptly did both. I called the 800 number four times in one day. The first two times, after a long wait to be called back by a "second-level" information officer, I was cut off without explanation. The third time, I finally got to speak with an officer, but was told that she could not talk to me about the case because my G-28 attorney's notice of appearance was not on file.

    Since I had initially filed my G-28 with the TSC some nine months earlier, had sent duplicates to the TSC at least two or three times since, and have been receiving communications and notices from the TSC during that entire time, this came as a surprise.

    Moreover, the USCIS customer service officer seemed to have no idea whatsoever of the difference between an RFE and a decision on a Service motion to reopen which I have mentioned above. Therefore she insisted, in direct contradiction to a USCIS regulation cited in the TSC's notice itself, that my client would not be entitled to an extension in any event.

    My fourth call was did not produce any different result, even though this time, for once, the officer seemed genuinely willing to help and spent a good deal of time with me on the phone.

    But, for a brief time, there seemed to be a ray of hope. About a week after the above discussions with both the USCIS and the TSC customer service information officers, I received an email message from the TSC saying that I would get a written answer to my extension request. But more than ten days later, no answer has yet arrived.

    Finally near the end of August, my client, who had returned from abroad ahead of time in order to give the USCIS officers permission by phone to speak with me as her attorney (my often filed G-28 Notice of Appearance having evidently fallen into a black hole somewhere in the immigration system) joined me in calling the USCIS 800 number line (my fifth time for this case) in order to ask for an extension.

    We were told that the USCIS customer service line was not allowed to intervene until 30 days had passed from the time of the decision. In fact, our call was made on the 30th day after the decision was mailed out!

    Maybe lawyers are not the best people to get extensions of time to respond to notices from the USCIS. Dentists might have better results.
    Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been practicing employment and family immigration law for more than 30 years, concentrating in O-1 and H-1B work visas, and EB-1 extraordinary ability and PERM labor certification green cards, as well as green cards through opposite or same sex marriage. His email address is algaselex@gmail.com

    Updated 09-03-2014 at 05:56 AM by ImmigrationLawBlogs

  4. Deportations of Children Detained in Inhuman Conditions Continue. By Roger Algase

    The Los Angeles Times reported on August 21 that almost 300 women and children were recently deported from immigration detention centers at Artesia, New Mexico and Karnes, Kansas and sent back to Central American countries from which they had fled to escape from gang violence and other intolerable conditions.

    See: Nearly 300 women, children, deported from immigration detention centers


    Because the children were with their mothers (presumably) they were not protected by the TVPRA, referred to my other recent posts. That statute protects only unaccompanied children from summary deportation without a formal immigration court hearing.

    But I have yet to find a law which permits or contemplates the inhuman conditions that both mothers and children are now facing while they are detained by ICE.

    The LA Times describes these conditions as follows:

    "Aside from having to contend with a few cases of chicken pox, the facility [at Artesia] and other similar centers have been plagued by other difficulties. For instance, the Department of Homeland Security's inspector general report has cited various other problems - inadequate amounts of food, inconsistent temperatures and unsanitary conditions - at various immigration holding facilities for children.

    Also, immigration officials have been accused of not allowing the children due process as the U.S. speeds up the processing of thousands of single parents with children who have fled Central America and entered the US."

    In a previous post, I quoted an extract from the dissenting opinion of Justice Field in the US Supreme Court case of Fong Yue Ting v. US 149 U.S. 698 (1893) a barbaric relic from the days of the Chinese exclusion laws which, without too much exaggeration, could be described as bearing the same relationship to immigration law that Dred Scott v. Sandford 60 U.S. 393 (1857) has to civil rights law.

    Except that the Fong case, unlike Dred Scott, is still cited as authority today to justify arbitrary actions of the federal government toward minorities in our society.

    In my previous post, I cited Justice Field's dissenting statement in Fong that cruelty and inhumanity have no place in the enforcement of the laws of the United States. He was referring, of course, specifically to the immigration laws.

    That statement was made more than 120 years ago. The time is long overdue to put it into practice now.

    Updated 08-24-2014 at 10:07 AM by ImmigrationLawBlogs

  5. Is Sending Children Home To Be Killed An Impeachable Offense? By Roger Algase

    The following post, dated August 21 at 9:26 am, is a completely revised version of a comment which I posted earlier in the morning of the same day:

    In my August 20 post I wrote about reports that the three Central American countries where most of the unaccompanied children seeking refuge in the US come from, Honduras, Guatemala and El Salvador, are largely unprepared to take back these children after they are deported (after what in some cases can only be called Kangaroo proceedings in which their lawyers are not even allowed into the detention center where the children are being held and where their hastily improvised "immigration court hearings" are taking place).

    But, according to the Huffington Post, citing a Los Angeles Times report, the criminal gangs in these countries are not losing any time in killing deported children as soon as they return. See: Children Deported To Honduras Are Getting Are Getting Killed: Report (August 20).

    The Huffpost writes:

    "As a debate continues to rage in the US over whether to treat the influx of unaccompanied minors at the border as refugees to summarily deport them. The Los Angeles Times reports that minors deported to Honduras over the last month are being killed.

    A Morgue director in the Honduran City of San Pedro Sula told the Los Angeles Times that 'at least five, perhaps as many 10' children killed there since February had been deported from the United States.

    'There are many youngsters who only three days after they've been deported, are killed, shot by a firearm,' Hector Hernandez of the San Pedro Sula morgue, told Times reporter Cindy Carcano. 'They return just to die.'" (Emphasis added.)

    What does this say about our nation's respect for its own laws and justice system, at least when those laws are meant to protect and save the lives of people who belong to unpopular and discriminated against immigrant groups, which America has always had, going back to the Irish in the mid-19th century and Asians in the late 19th century, down to Latin American, black and Muslim immigrants today?

    It may be an "inconvenient truth" for the Obama administration, which seems to wish that the TVPRA would suddenly disappear almost as much as the Tea Party does, that this law has not been repealed and is still on the books. It is the law of the land.

    As I mentioned in my August 20 post, the TVPRA provides specific and clearly spelled out protections to UAC ("border children") from countries other than Mexico (and oh yes, Canada, and perhaps also the Russian Aleutian Islands - if they are "contiguous" enough), before the children can be deported from the US.

    These protections include: 1) hearings before an immigration judge with the right to an attorney (as long as the government doesn't have to pay); 2) appointment of independent child advocates to "effectively advocate for the best interests of the child"; 3), issuance of both procedural and substantive regulations assuring that court hearings for asylum and other relief will take into account the best interests of the child; and, 4) arguably most important of all, prohibition against repatriating the children without at least some minimal safeguards to protect them against violence and persecution upon their return to their countries.

    In other words, the TVPRA's purpose of protecting border children against being arbitrarily sent back to the danger of harm and possible death in their home countries is not based on a technicality or a stray word or two here and there, as some of the law's detractors have suggested. To the contrary, the TVPRA lays out a full system of protection for the border children against exactly what the Obama administration is doing now - sending them home to the likelihood of danger and death without the slightest regard for their best interests, and in violation of even the most elementary Constitutional and statutory requirements of fundamental fairness and due process.

    Especially when children who have no means to protect their rights are involved, this is a betrayal of America's entire system of justice - of everything that America stands for.

    Once again, the words of Justice Field in his dissenting opinion in Fong Yue Ting v. US 149 U.S. 698 (1893), a case in which the Supreme Court majority had trashed the US Constitution in order to uphold the anti-immigrant hate and prejudice which gave rise to the Chinese exclusion laws, ring down through the more than 120 years which have elapsed since that time:

    "I utterly repudiate all such notions, and reply that brutality, cruelty and inhumanity cannot be made elements of any procedure for the enforcement of the laws of the United States".

    In that case, unfortunately not only for Mr. Fong, the plaintiff in that case who was arbitrarily thrown out of the United States after having resided here legally for more than a decade because of his inability to obtain a white witnesses or witnesses to confirm his period of residence, but for the future development of American immigration law up until the present time, the above was a minority opinion and the "brutality, inhumanity and cruelty" which Justice Field referred to were held by the majority to be legal.

    But in the case of today's border children, summarily expelling them with only a charade of legal process is expressly forbidden by law, namely the TVPRA.

    Is the administration's use of "brutality, inhumanity and cruelty", not to enforce one of our immigration laws, but to violate it, openly and directly, grounds for impeachment?

    I am only asking that question. I do not presume to have an answer. But it might be possible that some other people, on the president's side of the aisle, could start asking this question too, if the death toll among deported children continues to grow.
    Roger Algase is a New York lawyer and graduate of Harvard Collage and Harvard Law School who has been practicing employment-based and family-based immigration law for more than 30 years. His practice is centered on H-1B and O-1 work visas, and green cards through labor certification, extraordinary ability and opposite sex or same sex marriage, among other immigration and citizenship cases. His email address is algaselex@gmail.com

    Updated 08-21-2014 at 10:05 AM by ImmigrationLawBlogs

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