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The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether a website advertisement that did not list the location of employment failed to apprise U.S. workers of the nature of the role. In Matter of VLS It Consulting, Inc., the employer submitted a labor certification for the position of “Computer Systems Manager/ Training Division Manager.” The case was audited and denied on the basis that the website advertisement did not list the geographic area of employment. The Certifying Officer argued that the lack of worksite location information violated 20 C.F.R. §656.17(f)(4). The employer appealed and argued that its corporate address was ‘listed on the homepage and the ‘contact us’ portion of the website.” BALCA reviewed the case and reminded the Department of Labor that 20 C.F.R. §656.17(f)(4) only applies to advertisements placed in newspapers of general circulation. Thus, this statutory section could not serve as a basis for denial. Furthermore, BALCA determined that since the employer’s address was listed on other sections of its website, no U.S. worker was misinformed of the nature of the job opportunity. BALCA reiterated that “when relevant information on a website advertisement is a ‘simple mouse click’ away, denial of certification is not supported by the regulations.” While this case does support the idea that the location of employment is not required to be listed on website advertisements, the Hammond Law Group suggests that all advertisements include the location of employment to avoid improper denials by the Department of Labor. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/
Those who cannot remember the past are condemned to repeat it. While the possibility of internment camps for Muslim Americans may sound farfetched, it happened to Japanese Americans in World War II. Understanding how it happened to the Japanese Americans might help us to prevent it from happening again.
A series of attacks by radical jihadist terrorists like the ones in Europe probably would not result in the internment of Muslim Americans, but an ongoing series of attacks as horrific as 9/11 would be a different matter. The fear and anger that would produce would be hard to control.
The events leading to the internment of Japanese Americans began at 7:55 a.m. on December 7, 1941, when hundreds of Japanese fighter planes attacked the American naval base at Pearl Harbor near Honolulu, Hawaii. The Japanese fighter planes destroyed almost 20 American naval vessels, including eight large battleships, and more than 300 airplanes. They also killed more than 2,000 Americans soldiers and sailors, and wounded another 1,000. Later that day, President Franklin D. Roosevelt issued a proclamation authorizing the removal of Japanese enemy aliens from the United States. The next day, he declared war on Japan.
The Japanese American interments were not directed at the entire Japanese American population. Approximately 275,000 Japanese immigrants settled in Hawaii and on the mainland of the United States between 1861 and 1940, but the Japanese in Hawaii were not included in the interments even though the internment order was a reaction to the Japanese attack on a naval base near Honolulu, Hawaii. It was limited to the Japanese who had settled on the West Coast. Although the Japanese farmers worked less than 4% of California’s farmland in 1940, they produced more than 10% of the total value of the state’s farm resources, which I think explains why civilian lobbyists from California joined the American military leaders in pressuring Congress and President Roosevelt to remove the Japanese Americans from the West Coast. The military leaders expected a Japanese invasion on the West Coast and were afraid that the Japanese Americans would provide behind the lines assistance to the invading army. Their views prevailed. On February 19, 1942, President Franklin D. Roosevelt issued Executive Order 9066, which forced all Japanese Americans, regardless of loyalty or citizenship, to leave the West Coast. Congress implemented the order on March 21, 1942, by passing Public Law 503.
The government relocated more than 120,000 people to internment camps located across the country. Approximately 70,000 of them were American citizens. The government made no charges against them, and they could not appeal their incarcerations. All of them lost their personal liberties; most also lost homes and property. The internments included more than 300 Italian Americans and more than 5,000 German residents.
The internments were challenged in court and the case ultimately was heard by the U.S. Supreme Court. In Korematsu v. United States, 323 U.S. 214 (1944), Fred Korematsu, a United States citizen, argued that he had been imprisoned in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty or disposition towards the United States. The Court found that to cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the West Coast because of hostility towards him or his race. He was excluded because we were at war with the Japanese Empire, and American military authorities feared an invasion of our West Coast. They decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be removed from the West Coast temporarily, and Congress, reposing its confidence in this time of war in our military leaders, determined that they should have the power to do it.
It is conceivable that a similar argument could be made to put Muslim Americans in internment camps in the midst of an ongoing series of horrific terrorist attacks, but it seems extremely unlikely that the internments would be directed at the entire Muslim population.
The Japanese American interments were not directed at the entire Japanese population. The Japanese Americans in Hawaii were not included in the interments even though the internment order was a reaction to the Japanese attack on a naval base at Pearl Harbor near Honolulu, Hawaii. It was limited to the Japanese who had settled on the West Coast, which is where the perceived invasion threat existed.
In contrast, putting the entire population of Muslim Americans in internment camps on the basis of a threat from a few terrorist organizations probably would be viewed by the courts as racism. It would be farfetched to claim that most or even many Muslim Americans would actively support terrorist attacks on America.
The interments almost certainly would have to be limited to Muslim Americans who might actually be terrorists or terrorist supporters. This would be similar to the way our Justice Department limited the National Security Entry-Exit Registration System (NSEERS) program, which was established after 9/11 to identify terrorists as quickly as possible. NSEERS only applied to males 16 years of age or older who were nationals or citizens of specified countries. Nevertheless, even the interment of a relatively small number of Muslim Americans without evidence of terrorist involvement would run counter to American values. Moreover, it could alienate the Muslim community, and their help would be needed to identify and locate the terrorists.
Published originally in Huffington Post
About the Author
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.
Update: September 27, 10:00 am:
Immigration issues per se played almost no role at last night's (September 26th) initial presidential debate between Donald Trump and Hillary Clinton.
However, the issue of foreign trade agreements did receive a lot of discussion, and Donald Trump showed the same disturbing trend to scapegoat foreigners or foreign countries for most, if not all, the problems of America, that he often does when discussing immigration issues (as in his August 31 Arizona speech, which was full of blame against legal, not only illegal, immigrants for America's job related and other economic problems).
In last night's debate, for example, Trump repeatedly blamed China and its alleged currency manipulation for American job losses, and at one point, even claimed that every country in the world was taking advantage of the United States economically.
He also blamed some of America's strongest allies, such as Japan and NATO countries, for allegedly not paying their fair share of the expenses for their defense incurred by the United States.
Trump's obsession with blaming foreigners for America's problems, whether relating to the economy, crime or national security, certainly explains why his opponents often call him "xenophobic".
This is also a troubling indication as to how Trump might use laws which are already on the books, such as INA Section 212(f), discussed on my recent post, and INA Section 274(a) discussed in my original comment below, to exclude large classes of immigrants (or all immigrants) from the US; and to make life much more difficult and dangerous, not only for millions of immigrants who are already here, but for American citizens who support them or assist them, including, very possibly, giving them legal advice or representation, as will be discussed in Part 2 of my comments on Section 274(a).
My original post appears below.
For at least the past 20 years, ever since IIRIRA was rammed through a Republican-controlled Congress as a rider to a must pass, veto-proof omnibus appropriations bill that President Bill Clinton had little choice but to sign into law just over a month before that year's presidential election, Republican leadership has been calling for more and more draconian illegal immigration enforcement measures and for reducing legal immigration in one form or another.
In 2005, eleven years ago, the Republican-controlled House passed a bill that, H.R. 4437, that would have imposed even more drastic penalties for immigration violations.
The current Republican standard bearer, Donald Trump, with his calls for mass deportation, a Mexican border Wall, a ban on immigration from some, if not all, Muslim countries and cutbacks in or elimination of legal skilled worker visas and green cards such as H-1B and labor certifications, did not suddenly arise out of nowhere.
During all this time, however, the general assumption among the public has been that only immigrants will be affected by any tightening of the immigration laws. Americans, to be sure might have a harder time in employing immigrants, and many Americans would lose their spouses, children and other close relatives to deportation if immigration enforcement is increased, but few people talk very much about the chance that millions of American could be could be prosecuted and go to jail for violating the immigration laws, if a president takes power who is determined to stamp out any opposition among to draconian immigration enforcement policies.
I refer to INA Section 274(a)(1)(A), which provides in relevant part as follows:
"Any person who-
(iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or means of transportation,"
(shall according to Section B(ii) of the same paragraph
"be fined under title 18, United States Code, imprisoned not more than 5 years, or both."
At first glance, this statute might appear to be directed only against smugglers, not people who may happen to be living with unauthorized immigrants or engaged on normal, innocent, day-to-day transactions with them.
But think again. In US v. Costello, 666 F. 3rd 1040 (7th Circuit, 2012), the federal government charged a woman with the crime of violating this statute for picking her boy friend up at a bus station, driving him to her home, and continuing to live with him there as they had been doing for several months previously.
The district court convicted her, holding, in effect, that simple "sheltering", i.e. letting her boy friend live together with her, amounted to harboring under the statute.
Judge Posner, writing for a two judge majority of a three judge panel (there was a vigorous dissent by the third judge) adopted a narrower view of the term "harboring" and reversed the conviction.
On reading Judge Posner's decision, which will be discussed in more detail in Part 2 of this series, one can easily get the impression that Judge Posner may have been influenced less by a literal dictionary definition of the word "harboring" and more by what he saw as the possible consequences of upholding the conviction: He wrote as follows:
"This connotation enables one to see that the emergency staff at the hospital may not be 'harboring' an alien when it renders emergency room treatment even if he stays in the emergency room overnight, that giving a lift to an alien with a flat tire may not be harboring...and finally that allowing your boyfriend to live with you may not be harboring, even if you know he shouldn't be in the United States".
In other words, one might paraphrase Judge Posner's opinion to hold that INA Section 274 was meant to take reasonable measures to prevent people from bringing immigrants into the United States illegally, not to introduce fascism, where friends, family members and even casual strangers can go to jail for not turning other friends, family members or other casual strangers over to the authorities for even the most minor immigration violations, or for not acting as agents of the state in ferreting out such violations in order to avoid being charged with "reckless disregard" of someone's lack of legal status in this country.
To be continued in Part 2 of this series.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping mainly skilled and professional immigrants obtain work visas and green cards for more than 35 years.
Roger's email address is firstname.lastname@example.org
Updated 09-27-2016 at 07:55 PM by ImmigrationLawBlogs
Pew Research Center (PEW) is the gold standard for estimates on the number of undocumented aliens living in the United States. According to PEW, the overall number of undocumented aliens has held steady since 2009. But are the PEW numbers really reliable? What methodology does PEW use to calculate them? Fortunately, PEW explains its methodology on its website. Its estimates are based on a residual estimation methodology that compares a demographic estimate of the number of immigrants lawfully residing in the country with the total number of immigrants as measured by a survey. The difference is assumed to be the number of unauthorized immigrants. This is easier to understand in the form of an equation.
Unauthorized Immigrants (U) = Survey, Total Foreign Born (F) - Estimated Lawful Immigrant Population.
The lawful resident immigrant population is estimated by applying the demographic methods to counts of lawful admissions which are obtained from the Department of Homeland Security (DHS) Office of Immigration Statistics, with projections to current years, when necessary. Some of the statistics on lawful residents should be very reliable. DHS grants Lawful Permanent Resident status and other forms of lawful status and keeps records of the grants. But it has been estimated that 40% of the undocumented alien population entered as nonimmigrant visitors of various types. This includes aliens who entered as nonimmigrant visitors for pleasure and did not leave when their admission periods expired and other categories of nonimmigrants who violated the terms of their admissions. DHS does not know at any given time how many of the nonimmigrants are still in lawful status.
The foreign born population includes anyone who is not a U.S. citizen at birth, including those who become U.S. citizens through naturalization. PEW estimates of the total foreign born population are based primarily on government census surveys. It currently relies on the U.S. Census Bureau’s American Community Survey. This survey includes questions on race, place of birth, citizenship, and when a person came to live in the United States. It is a nationwide survey designed to provide communities with reliable and timely demographic, housing, social, and economic data every year. About 3.5 million housing unit addresses are selected annually. That may sound like a large number, but it is less that 2% of the more than 180 million addresses in the United States. And the United States population in 2015 was estimated to be 321,418,820 people. These addresses cover every county in the nation. The forms are mailed to the selected addresses, not to individuals. For 2015, the American Community Survey selected 3,540,307 addresses in its survey of housing units and had 2,305,707 final interviews. The American Community Survey also selected 206,630 group quarters facilities, such as college dormitories, nursing homes, and prisons; and had 161,865 final interviews at these locations.
PEW also has relied on statistics from the March Supplement to the Current Population Survey. But PEW has dropped that survey because the American Community Survey provides a much larger sample size. In 2014, it produced statistics on 360,000 foreign born individuals, and the March Supplement only provided statistics on 26,000 foreign born individuals. PEW has replaced its March Supplement estimates from 2005 onward with American Community Survey-based estimates.
I have several concerns about PEW’s reliance on the American Community Survey. First, I would be very surprised if many households with an undocumented alien are willing to participate in a government survey of any kind; and this one includes questions about race, place of birth, citizenship, and when a person came to live in the United States. An undocumented alien would not have to be paranoid to be suspicious about why those questions are being asked. I encourage you to read a sample of the form and judge for yourself. Second, I do not understand how PEW can make a reliable estimate of the total foreign born population on the basis of a survey that is sent to such a small portion of our population, particularly in view of the fact that the surveys are spread out across every county in the United States, which makes it unlikely that a reliably representative sampling is taken anywhere. In fact, roughly 35% of the 3,540,307 mailings did not result in a final interview. The surveys at group facilities are even less impressive. Who are these people who would not participate in the survey? How different would the results have been if they had participated?
The problem is not that PEW is using questionable statistics for estimating the lawful immigrant population or that its source of statistics for estimating the foreign born population is unreliable. Math was one of my majors in college. Philosophy was the other. I know that estimates based on such statistics typically are not very reliable. The problem is that PEW’s estimates on the number of undocumented aliens in the United States are being used to make important policy decisions. For instance, the illegal immigration situation is much different if PEW is right that the population of undocumented aliens has remained steady since 2009, than it would be if the population actually has increased from five million to 33 million. Another example is legalization. Estimates for the resources and funding needed for a legalization program are based on PEW’s estimate of how many undocumented aliens there are. The bottom line is that we need to find a more reliable way to estimate the population of undocumented aliens.
Published originally in Huffington Post.
About The Author
Nolan Rappaport was detailed to the House Judiciary Committee as anExecutive Branch Immigration Law Expert for three years; he subsequentlyserved as the immigration counsel for the Subcommittee on Immigration, BorderSecurity, and Claims for four years. Prior to working on the Judiciary Committee,he wrote decisions for the Board of Immigration Appeals for twenty years. Healso has been a policy advisor for the DHS Office of Information Sharing andCollaboration under a contract with TKC Communications, and he has been inprivate practice as an immigration lawyer at Steptoe & Johnson.
Updated 09-26-2016 at 03:23 PM by ImmigrationLawBlogs
Donald Trump has let the cat out of the the bag about where he stands on Syrian Refugees. The Guardian reports that his opposition to them is not just based on alleged "terror" concerns (over people who are fleeing from terror perpetrated by the twin horrors of ISIS and the Assad dictatorship, backed by Russia's own dictator, Vladimir Putin, whom Trump has had a least a few good things to say about).
In addition to labeling Syrian refugees (once again) as potential terrorists, Trump is now saying that they would affect America's "quality of life",
Here is the exact quote from Trump, speaking about Syrian refugees at a rally in Toledo, Ohio, as reported in The Guardian on September 21:
"Not only the danger of it all-this isn't only a matter of terrorism, but alswo a matter of quality of life. We want to make sure we're only admitting those into our country who support our values and-love - and I mean love - our people."
What, exactly, does Trump mean when he doubts that Syrian refugees would be good for for America's "quality of life", that they might not support "or values" or "love our people"?
Is there something "un-American" about wanting to flee from war, persecution and dictatorship, and from the horrors of ISIS fanaticism which Trump, on other occasions, has described as graphically and accurately as anyone else (in support of his advocacy of using torture).
Does wanting to settle in a country of freedom and democracy, one which was founded on the principle of refuge from tyranny and political or religious persecution, mean a rejection of "American values", or lack of love for the American people?
Or is Trump's statement a not so veiled claim that people from parts of the world outside Europe, and of non-white skin color or non-Judeo-Christian faith, are incompatible with America's "quality of life"
Is Trump identifying America's "quality of life with the notorious "Nordics-only" national origins immigration quotas of the 1924 Johnson-Reed Immigration Act which favored Northern Europeans and excluded Jewish, Italian, Polish, Hungarian and, "coincidentally" all Middle Eastern immigrants?
Perhaps a further explanation from Trump about what he means when he says that Syrian refugees endanger America's "quality of life" would be in order.
Trump might also wish to share with us where he got his preposterous idea that Hillary Clinton wants to bring in "620,000" refugees in her first term - a figure which, according to The Guardian's above article, has "been proven false by independent fact checkers."
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping to make it possible for mainly skilled and professional immigrants of diverse nationalities and ethnic/religious backgrounds to accomplish their goals of becoming productive, contributing members of American society and improving our quality of life.
Roger's email address is email@example.com
Updated 09-22-2016 at 11:22 AM by ImmigrationLawBlogs