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  1. USCIS Claims it Does Not Rely Exclusively on EDGE Database for Educational Opinions;

    In a March 13, 2014 letter to Joseph Crowley, Member, US House of Representatives, recently obtained by the American Immigration Lawyers Association, USCIS Chief James W. McCament claims that, “USCIS does not endorse or encourage the use of EDGE over other types of credible resource material regarding the equivalency of the educational credentials to college degrees obtained in the United States.”

    We respectfully beg to disagree. In fact, we would suggest that nothing could be further from the truth.

    This response is of particular interest to Philippine educations physical therapists who have five-year “bachelor” degrees in physical therapy that many, including FCCPT, believe are equivalent to US master’s degrees in physical therapy, thus making them eligible for classification in the EB-2 immigrant petition preference category.
    While I understand that from the perspective of making a public statement about a USCIS policy, Mr. McCament probably felt the need to make a bland “we look at everything” kind of claim, the simple truth of the matter, his statement is nothing short of a blatant misrepresentation of current USCIS practice.

    I have read far, far too many denials of EB-2 petitions for Philippine educated physical therapists which claim the denial was made based solely on the fact that EDGE does not recognize the Philippines degree as being the equivalent of a US master’s degree, to believe that USCIS does not endorse or encourage the use of EDGE.

    Not only does USCIS endorse and encourage the use of EDGE, it practically requires slavish adherence to EDGE. We have submitted numerous petitions with which we have provided multiple credible educational evaluations which indicate the Philippines degree is equal to a US master’s degree, as well as letters from state licensing boards (the very people responsible for making the ultimate determination as to whether a foreign educated physical therapist may touch patients in the US), that indicate the Philippines degree is equal to a US master’s degree, and still we receive denials that simply state, “EDGE says it isn’t”. End of decision.

    The fact that so many petitions have been denied in this manner makes it clear this is not the work of some rogue USCIS officer; rather, it is part of a well orchestrated plan (and policy) to deny these petitions using the EDGE database as the reason. As the only reason. To suggest otherwise and claim all credible resources are considered is completely ludicrous.

    Rather than dance around the question by denying USCIS does what we all know it does, Mr. McCarment simply should have said, “EDGE is our ultimate resource. What are you going to do about it?”

    I much prefer being clubbed over the head to being lied to. At least that way, you really know what you’re dealing with.

    This post originally appeared on HLG's Healthcare blog by Dwight Myfelt. http://hammondlawgroup.com/healthcareblog/
  2. District Court Determines that Technology Union has Standing to Sue

    The U.S. District Court for the District of Columbia recently determined that a union that represents technology workers has standing to sue the U.S. Department of Homeland Security on the basis that these workers were harmed by the U.S. Optional Practical Training (“OPT”) STEM extension program. In Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, the court considered whether a collective-bargaining organization that represents science, technology, engineering, and mathematics workers had standing to sue the U.S. government on the basis that the OPT program and OPT STEM extension program had injured the U.S. workers represented by this union. The plaintiff argued that these programs had increased competition for jobs, which harmed its union members. Specifically, three union members were unable to obtain employment with JP Morgan Chase, Ernst &Young, IBM, and Hewlett Packard between 2010 and 2011. During this same time period, these organizations employed OPT STEM employees. The District Court stated that to establish standing, the plaintiff must show that: “(1) it has suffered an injury-in-fact, (2) the injury is fairly traceable to the defendant’s challenged conduct, and (3) the injury is likely to be redressed by a favorable decision.” Since there was no allegation in the complaint that the union’s workers applied for roles that were filled by OPT workers, the first three complaints were dismissed. In reviewing the remaining complaints, the court did find that the three workers “are specialized in computer technology, and they have sought out a wide variety of STEM positions with numerous employers, but have failed to obtain these positions following the promulgation of the OPT STEM extension in 2008.” Since the court found that these workers were “in direct and current competition with OPT students on a STEM extension,” the court found that the plaintiff had standing to sue on the remaining claims. While the STEM program is applauded for providing work authorization to individuals who have needed science, technology, engineering, and mathematics training in the U.S., this case shows that some unions believe that U.S. workers are being harmed. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/
  3. Race, Class and Immigration Law. By Roger Algase

    The following post has been revised as of the morning of December 15:

    All immigrants and immigration advocates can breathe a huge sigh of relief over the fact that federal government funding dodged a right wing bullet by the name of Ted Cruz (and a left wing one called Elizabeth Warren) in order to avert a shutdown which, among many other things, would have wrecked key parts of our legal immigration system by closing the US Department of Labor and the State Department visa offices. Obviously, there was a direct connection between immigration and the shutdown threat, as the Texas Republican Senator made clear by holding up action on the government funding package during the weekend until it finally passed the Senate on Saturday night, December 13, while protesting against President Obama's recent expansion of executive action in order to grant temporary relief from deportation to some 4 or 5 million additional people. most of whom happen to be less affluent and Hispanic.

    As everyone knows, the same Tea Party firebrand was also instrumental in shutting down the government temporarily in 2012 over a different issue, namely extending access to health insurance to 30 or 40 million people who would otherwise not have been able to afford it. This issue affected not only tens of millions of less well off white, black and Hispanic American citizens, but immigrants as well, especially because of the controversy over whether unauthorized immigrants should be given access to healthcare benefits under this law.

    There was also a threat to government funding coming from the left, in the form of an effort by the Massachusetts Democratic Senator, Elizabeth Warren to persuade her Congressional colleagues in the House to derail the funding plan in that chamber because of its perceived giveaways to Wall Street banks and to wealthy campaign donors - an effort which came within only a few votes of succeeding, and which had support not only from the left, but from Tea Party leaders (including, reportedly, Senator Cruz himself) who also opposed benefits for the big banks and wealthy campaign donors.

    Therefore, issues of race and class clearly played a role in the shutdown battle, with its attendant risk to the functioning of at least major parts of America's immigration system (even though USCIS would have stayed open in a shutdown, as was the case last time, since the agency is funded by user fees rather than directly by Congress).

    Do issues of race and class have a direct influence on immigration law and enforcement as well, in addition to indirect effects which would result from a government shutdown?

    As lawyers, we would all like to believe that the immigration laws are color-blind and that they are enforced equally with regard to everyone, regardless of national origin or social status.

    We would like to overlook or disregard any evidence that there may be an underlying structural bias in immigration law taken as a whole against less affluent immigrants and immigrants of color. But does that correspond with the reality of immigration law and practice today?

    Two distinguished authorities on immigration law, Kevin R. Johnson, Dean of the University of California, Davis, School of Law, and Bill Ong Hing, Professor of Law at that same school, have argued recently that race and class always have been and still are fundamental to immigration law, not only in the dark era of the 19th and early 20th century exclusion laws and racially motivated national origin quotas against Asian, Jewish, Italian, Eastern European and other "non-Nordic" immigrants, but also today, especially as applied against Mexican, other Latino and black immigrants.

    See Kevin R. Johnson: The Intersection of Race and Class in U.S. Immigration Law and Enforcement, 72 Law and Contemporary Problems (2009),


    and Bill Ong Hing: Institutional Racism, ICE Raids and Immigration Reform, UC Davis Legal Studies Research Paper Series Research Paper No. 197 (December 2009)


    Their arguments are powerfully presented and backed up by extensive legal scholarship. They deserve to be taken seriously by anyone who is concerned with immigration law and immigrant rights. I will discuss these articles in more detail in upcoming comments.
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business, employment and family based immigration law for more than 30 years. His approach to immigration law is based, not only on fully understanding and applying the technical rules correctly, but also on asserting each person's right to a full and fair consideration of the merits of his or her case by an immigration system which may often tend to overlook or disregard these basic rights. Roger's email address is algaselex@gmail.com

    Updated 12-15-2014 at 05:42 AM by ImmigrationLawBlogs

  4. Please Refer to Next Post by Roger Algase re: Race, Class and Immigration Law

    The subject matter of this post has been revised and included in my later post on the same topic. Please refer to that post, updated as of December 15, which has the title: Race, Class and Immigration Law.

    Updated 12-15-2014 at 09:03 AM by ImmigrationLawBlogs

  5. Is US Border Protection Torturing Immigrants? A Chilling Report. By Roger Algase

    In my December 12 post, I wrote that the use of torture by the US government may not be directly related to immigration. Based on an article in The Guardian which appeared the same day, shortly after my above comment was posted, I may have to correct that statement.

    The Guardian
    reports that there is an ongoing pattern of abuse of immigrants by the USCPB which is so serious that, after reading the article, one could well ask whether any difference between the mistreatment it describes and outright torture detailed in the Senate CIA report is purely semantic.

    See, Freezing cells and sleep deprivation: the brutal conditions migrants still face after capture

    This article is also subtitled:

    In a week of outcry over the Senate's report on CIA torture, human rights groups say harsh treatment still meted out on the US border


    The article begins by describing the experience of a woman from Honduras who was caught by CBP agents shortly after crossing into Texas last May with her infant daughter and four other women:

    "Peralta (not her real name) was put into a 15ft by 45ft concrete cell with about 30 other women from Central America who had made the dangerous and traumatic journey. Her clothes were still wet from crossing the river, but, according to the account she gave human rights researchers, CBP officers wouldn't let her change into the dry clothes she had ready in her backpack.

    The cell was a 'cold box', she said, and she and her child shivered on the concrete floor. She reported losing sense of time, as there were no windows in the border station where they were being held.

    She was detained in the border station for two days, by her estimation, then she was flown to the Tucson border station, where she was held for a further seven days. There she and her daughter were again put into a cell so cold that her lips chapped, she developed a cough and eventually contracted a fever that led to a brief hospitalization."

    The article goes on to report that CBP's practice of holding immigrant detainees in bare, freezing cells is widespread:

    "Of the 33 adult migrants who were interviewed in depth for the report after coming through the Tucson border stations between May and July, 94% complained that the bare concrete cells in which they were kept had ben too cold or even freezing. Each detainee was allowed only a single garment in which to sleep, with only a bare concrete floor to lie on."

    In addition to the cold, sleep deprivation (one of the CIA torturers' favorite techniques, according to the Senate report) appears to be a common complaint among detainees as well:

    "Many complained of sleep deprivation, having been disturbed by the cold, the lack of bedding, loud noises outside the cells, and having been woken up in the middle of the night by agents to sign release papers. Thirty of the 33 individuals in the survey said they had been unable to sleep because of the bright lights that were kept blazing inside the cells 24 hours a day.

    The Guardian
    reports that these are not isolated incidents:

    "The experiences of Peralta and her fellow migrant detainees are not isolated. Immigration lawyers and human rights groups have long reported a pattern of alleged violations by CBP officers - a trend which, the organizations believe, suggests a systemic level of abuse designed to punish those who have illegally entered the US, intimidate them into waiving their rights and submitting to instant repatriation, and deter others who might follow them."

    Nor, according to this article, are comparisons with the CIA torture alleged in the Senate report entirely out of place:

    "In the week of the explosive Senate intelligence committee report on the CIA's interrogation of terror suspects under the Bush administration, parallels are being drawn with the abusive detention techniques still routinely practiced on US soil. Though the more recent reported abuses are nowhere near as grotesque as the torture revealed by the Senate report, they do amount, advocacy groups say, to systematic rights violations that incorporate some techniques also deployed in the CIA's now discredited rulebook, including sleep deprivation, disorientation and psychological abuse."

    In one very important respect, the alleged CBP abuses against immigrants are worse than anything the CIA has been accused of; there are no allegations that the CIA tortured children.

    But limiting abusive treatment to adults is apparently not in the CBP's "rulebook" when dealing with immigrants, according to The Guardian:

    "Among those subjected to harsh treatment, the group has found, are numerous migrant children. Children have described temperatures in the cells that turned their lips blue and made their fingers numb."

    All in all, a chilling report - in more than one sense of the word.

    Updated 12-13-2014 at 09:13 AM by ImmigrationLawBlogs

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