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  1. Sen. Sessions Blasts H-1B as Part of His Anti-Immigrant Agenda. By Roger Algase

    Usually, when we see the words "Immigration Handbook", we expect to see a publication that will help to guide us through the complexities of the immigration laws and give us practical advice about how to deal with them.

    But the office of Senator Jeff Sessions (R. Alabama), who , together with Rep. Steve King (R. Iowa) is one of the two most vocal immigration opponents in the entire Congress, has now issued an "Immigration Handbook" directed to his fellow Congressional Republicans which is intended, not to explain our immigration system, but to destroy that system as we know it.

    This publication, dated July, 2015, has the title:

    IMMIGRATION HANDBOOK FOR THE NEW REPUBLICAN MAJORITY: A Memo For Republican Members From Sen. Jeff Sessions

    Senator Sessions' 23 page publication, which might more properly be called a manifesto rather than a handbook, is an attack on America's entire immigration system from beginning to end, not only with regard to unauthorized or "illegal" immigration, but to legal immigration as well.

    With regard to unauthorized immigration, Sessions calls for the most draconian enforcement measures imaginable, including, to give just one example turning away children arriving at our borders automatically, no matter how strong their asylum claims may be.

    Concerning low skilled legal immigration, Sessions appeals to the age old fear that American workers will have their jobs swept away be a tidal wave of foreign citizens, while at the same time arguing that these same foreign citizens do not want to work, but are only interested in receiving government welfare benefits.

    I will not dwell on these parts of the senator's manifesto, because Americans have been hearing similar aguments coming from nativist spokespersons for more than 150 years, beginning with the anti-Irish Know-Nothing movement in the mid 19th century, with only the targeted ethnic groups changing over the years from then until now.

    Instead my comments will be concerned with the senator's attack on the H-1B program, which he appears to view as just one more aspect of the unmitigated evil of immigration in general, with its alleged threat to destroy America's sovereignty and prosperity.

    Senator Sessions' attacks, while directed by implication against the entire H-1B program, are focused on high skilled workers in the STEM fields (Science, Technology, Engineering and Math). In short, the workers who most employers and independent experts agree are the most badly needed in the US are the ones whom Sessions regards as being the greatest threat of all to the jobs of American workers. In the section of his "Handbook" called "THE SILICON VALLEY HOAX", Sessions writes:

    "The false claim that has gained the most acceptance is the notion that there is a shortage of qualified Americans with degrees in science, technology, engineering and mathematics (STEM). Therefore, the fallacious reasoning goes, the United States must expand the already substantial influx of foreign quest worker to fill there jobs. But the evidence proves the opposite: not only is there no shortage of qualified Americans ready, able and eager to fill these jobs, there is a huge surplus of Americans trained in these fields who are unable to find employment.

    It is understandable why large technology firms push the discredited STEM myth - a loose labor market for IT and STEM jobs keeps pay low, allows for sustained employer turnover without having to retain older employees with increased compensation, and provides a PR basis for the industry's immigration lobbying campaign. What is not understandable is why they have gotten away with it for so long."

    In other words, according to Sen. Sessions, high skilled immigration is only a strategy by the big corporations to lower the wages of and take away jobs from American workers, including older ones. This argument, which has also long been as staple of right wing populism, might have more force if Sessions and his supporters in Congress actually had a record of voting for minimum wage laws and stronger protections against sending American jobs offshore. But they do not, and their concern for the jobs and wages of American workers in general is far from being readily apparent.

    But the myth that high tech workers steal American jobs without doubt is a major factor, if not the single most important factor preventing Congress from passing a long overdue increase in the number of H-1B visas so that American can continue to attract high skilled workers from all over the world instead of sealing off its borders against people who can so so much to help grow our economy and enable the US to maintain its pre-eminence in IT and many other fields.

    Therefore, instead of ignoring Sessions and other anti-immigrants extremists, H-1B supporters need to look at his arguments in detail and refute them head on. Otherwise, Sessions' attacks against the H-1B program may continue to have wide influence behind the scenes and to be a major factor in preventing H-1B reform.

    To be continued

    Updated 01-24-2015 at 02:27 PM by ImmigrationLawBlogs

  2. Sen. Sessions Blasts H-1B as Part of His Anti-Immigrant Agenda. By Roger Algase

    Please see my other post on this topic with the same title.

    Updated 01-24-2015 at 09:53 AM by ImmigrationLawBlogs

  3. BALCA Discusses What Terms and Conditions of Employment Must be Listed in Recruitment

    At the end of 2014, the Board of Alien Labor Certification Appeals (“BALCA”) considered what employee benefits might be considered a “term and condition” of employment that should be listed in an advertisement that is placed as part of a recruitment effort. In Matter of Needham-Betz Thoroughbreds, Inc., the employer submitted a labor certification for the position of “Farm Manager.” The case was audited and the employer explained in the audit response that the employee was given the option to live rent-free on-site at the job location. The DOL denied the case on the basis that the recruitment that the employer conducted failed to inform potential applicants of the opportunity to live at the job site for free. Under the PERM regulations, advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” The DOL determined that the chance to live rent-free at the job site was a term and condition of employment that U.S. workers should have been apprised of. The employer appealed the denial. BALCA reviewed contradictory case law and found that free housing was a term and condition of employment that should have been listed in the recruitment. Specifically, BALCA stated that “the benefit of free housing is not a standard benefit attached to a job opportunity. Free housing for an employee is a huge income enhancement that is not readily assumed to be part of an employment opportunity, unlike the other more typical benefits such as health insurance or vacation days.” Through this statement, BALCA recognized that health insurance and vacation days are not benefits that must be listed in advertisements that are conducted as part of a recruitment effort. However, more unusual benefits, like free housing, should be stated. This case provides important information about the types of benefits that an employer must list in the recruitment it conducts for labor certification cases. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/

  4. Birthright Citizenship Under Attack From Rep. Steve King - Again. By Roger Algase

    In my November 28, 2014 post: "An American Hero Who Fought For Birthright Citizenship" I wrote about the story of Wong Kim Ark, a US born American whose successful battle to avoid having his citizenship denied by immigration officials because of his ancestry went all the way up to the US Supreme Court.

    That decision, US v. Wong Kim Ark, 169 U.S. 649 (1898) is the foundation of birthright citizenship in America as we know it today. Yet in times of high anti-immigrant feeling, as is the case among at least some vocal and determined sectors of the US population today and their elected representatives, the specter of taking away citizenship by birth and replacing it with citizenship by ethnicity or some other factor always arises.

    The latest effort in this direction comes, not surprisingly, from Rep. Steve King (R-Iowa), who has never claimed to be a friend of minority immigrants in America, and whose actions have always matched his words in this regard. The Hill reports on January 16 that King has, not for the first time, introduced a bill that would end the current policy of granting birthright citizenship for virtually everyone born in the US. Instead the bill would limit citizenship through birth in the US to children who have at least one parent who is a US citizen, an LPR, or an immigrant serving in the armed forces.

    The following is King's "legal reasoning" in support of his bill, according to his following statement quoted in The Hill.

    "A century ago it didn't matter very much that a practice began that has now grown into a birthright citizenship, an anchor baby agenda...

    When they started granting automatic citizenship to all babies born in the United States they missed the clause in the 14th Amendment that says 'And subject to the jurisdiction thereof'. So once the practice began, it grew out of proportion and today between 340,000 and 750,000 babies are born in America that get automatic citizenship even though both parents are illegal. This has got to stop."

    See, The Hill: Bill would end birthright citizenship, January 16.

    No, Representative King, they didn't overlook the "subject to the jurisdiction thereof" clause of the 14th amendment, and it actually mattered a great deal over a century ago whether a child born in the US could be deprived of citizenship because of his or her race or parents' status. It would be only a slight exaggeration to say that an entire Civil War was fought over this point, based on the Supreme Court's decision in Dred Scot v. Sandford (1857). One of the main purposes, if not the only purpose, of the 14th Amendment was to overturn this decision, which had held that African-Americans could not become US citizens by birth in the US.

    While everyone agreed that the purpose of the 14th Amendment was to eliminate discrimination against African-Americans, there was ample disagreement in the 19th century about whether the 14th Amendment was also meant to protect Native Americans, Asians and other victims of prejudice as well. This was not resolved until the Wong decision.

    The Wong decision held, after a lengthy and detailed discussion of the same "subject to the jurisdiction thereof" clause which Rep. King claims has been overlooked, that the 14th Amendment was meant to protect everyone, not only African-Americans. That decision has been the law for almost 117 years, and no amount of inflammatory rhetoric and anti-immigrant legislation introduced by Steve King and his far right wing supporters has any likelihood of changing it.

    It may be significant that when King introduced the same bill in the last Congress, it had 39 co-sponsors, all Republicans, according to The Hill. This publication reports that the latest version has seven sponsors. After the 2016 election, in which millions of Latino and other minority US born Americans whose parents were not able to obtain legal status at the time their children were born are expected be out voting in full force, the number of co-sponsors of Steve King's attempt to bring back 19th century-style discrimination in the 21st century may well drop to zero.

    If there is any one single feature that makes America the land of freedom and opportunity for all as we think of it today, it is birthright citizenship for virtually every child born in this country (excepting only the children of foreign diplomats, who are exempt from US law and therefore not "subject to the jurisdiction" of the United States).

    Steve King and his evidently dwindling number of Congressional supporters would like to set up a two tier system in this country - citizenship rights from birth for children of the favored group or class, and illegal status subject to expulsion from the moment of birth in this country for the children of parents belonging to groups which he regards as inferior.

    Nothing could be more contrary to America's values and ideals.

    Updated 01-17-2015 at 03:41 AM by ImmigrationLawBlogs

  5. AAO Disregards H-1B Law By Denying Petitions With Level 1 LCA's. By Roger Algase

    With the beginning of the annual rush to file H-1B applications on April 1 of this year, the focus is, once again, on the visa shortage which Congress has stubbornly refused to remedy for more than a decade.

    But anyone who thinks that getting lucky in this year's upcoming casino lottery for the pathetically inadequate 58,000 H-1B cap-subject visas that will be available for H-1B beneficiaries who do not have US master degrees (also known as "random selection" - which sounds more elegant than "craps-shooting" or "roulette wheel") plus the similar appeal to the winds of fortune for the 20,000 extra visas set aside for US master degree holders, will guarantee approval for any given petition would be seriously underestimating the ingenuity and zeal of the AAO and at least a couple of federal judges in finding ways to subvert the H-1B law and deny meritorious petitions.

    At least the croupiers in places such as Monte Carlo, Macao, Las Vegas and Atlantic City have a reputation for being honest and playing by the rules - even if they are only the house rules, which are of course stacked against the gamblers. But beginning with a June, 2013 AAO decision and continuing with two landmark federal district court decisions in 2014, USCIS and the courts are openly defying not only the clear language of H-1B statute itself, but also USCIS's own H-1B regulations in order to deny petitions based on entry level positions for no other reason than that they are entry-level.

    Both the H-1B statute and the USCIS regulations have a basic litmus test for determining what is a "specialty occupation" for H-1B purposes. This test is whether the offered H-1B position normally requires a bachelor degree (or equivalent in a particular specialty for entry into the occupation (8 U.S.C. Section 1182 (i)(l) and 8 C.F.R. 214.2(h)(4)(ii) - bold and italics added).

    As any high school student should have no difficulty in figuring out from the above language, the obvious intent of both the above statute and the regulation is to make someone eligible for H-1B based on the offer of an entry-level position, as long as the position itself meets the above specialty bachelor degree requirement.

    But in the three decisions to be discussed in detail in my next post, the AAO, aided and abetted by at least two federal district court judges, has in effect ruled that offer of an entry level position in any field, no matter how specialized or complex, or how high the educational requirements normally are for that position, is automatically disqualified for approval as a specialty occupation.

    These decisions are the US District Court cases Health Carousel v. USCIS (SD Ohio, January 3, 2014) and Caremax v. Holder (ND California, April 21, 2014), and a June 20, 2013 AAO decision with an unpublished title and case number originating in - you guessed it - the California Service Center.

    This administrative/judicial sleight of hand, which would put even the most experienced casino croupier to shame by comparison, amounts to turning the above statute and regulation entirely on their heads. It is based on a distorted view of the language and intent of the LCA which accompanies every H-1B petition. In essence, these decisions use the LCA, not only for the purpose of determining what the prevailing wage is for any given H-1B occupation, but for the purpose of determining whether it is a specialty occupation, something which the US Department of Labor has no authority to do, according to these same decisions and countless other decisions.

    This strategy involves taking the DOL's dumbed-down description of the skills needed for an entry-level (Level 1) position in any field of activity for the purpose of determining the appropriate prevailing wage, and using that same dumbed-down description to determine an issue dealing with the merits of the petition, i.e. whether the offered position is a specialty occupation. But this is something that only USCIS, not the DOL, has the authority to so.

    Moreover, in determining whether a given H-1B job is a specialty occupation, USCIS is required by its regulations to use standards and methodology which are completely distinct from and often directly conflict with the DOL's one-size fits all view of entry-level positions as being appropriate only for people who have merely basic knowledge of their field and only follow instructions from their superiors in an unthinking, robot like manner, even if the USCIS's "Bible" known as the DOL's Occupational Outlook Handbook (OOH), states that a bachelor, or even master degree in that specialty is normally required for entry-level positions in the occupation in question.

    Granted, the OOH often speaks with all the clarity of the ancient Greek or Roman Delphic or Sybilline oracles, or the Shang Dynasty oracle bones of ancient China. But USCIS has never had any problem in relying on the OOH in order to deny H-1B petitions on the grounds that the offered job is not a specialty occupation. However, even if the OOH or other evidence acceptable under the H-1B regulations might tend to show that a given position is in fact a specialty occupation, USCIS now has a handy excuse for denying the petition anyway, if the employer filed it with a Level 1 LCA.

    In my next post, I will show how this strategy was used to deny the petitions in the three decisions mentioned above. To the best of my knowledge, these appear to be isolated decisions. Many, if not the great majority, of petitions filed with Level 1 LCA's are still being approved. But the effect, if any, of these three decisions, which I will discuss in my next post, should be carefully watched for the future.

    To be continued.
    Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been representing business and professional clients in H-1B cases for more than 30 years. His email address is algaselex@gmail.com

    Updated 01-12-2015 at 01:57 PM by ImmigrationLawBlogs

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