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    by , 06-08-2017 at 04:40 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Maria Schneider

    Secretary Acosta has determined it is the policy of the DOL to vigorously and actively enforce laws governing visa programs. The DOL actions for enforcement include:

    -The DOL Wage and Hour Division will conduct more civil investigations and site visits.

    -The DOL Employment and Training Administration will develop and propose changes to the LCA (Labor Condition Application) as well as other forms to better identify violations and fraud. Among other things, the DOL will be looking at how to better monitor LCA filings for violations and prevent fraud with regard to the:

    • exemptions for H-1B dependent employers where the employee has a master’s degree or greater or makes $60,000/year or more;
    • the rate of pay listed on the LCA; and
    • the worksite location(s) listed on the LCA.

    -The DOL will actively coordinate with and refer cases to the Inspector General and Attorney General in cases of criminal fraud, which is outside the DOL’s jurisdiction.

    -There will be additional training of DOL Officers to detect civil and criminal fraud.

    - The DOL will continue to work with the US Department of Justice and US Department of Homeland Security to investigate, detect, and prevent fraud in all visa programs.

    The DOL Office of the Inspector General has posted some recent cases on its website.

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us on Facebook and follow us on Twitter.
  2. "Us Versus Them" in Immigration Court

    There’s a quote attributed to legendary DC-lawyer Jake Stein that has helped define my practice as an attorney: “I’ve never litigated a case where I wasn't better friends with my opposing counsel at the end of the case than at the beginning.”
    Though it may be satisfying, beating up opposing counsel probably violates the Rules of Professional Conduct.
    His philosophy may be Old School and--in these days, where being nice to someone you disagree with has become all too rare--almost radical, but I’ve taken it to heart. I try to maintain a congenial and trusting relationship with the DHS attorneys who sit across from me in court. As a result, I believe my clients are better off—and so am I.

    The former President of the DC Bar, Tim Webster, touched on this issue last year in an article about the “Balkanization of Lawyers.” What he meant was that we lawyers tend to fall into opposing camps, Us versus Them, and never the twain shall meet. In Immigration World, that means attorneys who represent immigrants and asylum seekers, on the one hand, and government attorneys, on the other.

    Mr. Webster laments the division of our profession in this manner, and points out that it is often bad for our clients, who benefit when lawyers are able to “work cooperatively with opposing counsel towards a consensual resolution” of their cases. Perhaps Mr. Webster’s observation is more applicable to civil cases, where a negotiated monetary settlement is the norm, but I think it also applies in Immigration Court. When we have a cooperative relationship with DHS, we are often able to reach better resolutions for our clients. DHS attorneys are more likely to give us the benefit of the doubt, and more likely to stipulate to part (or sometimes all) of a case.

    Mr. Webster also argues that the idea of us-versus-them stands in opposition to our core values as attorneys. Under the Rules of Professional Conduct, we are required to be honest and fair--to the client, to other attorneys, and to the tribunal (and also to other people we encounter in the course of our work). When we view opposing counsel or Judges as “the enemy,” it becomes easier to justify behavior that risks violating our obligations under the Rules, which can harm our clients (and land us in hot water).

    Unlike perhaps some areas of law, immigration law has a strong ideological component. Many of the attorneys who represent immigrants do so because they believe in human rights and they want to keep families together. For such attorneys—and I include myself among them—our work represents an expression of our moral and/or religious values. In other words, it’s more than just a job; it’s a mission.

    Does this make it harder for us to work cooperatively with opposing counsel (DHS)? Is it more urgent that we do so? For me, the answer to both these questions is yes. When our clients’ lives and futures are on the line, it can be very difficult to maintain a cordial relationship with a government attorney who is fighting to have that client deported. But even in the hardest-fought case, there is value in maintaining lines of communication. For example, even where the DHS attorney will not compromise and is fighting all-out for removal, there still exists the possibility of stipulating to evidence and witnesses, and of a post-order stay of removal. Severing the connection does not serve the client (though it may satisfy the ego), and certainly won’t help future clients, and so to me, there is little value in burning bridges, even when I believe DHS’s position is unjust.

    All that said, there is no doubt that we will often disagree with our opposing counsel, and that we will fight as hard as we can for our clients. This is also a duty under the Rules of Professional Conduct (zealous advocacy), and for many of us, it is an expression of our deeply held belief in Justice.

    With the ascension of the Trump Administration, and its more aggressive approach towards non-citizens, I believe it is more important than ever for us lawyers to keep good relationships with our DHS counterparts. While some government attorneys are glad to be “unleashed” and to step-up deportation efforts, many others are uncomfortable with the Administration’s scorched-Earth strategy. These DHS attorneys (and I suspect they are the majority) take seriously their obligation to do justice; not simply to remove everyone that ICE can get their hands on.

    While the environment has become more difficult, I plan to continue my Old School approach. It works for me, it has worked for my clients, and I think it is particularly crucial in the current atmosphere. We lawyers--the immigration bar and DHS--should continue to lead by example, and continue to maintain the high ethical standards that our profession sets for us. In this way, we can help serve as a counter-balance to our country's leaders, whose divisive, ends-justify-the-means approach has no use for the basic principles of morality or comity that have long served our profession and our democracy.

    Originally posted on the Asylumist:
  3. "First They Came For the Mexicans": Trump's Attacks on Immigrants Put Democracy in Danger. Roger Algase

    The United States Holocaust Museum contains a famous poem written by the anti-Nazi pastor Martin Niemoeller (1892-1984) which reads as follows:

    "First they came for the Socialists, and I did not speak out -
    Because I was not a Socialist.

    Then they came for the Trade Unionists, and I did not speak out -
    Because I was not a Trade Unionist.

    Then they came for the Jews, and I did not speak out -
    Because I was not a Jew.

    Then they came for me - and there was no one left to speak for me."

    There is another famous poem, by Emma Lazarus - one which, more than any other, defines America as the land of Freedom and Equality for all - a poem which has made and still makes America incomparably greater than any presidential campaign slogan on a baseball cap could ever possibly do - enshrined at the base of the Statue of Liberty.

    Will that poem one day before too long be "repealed and replaced" by one which reads as follows?

    "First they expelled the Mexican immigrants - and I did not speak out - Because I was not a Mexican.

    Then they banned the Muslim immigrants - and I did not speak out -
    Because I was not a Muslim.

    Then they went after the high-skilled H-1B immigrants from Asia - and I did not speak out - Because I was not an Asian high-skilled immigrant.

    Then they took away our democracy - and there was no one left who was allowed to speak out.

    Admittedly, our immigration laws give the president and the executive branch which the president controls a great deal of quasi-authoritarian power over immigration policy and enforcement.

    Even though the courts do not normally relish discussing this at any great length in their judicial opinions, the origins of this power date from the time of legislation intended to keep a different unpopular minority of that period out of the United States.

    I refer to the infamous Chinese exclusion laws, as upheld in a series of Supreme Court decisions of which the most notorious, Chae Chan Ping (1889) will forever be as much of a stain on American history as the much better known 1857 Dred Scott decision.

    This doctrine, known as the Plenary Power of the "political branches" of the government - the Executive and Congress - over immigration, is still with us today, In addition to putting decisions about whether to admit foreign citizens to the US largely, if not entirely, beyond the power of the courts to interfere with - see Kleindienst v. Mandel (1972) and Kerry v. Din (2015) it underpins broad authoritarian statues such as INA Section 212(f) which, read literally, gives the president the absolute power of a dictator over the admission of immigrants.

    The same authoritarian thinking also led to another broad statute, INA Section 274, which, again read literally, gives the federal government the power to prosecute and throw into prison anyone who resists or otherwise interferes with a policy of mass expulsion of Latino, Asian and Middle Eastern immigrants, or whatever other "enforcement" measures the president, as head of the executive branch, may choose to institute.

    In the past, in keeping with the spirit of democracy, these extremely broad, authoritarian powers have been used sparingly, with self-imposed limitations, by previous presidents.

    But this is no longer the case under our current president and his (ironically now embattled) chief immigration enforcer, Attorney General Jeff Sessions. Under this administration, the full authoritarian powers of these laws, especially regarding Section 212(f) are being tested. Increasingly, the courts are being called on to decide whether, with regard to immigration, America will continued to be governed by democratic principles, or whether this critically important area of our law and society will be run as a one-man dictatorship by executive order.

    This question is at the heart of what is at stake in the IRAP Muslim ban (because that is exactly what it is - we now have the president's own tweeted statement to confirm this) which is now before the Supreme Court.

    But this leads to a larger and even more important question. If America accepts the principle of one-man dictatorship over immigration, is there any way that authoritarian government can be kept inside this particular bottle, or, like the genie in the world famous Arab epic story Alf Laila wa Laila ("Thousand and One Nights") will the authoritarianism that pervades every aspect of the current presidency (see James Comey's June 9 testimony before Congress relating to what to all appearances amounts to obstruction of justice by the president), not to mention the president's attacks on the courts, the press, Democratic members of Congress whom he has just barred from receiving information from federal agencies, individual critics, and anyone else who stands in his way on immigration or any other issue) escape from the bottle and engulf the rest of our government and society, resulting in America's no longer being counted among the democratic countries of this world?

    Roger Algase
    Attorney at Law

    Updated 06-08-2017 at 07:10 PM by ImmigrationLawBlogs

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