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  1. PERM: Solicitor Scheinfeld's Advice

    by , 05-16-2011 at 05:09 AM (Joel Stewart on PERM Labor Certification)
    Last summer's AILA Conference in DC included a panel on BALCA with Harry Scheinfeld, Solicitor for the Employment and Training Administration (ETA) of the DOL. Mr. Scheinfeld's remarks included some advice which may be helpful to practitioners.
    Mr. Scheinfeld said that the DOL wins at BALCA about 90% of the time. Based on these numbers, Mr. Scheinfeld advised,  it is recommended that applications be filed for approval without appealing to the Board. While this advice may seem gratuitous, many appeals are based on careless or typographical errors. The whole point of the PERM Regulation is to eliminate unnecessary review of labor certification denials.
    The DOL currently uses a system of on-line checks for electronically filed cases which may warn Employers that the answer being given on the form is inaccurate, to avoid situations like incorrect dates of Sunday advertisements, which were improperly placed on Form 9089 in the HealthAmerica case.
    More importantly Mr. Scheinfeld also advised about bad lawyering, for example, when Employers submit new evidence directly in appeals to the Board instead of filing new evidence to the CO in a motion to reconsider.
    Motions to reconsider and motions for appeal to the Board were re-engineered in the regulations in 2007. Many practitioners do not realize that under current regulations, new evidence may only be introduced in a motion to reconsider to the Certifying Officer and not in a motion for review by the Board.
    Section 656.24(g)(1) entitled "Labor Certification Determinations states, "The Employer may request reconsideration within 30 days from the date of issuance of the denial."  In Section 656.24(g)(2) the request for reconsideration may only include "documentation that the employer did not have an opportunity to present previously to the Certifying Officer, but that existed at the time the Application for Permanent Labor Certification was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with the requirements..."
    Mr. Scheinfeld advised that a motion to reconsider is most useful when a denial is issued, without an audit, but when an approval would be possible, had the Certifying Officer received documentation that was not available with the application Form 9089 filed with the agency. 
    A more difficult situation occurs when the Employer has already responded to an audit, which provided an opportunity to submit the required documentation to the Certifying Officer, but the Employer failed to provide the documentation, and then, after receiving a denial, tried to submit the required documentation by means of a Motion to Reconsider.
    However, the entire section  656.24 does not clearly state who may reconsider the application. Based on the general context,  one may conclude (using precepts of statutory construction) that the DOL meant to say that only that the Certifying Officer may reconsider the application. This conclusion would be based on the fact that the entire paragraph 656.24 refers to the Office of Foreign Labor Certification Administrator, the National Certifying Officer, and the Certifying Officer. For example, 656.24(g)(4) states, "The Certifying Officer may, in his or her discretion, reconsider the determination or treat it as a request for review under Section 656.26(a)." This section was revised on July 16, 2007, and Mr. Scheinfeld explained that this was the agency's response to HealthAmerica.
    Keeping in mind that the DOL authorizes non-lawyers to represent Employers for profit, without being members of a bar association, it is unclear how employers and their representatives might always be expected to understand the mechanism of Motions for reconsideration, whether before or after July 16, 2007. Even a seasoned attorney might not realize that the Agency's legal interpretation of Section 656.24 is that initial motions to reconsider with additional documentation may only be filed to the Certifying Officer, and not to the Board. For example, nowhere in the PERM regulations does it state that motions to reconsider with new documentation are not permitted to the attention of the Board. Notwithstanding this regulatory language and its current interpretation, all motions to reconsider and all requests for review to the BALCA are filed with the Certifying Officer anyway, so this may contribute to the lack of certainty as to who may review what.
    Of course, a Motion to Reconsider may be filed with the Board after a decision issued by the Board in response to a request for review (appeal).
    To remedy this ambiguity, the regulatory language could be revised to state more clearly that a motion to reconsider may only be filed with with the Certifying Officer, and not as a motion for review to the Board. Or the CO might be authorized to treat all motions and requests as motions to reconsider, even if the motion or request includes documentation that has not previously been submitted, regardless of the title of the motion or request used by the employer, attorney or representative, and regardless of the person to whom the motion or request is addressed.
    The Certifying Officer already has several different queues depending whether the motion is submitted based on government error or non-government error.
    In conclusion, while Mr. Scheinfeld is correct that attorneys should read the regulations, and many have not, the PERM Rule itself may not always provide complete clarity to employers, attorneys or representatives who prepare and file applications under the PERM Regulation.

    by , 05-15-2011 at 07:22 PM (Greg Siskind on Immigration Law and Policy)
    Thanks to regular reader Legal and Still Waiting for his always excellent job summing up movement in the numbers:
    Family 1st - ROW, China and India are unchanged at 01 May 04; no change for Mexico at 01 Mar 93. Huge movement for Philippines - from July 1995 to 22 Feb 1996.
    Family 2A - ROW, China, India and Philippines have advanced 2 and half months to 22 Aug 07; Mexico advanced more than 6 months to 22 Jul 2007; Philippines advances 9 weeks to 08 June 07.
    Family 2B - ROW, India and China stalled at 15 April 2003; Mexico advances three weeks to 22 Aug 92 and Philippines advances to 08 June 2000.
    Family 3rd - most countries, China and India advance 1 month to 01 June 2001; Mexico stalled at 15 November 1992; Philippines advances 3 weeks to 08 March 92.
    Family 4th - most countries stalled at 08 March 2000; China advances to 08 March 2000; India stalled at 08 March 2000; Mexico stalled at 15 February 1996; Philippines advances 3 weeks to 01 May 1988.
    Employment 1st - still current in all categories
    Employment 2nd - most countries still current; two and a half month jump for China to 15 Oct 2006 and India jumps 3 and a half months to 15 Oct 2006. After a long time, both India and China have the same cutoff dates for this category.
    Employment 3rd - three weeks advance for ROW to 15 Sept 2005; I month advance for China to 15 May 2004; one week advance for India to 22 April 2002;  Mexico jumps three and a half months to 22 Dec 2004; 3 weeks advance for Philippines to 15 September 2005.
    Employment 3rd Other Workers - most countries advance two months to 08 Nov 2003; China still stalled to 22 April 2003; India advances one week to 22 April 2002; Mexico and Philippines advance 2 months to 08 Nov 2003.
    Employment 4th - still current in all categories
    Employment 5th - still current in all categories   
    This writer expects rapid advances for EB-2 India and China in the next 3 months as the 4th quarter spillover of unused visas from EB1, EB2-ROW, EB4 and EB5 fall up, down and across. Stay tuned!

    by , 05-15-2011 at 01:41 PM (Greg Siskind on Immigration Law and Policy)
    Youth-led organization United We Dream issued a scathing letter criticizing President Obama for using his recent speech on immigration as the basis for a fundraising ad.

    This week, President Obama addressed a crowd in El Paso, Texas regarding immigration Reform. DREAMers from across the country watched, waiting, and hoping to see a concrete action plan that would complement the next day's historic introduction of a bill that would bring relief to the more than 2 million Dreamers that would qualify for the DREAM Act. That same evening, President Obama sent out a fundraising email about his immigration speech. The Obama campaign email solicits for a contribution on their website and on Facebook to raise funds for his 2012 presidential campaign, using the DREAM Act.

    Instead of choosing to end our pain, he has chosen to use our suffering to grow his campaign. We find this both disappointing and offensive and demand that the Obama campaign take this ad down immediately. To see the Ad click here

    Leaders, activists, and supporters across the nation are angry by an immigration speech quickly followed up with a call for donations for passing the DREAM Act, asking people to pay for his leadership.

    Erika Andiola, leader in United We Dream (UWD), and the Arizona Dream Act Coalition said, "The president hasn't used his power to bring relief to immigrant families, but now expects people to make donations and grant him their vote. Obama, ˇAsí no se puede!"

    This Thursday, we launched a nationwide petition requesting the Obama campaign to take down these ads and focus on delivering results like stopping the deportations of DREAMers before asking for our money. Click here to sign the petition. "We Ask President Obama to take down these ads immediately and take real action in stopping our deportation as we join leaders like Senator Reid, Durbin and Reps. Ileana Ros-Lehtinen and Howard Berman in our fight to pass the DREAM Act," said Felipe Matos, UWD leader and member of Students Working for Equal Rights in Florida.


    by , 05-14-2011 at 08:08 PM (Greg Siskind on Immigration Law and Policy)

    Opponents of comprehensive immigration reform often point to the 1986 legalization bill as a great failure that should not be repeated. What they don't want to talk about are the great number of success stories for people who were able to become legal. One story that is making the news 25 years later is that of Ana Hernandez Luna who gave an extraordinary speech on the floor of the Texas House of Representatives where she told her own story of her life as a young undocumented immigrant in the 1980s.
    The Texas Observer reported on her remarks:

    Tuesday, after it was all said and done and HB 12 was passed, Houston Rep. Ana Hernandez Luna gave one of the most poignant personal privilege speeches in the history of the Texas House. Hernandez Luna told the chamber that she had grown up undocumented in Texas. The amnesty granted by President Ronald Reagan in the 80s had allowed her family to come out of the shadows, she said.
    "I remember the constant fear I lived with each day," she said. "The daily task to go buy groceries, it was a simple task for you but for us it was a death sentence because at any time one of my parents could be deported. Some say immigrant children are a drain on public schools. I don't consider myself a drain. I graduated at 16 with honors got a bachelors degree, got a law degree and was elected to the Texas House at age 27," she said. "I know firsthand the impact HB 12 will have on families who are undocumented, the fear mothers will feel when they go to the grocery store."

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  5. NPR: Navarrette: Latinos Should Form 'Tequila Party'

    by , 05-13-2011 at 04:47 AM (Matthew Kolken on Deportation And Removal)
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