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  1. PERM: Recruitment Reports

    by , 06-18-2011 at 11:22 AM (Joel Stewart on PERM Labor Certification)
    Many practitioners have been forwarding samples of audits they received for PERM cases, in which they question the manner that the Certifying Officer has requested detailed information about the qualifications and reasons for rejection of U.S. Workers.
    Remembering that the phrase "U.S. Workers" is a term that includes persons with permanent work authorization (U.S. Citizens, Permanent Resident Aliens, Asylees, Refugees and certain persons with amnesty rights), all other kinds of aliens with temporary work authorization may be lawfully rejected during a recruitment campaign.
    It is not generally understood by Employers that the statute requires the Department of Labor to determine whether there are qualified U.S. workers (qualified, able, willing and available) and that the burden of proof is on the Certifying Officer to demonstrate the availability of such workers.
    In practice, the C.O. usually denies a case by alleging that the Employer did not follow the regulations, i.e., by an error such as omission or failure to provide documents or information required by the Rule.
    One of the documents required by the PERM Rule is a Recruitment Report, in which the Employer must explain the reasons why U.S. workers were rejected and not hired.
    This report must be quite detailed, and failure to provide adequate documentation will result in a denial of PERM.
    Recently the C.O. has been asking for detailed information about recruitment campaigns in conjunction with audits. The information requested includes resumes of U.S. workers, dates and manner of attempts to contact workers, and lawful job related reasons for rejection.
    The word "rejection" is a term of art used broadly by the DOL in its PERM Rule to include not only categories of U.S. workers who were rejected by the Employer but also those U.S. workers who did not prosecute their applications for employment, or were unavailable or unwilling to accept the job.
    A recent audit received by an employer from the DOL contained the following request:

    Please provide resumes and applications for all U.S. workers who applied for the employer's job opportunity listed on the ETA Form 9089.
    In addition, please provide a report that lists the following information for each U.S. worker rejected for the job opportunity: the date(s) the employer contacted the U.S. worker; the date(s) the employer interviewed the U.S. worker; if appropriate, the reason(s) the employer did not interview the employee; the specific, lawful job-related reasons the U.S. worker was rejected; and how the U.S. worker was informed that he or she did not qualify for the job opportunity.
    Also include information that documents the employer contacted the applicant(s) by phone (telephone logs), e-mail (dated copy of electronic transmission) and/or by mail (copy of letter sent to applicant[s]), along with a copy of certified mail/signed green return receipt card).

    Although some of the above details are required by the regulations, other items are not specifically enumerated as requirements in the PERM Rule. Note that certified mail/signed green return receipt cards, while highly recommended, are not a legal requirement. Informing US workers that they have been rejected is also recommended, but not required, and would depend in part on the business policy of the employer or the community.
    DOL requests for detailed documentation in recent cases are an indication that the agency is now entering into the phase of challenging employer's interview procedures and fair, objective treatment of US workers by applying pre-existing BALCA law.
    The Board of Alien Labor Certification Appeals has previously held that the Employer must document with very convincing evidence that it has contacted US workers. This may include proof of attempts to contact on multiple occasions; prompt efforts to contact not lasting more than two weeks in some cases; and proof that certified mail receipts were signed by the job applicant, and not by another member of the household.
    This should serve as a warning that Employers may not simply expect to submit a Recruitment Report with vague generalities, as suggested by the PERM Rule, but that only a highly detailed recruitment report supported by strong documentation of the entire process is sufficient to overcome an audit when it occurs!
  2. First, Do No (Immigration) Harm (to Business Visitors)

    by , 06-17-2011 at 07:38 AM (Angelo Paparelli on Dysfunctional Government)
    The sage of the current age, Wikipedia, defines the term "nonmaleficence" -- from the Latin primum non nocere -- as a principle of medical ethics, one that in my view is equally applicable to the immigration sphere.  The princple holds that "given an existing problem, it may be better not to do something, or even to do nothing, than to risk causing more harm than good." Nonmaleficence comes to mind with the recurrence of an old controversy (largely out of public view) which, if its proponents win the day, could badly batter America's economy at a time when too many of our citizens are still reeling from the crash of 2008.  
    The fight involves a "gallimaufry of foreign citizens" whom I listed in a 2000 article, "The Incredible Rightness of B-ing," including "truck drivers, tailors, computer professionals, missionaries, household workers, trainees, medical students, yachting crews, executives, seminar attendees, investors, athletes, corporate directors, plaintiffs, defendants, and expert witnesses."
    They are not characters in search of an author, like the "lost souls in the Pirandello play." No, the members of this motley crew are all categorized as "business visitors" under U.S. immigration regulations and State Department guidance. Together with tourists, these soujourners from abroad comprise the "B" visitor visa category, and are also admitted as entrants to the U.S. with the designations "WB" (Waiver Business) and "WT" (Waiver Tourist) under the Visa Waiver Permanent Program.
    In the 21st Century's first decade, however, visa hassles, security screens, faraway locations for consular interviews and other government-induced frustrations, have dissuaded legions of foreign visitors from coming to the U.S. and thus caused the loss to our economy of more than a half trillion dollars and 441,000 jobs, according to a Feb. 2010 report by Oxford Economics and the U.S. Travel Association ("The Lost Decade: The High Costs of America's Failure to Compete for International Travel"). The problem continues in the second decade, as recent cyberspace postings (here, here, and here) attest.
    Now Sen. Charles Grassley, a legislator on a vendetta to restrict legal immigration, has taken a swipe at a highly useful subcategory of business visitor, known in the arcane argot of immigration as the "B-1 in lieu of H-1" ("BiloH," for short).   In a letter to Secretaries Clinton and Napolitano (of State and Homeland Security, respectively), Sen. Grassley insists that the BiloH be eliminated as a lawful means of entry to the United States.  To understand his gripe, readers should first consider the longstanding interpretation of the BiloH here originating from the legacy agency, Immigration and Naturalization Service (INS), or this helpful explanation from the U.S. Embassy (Mumbai):
    Any person holding a B1 or B1/B2 visa may be eligible to perform H-1B work in the United States as long as they fulfill the following criteria:
    * Hold the equivalent of a U.S. bachelor's degree
    * Plan to perform H-1B-caliber work or training
    * Will be paid only by their foreign employer, except reimbursement of incidental travel costs such as housing and per diem. The employee must not receive any salary from a U.S. source.
    * The task can be accomplished in a short period of time.
    Sen. Grassley voices concern, based on unproven allegations yet to be litigated, that the BiloH is being "abused" by multinationals to circumvent "the annual caps and prevailing wage requirements of the H-1B visa program" while "defy[ing] the intent of Congress."  
    For newcomers to immigration, the labor protections of the H-1B visa category to which the Senator refers were first introduced with the enactment of the Immigration Act of 1990 (IMMACT) -- a law that made no change to the visitor classifications or to the preexisting BiloH subcategory. As readers of this blog know, the H-1B category for workers in specialty occupations holding at least a bachelor's degree or the equivalent involves a convuluted process that only a bureacrat or pol could love.  In the years since 1990, the annual H-1B numerical quota has run out early several times, and businesses had to give up on otherwise lucrative projects because qualified workers with the needed education and skills could not be found domestically or imported until the next year's quota allotment.
    In 1993, however, INS and the State Department tried to eliminate the BiloH and impose added restrictions on visitor visas, 58 Fed. Reg. 58982 (proposed November 5, 1993), 58 Fed. Reg. 40024 (proposed July 26, 1993).  Their proposals faced a storm of opposition and were never finalized.  Those opposed to eliminating the BiloH challenged the agencies' assertion, now resurrected by Sen. Grassley, that in passing new requirements on the H-1B in IMMACT, Congress must have intended (albeit silently) to eliminate the BiloH. 
    Opponents, including this blogger, argued at the time that Congress must have wanted the BiloH to continue in use.  We maintained that the BiloH acts as a safety valve in situations where there is no U.S. job of an enduring nature to fill -- just a short term project that will go away before long.  This is in keeping with the agencies' view of the business visitor classification as a temporary "catch-all" category covering a wide array of commercial activities that are no threat to U.S. workers.
    As even the most confirmed Luddite would be forced to admit, globalization has transformed the U.S. economy since 1993.  Thus, the importance of facilitating the entry of business visitors is even more important today than in decades past.  Regrettably, however, the State Department has responded to Sen. Grassley by rolling over.  Joseph E. Macmanus, State's Acting Assistant Secretary for Legislative Affairs, in a letter, replied that State is working with the Department of Homeland Security (DHS) to "remove . . . or substantially modify . . . [the BiloH]," but this "may require Federal Register notice."
    No kidding that Federal Register notice would be required.  But not just notice; how about an opportunity to comment, as well?  We've seen this pattern all too often before.  Sen. Grassley complains about a perceived abuse and the agencies cower in fear and obsequiousness -- without regard to the facts, or the legal merits of his asserted concern. If State and DHS can't stand the heat then perhaps a cabinet-level Department with a mandate to espouse immigration and thereby promote our economic interests should utter the nonmaleficence principle in plain English:  "If it ain't broke, don't fix it.
  3. ICE Head Morton at the AILA Conference in San Diego, CA

    This year the American Immigration Lawyers Association National conference is being held in San Diego. Just a few blocks from our down town office, you can see thousands of Immigration lawyers gather to socialize, learn and advance our profession.
    Yesterday, ICE head John Morton, opened with an discussion about ICE's activity and future plans. ICE released new IDENT statistics that show immigrants with low level offenses account for a large number of those caught in the dragnet created by Secure Communities.
    Of 477,035 matches, 71, 197 have been identified as level 1 offenders, while 405,838 were identified as level 2 and level 3, between October 2008 and February 2011.
    Meanwhile, of the 405,838 level 2 and level 3 matches, 52,603 individuals were identified as non-criminals booked into ICE custody, while 24,884 level 2 offenders and 49,019 level 3 offenders were booked.
    According to ICE, "deployment continues to be the primary driver for increased identifications."
    Secure Communities, which relies on police in local jails to enter prints of those they arrest into a joint FBI and ICE database, is currently active in 1,123 jurisdictions in 40 states. ICE plans to enroll 488 more jurisdictions by the end of FY 2011 with a goal of total deployment in 2013.
    When former AILA president offered Morton the Support Secure Communities badge, he kindly declined)
    He also stated that his own mother is still a Green Card holder after many years living in the US. He was also born outside of the US.
    Keeping you posted tomorrow..

  4. Bloggings: How much longer can Obama and the Democrats get away with taking immigrants for granted? by Roger Algase

    Accotding to a June 16 article in the Huffington Post "DREAM Act Supporters: Democrats Shouldn't Count On US In 2012" (see 06/16 ID), DREAM Act advocates are getting fed up with the lukewarm support  they have been getting from the Democratic party. In December, 2010, five "centrist" Democrats joined Senate Republicans to vote against cutting off debate on the DREAM Act bill. Another Democratic Senator did not vote. The bill failed to survive a Republican filibuster by exactly five votes. (Three Republicans had the courage to defy their own party and voted with the majority of Democrats to end the filibuster).
    The White House, which did nothing to put pressure on the Democrats who refused to support the DREAM Act, is now reportedly deporting student activists who would have been eligible for relief under the DREAM Act if it had passed.  The DREAM Act, of course, is just one of many examples of President Obama's betrayal of the immigrants whom he had promised as a candidate to protect against being made scapegoats. Instead of the DREAM Act, Obama and his enforcement-only obsessed DHS officials have given immigrants and their supporters a series of nightmares - "Secure Communities", E-Verify and INA Section 287(g) agreements with local officials.
    This raises the question why immigrants and their advocates are only now, six months after the DREAM Act fiasco, starting to make noises about the betrayal by the Obama administration. Cowed by the thought of a Republican takeover, which might effectively end all further immigration and lead to the roundup, internment and expulsion of the 12 million mainly Latinos and Asians who are currently estimated to be in the US without authorization (while America's jails fill up with employers and other US citizens who have violated draconian compliance regulations), immigrants and their advocates have been willing for far too long to give Obama a pass on the theory that he is the lesser of two evils.
    What is needed is a focused pro-immigrant movement, similar to the Tea party movement on the other side, within the Democratic party - or outside of it. Just as the Tea Party has put its own ideological "purity" ahead of winning elections, and as a result has become a major political power in the service of Fox News, the Koch brothers and its other well heeled corporate backers, immigrants and their supporters need to make their voices heard, even if it means bringing down a president who cannot possibly DREAM of being reelected without the suport of Latino and other minority voters.
    When immigration supporters finally show that they are serious, then we will start to hear a great deal less from this administration about monstrosities like "Secure Communities", E-Verify and 287(g), and a great deal more about immigrant rights.
  5. NY Times: Congress Moving Forward With Smaller Measures

    by , 06-16-2011 at 11:53 AM (Greg Siskind on Immigration Law and Policy)
    Regular readers of this blog know that I tend to be a pragmatist on immigration reform and that while a comprehensive solution is ideal, politically it is just not possible. Looks like Republicans and Democrats are starting to understand that accepting lesser change is better than more deadlock.
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