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    by , 03-07-2011 at 06:56 AM (Greg Siskind on Immigration Law and Policy)
    Utah legislators passed two measures Friday that set the state on a different course than Arizona. One measure is an enforcement one and would require police to check the immigration status of those stopped on suspicion of committing felonies and misdemeanors. The measure's most controversial provision - an Arizona-style section allowing police to stop people based on a "reasonal suspicion" that the person is illegally present - was removed.
    The bill is making headlines as well for inclusion of a guest worker provision that will allow the state to issue two year work permits to persons illegally present in the state if they pass a criminal check and pay a $2500 fine. The bill calls on the governor to negotiation a waiver from the federal government to permit the program but also allows the state to proceed even if the federal government refuses.
    While it is encouraging to see conservative Republicans recognize the need for compromise on dealing with the illegally present immigrant population, the fact is that the bill is probably unworkable and likely unconstitutional. For the same reason states cannot make their own immigration enformcement progams, they also are not authorized to establish their own work programs. It's the federal government's sole responsibility. Yes, the federal government can delegate responsibilities to the states. But if it does not, then states are not authorized to act on their own.
    What might be interesting, however, is if the Obama Administration and Congress are interested in working a deal with Utah so the constitutional question could be sidestepped. I'm not sure how this would work - and I'm not sure those in Utah understand either - but it certainly will be interesting to follow developments.
  2. PERM: Business Necessity Revisited

    by , 03-07-2011 at 06:16 AM (Joel Stewart on PERM Labor Certification)
    William Stock, Esq., participated in a panel at the mid-winter AILA Conference which took place in Miami on February 17 and 18. Bill chaired a panel on PERM Updates, but I wish to focus on the article he presented in the Conference Materials regarding Business Necessity.
    Bill's article emphasizes the importance of a well written and detailed narrative to document business necessity in the PERM File. This is a point well-taken and is, indeed, the best way to present business necessity documentation.
    The DOL relies essentially on the business necessity standard announced in Matter of Information Industries, 88-INA-82 (1989) BALCA (en banc). This, of course, is a well-known two-prong test, where the Employer must document business necessity by proving the first prong, that the employer's requirements are essential to perform the job duties and the second prong, that the requirements are normal.
    Although the concept is simple, the execution is more difficult. As Bill aptly notes, the best way to go about this is to prepare a detailed narrative to be signed by a responsible person such as the Employer or HR Manager, under oath, with data and details that only the Employer can cite. This type of affidavit is very effective to prove business necessity, however, it is highly labor intensive and requires a great deal of work by persons who are skilled in writing the English language -- like English majors and others who have mastered the art of effective writing. In fact, I recall the words of a successful practitioner who said that in his law office he hires people with excellent communication skills.
    However, the business necessity statement should also be accompanied by objective data and documentation to bolster and corroborate the statement of the Employer. It is wise to note that in doubtful cases,  the opinion of an expert can also be attached to the affidavit.
    It follows then that the best prepared business necessity statement, will be based on a detailed narrative-style affidavit, signed under penalty of perjury, and accompanied by pertinent documentation and the opinion of an expert.
    Implicit in this argument is that the business necessity statement must be presented to DOL for consideration, but the only way this can be done is if the application for certification is audited. The business necessity statement becomes part of the record file which must then be transmitted to the Certifying Officer for consideration.
    In one BALCA case, the Certifying Officer did not accept the business necessity documentation and forwarded it to the Board, however, the Board approved noting that the Employer's affidavit swayed contained information that is not on the PERM Form 9089. This is a basic peculiarity with PERM -- that the Employer's only opportunity to get anything in the record may not be on the form itself, but in the supporting documentation in the record file. Some practitioners advise putting as much information about business necessity on the form in any of the available spaces in Part H, such as the job descrition itself, the statement of special requirements, or even in the statement of the alien's qualification, Part J & K.
    The point of all of this is that where business necessity is the issue, the manner of presentation must be credible, probative, convincing, and easy to read. As it has been said many times, "The Devil is in the details," and in a PERM case a detailed presentation of the business necessity statement will help win the case.
    Employers and attorneys should also review the PERM regulations so as to understand the standards that must be proved throughout the process. Matter of Information Industries only applies to the employer's job requirements if not deemed normal in the United States.
    Entirely different standards apply to combination of job duties, language requirements, qualifications gained on the job, live-in requirements, and actual minimum requirements, all of which have specific formulas in the PERM Rule that explain how to document that that they do not violate the regulations.
    The PERM Rule established new regulations for Employer's to follow, as of May 28, 2005, however, pre-existing BALCA decisions, may also be considered valid, unless they conflict with the PERM Rule itself.
    While BALCA decisions are not truly precedent decisions, they may be used as interpretive guidance to prepare PERM applications and to respond to audits or negative findings.
  3. Political Asylum for Libyan Students in the US?

    More than 1,000 Libyan students are currently studying in the United States, and the continuing unrest in their homeland has them worried.  To make matters worse, the Libyan Embassy in the U.S. apparently contacted many of the students and threatened to take away government scholarships unless they attended a pro-Khadafy rally in Washington, DC.  The Libyan Ambassador (predictably) denied any such threats.
    Anti-Khadafy protestors tell it like it is.
    Some of the students are politically active.  For example, a student in New York has started a Twitter account called Enough Gaddafi that has over 7,000 followers (a website is coming soon).  In Kentucky, a group of 50 Libyans gathered to voice their support for the protestors in Libya.  And Libyan students in Colorado and Oklahoma are speaking out publicly against Libyan leader Moammar Khadafy.
    Given the current situation, can Libyans in the U.S. successfully claim political asylum? 
    As usual in immigration law, the answer is a definite maybe.  For those students listed by name in newspapers and who engaged in anti-Khadafy political activity, or who made anti-Khadafy comments, I would imagine that they have a solid claim for political asylum.  If Mr. Khadafy remains in power, the students would face severe consequences upon their return to Libya.  There is no doubt that Mr. Khadafy's regime tortures and murders political opponents.  Further, given the Libyan Embassy's attempt to rally Libyans in the U.S. to Mr. Khadafy's defense, it is very likely that the Libyan government is aware of the students' political opinions.  
    For those Libyans not mentioned in newspapers, or who were not contacted by the Embassy about attending the pro-Khadafy rally, an asylum claim might be more difficult.  Generalized strife in a person's home country-in and of itself-is usually not sufficient to qualify for asylum.  Whether a particular individual qualifies for asylum would depend on his or her personal circumstances.
    Finally, the situation in Libya is very fluid.  Perhaps Mr. Khadafy will be gone soon (we can only hope), but perhaps not.  As the situation on the ground continues to evolve, so too will the possibility for asylum for Libyans in the U.S.
    Originally published on the Asylumist:
  4. Granular and Possibly Grand Immigration Reform

    by , 03-05-2011 at 10:37 PM (Angelo Paparelli on Dysfunctional Government)
    Ever since studying Constitutional Law years ago, I've never really resolved in my mind*the tension between federal supremacy and states rights.*Most days, I see the need for national uniformity of law and lean toward federal power.* *At other times,*I appreciate the benefit of sensitivity to local conditions and the wisdom of allowing the states to serve as 50 laboratories to develop what I hope might be enlightened solutions to daunting problems.
    The issue arose again this week in an offhand reply I Tweeted to an anonymous, conservative-leaning polymath, who*carries the Twitter name "euandus,"*in response to his blog post (with identity still masked) entitled, "Immigration and Federalism in the U.S.: Should States like Arisona (sic) Participate?"**
    The federalism/states-rights conundrum surfaced again in the Twitterscape, this time with a thoughtful blog post by "Chakazoid" -- a likewise unidentified inhabitant of the virtual world -- who wrote, "My Crazy Theory on Immigration."* Chazkazoid, an apparently precocious college student,*wondered aloud why Georgia, in trying to outdo Arizona, proposed*a Jim Crow anti-immigrant bill that suddenly became "more lenient" (his supposition: "to protect the agriculture industry").
    I've viewed these state excrescences as affronts to federalism, and suggested as much to euandus, by noting that having*"50 state versions of immigration laws would be as dysfunctional as were the Articles of Confederation."*My hope has been that the U.S. Supreme Court in the already-argued case of*U.S. Chamber of Commerce v. Candaleria, will scuttle Arizona's efforts to*neuter the federal preemption doctrine by attempting to regulate immigration.* After*reading the transcript of oral argument*in Candaleria, however, I've become less hopeful that preemption will*prevail.
    The prospect that the states might be given free reign to legislate in the immigration domain chills my spine like an icicle.* (It would be a mess for all of us if we were required to carry internal passports and get visas to go from state to*state. And, yikes,*how would I ever learn*50 state immigration codes?)*
    Then I read an op-ed by Jason L. Riley in the March 5 Wall Street Journal, "Utah Seeks a Better Way on Illegal Immigration,"*that gave me cause for modest hope.* Utah state Senator Curtis Bramble, a Republican from Provo,*has sponsored a bill with a good chance for passage that would do what has long stymied the federal Congress.**Sen. Bramble's bill*would permit undocumented immigrants in the state who've passed a criminal background check to pay a fine of up to $2,500 and apply to the*Utah Department of Workforce Services for a temporary work permit.*The bill, assigned number 288 (as amended), is premised on the Utah Compact.* The Compact rests on five principles:
    FEDERAL SOLUTIONS Immigration is a federal policy issue between the U.S. government and other countries--not Utah and other countries. We urge Utah's congressional delegation, and others, to lead efforts to strengthen federal laws and protect our national borders. We urge state leaders to adopt reasonable policies addressing immigrants in Utah.
    LAW ENFORCEMENT We respect the rule of law and support law enforcement's professional judgment and discretion. Local law enforcement resources should focus on criminal activities, not civil violations of federal code.
    FAMILIES Strong families are the foundation of successful communities. We oppose policies that unnecessarily separate families. We champion policies that support families and improve the health, education and well-being of all Utah children.
    ECONOMY Utah is best served by a free-market philosophy that maximizes individual freedom and opportunity. We acknowledge the economic role immigrants play as workers and taxpayers. Utah's immigration policies must reaffirm our global reputation as a welcoming and business-friendly state.
    A FREE SOCIETY Immigrants are integrated into communities across Utah. We must adopt a humane approach to this reality, reflecting our unique culture, history and spirit of inclusion. The way we treat immigrants will say more about us as a free society and less about our immigrant neighbors. Utah should always be a place that welcomes people of goodwill.
    A leading proponent of Utah Bill 288, Natalie Gochnour, Chief Economist for the Salt*Lake Chamber of Commerce, explained her support*to*Riley in his*Wall Street Journal op-ed:*
    Utah has a growing economy that's ready and able to put people to work.*Our business leaders are saying, 'Let's not diminish our labor supply.* Let's not reduce our customer base.* Let's not raise business costs. Let's not detract from outside investment, convention business [and] tourism.'
    Of course, to be effectual, Utah's guest worker program would likely need a federal waiver (unless Candaleria*is decided in Arizona's favor).*Existing precedent for the delegation of authority over immigration benefits already exists with the federal government's Conrad 30 program, which allows each state to sponsor physicians for waiver of the two-year, home-country residence requirement of the J-1 Exchange Visitor visa category.**(Utah, by the way,*is not alone in proposing that states mobilize to gain the ability to issue internal work visas, as Ezra Klein of The Washington Post has argued persuasively.)
    While Utah moves forward on a humane and pragmatic*state-level strategy, Chakazoid, ever the optimist, still harbors hope for a federal solution:
    Whatever the underlying issue for the slow progress on immigration, I have faith that we will come to our senses. We should be more welcoming to immigrants from every country and find a way to once and for all deal with the 12 million illegal immigrants already here. The solution should be pragmatic, involve a comprehensive reform, and benefit our economy, along with a bipartisan effort. We may sit here and play the blame game, as congress has been doing for the past decade, but it is this very game in which America is losing.
    For my part, I see less reason for optimism.* I join in the "stinging rebuke" leveled*in the March issue of*Arizona Attorney*by my former partner and*recently-retired Chief Counsel of USCIS, Roxana Bacon, who candidly decried the "legislative irresponsibility and the lack of executive leadership"*of*official Washington in the passage below (emphasis mine):
    Forget that Comprehensive Immigration Reform (CIR) died a premature death last spring. Charles Schumer and Lindsay Graham, two heavy hitters, refused even to introduce the modest CIR legislation, drafted largely by DHS, because they were unable to get a single other Senator to sign on. Leadership, anyone?
    The White House was mostly MIA, with attention so glued to other matters that even a rousing march to the Capitol by Dream Act kids and thousands of advocates merited no real action.* Indifference, anyone?
    . . . [USCIS] stayed underground, armed with bureaucratic plans and a PR machine rather than visionary policy statements or practical field directives that would move us forward. Timidity, anyone?
    However, not everyone stood down.* CBP and ICE went into overdrive to detain more people, remove more people, and exercise less discretion than at any time in our nation's modern history.* . . . When advocacy groups questioned this 180-degree pivot from the campaign, they were told that no reform would be politically feasible until the anti-immigrant politicians were convinced that this Administration was tough on immigration.* The groups who hijacked the immigration conversation will never be appeased.* Not a good strategy. . . . [Reform] by increased enforcement was hardly the campaign promise. Duplicity, anyone?
    Roxie Bacon likewise looks to the states "as the most logical and invested laboratories to sort through the complications inherent in deciding what a vital and secure immigration law should look like," not to mention the courts, "emboldened advocates, who stand up to meanness and indifference in the face of human suffering and need, and [to]*inventive lawyers representing them."
    It's not too late for the*Federales in DC to renounce their "collective ostriching," as Roxie describes their posturing.* Perhaps now, with the economy in rebound, unemployment finally less than 9%, and the states at the ramparts poised to usurp the federal role*in immigration policy, our pusillanimous*"leaders" in Washington will at last take pragmatic and humane steps to pass comprehensive reform, or*at least grant Utah and other states the right to fix our dysfunctional system.*
    * * *
    POSTSCRIPT In a hectic day and night of amendments and maneuvers, the Utah legislature passed two immigration-related measures that together comprise comprehensive immigration reform at the state level.* One of these, HB 116, creates a Utah guest worker immigration program. The other, HB 497, is said to focus on serious crimes.* The federalism/states-rights tension continues.*
  5. Civil War Within The GOP

    by , 03-04-2011 at 02:26 PM (Gary Endelman on Immigration Policy and Law)
    We tend to forget it now, and so do they, but the Republican Party was born in protest. The political expression of the Northern revulsion against the Dred Scott decision, the GOP embodied an aggressive nationalism that helped to usher America into the modern era.  For some time now, there has been a civil war within the GOP over immigration between those who viewed immigrants as an asset to be maximized versus those who saw it as a problem to be controlled. There are historical antecents for both camps. The pro-side can look back to Theodore Roosevelt, the first modern Republican president who was an outspoken advocate for the immigrant masses of the early 20th century while the nativist wing finds their ancestral justification in 1924 Immigration Act whose purpose and effect was to go back to the America of 1890 before the tsunami of Jewish and Catholic migration. 
    More recently,  it seemed as if the "compassionate conservative" advocates would win. President Ronald Reagan signed the IRCA amnesty into law; President George H.W.Bush signed the Immigration Act of 1990 that tripled the number of employment-based immigrant visas; President George W. Bush was the first President to speak in favor of immigration reform in a nationally televised address from the Oval Office.  Wait, there is more. Remember Senator Orrin Hatch who introduced an earlier version of the Dream Act or Senator John McCain who crossed the aisle to work with the late Senator Edward Kennedy to bring about comprehensive immigration change ?
    No longer. As the economy deteriorated, the housing market collapsed, unemployment soared, banks stopped lending, and Wall Street stood on the precipice of ruin, the vision, compassion and courage necessary to embrace an enlightened immigration policy vanished. In its place came cries to "take our country back!" . Now that is an odd phrase- back from whom?  Fear and loathing stalked the halls of Congress- defund the USCIS; safeguard the border; resist any attempt to bring the undocumented in from the shadows. These are the rallying cries of America in the age of the Tea Party uprising.  Only those who go hard right can survive. The same McCain who once proudly claimed pride of authorship for CIR made television commercials in his desperate and successful effort to turn back the primary challenge of radio talk show host J.D.Hayworth that featured the repentant reformer telling his law enforcement buddies that Uncle Sam had to hurry up and "build the dang  fence!"  Robert Bennett who had been known for decades as one of Utah's most celebrated conservatives did not go hard right enough and he paid for his moderation by losing a primary challenge to the insurgent Mike Lee who coasted to a general election win. How about Orrin Hatch?The passionate avatar of the Dream Act now votes against his own creation.
    Whatever the merits of any immigration proposal might be, the political realities now in the ascendancy are such that few, if any, Republican legislators in Congress will be foolhardy enough to vote for it, knowing that, if they do, a Tea Party primary challenge will most certainly await them at the next election cycle. Senator Lindsey Graham who sought to cobble together a bipartisan Senate consensus in favor of CIR faces precisely this uncertain fate in 2012; conscience on Capitol Hill may be precusor to a long winter in South Carolina.
    In the short run, the victors in this internecine party warfare , may reap a political dividend but, over time, this is a formula for impotence and minority status. Just as the GOP won during the Roaring Twenties by closing the Golden Door through a national origins quota,   the children and grandchildren of these despised immigrant newcomers turned against the Party of Lincoln and formed the bulwark of a New Deal coalition that won 5 straight presidential elections. The GOP is now repeating their historic mistake by alienating the fastest growing voting bloc in the nation. Will they pay a cost for their folly? Yes, but only if President Obama and the Democratic Party realize that forthright advocacy of immigration reform is not only good policy but winning politics  Whoever captures the allegiance of the Spanish-speaking electorate will become the majority governing party for decades to come.  If you doubt this, ask Senate Majority Leader Harry Reid whose unlikely survival was made possible through union ground troops and Hispanic voters.  Joe the Plumber may sing the siren song of nativism, but America is becoming less male and less white. If the Republicans want to win,they cannot afford to throw away the electoral votes of California, Arizona,  Florida,New Mexico,Colorado and Nevada. Do that and you are no longer a national party, limited to a regional redoubt in the South and inner mountain West.  Even Texas, a solidly Red state where, save for isolated pockets of Democratic resistance, has now joined California as a majority-minority status. Write this down neighbor: Texas goes Democratic in two generations as more voters in the Rio Grande Valley exercise the franchise.
    You know the funny thing? The Republicans do not know they have a problem and the Democrats  do not see their opportunity.  Stay tuned.
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