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-----------------IMMIGRATION DAILY FROM ILW.COM------------------
March 7, 2011
1. Comment: Immigration Consequences Of Budget Impasse - On March
2, Republicans and Democrats on the hill narrowly avoided an
imminent government shutdown with the passage of a two week
continuing resolution that keeps the government operating for
now. All the parties have until March 18 to come up with a budget
compromise. It is going to be a game of brinkmanship where both
parties are going to feel out whether it would be politically
expedient for them to precipitate a government shutdown rather
than make a compromise. The effects of a government shutdown have
not been felt since 1995.
What would be the immigration consequences of such a budget
impasse? There are three kinds of agencies involved in providing
immigration services. Firstly, in case of enforcement agencies
like ICE and CBP we expect that they will be given the budgets
they need to continue the record-breaking enforcement they have
been doing. Secondly, the fee-based organizations like the USCIS
have nothing to worry about regarding the budget impasse either,
because as the economy continues to recover they will see an
increase in their fee-based revenues.
But it is the third category of non-fee-based organizations such
as DOS, DOL and EOIR that will present a serious problem. A
disproportionate percentage of budget cuts will likely fall on
these organizations, and we expect to see a dramatic
deterioration of services. The last time there was a government
shutdown, consular processing ground to a halt and DOL backlogs
continued to grow until they culminated in RIR and the PERM rule.
Our predictions here are somewhat speculative because there are
so many moving parts that will shape how the money is actually
allocated - with many of the parts jockeying with each other for
their advantage. But we expect a significant (30-50%) slowdown of
the cycle times at DOL, DOS and EOIR, in the event of a
government shutdown. All practitioners dealing with these
agencies have grounds to be concerned.
2. Article: Mexican Immigrants In The United States by Aaron
Terrazas for Migration Policy Institute
3. Article: House Panel Measures The Value Of E-Verify by John
4. Bloggings: Civil War Within The GOP by Gary Endelman
5. Bloggings: PERM: Business Necessity Revisited by Joel Stewart
6. Bloggings: Granular and Possibly Grand Immigration Reform by
7. Bloggings: Political Asylum for Libyan Students in the US? by
8. Bloggings: Utah Heads In Different Direction Than Arizona by
9. News: CRS Report On Trafficking In Persons In Latin America
And The Caribbean
10. Focus: PERM For Experts: Post-Recruitment Issues
Tuesday, March 8 is the deadline for the Thursday, March 10 phone
session of PERM For Experts, with Sofia Zneimer (discussion
leader), Judy Bordeau, Catherine Haight, Douglas Hauer, Loan
Huynh, Kimberley Best Robidoux and Roger Tsai. The curriculum is
++Audits (Increase in audits; what to do if the beneficiary was
laid off; Response to audit when the beneficiary was laid off;
Deadlines; DOL indication about debarment)
++Supervised Recruitment (Will be stepping up; Matter of Ola
Miami - opportunity to provide evidence of previous work
++ Request for Review/Reconsideration or Appeal (Matter of CVS RX
Services; New evidence on reconsideration evidence that existed
at the time the application was filed, but was not submitted in
response to the CO's audit is barred from a reconsideration
request by 20 CFR 656.24(g)(2)(i), Matter of Techdemocracy)
++Further Strategies (Possibe BALCA appeal; Re-filing)
Tuesday, March 8 is the deadline to sign up. For more info,
including speaker bios, detailed curriculum, and registration
information, please see: Online:
http://www.ilw.com/seminars/201101.shtm. Fax form:
http://www.ilw.com/seminars/201101.pdf. Don't delay, sign up
11. Headline: RT @nativismwatch: What is "Secure Communities"
12. Headline: RT @wsivelocity: Why Silicon Valley Immigrant
Entrepreneurs Are Returning Home -
13. Headline: Mexico's President: 'Anti-American Feeling in
Mexico Is Growing' Because of Public's 'Perception' About Undoc
14. Headline: Convention to cancel if immigration bill passes in
15. Headline: [Map] Position of each state on Real ID - see who
has opposed it, denounced it, or is willing to take it
16. Headline: Homeland Security bows to Real ID outcry (and
neglects to state real reasons): RealID Postponed till Jan 2013
17. Headline: ICE to review fingerprints of everyone arrested in
California to check on immigration status
18. Headline: Georgia bill would make a felony of DUIs for
19. Headline: New Mexico advances bill to ban licenses for
20. Headline: Utah Legislature passes immigration reform package:
enforcement + work permit for undocumented immigrants
21. Headline: Want to be seen? Get on our homepage. Improve
search engine ranking, increased name recognition and referrals.
Sign up at
22. Headline: Tax Compliance for Immigrants and Employers: The
Lawyer's Complete Guide. Don't wait! Get your copy today
To submit an Article or a news item to Immigration Daily, write
mailto:firstname.lastname@example.org. Follow ILW.COM on Twitter:
1. Help Wanted: Immigration Attorney
Cleveland, OH - Margaret Wong and Associates, LLP
seeks to hire experienced family and removal immigration attorney
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2. Help Wanted: Immigration Paralegal
Denver, Colorado - Ogletree Deakins
is seeking an experienced business immigration paralegal for its
Denver office. Candidates should have experience in business
immigration law including preparation of H-1B, L-1, TN, O-1, P-1
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3. Help Wanted: Immigration Attorney
Washington, DC - Boutique immigration law firm
in downtown Washington, DC seeks experienced associate attorney.
Ideal candidate will have excellent research, writing skills and
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4. Help Wanted: Immigration Attorneys
Reston, VA - Law Offices of Rakesh Mehrotra
has immediate openings for junior associate attorneys for busy
Immigration practice. Candidates must have experience in
business immigration law, including preparation of H-1B, L-1, TN,
O-1 and E-1/E-2 visa petitions, deportation and labor
certification cases. Responsibilities include the preparation and
filing of business and employment-related immigration
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required. Competitive salary and benefits offered. Firm offers
very congenial work environment with opportunity for professional
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mailto:firstname.lastname@example.org or call 703-230-6802.
5. Expert Witness Services
Muslim World Expert Professor Shaul M.
Gabbay, Phd, offers expert testimony in immigration cases from
Muslim countries/societies, including the former USSR. Dr. Gabbay
prepared reports and testified in 250+ Immigration cases
nationwide (asylum, cancellation of removal, asylum interviews,
hardship waivers) with a 93% success rate. Examples of what
Immigration lawyers say: ... "He is a consummate scholar and
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He is riveting on the witness stand, helping us win nearly
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the testimony we needed in numerous asylum cases ... in virtually
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the cases would have been approved, I recommend Professor Gabbay
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(Stephen Berman, Esq.) ... "His testimonies, whether written or
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(Ally Bolour, Esq.). Contact Professor Gabbay with any questions.
He can also recomend country experts outside his specialty.
Professor Shaul M. Gabbay, Phd, Korbel School of International
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AETS also provides certified translations in 100+ languages, with
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Application for Credential Evaluation and Translation Services,
see: AETS Translation Application.
Please contact AETS at anytime at (786) 276-8190, visit
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Martin Kleppann, the German-born co-founder of Rapportive who migrated to the US from the UK, was one of the young entrepreneurs interviewed by Tom Brokaw in an excellent piece on the need for H-1B visa reform. His company makes a tool that integrates with Gmail to allow users to see profile information on the individuals sending messages, something that sounds pretty helpful if you're in business and email is your primary communication tool.
This report should be required viewing for every member of Congress and every US immigration official working on H-1B visa processing.
Visit msnbc.com for breaking news, world news, and news about the economy
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.
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.