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  1. PERM: Spotlight on Prevailing Wage

    by , 06-15-2016 at 02:09 PM (Joel Stewart on PERM Labor Certification)
    The US Department of Labor holds Stakeholder meetings 3-4 times per year to discuss technical issues with employers, bar associations, student advisors, unions, government agencies, and other interested groups.

    At a recent meeting, questions were raised about prevailing wage determinations for job offers involving combinations of occupations. DOL always raises the prevailing wage level if a position requires the worker to perform sets of duties that are found in more than one occupation

    Stakeholders explain that when a combination of job duties appears in a PERM application, and the wages for each of the jobs is different, DOL should look at the percentage of time spent in the job duties of each occupation, and if a larger percentage of time is spent in one (and a lesser percentage in the other), the correct wage is the one for the job in which the employee will spend the most time working. Currently, DOL automatically defaults to the higher wage, regardless of the percentage of time.

    Reconsideration of prevailing wage determinations is also very muddled. DOL has a three step procedure:

    First, DOL does not include uploads with extensive documentation in its initial determination because of time constraints, but if the determination seems unreasonable, employers can provide supplemental documentation to the officer.

    Second, the employer can escalate the issue to the director of the National Processing Center to reconsider the determination. If this type of review does not produce a lower wage, the Center will at least provide a detailed explanation about the methodology used in the wage determination.

    The third option is an appeal to the Board of Alien Labor Certification Appeals. The Board consists of administrative law judges who review the matter from a broad, legal perspective, but employers must expect considerable delays due to BALCA’s heavy caseload.
    One stakeholder asked if employers could simply file new prevailing wage requests rather than pursue three kinds of review and reconsideration. The employer is always free to do that -- however, there is a rule that if two prevailing wage requests are submitted for the same job offer, the higher of the two wages has to be used!

    An interesting point made by DOL is that as very few prevailing wage determinations are appealed through any of the three steps, and, as a result, DOL does not have sufficient feedback to identify policies or procedures that need to be changed.
  2. Another Company Owes Back Pay to H-1B Worker

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    An Administrative Law Judge (ALJ) of the Department of Labor (DOL) has ordered Medical Dynamic Systems Inc to pay back pay to a H-1B worker of more than $59,000 in fees and back wages for violating the H-1B visa laws. The ALJ said the health care staffing company must pay Philippine national Vicente D. DeDios the $3,600 he unlawfully paid in connection with his H-1B visa processing and an additional $55,587 in back wages.

    DeDios alleged Medical Dynamic Systems agreed to sponsor him for a nurse manager position at $37.06 per hour but only gave him 24 hours of work after he arrived in the U.S. He also alleged it unlawfully collected H-1B filing fees (Employers must pay the H-1B filing fees).

    The company argued the complaint to DOL was untimely. However, the ALJ rejected this argument and found DeDios filed his complaint “well within” the labor condition application (LCA) employment authorization period. Additionally, the ALJ found Medical Dynamic Systems failed to raise the timeliness argument at the agency hearing, and the record contained no definitive evidence of when the complaint was filed.

    Medical Dynamic also argued that it was only liable for five days that DeDios was “available to work,” because on the other days he failed to respond to phone calls and emails and did not show up for interviews. ALJ rejected this argument and found the company did not meet its burden in showing that DeDios was in non-productive status because of conditions unrelated to employment.
  3. From an Asylum Attorney to the Green Party's Jill Stein: Hillary Clinton Is Not the S

    Dr. Jill Stein is the Green Party's presumptive nominee for President of the United States. In a recent appearance on Democracy Now!, she argued that there was little difference between Hillary Clinton and Donald Trump:

    Trump says very scary things—deporting immigrants, massive militarism and, you know, ignoring the climate. Well, Hillary, unfortunately, has a track record for doing all of those things. Hillary has supported the deportations of immigrants, opposed the refugees—women and children coming from Honduras, whose refugee crisis she was very much responsible for by giving a thumbs-up to this corporate coup in Honduras that has created the violence from which those refugees are fleeing. She basically said, "No, bar the gates, send them back." You know, so we see these draconian things that Donald Trump is talking about, we actually see Hillary Clinton doing.



    Dr. Stein says that, people are "very quick to tell you about the terrible things that the Republicans did, but they’re very quick to forget the equally terrible things that have happened under a Democratic White House.... It’s time to forget the lesser evil, stand up and fight for the greater good."


    I am a member of the Green Party. I am also an attorney who represents immigrants and asylum seekers. My clients have fled persecution in the Middle East, Africa, and the Americas. They are not people who have the luxury of idealism. They are people whose loved-ones have been killed by war and terrorism. Many of my clients have been attacked or threatened with death. Their first priority is to keep their families and themselves alive. By leaving everything behind--family members, friends, homes, careers--in order to find safety in America, they have already chosen the lesser evil that Dr. Stein speaks about.


    We are now almost at the start (!) of the general election season. Are the two major candidates for President really the same, as Dr. Stein argues? My clients don't think so. They are genuinely afraid of Donald Trump and of what he represents. When Mr. Trump threatens to ban Muslims from the United States, or when he refers to Mexicans (and Americans of Mexican decent) in a racist manner, my clients wonder whether there is a future for them in this country.


    One of my clients is a women's rights activist from Afghanistan. Will she be able to reunite with her young children, or will they be prevented from coming to the U.S. because of their religion? Other clients are a Syrian couple, both doctors, whose first child died in the war. Will they be able to keep their second child safely in the United States, or will they be forced to leave? What about my Iraqi client who was kidnapped and tortured by terrorists? Or my Pakistani-journalist client whose step-father was murdered in retaliation for the family’s democratic political views? And what about my Honduran client who was shot in the head by members of MS-13 because he refused to join their gang? If Mr. Trump had his way, I imagine all these people—and many more—would be blocked from seeking refuge in our country.


    Contrast this with Hillary Clinton. Dr. Stein points out that Ms. Clinton supported a coup in Honduras that supposedly helped create the current refugee flow from that country, and that Ms. Clinton favors detention of asylum seekers, including families with children, who arrive at our Southern border. Based on the evidence I have seen, Dr. Stein's claim about the coup is dubious: Violence was rising in Honduras before the coup, and it continued to rise after the coup. It is very difficult to pin the current waive of migration to the coup (or to credit Ms. Clinton with causing it). As for the detention of families at the border, I have yet to see a solution to this problem that is practically and politically viable. Should we simply throw open our border to all comers? My sense is that the large majority of Americans would oppose such a move. I personally think we should be using more alternatives to detention, but this is a policy tweak; not a complete solution. A leader’s first priority must be to protect our country. How that can be achieved without control of our border, I do not know. In sum, the "lesser evils" discussed by Dr. Stein are difficult policy choices, and reasonable people can differ on the solutions.


    More important than her previous policy positions are the positions Ms. Clinton would likely take if elected President. The Democratic Party has moved to the left, and whatever policies Ms. Clinton advances will be determined largely by where the party stands politically. On immigration, it is in a different universe from the Republican Party and from Mr. Trump, whose hardline stance on immigrants is well known. For Dr. Stein to argue that the two candidates’ positions on immigration are similar is like saying that black is the same as white (ok, maybe it's more like saying that dark gray is the same as light gray, but you get the idea).


    I have been a member of the Green Party for over 15 years. I support many of it's policies. But I have found it very difficult to support the top-down strategy that seems to have characterized the party since at least 2000, when Ralph Nader siphoned off votes from Al Gore. I have always felt that the Green Party should focus on state and local races. A "revolution" (whatever that means) will not come from the top down--it will come from the bottom up. So while I believe the Green Party should run a national campaign in order to raise awareness on various issues, I also believe it should ultimately endorse the Presidential candidate that represents the "lesser evil." In the current election, that candidate is Hillary Clinton. There are major differences between her and Donald Trump, and those differences may determine whether people like my clients live or die. I hope Dr. Stein will keep such people in mind as we move through this election campaign.

    Originally posted on the Asylumist: www.Asylumist.com.

    Updated 07-07-2016 at 10:54 AM by JDzubow

  4. DINNER AT AILA

    by , 06-15-2016 at 09:24 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    Are you an immigration attorney who is going to the AILA Annual Conference in Las Vegas next week? If so, and if you do not have plans on Thursday evening, please join us for dinner.

    For the last several years a group of AILA lawyers who practice in healthcare have gotten together for a dinner on the Thursday of AILA Annual week. Most years we have about 15 people attend.

    It is a great chance to catch up with old friends (and new ones!). It is a casual event. If you are an AILA attorney who is interested in attending this year’s dinner, please let me know how many will be attending from your group by June 17. Friends, spouses, etc. are also welcome.

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at
    www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
  5. Muslim Immigrant Ban Could Revive 1950's Repression Against US Citizens. Roger Algase

    One of the greatest periods of danger for democracy in America's entire history was the 1950's period when Senator Joseph McCarthy (R. Wisconsin) and the House Committee on Un-American activities relentlessly persecuted people accused of being Communist sympathizers, destroying the lives and careers of many innocent people suspected of left wing views.

    Just in case anyone thinks that Donald Trump's proposal to ban all Muslims in the world from visiting or immigrating to the US would affect foreign citizens only, former House Speaker Newt Gingrich is giving us a timely reminder that scapegoating Muslim immigrants from everywhere in the world for the acts of violence in the US by a small number of disturbed, isolated, individuals who happen to be Muslims but are not part of any terror group, can lead to destroying the rights and freedoms of American citizens too, and not only Muslim US citizens.

    The Hill reports on June 14 that Gingrich has proposed bringing back the House Un-American Activities Committee to investigate people who support "Islamic supremacists", and he suggested taking away US citizenship from any "traitor" who pledges allegiance to ISIS.

    Certainly, there can be no doubt that anyone who supports or assists ISIS or any other terror group should be investigated and punished according to law. This is why we have the FBI and our intelligence agencies.

    But the history of the House Un-American activities shows that the committee went far beyond law enforcement and included wide-ranging harassment of people who had unpopular political views. The Hill describes the history of this committee as one of "terror", in which people who were blacklisted by the committee for their political views had no chance to clear their name and could suddenly find themselves without friends and without a job. See:

    http://www.thehill.com/blogs/ballot-...ties-committee

    Does America really want to bring back an era of repression and persecution, this time directed, not against suspected Communists, but against 3 or 4 million loyal, patriotic American citizens who practice the Muslim religion, or against the millions of other Americans who support the Constitutionally guaranteed rights and freedoms of their Muslim fellow-citizens, just as "pinkos" and Commiesymps" were targeted in the 1950's?

    Are the American people ready to give up our democracy in response to the siren song of some political leaders who seek to gain power by preying on the fears and anxieties of average citizens?

    Roger Algase
    Attorney at Law
    algaselex@gmail.com

    Updated 06-15-2016 at 03:20 PM by ImmigrationLawBlogs

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