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  1. BALCA Overturns Denial After Using a ‘Totality of the Circumstances’ Test

    The Board of Alien Labor Certification Appeals (“BALCA”) recently overturned a denial after considering whether the employer had established by the totality of the circumstances that recruitment conducted for a position sponsored through labor certification demonstrated that the position had been open to U.S. workers. The employer sponsored the position of “Preschool Teacher” for labor certification. In drafting the Form 9089, the employer stated that the minimum education requirement was a “foreign equivalent of a Bachelor’s degree.” The Certifying Officer (“CO”) denied the case on the basis that the position was not open to U.S. workers because “by definition, a foreign degree equivalency requirement makes it impossible for most U.S. workers to qualify for the job opportunity.” The employer appealed the denial and stated that the position’s actual education requirement was a Bachelor’s degree or foreign equivalent. In reviewing the case, BALCA noted that it most consider the content of the employer’s recruitment efforts, not the content of the Form 9089. In addition, it specified that a totality of the circumstances test would be applied to establish whether a position was open to U.S. workers. BALCA stated that the recruitment for the position noted that a domestic Bachelor’s degree would be acceptable and determined that no U.S. worker was rejected for possessing a domestic Bachelor’s degree only. Consequently, it determined that the position had been open to U.S. workers under a totality of the circumstances test and overturned the denial. This case provides information regarding the legal standard that will be used to determine whether a position sponsored through labor certification is open to U.S. workers. This post originally appeared on HLG's Views blog by Cadence Moore.

  2. Negotiating with ICE Concerning Penalties

    By Bruce Buchanan, Sebelist Buchanan Law
    Click image for larger version. 

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    The issue always arises as to whether it is worthwhile to negotiate with Immigration and Customs Enforcement (ICE) after it issues a Notice of Intent to Fine (NIF) to an employer. In my opinion, it is almost always worthwhile unless the fine amount is less than several thousand dollars.

    However, in order to negotiate over the penalty, one must notify the ICE attorney in writing within 30 days of the NIF that you wish a hearing on the matter. That does not mean there will be a hearing but it preserves the employer’s right to a hearing before Office of Chief Administrative Hearing Officer (OCAHO) if a negotiated reduction in the penalty cannot be reached.
    There are a number of items to review in the NIF to determine whether ICE committed any mistakes in their calculations. These possible mistakes are related to substantive errors on the I-9 forms and/or the alleged presence of undocumented workers. These are some of the areas to review:

    (1) Failure to accurately count the three business days for the employer signing section 2. This is sometimes caused by the ICE auditor looking at employee’s signature date and determining more than three days passed from the employee’s signature to the employer’s signature. However, if the employee signed the I-9 form before his first day of work, then more than three days is allowed.

    (2) Timeliness violations concerning the completion of Sections 1 and 2 which are beyond the 5-year statute of limitations. If so, there is no violation.

    (3) Was the error technical? If so, was the opportunity to correct it provided?

    (4) Is the individual without an I-9 form an owner with meaningful authority? If so, no I-9 form is needed. Many ICE auditors miss this one.

    (5) Are any of the I-9 violations beyond the scope of the Notice of Inspection (NOI) because they were terminated employees not covered by the NOI? If so, those employees are not covered by the NOI. Employers may prevent some of these issues by timely purging I-9 forms.

    (6) Are any employees grandfathered in, hired before 11/7/1986; thus, they do not require an I-9 form.

    (7) If the NIF alleges hiring undocumented workers, did the employer have knowledge of their undocumented status? ICE cannot rely on a Notice of Suspect Documents; rather, they must prove actual or constructive knowledge.

    (8) Are the five factors appropriately applied for 5% aggravating/mitigating penalties:

    (a) Size of business

    (b) Good faith/bad faith - ICE cannot use a poor rate of compliance as bad faith. Also, one cannot use cooperation in the NOI investigation to show good faith.

    (c) Seriousness of violations - This is difficult for an employer to win, especially if no I-9 forms or no status boxes were checked.

    (d) Whether any employees were unauthorized - ICE usually treats as neutral but OCAHO often awards 5% mitigation.

    (e) History of previous violations - ICE usually treats as neutral but OCAHO will sometimes award a 5% mitigation

    Besides these factors, an attorney should review the client’s financial situation. If the client has been operating at a loss, the attorney should request financial records from his client, preferably audited, to substantiate the poor financial condition and provide the records to ICE. If one can establish a poor financial condition, the attorney can argue for a large reduction of the penalties and a payment plan – two to five years, depending on different factors.

    There may be other factors to review in the NIF. It all depends on the individual case. But, overall, in my opinion, it is worthwhile to carefully review the NIF and seek an appropriate reduction in the penalty. The ICE attorney is aware if the case is litigated before OCAHO, in most cases, OCAHO will substantially reduce the penalty. Thus, they have an incentive to reach a negotiated penalty.
  3. Did Melania Trump Commit Fraud By Using A Visitor Visa To Work in US? Roger Algase

    Update: August 5, 2:07 pm:

    My hypothesis below, based on a POLITICO article which I discuss in detail reporting that Melania Trump might, allegedly, have worked as a model in the United States illegally with a visitor visa and then, admittedly based on conjecture rather than firm proof, might have have been forced to tell a series of lies in subsequent visa and immigration applications in order to avoid having them denied, all depends on the answer to one simple question:

    What kind of visa did Melania Trump use to come to the United States in 1995 when she worked as a model and posed for the photos which appeared in a recent edition of the New York Post? Was it an H-1B visa which would have allowed her to work, thereby leaving her with a clean immigration record of compliance with our laws at all times?

    Or was it a visitor visa
    which would not have allowed her to work and therefore might, conceivably, have been obtained by misrepresenting her intended activities in the United States?

    Hopefully, in order to clear up this question, Melania Trump will provide the naked truth about her visa history as soon as possible.

    Update, August 4, 12:40 pm:

    According to an August 4 Huffington Post story (available on their website), Melania Trump has denied ever having broken any US immigration laws, but she has still not said what kind of visa she was in the US with in 1995, when she allegedly worked in this country as a model, as evidenced by nude photos reportedly taken of her that year which have recently been published in the New York Post.

    My original post follows:

    Donald Trump has promised to enforce our immigration laws to the letter and to deport everyone who is in violation of these laws in any way, without exception. He has also proposed to eliminate H-1B work visas, either as a matter of law, or for all practical purposes by imposing a requirement that any employer wishing to sponsor someone for H-1B would have to hire American workers first. See the POLITICO report below.

    However, while Trump carries out these draconian enforcement proposals, would he also be sharing the White House with a First Lady who worked in the United States with the same H-1B visa that Trump now sees as such a dire threat to American workers, and who, according to the following August 4 POLITICO report, may have allegedly committed visa fraud by previously coming to the US with a B-1/B-2 visitor visa in order to work?


    POLITICO: Gaps in Melania Trump's immigration story raise questions

    According to this story, Melania Trump allegedly told reporters that, during the period 1995-1996 she was working in the US with a legal H-1B visa for models. However, she also allegedly stated that she returned to Europe every few months to renew the visa stamp.

    As POLITICO points out, an H-1B visa is normally valid for 3 years and can be renewed for at least 3 more years (sometimes longer, if the person has a pending green card case) without leaving the US.

    However, if the person only has a visitor visa, then she would normally have to leave the US every few months, either to get a new visa, or to enter the US with the same visa but with a new passport entry stamp.

    Therefore Melania's alleged statement is more consistent with her holding a B-1/B-2 visitor visa than an H-1B visa.

    And here is the problem: a B-1/B-2 visitor visa does not allow the holder to work in the United States. And if someone applies for or enters the US with a visitor visa while intending ro work in this country, then that action would constitute visa fraud,, something which could make the person inadmissible to the US and deportable if she is already here.

    I am sure that the Trump campaign will be eager to provide further details about Melania Trump's immigration history, along with more examples of Donald Trump's dedication to enforcing our immigration laws to their fullest extent, and without any exceptions, even if this, allegedly, includes applying them to a fellow occupant of the White House.

    And if Melania Trump did in fact commit visa fraud by allegedly misstating her intentions when applying for a visitor visa and using it to enter the US, perhaps on several occasions during the above time period, did she reveal this relevant and important fact when she later applied for and received her her H-1B visa, and, subsequently, green card and US citizenship?

    That is another interesting question which her husband's campaign will no doubt look forward to enlightening us on sooner rather than later.

    I also want to make clear that nothing in the above POLITICO story proves that Melania Trump in fact applied for, received or used a B-1/B-2 or any other visitor visa at any time. This is only an inference based on the circumstantial evidence of her own reported statements about her immigration history during the 1995-1006 period.

    No doubt, further information about this story will be coming from the Trump campaign in due course.

    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more that 35 years, he has been helping mainly skilled and professional immigrants obtain work visas and green cards.

    His practice is concentrated in H-1B specialty occupation and O-1 extraordinary ability work visas, J-1 training visas and green cards through labor certification and opposite sex or same sex marriage.

    Roger's email address is

    Updated 08-07-2016 at 09:34 AM by ImmigrationLawBlogs

  4. FAQ on Policies For Immigration Enforcement at Sensitive Locations

    by , 08-04-2016 at 07:43 AM (Matthew Kolken on Deportation And Removal)
    Via the Department of Homeland Security:

    Do the Department of Homeland Security’s policies concerning enforcement actions at or focused on sensitive locations remain in effect?

    U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) have each issued and implemented policies concerning enforcement actions at or focused on sensitive locations. The ICE Sensitive Locations Policy and the CBP Sensitive Locations Policy remain in effect, and these FAQs are intended to clarify what types of locations are covered by those policies. ICE and CBP conduct their enforcement actions consistent with the Department of Homeland Security’s November 2014 memorandum, which prioritizes the removal of national security, border security, and public safety threats.

    What do the Department of Homeland Security policies require for enforcement actions to be carried out at sensitive locations?

    The policies provide that enforcement actions at or focused on sensitive locations such as schools, places of worship, and hospitals should generally be avoided, and that such actions may only take place when (a) prior approval is obtained from an appropriate supervisory official, or (b) there are exigent circumstances necessitating immediate action without supervisor approval. The policies are meant to ensure that ICE and CBP officers and agents exercise sound judgment when enforcing federal law at or focused on sensitive locations, to enhance the public understanding and trust, and to ensure that people seeking to participate in activities or utilize services provided at any sensitive location are free to do so, without fear or hesitation.

    What does the Department of Homeland Security mean by the term “sensitive location”?

    Locations covered by these policies would include, but not be limited to:

    • Schools, such as known and licensed daycares, pre-schools and other early learning programs; primary schools; secondary schools; post-secondary schools up to and including colleges and universities; as well as scholastic or education-related activities or events, and school bus stops that are marked and/or known to the officer, during periods when school children are present at the stop;
    • Medical treatment and health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities;
    • Places of worship, such as churches, synagogues, mosques, and temples;
    • Religious or civil ceremonies or observances, such as funerals and weddings; and
    • During public demonstration, such as a march, rally, or parade.

    What is an enforcement action?

    An enforcement action covered by this policy is any action taken by ICE or CBP to apprehend, arrest, interview, or search an individual, or to surveil an individual for enforcement purposes.

    Actions not covered by this policy include activities such as obtaining records, documents, and similar materials from officials or employees, providing notice to officials or employees, serving subpoenas, engaging in Student and Exchange Visitor Program (SEVP) compliance and certification visits, guarding or securing detainees, or participating in official functions or community meetings.

    Are courthouses sensitive locations?

    Courthouses do not fall under ICE or CBP’s policies concerning enforcement actions at or focused on sensitive locations. However, enforcement actions at courthouses will only be executed against individuals falling within the public safety priorities of DHS’s immigration enforcement priorities set forth in the November 20, 2014, memorandum from Secretary Johnson entitled Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants. Such enforcement actions will, absent exigent circumstances, not lead to arrest of non-targeted individuals and will, wherever practicable, take place outside of public areas of the courthouse.

    Where should I report a DHS enforcement action that I believe may be inconsistent with these policies?

    There are a number of locations where an individual may lodge a complaint about a particular DHS enforcement action that may have taken place in violation of the sensitive locations policy. You may find information about these locations, and information about how to file a complaint, on the DHS, CBP, or ICE websites.

    You may contact ICE Enforcement and Removal Operations (ERO) through the Detention Reporting and Information Line at (888)351-4024 or through the ERO information email address at, also available at The Civil Liberties Division of the ICE Office of Diversity and Civil Rights may be contacted at (202) 732-0092 or

    You may contact the CBP Information Center to file a complaint or compliment via phone at 1-877-227-5511, or submit an email through the website at
  5. Refugee Team to Compete in Olympic Games

    This August, 10 athletes will compete in the Olympic games not as representatives of their countries of citizenship, but as refugees. For the first time in the history of the Olympics, there will be a "Refugee Team," composed of individuals from four countries: Democratic Republic of the Congo, Ethiopia, South Sudan, and Syria. The athletes will participate in a variety of sports, including swimming, track and field, and judo.
    Refugee athletes are expected to do well in such sports as "Completing Endless Forms" (pictured) and "Waiting Forever In Line."
    Here are the stories of a few of these inspiring Olympians:

    James Nyang Chiengjiek
    (age: 28; country of origin: South Sudan; sport: 400 meters) - James is from Bentiu, South Sudan. His father was a soldier who died in 1999 during the war. When he was a young boy he took care of cattle. He escaped from South Sudan when the war broke out, as he risked conscription into the army to participate in the war as a child soldier. James arrived in Kenya in 2002 and stayed in a UNHCR-supported refugee camp. He attended school and started running there. He was selected to train at the Tegla Loroupe Peace Foundation in 2013, and has been there ever since (four others on the Refugee Team also train at the TLPF).

    Yusra Mardini
    (age: 18; country of origin: Syria; sport: 100 meter freestyle) - Prior to the war in Syria, Yusra was a competitive swimmer who represented her country in international competitions. As the war intensified, Yusra and her sister left Damascus in early August 2015 and reached Berlin in September 2015. To get there, they had to cross the Aegean in a small boat. When the engine died, Yusra and a few others—the only swimmers on board—jumped into the water and pushed the boat for 3½ hours to shore. Since she reached Germany, Yusra has been training at the club Wasserfreunde Spandau 04 e.V. which is a partner of the Elite Schools of Sport in Berlin.

    Yolande Bukasa Mabika
    (age: 28; country of origin: Democratic Republic of the Congo; sport: Judo) - Yolande is originally from Bukavu, the area worst affected by the DRC civil war from 1998 to 2003. During the war, she was separated from her parents and taken to a children's home. There, she took up Judo, which the government encouraged as a way to give structure to the lives or orphans. As a professional Judoka, she represented the Democratic Republic of the Congo in international competitions. After years of difficult training conditions, she decided to seek asylum in Brazil during the World Judo Championships in Rio in 2013. She currently trains at the Instituto Reação in Rio de Janeiro.

    Popole Misenga
    (age 24; country of origin: Democratic Republic of the Congo; sport: Judo) - Like his Judoka teammate, Yolande Bukasa Mabika, Popole is originally from Bukavu in the DRC. His mother was murdered when he was only six years old. Afterward, he wandered in a rain forest for a week before he was rescued. As a professional Judoka, he represented the Democratic Republic of the Congo in international competitions. Along with Yolande, Popole sought asylum in Brazil during the World Judo Championships in 2013. He currently trains at the Instituto Reação in Rio de Janeiro.

    Yonas Kinde
    (age 36; country of origin: Ethiopia; sport: Marathon) - Yonas left Ethiopia due to political problems. He has been under international protection in Luxembourg since October 2013. He has competed in many marathons and reached the qualifying standards for Rio during the Frankfurt Marathon in October 2015. He currently trains at the national school of physical education and sports in Luxembourg.

    Rose Nathike Lokonyen
    (age 23; country of origin: South Sudan; sport: 800 meters) - After her community was burned by armed men, ten-year-old Rose and her family left South Sudan and arrived in Kakuma refugee camp in 2002. Her parents returned to South Sudan in 2008 but her siblings remained in Kakuma refugee camp. During her time at school, she participated in many barefoot running competitions and in 2015 she participated in a 10 km run in Kakuma organized by the Tegla Loroupe Foundation. She has been training with the foundation ever since.

    The Refugee Team is a part of a broader effort on the part of the International Olympic Committee ("IOC") to assist and bring attention to refugees. As IOC President Thomas Bach has said, the Refugee Team "will be a symbol of hope for all the refugees in our world, and will make the world better aware of the magnitude of this crisis. It is also a signal to the international community that refugees are our fellow human beings and are an enrichment to society." It's an important role for these young athletes, and we certainly wish them the best at the Olympic Games and beyond.

    Originally posted on the Asylumist:
    Tags: olympics, refugee Add / Edit Tags
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