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    by , 05-27-2008 at 08:39 AM (Greg Siskind on Immigration Law and Policy)

    Cesar Alvarez is one of the generation of young Cubans who came to the US as refugees in the early 1960s after the revolution in his home country. I grew up in Miami during a time when many of these new arrivals were planting new roots and starting to make their mark on the country. There are so many success stories in this generation including today's Immigrant of the Day. Cesar Alvarez was named in today's National Law Journal as one of the 50 most powerful minority lawyers in the country. I'll be writing about others in the coming days.

    Alvarez is the CEO at Greenberg Traurig, one of the largest law firms in the world with offices on multiple continents. Alvarez practiced corporate and securities law as well as international law before being elevated to heading the Florida-based firm.
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  2. Not everyone needs a PERM Case!

    by , 05-27-2008 at 08:31 AM (Joel Stewart on PERM Labor Certification)
    It's a good exercise to review the types of cases that do NOT require a PERM case.

    The ones listed on "Schedule A" of the PERM Rule, include a number of positions that are pre-certified Physical Therapists Persons who will be employed as physical therapists. Physical therapists include those who are ready to take the physical therapist licensing examination in the state in which they propose to practice physical therapy. These persons do not have to prove that they have passed the examination, but simply prove that they are "ready" to take the examination. It may be assumed this means those who have fulfilled the pre-exam requirements for a specific jurisdiction or a national standard if there is one.

    This policy differs from the general rule that applicants for alien labor certification must be fully licensed before they can apply for and receive a labor certification from the Secretary of Labor. The favorable treatment of Physical Therapists gives them not only an exception to the requirement for labor certification but grants an exception to the requirement of pre-licensing. The regulation does not state what would happen if a physical therapist obtained a labor certification, applied for and obtained permanent residency, and still did not take, complete or pass the physical therapist licensing examination in the jurisdiction in which he or she proposed to practice physical therapy. Under PERM, the distinction between physical therapists and professional nurses is that the latter require licensing before approval, but nurses may now qualify by means of a broader range of exams than before. Under pre-PERM regulations, nurses had to pass the CGFNS, while under PERM they may pass the NCLEX.The NCLEX test was legitimized by a 2002 memorandum from the Department of Homeland Security and has now been codified in the DOL regulations.

    Nurses still have the CGNFS option but must obtain the certificate itself and pass the nursing exam. DOL rejected proposals to permit professional nurses with temporary licenses to obtain labor certification. Proponents had suggested that the requirements for a temporary license were tantamount to the requirements for a permanent license, however, in the final version, DOL stated that by adding the NCLEX test as an option, there would be uniformity in the application procedure and most nurses with temporary licenses would qualify under one of the three regulatory options. The corresponding pre-PERM provision referred to Group No. 075 "Professional Nurses" in the D.O.T.: "This group includes occupations concerned with administering nursing care to the ill or injured. Includes nursing administration and instruction; and public health, industrial, private duty, and surgical nursing. Licensing or registration is required." The significant feature in this pre-PERM definition of Professional Nurse was the fact that not only nurses who gave patient care were subject to the licensing or registration requirements, but nursing positions not involving patient care were also not certifiable unless the worker possessed full licensing or registration requirements to work as a registered nurse. Jobs without direct patient care include nursing consultants, directors, deans, executives, instructors, aides, supervisors, and coordinators.

    The new PERM definition for Professional Nurses dropped the reference to Group No. 075 in the D.O.T. Licensing is still required for nurses who wish to provide patient care as defined in PERM under Section 656.5(a)(3)(ii), however, there is no longer a licensing limitation for nurses who plan to work in administrative, educational and research positions and apply under the basic labor certification process described in ß656.17. The standard for aliens of exceptional ability is lower than that for aliens of extraordinary ability. The term "science or art" is more broadly defined than the "professional" category. In the latter the alien must seek to fill an occupation that requires a degree, whereas in the instant category the alien seeks to practice in any "field" for which a university commonly offers specialized courses. Aliens will be able to qualify for this schedule based on a combination of education, experience and training, even if they do not possess a university diploma. This applies the "combination of education, experience and training" concept fairly to aliens. Elsewhere in PERM U.S. workers may be judged qualified by the same standards, as when the C.O. considers availability of job applicants as a result of recruitment efforts.

    The DOL does not require a specific formula to determine non-degreed qualifications such as three years of experience for one year of college, but may qualify by documenting one of the seven groups permitted. An additional requirement is that the alien's work occurred during the past year, while EB-1 extraordinary ability aliens need not show such recent work experience. The DOL suggested types of documentation about aliens of exceptional ability in the Performing Arts, but does not mandate specific documentation from pre-defined groups as in group one above. The term "exceptional ability" is not defined in the list of definitions at ß656.3. One might look to other parts of the INA to determine whether an alien has exceptional ability in performing arts.

    The standard used under Second Preference EB-2 adjudications is whether there is a degree of expertise above that ordinarily encountered and whether the alien attained a level of or recognition by colleagues as possessing exceptional ability, i.e., an unusual, unique or extraordinary talent. Opinions of qualified persons should be offered to support an application for exceptional ability through carefully drafted letters documenting the alien's exceptional ability.

    by , 05-27-2008 at 04:32 AM (Greg Siskind on Immigration Law and Policy)
    The New York Times reports on this phenomenon. Unfortunately, the rush to rapidly expand the ranks in the Border Patrol will bring these kinds of problems.

    by , 05-26-2008 at 09:46 PM (Greg Siskind on Immigration Law and Policy)
    And this is from the star columnist at the news magazine owned by CNN's parent company, Time Warner. Here's the post:Given the amount of serious journalism going on at CNN--the
    reporters risking their lives on battlefields all over the world, fine
    journalists like John King and Candy Crowley working to report the
    presidential campaign accurately, the excellent fact-checking that Wolf
    Blitzer did earlier this year on the Obama Madrasa smear--given all
    that and a nearly thirty year history of really trying to present the
    facts straight...I've got to wonder why the network allows Lou Dobbs to
    continue spewing false, inflammatory nonsense under the guise of
    objective journalism.

    Here is his latest confrontation
    with Paul Waldman of Media Matters about the fictional NAFTA
    superhighway. Indeed, the Washington Post's Fact Checker gave the NAFTA
    Superhighway myth four Pinocchios.

    Now, I know that Dobbs brings in some serious ratings. And he is
    certainly entitled to his own opinion. But he is not entitled to his
    own facts--especially not on a network that makes a real effort to
    separate truth from falsehood and represent all sides of the political
    debate. Shouldn't someone be editing this swill? Doesn't CNN have a
    responsibility to tell its viewers that, in this case, one of their
    presenters is engaged in flat-out anti-immigrant fearmongering? Perhaps
    the network could employ a simple superimposed title--THIS IS NOT
    TRUE...or LOU HAS JUMPED THE SHARK ON THIS ONE--whenever Dobbs pretends
    that there is such a thing as the NAFTA Superhighway. This sort of
    thing diminishes the credibility and hard work of the other journalists
    on the network. (And no, I do not count the execrable Glenn Beck as a


    by , 05-26-2008 at 09:04 PM (Greg Siskind on Immigration Law and Policy)
    Apparently (not sure how reliable this source is), members of the European legislature do not like the fact that the US grants visa waiver status to fewer than half of the EU's 27 members.
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