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  1. IMMIGRANT OF THE DAY: BOB MALAYTHONG - OLYMPIC BADMINTON PLAYER

    by , 07-24-2008 at 04:21 PM (Greg Siskind on Immigration Law and Policy)

    The other day I named Howard Bach, the Vietnamese-born badminton Olympian as my Immigrant of the Day. Today, I'm honoring Khan Bob Malaythong, his doubles partner. Malaythong is a Laotian native who came to the US when he was eight years old. He only naturalized in 2006 and it was the inability to naturalize in a timely manner that knocked the player Malaythong replaced out of contention for the Olympic team. Bach and Malaythong are the #1 ranked team in the United States and ranked in the top 20 internationally. Bach and Malaythong have the obvious goal of wanting a medal in Beijing, but they're also working hard to raise the profile of the sport of badminton in the US. They recently starred in a well-received commercial for the new Coca Cola product Vitamin Water. Malaythong will be on the David Letterman show next month.

    Bob Malaythong has a great immigration story and he's one of the few athletes I've seen that recount their journey in any detail. Check out his personal account on his web site. Hi sister was the first in his family to come and she took a very dangerous trip to get here that almost resulted in her death. She was able to acquire legal status in the US and ten years later she was able to bring her younger brother to the US. Malaythong's family was desperately poor and you can see photos on Malaythong's web site showing him with a bulging stomach that is an ironic sign of malnourishment.

    Remarkably, within two years of his arrival in the US, he won the junior national badminton title and has risen steadily to the top of the sport over the years. But unlike athletes in more popular sports who can earn lucrative salaries, Malaythong faced an ongoing struggle of how to financially assist his destitute family, most of whom were still in Laos without dropping out of his sport. And he faced the ongoing stress of being separated from siblings who he had not seen since leaving Laos as a youngster. In fact, it was only when he competed in Thailand in 2003 that he as able to see two of his sisters for the first time since they were separated in 1990.

    Bob's story is the classic tale of how refugees coming from the worst conditions can achieve great heights when given a chance in a place like America. He proudly proclaims on his web site that he's the first Laotian American Olympican and I wish him luck in becoming the first Laotian American to win an Olympic medal.
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  2. Who has the burden of proof?

    by , 07-22-2008 at 07:47 AM (Joel Stewart on PERM Labor Certification)
    656.1(a) Statutory Burden of Proof (Section 212(a)(5)A) of the INA).

    Most lawyers do not realize that the statutory mandate clearly places the two main burdens of proof squarely on the shoulders of the Secretary of Labor, not on the employer. One is to certify that no U.S. workers who are able, willing, qualified and available, and/or that that the employment of the alien will adversely affect the wages and working conditions of United States workers similarly employed. If the Certifying Officer cannot provide that U.S. workers are able, willing, qualified and available, or that the working conditions of U.S. workers similar employed will adversely affect the wages and working conditions, the application for labor certification must be approved. The regulation states, The permanent labor certification program is governed by the Immigration and Nationality Act, 8 U.S.C. 1101 et seq. and 20 CFR part 656.

    This regulation can be found at http://www.foreignlaborcert.doleta.gov/perm.cfm.

    Employers applying for labor certification must comply with all regulatory and statutory requirements. The issue of "who has the burden of proof" has long been misunderstood. It was generally thought by practitioners that the employer had the burden of proof in labor certification proceedings, however the ultimate burden of proof by clear language of the statute lies with the Secretary of Labor.

    The employer has a lesser and implied burden which is twofold: (1) to submit the required initial documentation in accordance with the regulations (the burden of going forward with the application) and (2) to respond to agency requests for information or documentation during the labor certification process (the burden to comply with the regulations). The primary or ultimate burden of proof lies with the Secretary of Labor, who, through the Certifying Officer, must determine whether an application will be approved or denied. No application can be denied unless (a) the employer fails to follow the regulations or unless (b) the certifying officer makes a finding (1) that there are US workers who are able, willing qualified and available or (2) that the employment of the alien will adversely affect the wages and working conditions of United States workers similarly employed.

    As a matter of law, these determinations must be based on substantial evidence, however, in actual practice, the DOL often bases its findings on inferences signaled by the phrase "it appears that" or by unproven conclusory statements like "the employer does not require a skilled cook". To obtain an approved labor certification, the Employer must follow the regulatory process and provide documentary evidence for each requirement, section by section. BALCA has interpreted into law a series of requirements that are viewed as inherent or implied by the regulations, such as the requirement to offer a "bona fide job offer" and the requirement to provide documentation that is "relevant and easy to obtain" when requested by the Certifying Officer. If the Employer fails to comply with only one of the many regulatory requirements, the C.O. may deny the application, not because of availability of US workers or adverse wage impact, but simply because the Employer failed to fulfill the regulatory requirement as interpreted. T

    he legislative history of the regulations and statute are very important to understand the PERM Rule. A historical analysis has been written by Gary Endelman, "The Lawyer's Guide to 212(a)(5)(A): Labor Certification from 1952 to PERM". Mr. Endelman's article, reproduced in the PERM BOOK II and on ILW.COM, offers an in-depth understanding of the statute and the regulations necessary for Employers, Attorneys and Agents to argue appropriate legal responses to final determinations and audit requests.

    For many years the first subsection of the statute relating to insufficient U.S. workers, served as a common basis for denial of applications for labor certification, however, after 1998, the issue of prevailing wages gained the spotlight due to the introduction of new concepts such as the SOC, the OES, the O*Net and the revolutionary "two-tier" approach announced in GAL 2-98. Many more cases were disputed, denied and appealed to BALCA on prevailing wage issues. Under PERM, wage disagreements have been greatly attenuated due to the introduction of the "four-tier" system, however, many problems persist. The determination of a four-tiered prevailing wage is still based on faulty data and analysis in the SOC and the OES, with from unusual and inexplicable fluctuations.
  3. NY TIMES PRAISES EMPLOYERS' INCREASING ASSERTIVENESS ON IMMIGRATION

    by , 07-21-2008 at 06:57 AM (Greg Siskind on Immigration Law and Policy)
    A nice follow up editorial in response to the great Julia Preston article I blogged about last week.
  4. IMMIGRANT OF THE DAY: HOWARD BACH - OLYMPIC BADMINTON PLAYER

    by , 07-21-2008 at 06:43 AM (Greg Siskind on Immigration Law and Policy)
    Howard Bach doesn't sound like a Vietnamese name, but this Vietnamese-born American has a familar Vietnamese-American story. His family immigrated in 1982 as refugees when Bach was just three years old. His father was a political dissident in their country and also an aspiring badminton player who never was able to realize his dream of competing in an Olympics. But he passed his love for the game on to his son and now the younger Bach represents America's best shot at achieving our first medal in the sport.

    Back was the first American to win a badminton medal at a world championship, but he'll face tough competition from the Chinese players. The sport is highly popular in China and winning in front of a Chinese crowd will be tough.

    Bach's refugee story is outlined in a recent San Francisco Chronicle story.

     
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  5. FIRST AFRICAN-AMERICAN WOMAN BILLIONAIRE PRAISES IMMIGRANTS

    by , 07-21-2008 at 06:16 AM (Greg Siskind on Immigration Law and Policy)
    A reader sent me this link to a Tampa Bay Business Journal profile article on Sheila C. Johnson. Ms. Johnson is one of the most successful business owners in America. She owns major real estate interests and professional sports teams and she is also a major philanthropist. And being an African-American woman, she has no doubt had to work even harder to get to the top. I thought this comment from her interview was especially interesting:Who are your heroes in the business world?

    I know this is going to sound crazy, but with all the hubbub about immigration, I look at the recent immigrants in this country -- the people many are saying are here looking for a handout -- and I realize they are just about the only people actually exhibiting the kind of work ethic that built this country. And they're certainly keeping alive the concept of the American dream. Not only that, but they're doing the kind of jobs that most native born Americans wouldn't touch with a 10-foot pole, the jobs many feel are beneath them. I guess I consider these people my heroes because without the work that they do, day in and day, this economy would absolutely crumble.Note that a subscription to Bizjournal.com is required to see the whole article.
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