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  1. Broadcaster Renounces US Citizenship Over Marriage Equality. By Roger Algase

    Daily Kos reported on July 3 that End Times broadcaster Rick Wiles has announced that he is leaving the United States and giving up his US citizenship because of the Supreme Court's decision making marriage equality the law of the land.

    http://www.dailykos.com/story/2015/0...riage-Equality

    The Daily Kos story quotes Wiles as saying that God will "lift His hand of protection from this nation".

    It makes one wonder who understands the value of American citizenship more - a native-born American who puts bigotry ahead of his country, or hard working foreign-born people who, in most cases, have to strive for years in order to earn the privilege of becoming an American.
    _______________________________
    Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School who has been serving skilled and professional immigrants for more than 30 years. His practice is focused primarily on H-1B, O-1 and L-1 work visas, J-1 training visas, and green cards through labor certification, extraordinary ability and opposite sex or same sex marriage.

    Roger's email is algaselex@gmail.com

    Updated 07-07-2015 at 01:44 PM by ImmigrationLawBlogs

  2. Abercrombie & Fitch Resolves another Discrimination Claim

    By Bruce Buchanan, Siskind Susser P. C.

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has reached an agreement with Abercrombie & Fitch Inc. (Abercrombie), a clothing retailer headquartered in Columbus, Ohio. The agreement resolves a complaint filed with OSC, claiming that the company discriminated against a non-U.S. citizen in violation of the Immigration and Nationality Act (INA).
    The investigation found that Abercrombie required a non-U.S. citizen, but not similarly-situated U.S. citizens, to produce her permanent resident card (green card) for the purpose of verifying her employment eligibility. The INAís anti-discrimination provision prohibits employers from making specific documentary demands based on citizenship status or national origin when verifying an employeeís employment eligibility.

    Under the settlement agreement, Abercrombie will pay $3,661 in back pay to the complainant and a civil penalty of $1100 to the United States; establish a back pay fund of $153,932 to compensate other individuals who may have been harmed; undergo training on the anti-discrimination provision of the INA; revise their employment policies and training materials; and be subject to monitoring of its employment eligibility verification practices for two years.
    This settlement agreement is one more legal problem for Abercrombie. Earlier this year, the U.S. Supreme Court decision found against Abercrombie concerning whether it needed to provide a religious accommodation. In that case, a job applicant wore a hijab to a job interview, but did not mention her religion or request an exception to Abercrombieís dress code. The Court found that a job applicant need only demonstrate that a prospective employerís desire to avoid providing a religious accommodation was a motivating factor in its decision not to hire, not that the employer actually knew of the need for an accommodation. In an immigration case several years ago, Abercrombie settled a case with Immigration and Customs Enforcement (ICE) for $1 million due to essentially paperwork violations in their electronic I-9 system.
    Tags: i-9, ice, ina, osc Add / Edit Tags
  3. Letters of the Week: July 6 - July 10

    Please email your letters to editor@ilw.com or post them directly as a comment below.
  4. PERM Priorities, Practices & Policies

    by , 07-03-2015 at 04:29 PM (Joel Stewart on PERM Labor Certification)

    In the United States, federal agencies have broad discretionary power to create informal but legally binding standards for administrative matters. In the context of immigration, american employers and foreign workers must deal with at least three federal agencies: (1) U.S. Department of Labor OFLC (Office of Foreign Labor Certification) that administers the PERM labor certification program; (2) U.S. Citizenship and Immigration Services, the agency responsible to adjudicate I-140 Immigrant petitions; and (3) Department of State, which is responsible for the control and issuance of immigrant visas abroad.

    Frequently cited is the famous Supreme Court decision Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), holding that courts should defer to agency interpretations of statutes unless the interpretations are unreasonable.

    In essence, the Supreme Court recognized that because administrative agencies have special expertise, they may create ad hoc policies that have the force of law. Chevron USA also gives these agencies the right to bypass the more transparent law-making procedure that involves public participation and to adopt new policies behind closed doors that the public must follow.


    The PERM Rule itself is not a hastily adopted statement of policy but the result of an official law-making process that was fully vetted and published in the Federal Register. PERM spells out in broad terms how employers may obtain DOLís approval for foreign workers to accept job offers in the US.

    The requirement to obtain alien labor certification does not apply to those who seek to enter in other categories, such as family based petitions, investors, multi-national employees, outstanding researchers and professors, persons with extraordinary or exceptional ability, national interest workers, religious worker immigrants, green card lottery winners or refugees.

    Like the PERM Rule itself, published forms such as ETA 9141 (prevailing wage request) and ETA 9089 (PERM application) have also been promulgated through the legal process of publishing in the Federal Register, but there are many ambiguities and uncertainties that DOL clarifies by means of policies decided internally.

    To begin with, there are Frequently Asked Questions (FAQís). Though not considered laws, these questions (and answers) provide guidance that employers need to know to apply under the PERM rule. An example is the requirement to document a foreign workerís license or special skills to perform job duties. While the PERM form 9089 has a place to designate these as special job requirements (usually in H-14), due to an apparent oversight in the creation of the form there is no place to record the fact that the foreign worker has acquired the license or skill and no instruction where or how to write it on the form.

    In 2013, DOL began denying PERM applications that did not show licensing qualifications in the foreign workerís employment history. When Employers complained that there was no instruction for this on the form, DOL issued an FAQ advising employers to place licenses and special skills in Item K, a space used to describe work experience.


    Templates have also become very popular to enforce agency directives. In PERM practice, Employers receive DOL templates during audits. The templates create a series of questions and demands to produce documents. Employers must provide answers. Some questions in the templates may purport to create additional legal requirements.

    For example, after final determination,employers and attorneys must sign PERM applications to attest to the fact that foreign workers have not paid for any part of the PERM process, including recruitment costs or attorney fees; however, DOL uses the audit template to require the production of a separate affidavit from each party. The reason may be that DOL believes that additional sworn statements are necessary to underscore the prohibition against payment of fees by foreign workers.


    DOL also has stakeholder meetings where issues are placed on agendas and discussions are memorialized in minutes. The meetings provide an opportunity for ongoing discussions about questions that raise difficult, new issues. Although unofficial, the minutes provide important guidance as to the direction of DOLís changing policies. Stakeholder minutes usually predate FAQs and therefore enable Employers to recognize changing DOL policies and respond accordingly.


    DOL also creates memoranda, consisting of opinions written by one or more DOL official and subsequently ďfollowedĒ as if they were laws. An example is a memorandum on policy guidance written by Barbara Ann Farmer, "Field Memorandum: Number 48-94," issued more than 20 years ago, even before the PERM Rule was enacted in 2005, and which survives as a source of precedent to this day, which includes an instruction on the subject of roving employees. Although only intended to be a tool to achieve greater efficiency, the memorandum has been quoted for several decades as an example of DOL policy and is now regarded as a legal authority by the DOL and employers alike.

    Correspondence between stakeholders and DOL officials is another source of policy-turned law. Attorneys sometimes write letters or verbal questions posing inquiries about how specific matters should be resolved.

    Even casual comments occurring during question and answer sessions at conferences may be introduced as hearsay remarks by those were present and later followed as required guidance.

    A
    n interesting question is the extent to which state law may influence federal PERM practice. States have local labor and employment laws. Employers must always comply with these laws, even if they are requesting federal certification for foreign workers. An example might be a PERM application that provides for telecommuting from a home office located in a community where home offices are not permitted by local law.

    State Workforce Agencies (SWAís) are authorized and required by federal law to process job orders for employers in the State in which the job duties will be performed. The job orders must run for at least 30 days. However, beyond that broad, federal requirement, employers must comply with the rules of each SWA. Procedures to pre-register, questionnaires used to complete 30-day job orders, information required to be written in the job order, pop-up menus in the SWA on-line templates, terminology used in the job orders, and local practice affect every aspect of job order placement and may challenge employers who need to follow federal requirements.

    Employers must accurately describe wage offers using federal standards, including wage ranges, prevailing and actual wage. However, some SWA job order templates use different terms to enter wage information, such as entry level salary, wage ranges, bonuses, and other descriptors that may prevent employers from putting the federally mandated wage information clearly in the context of job orders.


    When controversies arise and PERM applications are denied, employers may appeal unfavorable decisions to the Board of Alien Labor Certification Appeals (BALCA). Curiously, BALCA decisions are not binding on future cases, and panels of administrative law judges sometimes rule at odds with each other when given similar fact patterns.


    The challenge facing Employers is to distinguish among laws, policies, industry standards, and other norms, not only to assess their order of importance to define the correct, legal course of action, but also to anticipate changes or interpretations that may occur during the lengthy period of PERM processing.

    The art of PERM practice is to know which policies and laws are important and how they interact with each other, a skill involving knowledge, experience, and a sixth sense!

    Updated 07-04-2015 at 07:01 AM by JStewart

  5. Postcard from the Apocalypse: November 29, 2019

    BEGIN TRANSMISSION:

    If youíre reading this, maybe thereís still hope. Today is November 30, 2019. Dawn. Yesterday, the world came to an end.

    This is how the Immigration Court backlog ends.
    I am one of the few survivors. The very few. And I am sending this transmission back in time by Tachyon beam in a desperate attempt to avert the apocalypse and to save humanity. By my calculation, this message should be received in July 2015. Back then, in your present, it was not too late. Things could haveócould stillóturn out differently.

    What happened? Nuclear war? Environmental degradation? Rapture? No. Such disasters, we could have dealt with. It was something at once more horrifying and more mundane. More innocent, yet more insidious. Small, yet massive. You get the idea.


    ďWhat was it, then?!Ē you plead. Listen well, my friend, and I will tell you the tale of November 29, 2019. On that day, the U.S. Immigration Court system collapsed upon itself, creating a singularity--a black hole, if you will--that absorbed everything in its path: First it took foreigners. No one seemed to mind. Then it took hippies, Libertarians, bachelorettes, and then people who enjoy listening to the Redirect immigration podcast (seriously, though, you should be listening to that). Finally, it took everyone and everything else. Now, all that's left is me and a few others. We donít have much time.


    It all began innocently enough: Immigration Courts started scheduling a dozen or so aliens for hearings at the same time and place. Didnít they know that this violates a basic law of physics and, as it turns out, a basic law of Immigration CourtóNo two aliens can occupy the same hearing space at the same time! Read your Archimedes, people! Isaac Newton! Anybody?


    Oh, the powers-that-be at EOIR (the Executive Office for Immigration Review) didnít think it was a big deal. They were violating the alienís due process rights, but only a little. And it was for a good causeóefficiency, so what did it matter? But then they got arrogant. Master Calendar Hearings with 40, 50, 60 or more people. Half a dozen respondents on the same transcript, answering charges and conceding removability en masse. Due process protections eroding. But so slowly that no one noticed. The lawyers, the aliens, all of us became complacent. We let it happen.


    And then things got worse. In 2014, Immigration Judges started scheduling scores, then hundreds, then thousands of aliens to appear on a single dayóNovember 29, 2019. They claimed this was some sort of ďholdingĒ date; that the cases would be rescheduled. Lies! Instead of making the hard journey up Mt. Sinai to seek justice, they worshipped below at the idols of efficiency and budget cuts. Who sows the wind shall reap the whirlwind!


    Before anyone really understood what was happening, tens of thousands of immigrants were scheduled to appear in Immigration Court on that fateful day, November 29, 2019 (may it be obliterated from memory). Throughout November, they gathered. They came by themselves or with their families. Small children without parents. Old people. People who had lived in the U.S. for years and people who were fresh off the hovercraft (hovercrafts were very popular in 2019). They filled the Immigration Court waiting rooms and spilled into the hallways. Masses of people, huddled together. Waiting. Soon, the court buildings were full, but still they came.


    EOIR saw what was happening. They could have stopped the madness. They could have rescheduled the cases. But they didnít. Why? Was it a conspiracy that reached to the highest levels of government? Or had some scheduling clerk gone rogue? I suppose weíll never know, and anyway, it doesnít much matter.


    The more the foreigners gathered, the more they came. It was exponential, logarithmic, seismic. Soon, it wasn't only people facing deportation. People with TPS started showing up. They were followed by conditional residents who were still married (miracle of miracles). Then there were people with valid visas, still in lawful status: B's, TN's, and L's, Q's and R's, H1-B's and E's, all varieties of A's and J's, and even the odd I or C visa holder. I knew we were in trouble by the time the lawful permanent residents began showing up. And when U.S. citizens started arriving, it was clear that something terrible would happen.


    And then it did. The collective gravity of all those people began feeding on itself, swallowing everything and everyone in its path--a black hole. But like I say, if you're reading this, there's still hope. There is a simple solution to the Immigration Court backlog. It's so obvious, that it's a wonder no one noticed it before. All you have to do is...


    ERROR ERROR ERROR END TRANSMISSION

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