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  1. Is Your PERM Travel Requirement Conjunctive or Disjunctive?

    by , 08-24-2017 at 03:11 PM (Joel Stewart on PERM Labor Certification)
    In a recent case, a BALCA panel reviewed an IT case involving the issue of advertising for multiple, complex job descriptions and requirements – so complex that the Board found it violates the regulations. (Op ensoft, Inc., 2013-PER-867 (BALCA, August 22, 2017).

    The technical language used by the employer requires concentration to understand the nuances of the court’s decision.

    On Form 9089:

    Occupation: Software Developers Applications. SOC 15-1132.

    Requirements: Master’s degree in an IT Related field or, alternatively, a Master’s in Computer Science, MBA, Engineering, CIS, MIS or Related. No
    experience requirement.

    Description of Duties: Development of Java Enterprise Edition JEE applications. As a Sr. Java Developer responsible for analyzing, designing,
    developing and documenting JEE projects within central JEE application development environment. Must have knowledge of Struts JEE Application
    framework, JSP/Tiles, Spring framework, tag libraries, iBatis and sQL and Oracle Database Technology Etc. Must be willing to travel, perform
    feasibility studies and interact with clients for different long and short-term projects.

    In the recruitment steps, including http://www.monster.com/
    and newspaper advertisements in the Atlanta-Journal Constitution and Atlanta Business Chronicle:

    COMPUTER/IT.

    Entry Lvl to Sen. Lvl AQ Analysts w/ foll. Skills: WinRunner, LoadRunner, Silk, Quick Test Professional, TestDirector, Rational Suite, SQA Suite, SQA
    Robot, SQA Manager, SQA Test Log Viewer, & SQA Comparator etc.

    Entry Loll to Sen. level Java Developers w/ fall skills: Struts JEE Application framework, JSP/Tiles, Spring Framework, tag libraries, abatis’ & SQL & Oracle Database Technology Etc.

    Trav. & reloc. may be reqd. Send resume, ref. & sale. req. to open soft, Inc., 3040 Carrick Road, Cumming, GA 30040.

    The Certifying Officer denied the application because the advertisements included the phrase, “Trav. & reloc. may be reqd.,” although the ETA
    Form 9089 did not include relocation as a job requirement. This violates the regulation 20 CFR 656.17(f)(6) and 656.17(f)(7) because the language on the Form does not match the language in the ads. This much is black letter law in PERM applications.

    The employer argued on reconsideration that based on a previous decision, Microsoft Corp., 2011-PER-324 (Feb. 29, 2012), the ads were placed
    to fill multiple positions, and not all the positions it advertised for required relocation. The employer asserted that “based on the language and
    context of its advertisements, applicants would understand that there are some positions that require…. relocation and some positions require [n]one because of the disjunctive language used by the employer to define multiple positions in the ads.”

    The Board disagreed citing the “chilling effect on potential applicants” since they could reasonably assume that travel and relocation might apply
    to any or all the listed jobs.

    No legal brief or position was filed with the court by the Employer or by the DOL.

    The Board reviewed the case and noted that the Microsoft ruling applied only where employers use the specific, narrowly defined language which was consistent with the FAQ’s and guidance which had been discussed in a Stakeholder Meeting, i.e., “some positions require travel,” would be
    acceptable, and that each case is fact-specific, requiring separate inquiries as to whether applicants could have been misled into thinking that travel might be required for all the jobs listed. Many BALCA decisions were cited, which, unlike the Microsoft case, had ruled against the Employer because of perceived ambiguities about which job offers had travel requirements.

    The Board noted that Microsoft involved applications with different educational levels either with a Bachelor’s degree or a Master’s degree which demonstrated to job seekers that the positions ranged from entry to senior level.

    Neither of the decisions, Microsoft, or the current one, are en banc and therefore lack any semblance of precedential value, however, it is important to note that except for Microsoft, all the decisions cited by the Board are held against the employer.

    The decision contains many subtleties and distinctions which stakeholders should read very carefully to understand where to draw the fine line for
    advertisements including multiple jobs which may or may not require travel or relocation. Whether conjunctive or disjunctive, employers need to use the recommended language that ‘some positions require travel’ and separate the positions and their requirements more clearly in the ads.

    In 2010, I wrote on this topic in my blog on ILW.com in a slightly broader context, Is PERM Experience, Education, and Training Conjunctive or Disjunctive?

    See http://blogs.ilw.com/entry.php?6431-...ctive&bt=46856

    Updated 08-24-2017 at 03:21 PM by JStewart

  2. Plant Nursery Violates Law by Favoring H-2A Workers

    By Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

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    Godwin’s Nursery and Trees paid nearly over $117,000 in back-pay and $29,500 in penalties after the U.S. Department of Labor determined the company passed over qualified U.S. citizen workers from Puerto Rico in favor of hiring foreign workers under the H-2A visa program.

    The Department of Labor determined that the nursery violated Section 218 of the Immigration and Nationality Act by denying five qualified workers from Puerto Rico the chance to work; instead, hiring four Mexican nationals through the H-2A visa program.

    Additionally, Department of Labor determined that Godwin failed to post information about the rights of agricultural workers, as required by law, and he failed to provide housing for the workers that adhered to housing health and safety standards.

    Remember if an employer is going to utilize the H-2A program or other non-immigrant visa programs, such as H-2A, one cannot discriminate against U.S. citizens.
  3. Translating Documents for Your Asylum Case

    The word "translation" is derived from "trans," meaning "across" two languages, and "elation," meaning "to make your lawyer happy." Or something like that. The point is, if your translations are correct, you are more likely to win your case and so you--and your lawyer--will be happy.

    If you think accurate translations are not important, please stay away from my garden.

    But many asylum seekers are unable (or unwilling) to pay for professional translations, which can be quite costly. Instead, they do the translations themselves, or they use a friend who speaks "good English" (technically, anyone who claims to speak "good English" does not speak English very well). The problem faced by these non-professionals is that translating documents is not as easy as it looks.

    I ran into this problem recently, when a keen-eyed DHS attorney discovered that my client's translations were incorrect. The client had submitted several translated documents when he applied for asylum at the Asylum Office (using a different lawyer). These documents included a newspaper article, a police report, and several witness letters. The quality of the translations was poor, and so we asked the client to obtain better translations. Unfortunately, the new translator embellished some of the translations. Instead of translating the documents literally, he tried to include what the writer meant (or what the translator believed the writer meant). This problem is all too common. Sometimes, I catch it, and other times, I don't. In this particular case, the DHS attorney caught the inconsistency, which--to state the obvious--is not great for our case.

    Poor translations can cause real problems for asylum cases. I have at least one case where an inaccurate translation resulted in the case being denied by the Asylum Office and referred to Immigration Court (where it remains pending 3+ years later--ugh).

    So how do you ensure that your translations are correct? And what happens if you can't afford a professional translator?

    First, any document that is not in English must be translated into English. For each such document, you must submit a copy of the original document (in the foreign language), an English translation, and a certificate of translation (for an example certificate of translation, see the Immigration Court Practice Manual, Appendix H).

    Second, the translation should be accurate. This seems like a no-brainer, but in my experience, it is not. Here, "accurate" means that the translator should--as much as possible--literally change each and every word of the original document into the equivalent English word. Some words are not easy to translate from one language to the next. Other words have symbolic, cultural or idiomatic meanings that may differ from their literal meaning (the word "jihad" is a good example). In that case, translate the word literally, and maybe include a footnote indicating the meaning or cultural significance of the word. The footnote should clearly indicate that it is not part of the translation (for example, it could say, "Translator's note:" and then include the explanation). Other times, the original document is vague or unclear. In that case, the translator should again literally translate the words, but can include an explanatory note. Sometimes, documents contain illegible words. For them, the translator can include a bracketed statement indicating that the text is [illegible].

    Third, while I think it is not required, I strongly prefer that the translated text look similar to the original (or sometime like a mirror image of the original, if it is a right-to-left language like Arabic). So bold or underlined words in the original should be bold or underlined in English. If the original text has different paragraphs, the English should follow a similar format. If some words in the original are centered, or shifted to one side or to a corner of the page, the translation should do the same.

    Fourth, every word of the document should be translated. For documents where that is not possible (like a newspaper where you are only interested in using one article on the page), the translator should clearly indicate what portions of the document are being translated. In this case, I prefer to highlight the original document to make clear which parts are being translated. Also, for news articles, it is important to include (in the original language and in English), the name of the newspaper, the date, the title of the article, and the author, if any. Certain documents contain a lot of unnecessary boilerplate verbiage (I'm thinking of you, Salvadoran birth certificates), and so a summary translation might be more appropriate. If you use a summary translation, you need to clearly indicate that it is a summary, not a literal translation. Whether all Judges and Asylum Officers will accept summary translations, I do not know, but we use them now and again, and we have not had any problems.

    Finally, countries sometimes use different calendars and even different clocks. In this situation, I think the best practice is to translate the date or time literally, and then include an explanatory note (for example, in the Jewish calendar, today is the second day of the month of Elul in the year 5777, and so if a Hebrew document contained that date, the English translation would look like this: "2 Elul 5777 [August 24, 2017]"). Some translators include only the date in our system (and not "2 Elul 5777"), and I have never had a Judge or Asylum Officer reject that, but I still think the better practice is the literal translation + explanatory note.

    A related issue is letters from people who do not speak English, including the asylum applicants themselves. If a person does not speak English, but submits an English letter or affidavit, there must be a "certificate of interpretation stating that the affidavit or declaration has been read to the person in a language that the person understands and that he or she understood it before signing." See Immigration Court Practice Manual, p. 48. "The certificate must also state that the interpreter is competent to translate the language of the document, and that the interpretation was true and accurate to the best of the interpreter’s abilities." Id.

    Lastly, many asylum seekers speak English and can translate documents themselves. This is fine. However, a person should not sign a certificate of translation for her own case. So if you translate your own documents, find a friend who speaks both languages to review the documents and sign the certificate of translation.

    Accurate translations can enhance credibility and help you win your case. So either find (and pay) a competent translator or - if you do it yourself or use a friend - take the time to ensure that the translations are accurate and complete. Otherwise, documents that might help your case could end up doing more harm than good.

    Originally posted on the Asylumist: www.Asylumist.com.
  4. Trump Moves Toward Dictatorship With Support for Border Wall of Hatred and Shame, Promise to Pardon Arpaio and Attacks on the Press. Roger Algase

    Update, August 24, 1:00 am:

    On August 22, the Sierra Club issued a statement about Trump's border wall proposal, which Trump is now insisting on funding by using the threat of shutting down the federal government if he does not get his way, with the following title:

    SIERRA CLUB TO TRUMP: NO RACIST WALL OF SHAME

    http://content.sierraclub.org/press-...ist-wall-shame

    The statement included the following:

    "Trump is waiving bedrock protections for border communities, ignoring public health and the environment, and wasting U.S. taxpayer money to build a symbol of hate, fear and racism. Border communities do not support Trump's bigoted policies like unjust travel bans or a boondoggle border wall."

    One might add that Trump's border Wall is more than just a symbol of hate and humiliation directed against Mexican immigrants, and by extension all Latino and other non-white American and foreign citizens alike. It is an insult to all Americans and to America itself - a direct denial of this country's core values of racial justice and the equality of all people on which this nation was founded.

    By stigmatizing and demonizing Mexican immigrants, and by extension all other non-European immigrants, as inferior, as people to be kept out of the US at all costs, Trump's Wall is also in an even darker and more ominous tradition, that of the Wall that the Nazis built around the Warsaw Ghetto during WW2 in order to make it easier to exterminate the Jews.

    Just
    as another Republican president, Ronald Reagan, famously told the Russians to tear down the Wall of Communist tyranny they had built in Berlin (and eventually that Wall was torn down), all Americans of good will must do everything within their legal power to make sure the Trump's border Wall of hate and shame is never built.

    My original comment appears below.

    In an earlier comment which I posted just before the beginning of Donald Trump's August 22 Phoenix rally, I suggested that the president might use the occasion to renew the attacks on legal immigration from non-white parts of the world which he began in another speech in Phoenix almost exactly a year ago, on August 31, 2016.

    However, in his most recent Phoenix speech, delivered at a rally with his base supporters, Trump, instead of attacking non-European immigration in general, as he did in Phoenix a year ago, focused his attacks on a particular group of immigrants, namely Latinos, and did so in terms which showed that his attacks on immigration are paving the way for an assault against democracy itself.

    For the most complete and incisive report on Trump's speech, one should go, as is so often the case, not to the US media reports, which so often focus on trivial or less important details rather than dealing with the essence of a story, but to the venerable British source, The Guardian (originally the Manchester Guardian) which, for almost 200 years, been one of England's most respected daily newspapers (and which also, incidentally, doesn't try to scam its readers by trying to make them pay to read its articles online). See:

    https://www.theguardian.com/us-news/...-rally-phoenix

    He did this in three ways: First, he threatened to shut down the US government if Congress doesn't provide funding for his Mexican border Wall, which from the start, has been the centerpiece of his agenda of animosity against and attempts to humiliate immigrants from Mexico and the rest of Latin America.

    Not only would shutting down the government render the duly elected representatives of the American people in Congress totally impotent, but Trump's obsession with building the Wall no matter what the cost may be, not only in money but in damage to our democratic system, can only bring back memories of other Walls which became the symbols of totalitarian societies.

    I refer to the infamous Berlin Wall of Communist tyranny, and to the even more infamous Wall which the Nazis built around the Warsaw Ghetto as part of their plan to exterminate the entire Jewish people.

    In this regard, the contrast could not be more dramatic between Trump and and a previous Republican president, Ronald Reagan. Reagan urged the Russians to tear down the Berlin Wall.

    Trump, on the other hand (who is now under investigation by a special counsel and two grand juries for alleged possible illegal connections with Russia by himself and/or his close associates) is evidently willing to tear down America's functioning of a democratically elected government in order to build a Wall against targeted minority immigrants.

    The next way in which Trump's threatened immigration actions resemble those of a dictator more than the leader of a democracy was in Trump's implied promise at the rally (one which it is quite safe to predict that he will carry out sooner rather than later) to pardon Joe Arpaio.

    This would be a clear message to all government officials involved with immigration enforcement that no matter how much they may abuse minority immigrants, they will be exempt from and put above any legal controls over their conduct.

    There was a European country, Germany, that once had a "law enforcement" organization that, according to governmental decree, was totally exempt from any judicial oversight or review. It was known as the Gestapo.

    Finally, and most dangerous of all for America's continued future as a democracy, there were Trump's extreme attacks on the press at the Phoenix rally. These attacks went far beyond merely challenging of disagreeing with media comments or stories, as is of course the right of every person, from the president on down, in a free society.

    To the contrary, they were direct attacks on the legitimacy of a free and independent press in America, consisting of statements that media reporters whom Trump didn't like were not only "crooked" and "dishonest", but that "they don't like our country".

    See the above report in The Guardian for further details.

    This is not the language of democracy. It is the language of dictatorship - the direction in which Trump's attacks on minority immigrants and his attempts to exploit hatred and prejudice against them are leading America.
    ___________________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards, without regard to ancestry, religion or ethnic background, in the true spirit of America.

    Roger's email address is algaselex@gmail.com

    Updated 08-24-2017 at 08:20 PM by ImmigrationLawBlogs

  5. One Year Ago, in Phoenix, Trump Called for a Drastic Reduction in Legal Immigration. Will He Do The Same on August 22, 2017? Roger Algase

    In all the excitement over trying to guess whether, at his August 22 Phoenix rally scheduled to begin less than an hour after this comment is written, Trump will or will not pardon former Maricopa County Sheriff Joe Arpaio for defying a federal court order in a case related to Arpaio's alleged racial profiling and other mistreatment of Latino immigrants in the name of "immigration enforcement", the media have largely overlooked the significance of another speech that Trump gave in Phoenix almost exactly one year ago, on August 31, 2016.

    In that speech, Trump, for the first time in a major address during his campaign, "pivoted" away from his previous campaign speeches promising mass deportation of Latino "criminals", "rapists" and "drug dealers" and actions against Muslim "terrorists" (meaning almost all Muslims worldwide, in his view).

    Instead, he focused on his plans for drastic cuts in legal immigration, completely apart from the issues of alleged immigrant "crime" and "terrorism" which eventually helped him win the electoral vote tally for the presidency (while losing the popular vote to Hillary Clinton by less than 3 million votes).

    In a speech loaded with ominous implications for the America's future as a nation of immigrants based on equal opportunity for qualified applicants from every part of the world, without regard to ancestry, skin color or religion, and heralding a return to the whites-only immigration policies of the 1924 Coolidge-era Johnson-Reed "national origins" immigration act, Trump returned to the same kind of thinly concealed language of prejudice and exclusion against non-white immigrants which was also used to justify support for the 1924 law at the time it was enacted.

    The Los Angeles Times described Trump's speech at that time as follows:

    "After four decades of high levels of immigration, Trump said, the country needs to 'control future immigration' to 'ensure assimilation'."

    The LA Times report continued:

    "The model, he [Trump] said, should be what the US did after 'previous immigration waves' - a reference to the restrictionist legislation passed under President Calvin Coolidge that remained in place until 1965.

    The goal should be 'to keep immigration levels, measured by population share, within historic norms'."

    http://www.latimes.com/politics/la-n...nap-story.html

    The above reference is obvious to any one who has the slightest knowledge of US immigration history. The "previous immigration waves" that Trump was referring to involved large scale immigration by Eastern European immigrants, including millions of Jewish immigrants (my own grandparents among them) in the three decades between 1890 and 1920.

    The same period also saw large scale immigration by Italians and other immigrants from mainly Catholic Southern Europe, as well as strenuous (and largely successful) attempts by the US Congress to keep out Asian immigrants, beginning with the 1880's Chinese exclusion laws.

    As every immigration law scholar who deserves to be taken seriously knows full well, the 1924 law was heavily influenced by the bogus racial thinking of that time known as "Eugenics", which, boiled down to its essence, regarded white Europeans as inherently superior to all other ethnic groups; and, within that group, northern Europeans, known as "Nordics", as superior to all other Europeans.

    This thinking was reflected in the law itself, which, to give just a couple of examples, set the annual US immigration quota for Germany at approximately 50,000, and the annual quota for Great Britain (as the UK was known in those days) at slightly over 30,000, while providing an annual quota for India of 100 (one hundred) immigrants per year, the same as the annual quotas for China, Japan and just about every other Asian, Middle Eastern and African country!

    (There were no quota limits in that law for people from "Western Hemisphere" countries such as North, Central and South America or the Caribbean.)

    It is also a well documented historical fact that Adolf Hitler had high praise for America's 1924 law, writing in Mein Kampf, and he claimed that America was ahead of Europe at that time in "recognizing" racial differences.

    This makes it all the more troubling and disturbing that Senator Jeff Sessions (R-Alabama) one of Trump's earliest Congressional supporters and now his attorney general with enormous power over immigration enforcement, also praised that same law as recently as in his January, 2015 in his immigration "Handbook" for Congressional Republicans (ostensibly for different reasons - though he also unquestionably must have known about the background and history of that infamous law as well as any other immigration law specialist).

    Will Trump, who has recently supported the so-called "RAISE" Act introduced by two Republican Senators which would effectively abolish the 1965 immigration reform law that put an end to 40 years of discrimination against non-European immigrants, and take America a long way back toward the white supremacist spirit of the 1924 immigration act, return to the theme of making America whiter by restricting legal immigration from outside Europe in his August 22, 2017 Phoenix rally?

    We will find out beginning in less than an hour after this comment is written.

    Roger Algase
    Attorney at Law

    Updated 08-22-2017 at 08:37 PM by ImmigrationLawBlogs

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