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  1. Some Apples Fall Far from the Tree

    by , 05-03-2017 at 10:24 AM (Joel Stewart on PERM Labor Certification)
    The US Department of Labor recently issued two denials of PERM certification to Apple, the first US company with a market value above $700 billion.

    In one interesting case upholding denial of PERM approval, the Board of Alien Labor Certification (BALCA) cited important principles relating to typographical errors on the application form 9089 filed with the labor department by employers. In reporting the details of an alien worker’s experience gained over a period of 72 months with different employers, mostly abroad, the employer mistakenly wrote only 69 months of qualifying experience. See Apple, Inc., 2012-PER-03515 (April 24, 2017).

    The PERM process was created at the end of 2004 to promote expedited processing of applications which had previously been backlogged as much as seven years. Some delays had been caused by lethargic bureaucratic procedures, while others had to do with corrections, modifications and supplements to existing record files. The Department of Labor asserted that the new PERM process would use a zero-tolerance policy for any kind of errors, thus eliminating most reasons for long delays.

    After the PERM process began, the very first case to be appealed was HealthAmerica, in which an Employer had made a simple error on the form by typing the wrong date of publication for a newspaper advertisement. The regulations required two Sunday ads, but the employer (who had indeed placed two Sunday ads as required) put the date of the second ad eight days after the first date.

    The mistake seemed to be so insignificant that the employer was joined by the American Immigration Lawyers Association, which filed an amicus brief to appeal the decision. They argued that if the DOL applies a strict, zero-tolerance policy in its determinations, the electronic on-line form provided to the public should be user friendly to warn of data input errors. BALCA agreed and held that denial of certification for a minor, non-substantive error could not stand.

    In 2008, however, DOL overcame BALCA’s lenient policy towards typos by issuing regulations that specifically prohibit any kind of correction to a PERM application after it has been filed. Additionally, the new regulations prevent employers from providing such documentation because “typographical or similar errors are not immaterial if they cause an application to be denied based on regulatory requirements.” DOL believed that the correction of even the smallest typographical errors would be a “significant and costly resource drain on the PERM case management system and staff.”

    In another case, Apple, Inc., 2012-PER-03516, (April 24, 2017) decided the same day, BALCA upheld denial of certification because the employer had not matched the educational requirement (a Master’s Degree in Business, Operations, Supply Chain, or a related field of study and thirty-six months of experience) with the statement of the foreign worker’s experience (a Master’s degree in Mechanical Engineering).

    The employer argued that the coursework of the worker in graduate school, also listed on the form, required the same amount of time, coursework and specialized education as a Master’s degree in Business Operations, or Supply Chain, but the Board of Alien Labor Certifications disagreed, holding that despite the fact that the worker had equivalent coursework, “there is a difference in being exposed to a few…related courses during one’s graduate-level matriculation versus being immersed in a full course load of business classes (or a Master’s level business program) while in graduate school.”

    Denial of the first Apple case was based on a clear typographical error, while the second case was based on a subtle interpretation of the foreign worker’s educational qualifications of coursework in a field of study instead of a formal college level degree in that field of study.
  2. Asylum and Deportation in Ancient Greek Drama: Aeschylus' Suppliants and Euripides' Medea. A Message for Today? Roger Algase

    In the midst of the contentious battle which is now taking place over immigration and immigrant rights in the "New Era" of Donald Trump (to quote a recent remark by A.G. Jeff Sessions - not to be confused with the "New Order" in a certain central European country beginning eight decades ago), it is instructive to reflect that divisions and struggles over the status of foreigners and the degree to which they should be accepted into a given country's society are not new.

    In the West, these issues go back at least as far as ancient Greece in the Fifth Century B.C. In ancient Athens in particular, there was a large class of people known as "Metics", consisting both of people from other parts of Greece (Aristotle himself being a famous example), and people from non-Greek ("Barbarian") countries. Metics did not have the full rights of Athenian citizens, but were allowed to live legally in Athens, with at least some of the same rights and obligations as citizens.

    (The word "Metic" is Metoikos in ancient Greek, consisting of the words meta - change, and oikos - dwelling.)

    In many ways, Metics in ancient Athens were analogous to Lawful Permanent Residents of the United States today. The rights of foreigners in ancient Athens are a vast subject, far too complex to cover in detail in the following brief comment, but there are many excellent modern studies of this subject. See, for just one example, one available through an online publication, Sunoikisis Undergraduate Research Journal authored by Victoria Roeck called:

    Societal Attitudes toward Metics in Fifth-Century Athens through the Lens of Aeschylus's Suppliants and Euripides' Children of Hercules (2014)

    http://wp.chs.harvard.edu/surs/2014/...toward-metics/

    Ancient Athenian citizenship law is also a very broad subject as shown, to give only one example, in the law of the famous Athenian ruler Perlikles (Pericles) in 450 B.C. requiring that to be an Athenian citizen at birth, both of the child's parents must have been citizens, not only one, as previously required (there obviously being no 14th Amendment in effect at that time)!

    This law would, no doubt, have delighted Donald Trump and other present day supporters of changing the U.S. Constitution to eliminate universal birthright citizenship if they at been living in Athens at the time.

    But it is not my intention to discuss these issues further here. Instead, i will focus on two incidents from the works of two of the greatest dramatists of all time, Aeschylus and Euripides, to see how they dealt with two hotly contented and sensitive issues of their time and ours, namely asylum and deportation.

    In Suppliants (Iketides), by Aeschylus (ca. 525-456 B.C.) a group of women, all of whom are daughters of Danaos, the fugitive ex-king of Egypt, arrive in Greece (near the city of Argos), in order to seek asylum from the threat of forced marriage if they remain in Egypt (which, as the chorus of women in the play also makes clear, borders on Syria - another reminder of today's events ).

    Their father counsels them about the attitude and tone they need to adopt for their asylum application to the ruler of that city, Pelasgos (whose attitude toward refugees turns out to be more open-minded than that of another chief executive in a different, modern, country referred to below).

    In the words of Danaos, they must:

    "...answer the natives [citizens of Argos] in words that display respect, sorrow and need, as it is proper for aliens to do, explaining clearly this flight of yours which is not due to bloodshed. Let your speech, in the first place, not be accompanied by arrogance, and let it emerge from your disciplined faces and calm eyes that you are free of wantonness."

    Danaos continues, perhaps anticipating the influence of anti-immigrant attitudes among the leadership of a certain much larger and more powerful nation than the small polites of ancient Greece, more than 2,500 years later:

    "And be neither forward nor sluggish in speech: the people here are very ready to take offense."

    Most important of all, he concludes his advice as follows:

    "Remember to be yielding - you are a needy foreign refugee: bold speech does not suit those in a weak position."

    (memneso d'ekein. chreisos ei, xeini, fugas. thrasistomein gar ou prepei tous essonas.)

    Is this the same advice that lawyers are giving their clients in order to prepare for prepare for asylum hearings in the United States of America, ca. 2017 A.D.?

    Ultimately, Danaos' daughters' asylum petition is successful, leading to a series of dramatic events which I will discuss in the next part of this two-part series.

    In that forthcoming comment, I will also discuss a somewhat less successful (for the immigrant) "deportation hearing" in Euripides' Medea, one of the most famous plays in all of classical Greek drama, and one which in many ways anticipates the struggles of immigrants, and especially immigrant women, in America today.

    This is despite that fact that, fortunately, almost no immigrants, or women in general, ever respond today to the stress that Medea was under in the extreme way that she does in Euripides' play, as will also be shown further in my forthcoming comment on this drama.
    __________________________________
    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 receive work visas and green cards.

    Roger also studied beginning ancient Greek at Phillips Academy, Andover, Mass. His email address is algaselex@gmail.com

    Note: The translations from Suppliants quoted above are by Alan H. Sommerstein, in Aeschylus: Persians Seven Against Thebes Suppliants Prometheus Bound

    Loeb Classical Library Copyright (C) 2008 by the President and Fellows of Harvard College


    Updated 05-05-2017 at 11:56 AM by ImmigrationLawBlogs

  3. PT INTERSTATE LICENSURE COMPACT MAY GO LIVE IN 2018

    by , 05-02-2017 at 10:03 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    First reported by PT In Motion, The State of Washington became the tenth state to join the Interstate Licensure Compact for Physical Therapy (PTLC). The tenth state is key because that is the threshold for the Compact to become effective.

    Once fully live, the PTLC will allow PTs in one compact state to practice in another compact state without having to obtain another state PT license.

    The ten states are: Washington, Arizona, Kentucky, Mississippi, Missouri, Montana, North Dakota, Oregon, Tennessee, and Utah.

    Before the PTTC can go fully live, a Commission must be developed. The Commission will establish the rules governing interstate practice. It is expected that it will take about one year for the Commission to be established and the final rules promulgated.

    APTA is optimistic that more states will want to join the PTLC now that the ten state threshold has been reached. States that are interested in the PTLC should contact the APTA state affairs staff.


    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
  4. Letters of the Week: May 1 - May 7

    Please email your letters to editor@ilw.com

    Updated 05-08-2017 at 08:22 AM by IDBlog

  5. Independent Judiciary Was Main Defense Against President's 100 Day Assault on Immigrants. Will Justice Gorsuch Follow This Principle? Roger Algase

    Update, May 1, 2017 10:30 am:

    As federal judges at both the district court level and in the 9th Circuit Court of Appeals have been the strongest defense to date against the president's attempts to carry out his agenda of mass deportation against Hispanic and other minority immigrants, while barring as many Muslim immigrants as his advisers think he justify under the pretext of "national security" and claims of unlimited executive power over entry into the US by foreign citizens, attention is turning more and more to what might happen if any of the pending lawsuits wind up in the Supreme Court.

    Which way would the newest Justice, Neil Gorsuch, who was appointed by Trump, and who could turn out to be the deciding vote if any of these cases reach the nation's highest Court, decide?

    Will he support the doctrine of virtually unlimited Executive (and Congressional) power over immigration which originated in the dark days of the 1880's Chinese exclusion laws and which the president is now relying on to keep a different group or groups of targeted minority immigrants out of the US, or to remove them from this country?

    Or will the Court's newest Justice vote to uphold the limitations on this power which the 9th Circuit and District Courts mentioned below have asserted in order to block key parts of the president's Muslim ban and mass deportation agenda?

    A possible indication may be found in then Judge Gorsuch's opinion, writing for the 10th Circuit majority, as well as his own concurring opinion (in the same case!) in the August 23, 2016 decision in Gutierrez-Brizuela v. Lynch.

    In his concurring opinion, ruling in favor of an unauthorized immigrant facing deportation, Justice Gorsuch wrote the following about a claim of what he saw as overly broad executive power over immigration made under the Obama administration:

    "Even under the most relaxed or functionalist view of our separated powers some concern has to arise, too, when so much power is concentrated in the hands of a single branch of government. See, The Federalist No. 47 (James Madison) ('The accumulation of all powers, legislative, executive, and judiciary, in the same hands...may justly be pronounced the very definition of tyranny.')... Add to this the fact that many administrative agencies 'wield vast power' and are overseen by political appointees...and you have a pretty potent mix."


    In that case, then Judge Gorsuch strongly upheld the power of the Judicial Branch of the government to limit executive overreach in immigration matters. Will he stick to this principle and be willing to stand up to the Trump administration, just as he did with the previous administration, if these issues ever come before him in the Supreme Court?

    My original comment appears below.

    As the 100th day of one of the most anti-immigrant presidencies since the time of Calvin Coolidge almost a century ago has now come and gone, some commentators have pointed out that the actual changes that Donald Trump has made in immigration-related actions so far, as opposed to tough talk, are not as great as pro-immigration advocates had expected and feared.

    There are a number of good reasons to support this view that one can point to. Citizens of the six (originally seven) 99 percent Muslim countries whom Trump shocked America and the world by trying to ban from entering the US on dubious "national security" grounds" are still able to apply for visas to travel to America and use their visas to enter this Nation of Immigrants.

    Threatened mass deportation of millions of Hispanic and other minority immigrants who are already in the United States has not yet taken place, and, according to some reports, total deportation figures are not significantly higher than during the same periods under President Obama.

    Threatened cutoffs of federal funding for "Sanctuary Cities" have not yet taken place; American citizens are not being prosecuted or going to jail for living together with their unauthorized immigrant husbands, wives or parents, or for failing to turn their loved ones over to ICE for deportation, as would be the case in a truly fascist or totalitarian country.

    No one single brick of Trump's much vaunted Wall of antagonism and humiliation, not just toward unauthorized immigrants and criminal gangs, as claimed, but toward all Mexicans and by extension Latin American and other non-European immigrants, has yet been put in place.

    Trump has not even rescinded President Obama's DACA program, and he has come under fire from extremists in his own party, such as Representative Steve King (R-Iowa), for not doing so (as I have previously written about).

    In the area of skilled worker immigration, the president's much publicized "Hire American" executive order only called for government "studies" of the way that H-1B is working, rather than attempting to make any substantive changes in this program, which is one of the most important linchpins of our entire employment-based immigration system.

    In another largely symbolic gesture, Trump has also appointed Julie Kirchner, formerly with FAIR, which the Southern Poverty Law Center has designated as an anti-immigrant hate group as the head of the mainly toothless, powerless, USCIS Ombudsman's office, which is supposed to help people with their immigration applications.

    One can only imagine what kind of "help" they can look forward to now.

    At first glance, therefore, one might have the impression that on immigration, the new administration's bark has been far worse than its bite during the first 100 days.

    But the overall picture for immigrants under what AG Jeff Sessions recently called the "New Era" of Donald Trump is not anywhere as rosy, or harmless to the safety and security of immigrants, or the rights of Americans who support them or advocate for them, as the above would indicate.

    First, and perhaps most important of all, Trump has changed the image of America from that of a country that has been built on and become great through immigration, to a country where immigrants are not welcome, especially if they are not from the predominantly white countries of Europe.

    Through his executive orders and countless speeches and statements, he has consistently demonized and pilloried immigrants as dangerous and harmful to America in every possible way.

    In Trump's world view, if an immigrant is a Muslim, especially from the Middle East, then he or she should be be presumed to have terrorist sympathies and be barred from entry, or at least "vetted" with great suspicion and hostility.

    If an immigrant is from Mexico or anywhere in Latin America, he or she is probably a member of a drug cartel or criminal gang, according to Trump and his top immigration advisers, such as Sessions, Stephen Bannon and Kris Kobach. This is despite the fact that studies such as one by the highly respected Pew Research organization show that crime rates among immigrants, even those who are in the country illegally, are lower than among native born American citizens.

    An extreme example of Trump's attempt to persuade the public that Mexican and other minority immigrants are dangerous criminals is in his setting up an official office (VOICE) for this purpose.

    Trump's VOICE office, aimed at giving maximum publicity to violent crimes committed by mainly Hispanic immigrants, also recalls a similar strategy used in Europe in the 1930's and 1940's in a newspaper known as Der Stuermer. This paper published reports about alleged crimes committed by Jews, and its director, Julius Streicher, was ultimately executed as a war criminal

    https://www.democracynow.org/2017/2/...list_of_jewish

    But how about skilled, highly educated professional immigrants from India and other parts of Asia who are making such important contributions to our IT, financial and education industries, and starting businesses of their own which provide jobs for many Americans?

    For Trump, they are nothing but "cheap foreign labor" and "job stealers". "Hire American " is now the mantra of the new Trump era, regardless of a person's skill, education or ability to contribute to our economy and society.

    But most of all, Trump's mass deportation agenda, even if the total numbers have not yet substantially increased, is already beginning to change the face of America, not only in terms of spirit and attitude, but in terms of color. 11 million mainly non-white unauthorized immigrants are now learning that not a single man, woman or child among them is safe from arrest and deportation, as agents of a rapidly growing "deportation force" stalk courthouses, conduct raids and otherwise sow fear and terror in immigrant communities across America.

    For an up to date report, see Washington Post, April 30:

    Amid immigration setbacks, one Trump strategy seems to be working: Fear

    (Sorry, I do not have a direct link. Please go to Google to access.)

    The term "ethnic cleansing" has begun to appear in newspaper articles, such as in the Washington Post (see link below) about Trump's mass deportation agenda, and it seems less and less extreme or unrealistic as time goes on.

    https://mediamatters.org/blog/2016/0...eansing/213293

    The picture that emerges is that whenever the Trump administration is able to act with a free hand in terms of immigration, the result is to create panic, suffering and extreme hardship among immigrants, especially those who are not from Europe, in a throwback to the "Nordics" only immigration policies of the 1920's which Sessions and Bannon in particular have cited or referred to with approval.

    And in the areas of immigration where there have not been big changes to date, this is almost entirely due to resistance from the two other branches of government which are beyond the president's control.

    One of these branches is Congress, which so far has withheld support for Trump's Mexican border Wall by refusing to provide funds to begin construction.

    But the main reason that important parts of this administration's assault on immigrants have gone unrealized during the first 100 days is due to independent federal district court judges in states such as Washington, Hawaii and California, as well as on the 9th Circuit Court of Appeals.

    Despite the president's repeated threats and personal attacks, they have refused to let themselves be intimidated into caving into his attempts at imposing a Muslim immigration ban potentially affecting at least 100 million people from six (formerly seven) Middle Eastern and African countries, and to cutting off all federal funds to cities and counties which refuse to knuckle under and become complicit in his mass deportation agenda.

    It is because of these courageous, independent judges that much of the administration's assault on immigrants during the first 100 days of the "Donald Trump era" remains unfulfilled, and why Americans who support immigration are still free to speak out and stand up for immigrant rights without fear of being prosecuted for "harboring" or "assisting" unauthorized immigrants under INA Section 274, as Jeff Sessions keeps threatening to do.

    Thanks in large part to these independent federal judges, America is still a nation of immigrants and a country of freedom, even under Donald Trump as president. The question is: how much longer will this last?
    _________________________________
    Roger Algase is a New York immigration lawyer and graduate of Harvard College and Harvard Law School who has been helping mainly skilled and professional immigrants from diverse parts of the world receive work visas and green cards for more than 35 years.
    Roger's email address is algaselex@gmail.com

    Updated 05-01-2017 at 03:36 PM by ImmigrationLawBlogs

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