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  1. Where Does Reform Go From Here?

    by , 07-10-2013 at 08:21 PM (Greg Siskind on Immigration Law and Policy)
    A general pessimism has settled over the pro-immigration
    community after the House GOP caucus failed to endorse a comprehensive
    Senate-ish approach to immigration reform after meeting to talk about dealing
    with immigration this year. But I'd argue that the news is a bit or a mix. *
    House Republican Leaders issued the following statement
    after the caucus meeting today:
    Today House Republicans affirmed that rather than take up
    the flawed legislation rushed through the Senate, House committees will
    continue their work on a step-by-step, common-sense approach to fixing what has
    long been a broken system.* The American
    people want our border secured, our laws enforced, and the problems in our
    immigration system fixed to strengthen our economy.* But they don't trust a Democratic-controlled
    Washington, and they're alarmed by the president's ongoing insistence on
    enacting a single, massive, Obamacare-like bill rather than pursuing a
    step-by-step, common-sense approach to actually fix the problem.* The president has also demonstrated he is
    willing to unilaterally delay or ignore significant portions of laws he himself
    has signed, raising concerns among Americans that this administration cannot be
    trusted to deliver on its promises to secure the border and enforce laws as
    part of a single, massive bill like the one passed by the Senate.
    So we know that the leadership is not a fan of a
    comprehensive bill and wants individual bills. And they emphasized that they
    want border security measures before a legalization program starts.
    Other statements that emerged today from people like Raul
    Labrador and Daryl Issa made it sound like a legalization program is not off
    the table, but there should not be a special path to citizenship with the
    exception of DREAMers.
    So while many are assuming immigration reform is dead, I can
    see the House - after the August recess - considering a legalization bill that
    would create a legal status similar to the RPI status in the Senate bill but
    which would not begin until after various border security triggers are met.
    There would only be a special path to citizenship for DREAMers but others could
    eventually get green cards through existing green card categories after more
    triggers are hit.
    The question would
    then be whether Democrats would consider such a plan or simply ignore the
    House.* Politically, the Democrats can do nothing and reap major rewards down the road since no matter what GOP members may be saying, the WILL be blamed for this failure and they will eventualy lose the House when gerrymandering can no longer disguise demographic realities. On the other hand, Democrats could take a deal like this and wait until they've retaken the House to get a better program. And they WILL retake the House. Even if an immigration bill passes, the GOP's handling of the issue has effectively branded them as the anti-immigrant party and that is suicidal in 21st century America.

    Updated 07-12-2013 at 11:46 AM by GSiskind

  2. OSC Enters into Memorandum of Understanding with NLRB; by Bruce Buchanan, Siskind Susser

    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has entered into a Memorandum of Understanding (MOU) with the National Labor Relations Board (NLRB), formalizing a collaborative relationship that allows both agencies to share information, refer matters to each other and coordinate investigations as appropriate.
    OSC is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act, which prohibits citizenship status and national origin discrimination in hiring, firing and recruitment or referral for a fee, as well as discriminatory Form I-9 and E-Verify practices. The NLRB enforces the National Labor Relations Act, which protects the rights of most private sector employees to join together through union activity and/or protected concerted activity to improve their wages, hours and working conditions.
    The MOU will allow the NLRB to make referrals to OSC, with the express authority of the NLRB charging party, when a matter before the NLRB suggests a possible violation of the anti-discrimination provision, such as verification of employment authorization, in the I-9 or E-Verify process, that appears to be discriminatory based on citizenship status or national origin. Similarly, the OSC will refer matters to the NLRB that appear to fall within that agency's authority. The MOU also provides for cross-training and technical assistance to ensure that staff within each agency can identify appropriate referrals.
  3. OCAHO Rejects Employer's Speculative Argument and Finds Appeal Untimely; by Bruce Buchanan, Siskind Susser

    In U.S. v. Silverado Stages, Inc. (May & June 2013), OCAHO declined to reduce the employer's penalties of $7480, assessed by Immigration & Customs Enforcement (ICE) or hear the employer's request for review.
    Silverado Stages is the largest private motor coach operator in California with four locations, 140 employees and a gross annual income of $11 million. ICE alleged Silverado Stages failed to timely complete I-9 forms on 16 employees, two of which were undocumented workers. ICE's NIF sought penalties of $440 per violation (meaning 20 to 29 % of the I-9 forms had substantive errors).
    ICE determined Silverado Stages was a mid-size company; thus, the size of the employer was a neutral factor. ICE found two aggravating factors - seriousness of the violations and the presence of two undocumented workers; but for some unexplained reason, ICE did not increase the penalties by 5% each for these aggravating factors.
    Silverado Stages argued ICE does not know for a fact "that the forms were prepared but then misplaced, lost or destroyed." Thus, ICE cannot assume the I-9 forms were not initially timely prepared. OCAHO found Silverado Stages' "hypothesis" to be "no more than speculation" and held ICE is not obligated to "rebut whatever 'plausible' imaginary scenarios can be postulated."
    The Administrative Law Judge concluded $440 per violation was "well within the statutory parameters" and appeared "reasonable in light of the record." Thus, OCAHO upheld the assessment of $7480. Silverado Stages unsuccessfully attempted to request OCAHO to review the ALJ's decision because OCAHO found the Request to be untimely and improperly filed and served. 
    This decision is contrary to most OCAHO decisions in that OCAHO did not reduce the penalties assessed by ICE. It is only speculation to say why but two reasons may be that Siverado Stages is not a small employer and its "hypothesis" was totally discredited by OCAHO.  
  4. Family 2A Goes Current in August

    The August 2013 Visa Bulletin contains great news for both spouses and children of permanent residents. As of August 1, the Family 2A category will be current for all countries.

    If you have a green card, and your spouse (and/or children) are lawfully present in the U.S., they should get ready to file their I-485 packets in August. Even if the category retrogresses later on, they will be able to remain in the U.S. together with you. In 90 days, they will receive their work and travel permits. Your spouse will be able to get a drivers license. Your kids will be able to enroll in school.

    If the I-130 petition is pending, they can file their I-485s. If you have not filed anything for them, get ready to file I-130s and I-485s in August.

    If you were waiting to naturalize before you sponsored them for green cards, or before you got married, wait no longer. Sponsor them in August, or marry your boyfriend or girlfriend in July, and get the paperwork ready to file in August.

    And given the Supreme Court's recent decision striking down section 3 of DOMA, remember that the above advice applies to same-sex couples as well.

    If your spouse is abroad or entered the U.S. unlawfully, things are a bit more complex. The time to see your immigration lawyer is now!

    Below are the dates for the family-based categories in the August 2013 Visa Bulletin:

    FAMILY CATEGORIES

    Categories Worldwide China (PRC) Mexico Philippines
    1st 9-1-06 9-1-06 9-1-93 1-1-01
    2A Current Current Current Current
    2B 12-1-05 12-1-05 2-1-94 12-22-02
    3rd 12-8-02 12-8-02 5-1-93 12-1-92
    4th 6-22-01 6-22-01 9-22-96 1-8-90

    The big news in employment-based numbers is that India EB-2 advances from 2004 to 2008. If this affects you, be sure to file your I-485 in August.

    EMPLOYMENT CATEGORIES

    Categories Worldwide China (PRC) India Mexico Philippines
    1st Current Current Current Current Current
    2nd Current 8-8-08 1-1-08 Current Current
    3rd 1-1-09 1-1-09 1-22-03 1-1-09 10-22-06
    Unskilled 1-1-09 3-22-04 1-22-03 1-1-09 10-22-06
    4th Current Current Current Current Current
    Religious Current Current Current Current Current
    5th Current Current Current Current Current

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  5. August 2013 visa bulletin

    by , 07-10-2013 at 06:52 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    The Department of State has just released the August 2013 Visa Bulletin.
    There has been a dramatic jump for India EB2. MU Law expected that an India EB2 progression would happen,
    although it took a lot longer than we expected. Suffice it to say, had it happened earlier in the year, today's jump would not have been as dramatic. Nevertheless, the India EB2 jump is welcome news.

    Unfortunately, no other category moved more than a few weeks and most employment-based categories did not move at all.

    August 2013 Visa Bulletin
    All Other Countries China India Philippines
    EB-2 Current 08AUG08 01JAN08 Current
    EB-3 01JAN09 01JAN09 22JAN03 22OCT06




    Read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
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