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  1. Owners of Temp Agencies Arrested for Immigration Conspiracy; by Bruce Buchanan

    On January 30, 2014, federal agents arrested the owners of two employment agencies in Houston and charged them with recruiting and placing undocumented immigrants at restaurant jobs around the country, among other federal crimes. If convicted, each defendant faces up to 10 years just on the immigration conspiracy charge.

    The raids on Hong Li Job Agency and the Tai Shan Employment Agency were part of a wider undercover investigation by U.S. Immigration and Customs Enforcement (ICE) that led to the arrest of 30 other suspects including operators and managers connected with Chinese restaurants in Arkansas, Colorado, Kansas, Louisiana, Oklahoma, Maine, Texas and elsewhere who are believed to have knowingly employed and exploited undocumented workers.

    Hiring of unauthorized workers is a violation of section 274A of the Immigration and Nationality Act (INA), which involves the failure of an employer to verify the employment eligibility of any person hired after November 6, 1986, by using the Form I-9.

    The workers, primarily from Mexico and Central America, were allegedly charged a fee of $300 to $480 for job placement which was deducted from their first month's pay. Once hired, they would work 12-hour shifts and 6 days per week at the restaurants, but were not paid overtime or allowed to keep their tips or gratuities. Workers were paid a set amount of $1,000 to $2,000 a month for putting in 72-hours of work per week. The restaurant operators paid less than the minimum wage, paid in cash to avoid employment taxes, and did not provide the workers with health insurance, vacation or sick time, ICE officials said.

    Copies of both indictments are available here and here .

    Click image for larger version. 

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ID:	706 Restaurants specifically identified in the indictments are:

    China Cafe - Brownwood, TX;
    Asian City - Nacogdoches, TX;
    China Star - Bastrop, LA;
    Super Taste China Buffet - Port Allen, LA;
    New China Buffet and Grill - Abbeville, LA;
    Grand Buffet - Nederland, TX;
    King Buffet - Port Arthur, TX;
    Asian Garden - San Marcos, TX;
    Buffet City Asian Cuisine - Rockwall, TX;
    Weng's Buffet City Asian Cuisine - Rockwall, TX;
    Dragon Buffet and Sushi - Sanger, TX

    Updated 02-04-2014 at 06:38 PM by BBuchanan

  2. Petition Filers Seek Rule Change from DHS to Suspend Deportations, Agency Required to

    by , 02-04-2014 at 03:47 PM (Matthew Kolken on Deportation And Removal)
    I received the following for immediate release from the National Day Laborers Organizing Network:


    The “Si Se Puede” Filing Provides Authoritative Legal Evidence of Obama Administration’s Ability to Expand Deferred Action, Grant Relief to Future Beneficiaries of Immigration Reform

    The National Day Laborer Organizing Network (NDLON) and a group of undocumented people facing the threat of deportation are using a little known provision of the Administrative Procedure Act to formally request the Department of Homeland Security expand the Deferred Action for Childhood Arrivals program to the fullest extent permissible by law and to suspend deportations for immigrant workers and families who are likely future beneficiaries of immigration reform.

    Under the law, agencies are required to allow members of the public to petition for the issuance of new rules or changes to or repeal of existing rules. DHS must provide a response to the petition and explain its decision to grant or deny petitioners’ request.

    Referring to the significance of the petition drafted by the Kathryn O. Greenberg Immigration Justice Clinic at Cardozo School of Law, NDLON Staff Attorney Jessica Karp explained, “After reading this document, there is no question whether the President can stop deportations. It shows that he can and he should. The only question left is, why hasn’t he? This petition presents the dilemma to DHS formally. It gives them to opportunity to correct years of reckless enforcement and also grant relief to immigrant workers and families who the President and leaders on both sides of the aisle all agree belong here.”

    For Jose Luis Piscil of New Haven, CT who is scheduled to appear in immigration court on March 16th, the petition is part of his urgent attempt to remain with his family after a wrongful arrest on charges that were quickly dismissed led to his placement in deportation proceedings under the federal Secure Communities deportation quota program. “The way they are currently enforcing their laws is creating nightmares in immigrants’ lives. I want to be here for my wife and two children, to provide for them and to see them grow up. DHS uses discretion in its enforcement. I hope it will use it in my case and change their rules so that no one else faces what my family is going through.”

    Many cite the “Sí se puede (Yes You Can)” rulemaking petition as the authoritative document on the President’s executive authority related to immigration enforcement. It cites extensive precedent to demonstrate the historic use of discretion and the constitutional authority of the executive branch to determine how laws are implemented.

    Thomas Chew of Cardozo Immigration Justice Clinic says, ““The Constitution gives the President unilateral power to determine when it is, and when it is not, in the national interest to initiate deportation proceedings. The only question that remains is whether this President will exercise his power to protect our nation’s immigrants and our nation’s economy from the devastation his immigration policies have wrought.”

    The “Sí se puede (Yes You Can)” rulemaking petition is available at http://www.notonemoredeportation.com/resources/rulemaking/
  3. Measuring a Country by Its Olympic Asylum Seekers: Russia vs. UK

    If imitation is the highest form of flattery in art, immigration is the highest form of flattery in politics. The decision to move to a particular country demonstrates the belief that that country is worth living in. So as the Winter Olympics in Sochi, Russia approaches, it will be interesting to compare the number of athletes who seek asylum in Russia to the number who sought asylum during the 2012 Games in Great Britain.



    Sochi-o-path

    To make this comparison, we first have to determine how many athletes sought asylum in 2012. I have not seen a concrete count of the number of athletes who "defected" during the 2012 Games. This is because asylum is confidential, and so the British government has not published any figures on Olympic asylum seekers. However, one source estimates that at least 20 athletes and coaches defected during the Games. Cameroon had the most defections: Seven of its 37 athletes did not return home.


    When athletes (or anyone) seeks asylum, we can assume that there is a "push" and a "pull." The "push" is the bad conditions in the home country that lead the person to flee, and the "pull" is the good conditions in the country where the person seeks refuge. The "pull" of the UK is obvious: It is a developed, liberal democracy that generally respects human rights and offers opportunities (educational, professional) for its residents. People fleeing persecution (or economic deprivation) would generally be lucky to start a new life there.


    The "pull" of Russia is less obvious. For one thing, Russia is not known as a welcoming destination for non-Russians. Racism and xenophobia are problems, and many minorities have been targeted and killed. Homophobia is also rampant, and institutionalized (though the mayor of Sochi claims that there are no gays in his city). In terms of its economy, Russia is not as an attractive destination as Western Europe or the U.S., but it is better than many places. Finally, the Russian language is not spoken by nearly as many people as English, and so this might create some disincentive for potential asylum seekers. For all these reasons, I doubt we will see many athletes defecting to start new lives in Russia.


    To be fair, many of the source countries for asylum seekers do not send athletes to the Winter Olympics. But even if they did, I doubt many of them would desire to resettle in Russia. Conditions there are simply not conducive to starting a new life, particularly for people who come from Africa or Central Asia.


    There have, of course, been a few high profile asylum seekers in Russia. Edward Snowden is one, but I don't think he deliberately chose Russia as his destination country. Instead, it seems he got stuck there on the way to somewhere else. So the Russians really can't claim him as someone who had a burning desire to resettle in their country.


    Another immigrant to Russia is Gerard Depardieu, a "tax refugee" from France who (sort-of) left his homeland due to high taxes and (kind-of) settled in Russia. I suppose in Mr. Depardieu's case, there was a "pull" from Russia, but that seems more to do with his friendship with President Putin (who summarily granted him citizenship last year) than with his desire to seek a better life there. Indeed, though Mr. Depardieu has citizenship and an address in Russia, it is unclear how much time he actually spends there.


    The bottom line is, I don't think Russia is seen by many as a desirable place to resettle, and I expect that we won't see many athletes defecting during the upcoming Games. Perhaps the Russians will be pleased by this (Russia for the Russians!). But maybe upon reflection, they will find that it demonstrates a darker truth about the culture and society that they have created.

    Originally posted on the Asylumist: www.Asylumist.com.
  4. H-1B Petitions - Some Tips For Success: Part 1. By Roger Algase


    As we come closer to the April 1 filing date for new H-1B petitions this year, everyone is of course wondering how soon the 65,000 annual limit (with 20,000 additional visas available for US master degree holders) will be reached. However, having the case accepted for filing, which frequently involves a lottery because of shortage of visas, is, of course, not the only factor involved in a successful H-1B case.

    It is also important to do everything possible to make sure that, once accepted for filing, the H-1B petition will actually be approved. This is particularly true in the current era of frequent requests for evidence (RFE's) and increasing denial rates.

    As every H-1B petitioner knows, an H-1B visa is only available for someone who will be working in a "specialty occupation". This is defined as an occupation that normally requires a bachelor degree, or the equivalent, in a particular specialty.

    Deciding whether or not a particular position is a specialty occupation or not is one of the most contentious issues in all of H-1B practice.

    Claiming that the particular position offered in a given H-1B petition is not a specialty occupation because it can allegedly be performed by someone who does not have a bachelor degree in a particular specialty is an all too frequent excuse used by USCIS Service Centers and the Administrative Appeals Office (AAO) for denying H-1B cases. This is true even when the person being sponsored for H-1B ( the "beneficiary") is clearly qualified because he or she has a bachelor or higher degree in the specialty.

    The H-1B regulations set forth four criteria for determining whether a given position is a specialty occupation. In theory, these criteria are independent of each other, and the regulation states that it is only necessary to meet any one of the four. However, in practice, many H-1B examiners give the greatest weight to the first of the four criteria.

    If a USCIS examiner thinks that this first criteria has not been met, this negative view may often negatively color his or her assessment of whether any of the other three criteria have been met as well. These other three criteria will be discussed in future posts. This post will focus on the first criterion, which reads as follows:

    A Baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.

    The first thing to note here is that even though the regulation does not specifically say so, USCIS and the federal courts interpret the term "degree" in the above regulation to mean a degree in a particular specialty related to the position.

    In deciding whether this requirement has been met, USCIS places very great weight on a publication of the US Department of Labor called the Occupational Outlook Handbook (OOH). This publication lists hundreds of different job titles and, among other things, provides information about the educational and experience requirements for each of them.

    The only problem with this excessive reliance on the OOH, however, is that this publication, which is generally updated every two years, is not intended to be an H-1B specific guide. It is intended to help people interested in various jobs or careers decide which ones may be best suited for them, or how they can qualify for a career in a particular field.

    This has little or nothing to do with whether a particular position qualifies as a "specialty occupation" for H-1B purposes. Therefore, it is very common to find in the OOH discussions of "how to become" qualified to work in a particular job vague statements such as that "many employers" require a bachelor degree in xyz field or fields, but "some employers" may accept a lesser degree, or a more general bachelor degree.

    Does this mean that a specialty bachelor degree is a "normal" requirement the particular position? The OOH often does not answer this question more precisely, because that is not its function.

    Another issue is when the OOH lists a bachelor degree in any one of several different, but related, fields as acceptable preparation for a particular position. For example, in the case of the position of Market Research Analyst, which used to be recognized as a specialty occupation without any question by the USCIS and its predecessor INS, the OOH lists a number of different bachelor degree majors as being related to the position.

    These include fields such as not only marketing itself, but communications, social science, economics, statistics and business administration. Clearly, all of these are specialty areas of study. All of them are related to the duties of a Market Researcher, as the OOH makes clear.

    But does the fact that several specialties are related to this position instead of only just one (such as: medicine - Physician; or law - Attorney, etc.) mean that Market Research Analyst is not a specialty occupation, and that anyone with a genral liberal arts degree only is qualified for this position?

    It may not seem to make much sense, but this is in fact what USCIS has been arguing in a number of recent cases, as i will show in more detail in an upcoming post.

    ________________________________

    Roger Algase is a New York Attorney and a graduate of Harvard College and Harvard Law School. For more than 30 years, through his close connection with his clients and personal attention to every case, he has been helping business and professional immigrants obtain successful results.

    His main areas of practice are H-1B and O-1 work visas, and green cards through labor certification, extraordinary ability. and opposite or same sex marriage. His email address is algaselex@gmail.com

    Updated 12-25-2015 at 07:54 AM by ImmigrationLawBlogs

  5. Seriously? Why USCIS Needs to End Anonymous Decisions

    by , 02-03-2014 at 05:27 PM (Greg Siskind on Immigration Law and Policy)
    Many of you may know our firm files a lot of cases for physicians. I co-write a treatise on the subject and chair a national organization of physician immigration lawyers. So when we got a request for evidence today from the USCIS Vermont Service Center questioning whether an employer filing for an H-1B visa for a physician really needs someone with a bachelors degree to fill the job of a physician, you're left wondering whether to laugh or scream. Maybe they thought the job was for a witch doctor. Or a spin doctor.

    We learned as well today that another firm got the same request for evidence today for a doctor so this can't be called an isolated incident.

    If this weren't all too common, maybe it wouldn't be worth writing about in my blog. But immigration lawyers across American get these kinds of things every day. And most simply respond to these ridiculous evidence requests by giving the officer what they ask for and never calling USCIS to the carpet on this.

    I've had an idea for years for how to reduce the number of abusive or downright silly decisions that come from USCIS (and the Department of Labor and Department of State). Make examiners actually have to sign their decisions. Immigration officers at the regional services centers are one of a small group of agencies that get to issue life changing decisions with complete anonymity. If you get audited by the IRS, investigated by the SEC, etc. the government official doing the auditing or investigating doesn't do it anonymously. Even USCIS local office examiners that interview applicants for green cards don't get to do their jobs anonymously.

    The reason why this change would matter so much is it would force examiners to think about whether they would be comfortable with their decisions making front page news. Chances are it would force people to use a little common sense before sending out something like the RFE we got today. Also, if there is a pattern of certain officers abusing their positions or showing incompetence, the public will be in a better position to hold USCIS accountable. Finally, because officers operate in anonymity, there is no way to determine if the officer has a conflict of interest. For example, let's say the officer was fired by a company or a law firm that files an application. Under the current rules, there is no way to ever learn this.

    I once asked a USCIS senior official why they have this policy and was told that it was out of fear of retribution being taken against the officer. Which was really completely insulting to America's immigrants and also an excuse that other agencies wouldn't dare to make. We have "sunshine laws" that apply to local, state and federal agencies which prevent government officials from being able to operate secretly. It's about time we moved away from the culture of secrecy at USCIS. The agency's officers should be prepared to stand by their decisions.

    Updated 02-03-2014 at 05:29 PM by GSiskind

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