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When PERM applications are denied, employers can file requests for reconsideration to the Certifying Officer in Atlanta or requests for review (appeals) directly to the office of Administrative Law Judges in Washington, DC. The judges adjudicate decisions collectively under the aegis “Board of Alien Labor Certification Appeals” (BALCA). If a reconsideration is denied by the Certifying Officer, employers can still file an appeal to BALCA within 30 days.
In addition to the requirement of timely filing, employers must carefully state the grounds for the appeal. A directive from BALCA advises that appeals may be dismissed if the grounds do not contain sufficient detail.
Appeals may consist of a statement of position or a brief. While no definitions of these terms are provided in the PERM Rule, the phrase “statement of position” seems to encourage employers who do not have legal representation to file appeals in which they may make arguments in layman’s terms, while attorneys may be expected to prepare legal briefs.
Both statements and briefs must satisfy the requirements set forth in the Board’s one-page 1988 decision, North American Printing, 88-INA-42. The decision states, “The request for review shall…set forth the particular grounds for the request.”
An example of inadequate grounds might state simply that the Certifying Officer ignored the law, or that the law is unfair, or that the denial was unreasonable. None of these would not constitute particular grounds.
However, if an employer states that the denial violates a specific section of the PERM Rule and why, the Board would then have proper notice about the employer’s particular grounds for appeal.
An important issue to be aware of is that appeals cannot include arguments that are not already in the record at the time of the denial or reconsideration. When DOL issues an audit, the employer must address all the audit issues in its response. If the application is then denied, the employer may not introduce new documentation in its request for reconsideration, unless there was no opportunity to provide the documentation prior to the denial. This may occur when the DOL gives a reason for denial that was not previously stated in the audit letter.
Furthermore, if an employer does not respond to all the issues in an audit and then tries to file a request for reconsideration or appeal to make arguments that it neglected to include in the response to the audit, it is barred from raising any new issues.
What this means is that an appeal to BALCA is nothing more than a review of the record file and not an opportunity to introduce new facts or legal arguments. Notwithstanding these narrowly defined appeal procedures, the Board has often made decisions favorable to employers for meritorious cases.
A checklist for appeal along this basis might include the following: (1) Is there any information or documentation missing from the record file that the Board is unaware of? (2) Did the DOL raise an issue in denial to which the employer did not previously have an opportunity to respond? (3) Did the DOL abuse its discretion in issuing a denial without sufficient cause? (4) Was there a misunderstanding arising from an inadequacy of the PERM form 9089? (5) Has the DOL misapplied the law? (6) Does the denial shock the conscience? (7) Is the law itself vague, ambiguous or unreasonable? (8) Was the Employer unable to provide information requested for good cause? (9) Was the audit language vague or ambiguous so that no reasonable person could understand itsexact meaning? (10) Was the denial based on simple typographical errors that did not affect the search for US workers?
Since PERM appeals are very strictly construed, the best strategy is to avoid appeals entirely. Employers should always follow the regulations carefully and bear in mind that even most typographical errors can result in irreversible denials.
Updated 12-12-2016 at 04:02 PM by JStewart
Please email your letters to firstname.lastname@example.org or post them directly as a comment below.
Update, November 16, 9:34 am:
White nationalist leader and former Harvard Summer School Asian language teacher Jared Taylor, whose detailed and painstaking analysis of presidential election popular vote loser Donald Trump's announced immigration policies from a white supremacist perspective is introduced below, and will be continued in more detail in Part 2 of this series, is reportedly very happy with Trump's appointment of Alt-Right Breitbart News Editor Stephen Bannon as Trump's chief strategist and senior adviser. The website mic.com quotes Taylor as follows:
"I hope that Stephen Bannon will help encourage President Trump to keep the promises the Candidate Trump made...the single greatest threat facing whites is mass immigration of non-whites into white homelands."
The same site also quotes Taylor as saying about Trump:
"To me, and in general to 'racial dissidents such as myself, it's his positions on immigration and naturalization and citizenship and taking a very hard look at whose coming into the country that are of interest to me..."
According to the same report, Taylor stated that he hopes Bannon will help set a White House agenda of not only deporting undocumented people en masse, but ending birthright citizenship and cutting even legal immigration "way back." See:
mic.com, in the same story, also reports that Bannon's appointment has been hailed by the American Nazi Party and the KKK.
In a November 13 article (before Bannon's appointment was announced), the prestigious and internationally respected German magazine Der Spiegel wrote the following about Trump's comments about immigrants and minorities during the campaign:
"Trump had no ideas, but he sensed that the [white] left-behinds yearn for strength. After Barack Obama's victories, the pundits said that no US election could be won without the Latino vote. But Trump gave the Latinos a big [unprintable words omitted], insinuating that the left-behinds are superior. His words were as crude as those spoken in Germany 80 years ago."
Update: November 15, 11:38 am
In an extremely dangerous and disturbing development for the future of immigration in America, Trump has appointed Brietbart News Editor Stephen Bannon as his chief strategist and adviser. The Hill describes Bannon's views as follows:
"The website [Breitbart News] supports nationalist movements wherever they arise...
Bannon admires right wing nationalists and hard line illegal immigration opponents in Europe and elsewhere...
'He definitely recognizes populist nationalists around the world.'...
The new Breitbart Paris website will campaign aggressively to help Le Pen get elected as the next president of France...
Critics have called out Breitbart's intense focus on crimes committed by blacks and people in the country illegally."
The fact that Trump has appointed someone with these views speaks volumes about what his own views may be on race relations in America, including immigration. Could America, in just four (or eight) years undo a half century of progress we have made as a nation toward racial justice and equality, both on immigration and on civil rights in general?
Could we be moving as a nation toward an Apartheid America?
My original post follows:
The following is a revised and expanded version, as of November 14 at 10:25 am, of my comments which were originally posted on the evening of November 13:
These comments are not concerned with whether anti-immigrant white nationalist organizations or leaders played any role in turning out enough white votes to give President-Elect Donald Trump his margin of victory in the electoral college (since he lost the popular vote to Hillary Clinton by some 2 million votes).
Nor are they concerned with questions such as whether or not Trump may see himself as being under an obligation to reward these groups for helping him to win the election by adopting their anti-immigrant policies. I will leave those questions to the political pundits, who write on sites other than this one.
These comments will only examine the similarities and differences, if any, between Donald Trump's stated immigration policies and the immigration agenda of the white nationalist movement as announced by one of its own leaders.
I will also examine whether these leaders might or might not have reasons to be disappointed with Trump's actual immigration plans as announced after the election.
As an example of white nationalist policy objectives regarding immigration, I will refer to one avowedly white nationalist (though, according to Wikipedia, he calles himself a "white advocate" instead - see below) Trump supporter and who has articulated white nationalist immigration policy objectives with some precision and detail.
The figure I am referring to is Jared Taylor, editor of a now defunct magazine called American Renaissance. Taylor, according to his Wikipedia biography, is a confirmed believer in the inherent superiority of whites compared to black people (while also believing, again according to Wikipedia, that white people are less intelligent than East Asians). See:
Taylor was born in Japan to American missionary parents and grew up in Japan. In the United States, he has worked as a news editor at the Washington Post, (hardly a white nationalist outlet) and also taught Japanese to summer school students at Harvard University, not exactly known as a hotbed or center of white nationalist ideology.
Somewhere along the line, as described in the above Wikipedia extract, Taylor became a believer in white racial "uniqueness" if not actual superiority. His views about how immigration policy should have the goal of serving or promoting what he sees as the interests of the white race are set forth in his August 20, 2015 article in American Renaissance entitled: Is Trump Our Last Chance?
"Donald Trump may be the last hope for a president who would be good for white people.
Donald Trump's new position paper on immigration makes it official: He is easily the best presidential candidate on border security and immigration since Pat Buchanan. And we can be sure he is not a bait and switch politician who excites supporters with a few sensible ideas and then betrays them. Mr. Trump has single-handedly made immigration the key issue of this election. His heart is in it when he says that we need to build a wall, deport illegals, and have an immigration 'pause' until every American who wants a job gets one."
Then, in an explicit description of how he believes that immigration policy should serve what he sees as white interests, he states:
"But can he win? The white percentage of the electorate drops with every election. It was 74 percent in 2012 and is likely to be 72 per cent in 2016. Time is running out for white people, but a unique set of circumstances in 2016 may give them a real chance - perhaps their last best chance - to elect a president who would help them rather than hurt them."
And, further down in his article, Taylor has this to say:
"Actually looking at the pros and cons of immigrants could open the door to looking at the pros and cons of different groups of people. White, high I.Q. English-speaking people obviously assimilate best, and someone in a Trump administration might actually say so."
And he concludes:
"There will never be another campaign like this one. If Mr. Trump loses, this could be the last chance whites have to vote for a president who could actually do something useful for them and their country."
What are the specific immigration policies that Jared Taylor seems to believe would be appropriate to serve what he sees as white interests?
As his article makes clear, they are virtually identical to Trump's own stated immigration policies as they were formulated at that time, almost 18 months ago, at the beginning of his campaign, and were not substantially changed (except for the addition of the now apparently abandoned worldwide Muslim ban) right up through the election itself.
I will go through Taylor's list and discuss his comments about Trump's specific proposals to see how, in Taylor's view, each one supports his white nationalist agenda, in Part 2 of these comments.
In Part 2, I will also examine Trump's post election announcements concerning his possible modifications in these plans to see if Taylor and his fellow white nationalists might have reasons to be disappointed in any of Trump's latest immigration policy proposals, such as, for example, his plan to round up and deport "only" up to 3 million "criminal illegal aliens".
In contrast, I will also look at some of Trump's other recent immigration policy proposals, such as "extreme vetting" of all visa applicants, to see if they might be a white nationalist's dream come true (and a nightmare for immigrants and all Americans who support our democratic principles of equal opportunity for all without regard to race, color or religion).
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 and ethnic/religious backgrounds obtain work permits and green cards.
Roger knows a few basic sentences of Japanese, but is not proficient in that language, never having studied under Jared Taylor. Roger's email address is email@example.com
Updated 11-16-2016 at 08:34 AM by ImmigrationLawBlogs
By: Bruce Buchanan, Sebelist Buchanan Law
The Second Circuit Court of Appeals in Buffalo Transportation, Inc. v. USA upheld the penalties assessed by the Office of Chief Administrative Hearing Officer (OCAHO). Previously, OCAHO found Buffalo Transportation, Inc. (BTI) violated the Immigration Control and Reform Act by committing 135 substantive violations and assessed a civil penalty of $75,600.
In its appeal, BTI contended 54 of the 135 violations were technical, rather than substantive, violations. For these 54 violations to be dismissed, BTI would have to be successful in their appeal and Immigration and Customs Enforcement (ICE) would have to not give BTI 10 days to correct the technical errors.
The issue before the Court was whether OCAHO correctly determined that the 54 Form I-9s presented to ICE were not prepared within three days of the employees’ hiring date. Under the applicable regulation, an employer must prepare an I-9 form within three days of hire and failure to do so is considered a substantive violation.
In determining this issue, the Court applied deference to OCAHO’s interpretations of the relevant regulations regarding the timing of when I-9 forms must be prepared. After applying the appropriate deference, the Court stated OCAHO correctly determined there was no evidence that any of the I-9 forms were timely prepared; rather, the 54 Form I-9s were prepared after ICE delivered its Notice of Inspection to BTI.
BTI also asserted it should have been given a warning notice rather than a penalty. However, the Court noted it is within the discretion of ICE to do so and in this case, ICE declined to use their discretion to issue a warning notice. Thus, the Court could not order ICE to issue a warning notice.
Additionally, BTI argued it kept copies of the employees’ documents reflecting work authorization which shows substantial compliance. The Court noted the regulations clearly do not allow retention of these documents to relieve the employer from completing section 2 of the I-9 forms.
Finally, BTI argued the amount of the penalties was arbitrary. The Court noted OCAHO considered the statutory factors and ability to pay and reduced the penalties accordingly. The Court concluded OCAHO made an “allowable judgement” in determining the penalties and it would not and could not substitute its judgement.
This decision is consistent with most other court of appeals’ decision which uphold OCAHO’s findings and the assessment of the penalties.
Update: December 9 at 9:34 am:
Donald Trump is now reported as attacking Time Magazine for calling him "Person of the Year", instead of "Man of the Year". I have a better suggestion: How about:
"Anti-Immigrant Demagogue of the Year"
What else got him elected (as our first popular vote loser president in 16 years)?
Attorney at Law
Update, 6:39 pm November 11:
According to the latest report, Trump has now completely changed his initial tweet in order to show respect for the protesters, rather than to threaten them.
The new tweet is very reassuring for those who are hoping that America will still be a country where dissent is tolerated. It goes beyond that: it is generous, inclusive and shows that if Trump continues along this conciliatory line toward dissenters, especially with regard to immigrants and minorities, he might actually turn out to be a great president.
This is the text of Trump's revised tweet:
Donald J. Trump
Love the fact that small groups of protesters last night have passion for our great country. We will all come together and be proud!
I was not aware of the revised tweet when I wrote my original comment and I am revising the comment accordingly. See below.
The following is a revised version of my original comment.
On November 10, Trump posted the following comment on Twitter in response to nationwide protests which broke out after his election.
Donald J. Trump
Just had a very open and successful presidential election. Now professional protesters, incited by the media, are protesting. Very unfair!
When the president-elect of the United States, who attacked and threatened libel suits and other retaliation against opposition media during the presidential campaign, began his transition to power by seeming attacking the media for "inciting" protesters exercising their constitutional right to free speech, it created a cause for concern about his commitment to upholding constitutional guarantees in general as president, including his willingness to respect the constitutional rights of immigrants, including such rights as due process in deportation hearings, as recently re-affirmed by the US Supreme Court in Reyes Mata v. Lynch 576 US _(2015)? For a detailed discussion of this case, See, Alissa Wickham:
Supreme Court Bolsters Due Process Rights for Immigrants (June 15, 2015)
It also raised a legitimate concern whether the First Amendment right to freedom of speech might be in danger right at the beginning of Trump's transition to the presidency and about what might happen, not only to the due process rights of immigrants facing deportation, but to the rights of US citizen immigration advocates who speak out in favor of immigrant rights.
It was also cause for concern that Trump blamed the media for "inciting" what were, by all accounts, entirely spontaneous protests. What else might Trumps blame the media for "inciting" as president?
And what kind of retaliation can the media or anyone else who speaks out against Trump on immigration and immigrant rights in the future expect from a president who threatens to lock up millions of immigrants until they are deported and who has said the he is just fine with sending American citizens to Guantanamo?
See: New York Times, August 12, 2016:
Donald Trump 'Fine' With Prosecuting U. S. Citizens at Guantanamo
Nor was it exactly reassuring that Trumo is on record as openly supporting violating the Eight Amendment to the constitution, and the federal criminal laws of this country (8 USC Section 2340) by "bringing back" torture "a hell of a lot worse than waterboarding".
Fortunately Trump evidently thought better of the above tweet and has replaced it with a new one which clearly showed respect for the rights of the protesters. See my update above.
This is a very reassuring sign and shows that, despite his frequently alarming campaign antics, he might, just very possibly, turn out to be a great president - especially if he can maintain this tolerant and inclusive attitude to America's minorities and immigrants, who are also part of our society.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from diverse parts of the world and ethnic/religious backgrounds obtain work visas and green cards.
Roger believes that any attack on the rights of immigrants to justice and fundamental fairness under our laws, or bigotry against immigrants based on race, color or religion, is an attack on the rights and freedoms of all Americans.
His email address is firstname.lastname@example.org
Updated 12-09-2016 at 08:34 AM by ImmigrationLawBlogs