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  1. PERM: Supervised Recruitment

    by , 06-27-2011 at 06:29 AM (Joel Stewart on PERM Labor Certification)
    Supervised recruitment is now being used more and more by DOL. Some attorneys report that if no US workers are reported during the normal recruitment, supervised recruitment may be required.
    The idea is that with supervised recruitment, the responses of job applicants go to the CO and not to the Employer. This enables the CO to confirm definitively whether there may be a supply of qualified workers.
    One problem with supervised recruitment is that there is little time to respond. The PERM Rule requires employers to respond within 30 days after receiving a notice of supervised recruitment with proposed advertisements. Assuming delays in the mail, and keeping in mind that the Employer's response has to be received at DOL no later than the 30th day from the date on the notice, there is little time to prepare an outline of proposed recruitment.
    With supervised recruitment, the Employer cannot make any changes from the original job offer, except for the prevailing wage. Employers report that this is unfair, because if the PERM application was filed years earlier, there may be legitimate reasons to make minor changes in the job offer.
    Another issue that has arisen is whether the Employer should follow the the PERM Rule when recruiting under Supervised Recruitment or whether the CO may provide recruitment instructions that are substantially different from the PERM Rule. For example, some Employers have been told to recruit in newspapers for more than two Sundays and to include all the relevant information from the 9089 in the Advertisement, such as the complete job description, job requirements and wages, items which are NOT required under the PERM Rule.
    According to the regulation, wages are not required to be put in the Advertisements, but must be placed in the Notice of Filing, 9089, 30-day job order and prevailing wage request. An attorney inquired whether the wages should be put in the advertisement as part of Supervised Recruitment, and I responded that the regulation leaves inclusion of wages up to the discretion of the Employer.  I also commented that there is a difference between legal requirements and discretionary actions. Since the inclusion of the wage is discretionary, one may argue, even under supervised recruitment, that it need not be included in the advertisement.
    Other Employers have reported that they have received denials in the regular PERM process based on the fact that the CO did not find the job description in the advertisements to contain sufficient detail, either because of a truncated version of the job description or omission of items which are discretionary for the Employer to include. This indicates that the problem is systemic and not just isolated to examples of Supervised Recruitment. In this case, I advised the Attorney to include the wages in the advertisements, unless the attorney could demonstrate that it was against company policy or industry standards to include the wages in the advertisements.
    Since there is very little law to guide recruitment procedures under Supervised Recruitment in PERM applications, the best thing is to refer to the PERM Rule itself and general principles of labor certification practice developed over a period of many years by agency pratice and prior BALCA decisions.
  2. CIR Bill Introduced by Dems

    by , 06-25-2011 at 06:03 AM (Greg Siskind on Immigration Law and Policy)
    This has already been noted in the comments, but I did want to comment on the new comprehensive immigration reform bill introduced by Senator Menendez and other Democrats. I usually only post summaries and extensive comments on bills I feel have a significant chance of advancing and this one really has no possibility of moving anytime soon. If it serves any functions, I would mention two. First, there is the political dimension. Pro-immigration voters should be reminded that the Democrats in Congress are promoting this kind of bill while the GOP is completely focused on E-Verify and enforcement. That's important right now especially given the criticism that has been leveled against the President mainly by members of his own party who question his genuine commitment to solving immigration problems.
    Another important function of the bill is to serve as a marker showing the current thinking of Democrats. There are new ideas in the bill and whether we get comprehensive reform or piecemeal bills, many of the ideas in the Menendez bill are likely to be incorporated. For example, I've been working with several other immigration lawyers and health care experts assisting Hill staff on new provisions for physician immigration designed to do more to encourage physicians to locate in severe physician shortage areas. There is a decent chance a physician immigration bill will move on its own this year and you can expect that bill to look similar to what you see in the Menendez bill.
    So while it is hard to get too enthusiastic about this bill given the current political environment, I am pleased to see it introduced. But as I've said here before (and in disagreement with other pro-immigration voices), I do not believe holding out for comprehensive immigration reform is a wise move. A comprehensive bill has too many provisions that become deal killers and easy targets for the antis. There are just too many provisions that give easy excuses for less than courageous members of Congress to vote no. Perhaps when we one day have a less partisan environment a big solution which represents genuine bargaining between the parties can be achieved. For now, we have real problems that need fixing and which can be addressed with smaller measures that a majority of Congress can support. We should be focusing on those types of bills.
  3. Not Helpful

    by , 06-24-2011 at 02:55 AM (Greg Siskind on Immigration Law and Policy)
    Hackers have attacked an Arizona police department web site to protest the state's new immigration laws. While civil disobedience is an American tradition dating back to the Boston Tea Party, hacking is a serious crime. An effective act of civil disobedience should make the general public more sympathetic to your cause. This type if action does the opposite.
  4. Immigration Related Circuit Court Decisions

    by , 06-23-2011 at 07:45 AM (Matthew Kolken on Deportation And Removal)
    The 9th Circuit Court of Appeals has held that a conviction for carrying a concealed weapon under California Penal Code ß12025(a) is categorically a removable firearms offense under INA ß237(a)(2)(C). See Gil v. Holder, 6/22/11
    The 10th Circuit has made a ruling relating to the scope of the Supreme Court decision, Padilla v. Kentucky. The 10th found that the government is not required to prove in immigration proceedings that an alien received constitutionally adequate advice about the consequences of his criminal plea for the plea to be valid for immigration purposes.  See Waugh v. Holder, 6/22/11.
  5. Bloggings: Jose Antonio Vargas - does he stand a chance? by Roger Algase

    Does Pulitzer Prize winning journalist Jose Antonio Vargas stand a chance of avoiding deportation after "coming out" of the "undocumented immigrant" closet? Not, it would appear, based on the guidelines for using prosecutorial discretion not to institute deportation proceedings in the June 17 memo by John Morton, the director of Immigration and Customs Enforcement ("ICE") There is nothing in that memo about winning a Pulitzer Prize as an "equity" for deciding not to go ahead with deportation.
    Even if a Pulitzer Prize were on the "equities" list, the Morton memo makes clear that it is not binding on anyone and does not create any rights. The only guideline is that the memo should be implemented consistent with agency goals. I am not aware that ICE has ever listed maintaining an adequate supply of Pulitzer Prize winners as one of its goals. 
    To the contrary, Vargas more likely qualifies for a place on Morton's "negative equities" list. Vargas claims to have used fake documents to misrepresent his status in the past, even, apparently, to gain admission to the White House, as well as employment with a well known media organization. Clearly, Vargas did not come out of the closet in order to try to gain sympathy as a hardship case. Instead, his statement is a challenge to the entire immigration enforcement system.
    Inevitably, one has to compare Vargas' courageous action with those of Rosa Parks and the many other civil rights protesters who openly defied the Southern racial segregation laws in the 1950's and 1960's. They were prepared to go to jail for their convictions, and they often did. In the same way, Vargas is prepared to be deported, and he very well may be.
    But how valid is this comparison? The racial segregation laws were inherently evil, and, ergo, so was any attempt to enforce them, even if under the color of law. But one cannot say the same about the US immigration laws. I am not a big fan of "dang fences",  removal proceedings, E-Verify, "Secure Communities" or any other of the Orwellian sounding measures that are being taken now to control immigration.  But there are between 2-3 billion people on this planet. No one would claim that there is room for them all in the US, even assuming that they all wanted to come here, as quite a few of them no doubt do.
    I am not an "open borders" supporter any more than anyone else on either side of the immigration argument. There have to be restrictions on immigration, and restrictions are meaningless if they are not enforced.  But Vargas' action in coming out and risking deportation is not meant as a protest against the idea of having a system of immigration laws per se.  It is, rather, a protest against the laws as they are now, and the way they are enforced. America does not need to abolish immigration controls. It needs to make the system fairer, more in tune with reality, and more humane. That, as I see it, is what Vargas' action is about.
    How can the system be changed in order to give some meaning to Vargas' protest and ensure that, if he is deported, his actions were not in vain? A good way to answer this question might be by giving an example of how not to change the system. This example is the Senate Democratic leadership's recent announcement that they are going to introduce an immigration reform bill this year, even without a single Republican to support it.
    What a waste! Last year, the DREAM act, a much smaller step than comprehensive reform would be, failed to pass the Senate even with three Republican votes. Even if a miracle took place and some kind of reform bill were to get throught the Senate this year, it would be Dead On Arrival in the House. There is an old Japanese saying: if a person cannot get across a ditch three feet wide, how can he cross a mile wide river?
    The only way the Democrats can get across the river of comprehensive immigration reform is to play hardball - a moratorium on all deportations and related internal inforcement action: E-Verify, "Secure Communities", detention, 287(g), the works (I do not include controls over admissions and reasonable border enforcement -this has to go on under any circumstances), until the Republicans agree to a decent, meaningful reform bill, including one with the hated "A" word, Amnesty, in some form or other.
    Of course, this would increase Obama's risk  of not being re-elected. But is there not a time when the courage to stand up for what is right takes precedence over what is expedient? That, I believe, is the challenge that Jose Antonio Vargas has thrown down to the president and everyone else who claims to believe in a fair and rational immigration system. Who among our leaders will have the courage to take him up on this challenge?
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