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  1. State Department Pulls a Lottery Mulligan

    by , 07-16-2011 at 11:47 AM (Greg Siskind on Immigration Law and Policy)
    New lottery results announced. Hopefully, the State Department got it right this time. In the mean time, I did hear from a client today who got a scam email informing him he won the lottery and providing instructions on wiring money - lots of it, of course. It looked pretty official too. So watch out.
  2. Obama and Bush Commerce Secretaries Argue for Employment Immigration Reform

    by , 07-16-2011 at 11:25 AM (Greg Siskind on Immigration Law and Policy)
    It's not often you get Bush Administration officials to agree with Obama Administration officials, much less getting two Cabinet Secretaries to jointly write an op-ed piece calling for change. But current Commerce Secretary Gary Locke and former Commerce Secretary Carlos Gutierrez have done just that. They're calling for adopting some of the recently proposed changes like eliminating green card caps for those receiving science, technology, engineering and math graduate degrees from US universities and approving a start up visa that gives green cards to those creating new companies that employ American workers.
  3. PERM: Basics on Educational Requirements

    by , 07-16-2011 at 08:13 AM (Joel Stewart on PERM Labor Certification)
    Some interesting points emerged from the AILA Conference in San Diego last month.

    EB 2nd Preference is current for all countries except China and India, which are both backed up to April 2007.
    EB 3rd Preference is backed up to November 2005 for all countries, except for China, 2004, and India 2002.
    Some SOC codes have moved. When using on-line information, use the most recent available for SOC Codes and Prevailing Wage Guidance. The 2000 version of the SOC is on-line but out-of-date. When searching, always add 2010 or later to get the most recent SOC codes. Some changes occurred on July 1, 2011, including SOC codes for software positions: 15-1031 has been renumbered 15-1032, 15-1032 is now 15-1033.
    While primary and alternative requirements may not necessarily be exact, they must be substantially equivalent to meet the standards of the DOL-ETA. The regulation at 20 CFR 656.17(h)(4)(i)  "Alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity for which certification is sought."
    SVP is the primary determination of permissible years of experience, education or training.
    Practitioners are reminded that according to the Nebraska Service Center, the Magic Language does not downgrade 2nd preference to 3rd preference but only encourages US workers with equivalencies to apply.
    3rd Preference has two types, skilled workers and professionals. Skilled workers have two years experience or training, while Professionals possess a Bachelor's Degree. The current edition of I-140 differentiates between these two types of EB-3, and also with the "other worker" category which is rarely used due to a more lengthy backlog.
    Education acquired while working for Employer is OK, because the regulatory prohibition applies only to experience and training and is silent pertaining to education. Education, if paid by Employer, must have been available to all workers and not only to the alien, to be permissible in a PERM case.
    Degree Requirements for 2nd and 3rd Preference are complex. 3 year diplomas (like those from India) are usually not acceptable as equivalent to US 4 year Bachelor's Degree. Transferred credit to a new institution might be acceptable, if the new institution lists the transferred credit as part of the degree requirements for a four year bachelor's degree or higher.  If a US Degree accepts a foreign diploma to enter a Master's Degree program, the Master's Degree should be valid for 2nd Preference. Other fact patterns are "gray areas" and subject to interpretation on a case by case basis.
    H-14 may be used to clarify all doubts about PERM requirements, as well as entries in "J" and "K" on PERM form.
    Kellogg Requirements and the Magic Language. Much has been written on a broad, theoretical level about the Kellogg Trilogy which is the origin of the rule, however, under PERM the Magic Language is required only under certain, limited circumstances. The rule is simple: If the alien is (1) working for the employer and (2) qualifies for the minimum requirements by virtue of alternate experience requirements, the Magic Language must be inserted in H-14: "Any suitable combination of education and experience is acceptable."
    The full language of the Kellogg language in the PERM Regulation is the following at 20 CFR 656.17(h)(4)(ii):  "If the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable."
  4. What is the future of new-born Maryland Tuition Bill?- DREAM Act; By Danielle Beach-Oswald

    Danielle Beach-Oswald is the current President and Managing Partner of Beach-Oswald Immigration Law Associates in Washington, DC. Ms. Beach utilizes her 19 years of experience in immigration law to help individuals immigrate to the United States for humanitarian reasons. Born in Brussels, Belgium, Ms. Beach has lived in England, Belgium, Italy and Ivory Coast and has traveled extensively to many countries. Ms. Beach advocates for clients from around the world who seek freedom from torture in their country, or who are victims of domestic violence and trafficking. She has also represented her clients at U.S. Consulates in Romania, China, Canada, Mexico, and several African countries. With her extensive experience in family-based and employment-based immigration law Ms. Beach not only assists her clients in obtaining a better standard of living in the United States, she also helps employers obtain professional visas, and petitions for family members. She also handles many complex naturalization issues. Ms. Beach has unique expertise representing clients in immigration matters pending before the Federal District Courts, Circuit Courts, Board of Immigration Appeals and Immigration Courts. She has won over 400 humanitarian cases in the United States. Her firm's website is www.boilapc.com.
    This past spring, the Maryland state legislature approved the Senate Bill 167, "Public Institutions of Higher Education - Tuition Rates - Exemptions." The most significant provision of the new law is allowing illegal immigrants who have attended for three years and graduated from a Maryland high school the ability to pay in-state tuition. These students are also required to show that their parents have paid state income taxes. After fulfilling these requirements, they would be allowed to enroll into a community college, and after completing 60 credits in the community college, they would be able to transfer to a four-year college.
    This law is the most recent in the series of attempts made by other states, including California, Texas, Illinois, and New York, in the past few years to implement the DREAM Act (Development, Relief, and Education of Alien Minors Act) into state tuition laws. The DREAM Act was first introduced in 2001 under the 107th Congress but it has yet to pass through both the Senate and the House. The federal DREAM Act proposes for undocumented immigrants to receive in-state tuition for public colleges of their state of residence and a way for these students to change their legal status after fulfilling residential and service requirements.
    Opponents of the law argue that this law does not reflect the opinion of most Maryland residents and that it would place an unduly large fiscal burden on the state. State analysts have calculated that for a four-year degree, the state would take on $40,000 for each student. They also predict that hundreds of undocumented students would have applied for college under this new provision this summer if it had taken effect. They also argue that such laws would entice more illegal immigrants into the country and their state.
    On the contrary, proponents of the DREAM act assert that because on average, college graduates earn incomes of at least 50% more than that of high school graduates, these undocumented students would give back to Maryland more than enough in taxes after they graduate. Moreover, in giving these illegal immigrants the opportunity to attend college with in-state tuition and to eventually change their legal status, the supporters of
    the DREAM Act argue, these students will become an asset for the state and for
    the United States.
    The law was set to take effect on July 1, 2011 but has been delayed to a petition submitted by its opponents. The opponents need at least 55,736 signatures on the petition to suspend the law and put it on the bill for a statewide referendum vote in November 2010. Surpassing the minimum number, they have submitted over 130,000 signatures, 63,000 of which have been validated as of last Thursday, July 7. Many NGOs and other volunteers such as myself will be reviewing and determining validation on these in the evenings from 5:00-9:00PM.
  5. Mexican Restaurant Chain Owner Sentenced Under Criminal Harboring Rules

    by , 07-15-2011 at 08:02 AM (Greg Siskind on Immigration Law and Policy)
    Lest anyone think that employers of illegally present immigrants are not getting punished...
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