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  1. End the Tyranny of Immigration Insubordination

    by , 08-08-2011 at 10:47 AM (Angelo Paparelli on Dysfunctional Government)
    Despite persistent immigration deadlock in a Congress whose job approval has plummeted to its nadir, fresh tendrils of hope are sprouting: 

    We hear from reported remarks of Senator Richard Durbin that the Department of Homeland Security (DHS) will soon announce administrative action to give much-needed relief to individuals who would benefit from the DREAM Act, a bill still in its tenth year of infancy in the "world's greatest deliberative body." 
    Other welcome news came this week from the White House and the DHS agency, U.S. Citizenship and Immigration Services (USCIS), announcingnew immigration avenues for foreign entrepreneurs and releasing a related FAQ.
    These moves arise on the heels of two prosecutorial discretion memos by John Morton, the head of Immigration and Customs Enforcement (ICE), that balance enforcement priorities with pragmatism by targeting dangerous immigration perps and showing compassion  for low-level immigration violators (allowing them suspended animation and work permission, presumably until Congress gets its houses in order and enacts comprehensive reforms).

    These actions are merely yards and yards of 2012 campaign bunting, however, unless the Executive Branch displays chain-of-command rigor in disciplining insubordination in the ranks of lower-level immigration agents. Lofty statements about supporting small business and spurring immigration-juiced job creation are only vaporous platitudes without parallel actions to make sure the troops on the ground follow orders. 
    I've blogged before about immigration indifference, describing it as the "Adjudicator's Curse." Time has shown, however, that the manifest problems of widespread flouting of orders stem from more than mere indifference.  Three of my experienced immigration colleagues (each with 20+ years of experience with the agencies), offer painfully descriptive ventings of real-word, systemic immigration meltdowns and propose the theory that adjudicators' off-message behaviors are attributable to "sloth" (a MUST READ: Tyranny of Sloth #1, Tyranny of Sloth #2 andTyranny of Sloth #3). 
    The failure to follow Headquarters' immigration policies is caused by more than indifference and sloth. 

    It could well be job-protection and fear of second-guessing if a bureaucrat makes a bad call in approving an immigration benefit that later explodes and causes an internal investigation or angry Congressional or media attention. (Recall that the posthumous grant of flight student visa status to Mohamed Atta and another 9/11 hijacker led to the elimination of the legacy agency, Immigration and Naturalization Service (INS).)
    It could be low hiring standards (one in-house counsel of a major American company once reported to this blogger that a senior USCIS official had tried to rationalize her agency's failures to comprehend the contents of documents submitted with his company's immigration petitions by saying, "You must understand, most of our adjudicators have learned English as a second language").
    It could be long institutional memories about a heads-will-roll "Zero Tolerance Policy," followed by the policy's revocation, then followed by a laudable effort to inventory and reconcile agency policies and survey the public. 
    There is probably also a significant measure of union-management tension, reflected, for example, in the attack on the prosecutorial discretion memos and public vote of no-confidence in John Mortonby the ICE agents union and the formal opposition to discipline by the USCIS officers union, and
    Let's also not ignore the obvious -- entrenched opposition among career officers to this Administration's more welcoming immigration policies.  We've seen this movie before ("The IRCA Legalization Program," produced by famed Hollywood actor and U.S. President, Ronald Reagan, and featuring a "cast of millions") and we know how it ends:

    Scene 1:  Congress passes the Immigration Reform and Control Act of 1987 (IRCA) including a legalization provision requiring, among other elements, proof that a failure to maintain immigration status was "known to the government."
    Scene 2:  INS issues a series of Legalization communiqués interpreting the "known to the government" requirement in niggardly and niggling fashion, thereby trying to shrink the pool of eligible legalization beneficiaries.
    Scene 3: Years of expensive federal litigation ensues before final relief to denied "known to the government" beneficiaries is granted in 2008! 



    Whatever the cause of bureaucratic intransigence, the President's laudable goal of creating jobs through more enlightened immigration policies and innumerable Conversations with the Director -- however commendable and well intentioned -- will not succeed unless "off-the-reservation" conduct by rogue underlings are sanctioned, not with ribbons and medals but with pink slips. 
     
  2. Letters of the Week: Aug 8 - Aug 12

    Please email your letters to editor@ilw.com or post them directly as "Comment" below.
     
  3. Janina is FINALLY Coming Home!!!

    by , 08-08-2011 at 05:57 AM (Matthew Kolken on Deportation And Removal)
    Anyone who reads this blog has heard about "Tony and Janina's American Wedding." Well, after four long years of separation, I just read that Janina and Brian are finally coming home to Tony.
    Hats off to Ruth Leitman and Steve Dixon for shining a glaring spotlight on this case, and on the deficiences of the United States deportation system.  Your tireless hard work has been noticed and is very much appreciated!

    "Tony & Janina's American Wedding" Trailer from Ruth Leitman on Vimeo.
  4. ICE's Chutzpah Moment

    by , 08-07-2011 at 06:30 PM (Greg Siskind on Immigration Law and Policy)
    ICE announced late Friday (that's Public Relations 101 on how you bury news stories you hope won't get so much public attention) that it not only won't release states and municipalities from their Memoranda of Agreement implementing the controversial Secureity Communities but that they are terminating all the MOAs and will force the program on states and cities whether they like it or not. They're now planning on forcing the program on all locations around the country by 2013. So much for all those promises early on in this Administration that the program was voluntary.
  5. PERM: Is Extra Recruitment and Advertising Permitted?

    by , 08-07-2011 at 04:43 PM (Joel Stewart on PERM Labor Certification)
    The question has often arisen whether an Employer may conduct recruitment and advertising beyond the time period required by the PERM regulation. For example, an Employer might want to place more than two Sunday ads,  advertise for more than 30 days in with the State Workforce Agency, conduct more than three additional professional recruitment efforts or place a Notice of Filing for more than 10 business days.
    The answer is "yes"-- in all cases, an employer who has a bona fide job opportunity may recruit for workers as often and as long as it pleases and is not restricted by the regulatoy terms of art of the PERM Rule. These regulations describe a specified and limited recruitment plan to apply for labor certification on Form 9089 under the conditions of 20 CFR 656, within a specific 180 day period and with a 30-day waiting period before filing at the end of the 180 days. As long as all the minimum recruitment periods are met within the 180 day period which include a final 30 day waiting period, the Employer has complied with the PERM Rule.
    Of course, the regulations themselves do not prohibit one of the three professional recruitment efforts to take place during the 30 day waiting period before filing the 9089 Form. (An FAQ specifically addresses this issue of extra advertising as it refers to the 30-day job order with the SWA).
    FAQ: Must the required 30 day job order timeframe end at least 30 days prior to filing? 
    While the employer is not limited to the 30 day time frame and may choose to post the job order for a longer period, 30 days of the posting must take place at least 30 days prior to filing.
    Form 9089 queries the dates of recruitment. Compliance with the PERM Rule may be met by showing the beginning and end of the required recruitment and advertising during the 180 day period and at least 30 days before the 30-day waiting period. The Employer may indicate extra requirement on the 9089 form and document that the extra recruitment continued into the 30-day waiting period, however, it is possible that the DOL might flag such recruitment for audit or denial, based on the intrusion of the additional recruitment and advertising into the 30-day waiting period.
    The Employer might hold this extra recruitment in the record file, and, in case of audit, the Employer could submit the entire recruitment including extra recruitment before and during the 30-day waiting period to clarify that it has not violated any laws! Thus the Employer could fill out Form 9089 to comply with the PERM Rule -- 20 CFR 656 -- and fill out on the Form any and all extra recruitment that occurred prior to the 180 day period or during the 30 day waiting period. Such recruitment would be extra and  not required by the PERM Application.
    The situation differs from the pre-PERM rule which required employers to document any recruitment which took place anytime prior to filing the application for alien labor certification on Form ETA-750A.
    Just as the PERM Rule contemplates the Employer to place only minimum requirements on the form subject to regulatory guidance like SVP, O*Net, SOC, and other standards, so are the recruitment and advertising requirements quanitifed to include 2 days of Sunday ads, 10 business days for posting of the Notice of Filing, 30 days of advertising in the SWA job bank, and 3 additional forms of recruitment for professional positions.
    When additional recruitment occurs during the 30 day waiting period, what responsibility does the Employer have to consider the job opportunity open to US workers between the date of filing Form 9089 and up until the time the PERM application is finally adjudicated?  If approved, the position is then closed and, if certified, the Employer may file an I-140 Immigrant Visa Petition on behalf of the alien.
    While the Department of Labor does not currently contemplate additional communication from the Employer after Form 9089 is filed, however, prior to the introduction of the PERM Rule in 2005, Employers were held responsible to recruit in good faith up until the time the labor certification application was determined by the Certifying Officer, and not just up until the date the application was filed with the Certifying Officer.
    While it is clear that the Employer may engage in extra recruitment and advertising, it is not clear whether the Employer has any post-filing responsibility to report the availability of US workers. The regulations do not address this, no doubt because PERM was contemplated to provide final determinations in a matter of days. However, as reality has set in, and many applications are submitted to delays of  up to 2-3 years if audited, the question of post-filing recruitment needs to be addressed as well as the legal distinction between recruitment considered as part of recruitment and advertising under the PERM Rule and the Employer's extra recruitment which may run before or after the regular PERM recruitment period.
     
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