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  1. Is Your PERM Travel Requirement Conjunctive or Disjunctive?

    by , 08-24-2017 at 04:11 PM (Joel Stewart on PERM Labor Certification)
    In a recent case, a BALCA panel reviewed an IT case involving the issue of advertising for multiple, complex job descriptions and requirements Ė so complex that the Board found it violates the regulations. (Op ensoft, Inc., 2013-PER-867 (BALCA, August 22, 2017).

    The technical language used by the employer requires concentration to understand the nuances of the courtís decision.

    On Form 9089:

    Occupation: Software Developers Applications. SOC 15-1132.

    Requirements: Masterís degree in an IT Related field or, alternatively, a Masterís in Computer Science, MBA, Engineering, CIS, MIS or Related. No
    experience requirement.

    Description of Duties: Development of Java Enterprise Edition JEE applications. As a Sr. Java Developer responsible for analyzing, designing,
    developing and documenting JEE projects within central JEE application development environment. Must have knowledge of Struts JEE Application
    framework, JSP/Tiles, Spring framework, tag libraries, iBatis and sQL and Oracle Database Technology Etc. Must be willing to travel, perform
    feasibility studies and interact with clients for different long and short-term projects.

    In the recruitment steps, including http://www.monster.com/
    and newspaper advertisements in the Atlanta-Journal Constitution and Atlanta Business Chronicle:

    COMPUTER/IT.

    Entry Lvl to Sen. Lvl AQ Analysts w/ foll. Skills: WinRunner, LoadRunner, Silk, Quick Test Professional, TestDirector, Rational Suite, SQA Suite, SQA
    Robot, SQA Manager, SQA Test Log Viewer, & SQA Comparator etc.

    Entry Loll to Sen. level Java Developers w/ fall skills: Struts JEE Application framework, JSP/Tiles, Spring Framework, tag libraries, abatisí & SQL & Oracle Database Technology Etc.

    Trav. & reloc. may be reqd. Send resume, ref. & sale. req. to open soft, Inc., 3040 Carrick Road, Cumming, GA 30040.

    The Certifying Officer denied the application because the advertisements included the phrase, ďTrav. & reloc. may be reqd.,Ē although the ETA
    Form 9089 did not include relocation as a job requirement. This violates the regulation 20 CFR 656.17(f)(6) and 656.17(f)(7) because the language on the Form does not match the language in the ads. This much is black letter law in PERM applications.

    The employer argued on reconsideration that based on a previous decision, Microsoft Corp., 2011-PER-324 (Feb. 29, 2012), the ads were placed
    to fill multiple positions, and not all the positions it advertised for required relocation. The employer asserted that ďbased on the language and
    context of its advertisements, applicants would understand that there are some positions that requireÖ. relocation and some positions require [n]one because of the disjunctive language used by the employer to define multiple positions in the ads.Ē

    The Board disagreed citing the ďchilling effect on potential applicantsĒ since they could reasonably assume that travel and relocation might apply
    to any or all the listed jobs.

    No legal brief or position was filed with the court by the Employer or by the DOL.

    The Board reviewed the case and noted that the Microsoft ruling applied only where employers use the specific, narrowly defined language which was consistent with the FAQís and guidance which had been discussed in a Stakeholder Meeting, i.e., ďsome positions require travel,Ē would be
    acceptable, and that each case is fact-specific, requiring separate inquiries as to whether applicants could have been misled into thinking that travel might be required for all the jobs listed. Many BALCA decisions were cited, which, unlike the Microsoft case, had ruled against the Employer because of perceived ambiguities about which job offers had travel requirements.

    The Board noted that Microsoft involved applications with different educational levels either with a Bachelorís degree or a Masterís degree which demonstrated to job seekers that the positions ranged from entry to senior level.

    Neither of the decisions, Microsoft, or the current one, are en banc and therefore lack any semblance of precedential value, however, it is important to note that except for Microsoft, all the decisions cited by the Board are held against the employer.

    The decision contains many subtleties and distinctions which stakeholders should read very carefully to understand where to draw the fine line for
    advertisements including multiple jobs which may or may not require travel or relocation. Whether conjunctive or disjunctive, employers need to use the recommended language that Ďsome positions require travelí and separate the positions and their requirements more clearly in the ads.

    In 2010, I wrote on this topic in my blog on ILW.com in a slightly broader context, Is PERM Experience, Education, and Training Conjunctive or Disjunctive?

    See http://blogs.ilw.com/entry.php?6431-...ctive&bt=46856

    Updated 08-24-2017 at 04:21 PM by JStewart

  2. Plant Nursery Violates Law by Favoring H-2A Workers

    By Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

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    Godwinís Nursery and Trees paid nearly over $117,000 in back-pay and $29,500 in penalties after the U.S. Department of Labor determined the company passed over qualified U.S. citizen workers from Puerto Rico in favor of hiring foreign workers under the H-2A visa program.

    The Department of Labor determined that the nursery violated Section 218 of the Immigration and Nationality Act by denying five qualified workers from Puerto Rico the chance to work; instead, hiring four Mexican nationals through the H-2A visa program.

    Additionally, Department of Labor determined that Godwin failed to post information about the rights of agricultural workers, as required by law, and he failed to provide housing for the workers that adhered to housing health and safety standards.

    Remember if an employer is going to utilize the H-2A program or other non-immigrant visa programs, such as H-2A, one cannot discriminate against U.S. citizens.
  3. Translating Documents for Your Asylum Case

    The word "translation" is derived from "trans," meaning "across" two languages, and "elation," meaning "to make your lawyer happy." Or something like that. The point is, if your translations are correct, you are more likely to win your case and so you--and your lawyer--will be happy.

    If you think accurate translations are not important, please stay away from my garden.

    But many asylum seekers are unable (or unwilling) to pay for professional translations, which can be quite costly. Instead, they do the translations themselves, or they use a friend who speaks "good English" (technically, anyone who claims to speak "good English" does not speak English very well). The problem faced by these non-professionals is that translating documents is not as easy as it looks.

    I ran into this problem recently, when a keen-eyed DHS attorney discovered that my client's translations were incorrect. The client had submitted several translated documents when he applied for asylum at the Asylum Office (using a different lawyer). These documents included a newspaper article, a police report, and several witness letters. The quality of the translations was poor, and so we asked the client to obtain better translations. Unfortunately, the new translator embellished some of the translations. Instead of translating the documents literally, he tried to include what the writer meant (or what the translator believed the writer meant). This problem is all too common. Sometimes, I catch it, and other times, I don't. In this particular case, the DHS attorney caught the inconsistency, which--to state the obvious--is not great for our case.

    Poor translations can cause real problems for asylum cases. I have at least one case where an inaccurate translation resulted in the case being denied by the Asylum Office and referred to Immigration Court (where it remains pending 3+ years later--ugh).

    So how do you ensure that your translations are correct? And what happens if you can't afford a professional translator?

    First, any document that is not in English must be translated into English. For each such document, you must submit a copy of the original document (in the foreign language), an English translation, and a certificate of translation (for an example certificate of translation, see the Immigration Court Practice Manual, Appendix H).

    Second, the translation should be accurate. This seems like a no-brainer, but in my experience, it is not. Here, "accurate" means that the translator should--as much as possible--literally change each and every word of the original document into the equivalent English word. Some words are not easy to translate from one language to the next. Other words have symbolic, cultural or idiomatic meanings that may differ from their literal meaning (the word "jihad" is a good example). In that case, translate the word literally, and maybe include a footnote indicating the meaning or cultural significance of the word. The footnote should clearly indicate that it is not part of the translation (for example, it could say, "Translator's note:" and then include the explanation). Other times, the original document is vague or unclear. In that case, the translator should again literally translate the words, but can include an explanatory note. Sometimes, documents contain illegible words. For them, the translator can include a bracketed statement indicating that the text is [illegible].

    Third, while I think it is not required, I strongly prefer that the translated text look similar to the original (or sometime like a mirror image of the original, if it is a right-to-left language like Arabic). So bold or underlined words in the original should be bold or underlined in English. If the original text has different paragraphs, the English should follow a similar format. If some words in the original are centered, or shifted to one side or to a corner of the page, the translation should do the same.

    Fourth, every word of the document should be translated. For documents where that is not possible (like a newspaper where you are only interested in using one article on the page), the translator should clearly indicate what portions of the document are being translated. In this case, I prefer to highlight the original document to make clear which parts are being translated. Also, for news articles, it is important to include (in the original language and in English), the name of the newspaper, the date, the title of the article, and the author, if any. Certain documents contain a lot of unnecessary boilerplate verbiage (I'm thinking of you, Salvadoran birth certificates), and so a summary translation might be more appropriate. If you use a summary translation, you need to clearly indicate that it is a summary, not a literal translation. Whether all Judges and Asylum Officers will accept summary translations, I do not know, but we use them now and again, and we have not had any problems.

    Finally, countries sometimes use different calendars and even different clocks. In this situation, I think the best practice is to translate the date or time literally, and then include an explanatory note (for example, in the Jewish calendar, today is the second day of the month of Elul in the year 5777, and so if a Hebrew document contained that date, the English translation would look like this: "2 Elul 5777 [August 24, 2017]"). Some translators include only the date in our system (and not "2 Elul 5777"), and I have never had a Judge or Asylum Officer reject that, but I still think the better practice is the literal translation + explanatory note.

    A related issue is letters from people who do not speak English, including the asylum applicants themselves. If a person does not speak English, but submits an English letter or affidavit, there must be a "certificate of interpretation stating that the affidavit or declaration has been read to the person in a language that the person understands and that he or she understood it before signing." See Immigration Court Practice Manual, p. 48. "The certificate must also state that the interpreter is competent to translate the language of the document, and that the interpretation was true and accurate to the best of the interpreterís abilities." Id.

    Lastly, many asylum seekers speak English and can translate documents themselves. This is fine. However, a person should not sign a certificate of translation for her own case. So if you translate your own documents, find a friend who speaks both languages to review the documents and sign the certificate of translation.

    Accurate translations can enhance credibility and help you win your case. So either find (and pay) a competent translator or - if you do it yourself or use a friend - take the time to ensure that the translations are accurate and complete. Otherwise, documents that might help your case could end up doing more harm than good.

    Originally posted on the Asylumist: www.Asylumist.com.
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