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A little-known requirement in the PERM Rule states that employers must offer to train job applicants, if they can acquire the education, training, experience, and skills necessary to perform the job duties in a reasonable period of time.
While deference is given to the Employer, whose judgment is the best arbiter of such matters, government policy regarding the requirements themselves are tortuously ambiguous.
To be fair to US workers, job specifications are strictly regulated by government standards in official publications. Employers must look to an on-line catalog of jobs called the “O*Net,” which in turn is based on normal training requirements detailed in the SOC (Standard Occupational Code). The SOC was introduced in 1998, and conflated approximately 12,000 occupations that previously existed in the DOT (Dictionary of Occupational Titles) to 23 major occupational groups and about 1,000 detailed occupations.
The DOT was the bible of employment immigration practice for many years, and its job-related data were unquestioned. In the late 1980’s, I went to visit the birthplace of the DOT, the North Carolina Field Office, where Mr. Stanley Rose and his team relentlessly determined and re-determined constantly changing job requirements for all 12,000 jobs known to exist in the USA.
Mr. Rose showed me some of the office procedures, including typical surveys made of US employers to determine their normal requirements, but the results of these surveys were often at odds with reality. Because employers had always suspected that the data obtained for publication in the DOT were not reliable, I asked Mr. Rose, who stated that many of the job requirement summaries were educated guesses.
Mr. Rose and his team were dedicated and well-intentioned professionals, but the lesson to be learned is that statistics used in the foreign labor certification program cannot be expected to be 100% correct, and this bears on question H-12 on the PERM ETA Form 9089. This question asks,
12. Are the job opportunity’s requirements normal for the occupation?
If the answer to this question is No, the employer must be prepared to provide documentation demonstrating that the job requirements are supported by business necessity.
If the employer answers “No,” an audit may be triggered and denial of certification may ensue; and if the employer answers “Yes,” and the DOL statistics do not support the employer’s conclusion, this may also trigger an audit and denial.
Employers need to be aware of the fact that there are “real world” occupations and training requirements – and there is a parallel universe – the “PERM world.”
Tread carefully lest you fall astray!
Updated 03-30-2017 at 11:53 AM by JStewart
These days, the estimated wait time for an affirmative asylum case is somewhere between eternity and forever. It can best be expressed numerically as ∞. Or maybe as ∞ + 1. In other words, affirmative asylum cases take a long damn time. (OK, to be fair, you can get some idea about the actual wait time here).
Asylum seekcars waiting for their interview.
For some people, this wait is more of a problem than for others. For example, if your spouse and children are outside the United States waiting for you, and especially if they are living in unsafe or unhealthy conditions, the wait can be intolerable. A growing number of people are abandoning their cases simply because they cannot stand the separation. Others are moving to Canada, which apparently has a faster system than we have in the States. The problem is not simply that the wait is long—and the wait is long. The problem is that we cannot know how long the wait will be. Maybe the interview will come in six months; maybe in three years. Maybe the decision will come shortly after the interview; maybe it will take months or years. This unpredictability contributes to the difficulty of waiting for a resolution to the case.
For others people—single people without children or families that are all together here in the U.S.—the wait may be stressful, but it’s far more bearable. For my clients in this position, I advise them to live as if they will win their cases. What else can they do? To live under the constant stress of potential deportation is unhealthy. And the fact is, most of my clients have strong cases, and the likelihood that they will succeed it pretty high. So it is best to live as normally as possible. Find a job, start a business, buy a house or a car, go to school, make friends, get on with life. In the end, if such people need to leave the United States, they will have time to wind down their affairs and sell their belongings. For now, though, if I may quote the late, great Chuck Berry, Live like you wanna live, baby.
But what if you want to try to expedite your case? How can you maximize the chances that the Asylum Office will move your case to the front of the line?
First, before you file to expedite, you need to complete your case. The affidavit must be finished and all the evidence must be organized and properly translated (if necessary). If you expedite a case and the case is not complete, it could result in real problems. For example, I once had a client put himself on a short list without telling me. Then one day, an Asylum Officer called me and said that they wanted to schedule his interview for the following week. The problem was, the evidence was not submitted (or even gathered) and the affidavit was not done. The client insisted on going forward, and so (while I helped with interview preparation), I withdrew from the case. I did not want to remain affiliated with a case that was not properly put together, and I did not want to represent a person who took action on his case without informing me. In general, there is no value in expediting a case only to lose because you are not prepared for the interview, so make sure your case is complete before you try to expedite.
Second, you need a good reason to expedite. Remember, you are asking to jump your case ahead of hundreds--maybe thousands--of people who are also waiting for their asylum interview. Why should the Asylum Office allow you to do that? One common reason is that the applicant has a health problem (physical or mental). If that is your reason, get a letter from the doctor. Also, provide some explanation for how an early resolution of the asylum case might help improve your health situation (for example, maybe you have a health problem that is exacerbated by the stress of a pending case).
Another common reason to expedite (and in my opinion, the most legitimate reason to expedite) is separation from family members, especially if those family members are living under difficult or dangerous circumstances. If an asylum applicant wins her case, she can file petitions to bring her spouse and her minor, unmarried children to the United States. Many people come to the U.S. to seek asylum not for themselves, but because they fear for the safety of their family. Since it is so difficult to get a U.S. visa, it's common to see asylum seekers who leave their family members behind, in the hope that they can win asylum and bring their family members later. So when the wait for an interview (never mind a decision) is measured in years, that's a real hardship. For our asylum-seeker clients with pending applications, we have seen cases where their children were attacked in the home country, where family members went into hiding, where children could not attend school or get medical treatment, where families were stuck in third countries, etc., etc., etc. Such problems can form the basis for an expedite request.
To expedite for such a reason, get evidence of the problem. That evidence could be a doctor's note for a medical problem or an injury, or a police report if a family member was attacked or threatened. It could be a letter from a teacher that the child cannot attend school. It could be letters from the family members themselves explaining the hardship, or letters from other people who know about the problems (for advice on writing a good letter, see this article). Also, sometimes family members receive threat letters or their property is vandalized. Submit copies of such letters or photos of property damage. It is very important to submit letters and evidence in support of the expedite request. Also, remember to include evidence of the family relationship--marriage certificate or birth certificates of children--to show how the person is related to the principal asylum applicant.
There are other reasons to request an expedited interview: Until an asylum case is granted, applicants may not be able to get certain jobs, they cannot qualify for in-state tuition, they face the general stress of not knowing whether they can stay. While these issues can be quite difficult to deal with, I think that they do not compare to the hardships suffered by people separated from family members. Indeed, if I were in charge of the Asylum Division, I would allow expedited interviews only in cases of family separation.
Once your case is complete and you have gathered evidence in support of the expedite request, you need to submit the request and evidence to the Asylum Office. Different offices have different procedures for expediting. You can contact your Asylum Office to ask about the procedure. Contact information for the various Asylum Offices can be found here.
One last point about expediting asylum cases: The system for expediting cases is not well-developed, meaning that sometimes, a strong request will be denied or a weak request will be granted. There definitely seems to be an element of luck involved in the expedite request process. But of course, unless you try to expedite, you can't get your case expedited. If an initial request is denied, you can gather more evidence and try again (and again). At least in my experience, most--but not all--cases where there was a good reason to expedite were, in fact, expedited.
Besides expediting asylum cases, it is also possible to put your case on the "short list," which may result in an earlier interview date. You can learn more about that and a few other ideas here.
It is still unclear how changes in the new Administration might affect the speed of asylum cases, but I doubt that the asylum backlog is going away any time soon. In that case, for many people, the only options are to learn to live with the delay or--if there is a good reason--to ask for an expedited interview and then to hope for the best.
Originally posted on the Asylumist: www.Asylumist.com.
by Chris Musillo
The H-1B cap requires that all H-1B petitions are received at the USCIS’ California Service Center or Vermont Service Center by Friday April 7, 2015. Below are some key points to keep in mind about this year’s H-1B cap:
-The USCIS makes no accommodation for delays caused by couriers. Accordingly, MU Law will file the vast majority of its H-1B petitions on March 31 for delivery by April 3, which is the first day that H-1B petitions are accepted.
-Premium Processing Service (PPS) has been suspended, starting April 3, 2017. The suspension may last for six months. The suspension includes all H-1B petition filings, such as H-1B cap cases, H-1B amendments, H-1B transfers, and H-1B extensions.
-In 2016, H-1B lottery results were not finalized until June. It may even take the USCIS longer than in past years to notify all H-1B cap winners and losers.
Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
Update, 9:15 pm, March 30:
POLITICO reports on March 30 that the Trump administration has filed a notice of appeal to the 9th Circuit against the order of Hawaii US District Court Judge Derrick Watson blocking the president's second. "watered down" Muslim ban executive order.
We can be quite sure that the Justice Department will argue in its appeal that the president is, in effect, a king or an emperor when it comes to admitting foreign citizens into the US, rather than the chief executive of a democracy governed by the rule of law.
As I explain below, it is not only the ability of up to 100 million citizens of 99 per cent Muslim countries to visit or immigrate to the US that will be affected b the outcome of this litigation.
If Trump is successful in this dramatic attempt to extend one-man power over our immigration system beyond anything previously imagined, we can be sure that the Muslim ban will be only the first step to remaking our entire immigration system to be much closer to the 1924 Europeans-only one, solely by presidential decree.
If this happens, America could become a very different country from the one we know now.
My original comment follows:
In a March 29 decision which represents yet another setback for the president's attempts to extend his unchecked power over immigration by branding Muslim immigrants as potential terrorists and Mexican and Latin American immigrants as criminals, a Hawaii US District Court, Derrick Watson, has issued a preliminary injunction against Trump's "watered down" version of his original executive order, which bans "only" 100 million people from six 99 percent Muslim countries, and every refugee in the entire world, from entering the United States.
In doing so, Judge Watson rejected the administration's central argument that the courts cannot look behind the four corners of the order to determine its real purpose if the order is "legitimate and in good faith" on its face (Kleindienst v. Mandel, 1972).
Instead, the Judge ruled that when Constitutionally guaranteed 1st Amendment establishment of religion and 14th amendment equal protection rights are at issue as he determined they are in Trimp's seven and six Muslim country entry ban orders, "The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has."
Judge Watson also stated that the historical context and events leading up to the adpption of this latest executive order were "full of religious animus, invective and obvious pretext."
Indeed, just looking at the four corners of the 2nd Muslim ban itself, even without regard regard to its history, raises serious questions as to whether an order banning virtually the whole population of six almost entirely Muslim countries without even allowing anyone to go though the normal individual visa screening process (as President Obama's far more limited order involving the the same countries did) is "facially legitimate and in good faith" according to the Mandel test.
To the contrary, just looking at the order itself. even without the obvious history of anti-Muslim animosity behind it which no court in a democratic country could ignore, cannot help but suggest that the issue of whether the Trump administration tried to commit "fraud upon the Court", in issuing the entry ban orders is also relevant to this decision.
Certainly, as Judge Warson's decision strongly implies, these two executive orders were riddled with bad faith, from corner to corner, from beginning to end.
Above all, Judge Watson's decision upholds the principle is that America is still a country governed by our Constitution and the rule of law, and not, as in some other countries one could mention, solely by the will fo the chief executive.
It is as if Judge Watson were saying to Donald Trump the same thing that Jason (admittedly not out of the most sincere motives imaginable) says to Medea in the play of the same name by the great dramatist Euripides 2,400 years ago:
"[Now] you understand justice and the rule of law."
(in the original Greek: diken espistasai nomois te chresthai)
A link to the full decision, in Hawaii v. Trump, can be found by going the POLITICO report on this decision:
Certainly, supporters of Trump's Muslim ban orders are likely to use the lame argument that the so called "Plenary Power" over immigration doctrine, which the Supreme Court developed in the late 19th Centrury in order to keep Chinese immigrants out of the US because of race, insulates the president's Muslim ban orders from judicial scrutiny.
But nothing in any Supreme Court decision gives the "political branches" - Congress and the executive - "Plenary Power" over the rights of 3 or 4 million Muslim US citizens to have their religious beliefs and practices treated on the same level of equality with all other religions in America, rather than being relegated to inferior, second class and deeply suspect status, as the object of intense animosity and discrimination by our government and by the public.
Yet that is the obvious purpose and inevitable effect of Trump's Muslim entry ban. America is fortunate that the U.S. District Court in Hawaii did not close its eyes to the self-evident reality in this case, and that the U.S. District Judge in Hawaii, as Euripides states,"understands justice and the rule of law" in the immigration context, even if our president and his administration do not.
Attorney at Law
Updated 03-31-2017 at 10:07 AM by ImmigrationLawBlogs
According to the Austin (Texas) American-Statesman newspaper a federal judge in that city has stated in open court that he was told firsthand by federal agents that aggressive immigration raids in that city this February were made in direct retaliation for sanctuary policies adopted by a local sheriff.
The newspaper says that this statement was made on March 20 by U.S. Magistrate Judge Andrew Austin.
If this report is accurate, it could be an ominous sign that Donald Trump's agenda for mass deportation of Hispanic and other minority immigrants is bringing America closer to being a police state where any resistance to the leader or his policies brings forth swift and massive retaliation from the state.
A local activist organization, Travis County Campaign, ICE Out of Austin, described the raids as:
"...a vengeful tactic by ICE for all the progress that the immigrant community has gained in this county in the past four years".
These and other raids against Sanctuary jurisdictions described in the above article were followed on March 27 by renewed threats by the administration in the form of a statement by AG Jeff Sessions stating that the administration will cut off funding to any Sanctuary Cities that refuse to cooperate with Trump's mass deportation agenda by withholding information about immigration status from federal officials.
Sessions' threat focuses on 8 USC Section 1373, which prohibits any state of locality from refusing to share such information with the federal government, but this section has been attacked by some legal experts as unconstitutional. Seattle has now filed a lawsuit against implementation of Trump'a executive order.
Beyond the merits or lack of same in the details of the various immigration executive orders that Trump has signed since he became president, one thing has already become clear about the future of immigration under the Trump presidency:
Trump regards large parts of America's immigration system as subject to his one-man control by the simple stroke of a pen, without consulting Congress or anyone else, except a tiny group of top advisers, who, like Bannon and Sessions, have suggested taking America back to the Europeans-only immigration regime of the 1920's.
What this says about the future of America's democracy, and of equal protection of the law regardless of race, creed or color in Donald Trump's America remains to be seen.
Attorney at Law
Updated 03-29-2017 at 10:22 PM by ImmigrationLawBlogs