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  1. PORTING AN I-485 TO A NEW EMPLOYER

    by , 07-24-2017 at 09:24 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Maria Schneider

    Last year the USCIS issued new guidance regarding when a foreign national can port his/her I-485. Under the American Competitiveness in the Twenty-First Century Act (AC21) a foreign national can change his/her employer or job during the green card process once the I-485 has been pending for 180 day or more.

    When changing positions, the green card applicant and their new employer, must file a form I-485(j) with the USCIS confirming the new employer is taking over the green card case, agrees to pay the prevailing wage, and that the new position is the same or similar to the position described in the green card application.

    The USCIS will consider the totality of the circumstances when determining if the green card job and the new job are the same or similar. Specifically, 2016 memo describes how Immigration Officers can review the occupation codes assigned to both jobs by the Department of Labor when determining if the two jobs are the same or similar.

    Evidence that the positions are the same or similar can include:


    • · The job duties of both positions;
    • · The skills, expertise, education, training, licenses or certifications specifically required to perform each job;
    • · The wages offered for each job; and
    • · Any other material and credible evidence relevant to the determination.


    Green card applicants can also port their I-485s when, in their new position, they are primarily responsible for managing the same or similar function of their original job. For example, if a PT is promoted to Senior PT and supervises other PTs and PTAs. It is also acceptable for the applicant to manage workers in a different occupation if the change in position is a normal career progression. For instance, if an OT is promoted to Rehab Manager, the OT may be supervising other OTs as well as OTAs, PTs, PTAs, SLPs, and others.



    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, Twitter and LinknedIn.
  2. Letters of the Week: July 24 - July 30

  3. Is Trump withdrawing Lady Liberty’s invitation to the poor, huddled masses yearning to be free? By Nolan Rappaport

    NATIONAL PARK FOUNDATION



    In 1903, these lines were engraved on a plaque and placed on the pedestal of the Statue of Liberty:


    Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!
    But should our immigration system be based on a desire to help immigrants from around the world? Or should it be based or on our own national interests?


    The main difference between legal and illegal immigration is that with legal immigration, the government decides which aliens will be allowed to come to the United States. Whereas, with illegal immigration, the aliens decide themselves whether they are going to come.


    That distinction loses significance when the government does not base its immigration policy decisions on the country’s needs.


    President Donald Trump believes that the current system for legal immigration does not meet our national interests.


    Trump’s views on legal immigration.


    When Trump was still a candidate, he delivered a statement on his plans for immigration reform. He said that he would —

    Read more at http://www.huffingtonpost.com/entry/...b0545a5c310004

    Published originally on the Huffington Post

    About the author.
    Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.
  4. Federal Court Also Uses Trump's Statements in Refusing to Block Injunction Against Cutting off Sanctuary Cities' Funds. Roger Algase

    In a case with a parallel to the lower federal courts' use of the president's public statements against him in issuing injunctions against his Muslim ban order, which is now before the Supreme Court, a federal judge in San Francisco, William Orrick III, has refused to lift an injunction against the Trump administration's threat to cut of federal funding to "Sanctuary Cities" which refuse to comply with federal government requests to provide information about or honor detainers relating to unauthorized immigrants in their jurisdictions.

    In his refusal to lift a previous injunction against the threatened funds cutoff, Judge Orrick reportedly relied on broad statements that both Trump and Attorney General Sessions - whose job may now reportedly be in danger because of his principled decision to uphold the rule of law by recusing himself from the Russia related investigations - a decision which has evidently infuriated the president - see:

    http://www.politico.com/story/2017/0...message-240774

    - had made threatening a cutoff of all federal funds to the jurisdictions concerned.

    The court (as reported by POLITICO - I have not yet seen the actual decision) relied on these public statements as evidence of the administration's real intent to institute a legally impermissible broad cutoff of funds, despite the fact that Sessions subsequently issued a memo narrowing the scope of the threatened action in order make it more compliant with federal law and with the Constitutional separation of powers.

    The parallels with the Muslim ban lawsuits are unmistakable. In both cases, the federal courts are reacting to what they, with considerable justification, perceive as the reality of Trump's intentions, based on his own statements and those of his top officials.

    In contrast, many federal District and Circuit courts have been rejecting what Trump himself has described (in the Muslim ban litigation) as "watered-down", sanitized versions of his original executive orders or other policy statements as inaccurate or even misleading versions of his real intentions.

    This was apparent, especially, in the 4th Circuit's 10-3 full court decision in the Muslim ban case, and we are now seeing the same thing, only in a different context, in the Sanctuary Cities litigation.

    For the full POLITICO story about Judge Orrick's decision, see:

    http://www.politico.com/story/2017/0...-cities-240780

    One might ask, ultimately, what difference does it make whether the federal courts look behind the narrow, but prima facie more legally acceptable rationales for Trump's policies regarding both excluding Muslim immigrants from the US and threatening retaliation against Sanctuary Cities for not falling in line behind his mass deportation agenda for Hispanic and Asian immigrants, or whether America's judges take Trump at his word concerning his stated broader objectives?

    The answer to this question involves whether America can continue to be governed as a democracy or whether it will become a dictatorship.

    If the courts are deprived of the power to look behind the surface of Trump's immigration policies and to examine their real objectives, as stated by the president himself, merely because, well, he is the president, then we will no longer have separation of powers in this country and the courts will be nothing more than a compliant rubber stamp for whatever the president says and does about immigration.

    And if America's judicial branch turns into nothing more than the president's doormat on immigration policy, how can the judiciary preserve its independence from one man rule by the president with regard to religious freedom, voting rights or any of the vital issues today which affect the rights and freedoms of the American people, not only foreign citizens?

    Roger Algase
    Attorney at Law
    algaselex@gmail.com

    Updated 07-21-2017 at 05:04 PM by ImmigrationLawBlogs

  5. Meet the US Employer Who Openly Defies and Thumbs His Nose at Trump's "Hire American" Policy - Donald J. Trump. Roger Algase

    Update, July 21. 7:29 pm:

    In my original version of this comment, I inadvertently included a link to a vox.com article which inaccurately accused the president of taking advantage of a 15,000 annual increase in H-2B visas which he himself had put into effect using his own power as president.

    Joseph Whalen has kindly pointed out, and I thank him for bringing this to my attention, that the 70 H-2B visas that Trump's company, Mar-a-Lago is requesting are for fiscal year 2018, beginning October 1, 2017, and that therefore these visas would have been available even if the president had not ordered a 15,000 annual increase in the number of visas.

    I did not mean to imply at any time that Trump, or any of his companies, were benefiting from the annual increase in H-2B visas which he has ordered. I only intended to imply that Trump is benefiting from a foreign worker visa program in general, in direct conflict with his promise to promote hiring of American workers first and foremost.

    I have now deleted the link to the incorrect vox.com article, and instead I have substituted a link to an article in The Hill about Trump's use of the H-2B program, without any implication that he or his company benefited from the visa increase, as opposed to the H-2B program as a whole.

    My revised original comment follows:


    There is a least one American employer who is behaving as if he couldn't care less about Donald Trump's "Hire American" policy as announced in his inaugural address and in his "Buy American, Hire American" executive order. This employer is not only openly thumbing his nose at the president's "Hire American" policy, but he has actually picked Trump's "Made in America" week to announce that he is hiring 70 foreign workers under the H-2B visa program to work at a resort and golf club in Florida.

    According to US Department of Labor H-1B filings as reported in the media, this US employer is planning to hire foreign housekeepers, cooks and servers for a resort located in Palm Beach, Florida.

    http://thehill.com/homenews/administ...oreign-workers

    One would think that the president would be outraged at this open and blatant attempt to sabotage his program of protecting American workers against competition from unskilled (and highly skilled, as witnessed by his statements regarding H-1B visas) foreign workers. However, since the news only broke a few hours ago as of this writing, maybe the president just hasn't had time to act against this open rebellion by an American employer against Trump's promise to put American workers first, which almost all observers agree played a large part in helping him win the presidency.

    So, while there has been no reaction so far, one cannot rule out a possible tweetstorm by the president later on against this American employer who so openly mocks the president by refusing to bend to his will on immigration policy.

    Just in case any reader is curious about exactly who would dare to engage in open defiance of our chief executive's pro-American worker policy, which he put at the center of his campaign and has continued to promote since becoming president, the above report also names the American employer who has shown so little respect for our nation's highest elected official.

    This employer's name happens to be Donald J. Trump, and the companies which will be employing the foreign workers are the Mar-a-Lago club and the Trump National Golf Club.

    Readers should stay tuned to see if the president or his administration takes any actions against this openly recalcitrant U.S. employer who evidently cares so little about the president's expressed desire to put American workers first.

    Roger Algase
    Attorney at Law
    algaselex@gmail.com

    Updated 07-21-2017 at 06:32 PM by ImmigrationLawBlogs

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