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Letters of the Week: May 23 - May 27

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  1. Harry DeMell's Avatar
    Roger Algase in his article in ILW entitled "Did President Obama Really Vote to Kill Immigration Reform in 2007" puts words into my mouth that don't belong there. This is not a Republican-Democrat issue as some would want to make it for political purposes. Both parties are split on this issues Democrats who promise amnesty to ethnic Americans while at the same time telling unions that they will protect American workers by keeping aliens out and who know that the votes are not there for passage are to Blame. Republicans are just split between business Republicans who want the flow of workers and law and order republicans who don't.

    As for Obama: Whatever I think about his policies I have never criticized him for the reasons Roger lists. For that I am due an apology.

    Harry DeMell
  2. Joseph P. Whalen's Avatar
    http://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY2011/138.pdf

    The attached pdf is found at the link above. It was issued in response to a question about whether asking for additional documents evidencing work authorization in order to establish that an employee is a "qualifying employee" for EB-5 purposes was OK. The response is somewhat vague and says that such a request would only be discrimination IF done with INTENT TO DISCRIMINATE. I don't think that complying with a legal requirement is an intent to discriminate AND it is NOT for the purpose of making an employment decision itself, it is for compliance purposes after the fact. The I-9 process requires obtaining proper proof immediately after hiring. If using E-Verify, a tentative non-confirmation or actual non-confirmation may be addressed at that time and resolved or contested further. If one does not have proof of a lawful workforce around two years later then they have much bigger problems. The EB-5 related evidence is required at the time of requesting the lifting of conditions on status.

    I do think that complying with EB-5 evidentiary requirements meets a specific exception under the law at issue.

    INA 274B


    (a) Prohibition of discrimination based on national origin or citizenship status
    (1) General rule

    It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other
    than an unauthorized alien, as defined in section 1324a(h)(3) of this title) with respect to the hiring, or recruitment or referral


    for a fee, of the individual for employment or the discharging of the individual from employment--

    (A) because of such individual's national origin, or
    (B) in the case of a protected individual (as defined in paragraph (3)), because of such individual's citizenship status.
    (2) Exceptions

    Paragraph (1) shall not apply to--
    ****
    (C) discrimination because of citizenship status which is otherwise required in order to comply with law, regulation, or executive order, or


    required by Federal, State, or local government contract, or which the Attorney General determines to be essential for an employer to do business
    with an agency or department of the Federal, State, or local government.


    ****
    When that statute was written the AG was in charge of the INS. Now DHS is in charge of USCIS BUT the AG still has final authority to make a determination
    as to questions of law to which DHS must defer. The attached letter is insufficient as to that responsibility. If OSC needs to raise that question to a higher level in DOJ, it should.


    That my two cents.
  3. Adan G. Vega, Esq.'s Avatar
    Great call by Gary!
  4. bernice gunn's Avatar
    Thank God for Arizona and its wisdom
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