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Aug 20 - 7th Circuit On Labor Certs

Rating: 7 votes, 5.00 average.

-----------------IMMIGRATION DAILY FROM ILW.COM------------------


August 20, 2009


http://www.ilw.com/immigdaily/digest/2009,0820.shtm


Items:
1.  Comment: 7th Circuit On Labor Certs
2.  Focus: Today Is The Deadline For Tax Returns for Foreign
    Nationals
3.  Articles:
    (a) H-1B Employers: Have Your H-1B Public Access File Ready
    For The USCIS Audit by Mira Mdivani, Esq.
    (b) Book Review: Basic Economics: A Citizens Guide To The
    Economy By Thomas Sowell by Roger Meiners for the Foundation
    For Economic Education
    (c) Bloggings On Immigration Law And Policy by Greg Siskind
4.  News:
    (a) Neufeld Memo On H-2A And H-2B Petitions
    (b) USCIS Updates H-1B And H-2B Counts
    (c) 7th Circuit Says DOL Can Establish Time Limit For Labor
    Certifications
5.  Classifieds:
    (a) Help Wanted: Immigration Paralegal
    (b) Website Services
    (c) Forensic Psychology Services
6.  Headlines:
    (a) Immigration Chief Ends Arrest Quotas For US Agents
    (b) Immigration Attorney Gets 14 Months In Prison
    (c) White House To Host Immigration Meeting
    (d) Aug. 29 Rally In El Paso Will Push For Immigration Reform
7.  ComingsNGoings:
    (a) Immigration Event - Washington, DC
8.  Letters From:
    (a) Honza Prchal, Esq.
    (b) Roger Algase, Esq.
    (c) Diane L.
    (d) Arif Kadwani
    (e) Mercedes V. Abad
    (f) DMM


http://www.ilw.com/immigdaily/digest/2009,0820.shtm


|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|+|
Books On Immigration Law: http://www.ilw.com/store/
Immigration Law Seminars: http://www.ilw.com/seminars/
Classifieds: http://www.ilw.com/corporate/advertise_on_ilw.shtm
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_________________________________________________________________
1.  COMMENT


7th Circuit On Labor Certs


The 7th circuit decided a labor certification case on Aug 18, the
summary of which appears below along with the link to the
original document. Two footnotes in the case provide material of
interest to those who may challenge DOL in federal court in
future labor certification disputes. Here are the footnotes:


* Note number 6: The plaintiffs do not contend that DOL lacks
statutory   authority to issue regulations pertaining to labor
certifications  in general. In fact, they assume in their briefs
that such  authority exists. We will proceed under that
assumption for  the purposes of this opinion, and thus we need
not resolve  the question we left unanswered in Production Tool
Corp. v.  Employment & Training Administration, 688 F.2d 1161,
1167 n.1  (7th Cir. 1982), and Industrial Holographics, Inc. v.
Donovan, 722  F.2d 1362, 1366 n.6 (7th Cir. 1983): whether DOL's
regulations  are legislative rules promulgated pursuant to an
implied  congressional delegation of power or merely interpretive
rules issued through DOL's inherent authority.


* Note number 8: The plaintiffs do not challenge the
reasonableness of DOL's  interpretation of [8 USC] 1182(a)(5)(A)
(i)(I) in its promulgation of  [20 CFR] 656.30(b), so we have no
occasion to reach the issue. For  that reason, no Chevron (U.S.A.
Inc. v. Natural Resources  Defense Council, Inc., 467 U.S. 837
(1984)) analysis, which is  the level of deference we would apply
given the plaintiffs'  assumption, see supra note 6, is required
in this case.


The language above reveals the extent to which reasonableness
survives in the federal courts, unlike in the DOL. Future
litigants would be well advised to consider challenging the
scope of DOL's rule making authority and the appropriate
level of deference due to DOL by the courts (i.e. litigation
should not merely challenge the substance or language of a
specific rule). This case continues a trend in labor
certification litigation of the last dozen years, where litigants
against DOL have chosen to challenge minutiae of the labor cert
process instead of going for the jugular and challenging DOL's
entire locus standi. We have long argued that DOL has created 20
CFR 656 out of the figments of its imagination, and without a
statutory mandate, by concocting a cruel process in which US
workers are used as pawns, and which forces US employers to go
through a completely artificial legal process (which DOL labels
"recruitment" but which is better characterized as a "charade"
victimizing US workers and employers alike). We urge future
litigants taking DOL on in a cause argued in federal court to
reach for the heavy artillery and leave the pea s******* at home.


We welcome readers to share their opinion and ideas with us by
writing to mailto:editor@ilw.com.
_________________________________________________________________
2.  FOCUS


Today Is The Deadline For Tax Returns for Foreign Nationals


Wednesday, August 19th is the deadline for "Tax Returns for
Foreign Nationals", the Thursday August 20th phone seminar, the
curriculum is as follows:


++When foreign nationals must file US returns
++Who can file a Form 1040
++Who can elect to file Form 1040
++When other information forms are required
++How taxpayers claim treaty benefits
++What returns apply in the year residency changes


Wednesday, August 19th is the deadline to sign up. For more info,
including speaker bios, detailed curriculum, and registration
information, please see: Online:
http://www.ilw.com/seminars/200916.shtm. Fax form:
http://www.ilw.com/seminars/200916.pdf. Don't delay, sign up
today.
_________________________________________________________________
3.  ARTICLES


(a) H-1B Employers: Have Your H-1B Public Access File Ready For
The USCIS Audit


Mira Mdivani, Esq. writes "Once the file is prepared, you are
ready to deal with USCIS on H-1B related issues."
http://www.ilw.com/articles/2009,0820-mdivani.shtm
http://www.uslegalimmigration.com


(b) Book Review: Basic Economics: A Citizens Guide To The Economy
By Thomas Sowell


Roger Meiners for the Foundation For Economic Education writes
"He intends this book to be a primer on economics for the
(intelligent) masses."
http://www.ilw.com/articles/2009,0820-meiners.shtm
http://fee.org/


(c) Bloggings On Immigration Law And Policy


Greg Siskind writes "Secretary Janet Napolitano is scheduled to
host about 130 leaders from immigration advocacy, religious,
business and law enforcement groups to discuss immigration reform
plans."
http://www.ilw.com/articles/2009,0820-siskind.shtm
http://www.visalaw.com/


To submit an Article for consideration, write to
mailto:editor@ilw.com
_________________________________________________________________
4.  NEWS


(a) Neufeld Memo On H-2A And H-2B Petitions


Donald Neufeld, USCIS Acting Associate Director issued a memo
providing guidance for processing and adjudicating Form I-129,
Petition for Nonimmigrant Worker, filed on behalf of H-2A
agricultural temporary workers and H-2B nonagricultural
temporary workers.
http://www.ilw.com/immigdaily/news/2009,0820-neufeld.pdf


(b) USCIS Updates H-1B And H-2B Counts


USCIS announced that as of August 14, 2009, it has received
approximately 45,000
H-1B cap-subject petitions and approximately 20,000 petitions
qualifying for the advanced degree cap exemption, and 8,974 H-2B
petitions for the first half of FY 2010.
http://www.ilw.com/immigdaily/news/2009,0820-h1b.shtm


(c) 7th Circuit Says DOL Can Establish Time Limit For Labor
Certifications


In Durable Manufacturing v. USDOL (No. 08-4122, 7th Circuit,
August 18, 2009), the court said that "Assuming that DOL
possessed statutory authority topromulgate regulations pertaining
to labor certifications, then the amended 20 CFR 656.30(b) is
within the scope of DOL's authority because it complies with
the explicit language from 8 USC 1182(a)(5)(A)(i)(I)." The court
also said "labor certifications approved under the old regulation
were not valid permanently, but only so long as no definite
period of validity was fixed by DOL. By definition, then, any
"right" that the plaintiffs may have obtained to file their
approved labor certifications in support of visa petitions at
any time they chose was coextensive with the duration of the
"indefinite" regulation. When DOL amended 20 CFR 656.30(b)
essentially to establish a 180-day time limit for previously
approved labor certifications, the plaintiffs' right to the
certifications' indefinite validity ended." (thanks to Gary
Endelman for bringing the case to our attention)
http://www.ilw.com/immigdaily/cases/2009,0820-durable.pdf
_________________________________________________________________
5.  CLASSIFIEDS


(a) Help Wanted: Immigration Paralegal
Washington, DC - Fragomen, Del Rey, Bernsen & Loewy
http://www.fragomen.com/
seeks an experienced Paralegal for its D.C. office. This is a
career position requiring a wide range of skills in a fast-paced
setting for the right candidate. Our ideal candidates have 2+
years experience with all aspects of business immigration,
including H-1B and L-1 visas, PERM, Immigrant Visa Petitions, and
Applications to Adjust Status. The Paralegal will have the
opportunity to manage caseloads with a large degree of
independence; communicate with clients regarding procedural and
case processing issues; update and maintain client status
reports; prepare bills; and serve as a team resource. Very
competitive salary and benefits for the right candidate. Please
email your cover letter, resume, and writing sample (Word or
Adobe formats only) to Robert F. McCafferty, Human
Resources/Office Manager, at mailto:rmccafferty@fragomen.com. Or
fax same to 202-371-2898. EOE.


(b) Website Services
Gain the competitive edge with your new website from INSZoom, the
world's largest immigration software company. Choose from a range
of template websites, complete with customized logos and images,
60-70 pps. of professionally written immigration law content
including news articles, processing dates, and priority times
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tools will increase your web traffic and prioritize your site in
the major search engines. Our content management tool lets you
update your site in real time. Customized intake sheets let you
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a reasonable cost with websites from INSZoom. Learn more online
at http://www.inszoom.com/websites
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process of launching your new website today.


(c) Forensic Psychology Services
Forensic Psychology Group - nationwide service - 800-852-2160.
The Forensic Psychology Group provides nationwide expert witness
services in all areas of immigration law. It is led by Stephen
Reich, PhD, JD, and Grace P. Lee, PhD, JD, who are both clinical
psychologists and attorneys, and also AILA members. The Group's
experts - all licensed psychologists or psychiatrists - have
extensive experience in working collaboratively with immigration
lawyers on a wide range of forensic psychological issues. We
offer nationwide service in the following areas: psychological
consultation, psychodiagnostic evaluation, psychological reports,
expert witness services, courtroom testimony, political asylum
evaluation, extreme and exceptional hardship evaluations, spousal
abuse, citizenship waivers. Dr. Stephen Reich, the Group's
founder and director, is a nationally known forensic psychologist
who holds a BA, JD, and MBA from Columbia University, and an MA
and PhD in Clinical Psychology from Fordham University. He has
been on the faculty of Weill Cornell Medical College and on the
Attending Staff of New York Presbyterian Hospital for 30+ years.
Visit The Forensic Psychology Group.
http://www.forensicpsychologyexperts.com
The right experts make a real difference.
_________________________________________________________________
6.  Headlines


(a) Immigration Chief Ends Arrest Quotas For US Agents


The head of Immigration and Customs Enforcement announced today
that he has ended quotas on a controversial program designed to
go after illegal immigrants who have ignored deportation orders
and that he planned to make more changes to the program soon.


(b) Immigration Attorney Gets 14 Months In Prison


An immigration attorney in Houston who fled to China must serve
14 months in a U.S. prison in a fraud and cash investigation.


(c) White House To Host Immigration Meeting


The White House is hosting an immigration discussion Thursday
with advocates, religious groups, businesses and law enforcers as
part of an effort to bring all parties to the heated debate into
one room.


(d) Aug. 29 Rally In El Paso Will Push For Immigration Reform


As part of a statewide push for comprehensive immigration reform,
advocates are organizing a rally for Aug. 29 at the El Paso
Convention Center.


For links to the above stories see here:
http://www.ilw.com/immigdaily/digest/2009,0820.shtm#Headlines
_________________________________________________________________
7.  ComingsNGoings


Readers can share professional announcements (up to 100-words at
no charge), email: mailto:editor@ilw.com. To announce your event,
see here http://www.ilw.com/corporate/media_sponsor.shtm


(a) Immigration Event - Washington, DC
August 25 - The Center for Immigration Studies presents a panel
discussion: "Immigration, Population, and the Environment" For
more info see http://cis.org/Announcement/EnvironmentalPanel
_________________________________________________________________
8.  LETTERS


Readers can share comments, email: mailto:editor@ilw.com  (up to
300-words). Past correspondence is available in our archives
http://www.ilw.com/immigdaily/archives.shtm


(a) Dear Editor:
So, ID was overjoyed (08/17/09 ID comment) because President
Obama called his domestic opponents demagogues (while in a
foreign country, no less) and promised action by this Winter on
comprehensive immigration reform. Didn't Obama also demonize
opponents of health care reform and promise to have signed such a
reform before August, that is, this month? I am glad Obama is,
like Bush, if less intensely, on board with efforts to overhaul
our Rube Goldberg immigration system, but I hardly see the above
as reason for happy complacency. In fact articles on the 17th and
18th refer to how the health care debate is working against both
legal immigrants and illegal aliens hoping to somehow normalize
their status. Like Michael Hammond and Brandon Meyer (letters of
August 19th), I am not impressed with the new administration's
actions on immigration. I think our immigration problems are
structural and it seems the Obama administration has simply not
made this a top priority, even as it mouths pro reform slogans.
Ramesh Rai's letters are right (08/19/09 ID and 08/17/09 ID) that
Congress has been and remains indecisive, but honestly, even when
Bush was pushing immigration reforms hard (with McCain's
prominent assistance, I seem to recall), nothing much happened.
Adding filigrees to an already baroque system is a recipe for
disaster only slightly better than failing to enforce the laws at
all, but I am afraid that is all we can hope for unless we get
the sort of systemic crisis that lead to Ronald Reagan's tax
reforms or his less well designed amnesty of 1986.
Honza Prchal, Esq.                  Birmingham, AL


(b) Dear Editor:
I am afraid that Ramesh Rai's letter (08/19/09 ID) seriously
overestimates President Obama's willingness to do anything at all
about the scandal known as the US immigration system. If the
president really cared about a rational, fair or just immigration
system, he would have long ago replaced the USCIS officials who
are responsible for the travesties that are coming out of the
Service Centers, especially the California Service Center, in the
form of "adjudications", as described in the letters of Michael
F. Hammond, Esq. (08/19/09 ID) and Brandon Meyer, Esq. (08/19/09
ID) Letting a few ideologically anti-immigrant heads roll in the
higher echelons of this agency would not take an act of Congress,
just a couple of well placed phone calls or pen strokes. Having
said that, by no means all decisions coming out of the USCIS
Service Centers are wrong or unfair. What this may mean is that
lower level examiners are trying to to their jobs capably and
with due regard for the regulations, until thrown off the track
by their superiors. Employers, however, should not necessarily be
overjoyed when they do receive approvals. It only increases their
likelihood of being investigated under this most cowardly of
administrations, at least when it comes to standing up for the
rights of immigrants in the face of prejudice.
Roger Algase, Esq.                 New York, NY


(c) Dear Editor:
That will be great for our Pr. Obama to be able to consider the
immigration issue in USA, when i look the surronding country like
Canada, or France or Netherlands, USA has no immigration system.
And i believe that if anyone immigrate in USA is for the best not
for to ruin his own life but to be able to make it better. They
belive that USA is the better place for them to sucess and  bring
better life and vision to the rest of the rest. And we all know
that USA is an opportunity for immigrant to settle down, it's
also an opportunity for the country to develop because those
immigratnts are here to pay taxes, contribute into the
development of the nation and also limit a lot of crimes. Anytime
that i watch the Cops channel i always see people that have no
way of being able to do something so the stress and the anger can
make them do anything.  i was able to discuss with a prisoner
onetime and he said when my bro was leaving the state he gave a
gun to defend your self. I cry in my heart because this guy uses
this gun and hold up every day the women and men to be able to
eat. it's a pity he said what can i do i have family and i got to
take care of.  some people do not really understand that they
only care about themselves. So immigrants are not asking for food
but a legal way to study, work, help this country and also
succeed.  Dear Pr. Obama, i pray that Jesus my Lord will help you
to be able to make it for the immigrants and they can be able to
study, work and have a better life.
Diane L.


(d) Dear Editor:
Regarding Shahrukh Khan's alleged detention, this incident smacks
of a cheap attempt by Shahrukh Khan for gaining publicity for his
movie, "My Name is Khan".  Facts do point towards this attempt.
When a VIP applies for entry into the US, he must abide by rules
and regulations unless the US permits him to enter by special
means (via the airline's special lounge and pre-screens him).
Noting that Mr. Khan gave no advance notification and was
traveling with only his PA, it is futile to imagine that the US
Customs and Border Patrol would not treat him as a private
citizen, specially when his bags were "lost" and the agency staff
needed to check his bags.  I am told that the US does offer VIP
and VVIP treatment to the high and mighty of other lands when
advance notice is given.      The Times of India has quoted Mr.
Khan as saying many things against the US policies and
procedures. He wants more warmth and understanding, more speedier
procedures.  So much so good but he crosses the line when he
starts meddling into our paranoia, our fears, our desire to be
safe.  We are a sovereign nation, and we have a right to have
tighter controls at our borders, which, in Mr. Khan's case, was
Newark's Liberty International Airport.       And Mr. Khan, let
us Muslims of the US be!  We are not very happy with your
Bollywood folks raiding our sanctity and peace with your movies
and their hackneyed stories.  The US may have acted hastily in
thousands of Muslim cases in the post-9/11 days but, by and
large, we are respected and permitted to co-exist in a peaceful
manner.
Arif Kadwani


(e) Dear Editor:
Regarding the ID comment on Detention Shame (08/19/09 ID): What
an outrage.... what is truly ridiculous about this is that all
except for two persons were Cuban nationals.  You would think
that they after 50 years they would have figured out that Cuban
nationals may be placed on deportation but are not deported
because of Cuba's regime, eh? Thanks for this article.
Mercedes V. Abad                 Miami, FL


(f) Dear Editor:
ESF's letter (08/19/09 ID) accuses the US  of discriminatory H1b
admissions because, allegedly, "lighter-skinned, educated" etc.
immigrants are preferred to "brown-skinned, illiterate"
immigrants with criminal backgrounds.  Using the false analogy of
equal rights for blacks, the letter ignores one essential
difference;  blacks are and were, American citizens, while by
definition, no immigrant is.  The United States as a nation and
Americans collectively, owe nothing to citizens of other
countries, especially when those latter are here obviously in
violation of our laws.   The letter seems to have lost sight of
the fact that immigration is supposed to be of benefit to the
gaining country.  It is not and never should be, intended to be
some sort of "charity" or act of compassion that one country
extends to the less-fortunate citizens of another. For that we
have refugee and asylum programs. Further, the letter scorns the
expressed will of the American people as to who will come into
the country and in what numbers and under what conditions. I
would ask who then, if the American people do not have this
right, does? Who decided, for example,that 40,000 Somalis should
be settled in Maine and Minnesota?   It is perfectly natural and
to be expected that Americans will prefer as immigrants those who
most resemble them, those who have some education, can speak
reasonable English, are not likely to be public burdens, and, are
unlkely to engage in criminal or anti-social behavior.   The
"open-doors" immigration advocates need to think very carefully
about the future consequences of their obsession.  Immigration,
especially illegal immigration from Mexico, is one of the few
issues which unite blacks and whites in opposition and I predict
a terrible backlash in the not-so-distant future unless some
drastic and effective brakes are installed.
DMM
_________________________________________________________________
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