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Bloggings on Immigration Law

by Roger Algase

If Americans deny basic rights to immigrants, how can we expect to keep them for ourselves?

We have become so used to hearing about foreign citizens being stopped on trains and buses by DHS agents to have their papers checked, and being dragged away for questioning or detention if they cannot prove legal status, that we no longer pay very much attention We no longer protest very loudly against state laws which would require state or local police to do the same. Nor do articles about the terrible abuses in immigration detention often make front page headlines

In this regard, Matt Kolken's regular exposures of these abuses in ID is an outstanding exception, equivalent to the modern day equivalent of Emile Zola's "J'accuse". Everyone in America who cares about justice and human rights owes Matt a great debt of gratitude. But, aside from voices in the wilderness such as his, not many people pay a great deal of attention to the general attitude of suspicion, paranoia and hostility which the immigration bureaucracy is showing to so many foreign citizens seeking to enter the US, whether when applying for routine visas at US consular offices overseas or arriving at a port of entry in the US, or to foeign citizens who are already in the US.

Therefore, we should not be surprised when the same thing happens to Americans. Glenn Greenwald writes in the April 8 edition of  about Laura Poitras, a US citizen filmmaker, who has been repeatedly detained and questioned when re-entering the US because of her documentaries criticising US policies in Iraq and concerning the "War on Terror". Another US citizen, Pascal Abidor, was handcuffed, taken off a train from Montreal to New York and held in a cell for several hours before being released without charges. His "crime", it appears, was pursuing a Ph.D. in Islamic Studies.

These are not isolated cases. The same article states that a 2011 FOIA request from the ACLU revealed that in the 18-month period beginning October 1, 2008, more than 6,600 people, roughly half of them American citizens, had their electronic devices searched at the border without a warrant. Many people have had their laptops, cell phones or cameras seized and sometimes never returned.

As long as our government continues to trample on the basic human rights of immigrants in its rush to deport anyone and everyone who lacks legal status in this country, the fundamental rights and freedoms of American citizens also will be in greater danger than ever.

On another note, it is a very curious coincidence that on March 29, 2012, just days before this year's rush to file H-1B visa cap cases for the new fiscal year 2013 began on April 2, 2012, the US Department of Labor published the latest version of the Occupational Outlook Handbook ("OOH") on the Internet. As every H-1B lawyer knows, the OOH is a critical element in determining whether a given position meets the basic requirement of being a "specialty occupation" for H-1B purposes, namely normally requiring a bachelor degree or equivalent in the particular field in question.

The OOH is generally regarded by USCIS examiners equivalent to a sort of Delphic Oracle for this purpose, and its pronouncements on what kind of education is required for a particular job are sometimes no clearer than were those of this famous institution of antiquity. For example, the OOH may say that a particular job normally requires a "college degree" in the specialty or a related field. So far, so good, as far as eligibility for H-1B is concerned. Or is it?

What does a "college degree" mean? Does it mean a bachelor degree, which would make the job in question an H-1B specialty occupation? Or does it mean an associate degree, which is also given by many colleges (and not only junior colleges)? In the latter case, the position wold not qualify for H-1B.

However, aside from the frequent Delphic obscurity of the OOH, there is another reason to be suspicious of the timing of the latest OOH edition, immediately before the most important annual filing date in the entire H-1B system, and, presumably, after all the H-1B cases which were ready to be filed in time to arrive at the immigration office on this often crucial first day had already been prepared and ready to send out.

This reason for suspicion of the motives behind this curious timing of the new OOH arises from the well known tendency of this august and almost slavishly followed publication (at least by H-1B examiners), to "dumb down" the educational requirements for a given position, i.e to knock it off the pedestal of H-1B eligible status and throw it back into the general mix of jobs which can be done by hoi polloi, the ordinary plebians of employment-based immigration.

The effect of this dumbing down, of course, is to make fewer people eligible for H-1B. This would which would no doubt delight demagogic anti-professional immigrant Republican politicians such as Senator Charles Grassley of Iowa and Representative Lamar Smith of Texas, but it goes against America's interests in attracting more highly skilled workers to fill our needs and make the US more competitive.

It did not take long to find at least one example of this type of dumbing down in the new OOH. For many years, the OOH has recognized the position of Interior Designer as one which normally requires a bachelor degree in this field or a closely related one. In my own experience going back at least 20 years, no Interior Designer case has ever been denied H-1B recognition as a specialty occupation.

However, according to this newest OOH edition, a bachelor degree in any field is now sufficient education to qualify for an entry level position as an Interior Designer. Therefore, in one single sentence, a position which had been recognized for at least two decades as an H-1B specialty occupation has suddenly been taken off this list. 

Is this because the work of an Interior Designer, in an increasingly high tech age, has suddenly become so easy that even French majors or anthropology majors can perform it, if only they have a bachelor degree? Well, not quite, says the new OOH. It is still necessary to take some Interior Design related courses in order to qualify for this position, but, evidently, not to major in this field. As if to emphasize the low esteem to which this position as suddenly fallen, according to this modern-day Delphic Oracle, the position of Interior Decorator, which has never been considered to be a specialty occupation, is now lumped in with Interior Designer.

But this sort of patent absurdity, which can turn a French major into an "Interior Designer" merely by taking one or two related courses (in much the same way that Moliere's hero was turned into a "doctor" when his companions beat him up), is apparently not enough for the authors of this latest OOH version. To absurdity, they have also added hypocrisy.

The new OOH section for Architects, which it still recognizes as one of the most prestigious and well recognized of all the H-1B professions, states:

"Architects often work with workers in related professions. For more information on these occupations, see the profiles on civil engineers, urban and regional planners, interior designers and landscape architects" (emphasis added).

Therefore, Interior Designer is, obviously, still included in a list of well-recognized H-1B specialty occupations, as all of the other named ones clearly are. However, this admission that Interior Designer is a specialty occupation, just as is the closely related occupation of Architect, does not appear in the section on Interior Designers, but off at the end of a different section where an immigration examiner is less likely to find it.

Is this merely stupidity on the part of the authors of the new OOH? Or is this because of a political motivation? Or both? In future bloggings I will look at some other "dumbed-down " occupations in the new OOH for an answer.

About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.