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Immigration Daily August 15, 2002
Previous Issues
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Editor's Comments

One of the biggest problems in Employment Immigration practice has been erroneous application in specific instances of the concept of prevailing wage by State Workforce Agencies. In an effort to ameliorate the problem, the Department of Labor released TEGL 5-02 which says in its Background: "General Administration Letter (GAL) 2-98, dated October 31, 1997, provided general guidance on how prevailing wages are to be determined for the purposes of foreign labor certification non-agricultural programs. One of the major concepts discussed in that GAL is that of "skill levels in wage determinations." We have been informed that the process of determining skill levels remains one of the least understood and, therefore, most controversial elements of the prevailing wage determination process. The attached questions and answers are intended to clarify the more pervasive of the questions regarding determining skill levels." Not to be outdone, INS issued its Report on H-1Bs for Fiscal 2001, on the heels of its report for Fiscal 2000. This report is just as interesting and full of useful information as the previous one, and includes for the first time a table on the industries that employ H-1B workers. For all those interested in H-1B matters, the new INS Report is required reading.


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ILW.COM's new seminar course with Angelo Paparelli will cover cutting-edge, advanced issues in business immigration. The first session in August will cover "the gems and the thorns" in the new Concurrent Filing rule, and also discuss alternatives to labor certification. The second session in September will include mergers and acquisitions as well as advanced issues in Blanket Ls and E visas. The final session in October will feature an "Experts Roundtable" on cutting-edge hypotheticals. This seminar course features Margaret Catillaz, Bryan Funai, Pete Larrabee, Alan Tafapolsky and Nathan Waxman as guest speakers (more guest speakers to be announced). This seminar course will be fast-paced and full of practical pointers for experienced practitioners. Don't miss it! Register Today!

The curriculum includes the following on the New Concurrent Filing Reg:

  • How do you help your clients transition from nonimmigrant worker status to an open-market EAD without a gap in work permission?
  • Does the new regulation strengthen or undermine AC-21's provisions on AOS portability and H-1B portability?
  • How do you reduce the effect of layoffs and still preserve AOS eligibility under the new concurrent filing system?
  • How does the new regulation impact the requirement that the alien intend to work for the sponsoring employer?
  • Can your practice thrive despite new conflict-of-interest and malpractice exposures?
  • How do you adjust your marketing and client-service strategies to gain maximum benefits under the new concurrent filing system?
  • What Case Profiles and Job Categories Should You Accept or Decline for Concurrent Filing?
For more info, including detailed curriculum, speaker bios, and registration information online, click here.
For more info, including detailed curriculum, speaker bios, and registration information by fax, click here.


Featured Article

Crime Victims Still Await U Visa Regulations
Carl R. Baldwin writes "The fact that the INS finally issued the T visa and regulations (1/31/02) for victims of trafficking is very positive. But it is lamentable that it has not yet issued the U visa and regulations for victims of violent crimes"


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Immigration Law News

INS Releases 2001 H-1B Report
Hard on the heels of the H-1B Report for 2000, INS released the Report on Characteristics of H-1B Workers for Fiscal Year 2001. Like its predecessor Report, the new Report is full of fascinating information, and includes for the first time a table on the industries that employ H-1B workers.

INS Releases Chapter VII Of Yearbook
INS released Chapter VII of its forthcoming 2000 Statistical Yearbook which contains several interesting tables putting immigration in historical perspective. One of the interesting items in the report is this quote "The juxtaposition of constant in-migration with increasing emigration throughout the last 70 years of the next century yields a decline in the numerical level of annual net migration to the United States, and an even greater decline in the impact of this component relative to overall population size." In other words, the population impact of immigration may be less than commonly believed.

DOL Releases Guidance On Prevailing Wage
The Department of Labor released Training and Employment Guidance Letter No. 5-02 on prevailing wages. The Letter says "General Administration Letter (GAL) 2-98, dated October 31, 1997, provided general guidance on how prevailing wages are to be determined for the purposes of foreign labor certification non-agricultural programs. One of the major concepts discussed in that GAL is that of "skill levels in wage determinations." We have been informed that the process of determining skill levels remains one of the least understood and, therefore, most controversial elements of the prevailing wage determination process. The attached questions and answers are intended to clarify the more pervasive of the questions regarding determining skill levels." For TEGL 5-02, please click here. For the Q&As which form the heart of the DOL guidance, please click here.

BALCA Says CO's Failure To Consider Employer's Amendment Which Was Within CO's Parameters Was Arbitrary
In the Matter of Zebra Trading Co, No. 2001-INA-00051 (BALCA, Aug. 7, 2002), the Board of Alien Labor Certification Appeals said that when the Certifying Officer (CO) picked the title of Sales Manager instead of Wholesaler II or Purchasing Agent, without any explanation for such decision, that appeared to be entirely arbitrary, and that the CO, without explanation, ignored the Employer's change of job and duties to Wholesaler II within the parameters given by CO, and that therefore the CO's failure to consider Employer's amendment was arbitrary.


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Islamic Or Islamist? Much Depends On The Answer
The Center for Immigration Studies released an essay by Daniel Pipes and Khalid Duran which says in its conclusion: "Because the immigrant Muslim community is so new, it is still very much in formation. Which way will the first generation of immigrant children turn? Will their dual identities as Americans and Muslims be complementary or contradictory? Will they accept or reject the Islamist program of changing the United States? Will they control the urge toward violence? More broadly, will they insist on adapting the United States to Islam, or will they agree to adapt Islam to the United States? Much depends on the answer."


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Letters to the Editor

Dear Editor:
I certainly feel for the young lady made the subject of the Mercury News article that was recently featured in Immigration Daily from ILW.COM. She was detained and shabbily treated in California by the INS. My wife has also been shabbily treated (though not nearly so badly) at the border and I feel for her. I would, however, like to make one observation. The article closes with the following quote: ``If you're going to bully citizens of your allies,'' she said, ``you're not going to have allies and you're going to fight the war on terrorism on your own.''

New Zealand may be a member of ANZUS, but they have banned our Air Force and Naval Personnel from their territory since the 1980s and have contributed in no meaningful way to security in their region or elsewhere for a generation, preferring to get a free ride from the efforts of Australia (and, to a lesser extent, the United States, Great Britain and France). It is not much of an exaggeration to say that they no longer have a functional military. Fighting the war on terrorism without their assistance is about what we are doing now.

Name Not Supplied

Dear Editor:
The Vermont SC denied an employment based case on the basis that the employer could not show sufficient income in the year of filing to pay the wage of the new worker. I argued to the AAU that the alien worker would replace the another worker and that the current worker's wages had to added to the employer's net income when considering whether or not the employer had the ability to pay the wage in the year of filing. The decision denying the appeal repeats my argument but then states that sufficient income was not shown. I cannot tell if the AAU simply rejects the inclusion of the replace worker's wage or concludes that even with the replaced worker's wage it is not sufficient. It appears to be the former. My reading of the decision is that you cannot add the replaced worker's wage to the company's bottom line in order to show ability to pay the wage. This makes no sense. The INS permits you to add depreciation back to the bottom line. Why not add back the replaced worker's wage which you would be paying to the alien if he or she were hired the day you filed the application? It is possible that the AAU found that even when you add back the replaced worker's wage, my client's bottom line was still not sufficient. It is just not so stated in the decision. (For the AAU Decision, please click here.)

Attorney's Name Withheld By Request


An Important disclaimer! The information provided on this page is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney. Send Correspondence and articles to editor@ilw.com. Letters and articles may be edited and may be published and otherwise used in any medium. Opinions expressed in letters and articles do not necessarily reflect the opinion of ILW.COM.

Editorial Advisory Board
Marc Ellis, Gary Endelman

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