BALCA, RIR, Ziegler Memos
Today's Immigration Daily carries a notable BALCA decision about which immigration attorneys may want to notice the following:
To read the BALCA case, see here.
- It is the first BALCA decision that we are aware of discussing the Ziegler memo, a Field Memo providing guidance to the Regional COs and SWAs on how to analyse RIRs in view of layoffs.
- It is one of the few BALCA decisions that considers a denial by the CO of the RIR application without a remand for regular processing.
- The Employer in this matter was Compaq Computer Corporation. Six of its employees' matters were consolidated in this decision.
- In a footnote, BALCA notes that "We observe, however, that GAL 1-97, GAL 1-97, Change 1, and the "Ziegler Memomoranda" in large part merely re-state existing law, are purely internal procedural policy pronouncements, and do not facially conflict with any existing DOL regulations or BALCA case law." This footnote may very well be an indication of the BALCA's approach towards administrative memoranda.
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Hurtling (and Hurting) Down the H-1B Road: All Parts Compiled
Angelo A. Paparelli provides an H-1B overview by addressing current Department of Labor enforcement activities and reviewing a selection of key Administrative Law Judge decisions.
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Immigration Law News
BIA Says Immigration Attorney Is Subject To Discipline By State Bar
In re Gadda, Attorney, 23 I&N Dec. 645 (BIA 2003) (September 25, 2003), the Board of Immigration Appeals (BIA) said that "an attorney who practices immigration law in proceedings before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security must be a member in good standing of a State bar, and is therefore subject to discipline by State bar authorities.
BALCA Decision In RIR Zieglar Memo Case
In the Matters of Compaq Computer Corporation, Nos. 2002-INA-249 thru 253, No. 2002-INA-261 (BALCA, Sep. 3, 2003), the Board of Alien Labor Certification Appeals said that "a Certifying Officer may decline to grant an RIR when an employer which has laid off numerous US workers, limits its considerations of qualified workers to those in a localized facility, and does not address the potential availability of workers from other locations." The BALCA noted that the questions asked in the notice of findings were clear and unambiguous, and that it was Employer that made the tactical decision to answer the questions narrowly.
Jurisdiction Exists To Review Discretionary Denial Of Permission Even If Further Judicial Review Is Unavailable
In Guan v. BIA, No. 02-4064 (2nd Cir. Sep. 25, 2003), the court said that "while the government argues that this Court lacks jurisdiction to review the discretionary denial of permission to file a successive petition under 8 USC 1158(a)(3), Petitioner may still pursue this relief even if further judicial review is unavailable" in a case involving Petitioner in danger of China's forced sterilization policy.
Illegal Immigration Critic Supports Driver Licenses For Undocumented Aliens
A San Diego Union Tribune op-ed columnist, a vociferous critic of illegal immigration, says that regulation of immigration is a federal responsibility and that drivers licenses are a state responsibility and are not connected to immigration.
Judge Makes Wife US Citizen
The Houston Chronicle reports "Surrounded by family and friends, US Bankruptcy Judge Manuel Leal administered the oath of allegiance to Betty Leal, his wife of 46 years, making her a citizen of the US."
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Letters to the Editor
Dr. Baer was puzzled as to why I mentioned blonde, blue-eyed Latinas. Justin had asserted that certain unspecified groups were attempting to "divide and conquer". He/she didn't specify who "dividing and conquering" what or whom, but given the nature of our "discussions" here, and his statement that he is African-American, I assumed, that he meant whites dividing and conquering Latinos and African-Americans. The point of most of my letter was that there are already major differences among Latinos, including race, and to categorize people as "Hispanics" or "Latinos" and to claim they are a "race" in need of protection or preferences is silly. There is no need for unspecified groups Justin's letter mentioned to divide and conquer groups which are already divided.
I agree with what seems to be Justin's position in his latest letter, that it should be ability and character, not race or ethnicity, which matter. I also agree with him that our immigration system needs to be overhauled, though apparently Justin believes in open borders (based on his statement that he doesn't care what it says on your I-94). The reality is that there are literally billions of people who would like to come here, many of them purely for economic opportunity, with no interest in adapting to our culture. In fact, there are many that would prefer we adapt to theirs, even when that culture produced the conditions which led them to leave their countries. The "welfare" aspects of our country also make open immigration impractical. I strongly believe in an orderly system of immigration, with enforcement of laws and rules. What those laws and rules are, I'm open to changing, but there simply must be some. It is our very failure to enforce the existing laws and rules which have led to the problems with family reunification that Justin's letter identifies. Up until the past 15 years or so, there didn't seem to be the kinds of problems we have now with timely processing. Part of the current problem is that the sheer numbers of people who want to come here simply cannot be processed by the current system. There's question as to whether they could be "absorbed" in terms of employment and providing services, without doing a disservice to our existing citizens. Another part of the problem is that it takes more time, effort, and resources to untangle the situations of people who have broken the complex immigration laws. When we've used "amnesties" such as that of 1986, or TPS, or 245(i), we have added to the administrative burden and made the wait even longer for those who are following the law. What it boils down to is that we need simpler immigration laws and categories (so that people can generally follow the law without needing a lawyer to explain to them what the law is), commitment to enforcement of those laws, and the money to handle timely processing and enforcement. That's a pretty big wish list.
I would really appreciate it if you could help me with the details of a classified placed on ILW.COM. It was in respect of a telephone box that reduces the stress of getting through to government departments by alerting one when the call gets through thus leaving one to do other things in the meantime. I have read through some of the classified placements in the archives but with no luck.
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You might want to consider running this letter to the Los Angeles Times editor somewhere in Immigration Daily.
Editor's Note: For copyright reasons, we only reproduce letters to the Editor that are sent directly to us by the letter writer to: firstname.lastname@example.org.
I would like to pass on to the readership the text of an INS Field
Memorandum which shows why I reject the inclusion of 245(i)
beneficiaries in the same pot with all "illegal aliens", when in fact
they have been given a quasi legal status. Our government is allowing
employers to sponsor them, and is allowing them to adjust status
notwithstanding their illegal status if they pay a fine. Furthermore,
in an April 27, 2001 Memo Michael Pearson instructed the INS field
offices "not to initiate removal proceedings against an individual who
is an alien eligible for adjustment under section 245(i), based solely
on an immigrant petition, labor certification application or adjustment
of status application filed by or on behalf of that alien....seeking to
legalize the alien's status under 245(i)." The Memo goes on to state
quite explicitly that " this guidance is intended to ensure that
individuals eligible for the benefits of section 245(i) of the INA and
relatives or employers eligible to file immigrant petitions or labor
certifications on their behalf, will not be deterred from initiating
that process through fear that their filing will be used to identify and
remove them." How much clearer does it need to be? Our government has
passed legislation and issued field office guidance which gives at least
these "illegal aliens" in the process of 245(i) adjustment a measure of
protection against deportation by saying that they will not hunt them
down and will not prosecute them solely on the basis of their illegal
status. If they come to the attention of the Service through routine
enforcement actions or because they committed other crimes, they will
continued to be processed according to established procedures.
Therefore, while not creating any right or benefit enforceable by law to
anyone in removal proceedings, the 245(i) legislation and this INS Memo
serve to illustrate, if nothing else, the philosophical view of
Congress and the Agency with regard to the comparative insignificance of
illegal status vis a vis other violations of law. It also illustrates
their view that the economic and social benefits of 245(i) outweigh the
moral or ethical problems of a virtual amnesty. As law-abiding
citizens, we must also abide by this law, which allows those aliens who
have successfully qualified for labor certification to stay here and
work free of fear and I would hope, free of prejudice, until their
cases can be completed.
In response to Justin's comments, I guess since not every Arab is a terrorist the US should let them all in illegally, right? Since not all Latinos are serial rapists then the US should just let in all illegal Latinos right?
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