Carlos Uy's Slippery Slope
A BALCA decision today is novel and raises some troubling points both for the current labor certification regulations and the much talked about PERM regulations soon to come. In this BALCA decision (see link below), the CO appears to decide for the Employer how many of its total supermarket employees should perform the function of meat cutting. 17 out of 36 of the Employer's staff are meat cutters, but based on a survey that the CO's office conducted specifically for this case, the CO determined that no more than 9 employees should be meat cutters. The CO used the "totality of circumstances" test articulated by the BALCA in Carlos Uy in denying the labor certification application. This test abandons the bright line established by the regulations and leads to a slippery slope down which the labor certification program seems to be headed. Since the proposed PERM regulations contemplate an audit regime, we wonder whether this BALCA decision portends similiar actions in the future.
Labor certification developments bear close watching and Immigration Daily will be sure to bring them to you.
Curriculum For Invest, Build, Digitize
The curriculum for ILW.COM's new seminar "Invest, Build And Digitize: Immigration Law Opportunities In The Venture-Capital, Manufacturing And Information-Technology Sectors Of The U.S. Economy" is as follows:
The media and the Web are awash these days with reports on the jobless recovery and the harm to the U.S. economy caused by the export of manufacturing and white-collar jobs abroad. A few quieter voices continue to champion the old-fashioned values of employment-based immigration and the need to adopt enlightened government policies that help promote innovation, build new industries and create jobs for American workers.
While the pundits pontificate and Congress temporizes, immigration lawyers have no time to await developments. They must act now and continue to develop ever-more thoughtful strategies that utilize current provisions of the immigration laws as legitimate vehicles for employers to sponsor bright, talented and hard-working foreign nationals to fill critically important slots in American industries.
In response to this need, we present a three-part national teleconference focusing on three of the most important sectors of the U.S. economy: Venture Capital and Investment; Manufacturing; and Information Technology. Moderated by nationally-renowned business immigration lawyer, Angelo A. Paparelli, the teleconference will feature leading immigration practitioners with several years of real-world experience in serving these industry sectors.
FIRST Phone Session on October 30:
Focus on Manufacturing Industry Employers and Occupations
- Selecting the Best Immigration Options for Joint Ventures and Collaborations
- Identifying Creative approaches to Allow Secondments of Executives, Managers and Specialists
- Brainstorming on Current Issues and Solutions for E, H-1B and L-1 Aliens in Manufacturing Occupations
- Choosing Strategies for Employment-Based Immigrants in Manufacturing
- Identifying Solutions for Engineers, Blue-Collar Workers, Trainees and Business Visitors
- Using Case Study Examples: Immigration Opportunities for Automotive Importers, Manufacturers, Suppliers, Distributors and Dealers.
SECOND Phone Session on November 5:
Focus on Employers and Occupations in Investments and the Venture-Capital Industry
- Using the B-1, WB and Other, More Untraditional Nonimmigrant Options to Establish the U.S. Enterprise
- Selecting the Best Approach: E-1, E-2, L-1, H-1B and O-1 options for Entrepreneurs, Small Businesses and Global Companies
- Dare We Try? - Examining EB-5 Employment-Creation Investment Options
- Addressing and Resolving Ability-to-Pay Challenges for New Businesses
- Developing a Bullet-Proof Business Plan
- Representing the Venture Capitalist, the Investment Syndicate or the Joint Venture
- Transitioning the Entrepreneur to Green-Card Status Despite Matter of Modular Container Systems, 89-INA-228 (BALCA July 16, 1991) and Obstacles in the Forthcoming PERM Rule
- Deploying Best Practices for Jobs in the Financial-Services Industry
THIRD Phone Session on December 4:
Focus on Employers and Occupations in the Information-Technology Industry
- Establishing Immigration Eligibility for Evolving and Never-Before IT Occupations
- Helping Aliens with No Degrees and Degree-Mismatches Move into IT
- Identifying Tips for the Smart-Set in this year's H-1B "Race for the Numbers"
- Defending Against BICE and DOL/WHD Investigations in the IT Industry
- Using H-1B and AOS Portability in the Ongoing IT Job-Hopping Escapades
- Remaking Love Story: Seventh-Year Strategies and Beyond ("Love is Never Having to Say Goodbye")
- Managing Expectations and Speeding-Up the Processing of Visa Applications and Visa Screening for Country-of-Concern Aliens and Workers with Technology-Alert-List Problems
The deadline to register is
Tuesday, October 28th. For more info, including detailed curriculum,
speaker bios, and registration information, please see: http://www.ilw.com/seminars/october2003.shtm. For the fax version, please see: http://www.ilw.com/seminars/october2003.pdf
Congress Passes 5-Year Extension Providing Broad Eligibility For Religious Workers - While The USCIS Administratively Restricts Visa Issuance Via Narrow Interpretations
Bernard P. Wolfsdorf and Cliff Rosenthal write "On October 15, 2003, President Bush signed into law H.R. 2152 (P.L. 108-99) extending the special immigration status of religious workers for another 5 years."
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Immigration Law News
Rep. Lofgren Advocates Immigration Legalization Protecting Children
Rep. Lofgren (D-CA) introduced both the Ameriasian Naturalization Bill and the Unaccompanied Alien Child Protection Act of 2003, legislation that confers citizenship on Amerasian children of American servicemen and minimum standards for the care and custody of unaccompanied alien children.
CO Says Its Fact Finding Reveals That Employing Four Meat Cutters Is Luxury
In the Matters of Supermercado La Favorita, Inc., No. 2002-INA-230 to 235 (BALCA, Sep. 9, 2003), the Board of Alien Labor Certification Appeals in a consolidated matter involving the labor certification applications of ten meat cutter positions for three store locations said that "when the CO invokes [20 CFR] 656.20(c)(8) as grounds for denial of an application, adminstrative due process mandates that the CO specify precisely why the application does not appear to state a bona fide job opportunity." The BALCA noted that the Board would heighten its scrutiny of fair notice when section 656.20(c)(8) was cited as grounds for labor certifcation denial.
President Bush Sets FY'04 Refugee Target To 70,000
President Bush issued a memoranda setting the admissions of refugees to 70,000 for fiscal year '04.
Conspiracy To Transport And Harbor Illegal Aliens Is An Alien Smuggling Offense
In US v. Martinez-Candejas, No. 02-4123 (10th Cir. Oct. 21, 2003), the court said that conspiracy to transport and harbor illegal aliens constituted "an alien smuggling offense" under USSG 2L1.2(b)(a)(A)(vii). The court also said that a prior conviction for conspiracy to transport and harbor illegal aliens qualifies as "an alien smuggling offense for profit" for purposes of a 16-level sentencing enhancement under USSG 2L1.2(b)(a)(A)(vii).
Mexican President Fox And President Bush Agree To Resume Immigration Talks
The Contra Costa Times of Northern California reports "President Bush and Mexican President Vicente Fox, putting an icy rift over Iraq behind them, met Monday for the first time in a year and agreed that their governments would try again next month to tackle the touchy issue of immigration."
SEVIS Denies 200 Foreign Students
The Government Computer News reports "The Homeland Security Department denied entry this year to 200 foreigners who attempted to enter the country as students, undersecretary for Border and Transportation Security Directorate Asa Hutchinson said today."
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Letters to the Editor
It is truly unfortunate that Gary Endelman's scholarly, but
contradictive, article, "Elephant In The Room", concludes that in the present dilemma between the desires of illegals and the rule of law that
amnesty is inevitable and that our national will, law, social fabric and
sovereignty must be subordinated to that of foreigners, special
interests and to cover the failures of Congress in enforcing immigration
policies. He correctly notes the futility of any form of amnesty which
only encourages further illegal entry and amnesties and the corrosive
effect upon our social fabric and rule of law and points out the need to
reform immigration policies to avoid future amnesties. But he errs not
only in acquiescing to a amnesty now, but also in the type of reform
that most of America wants (as opposed to special and political
interests). We can no longer absorb and subsidize the huge numbers that
are coming here or would like to. The reform that is needed is a return
to limited, controlled and allocated entry policies with a time out
applying to Mexico, not to "regularize" the invasion. The latter is
something desirable for our digestive systems, not to excessive
immigration and lawbreakers. Just one more amnesty and then never again
was the lie that we have heard before. This is no different than
Congress deceitfully saying, just let us raise the debt limit one more
time and then we will control our spending. To blame US or our policies
for illegal entry is specious. The bank robber who followed suit would
demand that the bank change their policies to parallel the robbers
desire for "a better life" and to make his work easier, less risky and
with full pardon (and possibly even with an cross nation march to
Washington). It is also a misrepresentation to generalize that "all
they want to do is come here and work". Many come here to commit crimes
and do and all who violate our borders begin their American experience
with a criminal act against US. How can this possibly be the basis for
any amnesty or citizenship? How can the callous pandering to illegals
for political or profit motives be justified in view of the greater
parameters involved? How is the Rule of Law preserved or honored by
making a mockery of it? How is the truth obviated by marginalizing it?
The way to deal with an elephant in the room is to remove it and to
repair the reasons it came to be there, not to feed it, make it a
permanent resident and allow it to make a mess and take over or destroy
the house. However, an invited dog, cat or other manageable
relationship is usually welcomed if not coerced or untenable. Such a
policy is not anti-house guest, but merely a restrictive one that limits
non-residents in a reasonable manner that secures the integrity,
interests and property rights of the homeowner. The real "elephant in
the house" that so many ignore is the truth that a home or a nation
should be secured for the benefit and interests of its owner/citizens,
not others. That many continue to exhibit a condition of xenomania
against the interests of the citizen owners of America is violative of
reason, law, sovereignty, our rights and what we have long laboriously
struggled to build by a huge sacrifice of toil, blood, sweat and tears
of our own. To capriciously dilute this is beyond being inappropriate.
R. L. Ranger
The Lutheran Immigration and Refugee Service issued the following news release.
President Bush signed the fiscal year 2004
presidential determination on refugee admissions October 21, setting the
target for admissions of refugees at 70,000, of which 50,000 are allocated
to specific geographic regions as follows: Africa-25,000; East Asia-6,500;
Europe and Central Asia-13,000; Latin America/Caribbean-3,500; Near
"A refugee admissions level of 70,000 for FY2004 is good news!" said
Ralston H. Deffenbaugh Jr, president of Lutheran Immigration and Refugee
Service (LIRS). "Fortunately, low refugee arrival numbers in FY2003 did not
change future US commitment to the refugee resettlement program." The
United States admitted 28,422 refugees last year. "Numbers in the last quarter of FY2003 showed an upswing. We know
that there are active efforts on behalf of Somali Bantus in Kenya, Liberians
in West Africa and Colombians in Latin America. We urge that these efforts
continue as well as reaching out to others for whom resettlement will
provide a new beginning. Among them are Burmese in Thailand and India and
Bhutanese I recently saw first hand in Nepal. And refugees in many countries
need to be reunited with close family members already in the US so families are not separated any longer than absolutely necessary.
"We support the administration's efforts and pledge to do everything
we can to get US resettlement back on track so we as a nation can use the
resources we have to bring new hope and new life to those overseas who have
no other durable solution."
Lutheran Immigration and Refugee Service
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