PERM And BALCA
In a BALCA decision we carry today, the Certifying Officer (CO) issued a Final Determination denying Employer's labor certification for a household manager citing combination of job duties. In issuing the denial, the CO did not address the Employer's timely rebuttal evidence and arguments. Had the Employer committed such an error, BALCA would not have hesitated to issue a final administrative denial. However, COs apparently get many bites at the apple and BALCA remanded this case so that the CO could have her bite. The imminent PERM regulation offers DOL an opportunity to improve the BALCA appeal process as part of the improvement in the efficiency of the entire labor cert program. The key weakness in the BALCA process today is that its decisions, even its en banc decisions, are not binding on COs. This stands in marked contrast to the situation with the BIA and the IJs. Making at least en banc BALCA decisions binding on COs would bring greater predictability to all parties involved in the labor certification program. Perhaps, if PERM does not already address these issues, DOL will turn to these in a future rule-making.
"Are We All Certifiable?" -- An Insider's Tour Through The Maddening World Of Labor Certification
The loopy challenges of modern-day labor-certification practice have caused
U.S. employers and their immigration attorneys to identify with Randle
Patrick McMurphy, the all-too-sane character portrayed by Jack Nicholson in
the 1975 classic film One Flew Over The Cuckoo's Nest. In today's deranged
world of alien labor certifications, rules are announced, then rules are
reversed, procedures are proclaimed, and then they morph into alternate
incarnations. The inmates in this virtual asylum are chanting in a frenzy,
"PERM is coming, PERM is coming"; "Backlog Reduction, Backlog Reduction",
but PERM never seems to arrive, and backlogs grow ever larger.
Despite the seeming insanity of the real world practice of
labor-certification, foreign workers still clamor for certified ETA-750s,
and legal strictures must in all events be honored. Rather than joining
the lunatic fringe, shake off your anomie and sign up with ILW.com for a
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FIRST Phone Session on February 25:
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- Grappling with Ever-Higher Wages in the New OES Prevailing Wage
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- Quo Vadis, the SWAs: Is There Life after PERM?
SECOND Phone Session on March 18:
- Standard vs. RIR processing vs. Holding One's Breath for PERM
- Recruiting and Filing Today While Preserving Options for PERM
- Fear-Factor: Managing Employer and Alien Expectations
- Re-Arranging Deck Chairs on the Titanic?: Regional Processing and
- The Carlson What-If Scenarios: Re-Advertising with Newly Stated,
THIRD Phone Session on April 8:
The deadline to register is Tuesday, March 16th. For more info, including detailed curriculum, speaker bios,
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- BALCA Balking - a Full Contact Sport.
- We Gotta Get Out of This Place: Labor Certification and Portability
- Will Justice Prevail?: Advanced Prevailing Wages Issues - Pre- and
- Safely Saying Goodbye: Lawful Grounds for Rejection of U.S.
- Staying Out of Club Fed: Liberty-Preserving Strategies in This Era of
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Immigration Law News
USCIS Says H-2B Cap Is Reached
The USCIS announced that this year's 66,000 new worker H-2B cap has been reached. Effective March 9, 2004, USCIS will no longer accept any new H-2B petitions for FY 2004.
California Crime Of Stalking Is Crime Of Violence
In Matter of Malta, 23 I&N Dec. 656 (BIA 2004), the Board of Immigration Appeals said that California's crime of stalking was a crime of violence under 18 USC 16(b) and was therefore an aggravated felony under 101(10(43)(F) of the INA.
CO's Challenge Is Deemed Successfully Rebutted Where FD Does Not Address Employer's Rebuttal
In the Matter of Jean-Francois Dreyfus, No. 2004-INA-268 (BALCA, Feb. 23, 2004), the Board of Alien Labor Certification Appeals said that because the Final Determination did not address Employer's timely rebuttal evidence arguing that the Household Manager position should be considered a single occupation in today's world, the CO's challenge may be deemed to be successfully rebutted (the CO had argued that there was a combination of job duties).
National Security Advisor Dr. Rice Says U.S. Can Have Welcoming Immigration Policies
During remarks at a speech in Kentucky, National Security Advisor Rice said, "We believe that we can have immigration policies that are welcoming. The US is a country that I think thrives because we have people from all over the world, and it thrives because people from all over the world want to come here. And we want people to continue to want to come here."
American Allies Express Anger Over US-VISIT
Fox News reports "Eastern Europeans who have helped out in the war in Iraq are taking particular issue with the requirement that tourists from their countries get fingerprinted and photographed at US ports of entry."
Immigration Official Who Referred To Detainees As Scumbuckets Is Appointed To High-Ranking Post
The Miami Herald reports "A federal immigration official who once referred to detained immigrants as "scumbuckets" has been appointed to oversee the Miami office charged with detaining and deporting foreign nationals."
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Help Wanted: Legal Assistants
Leading immigration law firm, Tindall & Foster P.C., seeks qualified
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Immigration Law Books
Reserve your 2004 copies now. No immigration attorney should be without a complete, up-to-date reference library for all his/her primary resource needs. The 2004 edition of The Whole Act – INA, provides annotations, footnotes, editorial notes, updated Topical Index with a separate Index of Appendices, and 49 Appendices, to help both novice and experienced practitioners alike efficiently navigate the complex labryinth of immigration statutes. The 2004 edition of regulations in 2 volumes (both immigration regulations – 8 CFR – and all immigration-related regulations of the DOL, DOS, and DOJ) includes the latest changes in the regulations + handy and most detailed Topical Indices for each. The 2004 edition of Patel's Citations, covering the history and treatment of all reported administrative precedent decisions under immigration and nationality law, keeps you abreast of the status and standing of all such immigration citations (e.g., reversed, affirmed, modified, followed or not followed, criticized, distinguished, etc.). This entire reference library consisting of the Act, Regulations, and Citations, is an indispensable reference tool that you will reach for day after day. Reserve your 2004 editions now. We offer a 30-day money-back guarantee. If you're not satisfied with your purchase within 30 days of receipt, you can request a full refund - no questions asked. The 2004 editions will arrive hot off the presses (target publication March 2004). For more information or to reserve your pre-publication advance copies see here.
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Letters to the Editor
Immigration Daily's March 10, 2004 issue reports that DHS Eliminates Mexican TN Nonimmigrant Numerical Cap and that the rule also eliminates the LCA requirement. DHS has only published guidance on a law that took place on January 1, 2004.
NAFTA had sunset provisions since its enactment that provided that the
elimination of the 5,500 cap and H1-B like requirements (including LCAs) for
Mexicans that applied for a TN visa would take place 10 years after the
entry into force of NAFTA. The sunset date was 01/01/2004. Immigration
attorneys that deal with consular processing and TN-2 visas in particular
have known of this for some time now. Consulates had been accepting TN2
applications similarly to TN1 (Canadians) since January 1st.
Antonio Maldonado Leyva
Tijuana, Baja California, Mexico
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