Definitive Article On Labor Certs
We are pleased to bring to Immigration Daily readers one of the most important articles that we have carried - "The Lawyer's Guide To 212(a)(5)(A): Labor Certification From 1952 To PERM" by Gary Endelman.
A fundamental mistake in the immigration law community is mis-interpreting the Pesikoff decision. Contrary to conventional wisdom, the statute unambiguously places the burden of proof upon the DOL, not the employer, in labor certification cases. DOL has developed a micro-managed recruitment process as the heart of the labor certification program for the sole reason of discharging this burden of proof. Whether such micro-management is within the DOL's authority is certainly open to question - and is quite likely ultra vires. It should also be remembered that Congress contemplated a statistical way to determine labor cert applications, not the individualized system that attorneys are currently familiar with - raising further questions whether DOL is acting outside the bounds of its lawful authority. Furthermore, the statute says that the determination by DOL must be made "at the time of application for a visa and admission to the United States" - thus raising the question whether a system which is designed by DOL to yield a final determination (including BALCA appeal) of any time period in excess of 6 months is on this count alone ultra vires. It is important to remember that on these points, it does not matter whether you consider the current labor cert regs, or the forthcoming PERM regs, e.g. both sets of regs are united in that they both micro-manage recruitment for the only reason of assisting the DOL in meeting the burden of proof it needs to deny any labor cert. The centralizing/federalizing of the labor certification program, currently under way, may result in unprecedented numbers of denials - and lawsuits are the only way to stop this. For attorneys contemplating litigation, this article has 131 footnotes to assist with source material in producing an appropriate brief. We commend this article to the attention of anyone seriously interested in labor certification, and/or with a serious stake in the labor cert program.
To read the article, see here.
The TG Memo - On The Road To PERM
DOL's Transitional Guidance Memo sets in motion a chain of events unlike any seen in the labor certification field in recent memory. Much of the structural changes (as opposed to substantive changes) contemplated in the proposed PERM rule are already in the process of implementation as a result of the TG memo. The TG memo will be among the important issues discussed at the final session of "Preparing For
PERM With Joel Stewart". The deadline to register is Wednesday, November
3rd. For more info, detailed curriculum, speaker bios, and registration information, see: http://www.ilw.com/seminars/september2004.shtm. (Fax version: http://www.ilw.com/seminars/september2004.pdf.)
The Lawyer's Guide To 212(a)(5)(A): Labor Certification From 1952 To PERM
Gary Endelman presents the definitive article on labor certification.
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DHS Announces 18-Month Extension of TPS For Honduran And Nicaraguan Nationals
USCIS issued a press release announceing an 18-Month extension of TPS for Nationals of Honduras and Nicaragua.
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