PERM Conundrums Continue
As we continue to study and try to fathom the newly published PERM rule, we
continue to run into more and more conundrums. A case in point is the new
requirement at the new 20 CFR 656.10(d)(1)(ii) that notice of the job
opportunity for which labor certification is sought must be published "in
any and all in-house media, whether electronic or printed" the proof of
which is "by providing copies of all the in-house media, whether electronic
or print". The key issue here is the word "media". As all readers of
Immigration Daily (itself an electronic newspaper) probably know, the word
"media" is in the process of a fundamental transformation, and even the
most knowledgeable commentators on media publishing (i.e. experts on
newspapers, music etc) have only an approximate and in-exact understanding
of what "media" means today. Take for example an intranet database of job
opportunities maintained by many of the larger companies - posting the job
opportunity here would be required under the new section referenced above
to comply with the requirement that the posting be in a location "in
accordance with the normal procedures used for the recruitment of similar
positions in the employer's organization". The problem is - is a database
"media". If so, how does one provide a copy of a database to prove the
posting? While it might appear that the easy answer is to give a print-out
of the listing, printing a database listing is not the same as the
regulatory requirement, for printing does not capture many of the data
elements of a database (for example how would the employer document the
duration of the posting?). DOL will assuredly need to provide guidance on
these other data elements not captured in a print-out, making the new
requirments more cumbersome than they already are.
Another example of the DOL's misuse of a term of art is the word "edition"
at the new 20 CFR 656.17(e)(1)(i)(B)(2) and the new 20 CFR
656.17(e)(2)(ii)(B). The issue, which we will not discuss at length
today, is that "edition" can mean not one, but many different things in
general publishing usage - and DOL may have opened up a can of worms here
without even intending to.
To prepare for PERM, we recommend the following:
Erratum: Immigration Daily will continue to remain on the cutting-edge of PERM
matters. However, the cutting-edge is sometimes the bleeding-edge, in other
words, we make mistakes from time to time. If we do, you can count on us to
timely correct our mistake. In our Comment in our December
29, 2004 issue, we erred in saying that revocations of certifications under the
new PERM rule are not appealable to BALCA. In fact, they are.
We welcome readers to share their opinion and ideas with us by writing to firstname.lastname@example.org.
Deadline For PERM Seminar Is Thursday, January 6th
The deadline to sign up for our PERM seminar led by Angelo Paparelli is Thursday, January 6th. For more info, detailed
curriculum, speaker bios, and registration information, see: http://www.ilw.com/seminars/december2004.shtm. (Fax version: http://www.ilw.com/seminars/december2004.pdf.) Attorneys with significant labor cert practices should remain on top of all labor cert matters at this time of rapid change! Don't delay, sign up today!
Third Open Letter To CIS Ombudsman
Angelo A. Paparelli shares his third open letter written to Mr. Prakash Khatri, Ombudsman, USCIS on how the administration of our immigration laws can be improved.
Keep on top of the latest in immigration law! Attend ILW.COM seminars! You can attend ILW.COM phone seminars from the convenience of your office! For more info on the seminars currently available, please click here: http://www.ilw.com/seminars/
Injunction For AZ Prop 200 Denied
In Friendly House, et al. v. Napolitano, et. al, CV 04-649 TUC DCB (US District Court of Arizona, Dec. 22, 2004), the court denied Petitioner's application for an injunction (courtesy of Mike Hethmon of FAIR).
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In my letter to the Editor on 12/29/04, I was wrong when it said that the Certifying Officer's decision on revocation of the labor certification would not be subject to appeal. Had I read 20 CFR 656.32(b)(3) more carefully, as I should have, the ability to take an appeal to the BALCA on this would have been evident. Ability to appeal denial or revocation of a labor cert is also provided for at 20 CFR 656.26(a)(1), labelled "BALCA Review of denials of labor certification".
A new year is upon us and a new way exists for foreigners to fraudulenty obtain green cards via an insecure system called PERM which replaces the old method of employer-based sponsorship. Why not just give the green cards away?
On December 22nd Tucson District Judge David Bury sent a wonderful 'Christmas gift' to FAIR and the immigration reform movement, a slam dunk victory against MALDEF and the other opponents of Proposition 200. This is a significant legal victory for our movement. The reasoning in the Order on federal preemption doctrine and on the constitutional and statutory basis for state restrictions on 'state and local public benefits' is identical to that advocated by FAIR and included in our brief to the court prepared in partnership with Mountain States Legal Foundation. In addition, the Order directly attacks the LULAC v. Wilson I & II decisions that nullified Proposition 187 in California. If Judge Bury's reasoning is upheld in the Ninth Circuit, I believe it will be possible for California activists to revive significant parts of that initiative as valid law. The Order also cites as authority the Merten case, decided earlier this year in Virginia, another important victory in which FAIR played an active supporting role, and the Vasquez-Alvarez case in the 10th Circuit, whose significance FAIR was the first organization to identify and promote.
The Order acknowledges our pending Arizona state court suit challenging the narrow interpretation of Proposition 200 by the Arizona Attorney General. Although the Order says in dicta that the Attorney General's opinion was well-reasoned, the federal court did not address our arguments, and I believe the analysis of the 1996 federal welfare reform act in Judge Bury's opinion significantly strengthens our case for an interpretation that is identical with federal law. It also will energize upcoming Arizona state legislation to override the Attorney General. Finally, the Order represents a green light for other states to enact similar (although perhaps more tightly drafted) measures.
Michael M. Hethmon, Staff Attorney
Well, it looks like the pro-immigration lobby has won another battle by having a new labor certification system called PERM become a reality to the dismay of many Americans looking to get off the unemployment line. This new system will allow foreigners to obtain labor certification approvals wihtin 1-2 months versus the 1-2 years it previously took. This in turn will allow them to apply for green cards and work permits almost immediately and take away even more jobs from qualified and available Americans. This can all be done during the time they are here on just a tourist visa. Why push for a new amnesty when this sham is now available?
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The Law Office of Scott A. Mossman is pleased to announce its new office in Oakland, CA. We will continue to focus on BIA appeals, federal court petitions, asylum, and family-based immigration. The Law Office of Scott A. Mossman is located at 1305 Franklin Street, Suite 201, Oakland, CA 94612. Tel (510) 835-1115. Fax (510) 835-1116.
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