The Bible And PERM - On The Bleeding Edge
"To every thing there is a season, and a time to every purpose under the heaven:
We believe that the profound thought above is especially important to keep in mind when thinking of the new PERM rule. We have in mind here one particular application of the maxim "to every thing there is a season" - that now is not the time to be conservative in labor certification matters, and that aggressive interpretation and action is the correct course of action at this time of profound change in labor certification practice. In other words, those who are on the cutting edge of labor certs now will reap the benefits (for both their practices and their clients) in the future.
A time to be born, and a time to die; a time to plant, and a time to pluck up that which is planted;
A time to kill, and a time to heal; a time to break down, and a time to build up;
A time to weep, and a time to laugh; a time to mourn, and a time to dance;
A time to cast away stones, and a time to gather stones together;
A time to embrace, and a time to refrain from embracing;
A time to get, and a time to lose; a time to keep, and a time to cast away;
A time to rend, and a time to sew; a time to keep silence, and a time to speak;
A time to love, and a time to hate; a time of war, and a time of peace."
(Book of Ecclesiastes, 3 - Old Testament)
Unfortunately, being on the cutting edge sometimes means being on the bleeding edge. We were the first to raise the issue of "2 bites to the apple" under PERM - the issue of whether one can file the same application under both the current rule before March 25th and the PERM rule post-March 28th (see our comment in ID 12/30/04). When we raised the issue in the first few days after PERM was published, we questioned whether there would be 2 bites to the apple, basing our skepticism on the meaning of the word "identical" defined, contextually, as "same" at 20 CFR 656.17(d)(4). Our follow-up comment on this issue (see ID 1/31/05), we sought support for our skepticism in DOL's language in the preamble to the PERM rule at 69 FR 77342 (center column), which seemed to suggest that DOL would not take kindly to the 2 bites to the apple approach. In several dog-and-pony shows on PERM across the country, DOL personnel have apparently dodged most questions directed to them by an anxious regulated community eager to receive any scrap of an answer. However, the one question that DOL has apparently answered readily is the 2 bites question - and that answer has been a loud and unequivocal "No" - so say reports coming in to us.
Well, we have news for DOL. DOL is likely wrong on this one, as were we when we first looked at this issue. The brilliant Joel Stewart (author of the forthcoming "Labor Certification by Joel Stewart - THE PERM BOOK") has referred to the language we quoted from 20 CFR 656.17(d)(4) - and has drawn our attention to the fact that "identical" therein means "same", not "identical". This is important, and points to a way to definitely answer this issue. As defined by the rule, "identical" is NOT identical, merely "same". And DOL is bound by general APA practice on how "same" will be interpreted when defining "identical". In other words, DOL may have no choice under the law of the land but to permit 2 bites to the apple. There is, of course, more to it than that - this is not a word game. Immigration Daily will shortly publish a scholarly and exhaustive analysis of this point by Gary Endelman who, through a very different route, comes to the same conclusion - that DOL will likely permit 2 bites to the apple.
What are the practice pointers here? Well, we have two:
To sum up, don't delay, file today! Also, don't delay, order today!
We welcome readers to share their opinion and ideas with us by writing to firstname.lastname@example.org.
PERM Books Hot Off The Press
ILW.COM is proud to present books on PERM, incorporating both reference material and analyses.
Fully-Indexed PERM Rule. This is a free soft-bound supplement to 20/22/28 CFR Plus, a part of Patel's Immigration Law Library. This book includes: (a) A comprehensive and easy-to-use 12 page topical index to the PERM Rule by P.J. Patel, author of Patel's Immigration Law Library; (b) 10 Key Questions on PERM by Gary Endelman; (c) The PERM World: A Temporary Answer to a Permanent Immigration Problem by David Nachman; and (d) DOL Memorandum: Technical Instructions Regarding Unprocessed Permanent Foreign Labor Certification Cases. This free soft-bound supplement is hot off the press and ready for shipment now! For more info on this essential reference resource, and to order, see here.
THE PERM BOOK - Labor Certification by Joel Stewart. This book is a detailed, in-depth, section-by-section analysis of the PERM rule by noted labor certification expert Joel Stewart, and will include additional essays by Gary Endelman and other distinguished attorneys. This book is being written for labor certification practitioners, and is not intended to decorate shelves, it will instead be a practical reference tool that we anticipate will be frequently consulted in preparing cases under the new PERM regime. Orders for this book will be shipped according to the principle first ordered, first shipped (the expected publication date is April 2005). For more info, and to order, see here.
Breaking The Spell
Diane Sandford writes "Time to test your spelling skills. Anyone reading this column for fun will probably do well."
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State Bar Of Texas Monthly Minutes
The State Bar Of Texas Committee on Laws Relating to Immigration and Nationality released its most recent minutes (courtesy of Paul Parsons, Chairman).
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Immigration Law Conference
Save The Dates - April 25-26, 2005. The CMS-Fordham 28th National Legal Conference on Immigration and Refugee
Policy. Sponsored by the Center for Migration Studies (CMS) and the Fordham Law
School, in Collaboration with the Catholic Legal Immigration Network, Inc. (CLINIC) Program. Location: The Fordham Law School, New York, New York. Topics will include: Is Big Brother watching: using technology to improve both security and service, the impact that security checks and delays are having on artists, entertainers, schools and businesses, civil liberties and rights for nonimmigrants in the brave new post 9-11 world, international human rights developments related to migration, emerging issues in business immigration, workplace enforcement issues in the twenty-first century, prospects for immigration reform in the 109th Congress, plus 2 special programs: getting ready for legalization and getting ready for PERM: a nuts and bolts overview. Representatives from the government, nongovernmental organizations and private practice have been invited. For additional information, please go to http://www.cmsny.org.
Help Wanted: Immigration Paralegal
Moore & Van Allen, a general business and litigation firm with 240 lawyers in three offices, is one of the largest firms in North Carolina. We have an opportunity for a qualified individual to join our Charlotte office as an entry-level immigration paralegal. Full-time entry level paralegal position requires 1-2 years corporate immigration experience, excellent technical skills and attention to detail. Successful candidate will be integrated into a large corporate immigration team. Overtime required as needed. We offer a competitive salary and excellent employee benefits. Send resume in confidence to Candy Komornik at: email@example.com or by fax: (704) 339-5906.
Help Wanted: Immigration Attorney
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Immigration Daily's comment (3/3/05 ID) urged Congress to "legalize migration flows" in order to save social security. If, by this, you mean a "guest worker program" to legalize illegal aliens, then think again. Nothing is surer to push it under than the importation of millions more working poor and their families. The social security system as it now stands collects SS taxes as a percentage of your income. Those who earn less pay in less in absolute terms. However, it also pays out more, as a percentage of their income, to lower-income workers. It therefore will take more low-skilled workers than higher-skilled workers to support one higher income (citizen) SS recipient, and we will pay out disproportionately more to each lower skilled worker than they contribute. Then, comes the real crunch. Immigrants are not all that much younger than the US population in general. If we import millions of lower wage workers to "support" our social security system, who is going to pay their benefits? Yet millions and millions more unskilled immigrants? By all means, urge orderly and legal immigration of skilled or educated workers and their immediate families, even of unskilled workers provided employers will guarantee their support. But please, recognize that legalization or importation of large numbers of unskilled labor will only aggravate social security's problems, and the general problems we already have with paying for their education, medical care, and other social services. Particularly at a time that the President is pushing budget cuts in these very social services.
Can you please tell me what ILW.COM stands for? I assume from your webpage
that the IL is for Immigration Lawyers? What is the W for?
Editor's Note: Originally, ILW.COM stood for immigration lawyers on the web. We now like to think that it stands for immigration law website.
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