Statistics And PERM
20 CFR 656.24(b)(3) states:
"...In making [the labor certification] determination, the Certifying Officer considers such things as: labor market information, the special circumstances of the industry, organization, and/or occupation ..."Although the DOL has not provided specifics on the methodology used in making its labor certifcation determinations, case law dictates that to the extent statistics (e.g. unemployment rate for industries and/or occupations) will be used to detemine specific cases, the DOL's action will be ultra vires. For more information on this, see Gary Endelman's article, "The Lawyer's Guide To 212(a)(5)(A): Labor Certification From 1952 To PERM". If anybody has gotten a PERM approval as of this writing, they are keeping it very quiet. Only time will tell. Read Immigration Daily to remain informed on the latest PERM developments.
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Litigation And PERM
As is increasingly becoming clear, attorneys will need to seriously
consider federal court litigation in some PERM cases. Under the PERM denial
regime, visits to BALCA, too, will likely become more frequent. While some
attorneys take a wait-and-see attitude, the field is open to those who are
willing to pit their knowledge of law and their clients' due process rights
against the DOL. Taking an ostrich approach and waiting for the dust to
settle will not help cash-flow, nor will it help in meeting payroll. So,
the ethical and smart thing to do is to file PERM cases, manually perhaps,
but file them nevertheless. In the late 1960s and the early-to-mid 1970s,
it was common to obtain labor certifications through the courts,
immigration attorneys filing labor certs filed mandamus actions routinely.
Perhaps those days are coming back again. The final session of "Filing PERM
Cases For Advanced Practitioners" will discuss litigation in the PERM
context. The deadline to sign up Tuesday, May 3rd. For more info, including
speaker bios, detailed curriculum, and registration information, please
see: http://www.ilw.com/seminars/march2005.shtm. (Fax version: http://www.ilw.com/seminars/march2005.pdf.)
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In Tchoukhrova v. Gonzales, No. 03-71129 (9th Cir. Apr. 21, 2005), the court said that Russian disabled children and their parents constituted a statutorily protected group and that a parent whio provided care for a disabled child may seek asylum and withholding of removal on the basis of the persecution the child suffered on account of his disability.
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Yes, your comment of the Mexican kids' robotic team is
very inspiring, but why don't you ever hightlight the
technical accomplishments of Asian immigrants that go
on daily? (see 4/22/05 ID comment). It is a well-known cliche that Asians and
Asian-Americans are leading the way in the technological fields throughout the world, and here in
the US. Walk into any American graduate enginnering,
physics, biology university department and what does
one see? Mostly Asian faces from countries like
China, Taiwan, Japan, Korea, and Malaysia. Almost
everyday some huge technical breakthrough at the top
O-1 visa level of scientific and technical
accomplishments is discovered or co-discovered by a
person of Asian descent. But, of course, it isn't
covered in the media and in publications like yours.
However, US patent law firms are certainly aware of
these. Statistics in California show that Latino students are
sadly uninterested in math, science, and enginnering
for the most part. A few, of course, go into these
technical fields, but so many choose to major in
fields like political science, sociology, etc. The
more to go on to law school and be "advocates" for
Latino-centric social changes, I suppose. This imbalance will create a have and have-not society
in the US in the future as we all know our society
will be dominated in the future by those high-paying
technical fields. Do you bring attention to this?
I was shocked to learn from your recent PERM Update comment (4/25/05 ID) posting that hundreds of denials have been issued by
DOL without any confirmed denials. I find this very strange since the online system first went into effect
on March 28, 2005 with a 45 to 60 days processing time. In addition, DOL, as stated in the regulations,
would first request more information or an audit with 30 days to respond before issuing a final decision. I
have spoke with several of my colleages who have also
said that they have not received nor heard of anyone
receiving any denials from DOL. Kindly provide
clarification regarding update information.
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