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Immigration Daily July 2, 2008
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Comment

Divertimento

A recent article in the Wall Street Journal contains quotes from the Solicitor of Labor, the Chief Legal Officer at DOL, DOL's 3rd highest position (ranking right after the Secretary and the Deputy Secretary):

"Mr. Jacob, the Labor Department's solicitor, said the department understands that companies need to talk to lawyers to ensure they abide by their legal duties. But "the assessment of whether someone is qualified for a job is not, as a general matter, a legal question," he said. Often, he said, companies don't really want to find qualified U.S. workers, because they already have a foreigner in the job. "We have to be particularly cognizant of the fact that there can be real incentives for employers to not make good-faith assessments of U.S. workers," Mr. Jacob said."
Letís step back and assess where the entire DOL imbroglio now stands.
  • The matter is now at the highest levels of DOL.
  • Now that the Fragomen firm has broken its silence (see Fragomen statement ID 06/30/08), it appears that DOL has no smoking gun. There was apparently no aberrant behavior of a bad apple or two in a firm of over 1,000 people. Fragomen has apparently been doing exactly what the rest of the bar does - applying the law to the facts of the client's case, to help the client achieve its goals in a lawful manner.
  • DOL is clearly looking for a face-saving way out, but there may not be one. DOL's predicament is of its own making, here's why. In interpreting the law, reasonable people can disagree. That's why it is occasionally necessary to make a trip to court, to get a definitive interpretation. If this was the extent of DOL's error, it would arouse concern, but not ill-will. Further, if DOL had used selective audits to explore its theory and find a pattern, then even a firm-wide action would have had merit. In fact, in deference to every law enforcement agency's legitimate need for the support of the community, many attorneys had assumed (prior to the Fragomen statement, see ID 06/30/08) that perhaps there was a smoking gun, that perhaps in such a large firm, someone somewhere had goofed. Now it appears that this was not the case, and that DOL over-reached here. But even this would provoke merely a rebuke, a reprimand, not a public outcry. The real error, for which DOL is now paying, is that it set up a media circus by issuing press releases based on vapor instead of facts, thereby attacking a law firm's reputation using unfair means. The power of the government is much greater than any law firm, no matter how large, and that is precisely why such power must be used prudently, and with cause. Abusing this public trust in prudent enforcement is DOL's central error and is the reason why DOL is particularly friendless at this juncture.
  • In the days and weeks to come, it is entirely likely that the Fragomen audits will end, and everyone will go back to business as usual (unless DOL wants to dig itself into a deeper hole for a program with little legal defense). But things will not be the same, no matter how much anyone wants them to be. For one, DOL's whole reason for choosing this particular firm, and attacking them so publicly was to show that PERM enforcement had teeth. DOL now stands revealed to the world as a toothless tiger, and its task of deterring such fraud as occurs in the PERM process is now that much harder. Like every law enforcement agency, DOL needs the support of the community to be successful in its mission. But such support cannot follow when the government acts unfairly and lightly attacks reputations built up by hard work over decades.
  • Because of its ripple effects, and its likely future reaction (see below), the DOL action will almost certainly result in extensive delays, not just for right now, but down the road too. The days of quick PERM processing are over.
  • Partly because DOL has lost this battle, and partly because harassing employers is both a hobby and a job for some at DOL, we expect that intrusive audits, especially on business necessity and lawful rejection, will dramatically increase in the months and years to come. In a sense, we are back to the pre-RIR days. With the benefit of hindsight, PERM can now more accurately be assessed as a kind of RIR but with less due process. The idea that computerized processing would somehow produce a faster process has bitten the dust.
  • Everything at issue here arises from the fact that DOL requires that a labor cert application state the name of a specific alien beneficiary. So committed, the employer's interest in the alien's eventual employment must reasonably be inferred. Given this interest, the only reasonable meaning of "good faith recruitment" is that all US workers be rejected solely for lawful reasons. In other words, the labor cert recruitment process cannot be a search for a US worker, but is an attempt at lawful rejection. This is doubly so since DOL's own policy bars "diversion", i.e. hiring a US worker while still seeking certification for an alien for that same position. Small employers are particularly affected by "diversion" since they do not have multiple openings to skirt around this issue by hiring the US worker for one opening, and the alien for another. In other words, even when a small business finds a great US worker for which a new opening can be created on the spot, DOL bars hiring the US worker on penalty of losing the alien worker, in whom the employer has already expressed an interest by beginning the process in the first place. So this is manifestly not a recruiting process for US workers. It is merely a process where the employer has to EITHER (1) lose the alien worker OR (2) ensure that US workers are rejected solely for lawful reasons. Since the employer who has begun the labor cert process does not want (1), naturally it turns to its lawyer to accomplish (2). And that's why what DOL calls "labor cert recruiting", that which is best understood in law as a "labor market test", is actually best understood in common sense as "DOL's circus". This circus features US workers and alien workers as pawns and US employers as forced charade-players. Nor should it be supposed that DOL could suddenly cure this process by amending the rules to permit "diversion". If DOL did so, practically all applications would be recruitment-proof, since many employers would welcome the opportunity to use money currently poured down the drain in newspaper ads to actually recruit US workers, while of course holding on to the alien. In other words, if DOL were to permit "diversion" its vaunted labor market test would be exposed as completely futile, and its role vis-a-vis US workers exposed as that of a rubber-stamp. For reasons explained in this para, "diversion" is a critical issue in this matter. The talk of the day is about the abrogation of the employer's right to counsel thru APA violations, but in the long run such abrogation is not a fundamental concern, since the courts exist to reverse such errors by the Executive Branch. In contrast, "diversion" is a fundamental concern in that it calls for an examination of the entire premise of labor control in immigration. Sooner or later, Congress will turn to legalization and to increasing the quantity of legal immigration, and will need competent advice as to where and how to impose labor controls therein - and an enlightened discussion of "diversion" will serve everyone, DOL included, well. In this limited sense, June 2008 has been a catharsis, leading to a study of what would otherwise have been a dry, mind-numbing study of "diversion".
As we enter the end game of this saga, all involved, DOL included, want to put this whole matter behind and move forward. In the spirit of mutual healing, we will publish in a future issue constructive suggestions for all parties to consider in beginning a new Chapter. As we have said before, stay tuned to Immigration Daily!

We welcome readers to share their opinion and ideas with us by writing to editor@ilw.com.


Focus

Relief From Removal: A Definitive Manual For Winning Cases

The following is the table of contents for this definitive work which is now being shipped:

  • Chapters: Removal proceedings; Grounds of deportability; Grounds of inadmissibility; Contesting removability; Adjustment of status; Waivers of inadmissibility and deportability in Removal proceedings; Section 212(c) and Cancellation of Removal for Lawful Permanent Residents; Cancellation and Suspension for Non-Permanent Resident Aliens; Asylum, Withholding of Removal and protection under the Convention Against Torture; Voluntary departure; Naturalization as a defense to Removal; Administrative review of Removal Orders; Judicial review of Removal Orders
  • 23 Appendices include: Sample cover letter and instructions for requesting a FBI criminal record check; Sample Motion to Suppress; Sample Motion to Dismiss; Sample Brief in Support of Motion to Terminate Removal Proceedings; Sample Motion to Terminate to Proceed on an Application for Naturalization Pursuant to 8 CFR 1239.2; Sample Notice of Appeal from a decision of an Immigration Judge; Sample Motion for Extension of Time to File Brief to BIA
  • CD-ROM has 600+ important documents including: key BIA & Federal cases, selected USCIS/ICE memos and DOS cables, forms from USCIS & EOIR, relevant regulatory sections from 8 CFR & 42 CFR, significant statutory provisions from the INA, 18 USC & 28 USC, Links to informative internet resources, etc.
For more info, and to order, please see here. For the fax order form, see here.


Article

The Debate Over Non-Citizen Voting: A Primer
Stanley A. Renshon for the Center for Immigration Studies writes "There is no more iconic feature of American democracy and citizenship than the right to vote."

Bloggings: July 2, 2008
Joel Stewart shares the latest entries to his blog.

To submit an Article for consideration, write to editor@ilw.com.


News

USCIS Launches Online Service To Check Status Of FOIA Requests
USCIS announced that it has launched an online FOIA Request Status Check service providing customers a quick and secure way to check the status of requests they have made under the Freedom of Information Act (FOIA).


Classifieds

Help Wanted: Immigration Paralegal
Knoxville, TN - Kramer Rayson LLP seeks an immigration paralegal with experience in the immigration field. Job responsibilities include the preparation and filing of business and employment-related immigration documentation and communications with government agencies and clients. Qualified candidates must have excellent writing, technical, communication and organizational skills with an attention to detail. BA or MA preferred. Please e-mail your confidential resume with your specific experience, salary requirements and writing sample to Marc Upchurch, Executive Director at mupchurch@kramer-rayson.com or fax number (865) 522-5723.

Help Wanted: Immigration Paralegal
Dallas, TX - Law Offices of Richard A. Gump, Jr. P.C., an immigration law firm located in the Galleria area, seeks a full time immigration paralegal. Ideal candidate has a BA degree and a minimum of three years experience preparing employment-based and family-based cases. Please fax resume to: 972-386-9547 or email to: rickgump@rickgump.com.

Help Wanted: Immigration Paralegals
Ridgewood, NJ - Nachman & Associates, PC seeks Senior Immigration Paralegals and a U.S. Office Manager. For the Senior Immigration Paralegal position qualified candidates must have 3+ years of heavy business immigration experience. Senior Paralegal position requires direct client contact, strong communication skills, detail orientation, organizational skills, ability to meet deadlines, interpersonal skills, team-mindedness, customer service skills, PC skills, multi-tasking, and work under pressure. The U.S. Office Manager position will manage the paralegal staff and be responsible for running the U.S. offices. Candidate must possess 2+ yrs of management experience in a law firm and handle: employee orientation, vendors, compliance with firm policies, employee relations, organizing team meetings, and management of work flow and assignments, preparation of engagement letters, A/R and A/P, respond to clients, manage calendar of events. BA preferred. E-mail resume and salary requirement to david_nachman@visaserve.com specifying position in subject line. EOE.

Immigration Law Certificate
Master the complex and ever changing maze of immigration policies and regulations with the Immigration Law Studies Certificate Program offered by CUNY's School of Professional Studies. This graduate-level certificate program, consisting of (3) three-credit classes, offers students who complete it a comprehensive understanding of the laws, regulations, and processes surrounding the status of immigrants in the US, including family and employment-based immigration and deportation defense. It is designed for individuals working in law firms, companies, government agencies and nonprofit organizations where they interact with immigrants and immigrant legal concerns on a regular basis and would therefore benefit from greater knowledge of the laws and regulations surrounding immigration. Beginning this spring, the program is also being offered online. For more information on class schedules, tuition and fees, course applications and to register, see here.

J-1 Visa Program
Discover the ease and flexibility of the J-1 Trainee visa with AIESEC United States. For 50 years, AIESEC U.S. has offered foreign nationals the opportunity to grow both personally and professionally by sponsoring exchange visitor traineeships. Enjoy unparalleled customer service, including in-depth guidance on J-1 Trainee visa regulations and the changes effective July 2007. We also offer logistical and cultural reception services in locations nationwide. Expect a 24-48 hr. application processing time. The J-1 Trainee visa can be used for individuals to participate in training programs in the following fields: information media and communications, education, social sciences, library science, counseling and social services, management, business, commerce and finance, the sciences, engineering, architecture, mathematics and industrial occupations, public administration, and law. Attorneys interested in learning more about AIESEC United States and the J-1 Trainee visa, please email Melany Hamner: MelanyH@aiesecus.org.

Credential Evaluation And Translation
As the nation's leader in foreign credential evaluations and translations, American Evaluation and Translation Service, Inc. (AETS) provides the most competitive rates in the industry Ė $50 educational evaluations, as well as $200 'expert opinion' work experience and position evaluations completed by PhD university professors who have the "authority to grant college level credit for work experience and/or training." AETS offers a variety of turn-around times, including same-day service for educational, work experience, and position evaluations. For list of rates and times, see: http://aetsinternational.com/applicationforevaluationservices.pdf. AETS also provides certified translations in 100+ languages, with translators that are specialists in 80+ fields. For a copy of the Application for Credential Evaluation and Translation Services, please contact AETS at (786) 276-8190, visit http://www.aetsinternational.com, or email: info@aetsinternational.com.


Headlines

Where You Stand On E-Verify Depends On Where You Sit
The debate over the E-Verify program is less one about statistics, or even policy, than it is about two states of mind.

The Forgotten
Iraqis who helped American soldiers are being slaughtered. A small band of U.S. lawyers is fighting to save their lives.


comingsNgoings

Readers can share their professional announcements (100-words or fewer at no charge), email: editor@ilw.com. Readers interested in learning about featuring your event or conference in Immigration Daily, see here. To feature your newsletter in Immigration Daily, see here.

Immigration Event - Havre, MT
July 2 - The Senate Committee on Homeland Security and Governmental Affairs will hold a field hearing "Securing the Northern Border: Views from the Front Lines" at 10:00 AM. For more info, see: hsgac.senate.gov/public/index.cfm?Fuseaction=Hearings.Detail&HearingID=18110ddb-ab11-43a8-a70e-998d01752533


Letters

Readers are welcome to share their comments, email: editor@ilw.com (300-words or fewer preferred). Many letters to the Editor refer to past correspondence, available in our archives.

Dear Editor:
I am shocked that Steve Fichel passed away. He is such a fun person and is truly an immigration person to the core. He knows immigration issues's nuances and has the capacity to both make fun of it but takes it seriously. He also does not hesitate to call Post when he saw something wrong and will directly call the lawyers or the senators office and tell them they are rt or wrong. He picks up his own phone and does not hide behind his imp office or staff. He is one of the few State dept or DHS officials left who actually still look at cases and compare the absurd and practical. He will stick his neck out for you when he agrees with your viewpoint. The newer officers are so different now. Its really not healthy for us to lost so many old time warriors. Without history, we are nobodies.

Margaret Wong, Esq.

Dear Editor:
My ABA Journal arrived in the mail today. I had not realized "The Forgotten" (See headlines above) would be the cover story. There would be grave security concerns with relocating such people here, not least depriving the Iraqi government of some of it's most loyal supporters and transporting some agents of the enemy here. Nevertheless, one can hardly fault those working to get these guys over here.

Honza Prchal

Dear Editor:
The Jews are the "Chosen People" These people are God's children and no matter what we feel towards this race no matter how much jealousy they makes all other population feel they are God's People. To think that all of us come from one couple Adan and Eve except God divided the races eons ago and we should think we are still brothers and sisters in essence. Try to live as Christians is what USA should be to each other and try to step on the other person shoes for once.

Gladys C Farris

Dear Editor:
I usually try to ignore Utterbeck's letters because it's more personal opinion... But in his latest letter (07/01/08 ID) I'm wondering exactly where it got its "facts" from: Congressional hearing? Which hospitals in the south have filed bankruptcy because of illegals. Insurance costs more because illegals don't have insurance. Latinos cause more crime. Many exiled businessmen ran because of illegals. Employees being cut because insurance too high (illegal's fault?) The last 2 census shows Latinos highest legal immigrants? Facts or myth? Also, last time I checked ground beef did not cost a hundred dollars a pound (fact - I checked at Sam's and Albertson's today)... And America is not racist; some individuals are (my opinion!).

Ben

Dear Editor:
The letter of D. Castrillo (7/1/08 ID) is to be congratulated for it's "greatest country" comment. But, even great nations can fall as did the Roman Empire, one reason was, being invaded and diluted by other cultures. While this may be a racial issue, it is not a racist one as the racebaiters claim, but a cultural one, as a recent H. Prchal letter stated. While entry apologists are still using an old census estimate (which many illegals don't respond to) of 12 million illegals, more accurate calculations place the figure between 20 to 25 million, with thousands of more crossing our porous border every day. Tucson, AZ is a sanctuary city which teaches the Atzlan agenda in it's schools and is "served" by the sanctuary newspapers AZ Republic and AZ Daily Star which don't print negative stories about illegals, nor does many other liberal media sources. In 1996, Mexico passed a law that allows those who have gained US citizenship to retain Mexican nationality. This "dual loyalty" is a "self-evident absurdity" according to Theodore Roosevelt and violates the oath of allegiance of new citizens, which requires naturalized Americans to swear "absolutely and entirely [to] renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty." It is not delusional to observe that many Latinos are bringing numerous changes to US and many are not assimilating.

Jim Roberts

Dear Editor:
Regarding Dale Castrillo's letter (07/01/08 ID): The U.S. was the greatest country on earth. I read so much about the lazy americans who built the United States, making its the greatest country in the world. It is these lazy americans that won world war 2. I worked for 50 years in the U.S. and i there is much competetion among citizens, and americans get up early, work hard and much of the ranting about lazy americans is prejudiced, but we hear about the demonization of Latinos. I can tell you the products and work of the american citizens before illegal immigration produced the best quality products, the highest quality of goods and servcies this earth has ever seen. So, many on this group equate the legal immigration policy as racist, when the last two u.s. census places the Latino as the greatest immigration group into the U.S. This charge of racism is contrary to the legal immigration numbers of those of Latino extracton. All the arguments, when the light of truth is shed, shows these arguments for the illegals are without rational, coherent information. The u.s. immigration policy has been lauded as being racist, ignoring that for three decades the Latino has been the greatest legal immigartion group given citizenship. The charges that americans are lazy are lacking in fact, that america is racist is without fact, The allegation of competing with american businessmen, while the illegals are not subject to unemployment tax, and a host of governmental requirements that the illegals do not have imposed is ridiculous. Perhaps the u.s. citizens should be the ones filing massive lawsuits. It is the responsibility of government to protect and defend the United States The United States is not a business, but a government that can only uphold itself by the laws of the land.

David Utterback


An Important disclaimer! The information provided on this page is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney. Copyright 1995- American Immigration LLC, ILW.COM. Send correspondence and articles to editor@ilw.com. Letters and articles may be edited and may be published and otherwise used in any medium. The views expressed in letters and articles do not necessarily represent the views of ILW.COM.

Publisher:  Sam Udani    Legal Editor:  Michele Kim                        ISSN:   1930-062X


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