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Immigration Daily August 22, 2008
Previous Issues
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DOL Extra Lex

DOL under its latest Solicitor (Mr. Gregory Jacob, the Chief Legal Officer at DOL, #3 in DOL's hierarchy after the Secretary and the Deputy Secretary) appears to be taking an aggressive stance on a number of matters, in some of which DOL appears to be acting extra statutorily. For instance, on May 22nd DOL proposed a rule captioned as follows "Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes". The PERM practitioner reading the Federal Register would have no clue with this heading that the DOL proposed to fundamentally change the PERM process. In fact, under the guise of "technical change" DOL proposed to eliminate the SWAs from the Prevailing Wage process, and proposed to push this radical change through by hiding this PERM change under the "H-2B" label. As pointed out by attorney Michelle Skole (formerly employed at a SWA herself), this is arguably a violation of the APA. DOL's incorrect labeling is akin to a deceptive practice. (See Joel Stewart's comment on this issue.)

This kind of edgy, aggressive behavior is becoming the norm at DOL under the new Solicitor. In addition, DOL's PERM processing continues to get increasingly user-unfriendly. In its July 15th stakeholder's meeting with AILA, ABA, ACIP and NAFSA, DOL said "DOL will not provide any information regarding where/what type of audits can be expected." If DOL's audit zeal were directed at catching the bad guys - those who attempt fraud in PERM - the bar would enthusiastically support DOL. However, as a July 31st ICE news release shows, a fraudster can apparently file hundreds of fake PERM applications with DOL without anyone at DOL noticing or caring. In the same stakeholder's meeting, DOL disclosed that it had a new "Fraud Detection and Prevention Division" headed by a Bill Rabung. This new unit claims to have "experts" using data mining techniques to identify "patterns". Data-mining to find patterns is not an easy task, as anyone at the National Security Agency will tell you. For DOL to claim it has "experts" doing this is delusory. In fact, what the so called Fraud unit will likely do is clear from this gem from the report of the stakeholder's meeting: "the unit is already receiving tips and leads on possible areas of investigation". In other words, as if having vigilantes calling CBP and ICE with so called "suspicious activity" reports were not enough trouble already, we now have DOL joining the bandwagon inviting kooks of all kinds to call in "tips and leads".

Exhibit A in DOL's jihad against the bar is Fragomen v. Chao. The bar's hopes for the return of sanity in PERM now rest in the hands of one man - Ricardo M. Urbina, US District Judge for the District of Columbia, who will rule hopefully soon on the preliminary injunction sought by Fragomen. For those curious about him, this is his official bio, this is how he is rated at a rating site (see especially the comment therein), and for those who want to see how he has ruled before, Justia provides 616 cases filed in his court.

While the dog days of summer are upon us, it seems that DOL has gone to the dogs.

We welcome readers to share their opinion and ideas with us by writing to


THE PERM BOOK, 2008-2009 Edition, Shipping Now

ILW.COM is pleased to announce THE PERM BOOK, 2008-2009 Edition is shipping now. The book outline is as follows:


A.  PERM Regulation
B.  Articles by PERM Writers
  • 656.1 Preparing PERM for 2nd and 3rd Preference by David Nachman and Ludmila Zimovcak
  • 656.3 SVP: Discrepancies between the O*Net and the DOT by Lori S. Melton
  • 656.3 The Method By Which the Bureau of Labor Statistics Converted the DOT Occupations into the OES Occupational Units or "Here's Another Nice Mess You've Got Us Into by Barbara Brandes
  • 656.10(a)-(c) The Basics of Labor Certification Under PERM : What You Need to Know Before You Start by Jeffrey Devore
  • 656.10(b) Rights and Obligations of Attorney and Agents Under PERM by Nancy-Jo Merritt
  • 656.10(c) Dangers in the Attestation Process by Ramon Carrion
  • 656.10(c)(10) What is "Permanent" and "Full-Time" Employment by Timothy Spridgeon
  • 656.10(d), (e) Deconstructing PERM Notice Requirements by Susan J. Cohen
  • 656.10(f) Preparation of PERM Recruitment Report and Supporting Documentation by Carl Shusterman and Alison Walters
  • 656.11 Is Employer "Substitution" Under PERM Dead? by Christian Allen
  • 656.12 Prohibition on Payment of Attorney's Fees by Paull Hejinian
  • 656.15(a)-(c) Step-by-Step for Schedule-A Applications by Sherry Neal
  • 656.15(d) Aliens of Exceptional Ability in the Performing Arts by Howard Kushner
  • 656.17(a)-(d) Filing, Withdrawing, Refiling, and Tracking PERM Cases by Katherine Lopez Ley and Davis Bae
  • 656.17(e)(1)(B)(1)(4) Professional and Trade Journals Under PERM by Nathan Waxman
  • 656.17(e)(1)(I) Regular Recruitment by Nancy-Jo Merritt
  • 656.17(e)(ii) PERM Labor Certification Professional Recruitment Steps by Edwin R. Rubin
  • 656.17(e)(l)(ii)(A) Note on Online Job Fairs by David Nachman
  • 656.17(g)(1) Regarding Recruitment Reports by Leon Wildes and David Lazaar
  • 656.17(g)(2) Ethics: What Do you Do When A Qualified US Worker Applies? by Blake Chisam
  • 656.17(h)(1) Business Necessity: "Necessary Arguments" by Sofia Zneimer
  • 656.17(h)(3) Combination of Occupations under PERM by Nathan Waxman
  • 656.17(h)(4)(ii) The Impact of PERM On Experience Gained on the Job and Alternative Experience by Nathan A. Waxman
  • 656.17(h) Requiring a Foreign Language under PERM by Cyrus D. Mehta
  • 656.17(i) Nuts & Bolts: Actual Minimum Requirements & Experience Gained on the Job by Rohit Turkhud
  • 656.17(i)(3) In-Job Experience: Why we Need it and How We Can Still Get it by Gary Endelman
  • 656.17(k) How Do Layoffs Affect PERM? by Margaret McCormick and Patricia Luna
  • 656.17(l) As If You Owned the Place…Alien Influence and Control Over the Labor Certification Process by Robert E. Banta and Benjamin M. Lowe
  • 656.18 College and University Professors: A Hybrid Between Special Handling and PERM by Victoria Donoghue
  • 656.19 Domestic Workers: At Home and on the Range by Susan L. Brady
  • 656.20 How PERM Cases are Selected for Audit by Christina B. LaBrie
  • 656.20(c) Requesting Extensions of Time to Respond to Audit Requests by Jonathan Amdur and Susan Anderson
  • 656.24 The Who What When Where of Labor Certification Determination by Rebecca Sigmund
  • 656.24(b)(2)(i) What You Do After the Ads Have Been Run? Resumes, Interviews, and Results by Edwin R. Litwin
  • 656.26 Appeals/Requests For Review Under PERM by Joan Mathieu
  • 656.27 Preparing Requests for Review with BALCA by Mitchell L. Wexler and J. Ira Burkemper
  • 656.30-31 Fraud, Misrepresentation, Validity, Invalidation and Revocation by Richard Tasoff
  • 656.32 Revocation of Labor Certification by Michael Piston
  • 656.40-41 Prevailing Wage Determinations Under PERM by Lawrence Rudnick

C.  Editor's Comments to the PERM Rule


A.  Frequently Asked Questions (FAQ) by Lawrence Rudnick
B.  Summary of DOL PERM Stakeholders Meetings by Lorna Rogers Burgess
C.  Frequently Asked Questions


A.  The New 9089 PERM Form by Linda Rose
B.  What DOL told OMB about PERM by Jay Solomon
C.  New ETA Form 9089 and Instructions, Application for Permanent
     Employment Certification
D.  Old ETA Form 9089, Application for Permanent Employment Certification
E.  Old ETA Form 9089, Instructions
F.  Old ETA Form 9089 Electronic Filing Instructions
G.  ETA Form 750A
H.  ETA Form 750B
I.    ETA Form 750 A and B, Instructions
J.   ETA Form 9127, Foreign Labor Certification (FLC) Quarterly Activity Report


A.  Overview of PERM Cases
B.  Overall PERM Flow Chart
C.  Employer Checklist
D.  Alien Checklist
E.  Job Offer Checklist
F.  Attorney/Agent Checklist
G.  Prevailing Wage Preparation Checklist
H.  Prevailing Wage Quick Guide
I.   Recruitment Checklist
J.  Express SVP Checklist
K.  PERM Audit Checklist: 10 Important Points
L.  Real and Virtual PERM Addresses
M.  What do PERM and H-1B Visas Have in Common?
N.  Attorney Competency Self-Test
O.  Sample PERM Cases
  1. Job Zone Five, IT Director
  2. Job Zone Five, Economist
  3. Job Zone Four, Consultant, Foreign Law
  4. Job Zone Four, Accounting Coordinator
  5. Job Zone Three, Tile Installers Coordinator


A.  Introduction to BALCA by Joel Stewart
B.  BALCA PERM Quick Reference Guide by Joel Stewart
C.  BALCA En Banc Quick Reference Guide by Joel Stewart
D.  BALCA Hearing Procedures


A.  Introduction to Federal Court Litigation by Sam Udani
B.  Exhaustion of Administrative Review by Michael E. Piston
C.  Federal Court Litigation-PERM by David B. Pakula
D.  Sample Pleading by Michael E. Piston


A.  Prevailing Wage Survey & Overview by Jane Goldblum
B.  Wage Worksheet Simple Systems 1 by Jane Goldblum
C.  Wage Worksheet Simple Systems 2 by Jane Goldblum
D.  656.40 Perm Reg. Determination of PW
E.  656.41 Perm Reg. Certifying Officer Review of PW
F.  Prevailing Wage FAQ
G.  Appendix A By Alphabetical Order
H.  Appendix A By SOC Classification Order


All 50 states + 4 territories (Guam, District of Columbia, US Virgin Islands, and Puerto Rico)


A.  SOC Structure
B.  SOC Definitions
C.  SOC 2006 Changes
D.  Background On Development Of Appendix A
E.  Stratifying Occupational Units By SVP
F.  NAICS 2002 Codes And Titles
G.  NAICS Codes And Titles - 2007 Revisions
H.  Latest OES Wage Data - MDB file
I.   2008 OES Wage Data Structure
J.  Latest OES Wage Data - Statistical Area Definitions
K.  Appendix A By Alphabetical Order
L.  Appendix A By SOC Classification Order
M.  Darby v. Cisneros
N.  Lawyers Guide To 212(a)(5)(A) By Gary Endelman
O.  BALCA Hearing Procedures
P.  BALCA En Banc Cases From 1987
Q.  Occupational Projections And Training Data
R.  Occupational Outlook Handbook
S.  Federal Register Notices On PERM
T.  Prevailing Wage Determination Policy Guidance
U.  What DOL Told OMB About PERM By Jay Solomon
V.  ETA Forms Old And New
  1. New ETA Form 9089 and Instructions, Application for Permanent Employment Certification
  2. Old ETA Form 9089, Application for Permanent Employment Certification
  3. Old ETA Form 9089, Instructions
  4. Old ETA Form 9089 Electronic Filing Instructions
  5. ETA Form 750A
  6. ETA Form 750B
  7. ETA Form 750 A and B, Instructions

For more info or to place your order, please see here. For the fax document, see here.


What Is Education-Based Marketing?
Trey Ryder writes "You have two choices when you select a marketing message."

Bloggings on Nurse Immigration
Christopher T. Musillo of the Hammond Law Group shares the latest entries as of August 16, 2008 on his nurse immigration blog.

To submit an Article for consideration, write to


DHS Secretary Chertoff Says One's Identity Is Most Important
DHS Secretary Chertoff in an address before the University of Southern California National Center for Risk and Economic Analysis of Terrorism Events said, " ... the most important asset that we have to protect as individuals and as part of our nation is the control of our identity, who we are, how we identify ourselves, whether other people are permitted to masquerade and pretend to be us, and thereby damage our livelihood, damage our assets, damage our reputation, damage our standing in our community."


Help Wanted: Immigration Attorney
Multiple locations - Williams Mullen seeks business immigration mid-level associate to join our ten-member global visa practice. Successful candidate will advise on strategic choices and manage client relations in all immigration areas. Prepare and review NIV, IV filings; handle RFEs; and prepare updates for client newsletters and email alerts. Associate will assist with immigration compliance issues (I-9s, E-Verify, etc.) and will have heavy involvement with PERM filings, EB-1/NIW petitions and foreign work visa applications. Successful candidate will work on in-bound and out-bound projects. Requirements include superb communication, analytical skills, judgment and writing abilities. Our firm is equipped with state-of-the art, web-based software and ample paralegal capacity, which enables our associate to take on meaningful and challenging assignments. Moderate amount of portable business required, as well as proven ability to market and develop business and client contacts. For full details, including job locations, see here. Highly competitive salary + benefits offered. Qualified applicants, send resume to: EOE.

Help Wanted: Immigration Attorney
Lee's Summit, Missouri - USCIS Office of the Chief Counsel (OCC) seeks experienced attorney for the position of of Service Center Counsel at the National Benefits Center (NBC). Responsibilities include, but are not limited to, providing legal advice to the NBC personnel on issues involving immigration related adjudications, inadmissibility and deportability grounds, and national security. Service Center Counsel are also responsible for writing visa appeal briefs and providing litigation support to the U.S. Attorney's office on cases arising from Service Center adjudications. The Service Center Counsel will be directly supervised by the Deputy Chief Service Center Counsel and the Chief of the Service Center Counsel Division. Applicants must possess a JD degree, be an active member of the bar (any jurisdiction) by the entry on duty date. For full details enter COU-CIS-2008-0009 here. Submissions for this announcement are preferred by email (all attached documents must be in MS Word or Adobe Acrobat PDF format) to W. Douglas Craig, Chief Service Center Counsel Division, at Contact Information: Sheila Fisher. Phone: 949-389-3687. Or write: Office of the Chief Service Center Counsel, USCIS, 101 West Congress Parkway, Suite 560, Chicago, IL 60605.

Case Management Technology
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Why Immigration Matters to Hispanic Voters
Unlike what the strident anti-immigration foes suggest, the reason why immigration matters to Hispanics is not that we want to take over the country in a reconquista or impose the Spanish language as co-equal with English.

Town Gets Immigration Lawyer
Teri Stamsos is only the second attorney practicing immigration law in Benton County.

DHS Seeks Privacy Act Exemptions
The Homeland Security Department wants to exempt its new case-management system for immigration fraud investigations from portions of the Privacy Act.

A Small Town Struggles After Federal Immigration Raid
Postville has lost more than one-fourth of its pre-raid population of 2,300, including 389 Agriprocessors workers who were detained by immigration officials, and scores more who have fled or gone into hiding.


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

New Offices - New York, NY
Cyrus D. Mehta & Associates, PLLC is pleased to announce that we have moved offices. As of June 30, 2008 our firm is located at 2 Wall Street, 6th Floor. Our telephone and facsimile numbers have remained the same. 212-425-0555. Fax: 212-425-3282.


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

Dear Editor:
Perhaps for the second time ever, I write to quibble with David Murray's letter (08/21/08 ID). Adolph Hitler disliked the dilution of "ein blud, ein volk" - "one blood, one people". The protection of German Kultur was a rallying cry of his opponents on the right, the Nationalists (especially of Jewish Nationalists) who were no more his friends than that other wing of the anti-Social Democrat electoral coalition that got him into the Reichstag, the German Communist Party. English speakers of every hue, size and shape are among those most upset with bad grammar and cultural dilution in this country and abroad, often arm in arm with their markedly different looking neighbors. Anyone trying to argue Anglos are a single ethnic/racial group would be laughed out of town in any English-speaking nation on earth, perhaps especially in England, with its obvious roots in the greater and lesser Celtic cultures, Imperial Rome, Low Country Germanics, Scandinavians and peoples from the far reaches of Empire. Anglo culture works. That's why most of us are here.

Honza Prchal, Esq.
Birmingham, AL

Dear Editor:
Regarding the Letters and Comment of 8/21/08 ID, if we are approaching a "1984" police state it is because we have strayed from the wise entry restrictions as quoted by Pres. Coolidge in my previous day's letter in allowing high numbers of those who don't have: "a background of self-government" or are not prone to "good citizenship". The priority there and then was to establish a strong America with a banner of Liberty, not an irrelevant, inane and failed Marxist dogma and polyglot of "equals" -- an impossibility, as the continual contention in society and this forum shows. To the degree that the latter, the Civil Rights Act and phony charges of racism have replaced the former is the extent that we go astray. The Census Bureau also predicted that in a scant 15 years, non-Hispanics will be a minority for those under age l8. There's a word to describe the citizenship for all crowd and the R. Algase letters kind of thinking and it begins with the letter only a couple of letters after the R letter that the RA letter had in mind. H. Prchal's letter about Minutemen is correct and appreciated (08/21/08 ID). D. Murray's letter (08/21/08 ID ) is deluded if it believes that our legacy of self government will survive the entry invasion without restrictions and has already been seriously "diluted". The letter could have been written by R. Yang and answers the Ben Franklin quote: "We have given you a Republic, if you can keep it". R. Gittelson's letter (8/20/08 ID) fails to inform that all of the listed benefits would also accrue if employers would hire citizens and even to a greater degree if a living wage were paid. What America needs is more patriotism before profits and less greed, globalism and gringo haters.

Jim Roberts

Dear Editor:
Jim Roberts's letter has actually made a breakthrough argument (8/20/08 ID), although I suspect that the argument that the letter makes so eloquently and succinctly is not actually the argument that the letter intended to make. I understand the letter to attempt to make the argument that, "the Census Bureau predicts that non-Hispanic whites will be a minority by 2042. If this isn't dilution of our existing culture, what is?" To my way of thinking, the letter is implying that the American culture is synonymous with "White". Evidently, the point that has eluded this letter is that the culture of America isn’t white, or any race, religion, or other factor other than the obvious and also most important cultural component, namely that the culture of America is American. The letter goes on to make an excellent argument by quoting Calvin Coolidge, who explained that, "American institutions rest solely on good citizenship. They were created by people who had a background of self-government. New arrivals should be limited to our capacity to absorb them into the ranks of good citizenship. America must be kept American. You will note that nowhere in this entire argument, does Coolidge mention anything about the culture of America being white. However, he does make the argument that immigrants that come here should want to be Americans. Perhaps the lesson here is that if the Retrictionists would "restrict" the scope of their arguments to the subject of how best to legislate the policies for the future influx of new potential citizens, (based on their desire to become Americans, not on their race, color, or religion), then perhaps there would be fertile ground for serious and candid discussion.

Robert Gittelson

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 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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