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Immigration Daily August 20, 2009
Previous Issues
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Comment

7th Circuit On Labor Certs

The 7th circuit decided a labor certification case on Aug 18, the summary of which appears below along with the link to the original document. Two footnotes in the case provide material of interest to those who may challenge DOL in federal court in future labor certification disputes. Here are the footnotes:

* Note number 6: The plaintiffs do not contend that DOL lacks statutory authority to issue regulations pertaining to labor certifications in general. In fact, they assume in their briefs that such authority exists. We will proceed under that assumption for the purposes of this opinion, and thus we need not resolve the question we left unanswered in Production Tool Corp. v. Employment & Training Administration, 688 F.2d 1161, 1167 n.1 (7th Cir. 1982), and Industrial Holographics, Inc. v. Donovan, 722 F.2d 1362, 1366 n.6 (7th Cir. 1983): whether DOL's regulations are legislative rules promulgated pursuant to an implied congressional delegation of power or merely interpretive rules issued through DOL's inherent authority.

* Note number 8: The plaintiffs do not challenge the reasonableness of DOL's interpretation of [8 USC] 1182(a)(5)(A)(i)(I) in its promulgation of [20 CFR] 656.30(b), so we have no occasion to reach the issue. For that reason, no Chevron (U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)) analysis, which is the level of deference we would apply given the plaintiffs' assumption, see supra note 6, is required in this case.

The language above reveals the extent to which reasonableness survives in the federal courts, unlike in the DOL. Future litigants would be well advised to consider challenging the scope of DOL's rule making authority and the appropriate level of deference due to DOL by the courts (i.e. litigation should not merely challenge the substance or language of a specific rule). This case continues a trend in labor certification litigation of the last dozen years, where litigants against DOL have chosen to challenge minutiae of the labor cert process instead of going for the jugular and challenging DOL's entire locus standi. We have long argued that DOL has created 20 CFR 656 out of the figments of its imagination, and without a statutory mandate, by concocting a cruel process in which US workers are used as pawns, and which forces US employers to go through a completely artificial legal process (which DOL labels "recruitment" but which is better characterized as a "charade" victimizing US workers and employers alike). We urge future litigants taking DOL on in a cause argued in federal court to reach for the heavy artillery and leave the pea shooters at home.

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


Focus

Today Is The Deadline For Tax Returns for Foreign Nationals

Wednesday, August 19th is the deadline for “Tax Returns for Foreign Nationals”, the Thursday August 20th phone seminar, the curriculum is as follows:

  • When foreign nationals must file US returns
  • Who can file a Form 1040
  • Who can elect to file Form 1040
  • When other information forms are required
  • How taxpayers claim treaty benefits
  • What returns apply in the year residency changes
Wednesday, August 19th is the deadline to sign up. For more info, including speaker bios, detailed curriculum, and registration information, please see: Online: http://www.ilw.com/seminars/200916.shtm. Fax form: http://www.ilw.com/seminars/200916.pdf. Don't delay, sign up today.


Articles

H-1B Employers: Have Your H-1B Public Access File Ready For The USCIS Audit
Mira Mdivani, Esq. writes "Once the file is prepared, you are ready to deal with USCIS on H-1B related issues."

Book Review: Basic Economics: A Citizens Guide To The Economy By Thomas Sowell
Roger Meiners for the Foundation For Economic Education writes "He intends this book to be a primer on economics for the (intelligent) masses."

Bloggings On Immigration Law And Policy
Greg Siskind writes "Secretary Janet Napolitano is scheduled to host about 130 leaders from immigration advocacy, religious, business and law enforcement groups to discuss immigration reform plans."

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


News

Neufeld Memo On H-2A And H-2B Petitions
Donald Neufeld, USCIS Acting Associate Director issued a memo providing guidance for processing and adjudicating Form I-129, Petition for Nonimmigrant Worker, filed on behalf of H-2A agricultural temporary workers and H-2B nonagricultural temporary workers.

USCIS Updates H-1B And H-2B Counts
USCIS announced that as of August 14, 2009, it has received approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption, and 8,974 H-2B petitions for the first half of FY 2010.

7th Circuit Says DOL Can Establish Time Limit For Labor Certifications
In Durable Manufacturing v. USDOL (No. 08-4122, 7th Circuit, August 18, 2009), the court said that "Assuming that DOL possessed statutory authority to promulgate regulations pertaining to labor certifications, then the amended 20 CFR 656.30(b) is within the scope of DOL's authority because it complies with the explicit language from 8 USC 1182(a)(5)(A)(i)(I)." The court also said "labor certifications approved under the old regulation were not valid permanently, but only so long as no definite period of validity was fixed by DOL. By definition, then, any "right" that the plaintiffs may have obtained to file their approved labor certifications in support of visa petitions at any time they chose was coextensive with the duration of the "indefinite" regulation. When DOL amended 20 CFR 656.30(b) essentially to establish a 180-day time limit for previously approved labor certifications, the plaintiffs' right to the certifications' indefinite validity ended." (thanks to Gary Endelman for bringing the case to our attention)


Classifieds

Help Wanted: Immigration Paralegal
Washington, DC - Fragomen, Del Rey, Bernsen & Loewy seeks an experienced Paralegal for its D.C. office. This is a career position requiring a wide range of skills in a fast-paced setting for the right candidate. Our ideal candidates have 2+ years experience with all aspects of business immigration, including H-1B and L-1 visas, PERM, Immigrant Visa Petitions, and Applications to Adjust Status. The Paralegal will have the opportunity to manage caseloads with a large degree of independence; communicate with clients regarding procedural and case processing issues; update and maintain client status reports; prepare bills; and serve as a team resource. Very competitive salary and benefits for the right candidate. Please email your cover letter, resume, and writing sample (Word or Adobe formats only) to Robert F. McCafferty, Human Resources/Office Manager, at rmccafferty@fragomen.com. Or fax same to 202-371-2898. EOE.

Website Services
Gain the competitive edge with your new website from INSZoom, the world's largest immigration software company. Choose from a range of template websites, complete with customized logos and images, 60-70 pps. of professionally written immigration law content including news articles, processing dates, and priority times posted directly on your site. Our search engine optimization tools will increase your web traffic and prioritize your site in the major search engines. Our content management tool lets you update your site in real time. Customized intake sheets let you integrate your case management software directly into your site. Biweekly newsletters and email blast tools enable you to stay in constant touch with current clients and strengthen your potential client base. Build leads and maintain a professional presence at a reasonable cost with websites from INSZoom. Learn more online at www.inszoom.com/websites or contact a sales representative at (925) 244-0600 to start the process of launching your new website today.

Forensic Psychology Services
Forensic Psychology Group - nationwide service - 800-852-2160. The Forensic Psychology Group provides nationwide expert witness services in all areas of immigration law. It is led by Stephen Reich, PhD, JD, and Grace P. Lee, PhD, JD, who are both clinical psychologists and attorneys, and also AILA members. The Group's experts - all licensed psychologists or psychiatrists - have extensive experience in working collaboratively with immigration lawyers on a wide range of forensic psychological issues. We offer nationwide service in the following areas: psychological consultation, psychodiagnostic evaluation, psychological reports, expert witness services, courtroom testimony, political asylum evaluation, extreme and exceptional hardship evaluations, spousal abuse, citizenship waivers. Dr. Stephen Reich, the Group's founder and director, is a nationally known forensic psychologist who holds a BA, JD, and MBA from Columbia University, and an MA and PhD in Clinical Psychology from Fordham University. He has been on the faculty of Weill Cornell Medical College and on the Attending Staff of New York Presbyterian Hospital for 30+ years. Visit The Forensic Psychology Group. The right experts make a real difference.


Headlines

Immigration Chief Ends Arrest Quotas For US Agents
The head of Immigration and Customs Enforcement announced today that he has ended quotas on a controversial program designed to go after illegal immigrants who have ignored deportation orders and that he planned to make more changes to the program soon.

Immigration Attorney Gets 14 Months In Prison
An immigration attorney in Houston who fled to China must serve 14 months in a U.S. prison in a fraud and cash investigation.

White House To Host Immigration Meeting
The White House is hosting an immigration discussion Thursday with advocates, religious groups, businesses and law enforcers as part of an effort to bring all parties to the heated debate into one room.

Aug. 29 Rally In El Paso Will Push For Immigration Reform
As part of a statewide push for comprehensive immigration reform, advocates are organizing a rally for Aug. 29 at the El Paso Convention Center.


comingsNgoings

Readers can share professional announcements (up to 100-words at no charge), email: editor@ilw.com. To announce your event, see here

Immigration Event - Washington, DC
August 25 - The Center for Immigration Studies presents a panel discussion: "Immigration, Population, and the Environment" For more info see http://cis.org/Announcement/EnvironmentalPanel


Letters

Readers can share comments, email: editor@ilw.com (up to 300-words). Past correspondence is available in our archives

Dear Editor:
So, ID was overjoyed (08/17/09 ID comment) because President Obama called his domestic opponents demagogues (while in a foreign country, no less) and promised action by this Winter on comprehensive immigration reform. Didn't Obama also demonize opponents of health care reform and promise to have signed such a reform before August, that is, this month? I am glad Obama is, like Bush, if less intensely, on board with efforts to overhaul our Rube Goldberg immigration system, but I hardly see the above as reason for happy complacency. In fact articles on the 17th and 18th refer to how the health care debate is working against both legal immigrants and illegal aliens hoping to somehow normalize their status. Like Michael Hammond and Brandon Meyer (letters of August 19th), I am not impressed with the new administration's actions on immigration. I think our immigration problems are structural and it seems the Obama administration has simply not made this a top priority, even as it mouths pro reform slogans. Ramesh Rai's letters are right (08/19/09 ID and 08/17/09 ID) that Congress has been and remains indecisive, but honestly, even when Bush was pushing immigration reforms hard (with McCain's prominent assistance, I seem to recall), nothing much happened. Adding filigrees to an already baroque system is a recipe for disaster only slightly better than failing to enforce the laws at all, but I am afraid that is all we can hope for unless we get the sort of systemic crisis that lead to Ronald Reagan's tax reforms or his less well designed amnesty of 1986.

Honza Prchal, Esq.
Birmingham, AL

Dear Editor:
I am afraid that Ramesh Rai's letter (08/19/09 ID) seriously overestimates President Obama's willingness to do anything at all about the scandal known as the US immigration system. If the president really cared about a rational, fair or just immigration system, he would have long ago replaced the USCIS officials who are responsible for the travesties that are coming out of the Service Centers, especially the California Service Center, in the form of "adjudications", as described in the letters of Michael F. Hammond, Esq. (08/19/09 ID) and Brandon Meyer, Esq. (08/19/09 ID) Letting a few ideologically anti-immigrant heads roll in the higher echelons of this agency would not take an act of Congress, just a couple of well placed phone calls or pen strokes. Having said that, by no means all decisions coming out of the USCIS Service Centers are wrong or unfair. What this may mean is that lower level examiners are trying to to their jobs capably and with due regard for the regulations, until thrown off the track by their superiors. Employers, however, should not necessarily be overjoyed when they do receive approvals. It only increases their likelihood of being investigated under this most cowardly of administrations, at least when it comes to standing up for the rights of immigrants in the face of prejudice.

Roger Algase, Esq.
New York, NY

Dear Editor:
That will be great for our Pr. Obama to be able to consider the immigration issue in USA, when i look the surronding country like Canada, or France or Netherlands, USA has no immigration system. And i believe that if anyone immigrate in USA is for the best not for to ruin his own life but to be able to make it better. They belive that USA is the better place for them to sucess and bring better life and vision to the rest of the rest. And we all know that USA is an opportunity for immigrant to settle down, it's also an opportunity for the country to develop because those immigratnts are here to pay taxes, contribute into the development of the nation and also limit a lot of crimes. Anytime that i watch the Cops channel i always see people that have no way of being able to do something so the stress and the anger can make them do anything. i was able to discuss with a prisoner onetime and he said when my bro was leaving the state he gave a gun to defend your self. I cry in my heart because this guy uses this gun and hold up every day the women and men to be able to eat. it's a pity he said what can i do i have family and i got to take care of. some people do not really understand that they only care about themselves. So immigrants are not asking for food but a legal way to study, work, help this country and also succeed. Dear Pr. Obama, i pray that Jesus my Lord will help you to be able to make it for the immigrants and they can be able to study, work and have a better life.

Diane L.

Dear Editor:
Regarding Shahrukh Khan's alleged detention, this incident smacks of a cheap attempt by Shahrukh Khan for gaining publicity for his movie, "My Name is Khan". Facts do point towards this attempt. When a VIP applies for entry into the US, he must abide by rules and regulations unless the US permits him to enter by special means (via the airline's special lounge and pre-screens him). Noting that Mr. Khan gave no advance notification and was traveling with only his PA, it is futile to imagine that the US Customs and Border Patrol would not treat him as a private citizen, specially when his bags were "lost" and the agency staff needed to check his bags. I am told that the US does offer VIP and VVIP treatment to the high and mighty of other lands when advance notice is given. The Times of India has quoted Mr. Khan as saying many things against the US policies and procedures. He wants more warmth and understanding, more speedier procedures. So much so good but he crosses the line when he starts meddling into our paranoia, our fears, our desire to be safe. We are a sovereign nation, and we have a right to have tighter controls at our borders, which, in Mr. Khan's case, was Newark's Liberty International Airport. And Mr. Khan, let us Muslims of the US be! We are not very happy with your Bollywood folks raiding our sanctity and peace with your movies and their hackneyed stories. The US may have acted hastily in thousands of Muslim cases in the post-9/11 days but, by and large, we are respected and permitted to co-exist in a peaceful manner.

Arif Kadwani

Dear Editor:
Regarding the ID comment on Detention Shame (08/19/09 ID): What an outrage.... what is truly ridiculous about this is that all except for two persons were Cuban nationals. You would think that they after 50 years they would have figured out that Cuban nationals may be placed on deportation but are not deported because of Cuba's regime, eh? Thanks for this article.

Mercedes V. Abad
Miami, FL

Dear Editor:
ESF's letter (08/19/09 ID) accuses the US of discriminatory H1b admissions because, allegedly, "lighter-skinned, educated" etc. immigrants are preferred to "brown-skinned, illiterate" immigrants with criminal backgrounds. Using the false analogy of equal rights for blacks, the letter ignores one essential difference; blacks are and were, American citizens, while by definition, no immigrant is. The United States as a nation and Americans collectively, owe nothing to citizens of other countries, especially when those latter are here obviously in violation of our laws. The letter seems to have lost sight of the fact that immigration is supposed to be of benefit to the gaining country. It is not and never should be, intended to be some sort of "charity" or act of compassion that one country extends to the less-fortunate citizens of another. For that we have refugee and asylum programs. Further, the letter scorns the expressed will of the American people as to who will come into the country and in what numbers and under what conditions. I would ask who then, if the American people do not have this right, does? Who decided, for example,that 40,000 Somalis should be settled in Maine and Minnesota? It is perfectly natural and to be expected that Americans will prefer as immigrants those who most resemble them, those who have some education, can speak reasonable English, are not likely to be public burdens, and, are unlkely to engage in criminal or anti-social behavior. The "open-doors" immigration advocates need to think very carefully about the future consequences of their obsession. Immigration, especially illegal immigration from Mexico, is one of the few issues which unite blacks and whites in opposition and I predict a terrible backlash in the not-so-distant future unless some drastic and effective brakes are installed.

DMM


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. 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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