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Immigration Daily May 17, 2007
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DOL Substitution Rule

The DOL is promulgating its substitution final rule on labor certs mandating, inter alia, elimination of the practice of substitution, establishing an expiration date for certified labor certs, prohibiting aliens from paying attorney fees/advertising costs etc. For an advance copy of the rule, see here - large file, may be slow to load (page numbers in this comment refer to page numbers in the 97-page scanned document). The agency is proceeding with its promulgation despite a large number of comments (489), which it acknowledges to be mostly critical of the proposed rule (p. 9).

For the last six months or more, the DOL has been rubber-stamping staggering volumes of labor certification applications, both for PERM and pre-PERM cases. After dilly-dallying over the 245i applications for years, and permitting aliens' lives to hang on DOL's inaction, the backlog elimination centers have been issuing a veritable tsunami of certifications, indeed, DOL says that more than half the 365,000 applications are gone (p. 18). The rest, says DOL, should be gone in a few months (p. 18). DOL says that about 70% of PERM cases are processed in less than 2 months (p. 18). We believe DOL justifies its actions because of the low unemployment rate which is at record low levels. See 20 CFR 656.24(c) of the PERM Rule where DOL purports to take into account "labor market information" aka unemployment rate in making determinations on labor certs, despite long standing case law from multiple circuits that DOL may not use this information in making determinations under 212(a)(5)(A).

The DOL displays its anti-attorney bias in this rule making saying "The Department reminds employers ... that there is no ... requirement that [a labor cert application] be prepared by ... an attorney" (p. 42).

DOL persists in mis-reading its authority under 212(a)(5)(A), which is an exclusionary provision applicable to aliens, and which does not confer any right whatsoever to DOL to force employers to conduct a recruiting circus, a charade entirely of DOL's making. Indeed, DOL contradicts itself in this rule-making. At one point, DOL says (legitimately, in our opinion) that "The statutory scheme [has] its focus on individual aliens and presumption of each alien's inadmissibility ..." (p. 21 and 22). How this translates to "... burden of proof is always upon the petitioning employer to overcome the presumption of inadmissibility of an individual ..." (p. 10) is left unsaid. From the imaginary authority over employers that DOL claims to have, DOL has invented "an employer driven-process" (p. 35) for which "an alien [cannot] apply" (p. 41), which very artifice DOL offers as justification to rebut commenters' criticism on aliens' interest in labor certs and alien payment of attorney fees (p. 35, 40 and 41).

Since this rule will seriously inconvenience many employers, particularly in the hi-tech industry, challenges to this rule are entirely possible. This rule is discussed by Joel Stewart on his blog. This rule will be discussed in detail at the following ILW.COM events: PERM With Joel Stewart and The PERM Workshop, Orlando

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


PERM With Joel Stewart

We are pleased to announce a tele-seminar with Joel Stewart on PERM matters. The curriculum is as follows:

FIRST Phone Session on May 24: How to Prepare Form 9089 like an Expert!

  • Discussion of the new substitution rule
  • Understanding the O*Net
  • DOT or SOC?
  • SVP: Education, Experience & Training
  • Job Zone Levels
  • Normal v. Special Requirements
  • Job Descriptions
  • Notice Requirements
  • Basic Recruitment Procedures
  • Schedule A & Special Handling
SECOND Phone Session on June 21: How to PERM Proof Your Case
  • Measuring and Managing Dates & Times
  • Professional Recruitment Tips
  • Controlling Prevailing Wage Determinations
  • Avoiding Restrictive Requirements
  • Proving Business Necessity
  • Advanced Filing Techniques
  • Update on the Magic Language
  • Avoiding Common Errors on Form 9089
  • Preparing for 2nd Preferenc
THIRD Phone Session on July 12: Post-Filing Issues In PERM
  • Alternative Prevailing Wage Determinations
  • Rebutting, Tweaking & Appealing PWD's
  • How to Respond to an Audit
  • Motions to Reconsider & Harmless Error
  • Remands from the CO
  • Final Determinations
  • How to Write and Effective Appeal
  • Review of BALCA Decisions
  • Federal Court Litigation
The deadline to sign up is Tuesday, May 22nd. For more info, including speaker bios, detailed curriculum, and registration information, please see: (Fax version:


The American Civil Liberties Union provides frequently asked questions on the REAL ID Act.

Bloggings: May 17, 2007
Joel Stewart shares his latest blog entry discussing the DOL Substitution rule.


DOL Final Rule On Substitutions
The Department of Labor is publishing a final rule on substitutions with respect to labor certification. We carry an advanced copy that is scheduled for publication in the February 17, 2007 Federal Register issue (please note: this is a very large Adobe Acrobat file and may take time to download).

Gov Schwarzenegger Urges Congress To Pass CIR
In a letter addressed to Minority Leader McConnell and Majority Leader Reid, Gov. Schwarzenegger urged Congress to act this year and pass comprehensive immigration reform.


Help Wanted: Immigration Paralegals
South San Francisco, CA - Younossi Law has openings for full-time paralegals with 1-3 years and 2-5 years of business immigration law experience. We value team work, exceptional client service and foster an environment which allows for maximum professional growth through education, recognition, and innovation. The successful candidate must have substantial experience in a wide variety of employment-based immigration processes, have excellent people skills, be highly motivated, creative, process focused, detail oriented, and computer savvy. We offer excellent benefits and a salary commensurate with experience. Interested candidates, send your resume to:

Help Wanted: Immigration Paralegal
Washington, DC - Highly motivated, detail-oriented individual sought for business immigration paralegal position. Strong organizational, writing, and interpersonal skills required. Prior business immigration experience desired. Great opportunity for individual interested in challenging, exciting work with international clientele; excellent career advancement possibilities and work environment. Competitive salary and benefits. Visit Please email resume, salary requirements + references to: or fax (202) 483-6801, Attn: Jim Alexander. No calls please.

Help Wanted: Immigration Attorneys
Internationally renowned boutique Wall Street law firm seeks several full time immigration attorneys for its NYC office. 2 years minimum experience required in business, family, asylum, non-immigrant and immigrant visas, and immigration litigation involving MTRs, the BIA, the EOIR, PTRs and stays in the Circuit Courts. Foreign language skills are a plus. Salary and benefits are highly competitive. Send your resume in confidence to Recruitment Coordinator: No telephone calls or faxes please. We will contact you if your skills match our requirements.

Help Wanted: Immigration Attorney
Solo Practitioner in Springfield, NJ with diverse practice is looking for a NJ licensed Associate fluent in Russian language. Immigration practice experience is a plus. Good benefit package. Salary commensurate with experience. E-mail resume to Isabella Mayzel, Esq. at

Help Wanted: Immigration Attorney
Robert W. Yarra, A Professional Law Corporation, Fresno, CA, has an immediate opening for a licensed associate attorney bilingual in English and Spanish. The ideal candidate will have 3 plus years experience in all areas of immigration law, including Removal/Deportation Defense, Family and Business Immigration Law. In addition to courtroom experience, excellent writing skills are required, as this position includes appellate work. Recent law school grads with a demonstrated interest in immigration law also considered. We offer a competitive salary, our benefits package includes 401(k), medical, dental and vision plans. Expedited partnership track considered. Fresno is centrally located between Los Angeles and San Francisco, close to Yosemite and Kings Canyon National Parks. Housing is affordable, cost of living adds to a great community for raising a family. Please mail resume and writing samples to: Office Manager, 1250 Fulton Mall, Suite 202, Fresno, CA 93721 or e-mail Robert W. Yarra at:

Help Wanted: Immigration Attorneys
Memphis, TN - National immigration law firm Siskind Susser Bland, P.C., a cutting edge, entrepreneurial practice representing many of the world's best known companies and individuals, is seeking motivated, experienced employment immigration lawyers in its headquarters office. We are hiring mid-level associates (two to five years experience) as well as senior attorneys (five+ years experience). Candidates should possess outstanding academic credentials and writing skills. Excellent benefits and salary commensurate with experience. Interested candidates should send resumes to

PERM Services
Adnet Advertising Agency Inc. has provided labor certification advertising services to immigration attorneys since 1992. Adnet helps attorneys find appropriate places to run labor cert ads, places the ads, obtains the tearsheets, and offers a variety of billing options. Attorneys can manage the entire ad process through Adnet's secure web-based Ad-managment system. Most of Adnet's services are free since we receive a commission from the newspapers and journals where the ad is placed. Adnet services large international law firms as well as solo practice attorneys. Call us at 212-587-3164, visit, or email us at Contact us today to find out why we are the ad agency of choice for immigration attorneys since 1992.


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.

Law Firm Practice Management Seminar
Webinar on Workplace Violence, Security Protocol and Crisis Communications for Law Firm Leaders. Free Webinar on Tuesday, June 5 from 1pm-2pm EDT. Space is limited. For more information and to reserve a Webinar seat, see:


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:
I am glad to see how many ID letter writers are as outraged by Lou Dobbs as I am. His program of anti-immigrant hate is a disgrace to America. What surprises me is why there is not a massive boycott of CNN, CNN en Espanol and their advertisers by Latino and other immigrant rights groups, as well as all Americans of good will. Look what happened to Imus, who lost his job and career for five minutes (well, maybe a bit more over his long career) of bigotry, while Dobbs has been doing this night after night for several years. If his advertisers started to pull out, he would be gone in minutes. In the 1930's media hatemongers like Father Coughlin were doing the same thing to the Jews. Before that, the Italians, Chinese, Irish and many others were the targets. Hasn't America had enough anti minority, anti-immigrant hate in its history? Do we really want this to be the reality of the 21st century as well?

Roger Algase, Esq.
New York, NY

Dear Editor:
As an immigration attorney I have seen too many families in the same position described in Cheryl Hillier's letter (05/16/07 ID), with their American children attending school and basically growing up here; it is heartbreaking to learn they have had their garage sales to sell their toys before being forced to move back to Europe because the parents are fed up with a system which does not allow them to stay after ten-plus years of contributing to our society on E-2 visas. People like those Cheryl describes are usually left out of "immigration reform" because they were inevitably legal on whatever arbitrary date Congress comes up with to determine who "wins" and who "loses". The same case can be made for asylum seekers facing deportation orders as described in Robert Yang's letter (05/16/07 ID). These are hard working people who have gone through a lot of legal channels and expense to stay in this country legally, yet at the end of the day they will probably be pushed out too and their children who go to our schools will hold their garage sales and end up in some dangerous country which is why their parents left in the first place. As an American citizen, I would think that the people who most want to stay here, who have tried to play by the rules (and this includes all the 245i applicants, many who are still in limbo or worse since April 30, 2001), should be given the first green cards, not shown the door.

Susanna Bogue, Esq.
San Francisco, CA

Dear Editor:
I do not believe I have ever read a better compilation of Letters to the Editor than those in the May 16, 2007 edition of Immigration Daily. It is sad that most likely there was not one US Congressman or Senator who read the letters. We all talk about "Comprehensive Immigration reform, but this term has no actual meaning, and very definitely means very different things to different people, depending upon the special interest group to which they belong. Congress would do well to read the opinions of Cheryl Hillier and Robert Yang (05/16/07 ID), both of whom succinctly draw attention to the fact that the issues of immigration reform go far beyond securing the borders, illegal immigration and amnesty for law breakers. America's entire system of legal immigration is broken. But we should not fix it - we should replace it. So far, I have seen no replacement proposed, just more band-aid patches on that worn and tired crazy quilt we call an "Immigration System". So what's wrong? Why can't we get good immigration reform? Perhaps it is because there is no oil in immigration and because pork barrel politics continue to take precedence over problem solving in the Congress.

David D. Murray, Esq.
Newport Beach, CA

Dear Editor:
Responding to Robert Yang's letter (5/15/07/ID) with a follow up: Indeed a very significant percentage of undocumented immigrants in this country have stayed here after trying to change their legal status by trying to follow the law (the immigration law that's known to be dysfunctional from the day it came into effect). Many of them had worked here with annually renewed temporary work authorization for years because their cases were pending for 5-10 years because of the huge backlog. Most of them were ordered to be deported because they could not convince the judge, that their return to their country would cause them significantly extreme hardship. Yes, I agree with Robert Yang's letter, that trying to legalize yourself (but failed) should not be a disadvantage for any undocumented immigrant currently in this country over those who never did any step toward legalization, instead went underground and lived there for years without paying taxes or contributing to the society. I would make only one exception in this category, those who were ordered to be deported because of failing to prove good moral character because they committed crimes or felonies.

Los Angeles, CA

Dear Editor:
Yes, I do agree with the analysis of legislation in the 110th Congress, that the English Language should be as the official language of the US. No other people or country should change or abolish the nature of a country where we were aloud to immigrate some day for our benefit, looking out for better future a better life and better opportunities that the US offers to the fore ins. We should appreciate the fact that are allowed it in a country full of opportunities and we are the ones who should accommodate with the Language that the Americans are willing to provided us in learning their language so we can become a better prepared persons for the future as been a bilingual.

Redpor Repollo

Dear Editor:
Please provide the source that was used for the comments made under the heading "Comment" (see 04/20/07 ID comment). I need to know what study was used to verify the statement "that not one single terrorist has yet been found from performing these check."

Jennifer Sas

Editor's note: Neither the Department of State nor any government agency has claimed otherwise, despite significant resources expended on this program.

Dear Editor:
The British Daily Mail reports that America's immigration officers will be getting charm lessons from Disney. Looks like Chertoff has sold us down the river - we're going to have to take tips from Mickey Mouse on how to welcome people into the US - I love how they refer to our front line as "surly".

Tim Houghtaling

Dear Editor:
Let's not ignore the fact that three of the "Ft. Dix Six" were Albanian nationals living in the "sanctuary state" of New Jersey. The Duka brothers were smuggled in along with their family as children through our Southern border with Mexico. They had had a total of 45 encounters with law enforcement, including many violations for driving without licenses. At no point did any of the law enforcement personnel ever query ICE or these guys about their immigration status. Their terrorist plot to murder US soldiers at Ft. Dix, in NJ was uncovered b/c of a savvy clerk at Circuit City reported to the FBI. The Duka brothers and thousands more like them, living in sanctuary cities like San Fransisco, Chicago, Houston, Cherry Hill, Princeton, Hightown, Dallas, and states are probably anxiously awaiting Senator Reid, or Congressman Guitterez's amnesty bills that would immediately provide temporary residency to every single illegal alien in this country and allow them to remain for about another decade whether or not they pursue a "path to citizenship". Those like the DUKA brothers would then be "legitimized" and even more free to pursue their nefarious acts.


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 1995-2007 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