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Immigration Daily June 12, 2008
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More On Diversion

As a reader's letter below demonstrates, "diversion" is an esoteric concept in labor certification. We offer below DOL's own words on diversion. Future comments will revisit this concept in connection with DOL's recent action, stay tuned to Immigration Daily.

From the BALCA Benchbook, Chapter 23

In some cases, employers hire a U.S. applicant and still desire to hire the alien. In Engineering Technology, Inc., 88-INA-508 (Feb. 8, 1990) (appeal filed in D.C. S.C. Feb. 8, 1990), the employer, faced with a qualified U.S. applicant, offered to him a "senior" position in its organization, thereby leaving the job offered open for the alien. The panel found this maneuver to be an unlawful rejection, holding that the diversion of available, qualified U.S. workers into other positions does not render them any less available or qualified for the job offered.

Likewise, in Western Bagel Baking Corp., 90-INA-72 (May 22, 1991), an U.S. applicant's failure to respond to the employer's offer of an alternate job in retail sales did not cure the unlawful rejection for the advertised job and labor certification was properly denied.

The Board has also held that an employer may not hire a U.S. applicant for the job offered and then hire the alien for an identical position, at least where multiple positions are not been offered from the outset. In Precision Airparts Support Services, Inc., 88-INA-508 (Feb. 8, 1990), the employer sought to certify the alien for an aircraft mechanic position. However, because the record did not show that multiple openings existed at the time of application, the employer had failed to prove that no U.S. workers were available for the original position.

See also American Middle East, 90-INA-346 (Sept. 17, 1991) (documentation from the outset indicated that there was only one position; employer hired five U.S. applicants and responded to the CO's finding of sufficient U.S. workers that it had a large contract and that it could not predict from day to day how many new positions would be added); Publix Supermarket, 88-INA-429 (Sept. 28, 1989) (sole U.S. applicant was placed in a regular baker's job because the alien was allegedly more qualified for the job for which labor certification was sought: pastry baker).

From the BALCA Benchbook, Chapter 23 Supplement
The panel reiterated the Board's well established holding that an employer may not hire a U.S. worker for the job offered and then hire the alien for an identical position by asserting multiple openings where only a single opening was listed in the advertisement and ETA-750. Nonetheless, the panel granted certification in this case based on employer's willingness to comply and its statement to the local employment agency that multiple openings were in fact available. Children's Hosp. of Michigan, 93-INA-160 (Jul. 26, 1994).

Denial of certification vacated and case remanded to the CO where there were two aliens, two openings were advertised and the CO found that only one U.S. worker was unlawfully rejected. Garibay Maintenance, 92-INA-399, 400 (Oct. 27, 1994).

Labor certification was properly denied where the employer indicated the availability of only one opening for the petitioned position which was subsequently filled by a U.S. worker. Premark Int'l, 91-INA-167 (May 18, 1992). See also Casa San Miguel, Inc., 92-INA-73 (July 2, 1993) (employer could not assert multiple openings in its rebuttal where the ETA-750 and advertisements listed only one opening); IMT Italian Marble & Tile Co., 91-INA-179 (Dec. 11, 1992) (employer's assertion of multiple job openings on appeal not sufficient where a single opening was listed in the advertisements and ETA-750); Sam's Exxon, 91-INA-362 (Dec. 11, 1992) (employer determined that U.S. worker was overqualified and offered higher paid position but panel held improper diversion) ; Aloha Airlines, 91-INA-181 (June 1, 1992).

Labor certification was improperly denied and a remand was necessary because the panel stated that it was "basically unfair for the CO to have consolidated these 13 cases and then to have denied all of the certification applications because three potentially qualified U.S. worker(s) were not hired." Without assessing the merits of the rejections of the U.S. applicants, the panel remanded the case "to the CO with instructions to determine each case separately and to allow Employer an opportunity the readvertise the jobs with (the) actual minimum requirements for each position." The Budd Co., 91-INA-204, 205, 209-214, 217, 219, 220, 92-INA-207, 208 (Aug. 4, 1993). See also Joel Atlas Skirble & Assoc., 94-INA-373 (May 25, 1995).

From the BALCA En Banc Summaries
Good faith efforts to recruit: diversion of U.S. applicant: "fact that a position was created after a qualified U.S. worker applied for the job for which certification is sought suggests that it was created in a way to keep the original position open to the alien and to circumvent 20 C.F.R. 656.20." AMGER CORPORATION, 1987-INA-545 (Oct. 15, 1987) (en banc)
We welcome readers to share their opinion and ideas with us by writing to


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.


Legally Unfair
William Henry Humble III writes "Frightening are the consequences for lack of compliance with immigration related employment laws: investigations, audits, civil penalties and worst of all, criminal prosecution."

Bloggings: June 12, 2008
Greg Siskind shares the latest entries to his blog.

To submit an Article for consideration, write to


USCIS Offers Premium Processing For Certain I-140 Petitions
USCIS announced that on June 16, 2008, it will begin accepting Premium Processing Service requests for Forms I-140 filed on behalf of certain alien workers who are nearing the end of their sixth year in H-1B nonimmigrant status. See the announcement here and see the fact sheet here.

Executive Order Amendment Requires E-Verify For Contractors
President Bush issued executive order 13465, amending executive order 12989, requiring federal contractors to use the E-Verify System.

Secretary Chertoff Announces 2-Year EADs
In a state of immigration address, DHS Secretary Michael Chertoff announced that USCIS will begin issuing 2-year EADs to individuals with a pending adjustment of status application.


Help Wanted: Immigration Paralegal
Pittsburgh, PA - Fujitsu Consulting, an international IT services and consulting company, seeks an immigration paralegal for its in-house immigration department. The paralegal will participate in all aspects of the department's employment-based immigration practice. Candidates must be detail-oriented, possess solid writing skills, and be capable of working in a fast-paced and deadline-driven environment. A bachelor's or higher degree is required. Experience as an immigration paralegal is preferred, though not required. Salary is competitive. All qualified applicants are invited to apply. Please email your resume to EOE.

Help Wanted: Immigration Paralegal
New York, NY - Bretz & Coven, LLP, a fast-paced Manhattan immigration law firm, seeks experienced paralegal able to speak English and at least one other foreign language (Hindi, Spanish, Creole French, etc.). Qualified candidates must have 2+ years of diverse immigration experience. The position requires heavy contact with clients. Requirements for this position include strong written and oral communication skills, attention to detail, organizational skills, ability to meet deadlines, interpersonal skills, team-mindedness, customer service skills, PC skills, ability to handle multiple tasks at the same time, and ability to work under pressure. Please e-mail your resume, salary requirements & writing sample to

Help Wanted: Immigration Paralegal
Lexington, KY - Stoll Keenon Ogden PLLC, a large Kentucky law firm, seeks employment-based immigration paralegal/case manager. Position requires strong organizational, writing, communication, and computer skills. Experience preferred in H-1B, L-1, PERM, and I-140 cases. Spanish or Japanese language skills considered a plus. Salary commensurate with experience. Competitive benefits. Great work environment. Please email your resume and salary requirements to EOE.

Help Wanted: Immigration Attorney
Cerritos, CA - The Chugh Firm, a mid-size law firm, seeks business immigration attorney with a minimum of 3 to 5 years experience in employment-based immigration. Email resume to

Position Sought
Experienced immigration specialist seeks immigration contract work for immigration law firms on a telecommute basis. Possess 10+ years experience in law firm environment and corporate environment managing the immigration department with primary responsibility for all phases of immigration processing and administration. Provides a wide range of immigration support services to immigration attorneys and organizations including, but not limited to: preparation of all IV and NIV documents and support letters (B, H, E, L, TN, O, P, PERM and PR), onsite I-9 and Public Access File auditing services to ensure corporate compliance with labor and immigration regulations, and coordinating visa applications requiring host-country filings. Resume, writing sample, and references available upon request. Email:

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 $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: 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, or email:

EB-5 Business For Sale
US EB-5 opportunity - Lumber manufacturing, Barnes Manufacturing Co., Kenbridge, VA, Lunenburg County. $2.7 million USD. No debt or inventory included. To view pictures and an appraisal report, see here. To discuss further, contact Thomas Barnes at: or call 434-955-0595 (after 10 am EST). All inquiries will be kept confidential.


Innovation And Immigration
We must continue to improve our economy and quality of life by investing in innovation, which means we need to build the workforce that includes the foreign students we have trained at our universities in order to keep up with our increasingly scientifically advancing world.

Local Government Can't Fix Federal Failings On Immigration
The federal governments failure to craft a workable immigration policy continues to cause state and local governments to waste time and effort on unfeasible proposals for stemming the flow of undocumented immigrants.


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.

Immigration Book
"Debating Immigration" Carol M. Swain (Editor), Cambridge University Press, USA, 328 pp. Paperback, ISBN: 0521698669, $19.95


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 read ID's DOL circus comment (06/10/08 ID0. The comment references the DOL policy of diversion. Is there a DOL PERM FAQ, 20 CFR section, or INA section that it is referring to when it references this policy. I was trying to find the reference the comment were referring to. If you could refer me to the document or policy statement that the comment are referring to I would appreciate it. Just want to make sure that I am reading the correct background source material that the comment are referring to.

Aaron Hurlock

Editor's Note: Please see comment above.

Dear Editor:
David Utterback's letter (06/11/08 ID) invoking God as disapproving of migrants struck me as interesting. The first institution God established on earth was marriage, from which families were the natural result. Marriage/Family is the spiritual and social cornerstone of our society. I would certainly agree there is "disharmony" when you have 6.6 Million mixed status families being disrupted by bad immigration law. How can you tell a good law from a bad one? Try outlawing gravity, rain, wind or snow. People migrate for economic, political and natural causes. Migration is a force of nature as old as the earth. Anytime mans law is out of sync with natural law you have "disharmony". Nothing good can come from tampering with the natural order of things such as the destruction or interference with Gods institutions, marriage and family. Our immigration laws are currently not in harmony with the reality of the situation as it relates to the current economic migration. How then do we regain harmony? I have only to look to Jesus for the answer regarding the migrants in our midst. When he passed the basket all were included. This miracle showed us that love, and some creativity can overcome obstacles.If Jesus were a contemporary some might describe him as one who thinks outside the box. The God of the Old Testament did not subscribe to Malthusian crisis theory, neither did Christ. Our resources from a spiritual standpoint are gifts from God and the only way to honor him is to share them not selfishly hoard them. If we believe in the Old Testament God and the New Testament God, we can agree not only is he just he is also loving and merciful. As faithful Christians our immigration policy should honor his institutions and reflect his mercies.

Janet Fitzgerald

Dear Editor:
I disagree with Mr. Roberts' letter (06/11/08 ID) denouncing free trade in services and goods as well as in labor on the advice of Patrick Buchanan. I can only say that if mercantilism worked, Middle Eastern and Latin American nations would be wealthy and productive compared to Europe, which they manifestly are not. Further, India would have done better before the Congress Party got a run for its money and started opening the economy instead of worse. "Red" China, that bogeyman whose economy is still smaller than France's, has had an even more dramatic turn-around that allowed it to export its savings to us since it has precious few children to invest in and needs to survive old-age somehow. We would be in a recession now if NAFTA and other trade opening initiatives had not allowed our economy to diversify and grow as fast as it did - don't believe me, look at Japan's decade plus long recession and how it finally ended. "New Europe" would have lower growth rates than "old Europe". We have an unemployment rate of 5 and one half percent and panic. Mercantilist nations rejoice at such a "low" unemployment rate. Our problems come from too much market insulation, not too little. Free-trading Wal-Mart added more value to the economy than mercantilist Microsoft and Apple put together, and probably kept our inflation low for fifteen years so that we could get the benefits of inflating the currency without suffering the ill effects until now. Opening our labor markets - intelligently and in a way that encourages high value imports instead of those willing to live in the shadows as low-end illegals - would help, even though it might flatten wages for professionals like attorneys instead of the working class for a change.

Honza Prchal

Dear Editor:
You've recently started sending your daily emails to my email address - this is a forwarding email which has not been voluntarily signed up to your list. It is a very specific email address for information related to sweatshop campaigning within the public service union in the UK. Receiving your emails is irrelevant and frankly annoying. Please get that address off your list.


Editor's Note: We do not send out Immigration Daily unsolicited to any email address. This email address was entered on our website a few days ago by someone unknown to us. It has been unsubscribed as per your request. Each issue of Immigration Daily contains unsubscribing instructions for those who do not wish to continue receiving it.

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