RECYCLING  Recycling is important because it is good for the environment and helps prevent the waste of useful materials.  For example, by recycling aluminum and paper, we can keep these useful products out of landfills.  Also, by preventing the placement of waste in landfills or the burning of waste, we can help prevent water and air pollution. Did you know that you can recycle the following things? 

• Computer paper
• Aluminum cans
•  Cardboard egg cartons
•  Milk jugs
• Newspapers
• Cereal boxes
• Glass bottles
• Batteries
• Some electronic equipment, including computers
• Clothing

These are just a few of the items that can be recycled.  To learn more, go to www.earth911.com/recycling, and www.wikipedia.org/wiki/recycling. To learn more about how you can recycle in your own city, visit www.wmorangecounty.com and/or http://www.edcodisposal.com/recycling/e-waste.html

The Alimorandi Court ruled that government regulations interpreting the phrase through “no fault of his own or for technical reasons” are impermissibly narrow.  To explain this ruling, I will need to provide you with some background.

The Statutory and Regulatory Provisions 

The above-stated phrase ruled upon is found in the statute for adjustment of status.  Section 245 of the Immigration and Nationality Act generally precludes applicants from adjusting their status to that of a U.S. permanent resident if he works without authorization or violates his status; however, there is an exception if the unauthorized work or status violation occurred through no fault of his own or for technical reasons.  The USCIS has narrowly interpreted the “no fault of his own or for technical reasons” phrase to just four exceptions:

• Inaction of another individual or organization designated by regulation to act on behalf of an individual and over whose actions the individual has no control . . .; or
• A techical violation resulting from inaction of the Service . . . [; or]
• A technical violation caused by the physical inability of the applicant to request an extension of nonimmigrant stay … [;or]
• A technical violation resulting from the Service’s (USCIS) application of the maximum five/six year period of stay for certain H-1 nurses . . . .

8 CFR section 245.1(d)(2).

The Problem with the Regulations

I have long felt that 8 CFR section 245.1(d)(2) was drafted much too narrow.  Congress drafted the applicable statute to help immigrants adjust their status despite a technical violation that is minor in nature.  Yet, the regulations limited the exception to four very narrow cases. 

I can think of many cases where an immigrant could have violated his immigration status without his knowledge and without his fault.  For example, his employer could have mistated his job duties on an I-129 petition leading to a finding that the duties he actually performed violated the terms of his visa.  The immigrant is not required to sign or review this form, so the mistake would not have been caused by the immigrant.  Yet, this exception is not included in  8 CFR section 245.1(d)(2).  There are countless other examples of technical violations not included in this regulation.

Alimoradi Faults the Regulation

The Alimoradi Court specifically found the ”narrow construction imposed by the regulation is manifestly contrary to the statute.”  The Court, thus, felt that there are other permissible exceptions that will permit immigrants to adjust their status after a minor immigation violation.

The Implications of the Court’s Decision

The Alimoradi Court’s decision is very limited in its precedent.   It is only binding authority in the District Court’s juridiction in the Central District of California.  Yet, it is very important.  Immigration attorneys can use the case as a persuasive argument in other Districts, and other courts may adopt its reasoning.  I, for one, am very happy to have another bullet in my arsenal when arguing similar cases.  

The government attempted to issue this regulation back in August 2007, but the rule was challenged in Court and an injunction stopped implementation of the rule; the legal case is still pending.   The government appears so confident that it has addressed the Court’s concerns and will soon prevail in the litigation that it is publishing the new rule.  The rule will state how certain employers receiving no match letters can follow a suggested set of procedures over a 93 day period.  The procedures include new I-9 verification in some cases.   If the employer follows these so-called safe harbor procedures, it will generally not be held liable for breaking laws regarding illegal employment. 

We will soon know if the government will prevail in the litigation action.  If it does, we will provide detailed information regarding how your company can address the receipt of a no match letter. 

The Accident.  I was driving to work this morning when I approached a large intersection at Springdale Street and Westminster Boulevard.  Driving on Westminster Boulevard I entered the intersection with a green light.  Because this is a busy intersection, there were many cars stopped and waiting to turn on Springdale Street to my left.  These cars blocked my view so that I did not see the White Truck barrelling along into the intersection, against a RED light until it was almost on top of me.  I tried to speed up my little Sentra at the last second. 

The bad luck.  I could not speed up enough to get out of the way.   Another two feet forward and the accident would not have happened.  Instead, the truck clipped me at the back of my car.  Now I have to deal with all of the insurance, body shop, and car rental issues. 

 The goood luck.  On the other hand, the truck was destined to hit my card about five feet more toward the front of my car before I sped up, which means the Toyota truck would have ploughed right into the driver’s door, where I was.  Since the truck was much bigger and taller than my little Sentra, I think I would have been spending the day in the hospital.  By the way, I was a little shaken by the whole affair, but not physically hurt.

It is funny how little things can change things so much.  The young girl who hit me, never saw me.  She told the police she was reaching down in her car and took her eyes off of the road before reaching the intersection.  She may have dropped something, or possibly was texting.  In any event, her mistake could have proved a major tragedy.  As for me, I realize that were it not for a split second of reaction time, my life might never have been the same.  Maybe I would not be helping immigrants in the future, and maybe my family would have been stuck with a crippled person.

 I think I will count this as a great day.     

The visa waiver is a very convenient tool for travel, but it is somewhat restrictive.  A visa waiver traveler is not permitted to extend status, change to a non-immigrant status, or, generally, adjust status to that of a lawful permanent resident.  In addition, applicants for a visa waiver are required to sign a waiver of any right to contest an action for their removal, other than on the basis of asylum. 

 If you are planning to come to the United States on  a visa waiver, but are also considering applying for a work visa or permanent residence, I advise you to consult with us before travel, so that the appropriate immigration strategy will be used and no laws are accidentally violated.

Still there have been some small movements in the immigration world.  On October 16, 2008, the USCIS issued final regulations which increase from one to three the amount of time a nonimmigrant can be granted TN status.  This regulatory change does help Canadian and Mexican nationals and their employers by giving them more flexibility in making plans for U.S. employment.  It also saves them expense, since extension requests, which cost money in terms of government fees and legal expenses, will not be needed as often.

In addition, the President signed two new bills into law in the past few weeks.  One law, signed on September 30, 2008, extends the E-Verify Program.  This program is meant to help employers electronically verify worker eligibility.   The program has noted flaws and can potentially be used to assist the government with its efforts to conduct worksite raids.  You may see my earlier blog on the subject for more information.

The other new statute, involving religous workers, was signed into law by President Bush on October 15, 2008.  This law continues the immigration program for non-minister religious workers.

Both the E-Verify and religous worker laws were only extended until March 2009.  Congress may have written such short extensions because of reservations regarding the effectiveness of both programs.  Congress wants the USCIS to promulgate regulations that will help cut down the instances of fraud in the religous worker program.  Congress may also be concerned about the error rate involved in the E-Verify Program.  Both of these laws will be reconsidered in the next Congressional term.

I am very hopeful that next year, a non-election year, will bring major reforms to the Immigration Laws that will aid immigrants.  Until that time, I will keep you posted on any other changes.       

 The report involved a sampling of cases filed in 2005 and 2006 that were randomly chosen for investigation.  The investigation involved the review of cases filed and the use of workplace inspections.  The results, as reported, were somewhat surprising.  The USCIS found that out of 246 cases, 20.7% involved incidents of fraud and technical violations.  Fraud cases made up 13.4% of the findings, while technical violations were found in 7.3% of the cases.  I would caution readers that while the report cites violations in more than 20% of the cases, it is entirely possible that petitioners and beneficiaries may have valid defenses to the accusations that could be asserted in administrative or court proceedings.

Regardless of the accuracy of the report, the findings are sure to motivate critics of the Program to demand changes to the H-1B Program.  Many of the findings will bring outrage from these critics, including reported incidents of failure to pay the prevailing wage, improper employer demands for employees to pay H-1B business expenses, forged documents, and even a few incidents where the petitioning company allegedly did not exist.

Having represented employers on H-1B petitions for more than 12 years, I can attest to the fact that the employers I have worked with have tried to fully comply with H-1B rules and regulations.  Therefore, I am very skeptical of the government’s H-1B findings.  Regardless of my skepticism, the government may very well impose some or all of the following actions:  

•  Using independent open-source data to obtain information about visa seekers or petitioning companies.  This information could involve checking public information on a beneficiary’s credentials, commercial records to ascertain if a company is truly operating, and other such data.
• Using risks factors to apply greater scrutiny to cases in a class with a perceived higher incidence of fraud.  This additional scrutiny could result in much longer wait times for adjudication of many petitions;
• Adding additional evidentiary requirements that could make filings more burdensome; and
• Requiring more information on immigration forms.

Smith & Garg, PC immigration attorneys help employers follow H-1B regulations.  We are knowledgeable in all immigration compliance rules.  Please contact us if you have any questions about the H-1B program. 

The results of immigration technology upgrades are uneven.  While the above-noted upgrades have produced some positive results, there are still large backlogs of cases causing very slow processing in general.  Even PERM, the new online labor certification process, has now slowed tremendously.  Where I once saw PERM cases completed in a couple of days, I am now seeing processing times of several months.

Other areas of modernization related to immigration enforcement are also less than perfect.  There is really no word on when a border fence will be completed, and there is certainly no guarantee that it will ever be completed or will be effective.  The E-Verify program likewise is not perfect.  This program provides an electronic system verification of work authorization that links databases of the USCIS and Social Security Administration and provides electronic feedback to employers.  Numerous cases of errors have been reported in the system, which have caused serious problems for individuals facing inaccurate reports of their ineligibility to work. 

I believe that the immigration agencies will make technological advancements that will improve their effectiveness, but there will always be problems areas.  We, the immigration attorneys at Smith & Garg, PC can help make your immigration experience as smooth as possible, under any circumstance.       

Before a labor certification can be granted, the employer must demonstrate that there is not a qualified, willing, and able U.S. worker (hereinafter referred to as a “qualified U.S. worker”) available to fill the position that the employer would like to give to a foreign national.  If this situation can be shown, and the foreign national is qualified to fill the position, the labor certification application may be certified and the process can move forward to the next step in the green card process. 

To demonstrate the lack of qualified U.S. workers, the employer must demonstrate that it advertised for the position, but the advertisement did not result in an application from a qualified U.S. worker willing to take the job.  Normally, there are several advertisements required in different mediums.  The employer is also responsible for providing notice of the labor certification application to the applicable union, or if there is no union, to the employer’s workers.  The process has many requirements, such as the employer’s assurance that it will pay the prevailing wage for the position. 

The labor certification process was developed to insure that when a foreign worker gains U.S. permanent residence through a job offer, it is not at the expense of a U.S. worker qualified for the position.  Thus, the system’s goal is to protect U.S. workers, and it relies on the employer’s good faith efforts to find a qualified U.S. worker. 

In practice, the labor certification process is deeply flawed.  Employers often have a difficult time understanding the rules.  For example, a labor certification application cannot be filed if there is an available U.S. worker who has the “minimum” “objective” qualifications for the position, such as, for example, a certain bachelor’s degree and two years of experience.  The process does not allow the employer to consider such factors as a terrible personality, or a prior employer’s recommendation not to hire the person.   Thus, the process often does not allow for real or normal business recruitment practices.

While the labor certification process is complex and difficult to apply for most employers, the lawyers at Smith & Garg, PC are very good at guiding employers, within the rules, to complete the process.  If you are considering sponsorship of a foreign worker, please contact us for a professional consultation.

This is very good news for religious workers, especially for those who already have pending applications for permanent residence but were uncertain if they would ever receive a green card because of the expiring law.  The extension is, however, a short one.  Congress has only extended the religious worker law to march 9, 2009.

It appears that Congress granted only a short extension of the religous worker law because it wants to see if the Department of Homeland Security can takes sufficient measures to reduce the instances of fraud in the Program.  The USCIS has published reports of high instances of fraud in religous worker applications.  To reduce fraud, Senate Bill 3606 includes the following new provisions:

• The issuance of final regulations, within 30 days of the passage of the Act, to eliminate or reduce fraud;
• Certification to Congress and public notice in the Federal Register that these regulations have been issued; and
• Not later than March 9, 2009, submission of a report to Congress on the effectiveness of the regulations.

In the past, the USCIS has been very slow to publish needed regulations in a variety of immigration areas.  I hope that it will pass the religious worker fraud provisions quickly, as required by the Congressional mandate.  If it does not, the Program might not receive another extension.