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    5005 Rockside Road
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    Cleveland Ohio 44131
    Phone: 216.573.3712
    Fax: 888.513.6917

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    18751 Street
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    Washington DC 20006
    Phone: 202.379.3086
    Fax: 888.513.6917

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    New York NY 10005
    Phone: 646.286.5309
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  • Post image for BALCA on Employers’ Interview Requirement For Those Who Can Acquire Needed Skills

    BALCA in Matter of Select International Inc. 2011-PERM-01478, held that where a resume showed a broad range of experience, training, and education, the employer had a duty to investigate the applicant given its willingness to accept a “combination of education, training, or experience.”

    On February 22, 2007, Select International (“Select”) filed for Permanent Employment Certification (“PERM”) for the position of Industrial /. Organizational Psychologist. On June 22, 2007, the Certifying Officer (“CO”) issued an Audit Notification. Select responded on July 25, 2007. On September 30, 2008, the CO requested a signed affidavit and documentation explaining why it is not feasible to train a worker to qualify for the job opportunity. Select filed its recruitment report and other supporting documentation on February 23, 2009. On February 4, 2010, the CO denied the application because Select rejected three U.S. Citizen applicants for non-lawful job-related reasons. Specifically, the CO stated that three potentially qualified applicants were rejected despite Select’s statement in its ETA Form 9089 that it “will accept any suitable combination of education, training, or experience.” Select filed a request for reconsideration.

    PERM regulations require an employer to conduct mandatory recruitment steps in good faith to recruit U.S. workers prior to filing an application for permanent alien labor certification. 20 C.F.R. § 656.17(e).  To conduct recruitment in good faith, an employer “must take steps to ensure that it has lawful job-related reasons for rejecting U.S. applicants, and not stop short of fully investigating an applicant’s qualifications.” E. Tenn. State Univ., 2010-PER-00038. “Rejection of one or more U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-the-job training, is not a lawful job-related reason for rejecting the U.S. workers.” Id.

    The Employer’s Recruitment Report indicated that eight U.S. workers responded to its recruitment efforts. Regarding applicant Avi Avigdor, Select found that he did not have the required experience, so he was not offered an interview. The CO cited Mr. Avigdor’s 47 months of experience in its denial, and Select argued that they were not related to the position. Mr. Avigdor had a master’s degree in I/O Psychology, was in the process of obtaining his Doctorate in I/O Psychology, had 16 months experience in Organizational Development, 8 of which was in a similar position to Select’s, and also has experience using SPSS. BALCA stated that if an applicant’s resume demonstrates a broad range of experience, education, and training, such that it is reasonably possible that he or she is qualified for the job, the employer has an obligation to further investigate the applicant’s credentials beyond the face of the resume. BALCA in this case found that Select had the duty to investigate his qualifications further, and thus affirmed the denial of the labor certification.



    New Bank Payment Process for Philippine NIV Visa Applicants

    by JP Sarmiento on September 19, 2012

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    Beginning September 3, 2012, nonimmigrant visa applicants are required to present a U.S. visa application deposit slip to pay the machine-readable visa (MRV) application fee for Philippine non-immigrant visa applicants. Before going to the bank, applicants must print the applicable U.S. visa application deposit slip and take it to the bank to pay the fee. There is an expiration date on the deposit slip.  Bank agents will NOT accept payments based on expired deposit slips. Upon receiving your payment, the bank will issue a receipt. This receipt cannot be replaced. Applicants will not be able to schedule anappointment without the receipt number.

    Source: US Embassy Philippines – Non-Immigrant Visa Page


    October 2012 Visa Bulletin Falls Below Expectations

    by JP Sarmiento on September 15, 2012

    Post image for October 2012 Visa Bulletin Falls Below Expectations

    The October 2012 Visa Bulletin was released on September 10, 2012. October is the start of the fiscal year for immigration purposes. As you may know, the EB2 employment category retrogressed a few months ago, including those in “other countries”, which has almost always been current.

    Dates for EB2 India is September 1, 2004 and EB2 China is July 15, 2007. “Other countries”, the Philippines, and Mexico all had January 1, 2012 as EB2 priority dates. These are way under the predictions made for the October priority dates. The expectation for India prior to this release was 2007,  3 years less. For Indians under the EB2 category, in order to apply for a green card, or, if pending, for their green card applications to be adjudicated, the I-140 priority date should be September 1, 2004 or earlier.

    Porting from EB3 to EB2 has increased the number applicants for EB2 India, putting the priority dates way back. The demand data which was released on September 10 shows that for EB2 India, there are 1,350 applicants with a priority date before January 1, 2007, 5,500 before January 1, 2008, and 20,000 before January 1, 2009.

    Source: www.travel.state.gov


    DHS Starts Issuing Deferred Action Approvals

    by JP Sarmiento on September 14, 2012

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    The DHS has approved the first set of applications from young illegal immigrants eligible for Deferred Action. The first approvals come just three weeks after the United States Citizenship and Immigration Services started accepting applications for the program announced June 15. The government had estimated previously that it could take months for each application to be reviewed and approved. So far, about 72,000 people have applied to avoid deportation. DHS said background checks, including fingerprinting, are being conducted on each individual before an application can be approved. They initially estimated an average wait time of about four to six months.

    Source: CBS News



    Post image for Show Me Your Papers, ICE Deports Record Number, Circuit Cases on Asylum and Ag Felony

    Show Me Your Papers

    U.S. District Judge Susan Bolton ruled that Arizona authorities can enforce the section of the state’s immigration law critics have called the “show me your papers” provision, as reported on CNN. This clears the way for police to carry out the requirement that officers, while enforcing other laws, question the immigration status of those they suspect are in the country illegally. This provision has been in the middle of a two-year legal battle that resulted in a U.S. Supreme Court decision in June upholding the requirement.

    Those against the provision pled for Judge Bolton to block the provision, arguing that it would lead to systematic racial profiling and unreasonably long detentions if enforced. Those for the provision argued that racial profiling was simply a speculation. Governor Jan Brewer’s office also said that police have received training to avoid discriminatory practices and that officers must have reasonable suspicion that a person is in the country illegally to trigger the requirement.

    Judge Bolton mentioned that her Court will not ignore statements from the Supreme Court that the provision cannot be challenged further on its face until the law takes effect. She confirmed the Supreme Court’s interpretation that the law may still be challenged as unconstitutional on other grounds.

    Arizona’s law, SB1070, was passed in 2010. Five other states, Alabama, Georgia, Indiana, South Carolina, and Utah have adopted similar variations.

    ICE Detained and Deported A Record Number of Illegals

    Immigration and Customs Enforcement (ICE) detained and deported a record number of illegals in 2011 and are on track for similar numbers this year, even though the number of illegals crossing the border dropped to a 40-year low, according to the New York Times.  ICE agents deported 391,953 in 2011, including 188,000 convicted of crimes, which was an all-time high for such deportations.

    Citizens of Mexico, Guatemala, Honduras, and El Salvador made up 93% of all people deported last year. To date there are about 366,000 deported through August 31, but they include 191,000 convicted criminals, more than last year. ICE also detained about 429,000 immigrants last year which was another record.

    Though the Department of Homeland Security (DHs) had said that they are focusing on illegal immigrants with criminal convictions, the record number of deportations the past two years had a big impact on the Latino community, causing doubt on the Obama administration.

    Circuit Cases

    • 1st Circuit: Rebenko v. Holder, September 4, 2012. Asylum. Petitioner testified at the IJ level that she experienced mistreatment in Ukraine on account of her Pentecostal faith on four occasions: (1) her arrest in May of 1999; (2) her receipt of threatening phone calls from nationalists following her arrest; (3) the “mockings” she experienced during her graduation in June of 2000; and (4) her beating at the hands of “skinheads”. The 1st Circuit noted that Petitioner did not report any significant mistreatment before May of 1999 or after June of 2000, though she had practiced Pentecostalism since childhood and continued to live in Ukraine until July of 2001. The Court held that the IJ could have reasonably concluded that the mistreatment Petitioner described was not “systematic” but was “reflective of a series of isolated incidents” over the course of a bad year. The Court mentioned that Petitioner describes no nexus between her harassment at her graduation and any government action or omission. Her speculation that the police caused nationalists to make threatening phone calls was not supported by evidence. The Court viewed Petitioner’s May 1999 arrest as a single incident in which Petitioner suffered no injuries requiring medical treatment, and that a reasonable adjudicator would not be compelled to find that this incident rose to the level of persecution.
    • 9th Circuit: Sanchez-Avalos v. Holder, September 4, 2012. Criminal. Petitioner petitioned for review the BIA’s decision that he is not eligible for waiver of inadmissibility because he was convicted of an aggravated felony. Petitioner argued that his conviction for sexual battery under California Penal Code § 243.4(a) did not qualify as sexual abuse of minor. The Court applied the categorical and modified categorical approaches. The Court concluded that the crime of sexual battery under California law is categorically broader than the federal generic crime of “sexual abuse of a minor” because the California crime may be committed against a victim of any age, while the federal generic offense requires proof that the victim was a minor. Court held that the crime of sexual battery in California is not categorically an aggravated felony, and that none of the evidence established that the petitioner’s victim was a minor.



    Family, Tuition, Politics

    by JP Sarmiento on September 7, 2012

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    The Philadelphia Inquirer had a piece on the hardships families with deported parents and U.S. citizen children face. They talked about Chon and Ibed, a Mexican couple with three U.S. Citizen children, telling their story from how they met as two illegal immigrants to eventually having a family, to Chon’s recent deportation. It is a story that is typical in the field of immigration, one that is similar to most families with a deported parent and U.S. citizen children.

    Around four million U.S.-born children have at least one parent with no immigration status, based on the findings of the Pew Hispanic Center, a research organization in Washington. They also found that the proportion of adults who entered the border illegally, get deported, and try to cross again is growing. The current immigration policy has led to an increase in female-headed households, with mothers being forced to support their families since their husbands got deported, affecting thousands of U.S. citizen children in the process.

    According to the Applied Research Center, an think tank organization in New York that recently analyzed Immigration and Customs Enforcement data, from 2000 to 2010, 8 percent of all deportees had U.S. Citizen children.


    A federal judge ruled that children of undocumented immigrants cannot pay higher out-of-state tuition in Florida just because their parents are illegal, based on this report by the Miami Herald. Judge K. Michael Moore held that the policy violates the equal protection clause of the Constitution by forcing these U.S. Citizen students to pay three times more than Florida residents. The ruling came in a lawsuit filed by the Southern Poverty Law Center on behalf of Florida U.S. Citizen students denied in-state tuition because they could not prove their parents’ legal status. This would provide thousands of students greater access to an education. At the University of Florida for example, in-state tuition costs $205 per credit hour, while out-of-states costs $947 per hour. Based on a Florida International University law professor’s analysis of the U.S. Census, nearly 9,000 children of undocumented immigrant parents are enrolled in Florida public colleges and universities in a given year.

    Other states had similar rulings recently. In New Jersey, a state appeals court ruled that U.S. born student whose parents could not prove valid immigration status was wrongly denied financial aid. In California and Colorado, similar rulings were made.


    CBS News summarized the Democratic and Republican immigration agendas based on recent convention speeches by members of both parties. The Democrats are committed to helping some undocumented immigrants get a “path toward citizenship”, “learn English and pay taxes”, and have a visa system that meets the country’s “economic needs, keeps families together and enforces the law. The Deferred Action Program illustrates this theme, and would likely be continued with an Obama reelection.

    The Republican platform on the other hand is against any form of amnesty for those who intentionally violated immigration laws. They called for the Justice Department to stop their lawsuits against states with tough immigration laws. They also intend to deny federal funding to schools that provide lower in-state tuition to illegal immigrants. An increase in “show-me” laws such as those in Arizona and a possible repeal of the Deferred Action Program are possible repercussions of a Romney presidency.



    Driver’s License, Republicans, Detention

    by JP Sarmiento on September 3, 2012

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    Drivers License

    The Deferred Action for Childhood Arrivals program (DACA) allows for work permits to certain undocumented immigrants who apply for such, and who meet seven criteria:

    • Were under the age of 31 as of June 15, 2012;
    • Came to the United States before reaching their 16th birthday;
    • Have continuously resided in the United States since June 15, 2007, up to the present time;
    • Were physically present in the United States on June 15, 2012, and at the time of making their request for consideration of deferred action with USCIS;
    • Entered without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012;
    • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
    • Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

    Beneficiaries of DACA who apply for employment authorization will them in the form of an employment authorization card.

    Employment authorization cards issued during the pendency of other ongoing immigration application (green card, asylum) historically allowed beneficiaries to obtain social security numbers and driver’s licenses. You simply present this card to the social security office or BMV, and you can obtain a social security number and driver’s license respectively.

    But states have been split in granting driver’s licenses to beneficiaries of DACA. The governors of Nebraska and Arizona stated the past week that their states will deny driver’s license benefits to DACA beneficiaries.

    MSNBC reported that California though has approved a bill allowing DACA beneficiaries to obtain driver’s licenses. The bill passed the state assembly, 55-15, on August 30, before getting sent to Democratic Governor Jerry Brown. The bill also passed the state Senate in 25-7 vote on August 29.

    DACA beneficiaries and potential applicants should first check whether their states would allow them to get a driver’s license.


    Jason Riley in the Wall Street Journal wrote that Republicans in the GOP convention support a policy that encourages high-skill immigration over low-skill immigration. This should imply that programs such as the H-1B, National Interest Waiver, Alien of Extraordinary Ability, and Labor Certification would be favored over laws and executive orders such as the current Deferred Action Program, if they would support any area of immigration at all. But this also weakens their hold on the Latino vote. Over 50% of those benefiting from DACA are Latinos.


    This New York Times editorial encourages Governor Jerry Brown of California to sign the Trust Act. The Trust Act is a recently passed California bill that prevents local police from turning their detention facilities into immigration holding cells for noncriminals or minor offenders whose sentences are finished or should otherwise be out on bail. The Act would require the police to let such people out, even if the Immigration and Customs Enforcement (ICE) issued requests that they be held until they can be picked up for deportation. The Act provides that only those who have been convicted of or charged with serious or violent felonies would continue to be detained an ICE’s request. On August 31, the Los Angeles City Council voted 11 to 0 for a resolution endorsing the bill. The bill’s rationale is to be in line with the Department of Homeland Security’s focus on deporting national-security threats, dangerous criminals, and repeat offenders.



    Post image for Travel on Advance Parole no Longer a “Departure”, Taking Out Inadmissibility Bars to Some Applicants with Unlawful Presence Issues

    Some people can apply for a green card despite overstaying their status, such as those who are legal entry overstays who apply for a green card based on marriage to a US Citizen, or those who are applying based on employment, overstayed their status, but benefit from Section 245i. When you have a green card application pending, you may apply for advance parole, a travel document that in theory permits you to travel and reenter the United States. So those who overstayed and applied for a green card usually still obtain advance parole.

    Prior to Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which we shall discuss in a bit, the Department of Homeland Security’s (DHS) position was that those who departed the U.S. on an advance parole, after incurring unlawful presence of six months or more, would be subject to either the three or ten year bars, and are thus inadmissible. Because of this position, a lot of people who have approved advanced paroles after incurring years of unlawful presence (marriage to a U.S. Citizen or those eligible for adjustment due to INA 245i) were not able to return to the United States due to either the three or ten year bar. Why does the I-131 advance parole get granted when the applicant will be inadmissible anyway? Who knows. Those applicants would’ve been better off had the I-131 been denied, because at least it would have prevented them from traveling abroad. It was a tricky and deceiving aspect of advance paroles and adjustment of status applications for those with unlawful presence issues, especially for those who did not seek legal advice.

    But in Matter of Arrabally and Yerrabelly, the Board finally held that a departure under an approved advance parole is not a “departure” for purposes of INA § 212(a)(9)(B) which triggers the three and ten year bars. Thus, those who have over six months of unlawful presence, who are eligible to adjust status in the United States, would now be able to come back on the advance parole without being inadmissible anymore. This is a big decision for those employment-based 245i green card cases by applicants with six or more months unlawful presence. Since visa retrogression has delayed a lot of green card applications, those applicants with unlawful presence issues but are 245i eligible can now apply for advance parole and visit their home countries, without being subject to the three or ten year bars that the DHS used to impose on them upon return prior to this BIA decision.


    The Need for Travel Requirements in PERM Advertisements

    by JP Sarmiento on August 26, 2012

    Post image for The Need for Travel Requirements in PERM Advertisements

    In a recent BALCA Decision, In re MILLC, Case No. 2011-PER-01256, BALCA affirmed the Certifying Officer’s decision denying employer’s labor certification application for failure to include travel requirements in its advertising. The employer’s Form 9089 stated that travel between 34% to 45% of the time is required. Their newspaper advertisements though did not include this requirement. BALCA cited 20 C.F.R. § 656.17(f)(4) which states that “Advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must… indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” BALCA concluded that the ads did not sufficiently indicate the geographic area of employment for the job opportunity described in Form ETA 9089 Section H.



    Deferred Action for Childhood Arrivals and DREAMers

    by JP Sarmiento on August 15, 2012

    Deferred action for childhood arrivals is a policy by the Department of Homeland Security that allows individuals who came here at a young age, and who meet other requirements that would explained below, to have work permits and have possible removal deferred as an exercise of prosecutorial discretion. As we posted in our previous article, DHS Secretary Napolitano issued a memorandum announcing that the DHS will offer deferred action for two years to certain young people who came to the U.S. as children and meet other eligibility criteria. This memo came out on June 15, 2012.  According to the memo, individuals who receive deferred action will not be placed in removal proceedings or removed from the U.S. for the duration of the grant. Individuals in removal proceedings, those with final orders, and those who have never been in removal proceedings will be able to affirmatively request deferred action from the USCIS.

    According to USCIS FAQs released in August 2012, an individual who meets the following criteria may apply for deferred action:

    1. Was under the age of 31 as of June 15, 2012;
    2. Came to the U.S. before reaching his/her 16th birthday;
    3. Has continuously resided in the U.S. since June 15, 2007, up to the present time;
    4. Was physically present in the U.S. on June 15, 2012, and at the time of application to the USCIS;
    5. Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
    6. Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a GED, or is an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces; and
    7. Has not been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, or does not otherwise pose a threat to national security or public safety;

    To request deferred action from USCIS, individuals must submit:

    1. I-821D, Consideration of Deferred Action for Childhood Arrivals
    2. I-765, Application for Employment Authorization (cannot be e-filed)
    3. I-765 WS, Worksheet
    4. Government Fee of $465 payable to the “USCIS”

    Should you wish to have your case assessed for deferred action purposes, feel free to contact our office at (216) 573-3712 or 1 (800) 496-8043, email us at info@sarmientoimmigration.com, or place your questions below on the comment section.