BALCA: UTB Falls Down the Rabbit Hole

The Immigration and Nationality Act allows employers to petition for employees to receive permanent residence based on an offer of employment.  Most employment based immigrants must seek a “labor certification” or determination from the U.S. Department of Labor’s Employment and Training Division (DOLETA) that there are no U.S. citizens or permanent resident aliens that are ready, willing, and able to do the job the employer wants to offer the potential immigrant. 

In 2004, DOLETA published regulations on permanent labor certifications.  These regulations are intended to interpret the Immigration and Nationality Act and instruct employers and their potential employees on the process of obtaining a permanent labor certification.  The general public was invited to comment on the regulations. Click here to view the regulations in a pdf format.

In 2007, the DOLETA implemented the regulations and rolled out the PERM process of obtaining a labor certification.  Upon implementation, the DOL released a series of Frequently Asked Questions or FAQs.  Click here to read the FAQs.  These FAQs are detailed instructions on how to go about applying for a labor certification.  In reality, these FAQs amount to the DOLETA’s interpretation of DOLETA’s regulations that interpret the Immigration and Nationality Act.  Confused yet?

On July 20, 2011 the Board of Alien Labor Certification Appeals (BALCA) issued its decision in the Matter of the University of Texas at Brownsville.  UTB filed an application for labor certification for one of its professors.  As a part of the test of the labor market and to fulfill its requirements under the PERM regulations, UTB ran an ad for the professor’s position in the Chronicle of Higher Education.  Like many professional journals and some newspapers, the Chronicle of Higher Education is an online only journal.

DOLETA’s Certifying Officer denied UTB’s application.  In the denial, the CO stated cited the FAQ section that states that if an employer is going to advertise a job in a professional journal, the employer must use a print journal.  UTB appealed to BALCA.  Upon review BALCA held that the PERM regulations are silent on the use of paper versus online only journals, and that DOLETA cannot create a substantive rule through publication of a FAQ.  BALCA found that DOLETA's FAQs are helpful interpretations of the regulations, but do not in and of themselves have the force of law because they have not complied with the Administrative Procedure Act’s notice and comment requirements.  BALCA determined that the CO abused his discretion by relying on the FAQ as a substantive rule to deny UTB's application.  BALCA reversed and sent the case back to CO for additional consideration.

Labor certification is complicated.  Employers and potential immigrants need skillful advocates to deal with governmental agencies that write their own rules and then write rules to interpret their rules.  Sometimes the only way out of the rabbit hole that is labor certification is to question the authority of the rules upon which the agency used to make its adverse decision.


Copyright 2011 Richard M. Green, All Rights Reserved

What Goes Around Comes Around

Rick's Russian Visa

In the summer of 2008 my extended family and I went on a cruise on the Baltic Sea.  One of the ports of call on the cruise was Saint Petersburg, Russia.  Unlike all the other ports on the cruise, Russia had a visa requirement for US citizens.  In order to disembark from the ship for the three days we would be docked in Saint Petersburg, my family members and I would require a Russian visa.

When my family learned of the visa requirement for Russia, they called me, the immigration lawyer.  They concluded that I knew how to get people US visas.  I should be able to get my family members Russian visas.  Right?

My adventure in Russian immigration law started with the Russian Embassy’s website, where I downloaded the visa application form.  This looked easy I thought.  It was a half page form seeking pretty basic biographic information and two inch by two inch photograph.  I then read the instructions and realized I had the wrong form.  There was a separate form for US citizens.  I then downloaded the US citizen form, took a look at the form and laughed.  The Russian visa application for US citizens was a word for word copy of the US visa application forms Russian citizens (and any other foreign national) completes to get a visa to come to the USA. Click here here here and here to view a sample of the DS-160 (the current US visa application) and the DS-156, DS-157, and DS-157 (prior version) of the visa application forms.

Reciprocity or treating foreign nationals the same way that nation treats your citizens is a fundamental principle of international relations.  I had to labor through ten pages of application forms per family member because Russians had to labor through ten pages of application forms.  My family was compelled to disclose all kinds of trivia including my father’s service in the US Navy in the 1950’s and my service in the US Coast Guard Auxiliary because Russian visa applicants had to make similar disclosures.

Similarly, US citizens pay the Brazilian government $135 upon arrival.  Similarly, other nations force US citizens to either obtain visas or pay fees upon arrival in their nations because the US government has similar requirements on their nationals.

Yesterday, US and Russia agreed on a reciprocal basis to grant each others citizens multiple entry visitors visas valid for 36 months.  That’s a lot better deal than I got in 2008.  My Russian visa was valid for only four days.

Do You Hear Me Now?

One of the little known ‘checks and balances’ in the American system of government is a court’s jurisdiction.  Jurisdiction is the power of a court to hear and decide a controversy.  Article III section I of the Constitution establishes the federal judiciary and place the power to create inferior or lower courts in the hands of Congress.  “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Article I section 8 clause 9 of the Constitution confirms Congress’ power to constitute tribunals inferior to the Supreme court.   Since Congress has the power to constitute courts, it has the power to limit a court’s jurisdiction.  In other word, since Congress has the power to create courts, it has the power to tell the court what cases it can and can’t hear and what statutes it can review and what statutes it can’t. 

Since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress has attempted to strip the federal courts of jurisdiction or the power to review the decisions of the immigration bureaucracy made under the Immigration and Nationality Act [INA].  INA section 242 [8 USC §1252] is a prime example of Congress’ attempt to limit the judicial review of immigration decisions.  This statute purports to strip the court of the power to review removal orders. 

In an attempt to slam the courthouse door in the alien’s face, the Attorney General frequently argues that the court does not have the power to review the immigration service’s decision because Congress has stripped the court of jurisdiction.  Faced with a challenge to their power, federal judges sometimes go to great length to find that they have the power to review a decision, even when Congress says that they don’t.  The effect of Congress’ jurisdiction stripping legislation is that most immigration related judicial opinions have a sometimes-lengthy discussion on jurisdiction.  This includes the Tenth Circuit’s recent decision in Jimenez-Guzman v. Holder.

Jimenez-Guzman is a native and citizen of Mexico and lawful permanent resident in the United States.  In 2009, the Department of Homeland Security [DHS] commenced removal proceedings against Jimenez-Guzman.  DHS alleged that Jimenez-Guzman was removable from the United States due to conviction of a drug crime in Colorado.  Jimenez-Guzman asked for and received several continuances from the Immigration Judge [IJ] so that he could attempt to set aside his state court conviction. Relieved of the conviction, Jimenez-Guzman would no longer be removable.

On April 7, 2010, at a hearing in Immigration Court, Jimenez-Guzman informed the IJ that his attempts to set aside his drug conviction were unsuccessful.  He asked the court for another continuance so he may pursue an appeal of the state trial court’s decision to deny relief from his drug conviction.  Citing the length of time Jimenez-Guzman’s case had sat on the court's docket, the IJ refused to grant another continuance.  The IJ found Jimenez-Guzman removable and ordered him removed to Mexico. The Board of Immigration Appeals summarily dismissed Jimenez-Guzman’s appeal, and Jimenez-Guzman sought review of the IJ’s and BIA’s decision in the US Court of Appeals for the Tenth Circuit. 

The Attorney General argued that the Immigration and Nationality Act stripped the court of the power to review the IJ’s decision.  The court disagreed.  The IJ’s power to grant continuances comes from the court’s regulation and not the INA.  Citing Kucana v. Holder, __ U.S. ___, 130 S. Ct. 827 (2010), the court held it has the power to review IJ decisions that originate from regulations. “The Supreme Court … recently held that decisions made discretionary by regulation do not come within [the INA’s] statutory bar and are reviewable.”  Since the power to grant continuances of hearings is granted to the IJ by regulation and not by the INA, the INA’s jurisdiction stripping statutes do not apply.

The court then applied the rational basis test to the IJ’s decision to deny the continuance.  Under the rational basis standard, the court will overturn an IJ decision only if there is no rational explanation behind the IJ’s decision.  Since courts have held that an individual in removal proceedings does not have the right to stay removal proceedings while the respondent commences a collateral attack on the underlying criminal conviction, the IJ’s decision to deny the continuance based on the age of the removal case is rational.  The court denied the petition for review and allowed the IJ’s order to stand.

The tension between two co-equal branches of government finds it way into the world of immigration. Congress’ goals of make the immigration system as efficient and as streamlined as possible collide with the judiciary’s responsibility to review the decisions of the immigration system.  Nobody likes to be told “no”, especially life tenured, Senate confirmed federal judges. Congress attempts to strip the judiciary of the power to review immigration decisions gives the government and immigrants one more thing to argue about in court.

Copyright 2011, Richard M. Green All Rights Reserved