DOL Destroying §245(I) Confirmation System; Shutdown Effect On Immigration Related Agencies; Recognition Of Parental Rights Allowing Some Removed Aliens To Return To The U.S. For Limited Purpose; Permanent Bar For False Claim Of U. S. Citizenship Modified; Perm Audit Response Must Cover All Issues.

by Alan Lee, Esq.

  1. The Department of Labor (DOL) gave notice on September 26, 2013 that after the 30 day period of public notice and review, the Office of Foreign Labor Certification (OFLC)'s revised retention schedule was approved by the National Archives and Records Administration (NARA). As part of its review and approval process, NARA determined that employer applications for labor certification and supporting documentation whether retained in paper and electronic form, are temporary records and subject to destruction in accordance with an approved disposition schedule. As of September 26, 2013, OFLC no longer has access to employer application records or screenshots of such records filed in 2002 or earlier that were stored in the Paradox database. The Paradox database, which was the system used by the ETA regional offices and which is no longer used in the administration of the permanent program, was destroyed. OFLC is no longer able to respond to inquiries to confirm priority dates, search for records in response to Freedom of Information Act (FOIA) requests, or provide information for request for duplicate certifications. The significance of the announcement is that the destroying of records will make it more difficult for applicants to present adjustment of status to permanent residence cases based upon §245(i) under which individuals must show that they were the beneficiaries of either immigrant visa petitions or labor certification applications by April 30, 2001, to have the privilege of paying a fine amount of $1000 to file the form I-485 application to adjust status. Applicants previously requesting confirmation of labor certification applications from the DOL through FOIA or other means may now be hard-pressed to convince immigration officers of their entitlement to §245(i) benefits unless they have further proof of filing and the result of the filing with DOL.

  2. With the government shutdown, U.S.C.I.S. and the Department of State (DOS) are generally running normally; the DOL OFLC will neither accept nor process applications or related materials including for labor condition applications, prevailing wage determinations, or PERM applications. Systems including iCERT and PERM are static and unable to process any requests. Customs and Border Protection (CBP) is working, Immigration and Customs Enforcement (ICE) detention and enforcement operations continue and ICE trial attorneys will still work on the detained docket only during the shutdown; the immigration courts have determined that the detained docket is an essential function. Court functions supporting the detained docket will continue, but other functions are suspended.

  3. ICE has come out with guidance in its 8/23/13 "Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities" that ICE personnel should ensure that the agency's enforcement activities do not necessarily disrupt parental rights of both alien parents or legal guardians of minor children and that particular care should be paid to enforcement activities involving: 1) parents or legal guardians who are primary caretakers without regard to the dependent's citizenship; 2) parents or legal guardians who have direct interest in family court or child welfare proceedings; 3) parents or legal guardians whose minor children are physically present in the U. S. and are USC's or LPR's. ICE is to designate specially trained coordinators at the supervisory level in each field office to serve as the field point of contact for parental rights for his or her area of responsibility. If parental termination rights are to be determined in a court proceeding or child welfare authority and the removed parent or legal guardian must be physically present, ICE may on a case-by-case basis facilitate his/her return to the United States through advance parole for the sole purpose of participation in the termination proceedings. The alien is responsible for all costs incurred with return to the U. S. and with departure at the conclusion of the hearing and must acknowledge in writing that he or she will depart the U. S. without delay following the conclusion of the final parental rights termination hearing for which he/she traveled to the U. S. This guidance surprisingly recognizes that undocumented and even removed parents have rights where relationships with their children are at stake. But in a larger context outside of immigration law, it is a step in tune with allowing more parental rights in raising children, selecting medical care, enforcing support obligations, and stopping parental abductions.

  4. A change in the law is being made internally where minors have claimed U. S. citizenship falsely. The current law here is especially harsh that a person who falsely represents that he or she is a U. S. citizen to obtain a benefit under the Immigration and Nationality Act or any federal or state law is removable and no waiver is available if the representation occurred on or after September 30, 1996. DHS's office of the General Counsel issued a formal opinion on December 6, 2012; advised the Department of State of it on May 30, 2013; and U.S.C.I.S. has provided its field attorneys with guidance to reflect the opinion that:

    • only a knowingly false claim can support a charge that the person is permanently barred. The person has the burden of establishing the defense clearly and beyond doubt.

    • A separate affirmative defense is that the person was under the age of 18 at the time of the false citizenship claim and at the time lacked the capacity to understand and appreciate the nature and consequences of a false claim to citizenship. Again he or she has the burden of establishing the defense clearly and beyond doubt.

    Although the opinion was addressed for minors, the first provision should have applicability to a larger group of individuals, eg., people who vote because there is frequently no clear line of demarcation in municipal elections on whether U. S. citizenship is required to cast a ballot, or those brought into the country as infants or children who always thought that they were U. S. citizens and are now no longer minors.

  5. In APT - Advanced Polymer Technology (BALCA 9/13/13), the employer made a mistake in filling out the ETA 9089 labor certification application form saying that it had used the 3 extra steps (required in PERM applications involving professionals) of employee referral program, job search website, and its own website. On audit, it submitted proof of job search website, its own website, and campus recruitment. It did not include any discussion of discrepancy between the 9089 assertion that an employee referral program was used and the evidence submitted of campus recruitment. The Certifying Officer denied the application in part based on the discrepancy and the employer submitted a motion for reconsideration/request for review arguing that the discrepancy was due to clerical error, was de minimus, and immaterial. The denial was affirmed by The Board of Alien Labor Certification Appeals (BALCA) on grounds that any clarification on reconsideration would be considered "new evidence" prohibited by regulations, and that the employer had an opportunity to submit clarifying its information with the audit response, but failed to do so. The case is interesting as DOL regulations disallow changes on the ETA 9089 form and any attempt to conform the 9089 to the actual evidence would have resulted in denial. DOL's solution was a thread the needle approach in which an explanation in the audit response would have been the proper procedure - otherwise, attempting an explanation for the first time in a request for reconsideration was too late as it constituted new evidence.

This article © 2013 Alan Lee, Esq.

About The Author

Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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