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.
From the BALCA Benchbook, Chapter 23 Supplement
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).
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).
From the BALCA En Banc Summaries
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.
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).
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)
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Greg Siskind shares the latest entries to his blog.
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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.
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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 government’s 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.
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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.
Editor's Note: Please see comment above.
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.
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.
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