Sun Microsystems LCA Complaint Decision At DOL
Developments continue in immigration law related to LCAs. The DOL decided, in an adminstrative hearing, a matter between Sun Microsystems (Respondent) and a former employee (Complainant) alleging LCA violations. Here are some statements from the decision which may interest business immigration practitioners.
The Complainant was represented by Michael Hethmon, Staff Attorney at FAIR. Sun Microsystems was represented by Roxana Bacon.
- As the Respondent correctly points out, in Eva v. Kolbusz-Kijne v. Technical Career Institute, Case No. 93-LCA-0004 (Jul. 18, 1994), the Secretary stated that the H-1B provisions do not prohibit or prevent employers from hiring H-1B workers where U.S. workers are available and that the H-1B provisions are not intended to remedy the layoff of U.S. workers. Eva v. Kolbusz-Kijne v. Technical Career Institute, supra, slip op. at p. 8.
- The Complainant alleged in his February 25, 2002, complaint that the "IR System Technologist I and 2" positions identified in some of the Respondent's LCAs do not meet the requirements for "specialty occupations." The determination of what constitutes a "specialty occupation" falls within the authority of the Immigration and Naturalization Service, not the Department of Labor. 20 C.F.R. § 655.715. Thus, [DOL has] no jurisdiction to consider the merits of this allegation.
- As the prosecuting party, the Complainant the burden of proving each of his allegations.
- [T]he Complainant had no right to information about the specific salary being paid to specific H-1B workers.
- [T]he Respondent's Corporate Immigration Manager manages the Respondent's immigration program, including preparation of the LCA documents, and supervises the outside counsel hired to prepare the LCAs ... Since the LCAs are prepared under her direction and signed with her authorization, the fact that she did not personally sign each LCA does not make the use of her authorized signature instead of her actual signature a material misrepresentation of fact.
- Where, as here, the Complainant alleges new violations at the time of hearing and the Respondent objects to the new violations being addressed at the hearing, the new alleged violations cannot be included as an issue in the hearing without agreement by the parties. The regulations about complaints of violations of the LCA regulations specifically state that if the Administrator determines that a particular complaint does not warrant an investigation, there is no right to a hearing or an appeal of that determination. Thus, the Administrator must make the initial determination as to whether a particular complaint warrants an investigation, and if it does, then that complaint can ultimately come before the OALJ for a hearing. The Complainant's complaint about the use of the blanket LCAs was not raised with the Administrator. To consider alleged violations that were never brought before the Administrator would take away from the Administrator his or her authority to determine whether the complaint warrants an investigation and, conceivably, provide a complainant with a right of appeal and hearing that he or she is not otherwise entitled to under the regulations.
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Draft Patriot Act II Legislation Discovered
Cyrus D. Mehta writes about Patriot Act II, draft legislation from the DOJ, which would give the government additional powers to increase law enforcement prerogatives, while simultaneously decreasing judicial review.
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Immigration Law News
INS Seeks Comments
The INS provided an additional 30-day period to obtain public comments on: passenger list, crew list; Form I-418, and Aircraft/Vessel Report; Form I-92.
DOL Says Sun Microsystems Failed To Comply With LCA Posting Requirement But Assesses No Civil Penalty In H-1B Matter
In the Matter of Santiglia v. Sun Microsystems, No. 2003-LCA-2 (OALJ, Feb. 19, 2003), the Office of Administrative Law Judges said that Employer failed to comply with the LCA posting requirements by failing to post two copies of the LCA at the actual worksite the
H-1B workers would be working at. The court also said that the violation was not substantial or willful and assessed no civil money penalty.
Downward Departure Prohibited To Remove Offense From Definition Of Aggravated Felony Where Sole Purpose Is To Affect Immigration Consequences
In US v. Maung, No. 98-00720 (11th Cir. Feb. 10, 2003), the court held that a sentencing court may not depart downward for the purpose of taking a crime out of the definition of an aggravated felony for the sole purpose of affecting its immigration consequences. The court also said that the effect of permitting a downward departure on these grounds would be to favor aliens with more lenient sentences than citizens of this country who commit the same crime and have the same criminal history.
Alabama State Troopers To Enforce Federal Immigration Law
The Tuscaloosa News of Tuscaloosa, AL reports "The Alabama state troopers
and the federal INS are about to work together on stemming the flow of
illegal aliens into Alabama."
8-year Old Boys Are Not Threats To America
The Courier Post of Bridgewater, NJ reports on the separation of a family
by the immigration laws and quotes Rep. Andrews (D-NJ) "I don't think
8-year-old boys and their mothers are a threat to America."
100 Undocumented Workers Arrested
The Salt Lake Tribune of Salt Lake City, UT reports on the arrest of 100
undocumented workers at Champion Safe in Utah.
Abusive Expedited Removal Procedure Results In Abuse
The Toronto Star of Toronto, Canada reports on the apparent use of the
abusive expedited removal procedure as applied to a Canadian national at
Chicago airport and quotes a Canadian Foreign Ministry spokesperson saying
"We're going to bring her case to the attention of the State Department in
Washington, request an explanation on the INS refusal to grant at least one
phone call to [the Canadian national], and we'll see what the American
response is going to be."
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Letters to the Editor
I have always been curious how many people regularly use Legislative Assistants (LAs) of our federal
lawmakers(both US Senators and House of Representatives) rather than legal counsels to their process immigration cases. It is even more puzzling to me that the INS has specially designated phone numbers that are instantly accessible to these LAs. Mind you
that is usually not the case for either self-petitioned individuals or petitioners with legal representatives. What are the effects of such disparity in terms of access, response and efficacy of the INS in how it performs its duties? Also, judging
by the faster responses that the INS usually give to these LAs and easy access to talk to live INS officials anytime, are we not unwittingly turning the LAs to unlicensed immigration legal practitioners?
Name Withheld Upon Request
Visa lotteries should be abolished. It frees adjudication officers and consular personnel from being over burdened and it provides room for 50,000 extra visas. It was originally sponsored by Sen. Kennedy ( D - MA) and he made sure that Ireland had 50% of the winners in the first year. All that is gone following new regulations (one per applicant,etc.) A bill is before the House to abandon this ridiculous lottery. It is degrading. Send your letters to Rep. Goodlatte (R - VA). He supported the House Bill to abandon the visa lottery. It wastes adjudicator and consular officer's time. It releases 50,000 visas. It is degrading. A lottery to allow permanent residency into the US. I-485's are waiting for 2 years for employment based petitions. E-mail your congressional representatives.
In response to yesterday's Editor's Comments, you suggest that immigrants come illegally because the legal avenues are overwhelmed. One might ask, and why are they overwhelmed? Because immigrants have been coming illegally, then have been given amnesties and mini-amnesties (TPS, 245i, etc.)--which, of course, enable them to sponsor yet more family members, who then come here illegally because they don't want to wait in line, either. While the INS certainly bears a good portion of the blame for this mess, let us apportion the remainder where it is due: to Congress for piecemeal immigration laws that favor those who jump the queue over those who wait patiently.
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