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ImmIGRATION JANUARY 01, 2021 | The Indian Eye 47

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certification on behalf of the §212(a)(5) is silent about re- Naturally, then, any applicant all this recruitment, the DOL And now the complaint
foreign worker, the employer quiring the employer to adver- for admission who falls within only requires the employer to against Facebook brought by
may be found to be in violation tise or to establish that it ad- the categories should not have test the U.S. labor market. In a sister federal agency further
as a result of “diversion.” The vertised the position without to wait for a detailed study by other words, employers must highlights the contradictions
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Board of Alien Labor Certi- reference to unduly restrictive the Labor Department before prove a negative, namely, that in the labor certification pro-
fication Appeals (BALCA) requirements. It appears that his certificate is issued …(W]e there are no minimally quali- gram. The IER complaint is
has held that a US applicant the Department of Labor has would expect the Secretary of fied workers for the position. aimed at discouraging employ-
cannot be diverted to another created out of whole cloth Labor to devise workable rules The employer is not required ers from sponsoring skilled
position, even a more senior the current system it enforces by which he could carry out to hire minimally qualified foreign national workers for
position. See Engineering against U.S. employers. Gary his responsibilities under the workers. If the employers permanent residence lest they
Technology, Inc.,89-INA-10 Endelman previously wrote law without unduly interrupt- find qualified workers, they be accused of citizenship dis-
(BALCA 1990), Sam’s Exx- for the National Foundation ing or delaying immigration to are precluded from filing the crimination after following
on, 91-INA-362 (BALCA for American Policy: “There this country. The function of labor certification applica- the labor certification process.
the Secretary is to increase the tion on behalf of the foreign Whatever may be the motiva-
1992). BALCA has found “di- was no mention of individu- diminish it below levels autho- From SmartTV Download ZingoTV App
version” even when the U.S. alized recruitment in the pro- quality of immigration, not to national worker. Through tion behind this action – and
worker was hired for the same posed labor certification regu- this process, the DOL forc- it is not unreasonable to spec-
position as the foreign nation- lations on November 19, 1965, rized by the law. es employers to make pawns ulate that it may be linked to
al worker where the employer or the final version of these Thus, one of the key of U.S. worker applicants by President Trump’s dislike for
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was unable to establish multi- same implementing rules that drafters of the bill, Senator advertising the position, hav- Facebook and Twitter – the
ple openings. Aloha Airlines, came out on December 3, Kennedy, never mentioned ing them apply for the posi- end result is that skilled foreign
91-INA-181 (BALCA 1992). 1965. There was no sense that nor contemplated the need tion, interviewing them, and national workers deserving of
The statutory basis for la- employers had to advertise; for the individualized, waste- in the end, not encouraging green card sponsorship by a
bor certifications is provided the availability of U.S. work- ful, and unreal recruitment their hire even if the employ- US employer bear the brunt,
in §212(a)(5) of the Immi- ers, or their nonavailability, that the DOL has imposed er wants them in addition to and America loses the most if
gration and Nationality Act was based solely on statistics as on employers. Indeed, after the foreign national worker. they are forced to leave.
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(“INA”). Under INA §212(a) embodied in Schedules A and _________________________________________________________________________________________________
(5), an alien is deemed “inad- B, respectively.” Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner
missible unless the Secretary In discussing the labor certi- of Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administra-
of Labor” certifies, inter alia, fication requirement in the 1965 tive Litigation Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics Committee; special
that “there are not sufficient Amendments,8 Senator Ed- counsel on immigration matters to the Departmental Disciplinary Committee, Appellate Division, First
workers who are able, will- ward Kennedy (D-MA) stated:
ing, qualified…and available It was not our intention, Department, New York; member of the ABA Commission on Immigration; board member of Volunteers
at the time of application” or that of the AFL-CIO. that for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair
among the U.S. workforce. A all intending immigrants must of the Board of Trustees of the American Immigration Council and former chair of the Committee on
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plain reading of INA §212(a) undergo an employment anal- Immigration and Nationality Law of the New York City Bar Association. He is a frequent speaker and
(5) does not in any way suggest ysis of great detail that could writer on various immigration-related issues, including on ethics, and is also an adjunct professor of law
that an employer must seek to be time consuming and dis- at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta received
recruit U.S. workers in order ruptive to the normal flow of the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and
for the Secretary of Labor to immigration. We know that the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono repre-
certify that there are a lack of the Department of Labor sentation in the immigration field. He has also received two AILA Presidential Commendations in 2010
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U.S. workers who are qualified maintains statistics on occu- and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s
and willing at the time of the pations, skills, and labor in Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers
application. Interestingly, INA short supply in this country. Global 2019 in immigration law, among other rankings.

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