Sunday, June 19, 2011

State Superior Court Judges Making Immigration Policy

Yes, a Superior Court judge in Alameda County has apparently decided to make immigration policy not only for the United States, but set precedent for all employers, requiring them to continue to sponsor non-immigrant workers. And obviously there are no complaints from the radical left that States are making immigration policy, not the Federal Government.

A decade ago, Evelyn Francisco was one of many teachers recruited from the Philippines and other countries by the Oakland Unified School District at a time when qualified math and science instructors were not always easy to find.

Now, as budget cuts force the district to lay off about 90 teachers for the coming year, the tenured advanced placement statistics teacher is facing deportation to the Philippines because district officials refuse to continue sponsoring her visa, which expires June 30.

Francisco's case is the first of its kind in Oakland. But other teachers on similar guest worker visas worry that they could be next, as district officials say there is now a surplus of teachers who are citizens or permanent U.S. residents.

Francisco, the only AP statistics teacher at Oakland Technical High School, is asking an Alameda County Superior Court judge to order school officials to sign the paperwork.

She argues that the district is illegally firing her by refusing sponsorship of the visa that allows her to stay in the country. Under the state education code, tenured teachers can be terminated only in specific circumstances.

"They're trying to circumvent the normal process that teachers are entitled to," said Francisco's lawyer, David Weintraub.

The outcome of Francisco's case is likely to influence how the Oakland district deals with other teachers on guest worker visas, many of whom hope for green-card approval that would give them permanent resident status, Weintraub said.

Work said to deteriorate

Oakland has about 20 such teachers, most with tenure, Oakland Unified spokesman Troy Flint said.

District officials say in court documents that they are not firing Francisco. They acknowledge her tenured status and say if she can obtain a work visa on her own, the district will continue to employ her.

At the same time, they say Francisco's performance has deteriorated, citing a 2009 performance evaluation that found she was not meeting district standards in certain areas, including engaging students and assessing learning.

District officials say Francisco was never promised that her visa would be renewed indefinitely, and that they will no longer sponsor her now that there are U.S. citizens and permanent residents who could do her job.

Compared with the period in which Francisco was hired, "there are many more highly qualified math teachers in the labor pool who are U.S. citizens or aliens who possess permanent authorizations to work," Barbara Gee, the district's human resources executive officer, wrote in a court affidavit.

Since then, California has also slashed more than $70 billion from the state education budget, and schools across the state have laid off more than 30,000 teachers, said Flint, the district's spokesman.

"The workforce circumstances have changed dramatically," Flint said.

Harsh scrutiny alleged

Weintraub, Francisco's attorney, said he met recently with about two dozen teachers on guest worker visas, and many complained of being scrutinized more harshly than their U.S.-citizen counterparts and felt they were being discriminated against.

Flint called such accusations "specious and unfounded."

"It's very rare that an employee separating from an organization against their will doesn't claim that there was some kind of conspiracy or prejudice," he said. "So it's not surprising to hear that argument."

Oakland school officials helped Francisco come to the United States in 2001 and renewed their sponsorship in 2007, court records show.

Her troubles began in spring 2010, when she was told the human resources department would not sign paperwork to renew her H-1B visa, set to expire that fall.

Francisco said that after she got a lawyer through her union, officials reversed their decision and said they would sponsor her. The school district's attorneys deny making such a promise.

In any event, just days before her visa was set to expire on Sept. 30, district officials informed her that they would not sponsor it for renewal, Francisco said. In her complaint, she said a human resources worker also told her they "no longer needed math teachers."

Short-term extensions

Francisco challenged the district's decision in Alameda County Superior Court on Sept. 27, three days before her visa was to expire.

School officials signed off on two short-term visa extensions to allow Francisco to stay in the country while they fought the case in court, records show.

Now, as the final deadline looms, a judge is expected to rule on the issue this month.

Of course, U.S. Citizenship and Immigration Services should immediately revoke the petition for this worker given that there are available American workers and that her employer has notified her that her contract will not be removed. U.S. Immigration and Customs Enforcement should immediately arrest her and the Superior Court judge for immigration fraud, as well as the Oakland Unified School District employee who signed for whatever temporary extensions that she obtained, which, I believe, are non-existent, as there is only one way to extend such a visa, a regular extension that certifies that there are no available American workers and the services are needed for a three year period. No such thing as a temporary extension.

But in any event, when an employer applies for an alien worker, the employer certifies that there are no available American workers. No State judge can order an employer to apply for, much less make a false statement on a Federal document on behalf of an alien. It is clear that the judge is overreaching and in violation of several Federal criminal statutes, including 18 USC 1001, False Statements, 18 USC 2 Aiding and Abetting, and 18 USC 1325 Creation of a False Record. This judge should be arrested for those crimes, much less a blatant and flagrant violation of the separation of powers doctrine.

What is also shocking is that the H-1B non-immigrant visa was designed to be temporary, but Francisco is demanding a permanent right to employment in the U.S. where usually that particular visa is limited to 6 years. How did she stay 10 years?

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