Bloggings: August 2, 2007
Editor's note: Here are the latest entries from Greg Siskind's blog.
July 31, 2007
I.M. Pei, was born in
I've been an architecture buff for many years ever since I
worked as an architectural surveyor for the Metropolitan Historical Commission
AILA is reporting passage of HR 3123 which extends Temporary Protected Status for Liberians until September 30, 2008, but I have not seen the vote posted yet. The bill will now move on to the Senate.
Congresswoman Zoe Lofgren (D-CA), the Chair of the House Immigration Subcommittee who has quickly gained a reputation for holding USCIS' feet to the fire to deliver good service to its customers, has taken on the USCIS over the fee increase that went in to effect yesterday by introducing legislation to force USCIS to reverse course. Lofgren issued the following press release in connection with the bill:
Rep. Zoe Lofgren (D-San Jose) today
introduced a bill to void the recent increases in immigration fees by
“Our immigration services need to move into the 21st century,” stated Rep. Zoe Lofgren. “But, USCIS has consistently failed to explain or justify the amounts and distributions of this new fee increase. While I agree that USCIS needs to modernize its existing infrastructure and procedures, they must do so in a transparent and open manner. After repeated requests over several months, USCIS has yet to provide Congress with a detailed plan for its infrastructure modernization efforts. Our immigration system should be both effective and fair; sacrificing one to achieve the other should not be an option.”
Here's the text of the resolution. Download fees.pdf
USCIS finally has updated their site to allow older versions of the I-765 to be accepted. But note that the I-129F and I-290B remain unchanged.
Yesterday I advised you that AILA was reporting that USCIS was mistaken in saying that the only acceptable versions of the I-765, I-129F and I-290B were the July 30th versions now on the USCIS web site. But the forms on the site are still marked as the only acceptable versions and no correction statement has been issued by USCIS. Until we see that, I would advise folks to only use the new version.
July 30, 2007
It's now online.
I hope it brings the point home. Yes, we need to be focused on security. But
foreign physicians in the
I had never heard of Ms. Bergmann
until I recently saw a fascinating documentary
on her on HBO. Ms. Bergmann, who is now in her 90s, was a leading athlete in
The film interview Ms. Bergmann at length and one can tell those years of training have benefited her - she looked at 20 years younger than her years and her memory of that remarkable time in her life was impeccable.
Bergmann managed to emigrate to the
Bergmann did have a chance to compete in her adopted country. She was the 1937 American high jump and shot put champion and repeated the high jump championship in 1938. She became an American citizen in 1942.
In a nice epilogue to her story, she was honored by the the German people in 1999 with the naming of a stadium
after her. The stadium was one that she was not allowed to keep in (or even
enter) when she was living in
the grassroots immigrants rights organization, plans
on holding a major rally in
Immigration Voice wants to do something as consequential as the
flower campaign and the
Immigration Voice will shortly announce the route, times and other details. You can find out more at :
The Flower Campaign and San Jose Rally were a great start. But IV has the ambitious goal of attracting 10,000 participants, a number that would make it probably the largest rally ever staged on behalf of employment-based immigration. Make it happen!
In the last few months, the term "anchor baby" has
taken on a certain cache with anti-immigrant folks like Ms. Michele
Malkin and Mr. Lou Dobbs.
The term refers to the children of immigrants who are conferred citizenship by
virtue of their birth in this country. Some would limit the use to the children
of illegal aliens, while many extend it to children of those on work and
tourist visas. Others argue that anyone
born in the
I think it's fair to call it like it is - calling someone an "anchor baby" is a form of hate speech. The term is used in an effort to dehumanize a whole class of American citizens. By stigmatizing the American children of immigrants, these bigots seek to turn millions of Americans in to second class citizens. There have been many other societies in the past which tried to de-legitimized the children of immigrants. I know because I've filed asylum cases for people with horrific stories involving their membership in a persecuted group of this sort.
Because I believe the term is offensive and demeaning, I intend to delete posts that use it in a derogatory way). If people want to discuss the term itself and how it is being used in hate speech, I'd consider that to be appropriate. Some of the anti-immigrant folks out there are no doubt going to accuse me of being a censor. And so be it. They can use the term on your own blogs (and don't seem to have any hesitancy to do so, of course).
I've written an opinion piece on the contributions of foreign
doctors to the
I've read some news accounts of this happening, but I heard for
myself a story from a new client that seems to confirm that CBP officers are
indeed searching the web to see if they can find information to ensnare people
seeking entry to the
There was highly publicized case recently where a Canadian professor was held to be a habitual drug user based on an admission in an interview that he experimented with LSD in the 1960s.
So if you're thinking of putting anything on your MySpace or Facebook page or something on your web site that you don't want to have to explain to a border officer, you might want to exercise some restraint.
The Senate has rejected an amendment to last week's DHS appropriations bill that would have provided funding for the implementation of the Real ID Act. This comes after the open revolt of a number of states who have said they will not implement the mandated changes. How will the government proceed with forcing REAL ID-compliant licenses to be used without any money on their end and with states that are thumbing their noses at the federal government?
USCIS has informed the American Immigration Lawyers Association that the three forms listed on the web site as requiring the new version as of today IS A MISTAKE and that the earlier version can still be used. Of course, they have not considered this important enough to correct the problem on their web site. Mistakes like this can create panic for those who have sent the old version of the form and when they are discovered, they need to be corrected immediately and a notice to be issued informing the public of the error.
Does it seem like there is something like this coming out almost every day? My friend Dan Kowalski, the esteemed editor of the excellent Bender's Immigration Bulletin, just sent me a note from Robert Gard, a lawyer with the Azulay firm in Chicago (of Visa Bulletin litigation fame), noting that USCIS posted three new forms today on their web site and is mandating that only the new versions of those forms can be used. USCIS normally allows a previous version of a form to be used for a phase in period while immigration forms case management system can code for the new version and send their subscribers the necessary upgrades. And many people download a form, work on it for a bit and then send it in so at least a reasonable period of time is needed for an old version of a form to be used.
The new forms are the I-765 for employment authorization requests, the I-129F for fiance visas and the I-290B Notice of Appeal. The I-765 is the one of greatest concern right now. Hundreds of thousands of those forms are being filed in conjunction with adjustment applications being filed pursuant to the July Visa Bulletin.
The cynic in me says that USCIS made this little change for the sole purpose of punishing people taking advantage of the July Visa Bulletin. I hope I'm wrong, but USCIS owes an explanation and also needs to immediately instruct the service centers to continue accepting the form for a reasonable period of time as has been their long standing practice. In fact, they posted a number of other additional forms today and said that previous versions were acceptable.
For many of you who use case management systems, you should note that USCIS posts their forms in fillable acrobat format so you can type on the screen and print the form off without the need to scan or use a typewriter. Until USCIS reverses itself, you need to use the new version available at the USCIS site and wait on your forms management software company to send you an update.
[UPDATE: A reader made the good suggestion to put a link to the correct forms. They're all at USCIS, but the one most of you care about right now - the I-765 - is at http://www.uscis.gov/files/form/I-765.pdf]
[UPDATE 2: Someone in my office said that the barcode in the new form may not show up properly in versions of Acrobat Reader earlier than version 8, the latest version. To be safe, I would recommend download Adobe's latest free version of the Acrobat reader software.]
I'm a Tennessean and remember presidential candidate Fred
Thompson's years as my
I also remember Thompson being a realist on immigration matters as opposed to a zealot and willing to try and work for sensible solutions to both legal and illegal immigration problems.
When Thompson's name started getting tossed around as a Presidential candidate, he was immediately touted as the darling of the conservative wing of the GOP. And this really puzzled me because that's not how I remembered Thompson as well, particularly when it came to immigration issues.
Thompson seems to be more than happy to accept the label of right winger including being far to the edge on immigration issues. He's just weighed in on Hazleton and has taken a tough line on any sort of "amnesty".
But I remember a more reasonable, consensus-minded Fred Thompson. For those who have worked on immigration issues for many years, you may remember the "split the bill" campaign in 1996 that involved taking out the most onerous anti-immigration provisions from the 1996 immigration act and also removing the legal immigration provisions (including a moratorium on legal immigration) from the bill. Thompson was on the Judiciary Committee at the time and cast the critical pro-immigration vote in favor of splitting the bill. A lot of people in the pro-immigration community breathed a big sigh of relief thanks to Senator Thompson.
Apparently, others are worried about Thompson's anti-immigration street cred as well. Check out this posting today from FAIR's Dan Stein. Stein is railing against Thompson for choosing former Michigan Senator Spencer Abraham, a Republican and Energy Secretary in George W. Bush's first term, to be a co-manager of his national campaign for President. It is true that Senator Abraham was pro-immigration and I don't think he would make any bones about that. And it is true that Thompson has a pro-immigration record. He voted pro-immigration on various bills like increasing H-1B numbers and visas available to farm workers.
Maybe Senator Thompson has undergone a transformation. Or maybe he is simply choosing to emphasize aspects of his immigration positions that seem the toughest. In any case, I think it's fair to say that Thompson is no Tom Tancredo. And if FAIR hates Thompson, then I think that probably is an indicator that he's not so extreme on the immigration issue after all. Which is what I believed before all of this presidential campaign business began.
We're going to see more and more of this sort of thing unless Congress finally starts to address the issues.
A few days back, I posted criticism of a USCIS policy announcement that it was ending accepting prepaid mailers. Applicants who wanted to get their receipts by overnight mail have for a long time been allowed to include an envelope with a prepaid mailing label. Then USCIS announced they were going to stop allowing this because they didn't want to be bothered anymore with the extra burden of having to accommodate these requests.
In response to public criticism, they've decided to back down. The text of the memo reads:
USCIS RESCINDS PRIOR UPDATE REGARDING THE DISCONTINUANCE
Are you starting to see a pattern? When the public makes a lot of noise expressing outrage at unfair behavior at USCIS, the agency DOES respond. They've really never had to address this sort of thing before since grassroots complaining - backed up with the credible threat of litigation where appropriate - has not been a factor.
July 29, 2007
J. Fox, the Canadian actor famous for roles in films like Back to the Future and for television
shows like Spin City and Family Ties, has become just as well
known in recent years in the role of activist. Fox, who has Parkinson's Disease, has campaigned for research money for the disease
and weighed in very public on the need for stem cell research. Fox's foundation
has raised nearly $100,000,000 for research to treat and cure Parkinson's. When
we read daily headlines about
I've been blogging of late about the backdoor efforts to get in to law Title III of the comprehensive immigration reform bill recently ditched by the Senate. Title III would have requiree all employers in the country to use the Basic Pilot program, an electronic employment verification system.
Recently, state laws have started to pass requiring employers to use Basic Pilot and now provisions are being added to federal budget bills requiring federal contractors to use the system. I've stated my concerns about a lack of funding to properly handle the addition of all these new users. The concern is not whether the electronic system can handle the users, but how "false positives" are managed when human beings have to actually resolve problems.
I did get a look this weekend at the handwritten text of a provision added to the HHS funding bill by voice vote. It will provide $60,000,000 additional funding for Basic Pilot for this year. Whether that's enough to handle the additional demand remains to be seen.
No surprise here, but there are few American government agencies
that have the prestige of the NSF. The report
does a nice job laying out the advantages and disadvantages to exporting and
importing skilled professional workers. The report wisely concludes that there
are always losers in a free trade environment, but that it is not a zero sum
game. This is why it is so important to have immigration factor into global
trade agreements. They've also included an interesting profile
on foreign engineers and scientists in the
In addition to any benefits or costs that might be viewed as
accruing to particular countries that send or receive highly skilled migrants,
there are global effects that cannot be assigned to individual countries. These
are essentially all the effects that could result in greater global efficiency
in the production of knowledge and of goods and services. Even if one rejects
the idea that one country benefits from wealth and knowledge creation in
another, this greater efficiency would result in a larger global sum of gross
domestic product, however distributed. A better international flow of knowledge
may increase the efficiency of new knowledge production globally because it
leads to better solutions to particular problems and reduces duplication in
Congressman Diaz-Balart, a Republican, has represented his
July 28, 2007
One of my first clients when I left a large law firm and became
a solo immigration lawyer was Mike Cronin, a British national who had been sent
Mike was originally sent to
Google "Michael Cronin Acoustic Construction" and you'll see links to many of the projects Mike's handled.
The National Journal's Jane Roh examines the question.
July 27, 2007
Just posted. Here are the highlights:
Applicants who filed adjustments between July 2nd and July 17th do not need to have a receipt in order to file for advanced parole or employment authorization if they provide proof of delivery of the I-485 application.
Applications received between July 2nd and July 17th will receive receipt dates based on the day the applications were physically received.
Medical exams completed abroad by State Department-approved doctors may be submitted in lieu of medical exams conducted by USCIS-approved doctors.
E-Filed I-140s received on July 31st will receive a July 31st priority date even if the supporting documents arrive at a late date (there's a seven day limit).
A receipt notice from a courier service (like Fedex) will constitute a "post-mark" for fee determination purposes.
Individuals who fell out of valid nonimmigration status between July 2nd and July 16th as a direct result of the inability to file for employment-based adjustment during that time will likely be forgiven for the short gap in status based on USCIS' discretion to consider extraordinary circumstances beyond the alien's control.
Applications must be properly signed (i.e. representatives cannot file applications at the last minute without the client's signature)
Family members MUST file adjustment applications before the August 17th deadline or wait until visa numbers become available again (presumably many years later in certain categories).
There are some other items covered such as substitution cases that I'm not describing here, but are worth reviewing if you're in that category.
July 26, 2007
Fareed Zakaria is an Indian-American
who is now one of the most recognizable foreign policy analysts in the
I am getting reports from readers that Visa Bulletin adjustment cases are being rejected for a variety of reasons that sound like USCIS mail room workers have been instructed to take an extremely restrictive view of what is a proper application. We had a case in our own office today where a case was returned stating that we failed to include an original labor certification approval notice. The problem was we did include the notice. While we have time to resubmit and politely request that the mail room clerk do his or her job properly, one gets the feeling that there will be lawsuits galore. Why doesn't USCIS get it? Getting sued for something that anyone with common sense knows will result in a loss for the agency does NOT serve the taxpayers' interests.
Anti-immigrant groups received a major setback today as a US DIstrict Court judge in
The City of
There were many grounds for overturning the decision, but the most telling one was the Constitutional bar on states preempting federal laws.
Here is the decision -
I've pulled some of the more important passages in the decision.
United StatesThis argument appears to be a species of argument often heard in recent
discussions of the national immigration issue: because illegal aliens broke the
law to enter this country, they should not have any legal recourse when rights
due them under the federal constitution or federal law are violated. We cannot
say clearly enough that persons who enter this country without legal
authorization are not stripped immediately of all their rights because of this
single illegal act. The Fourteenth Amendment to the
IRCA contains an express pre-emption clause that pre-empts State or local laws dealing with the employment of unauthorized aliens. The preemption clause provides: “The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2).
Under federal law
there are two types of immigration enforcement: border enforcement, which is
keeping unauthorized persons from entering the country; and interior
enforcement, which is distinguishing between legal and undocumented immigrants
already in the country and removing the latter. (N.T. 3/15/07
at 14). In interior enforcement, officials must strike a balance between
finding and removing undocumented immigrants without accidently
removing immigrants and legal citizens, all without imposing too much of a
burden on employers and workers. Too stringent of an enforcement system will
result in the wrongful removal of United States citizens and legal immigrants.United States foreign relations is affected by
the manner in which the balance is struck. Excessive enforcement jeopardizes
our alliances and cooperation with regard to matters such as immigration
enforcement, drug interdiction and counter terrorism investigations.
The Ordinance, unlike its superior federal
counterpart, contains no antidiscrimination provisions.
The employment provisions of IIRA differ from
and conflict with IRCA. It is thus in violation of the Supremacy Clause of the
As Supreme Court Justice Blackmun noted: “[T]he structure of the immigration statuses makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.” Plyler (Blackmun, J., concurring). Additionally, Supreme Court Justice Lewis F. Powell stated: “Until an undocumented alien is ordered deported by the Federal Government, no State can be assured that the alien will not be found to have a federal permission to reside in the country.” Plyler, 457 at 241 n.6 (Powell, J., concurring).
IIRA attempts to provide procedural protection to those affected by it by resorting to courts that do not have jurisdiction over determinations of immigration status. To refer those affected by IIRA to a court that cannot hear their claim is a violation of due process. For the above reasons, we find that IIRA violates the due process rights of both the employers and employees and is thus unconstitutional.
Because the IIRA does not provide notice to challenged employees or tenants, does not inform the employers and owners/landlords of the types of identity information needed, and provides for judicial review in a court system that lacks jurisdiction, it violates the due process rights of employers, employees, tenants and owners/landlords. It is therefore unconstitutional.
We therefore find that Ordinance 2006-18, as amended, does not on its face violate the plaintiffs’ right to the equal protection of the laws.
We find that we lack adequate information to balance the plaintiffs’ privacy interest in the data requested with the City’s need for that information. Neither party has presented sufficient evidence of what type of information will be required from plaintiffs, and plaintiffs have not adduced case law that would allow us to conclude that immigration information is on its face private data. We will therefore dismiss the plaintiffs’ privacy rights complaint.
Accordingly, section 1981 forbids the
defendant from prohibiting undocumented aliens from entering into leases. Thus,
the Tenant Registration Ordinance and the housing provisions of the IIRA, which
forbid such contracts, are in violation of section 1981
Whatever frustrations officials of the City of
Hazleton may feel about the current state of federal immigration enforcement,
the nature of the political system in the United States, in its zeal to control
the presence of a group deemed undesirable, violated the rights of such people,
as well as others within the community. Since the
Thanks to an alert reader for sending this link. The bill seems likely to be a turnoff to Democrats who will not be happy about the treatment of illegal aliens. I have a feeling this one will be dead on arrival, but we'll have to see.
Someone apparently got the message at USCIS that shutting down e-filing for routine maintenance tomorrow was an incredibly bad idea so they've pushed it back until Tuesday. However, our office has been having problems all day getting in to the e-filing system and it seems to be completely overwhelmed. We're hoping that the system gets better after business hours.
IN the mean time, USCIS made this disturbing announcement this evening:
On Monday, July 23, USCIS inadvertently posted on its website a version of Form I-485 that reflected the fee increase which does not take effect until July 30, 2007. USCIS has now posted the correct version of the Form I-485. We regret any confusion this may have caused.
But how exactly will USCIS treat cases filed by people who followed the instructions and sent in the wrong fee. Are they going to reject the cases (as they normally do since in 2007 they are still unable to make change when one overpays accidentally). Given that the mistake is the USCIS' you would expect the agency to accept responsibility and ensure cases are properly adjudicated. But I wouldn't bet the farm.
Trying to learn why now...
This is one of the most outrageous examples of bad customer service - and a complete breach of good faith - that I've seen in quite some time at USCIS. Here is an announcement just posted at the USCIS web site:
Scheduled E-Filing System Outage
The e-Filing System will be temporarily unavailable on Friday, July 27, 2007 from 3:00 PM EDT until 11:00 PM EDT for necessary maintenance.
We apologize for any inconvenience.
People are scrambling to file e-file I-140 cases before the end of the month in order to get July priority dates, something necessary to be able to file an adjustment case in August. Also, the I-140 fees increase substantially.
Funny, when USCIS announced which fees would be going up, the I-485, I-765, and I-131 were to stay the same until August 17th, BUT NOT THE I-140. I thought that was odd, but now it's starting to make sense. Is USCIS forcing people to file after the fees go up (and in the process harming people who are needing to e-file tomorrow? It certainly looks that way.
Scheduled maintenance? How hard is it to tell the IT guys to hold of a few days?
I haven't seen the language, but apparently the bill is enforcement-only though some of the most onerous provisions (such as mandatory detention of overstays and police questioning of immigrants) seem to have been modified to satisfy worried Democrats. The Associated Press reports here.
Senator Chuck Schumer (D-NY) has offered an amendment to the Department of Homeland Security appropriations bill that would allocate 61,000 green cards unused in prior years to Schedule A nurses and physical therapists. The vast majority of these green cards are likely to go to nurses who will face new hurdles because they lack a non-immigrant visa category and have not been able to take advantage of adjusting status via the July Visa Bulletin. The flood of applications filed pursuant to that bulletin will likely send the EB-3 category back several additional years. Schumer's amendment (S.AMDT.2448) will likely be voted on today.
I am urging readers to support this provision. Without it, nurses
face several extra years of waiting. The Visa Bulletin fiasco was great news
for many, but it is terrible news for many nurses. Even those in the
Please call, fax and email your Senators and urge them to support 2448, the Schumer nursing amendment to the DHS appropriations bill. You can find your Senator's contact details at http://www.senate.gov.
July 25, 2007
Omidyar was born a week before me in
Omidyar has become one of the richest people on the planet and is also a major philanthropist. Omidyar was lucky enough to have had parents who legally immigrated. Would he have had the same good fortune if his parents were no legal? How many future Pierre Omidyars are we losing by not passing the DREAM Act?
This is one of the most common arguments expressed by the anti-immigration. But the Newark Star-Ledger's Brian Donohue calls this "utter hogwash" and reminds readers that for hundreds of years in the US there were NO immigration laws to break unless you were a criminal, insane or, after 1882, Chinese.
Only 1% of people were turned away at Ellis Island (the place at
which one in two Americans claims ancestry) and immigrants could come without
jobs or family in the
My favorite quote from the article:
Crediting yesteryear's immigrants with following the laws is like calling someone a good driver because they never got caught speeding on the Autobahn.
The Senate voted 52-44 not to consider the Graham Amendment on grounds that it was not germane. Because of that vote, the Reid side-by-side amendment also went down. The Democrats held firm with all voting against Graham. They were joined by two Republicans - Thad Cochran (R-MS) and Ted Stevens (R-AK).
You can find your Senator's phone, fax and email information at www.senate.gov.
The message is simple and here's some quick text:
Please SUPPORT the Reid side-by-side amendment on AgJobs and Dream Act and OPPOSE the Graham amendment."
It only takes a moment and according to Hill Staffers, it counts.
I work with a lot of immigrant soldiers as well as American soldiers with immigrant relatives and I like to highlight contributions immigrants are making to the defense of the country.
Immigrants are now a critical part of the American military and our country now depends on immigrants not just to ensure a healthy economy, but for the safety of the country as well.
Senator Lindsay Graham (R-SC), one of the Republican's chief architects of this summer's comprehensive immigration reform bill, will introduce an amendment to the Department of Homeland Security appropriations bill much of Title I and II of the CIR bill. Those sections cover border and interior enforcement. The measure is being opposed by immigration advocacy organizations like AILA.
According to a press release from Graham's office, the measure would do the following:
· Operational control
over 100% of the U.S.-Mexico land border
AILA is opposing the measure for a variety of reasons including the expansion of state and local enforcement of immigration laws, the subjecting visa overstayers to mandatory jailing and the penalization of cities that doe not choose to turn their police officers in to immigration agents.
According to AILA, Senator Reid will offer a side-by-side amendment that would pair the Graham bill up with the AgJobs and DREAM Act bills that would help those who entered illegally as children as well as certain agricultural workers who are out of status.
I am urging readers to support the side-by-side amendment and encourage you to call your Senators to offer support. While the enforcement bill has problems, the odds of an enforcement bill passing are good and we can work to make positive changes before it gets to the President's desk. And AgJobs and the Dream Act would help an enormous number of people.
Washington Post reports that a law that went in to effect a year ago
to make it impossible for illegal aliens to qualify for Medicaid has had
virtually no impact on Medicaid enrollment. Why? Because
illegal immigrants do NOT come here for the public benefits. They come
to work. Contrary to what groups like FAIR or NumbersUSA
say, people don't risk their lives crossing deserts or being smuggled in
container holds on 18-wheeler trucks just so they can get public benefits in
Greg Siskind, Esq. is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.