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Immigration Daily
Arthur L. Zabenko, Esq., Legal Editor
Nina Manchanda, Esq., Assistant Legal Editor
Marc Ellis, Esq., Chat Transcripts Editor
September 14, 2000
Contents:
Editor's Comments of the Day
Cases of the Day
Congressional News of the Day
Immigration News of the Day
ILW.COM Highlights of the Day
ILW.COM Chats and Discussions of the Day
Letters to the Editor
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An Important disclaimer! The information provided on this page is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney. Correspondence to editor@ilw.com. Letters may be edited and may be published and otherwise used in any medium.

Editor's Comments of the Day

Yesterday we urged readers to contact their representatives and make their views on immigration issues known. Some recent writings highlight the need for educating members of Congress and others about the complexities in the field of immigration. In an article about the H-1B debate by Prof. Norman Matloff which appeared in the September 12, 2000, issue of the Washington Post Prof. Matloff quotes attorney Joel Stewart as writing, "(e)mployers who favor aliens have an arsenal of legal means to reject all U.S. workers who apply." The quote is apparently taken from an article on this web site titled "Legal Rejection of US Workers." Mr. Stewart's article deals solely with the issue of rejection of US workers in the permanent labor certification process. Labor certification, which is highly legalistic, arcane and completely divorced from reality, is a step towards permanent resident status. Mr. Stewart's article has nothing to do with the H-1B classification which is a temporary, nonimmigrant category. If those who are taking the lead and raising their voices the loudest in the H-1B debate are confused on the issues, imagine how much more so members of Congress, for whom immigration is only of many issues, must be. By providing information and encouraging discussion we hope to be part of the education effort.


Cases of the Day

Offense of Alien Smuggling Can be Committed Extraterritorially
In US v. Liang, No. 99-10578 (9th Cir. Sept. 13, 2000), the court found that the offense of attempted alien smuggling began upon leaving the country of origin and continued until apprehension in US territory. Since the vessel, passengers and crew were taken into custody approximately 100 yards form the shore of Guam, venue was proper there and not in the Commonwealth of the Northern Mariana Island more than 100 miles away.

No Habeas Jurisdiction to Challenge Discretionary Decisions
[You will need Acrobat to read this file]
In Merisier v. INS, No. 00-393 (GBD)(AJP) (S.D.N.Y., Sept. 12, 2000), the Magistrate Judge recommended that the petition for habeas relief be denied and the decisions of the Immigration Judge and Board of Immigration Appeals be upheld. The judge found that under AEDPA and IIRIRA the court did not have jurisdiction to hear a habeas petition which challenged discretionary decisions and did not suggest an error of law.(Long Download)

Petition for Adjustment Dismissed
[You will need Acrobat to read this file]
The court in Michalski v. INS, No. 00-1216 (LAK) (S.D.N.Y. Sept. 11, 2000), dismissed for lack of subject matter jurisdiction Petitioner's action to compel the INS to grant adjustment for an applicant under the 1997 diversity immigrant visa program.


Congressional News of the Day

Mark Up of H.R. 4068, Religious Workers Act of 2000
The House Subcommittee on Immigration and Claims is scheduled to mark up the H.R. 4068, Religious Workers Act of 2000 on September 13, 2000.

Mess at the Justice Department
A recent Department of Justice (DOJ) Inspector General's report highlights misconduct in two components of DOJ's Criminal Division--The International Criminal Investigative Training Assistance Program (ICITAP) and the Overseas Prosecutorial Development, Assistance and Training (OPDAT)--including the possible improper issuance of visas.

President Approved H.R. 4489
An announcement in the Congressional Record stated that the President had signed H.R. 4489, an act to amend section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, on June 15, 2000.


Immigration News of the Day

INS Detainees Surge in US
According to the Miami Herald as a result of IIRIRA more than 20,000 aliens are held on an average day in hundreds of facilities nationwide, making the INS one of the largest detention systems in the country. The cost to taxpayers is more than $600 million a year.

Immigrant Women and Abuse
NPR's All Things Considered reports on domestic violence faced by immigrant women whose husbands control their wives immigration status in the US, and provides an audio link to interviews with women who are working their way out of violent relationships as well as information on the social agencies of "Sakhi" and "Nav Nirmaan."

Foreign-Born Residents as Likely as Native Population to be College Grads, But Lag at Lower Educational Levels
A report by the Bureau of the Census, Economics and Statistics Administration, highlights statistics on the level of education of foreign born residents and also features statistics on characteristics of the foreign-born population such as region of birth, geographic distribution in the US, age, citizenship, household size, marital status, educational level, employment status, occupation, earnings and poverty rates.


ILW.COM Highlights of the Day

Are Your Friends Looking For Immigration Information?
Now you can share the immigration information page with your friends.


ILW.COM Chats and Discussions of the Day

Chat with Stephen Berman, Esq.
Attorney Stephen Berman will answer questions on all aspects of immigration law Thursday, September 14, 2000, at 9:00 p.m. Eastern (New York) time. Questions will be accepted beginning 15 minutes prior to the start of the chat session.


Letters to the Editor

The following are in response to an article by Prof. Norman Matloff in the September 12, 2000 issue of the Washington Post.

Dear Editor

Mr. Matloff's article attempts to make a very simple deception: The H-1B program is misused by US employers who want to use cheap labor instead of more demanding US workers. The writer dismisses the safeguards that have been built into the H-1B law (the labor condition application). He says simply "The law requiring that H-1Bs be paid 'prevailing wage' is "riddled with loopholes," nor does he identify the loopholes. In fact, it is clear that he does not understand the prevailing wage regulations. For example, he criticizes an H-1B wage of $35,000 per year as being under the "national average for new computer science graduates," but the labor condition application is not built on the national average of wages -- it is built on the prevailing wage in a defined geographical area. More…

Respectfully,
Therese L. Stewart,

Dear Editor

I was flattered to see my name in a publication so distinguished as the Washington Post, but surprised to see myself misquoted. I have never written an article or opinion about the H-1B program nor have I advocated that employers pay foreign workers less than US workers as implied in the Washington Post. On the contrary, all US Employers must pay aliens the prevailing wage as calculated by the US Department of Labor. Recent decisions have drawn these wage distinctions very strictly in favor of US workers and no deviations are permitted. The statement that American employers are inundated with applicants and resumes for high-tech jobs is patently untrue, and the characterization of H-1B workers as "indentured servants" from India, "underpaid" and "trapped" with their US employers, is fanciful hyperbole.

Joel Stewart
Attorney at Law


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