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Immigration Daily July 29, 2002
Previous Issues


Editor's Comments

Today's issue of Immigration Daily features something for (hopefully) everyone: another article in the H-1B series, INS has proposed the "Change of Address rule" for comment, TPS for Somalia has been extended, the actual text of the Memorandum of Understanding between DOJ and Florida is now available, a BALCA case, and many items from the federal register, Congress, the White House and the federal courts, and also four letters to the editor. We hope readers will start off a new week well armed with this information.


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Featured Article

H-1B Series: General Requirements of Program
George N. Lester IV continues his series on H-1B visas with an overview of the general requirments of the program.


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Immigration Law News

INS Publishes Change Of Address Rule For Comment
INS issued a proposed rule which stated: "This proposed rule would amend the regulations of the Immigration and Naturalization Service (Service) by requiring every alien who is applying for immigration benefits to acknowledge having received notice that he or she is required to provide a valid current address to the Service, including any change of address within 10 days of the change; that the Service will use the most recent address provided by the alien for all purposes, including the service of a Notice to Appear if the Service initiates removal proceedings; and, if the alien has changed address and failed to provide the new address to the Service, that the alien will be held responsible for any communications sent to the most recent address provided by the alien. This rule will satisfy the requirements for advance notice to the alien of the obligation to provide a current address to the Service, and of the consequences that may result for failure to do so, including the entry of an in absentia removal order against the alien if the alien fails to appear at a removal hearing."

Somalia TPS Extended
INS extended Temporary Protected Status for nationals of Somalia by one year.

OF-171 Cancelled
The General Services Administration cancelled the OF-171 form.

Memoradum Of Understanding Between DOJ And Florida On Local Police Immigration Enforcement
The Florida Department of Law Enforcement released the Memorandum of Understanding signed by the State of Florida with the Department of Justice on local police enforcement of immigration law. (Thanks to Dan Kowalski of Bender's Immigration Bulletin for this information.)

BALCA Says Full Time And Recurring Employment For 9.5 Months Per Year Is Not Permanent Job Offer
In the Matter of Crawford & Sons, No. 2001-INA-121 (BALCA, Jun. 13, 2002), the Board of Alien Labor Certification Appeals said that although the Employer's job offer for a Landscape Gardner for 9 and 1/2 months per year, in which job alien had in fact been employed for 7 years, was full time and recurring, it was not permanent employment within the definition of the en banc decision which controlled the case.

The New Know-Nothings
Rep. McGovern (D-MA) commended an article to the attention of his House of Representatives colleagues about the founder of the National Immigration Forum and his struggles with the anti-immigration movement in the US.

Rep. Frost Calls On Adjudications To Be Efficient And Fair In Any New Homeland Security Structure
During the House of Representatives's debate on the creation of the new Department of Homeland Security, Rep. Frost (D-TX) said "... we must ensure that America's immigration adjudication functions, like family reunification and adoption, operate effective, efficiently and fairly regardless of which Homeland Security Department structure becomes law, we must continue to welcome these law abiding immigrants who helped build America even as we focus on protecting ourselves here at home."

House Bill For Military Involvement In Immigration
A bill was introduced in the House of Representatives for Defence matters, which included language on permitting the military to assist the INS in the performance of its duties.

Visas For Spouses Of 9/11 Victims
White House Press Secretary Ari Fleischer responded to a question about visas for spouses of the victims of the 9/11 attack.

Use Of A False Social Security Number Where Restitution Exceeds $10,000 Is An Aggravated Felony
In St. John v. Ashcroft, No. 01-5179 (10th Cir. Jul. 25, 2002), the court said that the Petitioner had committed an aggravated felony when he pled guilty to federal charges of use of a false social security number and where he was sentenced to pay $25,000 to several named receipients.

4th Circuit Uses Extremely Deferential Standard To Review BIA Denials Of Motion To Reopen
In Osere v. INS, No. 02-1042 (4th Cir. Jul. 26, 2002), the court said that it found no reversible error in the Board of Immigration Appeals's finding that Petitioner failed to establish exceptional circumstances warranting the Immigration Judge to reopen the removal proceedings, under an "extremely deferential" standard of review.

Violation Of Confrontation Clause Held Harmless Because Of Border Patrol Agents Testimony Against Alien And Opportunity To Cross Examine During Videotaping
In US v. Aguilar-Tamayo, No. 01-50847 (5th Cir. Jul. 25, 2002), the court found that the Federal Rules of Evidence required the Government to take reasonable means to secure the presence of witnesses whose videotaped testimony was admitted against the Defendant so that he could confront them, but that in this case, the Government's error was harmless since he would have had to persuade the jury to credit his testimony over that of two Border Patrol agents, and since he had the opportunity to cross-examine the witnesses in the videotaped deposition process.


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Undocumented Wait For Another Amnesty
The Seattle Times reports that "the vast majority [of undocumented aliens] simply survive, holding onto hope that the federal government will someday grant another general amnesty."

Undocumented's Status Becoming Institutionalized
The Washington Post reports on the growing acceptance of Mexican identification documents in the US and quotes Mark Krikorian of the Center for Immigration Studies "It's part of a creeping amnesty, what we're seeing with illegal immigrants is a growing institutionalization of their status."


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Letters to the Editor

Dear Editor:
According to information found on the website for the US Embassy in London, and the U.S. Consulate in Chennai, the new DS-158 is now required for nonimmigrant visa applicants in the F, J, and M categories. This is from Visa Services, U.S. Embassy in London, Consular Section (http://www.usembassy.org.uk/cons_web/visa/niv/ds158.htm)

Additional Processing Requirements for F, J & M Visa Applicants - Student Visas | Exchange Visitor Visas

Effective immediately, all F-1, F-2, J-1, J-2, M-1 and M-2 visa applicants, regardless of age, are required to complete the form DS-158, (http://travel.state.gov/DS-0158.pdf), Contact Information And Work History For Nonimmigrant Visa Applicant. This form is in addition to the visa application form DS-156 and where necessary, the DS-157. The form must be completed by all applicants, even babies and children. Applications received without a completed DS-158 will be returned to the applicant which will considerably delay the processing of the visa application.

Kathy Bunch
Sr. Immigration Paralegal
Littler, Mendelson, P.C.

Dear Editor:
The July 26, 2002 issue of the American Bar Association e-Report included a brief article regarding the ABA's call for "opposition to the Immigration and Naturalization Serviceís 'incommunicado detention' of foreign nationals."

I find it interesting that Mark Krikorian, Executive Director of the Center for Immigration Studies was quoted as saying, "They say there are security reasons that the names canít be released...It doesnít bother me much, because these are noncitizens...They are here as our guests on whatever terms we set out for them. The rights that we accord to noncitizens are more limited than those for citizens."

I don't know whether Mr. Krikorian travels internationally very often, but I trust he will remember his comments if he is ever detained abroad, and that government opts not to disclose either his name, the location he is being held, or the charge against him until they are good and ready to do so.

Just a thought. Thanks again for providing such a great forum for immigration-related news and commentary.

Karmell Bowen

Dear Editor:
Lawmakers Take Stand for Families, Fairness - House Judiciary Committee Gives Legal Immigrants Day in Court

In an effort to keep American families together and restore justice for legal immigrants, the House Judiciary Committee passed an amended version of the bipartisan Family Reunification Act, H.R. 1452. The Act would restore a limited measure of fairness to a harsh 1996 law that was meant to clamp down on illegal immigration and make it easier to deport serious criminals. Instead, the 1996 law has torn apart thousands of American families and stripped long-term legal immigrants of their basic rights.

The measure the Judiciary committee passed this week reflects a compromise between House Judiciary Chairman James Sensenbrenner (R-WI) and the bill's sponsor, Rep. Barney Frank (D-MA). The Sensenbrenner-Frank compromise would provide a limited opportunity for certain long-term legal permanent residents to ask a judge to consider the facts of their case before deciding whether to deport them from the United States. The measure includes an amendment by Rep. Darrell Issa (R-CA) that requires any new grounds of relief from deportation to be personally approved by the Attorney General or Deputy AG and contains a sunset provision that would terminate the measure in 2005. AILA opposed the Issa amendment but supports the Family Reunification Act as an important first step toward reforming the harsh 1996 laws. The measure would:
* Give immigration judges the option to grant relief from deportation in cases involving long-term legal permanent residents who committed relatively minor offenses.
* Ban relief for anyone convicted of terrorism-related or other serious offenses, such as rape, murder, and sexual abuse.

"Representatives Frank and Sensenbrenner are to be commended for reaching a compromise on this important issue. The Family Reunification Act is a limited and narrowly crafted response to unjust immigration policies that cause good lives to be needlessly ruined by a bad system," said Jeanne Butterfield, Executive Director of AILA. "The Act is a first step toward changing a system that badly needs to be reformed. We need to use our law enforcement and INS resources to target terrorists, not harmless members of American families."

The Family Reunification Act would restore the basic right of long-term legal immigrants to have their day in court. Without the Act, the 1996 law indiscriminately subjects all legal immigrants convicted of even minor offenses to a "one size fits all" punishment of lifetime deportation, with no chance to have their cases evaluated by a judge to determine if such a harsh penalty makes sense.

One American family that would be helped by the Family Reunification Act is that of Robert and Sheila Salas. Robert came legally to the United States from Peru in 1985 and has been a lawful permanent resident for 16 years. His wife, Sheila, is an Air Force staff sergeant and they have two young daughters. In 1999, Robert decided to apply to become a U.S. citizen, partly so that if his wife is assigned overseas the family can move together. During his citizenship interview, Robert truthfully disclosed his 12-year old conviction for simple drug possession, which resulted in probation and was later dismissed. Even though his offense is not considered a conviction under criminal law, it counts as an "aggravated felony" under 1996 immigration laws that are retroactive. INS put Robert in deportation proceedings. The Salas' are fighting to keep their family together. If Robert is deported, Sheila will be forced to decide between keeping the family together and serving her country.

"It may come as a shock that anyone would oppose the fundamental American principle of having one's day in court, that anyone would deny people like the Salas' the right to have their case heard; but the measure, approved by an 18-15 vote, does have opponents," said Butterfield. "It is a very sad day when the right to a day in court becomes a controversial idea."

"Our immigration laws can be both tough and fair," concluded Butterfield. "The bill simply recognizes that certain long-term legal residents deserve an opportunity to present the facts of their case and have a judge determine whether or not they should be deported from the United States. Now it is up to Congress to restore this basic right to long-time legal immigrants."

American Immigration Lawyers Association

Dear Editor:
Regarding the Virginia Men Charged In Visa Scheme (reported at washingtonpost.com), all immigration attorneys take advantage of Americans and immigration law. These fellows just exceeded the norm in their activities.

Name Not Supplied.


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. Send Correspondence and articles to editor@ilw.com. Letters and articles may be edited and may be published and otherwise used in any medium. Opinions expressed in letters and articles do not necessarily reflect the opinion of ILW.COM.

Editorial Advisory Board
Marc Ellis, Gary Endelman

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