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Immigration Daily August 13, 2002
Previous Issues
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Editor's Comments

As mandated by ACWIA, the H-1B Act of 1998, INS issued a report on "Characteristics of Specialty Occupation Workers (H-1B): Fiscal Year 2000." This captivating report is full of information and tables on the actual use of H-1B visas. The H-1B debate, on both sides, has sometimes been justly accused of being long on rhetoric and short on fact. This INS report sheds some penetrating rays of light in this area, hopefully setting the foundation for more informed debate, exactly as those in Congress who voted it into law, including former Sen. Abraham, intended it to. Some of the interesting nuggets in this short and readable Report are: "the number of approved petitions exceeds the number of individual H-1B workers" - a point clearly ameliorating the labor market impact of the H-1B program; "Almost half of the H-1B petitions approved were granted to individuals born in India" - no surprise there to most Immigration Daily readers, but a matter which will surely attract attention and comment; "98 percent [of H-1B workers] earned at least a bachelorís degree and 41 percent earned at least a masterís degree" - an issue which had been disputed; "Fifty-eight percent of all H-1B petitions approved in fiscal year 2000 were accounted for by computer-related occupations" - again hardly a surprise, but which leads one to ponder on the fate of the H-1B program in a post-technology crash world. Regardless of where each person stands in the H-1B debate, the INS Report is essential reading.


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Featured Article

Non-Citizens Must Notify INS Of Change Of Address - Form AR-11
Parastou Hassouri writes "In light of the current conditions, it is advisable for all non-citizens to comply with this provision, and inform the INS of a change of address."


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Immigration Law News

INS Issues Report On H-1B Workers
The INS issued a "Report on Characteristics of Specialty Occupation Workers (H-1B): Fiscal Year 2000" containing much fascinating information. Some nuggets: "the number of approved petitions exceeds the number of individual H-1B workers ... Almost half of the H-1B petitions approved were granted to individuals born in India ... 98 percent [of H-1B workers] earned at least a bachelorís degree and 41 percent earned at least a masterís degree ... Fifty-eight percent of all H-1B petitions approved in fiscal year 2000 were accounted for by computer-related occupations ..." The report contains a number of informative tables, pointing out, among other useful information, that the median wage for all H-1B beneficiaries for Fiscal Year 2000 was $52,800.

INS Fact Sheet On Office Of Juvenile Affairs
INS issued a Fact Sheet on its Office of Juvenile Affairs saying, "The number of unaccompanied juveniles arriving in the United States has more than doubled in the last five years, rising from 2,375 in FY 1997 to 5,385 in FY 2001. The Office of Juvenile Affairs will provide an integrated response to this growing population seeking alternatives to detention whenever possible and ensuring that juveniles have access to all benefits and services to which they are entitled."

Wage And Hour Asked To Determine Personal Liability Of Company Officers In LCA Matter
In the Matter of Administrator, Wage and Hour Division v. Indus International Associates, Inc., No. 2002-LCA-0018 (OALJ, Aug. 2, 2002), the Office of Administrative Law Judges said that the notices of hearing which were mailed to the Employer and its President were returned undeliverable as addressed, and asked the Wage and Hour Division issue a new Determination Letter which "should determine whether any personal liability is asserted against [the officers of the company]."

Refusal To Consider Actions Of Non-Attorneys As Basis For Reopening Proceedings Is Erroneous
In Fajardo v. INS, No. 01-70599 (9th Cir. Aug. 9, 2002), the court determined that the Immigration Judge's (IJ) conclusion that Petitioner's motion to reopen was precluded because it was her second motion was erroneous and the IJ's categorical refusal to consider the actions of two non-attorneys who represented Petitioner as a basis for reopening Petitioner's proceedings solely because they were not attorneys was also erroneous (as was the summary affirmation by the Board of Immigration Appeals).

Charging Papers And Abstract Of Judgment Show Second Degree Burglary Is Aggravated Felony
In US v. Velasco-Medina, No. 01-50064 (9th Cir. Aug. 12, 2002), the court noted that Defendant did not object at trial to the sufficiency of his indictment for attempted reentry after deportation, which indictment did not allege specific intent, but said that such defect was harmless, and said that the charging papers and Abstract of Judgment for Defendant's second degree burglary conviction demonstrated that he pled guilty to all of the elements constituting a generic burglary which qualified as a aggravated felony warranting a sentencing enhancement.

California Supreme Court Says Denial Of Motion To Vacate 13-Year Old Judgment Due To Immigration Consequences Without Advisement Is Appealable
In People v. Totari, No. S091459 (Supreme Court of California, Aug. 8, 2002), the court said that a California trial court's denial of Defendant's motion to vacate a 13-year old judgment, which allegedly had immigration consequences and which was possibly imposed without the advisements required under California law as to the immigration consequences of a plea, was an appealable order.

US Donates Additional Money To UNHCR
The Department of State announced "The United States is pleased to announce an additional contribution of $16.9 million to the United Nations High Commissioner for Refugees [UNHCR], bringing the United States' contribution for FY2002 to over $255 million." The announcement noted that the United States is the largest donor to the UNHCR.

INS Publishes Final Rule On Registration And Monitoring Of Certain Aliens
INS published a final rule "to broaden the special registration requirements for nonimmigrant aliens from certain designated countries, and other nonimmigrant aliens whose presence in the United States requires closer monitoring, to require that they provide specific information at regular intervals to ensure their compliance with the terms of their visas and admission, and to ensure that they depart the United States at the end of their authorized stay."


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AILA Issue Paper: Restricting Immigrant Access to Driver's Licenses
The American Immigration Lawyers Association says "AILA opposes limiting immigrantsí access to driverís licenses based on immigration status. Denying driverís licenses to large segments of the population is an inefficient way to enforce immigration laws and prevent terrorism and would make everyone in the community less safe."

AILA Backgrounder on Social Security and Immigration
The American Immigration Lawyers Association says "The sheer volume of no-match employees, although not entirely related to undocumented workers, is a symptom of an immigration system that is not responsive to current economic realities. Efforts to address this problem, principally through the immigration reform proposals central to the U.S./Mexico discussions, will result in a more economically sound and secure America."


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Letters to the Editor

Dear Editor:
The registered nursing shortage is generally perceived by the medical industry as being much worse than the 126,000 cited by the Latour report. Not only is this country in need of substantial numbers of nurses, but virtually all of the countries in Europe and the Middle East as well. This makes recruitment to the US much more difficult as we are competing with countries that allow much easier access to registered nurses, both in effort and time.

INS, in its wisdom, acts as a bulwark against quality health care. Despite the fact that most critical care nurses require much more than an entry -level education in order to do their jobs, at least the equivalent of a baccalaureate degree, the INS insists that most critical care RNs are not considered to be professional. ICU nurses, CCU nurses, emergency room nurses and operating room nurses, all of whom require years of training above their entry-level degrees, are not considered professional and are denied H-1B visas.

In fact, even supervisory nurses with administrative duties, a classification that INS has conceded should be granted H-1B visas, are denied the visas on the flimsiest of grounds. INS searches for reasons to deny these nurses critical to the care and health of our communities. It is almost as if there is a terrible game being played at INS, "deny the visa", with the losers being the children, adults and elderly paying the price with their lives because of inadequate care.

The immediate need for nurses could be ameliorated by INS's acceptance of the need that most hospitals have for registered nurses with baccalaureate degrees in critical care units. The law is clear that professionals can be brought in. Legislation is not required. Simple common sense would suffice.

Charles A. Grutman
President, Pilot Employment Agency II, Inc.

Dear Editor:
Having just read Mr. Latour's article, and the letters to the editor. I would like to add input, as the nurse who filed an H1A complaint which resulted in one of the largest back pay cases in DOL history. Some things that are overlooked in Mr. Latour's article about the H1A visa are that: When the H1A visa experienced sunset hospitals were downsizing and substituting unlicensed persons for RNs. As nurses knew then and we all know now that was a poor strategy. Registered nurses were told in 1995 that they should close 20% of their nursing schools and that by 2005 20% of the current RN workforce would not be able to find work in the industry. This information came from what were considered to be very credible groups on the subject specifically the PEW Commission. Many RNs moved on to other work because the acute care workplace was becoming less desirable and there were many better opportunities for them in other industries. Add to this the fact that RN salaries had been flat since 1992 and that there was evidence of widespread abuse of the visa status and one can understand sunset of the act.

In fact, the H1A visa legislation was greatly flawed. Because it provided no requirement for nurses entering the country to meet the standards required to pass our licensing exam, numerous individuals, who could not pass the test, were kept in the country illegally and were exploited. See New York Times article January 15, 1998 U. S Breaks Up Ring That Smuggled Nurses. "Prosecutors said 570 nurses had been illegally placed in positions paid substandard wages and lived in crowded conditions." This was because the attestation required to bring nurses into the country required very little of potential employers. Employers also knew there was little chance they would be caught violating the law because few would understand how to file a complaint. The scenario that occurred in Texas was repeated in numerous other states.

Furthermore, when the H1A visa was passed industry promised that it would be a temporary measure, while they worked with the education community to improve the production of domestic nurses. In fact, industry did nothing of the sort. They eliminated education money and discontinued their efforts to collaborate with the profession to alleviate the causes of the nursing shortage of the late '80s and early '90s citing the PEW and other statistics. Nursing knew this was short sighted and reported their concerns to the Institute of Medicine in 1996.

While there may be a need to reconsider the temporary visa status for RNs to enter this country, the immigration of nurses should not be viewed as a fix by anyone for the nursing shortage. Poor immigration policy as illustrated by the H1A visa program has not proved in the past to improve the shortage problem and in the end probably contributed to it. The new bills that have been introduced in Congress to expand the H1C program fall short. The proposals have many of the flaws of the past temporary visa bills for nurses. They try to bypass entry standards deeming them too cumbersome. They provide a turn around time for the reviewers of attestations that is unreasonable and they only require regulators to establish that all of the blanks have been filled in on the forms. Temporary visa legislation needs to do better than this if it is to improve the nursing shortage.

I would also ask if Mr. Latour knows that the World Health Organization and the International Council of Nurses have both questioned the ethics of brain-draining other countries of their nurse populations when in fact there is a world wide shortage of nurses. Mr. Latour should be aware that the nursing shortage is not new. Since the 1930s, the DOL has been reporting to Congress that major contributors to the nursing shortage are unfavorable working conditions and poor wages.

Women have grown up in this country. They know they can get higher wages and better treatment in male dominated professions. If we want nurses in this country, both women and men, then we need to continue the current efforts to improve the image of the profession and to give those who work in it the respect and pay they deserve. Any immigration policy changes should enhance those goals, not detract from them.

Stephanie Tabone MSN, RN
Director of Practice
Texas Nurses Association

Dear Editor:
Understandably, we all concentrate on issues bearing direct interests or relations to ourselves. However, as a responsible media like yours, balanced coverage should be taken care of. I found your Immigration Daily has put more weight on H-1B and labor issues than many other equally or even more critical ones such as "Fix 96".

Most of us know that 1996 immigration laws created significant problems and tragedies for families in the immigrant societies. There are now 3 bills pending in the House (H.R.87 Keeping Families Together Act of 2001, H.R.1452 Family Reunification Act of 2001, and H.R.3892 Restoration of Fairness in Immigration Act of 2002) and 1 in the Senate (S.955 Immigrant Fairness Restoration Act of 2001) in an effort to fix the wrongs.

Just last month (July 23, 2002), the House has passed H.R.1452. Your Immigration Daily even doesn't have a word about it (have I missed something ?)! Remember, if not because of the 1996 immigration laws, most of your case reports would not even be a case to begin with.

I sincerely hope your web site could have a through review about your coverage and could allocate more attention on the issue of "Fix 96", especially in today's political environment where the balance between national security and civil liberty and individual freedom is at stake.

I love Immigration Daily and wish you all the best.

A Concerned Reader.

Editor's Note: We cover all immigration legislation regardless of whether it is employment-immigration or family-immigration or any other aspect of immigration. Our coverage focus for pending legislation is the Congressional Record, however, we do supplement that with other sources from time to time. On H.R. 1452, we carried an article in our issue of May 20, 2002.

Dear Editor:
Undocumented Immigrant Succeeds (http://www.newsday.com/mynews/ny-liimmi082814464aug08.story)

Much as I would like to be happy about such success stories, I would rather have headlines read: "Legal Immigrant Succeeds".

People who come to the US and stay here legally have to go through a laborious, frustrating immigration process. Glorifying illegal/undocumented immigrants is like a slap on the face of legal immigration.

Rangarajan Suresh


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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