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Immigration Daily October 11, 2002
Previous Issues
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Editor's Comments

The deadline for the second session for the "Event of the Year" is Friday, October 11th. "INS, DOS, DOL - The Search For Consistency" features Ron Klasko and Tammy Fox-Isicoff joined by Jacqueline Bednarz of INS, Steve Fischel of DOS, and Harry Sheinfeld of DOL. For more info, including registration information online, click here. For more info, including registration information by fax, click here.

Errata: Typographical errors in State Department Issues Rules For 2004 Diversity Visa Lottery by Greg Siskind and Amy Ballentine have been corrected. The first paragraph in Section IIc of An Analysis Of The Child Status Protection Act - Updated by Cyrus D. Mehta has been replaced with new text.


INS/DOL/DOS Seminar Deadline Is Friday, October 11th

ILW.COM's seminar course "INS, DOS, DOL - The Search for Consistency" features Jacqueline Bednarz (INS), Steve Fischel (DOS) and Harry Sheinfeld (DOL). Leading the discussion will be distinguished practitioners Ron Klasko and Tammy Fox-Isicoff who are justly reputed to be dynamic and incisive speakers. Each of the seminar course's 3 sessions features 30 minutes of Q&A with the speakers.

Many complex immigration issues require resolution with more than one government agency. Examples include H-1B and adjustment portability, 245(i) labor certification grandfathering, ACWIA issues, 212 waiver issues, changes in location or salaries of H-1Bs, changes from adjustment of status to consular processing, substitution of experience for education, J-1 issues and consular readjudication of approved petitions.

Many opportunities exist to ask the INS or the DOL or the DOS for that agency's position on particular issues. However, this seminar is a rare opportunity to confront three of the most knowledgeable government officials in one forum to resolve issues where their respective agencies have taken contrary or inconsistent positions.

The following is the curriculum for "INS, DOS, DOL - The Search for Consistency"

FIRST Phone Session on September 10, 2002: DOL/INS Issues
This session will deal with DOL and INS positions on cutting edge issues including:

  • Start date of H-1B employment where issuance of social security number delayed
  • 245(i) grandfathering based on withdrawn or denied labor certification applications
  • Effect of concurrent filing on labor certification substitutions
  • Impact of leaves of absence on H-1B aliens and employers
  • Effect of changes in employer structure, job description full-time status, salary and location of employment on LCA, I-129, ETA, I-140 and I-485

SECOND Phone Session on October 16, 2002: DOS/INS Issues
This session will deal with DOS and INS positions on cutting edge issues, including:

  • Child Status Protection Act
  • Concurrent adjustment/consular processing issues
  • Consular readjudication/revocation of INS-approved petitions
  • 3 and 10 year bar waivers
  • Travel by H-1B portable aliens
  • Who is subject to the two-year return requirement?
  • Accompanying or following to join

THIRD Phone Session on November 20, 2002:

  • Summary of DOL/INS/DOS positions on cross-agency issues
  • Hot Issues at DOL, INS and DOS
  • Impact of formation of Homeland Security Department on DOL, INS, DOS
  • Post-election legislative forecast for the new Congress
  • 2003 - a look ahead
Speakers for this seminar series include:

Jacqueline Bednarz, Special Assistant to the Executive Associate Commissioner for the Office of Policy and Planning of the Immigration and Naturalization Service in Washington, D.C.

Steve Fischel, the Director of Legislation, Regulations and Advisory Assistance in the visa office of the Department of State.

Harry Sheinfeld, Litigation Counsel in the Employment and Training Legal Services Division, Office of the Solicitor, at the U.S. Department of Labor.

For more info, including registration information online, click here.
For more info, including registration information by fax, click here.

Featured Article

"Doris, Check Out That Cabana Boy"
Jose Latour asks "Wouldn't it make more sense to expand the availability of the H- 2B visa on a trial basis to remove the seasonal "provision" at least until labor data shows the availability of American workers to fill such positions?"

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Immigration Law News

Hold On DOS Nomination Due To Frustrated Parents Of Abducted Children
Sen. Grassley (R-IA) put a hold "on the nomination of Ms. Maura Harty to be Director of the Office of Consular Affairs within the Department of State." Among his reasons "I am seeking to know more about cases of international child abductions, which have left many parents frustrated with our Government. Many parents do not believe that Ms. Harty, in her capacity as the Managing Director of the Office of Overseas Citizens Services, vigorously pursued the interest of American abducted children."

Sen. Kennedy Supports Relief For 9/11 Victims
Sen. Kennedy (D-MA) spoke in support of relief for 9/11 victims saying "... in the USA PATRIOT Act, we provided temporary immigration relief for lawful nonimmigrants who are survivors of the September 11 attacks. This relief ended last month, and it has proved to be too short. A single year is not sufficient time for these families to sort out their affairs before returning to their native lands."

Only US Attorney May Ask For Deportation In Lieu Of Sentence
In US v. Grant, No. 02-4346 (4th Cir. Oct. 10, 2002), the court said that the district court lacked authority to impose deportation as an alternative to a criminal sentence without a request from the US Attorney, and said that even though the Defendant illegally reentered the country to care for his children rather than for any criminal purpose, there was nothing extraordinary on the record about his ties to his minor children to warrant a downward departure to his sentence.

Court Finds No Abuse Of Discrtion, Nor Any Prejudice, In Marriage Fraud Case
In US v. Kone, Nos. 00-2070, 00-2270, 00-2338 (6th Cir. Oct. 10, 2002), the court held that the record contained overwhelming evidence of Defendant's guilt, including the direct, unimpeached, non-hearsay testimony of some of his co-conspirators, and that therefore, to the extent that the district court abused its discretion in its determination to admit 10 hearsay statements, any resulting error was harmless; and held that it could not conclude that the district court abused its discretion in failing to understand the defense counsel's rather abstruse and poorly explained impeachment theory, and that any resultant benefit that the Defendant was thereby deprived of was so minimal as not to result in unfair prejudice; and held that there was no prejudice that the Defendant had shown as a result of the trial judge's absence from the courthouse during jury deliberations.

Leniency In Pro Se Filings Is To Technical Language, Not Substantive Content
In US v. Santos-Savera, No. 02-4058 (10th Cir. Oct. 9, 2002), the court considered Defendant's claim that AEDPA's statute of limitations should be equitably tolled, and said that the leniency applicable to Defendant's pro se filing was limited to the technical language, not to its substantive content, and that he failed to allege that the government was required to provide specific legal resources to him, or that he in any way attempted to gain access to such resources.

Burglary Of Business Is Aggravated Felony
In US v. Cruz-Sanchez, No. 02-4048 (10th Cir. Oct. 9, 2002), the court said that the list in the Sentencing Guidelines following the word "includes" was not exhaustive, and that the Defendant's prior conviction was an aggravated felony, even though he had burglarized a business, not a dwelling.

KGB Beating Is Not Grounds For Asylum
In Igoshin v. INS, No. 01-9527 (10th Cir. Oct. 9, 2002), the court said that the record supported the Board of Immigration Appeals's (BIA) conclusion that the mistreatment Petitioner suffered at the hands of the KGB was due to his failure to cooperate as a spy and was not due to his religion, and denied to review the BIA's denial of his asylum petition.

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Sun Did Not Post LCA Notices, But Did Not Break Law
The San Francisco Chronicle reports "The U.S. Department of Labor has found that Sun Microsystems Inc. failed to comply with a rule on posting notices about hiring foreign workers through the H-1B visa program but that the Santa Clara firm did not break any laws."

1 Million Post Cards Support Legalization
The San Diego Union-Tribune reports that advocates for the undocumented rallied in Washington, DC "to celebrate the delivery of 1 million postcards urging President Bush and Congress to push for a sweeping legalization program."

How to Get and Keep Corporate Clients? Use ILW's Case Tracking! Each case takes only a few minutes from start to finish! Serious practitioners find this modern technology a "must have." For more info, send e-mail to:, include your phone #.


Help Wanted: Immigration Associates
The Law Office of Robert B. Jobe is a nationally-recognized immigration law firm that focuses on asylum and deportation defense. We represent refugees from all over the world seeking safe-haven in the United States. Indeed, through its litigation efforts, our office has defined the contours of asylum law in the western United States. In a series of highly significant precedential decisions, our office established several important principles of law, including: (1) in the absence of evidence showing a legitimate prosecutorial purpose, the courts must presume that a government's harassment of an individual is politically motivated; (2) the presumption of future persecution that arises upon a showing of past persecution can be rebutted only by evidence of changed country conditions; and (3) where the government is the persecutor, a court must presume that the applicant is at risk country-wide. Our five attorneys are supported by a staff of 10 who work in a pleasant, dynamic, and fast-paced environment in downtown San Francisco. For more information about our firm, go to We now have openings for immigration associates for our expanding office. The ideal candidate would: * be a member, in good standing, of the Bar of any state; * have a passionate commitment to immigrants' rights and social justice; * have excellent research and writing skills, strong academic credentials, and an interest in public speaking; * have the ability to meet deadlines and juggle multiple tasks; and * be fluent or proficient in a foreign language. Associate responsibilities include representing clients before the INS, immigration and other courts, preparing clients for interviews and hearings and research/write legal briefs. We offer competitive salaries, medical benefits, a 401(k) plan, and all the coffee you can drink (and muffins you can eat). To apply for this position, please e-mail a letter and your resume to or fax it to 415-358-4716.

Help Wanted: Immigration Associate
One of California's most respected immigration firms seeks an associate with 2 yrs exp in immigration. We require excellent written skills and ability to work independently. We offer excellent salary and benefits package including medical, dental, vision, 401k, long term disability, car allowance, bonuses, 3 weeks vacation to start and a very congenial environment. Check us out at All applications confidential, send resume w/salary history to: HR, 2 N. Lake Avenue, Suite 950, Pasadena, CA 91101.

We carry advertisements for Help Wanted: Attorney, Help Wanted: Paralegal, Help Wanted: Other, Positions Sought, Products & Services Offered, etc.
For information on advertising in the classifieds please click here

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Letters to the Editor

Dear Editor:
The National Immigration Forum issued the following Press Release today:

Frank Sharry, Executive Director of the National Immigration Forum, praised Rep. Richard Gephardt's introduction today of legislation to legalize millions of hard working undocumented immigrants.

"Rep. Gephardt is showing his courage by demonstrating bold leadership on this issue," Sharry said. "Mr. Gephardt is stepping up to the plate to recognize that comprehensive immigration reform is needed for the American economy and the millions of immigrants who must live at the margins of society because of our broken immigration system."

"Legalization for hard working immigrants is a key component of comprehensive immigration reform," Sharry said, "and Mr. Gephardt's announcement is a crucial first step. But," Sharry continued, "in addition to an earned legalization program and an expansion of family visas, we also need expanded availability of work visas to open the legal channels through which immigrants will come in the future. Furthermore, we need the cooperation of our neighbors in making our borders safe, to crack down on smuggling syndicates, and to end the deadly chaos our current immigration system has created."

"What remains to be seen is whether both parties can come together to enact legislation," Sharry continued. "Traditionally, there has been considerable bipartisan support for fair and generous immigration reform in the Senate, which is very promising."

"It is our hope that President Bush will re-engage in efforts to make our policies realistic and functional," Sharry noted. "When he meets with Mexican President Vicente Fox later this month, he will have the opportunity to re-energize talks aimed at comprehensive immigration reform."

"It's no longer a question of if, but of when, and who will lead the process," Sharry said. "There is too much momentum at the grassroots and in Washington, from business and labor, among Democrats and certain thoughtful Republicans for comprehensive immigration reform not to happen."

Douglas G. Rivlin
Director of Communication
National Immigration Forum

Dear Editor:
The American Immigration Lawyers Association issued the following Press Release today:

"The United States' immigration system needs to be reformed to reflect current needs and realities," said Jeanne Butterfield, Executive Director of the American Immigration Lawyers Association. "We thus welcome the introduction today by Representative Dick Gephardt (D-MO) of the Earned Legalization and Family Unification Act of 2002. AILA views the introduction of this bill as an important first step. It is high time we return to the important task of reforming our immigration system," continued Ms. Butterfield. "This bill begins this task by including long-overdue provisions that would grant hard-working people an earned adjustment and dramatically decrease the backlogs in family-based immigration. We call on the White House to step up to the plate and take a leadership role by resuming the U.S./Mexico discussions."

The American Immigration Lawyers Association has long supported reform of our immigration system. As a result of our current system, families are separated for long periods of time and U.S. employers cannot bring in needed workers. People are forced to live an underground existence in the shadows, declining to make themselves known to the government for fear of being separated form their families and jobs. "We need to target our enforcement resources on people who mean to do us harm, not on those who are filling our labor market needs, revitalizing our communities, and seeking to fulfill the American Dream," said Ms. Butterfield.

The Earned Legalization and Family Unification Act of 2002 recognizes that the status quo is unacceptable, especially in a post-September 11 world in which enhanced security is a priority, as is the need to balance our security with the continued flow of people and goods. AILA looks forward to working in the next Congress on this vitally needed reform with immigration supporters in the House and Senate. Successful immigration reform will take account of the following:

Immigration reform must be comprehensive: The United States' immigration system needs to be reformed to reflect current needs and realities. The status quo is unacceptable. Our immigration system needs to be reformed so that legality is the norm, and immigration is legal, safe, orderly, and reflective of the needs of American families, businesses, and national security. Such reform would include an earned adjustment for hard-working people, family backlog reduction and a new temporary worker program.

Immigration reform is an important component of our enhanced national security. Immigration reform that legalizes hard-working people already here and that creates a new temporary worker program will help the U.S. government focus its resources on enhancing security, not on detaining hard-working people who are filling vacancies in the U.S. labor market or seeking to reunite with their close family members. In addition, reform that includes a new legalization program and a temporary worker program will encourage people to come out of the shadows and be scrutinized by our government.

A central component of immigration reform is an earned adjustment for people in the U.S. without authorization: People who work hard, pay taxes, and contribute to the U.S. should have the opportunity to obtain permanent residence. In order to unite families and keep them together, liberal and generous waivers must be made available for grounds of admissibility and deportability.

Another central component of reform is the creation of a new temporary worker program: Current immigration laws do not meet the needs of our economy for short- and long-term employees in those sectors currently experiencing worker shortages and others that are expected to experience shortages when the economy rebounds. A new temporary program would give workers the opportunity to work in areas of the country where they are needed and would give employers experiencing shortages the workforce they need. Current programs often have proven unusable by both employees and employers, and do not accommodate employers facing longer-term, chronic labor shortages. The framework for a new temporary worker program must differ significantly from existing programs, and must respect both the labor needs of business as well as the rights of workers.

A third necessary component of reform is opening up legal channels for family- and business-based immigration: Our immigration system has been characterized by long backlogs in family-based immigration and long delays in business-based immigration. Illegal immigration is a symptom of a system that fails to reunify families and address economic conditions in the U.S. and abroad.

Judith E. Golub
Senior Director of Advocacy and Public Affairs
American Immigration Lawyers Association

Dear Editor: (United States Department of State, Bureau of Consular Affairs): Web address for 16 page instructions for 2004 (Diversity Immigrant Visa Program) (DV-2004) Proper mailing addresses are provided by the DOS (Department of State) on page 4-5; and explanations of which "natives" are included within which Regions. Each element is important, and the 16 pages provide important requirements and instructions which should be carefully reviewed and followed by applicants, and attorneys assisting applicants!

Elaine C. Schneider, Esq.,
Minneapolis, Minnesota.

Dear Editor:
I was thinking I can trust more your publication. But No! You gave us (i.e. a lot of people reading it) the wrong address for the DV-2004 program, as Mr. Ben Tahriri noticed. Can you repair this? Not for me unfortunately who sent it already. I am a hard working person, abiding by the laws and believing what I am reading. Please apologize to all of us for taking away from us the opportunity to win the lottery next year (not to mention the $15.00 I spent in vain with photographs). Make sure you correct in your publication the wrong information.

Name Not Supplied

Editor's Note: There was a typographical error in State Department Issues Rules For 2004 Diversity Visa Lottery by Greg Siskind and Amy Ballentine which appeared in our August 22, 2002 issue. It has now been corrected. In the same issue, we also carried the Federal Register Notice and Instructions from the Bureau of Consular Affairs, both of which had the correct addresses without any error. In the Immigration Daily issue for August 23, 2002, we carried a Media Note from DOS, which also had the correct information. There is still time to apply for the lottery, a new application should be sent to the correct address.

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 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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