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Immigration Daily December 23, 2002
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Editor's Comments

Section 214(b) of the INA says that every alien (except the very few "dual-intent" aliens) should be presumed to be an immigrant unless proved otherwise to the satisfaction of a consular officer when applying for a visa overseas. 214(b) is the heart and soul of the interview process for aliens applying for visas before US Consular Officers the world over. Not only does 214(b) take up the largest chunk of time spent in processing visa applications at US Consulates worldwide, it dominates the process of visa-issuance by being its principal focus.

We believe that in the post-9/11 world, 214(b) gravely jeopardizes national security, and should be repealed. The primary focus of our Consular Officers when issuing visas now ought to be national security, to protect us from the tiny number of fanatics who seek to cause us serious harm. Anything that stands in the way of achieving this aim must be set aside. 214(b) is today the biggest obstacle to ensuring that our Consular Officers have the time, energy, and focus to concentrate on the critical issue of security.

Unfortunately, anti-immigration activists are now presenting 214(b) as a national security enhancer, which is exactly the opposite of what it really is. Their argument boils down basically to the following proposition: 214(b) gives US Consuls the omnipotent authority to deny visas without any recourse by the alien, hence it can and should be used to deny visas to terrorists, and hence 214(b) is good for national security. What this argument deliberately fails to mention is that the only way 214(b) can be used to deny visas to terrorists is by denying visas to practically every applicant. Which is exactly what the anti-immigrationists want, except that they do not want to say so openly. What they really want is lesser immigration, not better security. They seek to connect these two concepts - which are quite separate - to take advantage of the great desire by everyone in DC to do something - anything - to appear to be enhancing national security.

The anti-immigrationists are succeeding. The Washington Post reports "Sens. Jon Kyl and Pat Roberts said in a report that 'the answer to the question Ė could 9/11 have been prevented Ė is yes, if State Department personnel had merely followed the law and not granted non-immigrant visas to 15 of the 19 hijackers in Saudi Arabia.' ... Kyl and Roberts said the hijackers should have been denied visas as single young men with no visible means of support."

Single young men with no visible means of support are the bedrock of immigration to America. It is what America badly needs not only now, but in the coming decades. The only way to deny visas to would-be hijackers is to focus totally on judging the security risks posed by each applicant - a task made impossible by 214(b), forcing our badly strained State Department resources to be squandered in identifying would-be immigrants instead of would-be terrorists. Making whipping boys of our hapless Consular Officers may get some press for our politicians, but it does nothing to enhance our national security. If Congress truly cares about arming our Consular Officers with the weapons they need to protect the country from fanatics overseas, repealing section 214(b) is the best way to begin.


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Preparing and Filing the H-1B Petition - Part 4
George N. Lester IV continues his discussion on the H-1B Application.

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Immigration Law News

DOS Speaks On Middle Eastern Registration Requirement
Department of State Under Secretary for Public Diplomacy and Public Affairs Beers responded to a question on whether the US has been able to establish a case, in the Islamic world that Iraq poses a physical threat to the US and said, "[President Bush's] number one job [is the] protection of the American people. And I think the visa policy is driven by that concern and confidence that we need to put together a program that will work."

No Temporal Fiction When Probationary Term Is Reinstated
In US v. Carrillo-Lopez, No. 00-10631 (9th Cir. Dec. 20, 2002), the court held that the Defendant could not benefit from the temporal fiction that the reinstatement of his probationary term employed to determine the original date of a prior removal order.

Judicial Review Under 106(a) Embraces Deportation, Not Adjudication
In Mpamugo v. INS, No. 02-1781 (4th Cir. Dec. 19, 2002), the court said that it lacked jurisdiction to address Petitioner's claims about the INS's failure to adjudicate his wife's pending immediate relative petition since the judicial review provisions of Section 106(a) embrace only deportation proceedings and are separate and distinct from adjudication of an immediate relative petition.

Rep. Tancredo Helps Undocumented Immigrant
The Denver Post reports "By day, U.S. Rep. Tom Tancredo is an outspoken opponent of illegal immigration, but before dawn Wednesday, in the cold and the dark, the Littleton Republican quickly warmed to the task of saving 5-year-old Oscar Hernandez's life."

To Punish Mexican Immigrants For 9/11 Is Ridiculous
An opinion piece in the New York Sun says "None of the September 11 hijackers was Mexican. It seems ridiculous to punish them."

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Letters to the Editor

Dear Editor:
This press statement dated December 19, 2002 was issued by Lutheran Immigration and Refugee Service President Ralston H. Deffenbaugh Jr. regarding the mass arrests of men and youth from Middle Eastern and North African countries.

Lutheran Immigration and Refugee Service (LIRS) is alarmed and dismayed by reports from the last few days that hundreds of men and youth from mostly Middle Eastern and North African nations have been arrested upon voluntarily reporting to the INS for special registration. We are particularly disturbed because many of those taken into custody have been trying to do the right thing - follow the new registration law while waiting for their pending applications for immigration benefits to be processed. In one shocking example described in an Los Angeles Times December 19 article, a 16-year-old boy was taken from the arms of his mother, a lawful permanent resident, and stepfather, a US citizen. December 16 was the first deadline for nonimmigrants from five countries to register with the INS. Male nationals age 16 and above from 13 additional countries must register by January 10 and nationals from two other countries must register by February 21.

LIRS is deeply concerned by reports that even many who have applied for their green cards are among those who have been arrested. Organizations across the country report that clients are being taken into custody for minor visa violations that occurred many years prior and would not prevent them from becoming US residents. LIRS is also very concerned that men with no criminal history are being detained in crowded cells and inhumane conditions.

LIRS condemns acts of terrorism. However, special registration will not make us safer. The program does not weed out terrorists by relying on intelligence information but instead targets individuals on the basis of national origin. LIRS urges the INS and the Department of Justice to put an end to this Catch-22 situation. If the registration program continues the INS should use prosecutorial discretion and not detain people who are on the road to lawful permanent residence. This measure is an ill-conceived and poorly implemented attempt to solve a real concern about security.

Lutheran Immigration & Refugee Service
Baltimore, Maryland

Dear Editor:
This letter is in response to the 12/20/02's Immigration Daily editorial.

Registration of "aliens" is an unfortunate fact of life for (nearly) all modern states. The abuses of this power are particularly clear during war time, which brings knocks in the night, mass roundups, and internment camps. We are now well down the road toward repeating that dark history. With the detention and deportation of many Muslims who have had no connection with terrorism, the Bush Administration shows that it has learned little, or nothing, from America's experience during the World Wars of the last century. In the end, one hopes, America will again realize its mistakes and make amends - a Special Immigrant visa for each person unjustly detained or deported under the Special Registration program? That might be a bill to urge on our lawmakers in the near future. As to whether we will go all the way toward recreating a gestapo police state is still up in the air. As responsible, thinking people, each of us has the duty to publicly oppose emergency measures that go over that line. As to precisely what that line is, to paraphrase a Supreme Court justice, "I can't define it, but I know it when I see it."

Mark Levey

Dear Editor: This is in response to the letter from Justin Randolph. I may be mistaken but I seem to recall reading somewhere that there is a Federal regulation that denies welfare even to legal immigrants unless they have been in this country for over five years. (?)

Richard E. Baer, DVM

Dear Editor:
In response to Randolph's 12/20/02 letter, you are correct in that undocumented immigrants are only eligible for emergency medical assistance (and only if they have dependents and the condition is considered a "true" emergency), pregnant women are also eligible (if eligible by income), but only until 90 days after delivery of their US Citizen child. They contribute to a system through their work from which most are not even eligible to benefit. They work hard and long hours in jobs that most would not even last a day. Just an interesting bit of information: on the INS citizenship test, one of the questions is, "Whose rights are protected by the Constitution and the Bill of Rights?" The answer is "All those living in the US." Very interesting as our word is not the same as our deeds....Just a reflection. We are all immigrants, unless we are Native American (or Mexican in some parts of the country).

Hispanic Ministry - Diocese of Joliet at Catholic Charities
Kankakee, IL

Dear Editor:
After reading the featured article by Brian Grutman concerning the death of tens of thousands of American citizens due to INS registered nurse policy, it baffles me why the INS has adopted this current policy. Keeping foreign registered nurses out of the US should be the last thing on the minds of INS and the Department of Justice personnel.

Overwork, including forced overtime caused by understaffing, has been the major reason for most of the nursing strikes that have occurred over the past few years. It is this same understaffing that is widening the stream of registered nurses leaving the profession and worsening the problem. In fact, the same JAMA article quoted by Mr. Grutman further states that for each additional patient added to a nurseís normal workload there is an associated increase of 23% in the chances of that nurse suffering burnout and a 15% increase in the chance of that nurse becoming dissatisfied with their job. It should be further noted that these statistics do not include forced overtime which can be reasonably assumed to increase those percentages drastically. Current INS policy exacerbates this problem. Foreign nurses, by their presence in the US, would ease burnout among US nurses, prolong nursesí stay in the profession and possibly save tens of thousands of American lives each year.

The current nursing shortage is putting an unbelievable strain on US Hospitals. Many hospitals are being forced to shut down certain units due to their inability to find sufficient numbers of nurses to work in them and keep them open. This is rarely discussed by the hospitals for obvious reasons. Despite the extreme shortage of nurses, this problem can not be solved in the short run by expanding the number of students accepted to domestic nursing schools. This is because at present time there is a shortage of trained nursing school teachers forcing nursing schools to turn away students wishing to become nurses. But the fact remains that we need more nurses. INS policy, if changed, would effectively relieve the problem in the short run. This will not solve the problem but will put a very effective band-aid on it and save tens of thousands of American lives each year in the process.

It is absurd to learn that the INS is compounding this problem by preventing highly trained foreign registered nurses from entering the country through the expedited H1B visa program. It is obvious that registered nurses working in critical care areas of the hospital are professional. They need specialized training, either through additional education or experience. This clearly appears to be a policy issue as the INS has approved H1B visa for registered nurses working in critical care settings in the past, and can immediately do so again. The current INS policy is killing Americans. It is denying much needed relief to overworked American RNís, speeding the retirement of American RNís from the nursing profession and reducing the overall quality of health care. The INS needs to change this policy immediately.

Matthew Zucker
New York, NY

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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