In March 2002, the Supreme Court decided Hoffman Plastic Compounds, Inc v.
NLRB, ruling that the National Labor Relations Board lacked authority to
order back pay to an undocumented worker who was laid off because of union
activities, in violation of the NLRA. The Wage and Hour Division of the
Employment Standards Administration of the Department of Labor has issued
Fact Sheet #48 explaining the effect of this decision on the laws that it
enforces. The Fact Sheet says "The Department's Wage and Hour Division will
continue to enforce the FLSA and MSPA without regard to whether an employee
is documented or undocumented. Enforcement of these laws is distinguishable
from ordering back pay under the NLRA. In Hoffman Plastics, the NLRB sought
back pay for time an employee would have worked if he had not been
illegally discharged, under a law that permitted but did not require back
pay as a remedy. Under the FLSA or MSPA, the Department (or an employee)
seeks back pay for hours an employee has actually worked, under laws that
require payment for such work. The Supreme Court's concern with awarding
back pay "for years of work not performed, for wages that could not
lawfully have been earned," does not apply to work actually performed. Two
federal courts already have adopted this approach. See Flores v.
Alberton's, Inc., 2002 WL 1163623 (C.D. Cal. 2002); Liu v. Donna Karan
International, Inc., 2002 WL 1300260 (S.D.N.Y. 2002)."
As we have written before, immigration is a multi-faceted and large part of
American life today, as reflected in the fact that fully one-third of the
Departments of our Executive Branch deal in some shape or form with
immigration matters. The complexity of immigration policy and our national
schizophrenia about immigration is to some degree reflected in the variety
of ways in which immigration matters are addressed by the various
government Departments. At the DOJ, the climate has recently turned frigid
on immigration, but as the above excerpt from the DOL shows, other branches
of our government are not as cold to the undocumented.
Why Criminal Issues Matter To All Immigration Attorneys
Since IIRIRA, the government has gradually "criminalized" immigration
practice, including business immigration practice. About the only thing
that is not yet an aggravated felony is jaywalking. Recent government
initiatives on Change of Address enforcement and Special Registration will
likely morph gradually "criminalizing" immigration practice further as and
when non-compliance or late-compliance on AR-11s and registration is
transformed from an administrative and technical lapse into a felony.
Immigration practice, particularly business immigration practice is slowly
changing from being primarily adminstrative practice involving forms to a
semi-litigational one where administrative hearings are part-and-parcel of
the attorney's lot. To confront the new business realities, it is important
for immigration practitioners to arm themselves with the concepts
surrounding criminal issues.
Our new seminar "Immigration Consequences of
Criminal Convictions: Problems, Solutions and Best Practices" (January 23, February 13, March 20) is led by
noted business immigration expert Angelo Paparelli. Joining him is a
veritable who's who of experts in this area - Dan Kesselbrenner who is
widely revered for his scholarship, Lory Rosenberg who served until
recently on the Board of Immigration Appeals, and Norton Tooby who has the
most experience in speaking on this topic for many years.
Please click on
the links below for a detailed curriculum and bios for the speakers.
Whether you are in business immigration practice, family immigration
practice, deportation practice or any other kind of immigration practice,
you will likely benefit from the wealth of knowledge from this seminar
series. You can take our phone seminars from the convenience of your
office. Your staff and professional colleagues can also attend the seminars
with you at no extra cost on a shared speaker-phone at your office. Our
seminar speakers are given sufficient time to explore issues in depth with
our audience, including lengthy and detailed Q&A sessions. To propel your
practice ahead in 2003, click on the links below to learn more.
For more info, including detailed curriculum, speaker bios, and
registration information online, click here.
For more info, including detailed curriculum, speaker bios, and
registration information by fax, click here.
Successful Lawyer Turns Dot-Com Entrepreneur
Michael Kahn writes about the interesting path which led Bob Meltzer to become founder and President of VisaNow.com.
Keep on top of the latest in immigration law! Attend ILW.COM seminars! You can attend ILW.COM phone seminars from the convenience of your office! For more info on the seminars currently available, please click here: http://www.ilw.com/seminars/
Immigration Law News
OIG Testifies On INS's Foreign Student Tracking Program
The Office of the Inspector General of the US Department of Justice testified before the
House of Representatives concerning "The INS's Implementation of the Foreign Student Tracking Program".
OIG Testifies On Tracking International Students In Higher Education
The Office of the Inspector General of the US Department of Justice testified before the
House of Representatives concerning "Homeland Security: Tracking International Students in Higher Education
- Progress and Issues Since 9-11".
Issues Fact Sheet #48: Application Of US Labor Laws To Immigrant
The Department of Labor issued Fact Sheet #48: Application of US labor
laws to immigrant workers: effect of Hoffman Plastics decision on
laws enforced by the Wage and Hour Division.
St. Cyr Not Applicable To Convictions After Jury Trial
In Theodoropoulos v. INS, No. 01-2715 (2nd Cir. Dec. 20, 2002), the court found that under the Supreme Court's decision in St. Cyr, retroactive application of AEDPA and IIRIRA to an alien defendant convicted after a jury trial did not raise a substantial constitutional question warranting relief from administrative exhaustion requirements.
Nevada Battery Is Aggravated Felony
In US v. Gonzalez-Tamariz, No. 00-10542 (9th Cir. Jan. 13, 2003),
the court issued an order and amended dissent for its November 18, 2002 opinion where it said that the district court did not err in applying the 16-level enhancement for aggravated felony because the Defendant's offense of Nevada battery causing substantial bodily harm met the federal definition of an aggravated felony even though Nevada state law classified it as gross misdemeanor and because the federal statute plainly provides that a crime of violence is an aggravated felony when the term of imprisonment is "at least one year," not "exceeding one year."
Voluntary Departure Breaks Continuous Physical Presence Requirement
In Vasquez-Lopez v. Ashcroft, No. 01-71827 (9th Cir. Jan. 14, 2003), the court said Petitioner's request for cancellation of removal petition failed because his voluntary departure to Mexico caused a break in his physical presence in the US for the purposes of 8 USC 1229b because a contrary interpretation would be inconsistent with the statutory concept of voluntary departure in general and with the "stop time" provisions of 8 USC 1229b(d)(1).
Petition For Review Denied
In Endale v. INS, No. 02-1359 (4th Cir. Jan. 13, 2003), the court denied as untimely Petitioner's petition for review of the Board of Immigration Appeal's order of March 8, 2000 and denied the petition of review of the BIA's March 8, 2000 order finding that the BIA did not abuse its discretion.
Special Registration A Fiasco
An Editorial in the Washington Post says that the Special Registration
program is a fiasco in the making.
INS To Be Abolished - Functions To Be Taken Over By Customs?
ABC News reports "It's one thing to be jettisoned by the Justice
Department, split in two, and subsumed into a brand-new department. But to
have the smaller Customs Service completely take over all Border Patrol
agents and immigration inspectors truly feels to some at INS like salt in
Attorney listings on ILW.COM are searched 200,000 times/year! Each attorney listed is searched an average of once each day! Just one new client will pay for the entire year's fee! Click here for more info: http://www.ilw.com/membership/
Help Wanted: Immigration Attorney
The New York Association for New Americans, Inc. (NYANA) is the nation's largest provider of services to the foreign-born. Our Legal Services Department seeks a Staff Attorney to provide immigration-related legal services and consultations. Responsibilities include: preparing applications for immigration benefits and assistance, asylum, adjustment of status, and family and employment-based visas; preparing defenses in removal proceedings; researching and writing motions, briefs and memoranda; preparing clients for and representing them in interviews before the INS and providing technical assistance to NYANA staff on immigration-related issues.
Qualifications: Juris Doctor degree and admission to a state Bar required. Two years of experience in immigration law strongly preferred. Experience in handling asylum, deportation and exclusion cases, as well as court experience is preferred. Fluency in a second language is a plus. Excellent communication and organizational skills and computer literacy is required.
We offer competitive salaries and excellent benefits. Send resume, which must include salary requirements, to our HR consultants: HR Dynamics, (Dept. NYANA/LSA), 161 William Street, 4th floor, NY, NY 10038 or email email@example.com.
Web Technology For Immigration Attorneys
INS Experts is offering its services to law firms interested in establishing a visible presence online and specializing in US Immigration Law. INS Experts possesses the technology to enable organizations to create Immigration modules integral with each law firm's unique look and feel, as well as handle the e-mail and phone based customer. The cost of setting up this technology is minimal and the time required for implementation is a few months. Law firms focused on employment-based immigration or family-based immigration can utilize the INS Experts technology to prepare the INS applications without the need to hire additional paralegals for this service. Law firms can either offer this service directly to their clients through their internet/ intranet sites, or their internal staff can use the INS Experts site to prepare the applications. Your clients will benefit from our technology which appears on your website. Law firms can break away from the traditional, paper oriented, and change resistant image of the immigration law industry. For further information, visit our website: http://www.insexperts.com or if you have any questions, please contact: Puneet S. Parmar, Director of Business Development, INS Experts Inc., 12280 Saratoga Sunnyvale Road, Suite 116, Saratoga, CA 95070, Phone: 408-517-4212, Fax: 408-446-0771, Email: Puneet.Parmar@insexperts.com.
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
For a listing of current immigration events please click here
For services/products of use in your law practice please click here
Letters to the Editor
I agree with David D. Murray, Esq. and R.L. Ranger. Editorials and
articles are far more effective without language used purely for insult,
like "Communist," "Fascist" and "Nazi." I lost family to each of these
movements and when a writer uses these terms to dismiss something they
clearly do not apply to, I lose faith in the article.
Yes our immigration policies are getting more harsh. They almost approach
Swiss, Mexican or Greek levels of arbitrariness and harshness. This is
generally a bad thing. However, I have yet to see or even hear of any
indications of mass brutality. Those who would argue the point ought to
live abroad in a normal, non-university setting for a few years.
Ashcroft's policies are clearly questionable and may sometimes be highly
objectionable. He has not even begun to approach the policies of the
Gestapo, the Mukhabarat or any revolutionary secret service. Yes immigrants
are sometimes, perhaps even often mistreated in custody. The difference is
that few Americans take pleasure in that and no one in authority wants us
to routinely break the limbs of detainees or expropriate property from
large classes of heretofore legal residents, much less work them to death
in radium mines, Arctic labor camps or death factories.
There are more effective ways to criticize policies or people whom we
dislike than calling them Nazis. It is my experience and hope that those
who agree with an editorial will learn little from name calling and those
who do not will become more adamant in opposing it. That certainly has been
my experience with judges who read briefs telling them that the opposing
brief is "obviously incorrect" or "manifestly insane." Language like that
reflects a lack of confidence or introspection on the part of its user.
If registration were such an obviously bad idea for security purposes, why
does every police state or nation at war I can think of require it? It may
not be the best policy, but it is not manifestly stupid on it's face. The
argument for and against it is much like the argument for and against gun
control. We all know the arguments that registering all guns guarantees a
criminal monopoly on gun possession and that enforcing gun controls lowers
the number of guns overall and thus limits criminal possession too. These
track the anti-registration and pro-registration arguments. One of the many
ironies here is that the advocates of immigrant registration will most
likely oppose gun control and its opponents will most likely support them.
Honza J. F. Prchal, Esq.
Recently our State Bar of Texas Committee on Laws Relating to Immigration
met with Maurice Parker, Consul General; Michael D. Puccetti, Deputy
Santiago Burciaga, Immigrant Visa Chief; Christine Osage, Nonimmigrant
Visa Chief; and
Joyce W. Namde, American Citizen Services Chief, from our U.S. Consulate in
Ben Aguirre, Acting INS Officer in Charge in Juarez, and INS Officer Art
Silva, also joined
this meeting. In addition, Ninfa Luna, Product Line Officer from the INS
Center, provided an update from that office. For the meeting minutes, click here.
Chairman of State Bar of Texas Committee on Laws Relating to Immigration
Please do not send me more Immigration Dailys.
Name Not Supplied
Editor's Note: To unsubscribe from Immigration Daily, please follow the instructions at the bottom of the Immigration Daily email you receive.
Regarding the two letters to the editor of Jan. 13th, the first is from
an obvious disgruntled immigrant (Angie), who can only view momentous
events as they may effect her world, criticizing the most generous
policies in the world as unjust and the War on Terrorism as a War on
Immigrants, a narrow perspective indeed.
In the second, it's rewarding to find some areas of agreement with David
Murray, although we may differ some on the definition of a "more
balanced editorial posture". He discourages "proactive preaching" and
"over-editorializing" on either "the left or the right". If we may use
these terms for lack of better, my thrust was that ILW.COM's perspective
was too narrow to the "left" with a "what's in it for immigration
attorneys" theme, ignoring other legitimate concerns. Of course, Murray
is right in that each is entitled to express opinions in their own
manner. But then perhaps that's why we need more than one or several to
find the truth.
Murray expands the topic in mentioning the additional problem of the
"exodus of U.S. manufacturing overseas". But I believe he errs in using
this to deflect any criticism of our lax immigration and border policies
with his statement,"immigration is not the problem". Both are huge
problems. For example, see Rep. Tancredo's statement of this crisis at: http://www.house.gov/tancredo/newsroom/editorials/2002_10_10KrisEggle.htm.
It would certainly be unfair to expect ILW.COM to carry all the other views,
but at the same time, a complete, balanced view of this complex problem
will not be achieved unless some of them are considered and not ignored
or dismissed as "right wing" rant. Presuming one is interested in
learning the truth, such a study would eventually reveal why the term
"xenophobia" or "xenophobe" is so often heard or read in the media and
the more common condition of "xenomania" is never seen or heard.
Mr. R. L. Ranger
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