9th Circuit Defines "National"
One of the most important concepts of immigration and nationality law is
the concept "national". In Perdomo-Padilla v. Ashcroft, No. 01-71454 (9th
Cir. Jun. 23, 2003), the 9th Circuit held that "a person can become a
'national of the United States' under the INA only through birth or
naturalization". This opinion (see summary and link to original below)
discusses the effect of completing an application of naturalization on
nationality, the traditional and historical meaning of "national of the
United States", the plain language of the statute at 8 USC 1101(a)(22) and
the usage of the term in other parts of the INA, and compares the opinions
of other circuits on this matter. The concept of nationality is now
increasingly important in immigration law practice and policy, for example
in the context of Registration, Dual-Citizenship, etc. Those interested in
this concept will find this opinion to be an important document.
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A Critical Look At BCIS'/DOS' Interpretations Of The CSPA: Part 2 of 2
Alan Lee, Esq. examines eligibility under section 204 of the Immigration & Nationality Act for the benefits of the Child Status Protection Act in light of recent interpretations by the BCIS and the DOS.
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Immigration Law News
OALJ Approves $739,000+ Back Wages In H1-B Matter
In the Matter of HNC Solutions Inc., No. 2003-LCA-4 (OALJ, Jun. 30, 2003), the Office of Administrative Law Judges approved the terms and conditions of the settlement agreement, including payment of $739,385 in back wages and $79,500 in civil money penalties.
Absence Of BIA's Findings/Explanation Precludes Review
In Kayembe v. Ashcroft, No. 02-1590 (3rd Cir. Jul. 1, 2003), the court said that "because the Board of Immigration Appeals (BIA) failed to make findings concerning Petitioner's credibility and failed to explain how to Petitioner had not met his burden of proof for asylum eligibility, this court cannot undertake adequate review of the BIA decision."
Only Birth Or Naturalization Make A National
In Perdomo-Padilla v. Ashcroft, No. 01-71454 (9th Cir. Jun. 23, 2003), the court said that "Petitioner did not change his status from that of an alien to that of a US national by filing an application for naturalization." After a lengthy and thorough discussion of nationality and the meaning of "national", the court held that a person can become a "national of the United States" under the INA only through birth or naturalization."
Ethiopian's Asylum Petition For Review Denied
In Ejigu v. Ashcroft, No. 03-1111 (4th Cir. Jul. 2, 2003), the court said that it reviewed the administrative record and upheld the Immigration Judge's (IJ) denial of relief.
US Border Patrol Scraps Plans For Wall Blocking Most Of Arizona's Border
The Tucson Citizen reports "The US Border Patrol has backed off a plan to build a wall that would block off three-quarters of Arizona's border, but an immigration rights activist isn't celebrating."
1913 Law Blocking Chinese Immigrants From Owning Land Never Repealed In Florida And New Mexico
The Miami Herald reports "A dozen states that had passed the anti-Asian land laws in the Jim Crow era have since repealed these anachronistic remnants of discrimination. Only Florida and New Mexico retain Alien Land Laws, leading to unseemly references."
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Books - 2003 Edition 8 CFR Plus And INA
We are pleased to announce that the latest edition of the Immigration & Nationality Act (INA) is now available. This reference tool is invaluable while writing to the INS about a RFE or preparing a petition. Attorneys have been using the exhaustive topic indices in the 8 CFR Plus and The Whole ACT - INA (Annotated) to do just that for years. Whether you are a seasoned practitioner or a less experienced attorney entering the immigration law field, these books are a must-have. Not satisfied with your purchase? We offer a money-back, no questions asked, guarantee. For information on our various publications, please see this link. (A Supplement is provided Free of cost updating the 8 CFR Plus as of June
1, 2003. All BCIS related changes have been included in this Supplement as
well as a complete index to ALL 8 CFR Sections updated as of June 1, 2003.)
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Letters to the Editor
I thank Mr. Matloff for his response to my letter. I'd like to first say that I was pointing out that the H-1B program has nothing in common with slavery not that it has nothing in common with indentured servitude. With regards to the contention that the program is creating modern indentured servants I can't address this as I am not very familiar with what an indentured servant went through. So I'll have to pose some questions instead. First, I am curious if indentured servants received raises? H-1B visa holders certainly can and 90% of the individuals my office works with do. Also, could indentured servants find a new employer or were they locked into their agreement? Certainly H-1B visa holders are allowed to switch employers as often as they like by merely filing a new H petition. Were the employers of indentured servants required to pay the prevailing wage in the area? Most of the employers we deal with pay well above the prevailing wage. Certainly employers who don't should be swiftly and harshly dealt with. That seems like an enforcement problem not a problem with the H-1B program. We have an H-1B visa holder that makes over a million dollars a year. Uncommon obviously but since we only hear about the horrors of the H-1B program I just wanted to share a success story.
I suppose there are plenty of bilingual naturalized citizens and LPR's who would like to have a job where that skill is needed. But the H-1B visa holders we work with have that skill and are also engineers, international lawyers, physicists, etc.. An LPR or USC with these skills likely already has a job – well maybe not in this economy – but a few years ago.
I must admit I am still unclear as to why Mr. Matloff's letter states a dislike for the H-1B program used to import skilled employees but is fine with other programs that do the same for the best and brightest of other countries. Other countries that don't have the infrastructure to work on expensive science might not have the infrastructure to perform less expensive tech work or have the need or funds to hire engineers etc. It seems that argument is really a class distinction. We want the best but we don't want the middle. This is a country mainly built by the bottom and the middle so we certainly shouldn't forget about them.
To be honest I'd love for the best, the middle and the bottom, of all countries to be invited to become residents here without jumping through lots of hoops. I believe that our country only becomes stronger when new people with new ideas come here. If that meant less money for immigration attorneys but better lives for immigrants so be it.
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