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Immigration Daily


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Immigration Daily July 7, 2003
Previous Issues
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Editor's Comments

Our Bill Of Rights

On America's 227th birthday, it is worth remembering that we have the oldest written constitution among all countries today. The salient feature of our constitution, one which should make all Americans proud, and one which is the root cause of our nation's attraction to immigrants, is the Bill of Rights. In celebration of July 4th, we proudly and happily recite the Bill of Rights, as our Editorial Comment today:

Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III: No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.


Registration Deadline Is Tuesday, July 8th!

The registration deadline for the July session of "Creme de la Creme: Extraordinary, Outstanding, Multinational and Exceptional" is Tuesday, July 8th. Nathan Waxman and Sheela Murthy will join the panel for this session. The curriculum is as follows:

Outstanding Researcher/Professor (EB-1-2)

  • Defined criteria but documentation and proofs - a question mark!
  • International reputation - indicia
  • Offer of permanent employment - blind spot
  • Current trend - advantages and difficulties - nuts & bolts suggestions

National Interest Waiver (EB-2)

  • No regulatory criteria
  • NYS Department of Transportation - lone precedent
  • Unique and exceptional abilities
  • Impact and influence on others
  • National or international in scope and substantial intrinsic merits
  • Multiple national interests
  • Labor certification issue - hot bed of proof issue - how to demonstrate that benefits of alien's work outweighs national interest inherent in the labor certification requirement
  • Current trend - advantages and difficulties - nuts & bolts

For more info on this phone seminar series, including detailed curriculum, speaker bios, and registration information, please see: For the fax version, please see:

Featured Article

Employment Options For Students, Part 4 of 4
Gregory Siskind offers a comprehensive look at employment options for students.

Staying Out Of Harm's Way: Immigration Pitfalls That Employment Lawyers And Their Clients Should Avoid: Part 2 of 3
Angelo A. Paparelli and John C. Valdez provide an overview of the immigration consequences of a variety of employment decisions.

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Immigration Law News

BCIS Seeks Comments
The Bureau of Citizenship and Immigration Services (BCIS) sought comments on the following: Application Requirements for the Adjustment of Status under Section 586 of Public Law 106-249, OMB-27 and for Waiver of Ground of Excludability, Form I-601.

DOJ And DHS Announce Arrest And Move To Deport Alleged Former Nazi Guard
The Department of Justice issued a press release announcing the arrest and move for deportation of a former Nazi guard. The Department of Homeland Security in its press release stated Special Agents from the Bureau of Immigration and Customs Enforcement (BICE) with assistance from the local police had apprehended an alleged former Nazi guard on immigration-related charges.

BALCA Remands In Light Of Certifying Officer's Misleading Instructions
In the Matter of Florida A&M University, No. 2003-INA-51 and 2003-INA-118 (BALCA, Jul. 1, 2003), the Board of Alien Labor Certification Appeals Judges said that "a combination of the Employer's ambiguous rebuttal and the certifying officer's misleading instructions, conspired to result in an outright dismissal of the application rather than a simple denial of RIR request and remand to the local employment service for a supervised recruitment."

President Bush Discusses Temporary Protected Status
During a roundtable discussion with African journalists, President Bush said, "But we recognize people come to our country not legally, and that sometimes they come for political reasons. And that's why we have the TPS exceptions."

Aggravated Felons Pleading Guilty Pre-IMMACT Are Eligible For 212(c) Relief
In Toia v. Fasano, No. 02-55436 (9th Cir. Jun. 30, 2003), the court held that "aliens who pleaded guilty prior to the enactment of IMMACT [1990] and who otherwise would have been eligible for 212(c) relief but for the aggravated felon bar, may still apply for 212(c) relief."

No Court Has Jurisdiction To Review Attorney General's Discretionary Decision To Revoke Parole
In Samirah v. O'Connell, No. 03-1786 (7th Cir. Jul. 2, 2003), the court said that "Section 1252(a)(2)(B)(ii) makes clear that one of the subjects beyond any statutory grant of jurisdiction, at least outside the context of a habeas proceeding, is review of the Attorney General's discretionary decision to revoke parole." This opinion creates a split with the 9th Circuit on the mattter of whether an alien seeking entry to the US, when outside of the US, can be in "custody" under 28 USC 2241.

Petition For Review Of Prior Removal Order Denied Where Petitioner Shows No Lack Of Prejudice
In Padilla v. Ashcroft, No. 02-70430 (9th Cir. Jul. 1, 2003), the court said that "it need not decide whether the INS's regulation offends due process, because Petitioner cannot show any prejudice as a result of the INS's failure to afford a hearing" in a case involving reinstatement of a prior removal order that did not afford a hearing.

Iowa Attempted 3rd Degree Burglary Is Aggravated Felony
In US v. Martinez-Tapia, No. 02-4161 (8th Cir. Jul. 1, 2003), the court said that "the district court did not plainly err in concluding that the offense was a "felony" for 2L1.2 purposes since the Guidelines definition of "felony" requires only that the offense be punishable by imprisonment for more than one year..."

8 USC 1326 Requires No Criminal Intent
In US v. Dyck, No. 03-1308 (8th Cir. Jul. 1, 2003), the court said that Defendant's purported lack of criminal intent upon entry was not a valid basis for departing downward in sentencing the Defendant who was convicted of illegal reentry after deportation subsequent to an aggravated felony conviction.

Cryptic Evidence Does Not Establish Clear And Convincing Standard Of Deportability
In Adefemi v. Ashcroft, No. 00-15783 (11th Cir. Jun. 30, 2003), the court said that the INS did not prove Petitioner's deportability by "clear and convincing evidence" on the basis of a firearms conviction under 8 USC 1251(a)(2)(C). The court also said that "nowhere does [the sole supporting evidence, the traffic "ticket"] explicitly indicate either the fact of conviction or the offense for which any conviction was entered. It likewise fails to indicate whether Petitioner pled guilty or, if he did, the charge to which he admitted."

13 Charged In Marriage Fraud Scheme
The Dodge City Daily Globe of Kansas reports "Four of the defendants are charged with conspiracy to arrange sham marriages between Pakistani citizens and citizens of the US, U.S. Attorney Eric Melgren announced Wednesday."

Our Founders Understood Importance Of Immigration
The Wall Street Journal reports "Tomorrow we celebrate the 227th anniversary of a document that founded our nation by defining what it stands for: the rights to life, liberty and the pursuit of happiness. But how many of us remember that among the colonists' grievances was the king's hindrance of immigration?"

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Are you looking for a pleasant working environment that is free of interoffice politics and large firm bureaucracy? A small, friendly law office based in St. Louis, MO has an opening for a legal assistant proficient in: H1B assembly, J-1 visa waivers, EAD, AP, and AOS cases. Our ideal candidate is a self-starter, enjoys working independently and is a multi-tasking guru. Managing and tracking case progress is a must. The right person will have the opportunity to work closely with the attorney and be involved in many aspects of the law firm practice. Proficiency with MS Word, Outlook is required. Web-based case management familiarity is a plus. We offer a flexible work schedule and competitive salary. Relocation package also available to right candidate. Please send your resume + salary requirements to:

Credential Evaluation And Translation Service
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Letters to the Editor

Dear Editor:
I just wanted to remind everyone that discussions such as an H-1B cap increase or 245(i) renewal affect real people and they should not be tossed about like a political football. That being said, and considering the 6% unemployment this country is facing today, an increase of the H-1B cap after October 1 would be an insult to every unemployed American worker. A renewal of 245i is not only an insult to every law-abiding immigrant but to everyone else as well. Happy 4th!


Dear Editor:
Justin of Chicago, IL's latest letter insists that H-1Bs can change jobs as often as they like. This of course ignores my point that although the H-1Bs have the legal right to move, they typically cannot afford to do so if they are being sponsored for green cards by their employers. Starting the multi-year green card process from scratch again with a new employer is simply an infeasible option. Immigration lawyers who read Immigration Daily know all of this quite well. This is why I apologetically but frankly used the word "disingenuous" the other day, concerning some of the letters in this discussion. Justin's letter states that the H-1Bs his office represents get raises, and that they are paid above the prevailing wage. Whether that is true or not in their cases (and I have very serious doubts that it is), the fact is that most H-1Bs are simply not compensated as well as similar Americans. I've mentioned that a number of statistical studies show this, and the employer survey done by the congressional-commissioned NRC report found that the H-1Bs tended to get "lower wages, less senior job titles, smaller signing bonuses, and smaller pay and compensation increases than would be typical for the work they actually did", quite a statement in view of the fact that the NRC commission consisted mainly of industry representatives and their allies. And again, one doesn't need data to understand this in the first place. If one cannot move about freely in the labor market, one generally cannot get as high a wage as a USC or LPR would; that's Economics 101, folks. Justin's letter then implies that the underpayment of H-1Bs is merely an enforcement problem. This isn't the case at all. On the contrary, there is nothing to enforce. The law, and especially the regulations, are so full of loopholes that it is very easy to underpay an H-1B and yet still be technically in full compliance with the law. When Justin says his H-1Bs get paid over prevailing wage, what he is omitting is the point that "prevailing wage" is the wage calculated according to a myriad of loopholes. Once again, I hardly need to explain this to a group of immigration lawyers. Come on, everyone. Everyone knows those loopholes, I know them, you know them, the big HR departments know them. And we all know whose lobbying got the federal legislative and executive branches to put in those loopholes.

Norm Matloff

Dear Editor:
I have a client that put in a I-751 with a receipt date of July 8, 2002 and they received a letter of approval dated May 16, 2003-so NSC is farther along in their processing I-751s than it says on their report. Just FYI.

Name Withheld Upon Request

Dear Editor:
If the president is truely committed to his oft stated: "When we find a willing employer and a willing [sic. undocumented] employee, we ought to match the two", he should make it come to pass legally. It can be done by allowing the "willing" employee to voluntarily go back to his homeland with a grant of a legal visa to return to his employment, provided he has a confirmed affidavit of employment and support issued by his "willing" employer. The 3/10-year ban barrier can be waived (or better still, that law should be repealed). There are neither amnesties granted nor awards given. The immigrant is documented and identified. He is lawfully employed and supports the country with his taxes like any other worker. The "willing" employer with his affidavit is committed to pay a comparable wage and to observe the rights of his employee. Everyone comes out a winner---the employer, the employee, homeland security, and the government.

Richard E. Baer

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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