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Immigration Daily August 28, 2003
Previous Issues
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Editor's Comments

DOL vs. BCIS - A Clash Of Rules

Many practitioners feel like tearing their hair out while navigating the topsy-turvy world of labor certification. A BALCA case today (see below) highlights the lack of consistency in the rules between DOL and DHS, which may lead to premature baldness for some immigration attorneys. 8 CFR 214.2(h)(4)(iii)(D)(5) says three years of experience equal one year of college education, in other words, a Bachelor's degree would be equal to 12 years of experience. DOL, however, believes that a Bachelor's degree is equal to 2 years of experience. Faced with this set of disparate rules, an attorney attempting to make the 8 CFR provision the basis of justifying the employer's disqualification of a US worker failed to carry the day at BALCA. As the dog days of summer wind down, this BALCA case gives immigration lawyers cause to wonder about the inscrutability of it all.


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Featured Article

DV 2005 - The Diversity Lottery - New Technology or a Trap?
Bernard P. Wolfsdorf and Naveen Rahman write " Now more than ever, DV applicants must be advised of the risks and potential legal vulnerabilities."


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Immigration Law News

DOS Provides 2005 DV Program Instructions
The Bureau of Consular Services of the Department of State provided information on how to apply for the 2005 Diversity Immigrant Visa Program (DV-2005).

GAO Says DHS Needs To Address Vulnerabilities Of Border Inspections Process
The Government Accounting Office released its letter to BCBP Commissioner Bonner where it addressed the result of its review of the immigration-related inspections at land border ports, including its recommendations.

BALCA Says 8 CFR Does Not Apply To Labor Certs
In the Matter of Hawaii Medical Service Association, No. 2003-INA-248 (BALCA, Aug. 13, 2003), the Board of Alien Labor Certification Appeals said that Employer's argument that Employee did not have enough years of experience as a computer services coordinator was based on Employer's erroneous argument that three years of work experience was needed to equal one year of college.

Stop Time Rule Does Not Apply To Cooperative Petitioner Subject To Lengthy INS Delays
In Aoun v. INS, No. 01-4004 (6th Cir. Aug. 26, 2003), the court said that the stop time rule was inapplicable where the INS's lengthy delays resulted in Petitioner being subject to harsher rules concerning accrual of time towards his continual physical presence in the US. The court also noted that this case was not an example of the type of case Congress was trying to address when it instituted the stop time rule since the Petitioner was two months shy of the seven year requirement and there was no evidence and that he was trying to delay the proceedings in any way.

INS Is No Longer Proper Respondent In Habeas Petition, DHS Secretary Must Be Named In Addition To Attorney General
In Armentero v. INS, No. 02-55368 (9th Cir. Aug. 26, 2003), the court found that "strict adherence to the rule that the appropriate respondent in an alien's habeas petitions is the alien's immediate physical custodian does not make sense in the immigration context ... we conclude that the most appropriate respondent to petitions brought by immigration detainees is the individual in charge of the national government agency under whose auspices the alien was detained." The court also noted that "until the exact perimeters of the "Attorney General's power to detain aliens under the new Homeland Security scheme are decisively delineated, we believe it makes sense for immigration habeas petitioners to name the Attorney General in addition to naming the DHS Secretary as respondents in their habeas petitions."

Mentally Ill Jamaicans Are Not A Particular Social Group
In Raffington v. INS, No. 02-1773 (8th Cir. Aug. 26, 2003), the court said that Petitioner, a Jamaican, failed to show that mentally ill Jamaicans, or mentally ill female Jamaicans, qualify as a "particular social group" for asylum purposes.

2700 Is Substantially More Than 100
In US v. Vargas, No. 02-21127 (5th Cir. Aug. 26, 2003), the court said that the district court correctly applied Application Note 5 of USSG 2L2.1 when it upward departed two levels because 2,700 documents is "substantially more than 100 documents" where Defendant was convicted of issuing over 2,700 false social security cards to undocumented aliens.

Husband's Death In FUNCINPEC/CPP Battle Does Not Establish Fear Of Future Persecution
In Khem v. Ashcroft, No. 02-2725 (1st Cir. Aug. 26, 2003), the court said that Petitioner's fear of future persecution was based on her husband's participation in the National United Front of an Independent, Neutral, Peaceful and Cooperative Cambodia (FUNCINPEC) but there was no evidence presented that her husband was ever individually targeted for persecution.

Guest Worker Issue Highlight Of Arizona Conference
The Tucson Citizen of Arizona reports "Some see a guest-worker program as the answer to stopping deaths along the Mexican border. Others don't."

Offshoring Leaves White Collar Jobs Vulnerable
The Atlanta Journal-Constitution reports "Not surprisingly, America's anti-offshoring backlash grows."


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Letters to the Editor

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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 editor@ilw.com. 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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