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Immigration Daily February 16, 2005
Previous Issues
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Dirty Half-Dozen

A non-profit watchgroup, Public Interest Watch, has named the dirty half-dozen, 6 non-profits who openly flout IRS tax laws by filing their tax returns as tax-exempt educational organizations, a 501(c)3 status which entitles a group to solicit tax-deductible contributions. Federal tax laws and the IRS' own regulations make it very clear that propaganda campaigns or efforts to force social action do not qualify as education. These six non-profits aim to change public policy, not educate the public. The Federation for American Immigration Reform (FAIR) is named as one of the dirty half-dozen:

The 2000 tax return filed by FAIR (IRS Form 990, page 24):
"FAIR's primary exempt purpose is to educate the public about the economic, sociological, environmental, demographic, and other effects of mass immigration to the United States."
What FAIR tells prospective supporters (FAIR website):
"The Federation for American Immigration Reform (FAIR) is a national, nonprofit, public- interest, membership organization of concerned citizens who share a common belief that our nation's immigration policies must be reformed to serve the national interest…FAIR advocates a temporary moratorium on all immigration except spouses and minor children of U.S. citizens and a limited number of refugees...Since it was founded in 1979, FAIR has been leading the call for immigration reform."

The actions of FAIR, an anti-immigration organization should not be underestimated. Total contributions received in 2000 by FAIR were $3.2 million.

We welcome readers to share their opinion and ideas with us by writing to


Consular Processing Today: Visa Procedures, Security Clearances, And Waivers

ILW.COM is pleased to announce a new 3-part seminar series "Consular Processing Today: Visa Procedures, Security Clearances, And Waivers". The detailed curriculum is as follows:

FIRST Phone Session on February 28th: NIV Issues

Third Country National NIV applications in Canada and Mexico.

  1. Border Post review of who can apply and who cannot.
  2. Rationale for limitations on who cannot apply.
  3. Appointments always necessary.
  4. Can List of 26 and T-7 apply? At which posts can they apply?
  5. Is there a case for a TCN not applying in Canada or Mexico, if eligible to do so?
  6. Border Post review of right to counsel at visa interviews.
  7. Circumstances under which an applicant not issued a visa at a border post can return to the United States.

Home Country Visa Applications.

  1. Appointments almost always necessary. Check waiting times on DOS Website and check consular post Website for details.
  2. Research post policies, personnel and local red flags.
  3. Why BCIS approved petitions (H, L, O, P) are not a promise of a visa.
  4. Prepare the client for the interview and ensure visa applications are completed accurately and completely.
  5. Documents applicant should bring to the interview.
  6. Personal Appearance Waivers.
  7. What to do when there is a glitch at the visa interview (Security clearances; NCIC Checks and Hits in the Database-the applicant forgot about the rest for pot or shoplifting 30 years ago; Petition Issues- Job Inflation, Skills Tests, DOes the job exist and can the employer afford to pay the wage.)

Special Visa Processing Issues.

  1. Considerations in Applying for a B-1/B-2 visa after BC/BP refuses entry under the visa waiver program.
  2. What happens at the visa interview when an applicant subject to NSEERS registration forgot to report to BC/BP upon departure or reported but the computer indicates an NSEERS violation?
  3. Unlawful presence and 222(g) considerations.

SECOND Phone Session on March 16th: IV Issues

Considerations in Consular Processing. Unlawful Presence.

  1. Risk that the applicant's visa and/or immigration history will risk a delay or denial.
  2. Readjudication of labor certifications, visa petitions and
  3. qualifications of applicant.

Considerations in consular policies in processing employment-based immigrant visas on the basis on an original notice of approval of the I-140 and consular acceptance of third country national immigrant visa cases, per DOS Cable 180792, "Processing I-140 Petitions for Applicants Residing in the U.S."

  1. The DOS cable encourage posts to accept third country national IV cases, yet attorneys report few posts willing to help. What can be done?
  2. Processing an IV on the basis of an original notice of approval can save years of waiting. What can attorneys do to increase consular receptivity to such processing, particularly where there are no fraud indicators (Cases with low/no fraud indicators.)
"Following-to-join" issues.
  1. Documents to file with the consular posts.
  2. When can principal alien's entitlement to LPR status be readjudicated at the IV interview of the "following-to-join" spouse or child? When may the IV issuance be properly delayed and for how long? (Issue arises in Manila when principal alien adjusted status as a nurse; Issue arises when principal alien adjusted status as an asylee or through legalization; Issue arises when consular officer questions whether principal alien in F2A (unmarried minor child) and F2B (unmarried, adult son or daughter) cases is maintaining his/her principal place of residence and domicile in the United States at the time of the interview.)
Considerations in family-based petition cases.
  1. When blood relationship questioned, may attorney insist on DNA test and through what mechanism? Often, much time would be saved through DNA testing, particularly when the alternatives are returning an approved petition to BCIS and/or awaiting the outcome of a local investigation.
  2. Strategies to resolve relationship questions locally in lieu of petition return to BCIS.
  3. I-864 issues (Whether petitioner "resides" in the United States.)

Processing of an "Age-Out" Case.

Processing of a Child Status Protection Act (CSPA) Case.

"Portability of an approved alien labor certification and I-140" to immigrant visa processing.

THIRD Phone Session on April 7th: Waiver Practice in Consular Processing

Nonimmigrant Visa Waivers of Inadmissibility.

  1. General Issues
    • Who is eligible for a 212(d)(3) waiver?
    • Which grounds can be waived?
    • Which grounds cannot be waived?
    • The life of a waiver.
  2. Procedures for requesting a 212(d)(3) waiver.
    • Request made to consular officer after refusal.
    • Consular officer can either recommend or refuse to recommend to overseas DHS office that a waiver be granted.
    • DHS has final authority to grant or deny waiver.
    • Appeal Procedures if consular officers refuses to make favorable recommendation and winning strategies.
  3. Processing Times and Procedures.
    • When the waiver request must or may be sent to the Visa Office by the consular officer.
  4. Criteria considered in waiver request/approvals.
    • Matter of Hranka-is it the beginning or end of the consular decision making process?
    • How big, how bad and how long ago was the prevarication?
    • How long ago was the conviction and how serious was the crime?
    • Evidence of reformation and remorse.
    • Purpose of trip. Does life-saving medical treatment trump a trip to Disneyland?
    • Consular officers are directed to apply a balancing test; weighing the equities against the negative factors. How this works in practice.
Immigrant Visa Waivers of Inadmissibility
  1. General Issues
    • Who is eligible for a waiver?
    • Which grounds can be waived?
    • Which grounds cannot be waived?
  2. Procedures for requesting a waiver.
    • Form I-601 filed with consular officer for most grounds.
    • Consular officer must forward I-601 to DHS office overseas for adjudication.
    • Fingerprints and G-325a often required.
    • Send client to IV interview fully documented with respect to both possible grounds of ineligibility and reasons why waiver should be granted.
Coming to America when a visa isn't issued.
  1. General Issues
    • Humanitarian Parole.
    • Visa Waiver at port-of-entry.
    • 212(d)(4) waiver at land border port of entry.

The deadline to sign up is Thursday, February 24th. For more info, detailed curriculum, speaker bios, and registration information, see: (Fax version:


Responsibility or Reward?: Why Allowing Illegal Immigrants To Hold Driver's Licenses Would Increase Safety And Lower Insurance Rates For Everyone
Matthew Kalinowski writes "But those who truly believe that denying undocumented workers the chance to apply for driver's licenses will deter future foreigners from sneaking across borders to live here have not been paying much attention to California's demographics from the past 30 years."

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:


CRS Report On Border Security
The Congressional Research Service issued a report on the DHS's completion of a three-tiered, 14-mile fence, along the border near San Diego, California.

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:


Consular Processing Services
Embassy Connection, LLC, a US based firm with a global network of in-country professionals is available to assist with NIV and IV processing worldwide. We schedule interview appointments, pay visa application fees, communicate any changes of local policies, help gather country-specific supporting documents, and provide on-the-ground comprehensive support in virtually every country. We offer simple fee structure and flexible billing options. Visit or call 1-888-476-2195 to learn more.

Help Wanted: Immigration Attorney
The Law Offices of Brian D. Lerner in Long Beach, CA, seeks an associate attorney with 2+ years deportation/removal immigration experience in a high volume, fast paced environment. Experience in the following is required: written motions to reopen, opening briefs to the BIA and other appellate agencies; Immigration Court experience (both master and individual hearings); familiarity with cancellation of removal, AOS, asylum, and CAT applications.; familiarity with law on aggravated felonies. Should know how to do bond redetermination hearings. Candidates must: make court appearances, handle large caseload with multiple deadlines, work hard, possess excellent research and writing skills. Duties include drafting points and authorities, briefs, appellate motions, appeals, attorney cover letters, etc. Must be aggressive and thrive in deadline driven environment. We offer competitive pay and benefits. Send resume + cover letter to: Brian D. Lerner at

Help Wanted: Immigration Paralegal
Small mid-town NYC Immigration law firm seeks an enthusiastic, ambitious, multi-tasker, team player with strong writing and verbal skills and experience and interest in immigration law who will "hit the ground running" to handle day-to-day operations, that includes administrative and legal functions. Candidate must be detail-oriented, manage case load independently, possess good organizational and computer skills and is tech savvy. We offer a competitive salary, casual environment, flex/full time and a chance to play a key role in an expanding practice. Send resume + salary requirements in confidence to Virginia Fling:

Help Wanted: Immigration Paralegals
The Law Offices of Darren B. Silver, a medium sized established law firm in Los Angeles, CA seeks full time paralegals. Experience must be in business/employment petitions, such as H's, L's and E's. Please forward detailed resume regarding your specific experience. Ideal candidate will have two years of experience, is hard working, self-motivating, organized and enjoys a pleasant team work environment. E-mail resumes to Darren Silver at: or fax to: 213-384-8285.

Help Wanted: Immigration Paralegal
Kapoor & Associates, a boutique immigration law firm with offices in mid-town Atlanta and downtown Orlando, is looking for an immigration paralegal for our Atlanta office. We are a high-paced firm with a diverse mix of corporate and individual clients handling all types of employment-and family-based immigration cases. The ideal candidate will have 1-2 years of employment-based immigration experience. But most importantly, s/he will have a true passion for helping our clients achieve their dreams in the US. We offer a competitive salary and benefits. Please forward your resume to Romy Kapoor for consideration.

We carry advertisements for Help Wanted: Attorney, Help Wanted: Paralegal, Help Wanted: Other, Positions Sought, Products & Services Offered, etc.
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Readers are welcome to share their comments, email: (300-words or fewer preferred).

Dear Editor:
Gary Endleman's article (2/15/05 ID) incorrectly states that EB-4 and EB-5 do not flow to the first three categories. First INA 203(b)(1) states: " Priority workers. - Visas shall first be made available in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (4) and (5),... ." The leftovers from EB4 and EB5 do return to EB1, then to EB2 and finally to EB3. Unfortunately, the additional visas does not change his correct analysis, regarding the coming shortage of visa numbers. According to Second INA 203(b)(3)(B), the "28.6 percent" is simply for all EB3 and the 10,000 (5,000 due to NACARA) is not a separate allocation. Most importantly, AC 21 Sec. 104(c) does not exactly say that "an individual who has maxed out on six years of H-1B status may be eligible for a one-time additional extension if they are the beneficiary of an approved I-140 immigrant visa petition and would be eligible to file for adjustment of status except for per-country visa quota limits." The statue states: "is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs...." No where in Pearson's June 19, 2001 Pearson relevant section, "C. AC21 104(c) 'One - Time Protection' Benefits, Extension of H-1B Status Permitted where Adjustment Pending under Per Country Limitations" does it indicate that the adjustment need not yet be filed. Note it says "Pending." Would USCIS want to have more adjustment application filed so that they can determine eligibility but for the per-country quotas? AC21 does not overturn the requirement that a visa number be available when the adjustment is filed. If USCIS continues with the interpretation that the adjustment must be pending to have AC21 104(c) available to the applicant I believe it will be upheld by the Courts as a reasonable interpretation of the statute.

Eugene J. Flynn, Esq.
Dallas, TX

Dear Editor:
Thought this 3rd Circuit decision - Bagot v. Ashcroft, No. 04-2127 (3rd Cir. Feb. 11, 2005) on legal custody and citizenship through naturalization of parent would be of interest to Immigration Daily readers.

Tim Block


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Publisher:  Sam Udani    Legal Editor:  Michele Kim

Editorial Advisory Board:   Marc Ellis, Gary Endelman

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