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Immigration Daily February 23, 2005
Previous Issues
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Comment

DOL AWOL

PERM raises a host of questions which remain unanswered by DOL. For example, prevailing wage determinations are determined at this time according to the current 2-tier wage level, until DOL promulgates memoranda or rules to implement the statutorily mandated 4-tier wage level on or before March 8th. While employers are entitled, as a matter of procedural right, to a reasonable transition from the 2-tier system to a 4-tier system, DOL has provided no reassurance to those currently preparing PERM cases who are recruiting on the basis of a wage obtained under the 2-tier system. Further, the new PERM rules define prevailing wage differently. Under current rules, wages under both the Davis Bacon Act (DBA) and the Service Contract Act (SCA) supercede OES wages; with PERM, OES wages will supercede DBA and SCA wages for most applicants. This discrepancy is hard on employers who have to obtain prevailing wages today from their SWAs to be ready to file PERM cases on March 28th. Meanwhile, many find job orders idiosyncratic with no uniformity from state to state and even within each state. DOL has not issued any guidance to the SWAs on PERM-mandated job orders. Both prevailing wage and job order determations are required to file a labor cert. With many questions raised and no answers from DOL, attorneys guiding employers are between a rock and a hard place. We urge DOL to quickly remedy the dearth of information available and issue guidance on matters related to PERM. Attorneys frustrated with the lack of information from DOL on PERM may want to urge their clients to let Congress know about the situation.

We welcome readers to share their opinion and ideas with us by writing to editor@ilw.com.


Focus

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: http://www.ilw.com/seminars/february2005.shtm. (Fax version: http://www.ilw.com/seminars/february2005.pdf.)


Article

Haiti 2004: Still Waiting To Eat At the Big Table
Farah M. Jean-Simon writes "In our global family, it is time for the United States to stop treating Haiti like the step-child not allowed to eat at the big table."


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/

News

EOIR Says Motions Filed On Form EOIR 26 Will Be Rejected
The Executive Office for Immigration Review announced that effective Monday, February 7, 2005, motions that are filed on a Notice of Appeal (Form EOIR 26) will be rejected.


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Classifieds

Help Wanted: Immigration Paralegal
Moore & Van Allen, a general business and litigation firm with 240 lawyers in three offices, is one of the largest firms in North Carolina. We have an opportunity for a qualified individual to join our Charlotte office as an entry-level immigration paralegal. Full-time entry level paralegal position requires 1-2 years corporate immigration experience, excellent technical skills and attention to detail. Successful candidate will be integrated into a large corporate immigration team. Overtime required as needed. We offer a competitive salary and excellent employee benefits. Send resume in confidence to Candy Komornik at: candykomornik@mvalaw.com or by fax: (704) 339-5906.

Help Wanted: Immigration Attorney
Reeves and Associates, one of the largest, oldest and most respected immigration firms in California seeks highly motivated and hard-working immigration attorney admitted to the CA bar with 5+ years immigration experience for its Pasadena, CA office. Ideal candidate should have extensive experience in immigration law (family, business, immigrant and nonimmigrant visas, and deportation/removal), exceptional writing and editorial ability, case management skills and ability to supervise and coach support staff. Applicant needs to be detail oriented, highly organized, have people and case management skills, exceptional client service approach and be able to multi-task and manage a challenging and varied workload. R&A has an experienced support staff, state of the art technology and unsurpassed growth and learning potential, all in a very congenial environment. Submit resume with cover letter + salary history to Robert Reeves: officeadmin@rreeves.com or fax to (626) 795-4999.

Help Wanted: Immigration Paralegal
Established boutique law firm in New York City seeks an experienced paralegal who desires to work from home, part-time. We specialize in O-1 and EB-1A in the arts and entertainment, with a selection of H-1, L-1 and family cases. The ideal candidate will: 1) have experience in our practice area, 2) have an interest and talent for organizing, excerpting and summarizing evidence in a lengthy submission letter (for O-1 and EB-1 cases), 3) be self-motivating, and will 4) work efficiently, timely and in an organized fashion. We communicate via emails and couriers. The candidate will augment our current team of telecommuting paralegals. We project 5-15 cases per month. The candidate must have necessary computer equipment, software and skills for this position. We pay by the hour or per case. Please forward detailed resume, writing sample for EB-1A case, and two references to: daniel@danielaharoni.com.

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 http://www.embassyconnection.com 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 attorney@eimmigration.org.

Offshore Legal Services
We assist immigration attorneys in NIV and IVs, including checklists, form completion, draft cover & employer letters, consular processing assistance, follow-up/correspondence with clients and other related services. We offer a full range of services including document generation, research, accounts, clerical & archival. Quantum Technologies is a sister company to Adnet Advertising Agency, the leader in immigration advertising services for over a decade. Headquartered in New York City, Quantum provides the highest quality services to law firms. Law firms can cost effectively and securely outsource legal processes, and focus on increasing earning, growth and servicing their clients. We work as your partner offering tailored services that accelerate product delivery. With state-of-the-art communication facilities and infrastructure, our legal offsite center functions as virtual extensions of your offices providing 24 x 7 support and significant cost savings. Convenient billing options available. For more info. contact Roshni Khattar at 212-406-3503 ext. 242 or rkhattar@quantum-usa.com.

We carry advertisements for Help Wanted: Attorney, Help Wanted: Paralegal, Help Wanted: Other, Positions Sought, Products & Services Offered, etc.
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Letters

Readers are welcome to share their comments, email: editor@ilw.com (300-words or fewer preferred).

Dear Editor:
The Federal Register notice indicates that the guidelines goes into affect on day they are published (2/22/05 ID). Does that mean that we must use them on the I864 affidavit of support as of 2/18/2005? The govt site still has the 2004 guidelines on their forms.

Emilia Banuelos

Dear Editor:
I am sure it was just a typo, but the Poverty Guidelines for 2005 take effect on February 18, 2005, and not "2004," as stated in the comments (2/22/05 ID).

Leslie K. Dellon

Editor's Note: Thanks to our eagle-eyed reader for pointing out our typographical error. The typo has been corrected.

Dear Editor:
Chucky's letter stated (2/18/05 ID) that we are now seeing the beginning of the end of the free ride for illegal aliens. As a followup, maybe he can enlighten us as to when that alleged free ride began. In practicing immigration law for about twenty years, I have seen no evidence of a free ride and abundant evidence of illegal aliens living in circumstances that none of us would want for ourselves or would wish onto anyone else.

Sid Lachter

Dear Editor:
Could anyone tell me, which states besides New York and California even allow those foreign attorneys to sit and take their state bar exams for admission into that state's jurisdiction to practice law in the US? (2/17/05 ID)

Rose Ata

Dear Editor:
Does one ever stop to reflect that the so-called "hispanics" in our country are in reality direct decendents, complete or in part, of true American natives just as much so as are the Navajos and other native Americans. This in contrast to the "johnny come lately" ancestors that are yours and mine. These Native Americans have adopted and speak the language, Spanish, of their early conquerors. One third of what formerly was a part of the country of these Native Americans (and was sparsely populated) was ursurped by some of our ancestors. That is history. These Spanish speaking Native American immigrants are now in the US in such numbers as to make our country effectively bi-lingual whether we like it or not. Needless to fear, with time all will be changed. The first and second generations of these Spanish speaking immigrants in the majority prefer English as their first language and speak it fluently. This is just as we, the first and second generations of our immigrant grandparents, have abandoned the native language of our predecessors and speak fluent English. I, for one, have little rememberence of German, the native language of my grandparents. That is known as assimilation.

Richard E. Baer


comingsNgoings

Readers can share their professional announcements (100-words or less at no charge), email: editor@ilw.com.

Honors/Awards
Jennifer Chun, PLLC is pleased to announce that Jennifer Miseong Chun has been recognized as a Board Certified Specialist in Immigration Law by the State Bar of North Carolina. Jennifer Chun's office is located at 8362-204 Six Forks Rd. Raleigh, NC 27615. Phone: 919-844-6610.


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.

Publisher:  Sam Udani    Legal Editor:  Michele Kim

Editorial Advisory Board:   Marc Ellis, Gary Endelman

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