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Immigration Daily December 14, 2005
Previous Issues
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No Friend To Poorest Americans

Rep. Lamar Smith and Rep. John Hostellter in a recent Washington Times op-ed "Illegals Hurt Americans" wrote, "the result of a large illegal immigrant workforce is that the poorest Americans must compete with those illegal immigrants for jobs." We are not aware of contexts outside of immigration where Reps. Smith and Hostettler express their alleged concern about the poorest Americans. It appears that this so-called concern for the poorest Americans only arises as a fig leaf for some conservative Republicans who are on an anti-immigration jihad. It is ironic to see conservative Republicans espousing tenets of conservative Marxism in assuming that the number of jobs is a fixed quantity which does not expand with increased undocumented immigration. The overall economic pie is expanded with increased immigration, whether documented or not. Documented immigration by providing certainty to the individuals involved in the economic activity will expand the pie even faster for the benefit of all Americans, including the poorest.

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


Thrive-Talkin' - Cutting-Edge Strategies to Grow Your Immigration Practice in 2006

Immigration law changes are everywhere. Is your immigration practice ready for all these revolutionary changes? You may blurt out an enthusiastic "yes," but - paraphrasing The Bee Gees - is that "just your jive talkin' that gets in the way?" Consider these recent and forthcoming developments.

Congress is poised to approve legislation to:

  • Authorize recapture of H-1B and immigrant visa numbers
  • Allow submission of adjustment of status applications even before the priority date is current
  • Strengthen border and interior enforcement
  • Permit regularization of status for millions of the undocumented illegally present in the United States
  • Create a new guest worker program

Administrative agencies with a role in immigration benefits and enforcement are also active.

  • The U.S. Department of Labor continues its bold experiments in backlog reduction and PERM automated adjudication, issuing and at times withdrawing FAQs.
  • USCIS - having made progress in downsizing its backlogs - now must prepare for an unprecedented onslaught of applications and petitions by utilizing creative efiling and eadjudication strategies and cranking out new Headquarters policy memos.
  • ICE and CBP - which Congress may combine into a single immigration enforcement agency - will gain more technological capabilities, more detention facilities and greater investigative and enforcement manpower.
  • The DOL's Wage and Hour Division and ICE's employer sanctions unit gear up for an era of increased focus on employer-related immigration violations.
  • U.S. consular officers must adjust to a heightened level of scrutiny and second-guessing, as the State Department refines its interpretation of the "intent to return home" requirement of Immigration and Nationality Act 214(b) and Congress tasks State with the duty to make America more alluring to foreign students.

Twenty-First Century immigration practice is not for the faint-hearted. It takes substantial capital and human resources, investment and training in technology, ample lead time, and carefully considered bets on which of the many potential practice subspecialties will most reward entrepreneurial firms and lawyers.

For bankable strategies and tips on best practices, register now for this three-part ILW.COM teleconference moderated by Angelo A. Paparelli, named the World's Leading Authority on Corporate Immigration Legal Expertise, and featuring the leading lights in immigration law.

Sections 8001 and 8002 of S. 1932, the Deficit Reduction Omnibus Reconciliation Act of 2005, will soon be set for conference committee. Well informed projections suggest that some form of the Senate bill will prevail in conference over the unwelcome House version. The Senate bill, when enacted, would increase the availability of employment-based immigrant visa numbers, allow submission of I-485 adjustment of status applications even if a visa number is not yet available, recapture a limited number of H-1B visas, and impose new $750 fees (which only the employer may pay) on L-1 initial petitions, blanket L-1 visa applications and the initial extension of status. S. 1932 tasks USCIS with developing procedures to deal with the added torrent of new filings, and to allocate scarce H-1B visa numbers and track filing fees for the newly recaptured visas. The new law would also expand the authority of the DOL to investigate employer compliance with the new restrictions on source of payment for L-1 filing fees. By December 20, the conference committee work, with approved amendments, is expected to be done. Passage of the conference version of S. 1932 by the full Congress would then be a virtual certainty (the exact vehicle may be another bill such as H.R. 4241, the house counterpart of S. 1932, but the substantive points above would still stand).

FIRST Phone Session on Dec 22, 2005:

  • The latest developments in USCIS H-1B number allocations and fee tracking logistics;
  • USCIS preparations to use efiling and eadjudication measures to stay ahead of the large volume of new submissions;
  • The DOL's likely enforcement techniques as the agency makes its first foray into enforcing employer compliance under the L-1 visa category.
  • Practice strategies you can use in your law practice to stay on the leading edge, such as (a) tactical advantages and risks in using efiling procedures, and (b) sequential, multi-benefit techniques involving new menu choices, e.g., combinations of nonimmigrant visas, PERM applications, concurrent I-140/I-485/I-765 submissions and portability
  • Using the latest INA 214(b) interpretations and old, oft-forgotten case law to give new life to legitimate dual intent and defeat government assertions of unlawful preconceived intent

SECOND Phone Session on Jan 19, 2006:

This session will cover significant regulatory, administrative and judicial developments in 2005. Is your immigration practice up to speed on the following new developments?

  • Adjustment of status portability,
  • H-1B visa number allocation procedures for Masters and Ph.D. graduates of U.S. universities
  • Recapture of H-1B and L-1 time based on periods spent abroad
  • PERM and backlog reduction developments in labor certification practice
  • H-1B extensions beyond six years using DOL printouts
  • Hurricane-related ameliorative measures and deferral of I-9 enforcement
  • Implementation of the L-1 Visa Reform Act
  • Grandfathering under INA 245(i)
  • Clarified eligibility standards for exceptional ability aliens under Schedule A, Group II
  • New interpretations of the American Competitiveness in the 21st Century Act
  • Equivalency determinations in EB-2 and EB-3 immigrant visa categories
  • Three-year wait for naturalization eligibility for certain Extraordinary Ability Aliens

THIRD Phone Session on Feb 2, 2006:

This session will focus on enforcement. Will your immigration practice be ready to face the challenges of a new era of heightened immigration enforcement?

  • ICE employer sanctions and I-9 enforcement strategies.
  • Use of Wal-Mart style consent decrees to compel vendors and subcontractors to turn over I-9s or face breach of contract damages
  • Changes in DOL enforcement authority following implementation of a "Sonny Bono" style change in the H-1B Visa Reform Act
  • "Piercing the Corporate Veil" and Personal liability issues arising under the I-9 and H-1B provisions of the immigration laws
  • Application of Felony Harboring and RICO (Racketeer Influenced Corrupt Organization) Act strategies to employer immigration violations
  • Strange Immigration "Benefits": CBP adjudication of applications for I-601 waivers and Humanitarian Parole adjudications by ICE
  • Interoperability of Government Databases, Data-Mining Exposures and Privacy/Civil Rights Concerns
  • Implications of Sarbanes-Oxley, Sentencing Guidelines and Employer Immigration Compliance Programs
The deadline to sign up is Tuesday, December 20th. For more info, including speaker bios, detailed curriculum, and registration information, please see: (Fax version:


Dual Nationality: Unobjectionable And Unstoppable
Peter J. Spiro for Center For Immigration Studies writes "Although migration has always resulted in some cases of dual nationality, until recently dual nationality remained an anomaly, a status disfavored to the point that it was considered immoral."


Update On New Orleans Immigration Court
The New Orleans Immigration Court will re-open December 19, 2005 (courtesy of Nolan Rappaport, Minority Counsel, Committee on the Judiciary Subcommittee on Immigration, Border Security, and Claims, House of Representatives).


Help Wanted: Immigration Attorneys
Berry, Appleman & Leiden LLP, a global corporate immigration law firm, is seeking experienced attorneys with a minimum of three years practicing business immigration law, for our San Francisco office. Our attorneys work in a fast-paced, high volume practice and utilize carefully developed procedures, advanced practice tools, and a state-of-the-art case management system. Experience in a range of business immigration matters, the ability to provide exceptional client service, experience managing teams of legal assistants, and superb analytical, organizational and case management skills required. We strive for excellence in legal practice in a collegial environment, promoting cooperation and learning from each other. We offer competitive salary and benefits. Please submit your resume via email to or by fax to 415.217.4426.

Help Wanted: Immigration Paralegal
Small Wall Street (downtown NYC) immigration practice seeks paralegal/legal assistant with 2+ years of employment-based immigration experience. Candidates should also have working knowledge of family-based applications and naturalization petitions. Must have BA degree as well as excellent research, writing, communication and case management skills. Competitive salary/benefits. Individual will have opportunity to work closely with sole practitioner. Excellent learning opportunity for person with hands-on and can-do attitude. Submit resume + cover letter to Lynne R. Newkofsky, Esq.: All inquiries will be kept confidential.

Case Management Technology
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Readers can share their professional announcements (100-words or fewer at no charge), email:

New Offices - Fremont, CA
We are pleased to announce the opening of The Law Offices of Shah Peerally, located at 37481 Maple St, Ste F, Fremont CA 94536. Phone 510-742-5887; Fax: 510-742-5877. Our practice deals with all aspects of Immigration & Nationality laws. In addition, we assist clients in their estate planning and business transactional needs.


Readers are welcome to share their comments, email: (300-words or fewer preferred). Many letters to the Editor refer to past correspondence, available in our archives.

Dear Editor:
Recently, the US Consulate in a tiny South Asian country published news saying that it has issued 4,784 student visa in this year. It is said that this Consulate has been issuing student visa to the citizens of this country in a good number for the last fifteen years. But, it is very interesting to know that there is no record of return of a single student to this tiny country from the US after completing his or her study. All of us know that the student visa is a non-immigrant visa, and that this kind of visa is issued only after the US Consul is confident that the student visa applicant has no intention of emigrating to the US. But, all the students who came to the US on this visa, are disappeared in this country. They did not return to their country. Similarly, hundreds of thousands of people of South Asia are issued student visa by the respective US Consulates, and they did not seem to have returned to their countries. Is the US government aware of their whereabouts in the US, and also has it record as to whether they are residing legally in the US ?

S. Salike

Dear Editor:
In Valencia v Gonzalez (9th Cir. 12/12/05) the Ninth Circuit withdrew its earlier opinion and issued a new one, holding that a felony violation of Calif. P.C. 261.5(c) (consensual sexual intercourse with a person under the age of 18 by a person at least three years older) is not categorically a "crime of violence"(COV) under 18 USC 16(b). The court held that "absent aggravating factors such as incest or a substantial age difference," section 261.5(c) is not a 16(b) COV. This offense is most frequently charged as an aggravated felony as sexual abuse of a minor, under INA 101(a)(43)(A). The new opinion unfortunately did not delete its original footnote 2, in which it stated in dicta that under the law of the Ninth Circuit, sexual intercourse with a minor is an aggravated felony as sexual abuse of a minor. This statement is not only dicta, but incorrect. Footnote 2 held that statutes that prohibit sexual activity with a person 15 years old or younger constitute sexual abuse of a minor under the Sentencing Guideline definitions of COV. To our knowledge, outside of the context of incest or other aggravating factors, no circuit has held that sexual conduct with a 16 or 17-year old is an aggravated felony as sexual abuse of a minor, and some circuits have questioned this holding for 15-year-olds. The sexual abuse of a minor cases may turn on defining what is signficiant "harm" and the meaning of "abuse." Evidence in the amicus brief showing that older teenagers as opposed to young children are relatively experienced and sophisticated in sexual matters, and are considered to be relatively emotionally mature may help show that "harm" is not necessarily caused by their consensual sexual relationships.

Kathy Brady
Immigrant Legal Resource Center (ILRC)

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. Copyright 1999-2005 American Immigration LLC, ILW.COM. Send correspondence and articles to Letters and articles may be edited and may be published and otherwise used in any medium. The views expressed in letters and articles do not necessarily represent the views of ILW.COM.

Publisher:  Sam Udani    Legal Editor:  Michele Kim