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Immigration Daily December 19, 2005
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Latest From The Hill

Here is the latest we are hearing on Section 8001 of S. 1932 (providing for retrogression relief, and recapture of significant quantities of H numbers and permanent EB numbers) in particular and the Budget Reconciliation package in general:

According to RollCall, a capitol hill newspaper, the House and Senate leadership has decided that they cannot adjourn for the year over the weekend, and that both chambers will need to remain in session at least through Tuesday. Immigration Daily has separately learned that it is likely that Congress will stay until the 11th hour, i.e. Friday before members can return home to their families for Christmas. Regardless of when they adjourn, the House of Representatives will not convene again all the way through January 31st - more than a month later (this is to give Rep. Delay time to clear up his legal troubles and prevent a leadership fight within the House Republicans). And a month is a looong time in politics, so ...

There is considerable pressure on Congress to wrap up the difficult appropriations process now, lest it become even more difficult with the passage of time. Congress will likely work on a massive Omnibus Reconciliation package containing the following elements: the Labor-HHS Appropriations bill (which has failed to get the required votes in the Senate as of this writing), the Defense Appropriations Bill, the Katrina tax relief measure, the ANWR (Arctic drilling) provision, the budget reconciliation bill (S. 1932 - currently in conference), and perhaps other odds and ends. The only major things that may remain on the table for next year are extension of the Patriot Act and the tax reconciliation bill. Negotiations on money matters (the mother's milk of politics) are always contentious and stressful, to illustrate: on Thursday evening, House Energy and Commerce Chairman Joe Barton suffered a heart attack during budget reconciliation conference negotiations and he remains hospitalized.

Immigration Daily has learned that Section 8001 of S. 1932, sorely needed by the immigration community, was included in initial drafts of the budget reconciliation conference report, and was later pulled, ostensibly under pressure from a handful of Republican House members who threatened to vote against the reconciliation conference report if it included immigration benefits relief provisions. Given the number of controversial provisions in the large bills currently being crafted, it is reasonable to believe that there must exist many provisions for which a group of 20 Republicans would threaten withholding of their votes unless their desires were capitulated to. It is unlikely that the House or Senate leadership would be fazed by such blackmail. Unfortunately, several key business immigration lobbyists gave up the issue as lost, and some have reportedly left the Beltway to be with their families for an early holiday season.

The fact is that this is a new battle for pro-immigrationists - the arguments are not about human rights or humanitarian considerations, nor about the competitiveness of American employers - instead the arguments this time revolve around money - not money for campaign contributions, but money for Uncle Sam's treasury - a not-insignificant half-billion dollars plus (CBO estimates) is at stake in exchange for the immigration benefits in Section 8001 of S. 1932. With money scarcer than hen's teeth right now inside the beltway, and with intense pressure to finish appropriations, pro-immigrationists have a strong hand, if they have the ability to play it right (one example is to try to secure the immigration benefits for a higher L fee than S. 1932 mandated if necessary). In addition, Immigration Daily has learned that hundreds of calls and faxes are flooding Congress supporting the inclusion of Section 8001 in the final reconciliation conference report.

Currently, one of three things appear to be possible: (A) the final Act will include Section 8001 of S. 1932 (providing for retrogression relief, and recapture of significant quantities of H numbers and permanent EB numbers) in exchange for a lot of money for the US Treasury, (B) the US Treasury will sock it to L visa users in exchange for nothing at all (except for establishing the appalling precedent that monies for visa processing can be diverted to the general treasury, and not be applied toward benefits processing or some other designated immigration-related purpose), and (C) nothing will happen, the status quo will prevail.

Regardless of any of these eventualities coming into fruition, ILW.COM will proceed with the planned dates for our forthcoming seminar. However, we may need to move around the specific subjects from the various sessions, so as to ensure that seminar participants recieve the most timely material to assist their practices. The deadline to sign up is Tuesday, December 20th. For more info, including speaker bios, detailed curriculum, and registration information, please see: (Fax version:

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:


Walk On By: Pass Up Sensebrenner's Misguided Border Bill And Insist On A Winner
Lory Diana Rosenberg writes "Instead of facilitating the fair and truly comprehensive immigration reform that most Americans want and need Congressman Sensenbrenner's bill would virtually criminalize everything that troubles him about the immigration situation today, and it would do so retroactively."


H-2B Cap Reached For FY 2006
USCIS announced that H-2B cap has been reached for first half of FY 2006. For the press release, see here. For the latest H cap count, see here.


Help Wanted: Immigration Attorney
Growing, international, employment-based immigration firm based in Miami, FL with offices in Asia seeks immigration attorney with 3-5 years experience in business immigration who is detail-oriented and has excellent writing and communication skills. Position can be based in either our Miami or Asian offices. We offer excellent health and dental benefits in Miami and housing and meal allowance internationally. Please send resume and writing sample to Andrew Koerner, at Leaf Koerner LLC, 100 SE 2nd Street, #2330, Miami, FL 33131 or

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Honors And Awards - Firm Of The Year
The Firm of the Year award was given to The Mdivani Law Firm LLC by the Association of Women Lawyers of Greater Kansa City for its community involvement. 7007 College Blvd., Suite 460, Overland Park, KS 66211. Telephone: (913) 317-6200. Fax: (913) 317-6202.


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:
In response to ID's 12/16/05 comment, my grandparents were immigrants. They were immigrants like so many others who came to this country eager for a new life. They retained their proud heritage, but also learned a new heritage, that of the US. They learned the language, while keeping their native language. They learned the laws and were glad to be a citizen. This is the generation that grew this country as a country. They passed this drive to my parents and they to me. I am very much in favor of immigrants who want to come to this country and make it better as citizens. I am very offended by your misuse of terminology. I am not anti-immigration. I am anti-illegal immigrants. Or immigrants who do not want to improve the country but to stay here temporarily for the schools and health care then return to their native countries. If Immigration Daily is going to write an opinion, at least be honest.

Dennis Vanderplow

Dear Editor:
I'm getting really sick of the inflammatory language that Immigration Daily continues to spout in regard to those people (like me) who oppose illegal immigration into the USA. Your comment about "the anti-immigrationists' anti-American vision finding a legislative vehicle" (12/16/05 ID comment) in your discussion of H.R. 4437 is a perfect example of what I mean. Excuse me, but there is nothing anti-American about expecting our laws to be enforced. Why can't Immigration Daily at least use a more correct term, such as "Anti-Illegal-Immigration"? Don't you believe in the rule of law, or do you choose to ignore current immigration laws since you disagree with them? As for me: I'm not anti-immigration or anti-immigrant. However, I am most definitely anti-illegal-immigration. There is nothing anti-American about American citizens expecting our current immigration laws to be enforced. When the 1986 amnesty was given, Congress promised that illegal immigration would be stopped by enforcing the law against the employers, but that lasted about as long as a match in a bonfire.

Steve Landess
Austin, TX

Dear Editor:
The following are my responses to several letters to the Editor all dated 12/16/05 ID. With respect to Sebastian's letter - a limited entry policy with numbers that did not overwhelm agencies would resolve his letter's concern. Enforcement laws of any nature that are deemed essential to society are "prohibitionalist" in nature and any lawbreaking should be laid at their door of those who break them. Regarding Brent Heid's letter, American workers filled "sweat and grime" jobs for generations when paid a living or surviving wage when they did not have to compete directly with Third-World nation labor. This is exactly what globalist President Bush is trying to expand and legalize by his "open border" plan that any US business can hire foreign labor after posting a job at a low rate of pay for a short time that an American won't or can't live on. Many other Mexican and American groups promote open borders as well, including most Libertarians. Finally, in response to Dave Anderson's letter, there are numerous studies, polls and articles (search them) that discuss the negative impact of excessive immigration allowing illegal entry, some of the best by "committed interests in the immigration discussion" such as FAIR and CIS. One of the most neutral studies was by the US Commission on Immigration Reform, whose chair Barbara Jordan, former TX Congresswoman, summed up her immigration view as follows: "Those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave." Time magazine's recent special investigative report by, "Who Left the Door Open" was a neutral discussion of excessive immigration. Independent pollsters Zogby and Roper AWS continally show a majority concern by the public on this topic.

R. L. Ranger

Dear Editor:
In response to Name Withheld Upon Request's letter (12/16/05 ID), beneficiaries of labor cert applications have no control of a process sponsored by and paid for by employers; a process that also requires employers to shoulder substantial risk on the belief that foreign national employees will justify the expenditure of thousands of dollars for a procedure burdened by multiple-agency oversight. LC's are prospective, and any one of a number of factors can result in the loss of that prospective position. Name Withheld Upon Request's letter takes a disturbing, vindictive and cowardly approach that makes those of us in this profession question the motivations of some whom we serve. No, one cannot anonymously seek to disbar an attorney - due process and constitutional safeguards preclude this - but Name Withheld Upon Request's letter sheds considerable light on why his/her employer may have elected to withdraw their sponsorship.

Name Withheld

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