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Immigration Daily October 23, 2009
Previous Issues
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Comment

Census Question

San Antonio Express-News reports on a Congressional battle over inclusion of questions about citizenship and immigration status in 2010 census. "The amendment by Sen. David Vitter, R-La., would freeze the Census Bureau's budget if more than 425 million forms aren't changed before the 2010 decennial count. Rep. Charlie Gonzalez, head of the Congressional Hispanic Caucus task force on civil rights, said Vitter was trying to politicize the census over the hot-button issue of unauthorized immigration."

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


Focus

The H-1B Book

The pertinent part of the Table of Contents for The H-1B Book is as follows:

II. INTRODUCTION

  • The Complete H-1B Process: Attorney Flowchart
  • The H-1B Process: Attorney's 10-Step System
  • Overview of H-1B Visas
III. H-1B STEP BY STEP

First Step: Interview The Client

  • Qualifying the Position as a Specialty Occupation
  • Qualifying The Employee
  • Meeting Wage Requirements
  • Lawyer's H-1B Consultation Questionnaire Form
  • Lawyer's H-1B Task Checklist
Second Step: Send The Client Intake Forms And Related Information
  • Intakes Summary
  • H-1B Employer Intake/Questionnaire Form
  • H-1B Worker Intake/Questionnaire Form
  • The Complete H-1B Process: Company Flowchart
  • The H-1B Process: Company's Step-By-Step Explanation
  • Explanation and instructions for spouses and children
Third Step: Credentials: Verify That The Worker Has A US Bachelor's Degree Or Equivalent
  • Credentials Summary
  • If the worker has a U.S. degree - no evaluation is necessary
  • If the worker has a foreign degree - order credentials evaluation
  • If the H-1B petition is based on work experience or combination - order a work experience evaluation
  • List of credentials evaluation firms, web sites and phone numbers
Fourth Step: Determine The Prevailing Wage
  • Understanding the Prevailing Wage
  • Determining the Prevailing Wage
    • O*NET, SOC, Wage Levels, Job Zone and SVP
    • SESA or SWA Wage Determination
    • FLC Data Center Wage Determination
    • Wage Determination Through Other Wage Surveys
  • Practice Examples in Determination of the Prevailing Wage
Fifth Step: Prepare And File The Labor Condition Application (LCA)
  • Introduction to the Labor Condition Application (LCA)
  • Preparing and filing the Labor Condition Application (LCA)
    • Online LCA filing
    • Complete Online LCA and Receive LCA Approval Online
    • Completing the LCA: Step by Step
    • H-1B Dependent Employers Worksheet for the LCA
  • Detailed Description of Form ETA-9035E and its Obligations
  • Sample of completed LCA (form ETA-9035E)
  • Copy of form ETA9035CP (LCA cover pages)
Sixth Step: Prepare The I-129, Related Forms And Petition Letter
  • Form I-129
  • H supplement to Form I-129
  • Form I-129 H-1B Data Collection Supplement
  • Form G-28
  • Form I-907 if premium processing is applicable


  • If the H-1B worker has a spouse and/or children:
  • Form I-539
  • Form I-539 Supplement 1 (if necessary for other family members)
Seventh Step: Send All The Forms And Petition Letter To The Client For Review & Signature
  • Sample letter to client
  • LCA posting notice
  • Sample Letter to Employer Regarding Public Access File
  • Memorandum to employers on Labor Condition Application
  • Public Access File sample
Eighth Step: Assemble The H-1B Petition And Send To The USCIS Service Center
  • General Filing Instructions (including list of service centers and filing addresses)
  • Sample Cover Letter
  • H-1B Petition document checklist
  • Sample list of exhibits
Ninth Step: Troubleshooting
  • Introduction
  • Request for Additional Evidence
  • Dealing with the dreaded request for evidence
    • Sample Response to Request for Additional Evidence
    • Second Example of Response to Request for Additional Evidence
  • I-9 Compliance, Social Security Numbers and Driver's Licenses
  • Changes in H-1B Employment and Amendments
  • How Mergers, Acquisitions and other corporate Transactions Affect the H-1B
Tenth Step: Post-Approval Case Management
  • Summary of Post-Approval Issues
  • Sample H-1B Approval Letter to Employees that are in the U.S.
  • Sample H-1B Approval Letter to Company - Employee(s) Abroad
  • Sample H-1B Approval Letter to Employees Abroad
  • Non- Immigrant Visa Consular Processing Information Sheet
IV. ADVANCED H-1B ISSUES
  • H-1B Degree Equivalency by Mikiel J. Davids
  • Reviewing The Path To Permanent Residency by Courtney Black and Karen Weinstock
  • Traveling On An H-1B Visa While Petition Or Application Is Pending by Ari J. Sauer
  • Dealing With Gaps In Employment by Rajeshri S. Patel and Karen Weinstock
  • Temporary Visa Alternatives To The H-1B by Courtney Black and Karen Weinstock
  • The History And Economic Impact Of The H-1B Visa by Elissa Taub, Melissa Downing and Karen Weinstock
  • When Are H-1B Visas Cap Exempt? by Karen Weinstock
For more information about the book and to order, see here. For the fax form, see here.


Articles

Bloggings on Updates in Immigration Law
Carl Shusterman writes "The new law will provide immigration benefits to "survivors" in various types of immigration cases where either the petitioner or the principal beneficiary dies before the other family members are able to become permanent residents."

Bloggings On Nurse And Allied Health Immigration
Christopher T. Musillo writes "The big question is how Congress will remedy its immigration policy for healthcare workers."

Immigrant Of The Day: Maria Lopez of Cuba
Kevin R. Johnson writes "Maria Lopez is a former Massachusetts state court judge and currently a television jurist on the syndicated television show "Judge Maria Lopez.""

To submit an Article for consideration, write to editor@ilw.com.


News

DOJ Immigration Litigation Bulletin: March 2009
The Department of Justice Office of Immigration Litigation released the March 2009 issue of its publication, Immigration Litigation Bulletin.


Classifieds

Translation Services
Certified translations by Legal Language Services in 157 languages have helped immigration attorneys throughout the United States for more than 25 years. Legal Language translates birth and marriage certificates, academic degrees, health records, employment information and other documents needed for immigration proceedings. Legal Language meets all USCIS translation requirements. Legal Language also offers consecutive and simultaneous interpreting, as well as certified transcription, in support of immigration proceedings. Rush service, including same-day service, is available for a slight additional fee. For a free consultation or for more info: call 1-800-788-0450 or email immigration@legallanguage.com or visit us at http://www.legallanguage.com/lp/immigrationtranslation/. In addition, Legal Language seeks experienced immigration attorneys to contribute to our blog and respond to questions from visitors to our site. Contact us by email to discuss further.

Help Wanted - Immigration Attorneys
Owings Mills, MD - The Murthy Law Firm seeks attorneys with 3+ years of experience in business immigration law. Our practice is dynamic and fast-paced with high standards of integrity, work ethic, and quality. Successful candidates will have the ability to work both as members of a team and as team leaders. They will bring in-depth understanding and knowledge of the breadth of immigration procedures, and are expected to supervise paralegals and support staff. Good writing and analytical skills are required. They will join more than a dozen high-caliber colleagues and have quality support in the way of legal and administrative staff, as well as technology. Visit www.murthy.com/jobs.html for details regarding the unique benefits of working at the Murthy Law Firm. Send Resume + cover letter to hr@murthy.com. All communication will be treated in confidence. Salary and benefits are commensurate with experience and abilities. Final interviews of candidates are at our office a few minutes from downtown Baltimore, MD. EOE.

Credential Evaluation And Translation
As the nation's leader in foreign credential evaluations and translations, American Evaluation and Translation Service, Inc. (AETS) provides the most competitive rates in the industry – $50 educational evaluations, as well as $200 'expert opinion' work experience and position evaluations completed by PhD university professors who have the "authority to grant college level credit for work experience and/or training." AETS offers a variety of turn-around times, including same-day service for educational, work experience, and position evaluations. For list of rates and times, see: http://aetsinternational.com/applicationforevaluationservices.pdf. AETS also provides certified translations in 100+ languages, with translators that are specialists in 80+ fields. For a copy of the Application for Credential Evaluation and Translation Services, please contact AETS at (786) 276-8190, visit http://www.aetsinternational.com, or email: info@aetsinternational.com.

Forensic Psychology Services
Forensic Psychology Group - nationwide service - 800-852-2160. The Forensic Psychology Group provides nationwide expert witness services in all areas of immigration law. It is led by Stephen Reich, PhD, JD, and Grace P. Lee, PhD, JD, who are both clinical psychologists and attorneys, and also AILA members. The Group's experts - all licensed psychologists or psychiatrists - have extensive experience in working collaboratively with immigration lawyers on a wide range of forensic psychological issues. We offer nationwide service in the following areas: psychological consultation, psychodiagnostic evaluation, psychological reports, expert witness services, courtroom testimony, political asylum evaluation, extreme and exceptional hardship evaluations, spousal abuse, citizenship waivers. Dr. Stephen Reich, the Group's founder and director, is a nationally known forensic psychologist who holds a BA, JD, and MBA from Columbia University, and an MA and PhD in Clinical Psychology from Fordham University. He has been on the faculty of Weill Cornell Medical College and on the Attending Staff of New York Presbyterian Hospital for 30+ years. Visit The Forensic Psychology Group. The right experts make a real difference.


Headlines

Hispanic Paper Attacks CNN Presenter
The largest Spanish-language newspaper in the US, the Los Angeles-based La Opinion, has launched a broadside against the CNN journalist Lou Dobbs, accusing him of retailing anti-immigrant opinions that are based on falsehoods.

The Department of Homeland Security's New Budget Affects Immigration Policy
FSRN speaks with Grisella Martinez. She’s the legislative director at the National Immigration Forum, an advocacy group based in Washington D.C.

US Weighs Immigration Fee Hike
The United States could raise the price of immigration-related fees as it battles a budget shortfall spurred by the global financial meltdown, a senior official said Wednesday.

Legal Scholars Dissect SF Sanctuary Policy
But at the heart of issue is a legitimate, lively and long-standing debate on whether local governments have the statutory authority to affect immigration laws.


comingsNgoings

Readers can share professional announcements (up to 100-words at no charge), email: editor@ilw.com. To announce your event, see here

Immigration Event - Washington, DC
October 28 - Migration Policy Institute presents "Talent, Competitiveness, and Migration" - a book release and discussion. For more info and to rsvp see http://contact.migrationpolicy.org/site/Calendar?view=Detail&id=4421


Letters

Readers can share comments, email: editor@ilw.com (up to 300-words). Past correspondence is available in our archives

Dear Editor:
The end of the widow penalty (10/22/09 ID Comment) marks an historic victory and abolishes the terrible practice of compounding one tragedy on top of another - the death of the U.S. citizen spouse and the subsequent deportation of the surviving spouse. Brent Renison has been at the helm of this advocacy and his tireless efforts should be acknowledged and applauded as a champion for doing what is right and perservering. Brent has worked zealously for years on this cause, including appearing on 60 Minutes and going to Washington to lobby to end this antiquated and unfair punishment. As an immigration attorney member of SSAD (Surviving Spouses Against Deportation), I have witnessed first-hand the tremendous anguish and now guarded optimism on the part of the surviving spouses - who now have a vehicle to remain in the United States with their U.S. citizen children and the children's grandparents. Bravo, for a job selflessly and very well done. Justice has finally prevailed.

Lynne R. Newkofsky, Esq.
New York, NY

Dear Editor:
With regard to R. Heuman's letter (10/22/09 ID), the rambling, convoluted article by J.R. Edwards attempting to use the Bible as justification for restrictionista immigration policies, as described in my (10/22/09 ID) letter (responding to Jim Roberts' (10/21/09 ID) letter), appeared in a publication of one of the hate supporting organizations mentioned in the Heuman letter, namely Center for Immigration Studies. However, I am not sure it would be a good idea to censor the hate mongers, as Mr. Neuman's letter suggests should be done. Who would be left for immigration supporters to debate with? Name Withheld's letter (10/22/ID) reminds us that hate has terrible human consequences. Only laws and procedures inspired by the wish to appease anti-immigrant bigots could require the wife of a US Citizen and mother of two lawful permanent resident children to wait for 14 months in Mexico while a US consulate decides her fate, without any assurance that her waiver application will be granted. Immigration policy today is based, not on the real world human consequences of pernicious US government licenses to persecute with Orwellian names like "287(g)" and "E-Vilify" (my spelling), but on the most cynical political Realpolitik of coldly calculating how many Latino votes can be given up in order to hold on to how many anti-immigrant white votes. Welcome to the Brave New Restrictionista World of Barack Obama, who promised not to scapegoat immigrants just around the time that Name Withheld's wife filed for her still unresolved waiver, and of DHS Secretary Janet Napolitano, who as Arizona governor was to immigration what former Alabama governor George Wallace was to civil rights, and is showing no sign of changing her spots.

Roger Algase. Esq.
New York, NY

Dear Editor:
Pace Mr. Murray's letter (10/21/09 ID), but in some states Americans will indeed do backbreaking work for $9.00 per hour, but in states where those Americans work on the books and taxes are as confiscatory as they are in New York or California, they do not. Hence Mr. Murray's shocking experience with "red blooded Americans" in a Maine eatery (where I presume blue-green blooded crustaceans no less American were being served). Milton Friedman reluctantly came out against illegal immigration after deeming it incompatible with the welfare state we are (by his lights) stuck with. I suggest that just as some other economists viewed corruption as a necessary evil insofar as it allowed economically beneficial behavior that was otherwise proscribed in over-regulated economies, so do illegal immigrants (or Americans working off the books) make the job markets of otherwise failing states like California (a far cry from the confident growing California of my youth), Michigan or New York continue to wheeze along instead of seizing and failing entirely. Better by far to craft an immigration system that eliminates the helot status of illegal immigrants without drawing in more. Some kind of effective enforcement mechanism needs to balance any moves towards mercy for those here deemed useful along with serious streamlining and rationalization of procedures for future immigrants. A just, efficient and clear system would go a long way towards removing incentives to cross illegally, especially if it privileges likely high performers. I weep to say that I have not seen one proposed lately.

Honza Prchal, Esq.
Birmingham, AL

Dear Editor:
Peter G.'s letter (10/21/2009 ID) makes a very good point in questioning what will happen with those given amnesty - will they be able to petition their relatives? If Comprehensive Immigration Reform (CIR - buzzword for Amnesty) is to work, with the benefits must come restrictions. In 1986, Amnesty beneficiaries were treated the same as everyone else. They should not have been, because the onslaught of Relative Petitions buried our already overburdened immigration procedural system. While CIR seems the only way to resolve the out out-of control underground contingent of undocumented, it must be carefully thought out. That won't happen. But here is what to think about: (1) No benefits conferred on any relative, ever, not even after receiving US citizenship; (2) The sole qualifying factor is to show they have paid the taxes, thereby establishing employment for at least one year; (4) Pass a Criminal Background Check; (3) Handle CIR candidates in a separate system that will not once again overburden USCIS adjudications, physically or financially; (5) Make it available to legal nonimmigrants; and (6) Make it simple. But the last Amnesty was too complicated. CIR's proposals so far have made it even more complicated. This should not be allowed to happen. It should be based on good things they have done, i.e. worked for at least one year and paid taxes; this would give them three points. Of course, that leaves out many illegals. What to do with them? Give the ones physically present in the US on a specific date a non-immigrant employment visa and make them work and pay taxes for three years to earn three points toward permanent residence. Make the documentation simple. Now, isn’t that simple? Now, let's see how the government can muck it up with their bureaucracy.

David D. Murray, Esq.
Newport Beach, CA

Dear Editor:
My husband and brother are both small business owners who actively hire Mexican workers. There are very specific reasons for this, but mainly it is because they want to work. When we go to the labor pool looking for workers, the Americans want to know, what will they be doing and for how long and how much will it pay and... then they have to think about it. You ask a Mexican if he wants to work and he says "si". There is no debate about hours or wages or the job and what they will or won't do. Unfortunately because of this many of these workers can be taken advantage of. Something we are careful not to do and now we have a reputation of being a good employer and people come to us looking for work. These guys aren't stealing work, they are just willing to do the work Americans won't do. They also work hard and work longer than anyone I have seen and do so without complaint. They want to make money to send it home, and eventually to go home, to live their lives there. But over the last few years knowing they can't cross the border, they bring their families here. We have created this immigration problem by thinking that the use of force is the solution. Force is never a solution and maybe if we were all better neighbors, not just country to country, but also individual to individual, and display a little more tolerance, we would not have these problems. I am an American just out of luck, I was born on the right side of the border. And the same applies to most Americans, in that we have not had to do anything to earn the rights associated with being American.

Name Withheld

Dear Editor:
It gives me great pleasure to be able to write this letter, however the situation is not a happy one, there are a lot of children in this country that listed as derivative beneficiary on their parents application for permanent residence, and after these children waited so long with their parents to obtain their GC, and go through the whole application process, and paying all the required fees including the 245i 1000 penalty fee, are being denied, and the wicked part of this is immigration are not following the retention rule by allowing the parents to file a new application and retain the old priority date, instead they are treating these children like criminals, and leaving them out in the cold. This must be address and these children must be able to retain their priority date and receive their green card.

Camelanikki

Dear Editor:
As always, David Murray's letter's comments (10/21/09 ID) are well taken. Thanks for the offer, but I had the "pleasure" of spending my first 5 years with the Border Patrol in El Centro, CA, and about 22 more years with the Patrol in Vermont and Maine. No one can be sure that a person is here illegally without talking to them, but after enough years dealing with the problem you do develop a "feel" for such things. Yes, there are jobs that Americans don't want to do, but illegal labor could be reduced if conditions and pay were better. It might cost a few pennies more for produce, but I believe a majority of Americans would pay it to see the immigration laws enforced. Also, many agricultural jobs might be mechanized if there wasn't such a pool of illegal labor. Personally, I'd have no problem with giving credit to aliens who worked here as non-immigrants, as long as they were well screened. As we should have learned, from the 1986 amnesty, the fraud rate in such programs is very high. I also believe that, like it or not, there'll be some form of legalization (limited, I hope) if we have any chance of real immigration "reform". Before we decide to do it, though, we have secure our borders and make sure that employer sanctions are enforced.

John F.
Baileyville, ME

Dear Editor:
I sympathize with the frustration in Linda Cogill's letters (10/21/09 ID) over the antiquated laws, cumbersome procedures and infuriating delays that made her wait so long for her green card and are making her wait another five years to apply to become a US citizen. But bashing illegals will only make her situation worse. Her flawed assumption is that if there is less focus on trying to deal with illegal immigration, there will be more resources available to try to make legal immigration work better for people like herself who are trying to follow the law. The problem with this Pollyanna way of thinking is that it assumes that the people who are shouting the loudest for a crackdown on illegals are interested in helping people immigrate legally. But, with a very few commendable exceptions, the people who are calling for vigorous enforcement of the laws against illegals are also against making it easier for legal immigrants. Just read Jim Roberts' letters, check out the FAIR or Center for Immigration Studies websites or turn on Lou Dobbs. Legal and illegal immigration are two sides of the same coin. By giving aid and comfort to those who despise people who are unable to obtain legal visas, her letters are hurting the cause of people who, like herself, have had to wait so long to become legal immigrants. The same people who want to kick out Jorge Gonzales (a made-up name), who came in illegally from Mexico yesterday, would be just as happy to send legal immigrants back to their native country tomorrow (unless they happens to be white, of course).

RCH

Dear Editor:
In the Article and Letters of (10/22/09 ID), if there is confusion, it is with the R. Algase letter and not the JRE article which plainly states that the broad purpose of the well reasoned study is to "examine the immigration issue from the perspective of biblical Christianity" and not to find "authority in the Bible for opposing amnesty" or claiming "to be putting God in charge of our immigration policy". Also, enforcing entry laws is not because of "dealing shrewdly"--It's about those who break them. But now that the RA letter is a Bible enthusiast, Isaiah 5 tells us about limiting populations and more. It is restrictionist for the R. Heuman letter to urge ID not to run other valid views on entry as these things affect all of US. It is entry that should be restricted, not free speech, contrary to the erroneous conclusions of B. Akers's article (b) "Yearning To Breathe Free: The Constitution Is Clear On Immigration" where it is clear from Article 1, Sec. 9 that government can regulate entry as "shall think proper to admit". Libertarians are idealists who take Freedom to impractical extremes which infringes on other's rights. To allow SPLC to identify "hate" groups is like the radical Brown Beret calling the patriot Minutemen terrorists. One has to wonder if the R. Yang letter has the same policies it urges for US regarding sharing his residence out of "love" and advocating free entry for all and why would there be walls, fences or lot boundaries? These and the letter's ideas on trade are globalist in nature which enrich profiteers, enslaves workers and impoverishes nations. We need more real Americans as Theodore Roosevelt said in his classic 1915 speech [Google to read] "Hyphenated Americanism".

Jim Roberts

Dear Editor:
Regarding Jim Roberts letter (10/21/09 ID) Chinese Exclusion Act and likewise apartheid laws were enacted nothing but to satisfy selfish , shameless and racist descendants of immigrants who think they're as the true owners of the land and they didn't want and have to compete with others just because their "birth right" in America. California, New Mexico and other parts of USA were indeed the lands of the true native brown skin people of America not of descendants of white illegal Caucasian trespassers from Europe whom annexed and stole their lands and properties. I apologize if I offend anybody, but this is the fact of our dark past history. It's absurd, outrageous and ridiculous. And today, the Chinese and other foreigners don't have to set foot on US soil to compete with Americans. Businesses move to those countries bring American jobs to them instead. What we can do as Americans then? Empower ourselves, equip ourselves with better skills, education and plus values instead whining and cursing on our competitors and become ranting xenophobes here, and blaming all of our problems on others except looking at the mirror first. Consumers love cheaper products and services and more will welcome competition and choices and there are nothing wrong for any businesses trying to cut costs and pass the savings to their loyal consumers. If businesses are greedy for more profits by exploiting cheaper labor, what about consumers who buy their products and get the savings too? The hypocrisy of xenophobes here is unbelievable, I have suggestion for all of them, stop buying imports, buying fresh foods or groceries and eating out on restaurants if they hate foreigners who "steal" their jobs. Do what you preach buy made in USA consistently and be happy to pay extra price without any complaint to support our fellow Americans.

Robert Yang


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. The views expressed in letters and articles do not necessarily represent the views of ILW.COM.

Publisher:  Sam Udani    Legal Editor:  Michele Kim                        ISSN:   1930-062X


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