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Immigration Daily

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Immigration Daily
Arthur L. Zabenko, Esq., Legal Editor
Nina Manchanda, Esq., Assistant Legal Editor
Marc Ellis, Esq., Chat Transcripts Editor
May 11, 2001
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Editor's Comments of the Day

In Chang v. US, No. CV-99-10518-GHK (AJWx)(C.D. Cal. May 3, 2001), seven aliens and 29 limited partnerships which benefited from alien investors brought an action against the INS challenging the issuance and application of Precedent Decisions regarding EB-5 investor petitions. The Plaintiffs asked the court to declare the four Precedent Decisions invalid on the basis that they amounted to ruelmaking without notice and comment in violation of the Administrative Procedures Act (APA), constituted an abuse of discretion, exceeded statutory authority, violated the Due Process Clause, including the implied Equal Protection component of the Fifth Amendment. They also argued that the application of the Precedent Decisions to the adjudication of the individuals' petitions would be "retroactive," and that the INS should be estopped from denying the individuals permanent resident status.

The court dismissed the claims of the partnerships on the ground that their alleged injury did not fall within the zone of interests sought to be protected by the EB-5 statute, so they had no standing to with respect to the APA claims. The court then dismissed the claims of six of the seven aliens who had had petitions for conditional permanent resident status granted, but whose petitions for removal of the condition had not yet been adjudicated. This left only one plaintiff whose petition for removal of the condition on his permanent resident status was denied.

Plaintiff argued that since the Precedent Decisions contradicted prior unpublished decisions issued by the INS's Administrative Appeals Office (AAO) and internal General Counsel opinions, and the court should find that they amounted to a reversal in previous policy that required the INS to go through a formal notice and comment period. The court concluded that the Precedent Decisions constituted an interpretive rule, and the fact that the INS did not engage in notice and comment rulemaking was not a violation of the APA, and abuse of discretion, an action exceeding authority, or a violation of Due Process or Equal Protection. The court also dismissed the claim that because the INS granted the initial petition for conditional permanent resident status, it should be estopped from denying the removal of the condition because Plaintiff failed to show any affirmative misconduct on the part of the INS.

The court did find that because the INS had approved Plaintiff's petition for conditional status, but evaluated the petition for removal of the condition under the Precedent Decisions, it had effectively changed the rules of the game. Accordingly, the court concluded that a retroactivity analysis was required to determine whether application of the Precedent Decisions to Plaintiff's petition was permissible. The court informally asked the INS if it would voluntarily accept a remand of the petition in order to supplement the record with consideration of the degree of burden on the parties. The INS declined. The court ordered the case remanded to the INS to consider and compile an administrative record as to whether application of the Precedent Decisions would result in an improper retroactive application of law.

Tip of the Day


As the hub for immigration information, ILW.COM provides JOBS.ILW.COM to meet the needs of immigrants visiting the site and employers who employ them. Jobs for Immigrants is a place for immigrant job seekers to post resumes and for companies that are willing to sponsor immigrants to post jobs and search for potential employees. Immigration law and employment are intimately intertwined and a persistent reality for the employment of non-US workers in the US. Attorneys who handle employment based immigration cases may want to include on their website a link to JOBS.ILW.COM as a service to both their employer clients and the individuals they hire.

ILW.COM Featured Article of the Day

Essential Worker Shortage Continues
The American Immigration Law Foundation writes that as long as the national unemployment rate remains at or below 5%, allowing essential workers from abroad to enter the American workforce is one possible solution for supporting and maintaining the US economy.

Cases of the Day

EB-5 Precedent Decisions Do Not Violate APA
[You will need Acrobat to read this file]
In Chang v. US, No. CV-99-10518-GHK (AJWx)(C.D. Cal. May 3, 2001), the court found that the INS issuance of Precedent Decisions interpreting the EB-5 investor program did not amount to rulemaking without notice and comment and did not violate the Administrative Procedures Act. AILA has issued a press release about the decision. [Courtesy of Stephen Yale-Loehr]

Congressional News of the Day

Acting Commissioner Rooney's INS Budget Testimony
[You will need Acrobat to read this file]
In testimony before the House Committee on Appropriations, Subcommittee on Commerce, Justice, State and the Judiciary, Acting INS Commissioner Kevin Rooney presented the Bush Administration's request of $5.5 billion for the INS.

Another Cosponsor for Extension of 245(i)
Sen. Grassley has been added as a cosponsor for S. 778 which would extend the deadline for eligibility for 245(i).

INS News of the Day

INS Memo on 245(i) Removals
A memo from the Executive Associate Commissioner, Office of Field Operations states "field offices shall not initiate removal proceedings against an alien who is eligible for adjustment under 245(i) if such action is based solely on the filing of an immigrant petition, labor certification application, or application for adjustment of status filed by or on behalf of that alien on or after the date of this memorandum...." [Courtesy of Karen Meade]

INS Moves to Terminate Removal Proceedings
In response to a lawsuit filed by Karen Meade the Cleveland INS office will file motions to terminate removal proceedings against aliens eligible for adjustment under 245(i).

Immigration News of the Day

Laid Off, With No Place to Call Home
According to Newsweek, thousands of foreign workers on H-1B visas were supposed to solve Silicon Valleys crippling tech labor shortage. Now they need help.

This Day in Immigration

From May 11, 2000

"Effective July 1, 2000, before a court in the state of Georgia can accept a guilty plea from a non-US citizen, the court must determine whether the plea is freely entered with the knowledge that it may have an impact on the persons immigration status.Since the enactment of AEDPA and IIRIRA aliens have pleaded guilty to what seemed like a minor offense or accepted a plea bargain agreement only to find themselves subject to removal by the INS.In some cases the aliens have had to try to reopen the case and withdraw the plea because they were unaware of the consequences when they made it. This may benefit lawyers, but it is a waste of resources of the alien and our judicial system.Requiring that an alien be aware of the immigration consequences of a guilty plea in order for the plea to be considered freely entered is a matter of fundamental fairness. Text of Legislation."

The ILW.COM archive of immigration information is 20,000 pages and continually growing. To search the archive by date, click here, or search by entering a keyword:

Letters to the Editor

Dear Editor:

After reading Margaret Wong's article, "Navigating The Immigration and Naturalization Process" about the need for personal endurance to qualify for US residency or citizenry, the question that begs an answer is "why the long wait?" The waiting conditions for permanent residency are a farce as are the conditions placed on people seeking such. Alien marriages to citizens are still largely frowned upon with the burden of honesty lumped on the alien and not on the citizen. The point is that Congress hardly debates the future and direction of US immigration on the basis of implementing flow controls or population projects. This type of decision making has been seemingly handed to INS, who under the guise of policy making, has confounded the nation's immigration blue-print that existed some decades ago. The faltering US economy is tied to immigration numbers, and Congress needs to urgently implement new immigration bills that will restore productivity and the population. The present convolution of visas and permanent residencies is the starting point of new bills.

Neil Reed

Classifieds of the Day

ILW.COM carries classified ads for immigration related positions. $100 for single insertion, $250 for five consecutive insertions, payable in advance. Contact us for details. We will also carry for no charge announcements such as immigration related events. We reserve the right to refuse any ad and to make minor editorial and formatting changes. Send to

Fragomen, Del Rey, Bernsen & Loewy, is the largest law firm in the country practicing exclusively in the area of immigration and nationality law. In order to meet the demands of our growing business, the firm is actively recruiting for experienced paralegals in its NEW YORK, NEW JERSEY, STAMFORD and CHICAGO offices. The ideal candidate has business immigration experience or a human resources background dealing with immigration issues. Must have excellent verbal and written communication skills and be able to perform multiple tasks in a fast-paced environment. The firm offers superior salaries and exceptional growth opportunities. Please submit cover letter and resume to Anne-Rose van den Bossche, Esq., Fragomen, Del Rey, Bernsen, & Loewy, 515 Madison Ave, New York, NY 10022 or fax 212-750-1121

On Friday May 18, 2001, the Philadelphia Chapter of the American Immigration Lawyers Association will host "It Takes a Lawyer: Representation of Families in Nonimmigrant and Immigrant Visa Proceedings Before the INS, State Department and Immigration Court" Topics to be covered include Ethics, Nonimmigrant Visas for Family Members, Waivers, Litigating Family Based Immigration Issues, Affidavits of Support, Consular Processing, VAWA issues and Bona Fide Marriages. For registration information, please call Valentine Brown at 856-384-9902.

2001 AILA Annual Conference on Immigration Law June 20-24, 2001, Marriott Copley Place & Westin Copley Place Boston, Massachusetts. The Preeminent Law Symposium on Immigration and Nationality Law With an expert faculty and cutting edge programs, the AILA Annual Conference is an unbeatable continuing legal education symposium in terms of scope and value. This event brings together thousands of immigration law practitioners, leading immigration law experts, government officials, and other legal professionals from around the country. Participants spend three and one-half days attending educational sessions and workshops focusing on the latest developments and issues in immigration and nationality law. Attendees can develop their own individualized CLE conference by choosing courses from a wide variety of programs: Core Curriculum, Substantive Practice, Special Mini Tracks, Mock Hearings and Interviews, Litigation Skills Training, Practice Roundtables and Government Agency Open Forums. For detailed program information, and registration forms, please visit the conference portion of the AILA Web site at American Immigration Lawyers Association, 918 F Street, NW, Washington, DC 20004, Tel: (202) 216-2400, Fax: (202) 371-9449. Contact: Conference Department or E-Mail

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. Correspondence to Letters may be edited and may be published and otherwise used in any medium.
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