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Immigration Daily

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Immigration Daily
Arthur L. Zabenko, Esq., Legal Editor
March 21, 2002
Previous Issues

Editor's Comments

Your editor had the pleasure of attending the second annual New Jersey Institute for Continuing Legal Education (ICLE) Seminar in Newark, New Jersey. The program consisted of panels discussing local procedures in Newark, processing at the Vermont Service Center, Labor Certification and Asylum. While no bombshells were dropped, there was much useful information. The moderator repeated the news provided at the recent AILA meeting in Washington that the INS plans to have on-line filing of I-90s and I-765s available by the end of the fiscal year. There has been some variation from region to region on what constitutes a pattern of advertising for Reduction in Recruitment (RIR) cases. Dolores DeHaan, Certifying Officer for region II said there is now written guidance from Washington that the pattern of recruitment should include one print ad plus advertising normal for the occupation which may include an ethnic publication, on-line ads, use of employment agencies, and recruiting on college and university campuses, and job fairs. Also, where recruitment has not been adequate certifying officers will not be able to send the case back for a ten day job order and one Sunday ad to cure the deficiency. It will be returned to the queue of regular cases based on the priority date. For cases in New York state which is currently working on 1998 this will be a significant delay. Perhaps the most intriguing news was the absence of scheduled speakers William Yates, and Vermont Service Center Paul Novack, Jr. Both were summoned to Washington at the last moment, possibly foreshadowing more reassignment of personnel at the INS. While time and travel limitations do not permit us to attend all immigration related educational opportunities, we gladly carry announcements of upcoming seminar, conferences and symposia. Send to

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ILW.COM Featured Article of the Day

Change in Automatic Visa Revalidation Creates Risk for Third Country Nationals Traveling to a US Consulate in Canada or Mexico to Apply for a Visa
George N. Lester writes about the recent changes in the regulations regarding automatic revalidation of visas.

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Immigration News

Court Finds No Equitable Estoppel or Exceptional Circumstances
In Rojas-Reynoso v. INS, No.00-1611, (1st Cir. Dec. 21, 2000), the court upheld the Immigration Judge's ("IJ's") and the Board of Immigration Appeals's ("BIA's") denial of the Petitioner's motion to reopen deportation proceedings. The court found that the Petitioner did not establish an equitable estoppel claim to excuse his failure to depart by his scheduled date of voluntary departure nor did his alleged excuse for failure to timely depart constitute the "exceptional circumstances." The court has amended its December 21, 2000, opinion.

Aiding and Abetting Transportation of Aliens
the court in US v. Nolasco-Rosas, No. 01-50022 (5ith Cir. Mar. 20, 2002), found that where two material witnesses who admitted they had entered the US illegally testified to seeing Defendant's truck before entering vans in which they were transported, Border Patrol agents testified to seeing Defendant's truck traveling in close proximity to vans in which illegal aliens were found, and the CB radios in Defendant's truck and the vans were tuned to the same channel, there was sufficient evidence to convict Defendant for aiding and abetting the transportation of aliens by others.

Tancredo on the Budget and Immigration
Rep. Tancredo, in commenting on a budget resolution, addresses immigration issues including recent immigrants who claim dual citizenship, INS Commissioner Ziglar's qualifications and ability, testimony presented to the House Subcommittee on Immigration regarding the approval notices for terrorists and Sec. 245(i).

Comment on VWP Carrier Form
The INS has published a comment request on form I-775, Visa Waiver Program Carrier Agreement.

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Immigration in the Press

Bush Leans to One Border Agency
According to UPI, at a meeting Tuesday of the Homeland Security Council, President Bush was offered three options for border security. One was to form a new border agency that would combine the Customs Service and the INS, another proposal would leave the agencies separate, but reorganize the INS into two bureaus one to focus on enforcement and the other on servicing immigrants and a "third option would be to leave [the agencies] as they are, which is not a viable option."

Letters to the Editor

Dear Editor:

I am an attorney who practices business immigration and have subscribe.aspbed to your Immigration Daily for the past year. In addition, I am a first generation Arab-American who has learned first hand the valuable contribution immigrants, both legal and illegal, can make to this country. Yesterday, I thought I could not bear to read yet another letter about 245(i), but today here I am writing one myself. What happened in the meantime to cause this change of heart? I received notification from the Ohio Department of Job & Family Services that it has NOT EVEN BEGUN PROCESSING an application for labor certification our office filed on May 25, 2001. It has been nearly a year and no action has been taken whatsoever! And the sole reason for this is the deadline for 245(i), which fell on April 30, 2001 and completely destroyed our already over-burdened labor certification system, and ruined any hope of the DOL implementing the PERM system that is so greatly needed to simplify a ridiculously confusing and over-burdensome process.

Here's the real irony, however. My understanding of 245(i) is that it is supposed to be about "recognizing that families should not have to be split up when they are in this country already, nor go back to their country for immigration status" (at least according to the White House's statement reported in the March 20, 2002, issue of Immigration Daily). But my client, who has been here legally for six years as an H-1B, and four years as an F-1, my client who has spent 10 years here legally, contributing all the while to our economy in a variety of ways, now has to leave the United States because the ODJFS could not process his application fast enough. And the single reason for such a delayed processing time is the amnesty given to those who broke the law, who commit fraud on a regular basis by lying about their status to countless government entities, and who have probably contributed less to this economy than my client.

Why is our country so intent on protecting those who have behaved so dishonestly, and worse still, why is our country so intent on protecting them to the detriment of those who have obeyed all the rules and contributed a great deal more (through extremely high tuition, living expenses, as well as through gainful (and honest) employment)? Why is the White House more intent on preventing illegal immigrants from having to return to their home countries to obtain immigration status, when legal immigrants have to do the very same thing, solely because our system completely broke down when 245(i) was thoughtlessly implemented? If 245(i) is supposed to be about justice for those who persevered in their illegal status despite all obstacles, what about the justice for those who have obeyed every rule and have done nothing but devote 10 years of their life to the American Dream? Justice has completely failed my client, and the countless others like him whose needs and concerns have been subordinated to those of illegal immigrants who have contributed next to nothing in comparison. Where is the special legislation offering relief for my client, and the others like him who are suffering due to 245(i)?


Dear Editor:

I certainly do realize that families are being separated by the length of time it takes to process visas. However, what Pavla Cervova fails to consider is that mini-amnesties such as the issuance of Temporary Protected Status or 245(i) are a factor in why it now takes so long to get visas for family members. Every time Congress or the President decides to circumvent the usual immigration process by favoring a particular group, it makes MORE work for an already overburdened and poorly managed INS. Apparently, Ms. Cervova believes that somehow the INS (or any bureaucracy) is going to magically and speedily do this new work without shortchanging any of its usual functions. It definitely isn't so.

The practice of exceptions becoming the rule has to stop or the immigration situation will only get worse for those Ms. Cervova says she is interested in helping. (Or, perhaps she's only interested in helping her own relatives.) It will also result in a complete breakdown of any orderly immigration process as people realize that the "rules" only apply to those stupid enough to follow them.

Ali Alexander

Dear Editor:

The Immigration Daily issue of March 18th was very interesting and informative.

First, I liked the inclusion under Editors Comments of a transcript of the presidential press conference of March 13th.

At that press conference, the president was questioned on the absurdity of a government law enforcement agency issuing visas posthumously to two of the most notorious terrorists of all times, which was interesting, and he was also asked about the illegal immigration issue.

His answer to this latter question, which by now seems like a mantra, was much the same as on other occasions: The thing weve got to do is figure out how to make sure willing employers are able to match up with willing employees. To this he added: And so well work were making progress; 245(i) is good progress.

I think if I were a member of the White House press corps I would have asked: Mr. President: If you think this is the solution, as you have now said so many times, why dont you implement something to put such a policy into effect?

The President characterized what is being legislated regarding 245(i) as good progress. It is progress, but unfortunately it represents progress mostly for a relatively few immigrants with close family ties here in this country. I am fearful that the president will tout this 245(i) as much more than it is in order to claim that he is fulfilling the promises he made to the Mexican president on immigration before September 11.

Next, in the Immigration Daily of March 18, under the ILW.COM Featured Article of the Day was a book review: Buchanan Misses the Mark: Latest Anti-Immigrant Book Doesnt Ring True, which (RIGHTLY) concludes that "Pat Buchanans book, Death of the West, is a story based on unreasonable fear....

Unfortunately, the history of all immigration into this country has been one accompanied by unreasonable fears as to how each wave of new immigrants will spell the doom of our nation and todays speculations are no different.

When the potato famine of the 1800s brought into this country the Irish immigrants, mostly from the south of Ireland and mostly of the Roman Catholic faith, discrimination abounded. (I surmise Mr. Buchanans ancestors may have been included in those immigrant numbers.) This immigration gave rise to a secret society, the Know-Nothings, who persecuted the Irish immigrants not because of their origin or culture but mostly because they were Roman Catholics. The Know-Nothings labeled the Irish Catholics as Papists and claimed their agenda was to have Rome and the Pope take over our country. So much for that fear. Todays xenophobic arguments are about the take over of race and culture.

Finally, in Letters to the Editor, in the March 18th issue was a letter from Ms. Christine Flowers in which she wrote some very constructive comments about the adjustment of status and how some are affected by it, and about the 3-10 year bar. What an excellent letter!

Richard E. Baer, D.V.M.

Dear Editor:

"Yesterday, I was waiting in a line at the supermarket five people deep. Some dude showed up and went to the front of the line. The clerk told the guy that even though he had jumped the line, if he tipped her a dollar, she would let him get away with cutting. Before I got to the cashier nine more people pulled this same trick. After finally checking out, I realized, I should have just went to the head of line, laid my dollar down, and got of the store a young man."

Every day I talk with clients who entered this country "without inspection" even though they had approved visa petitions. These individuals decided waiting for an available priority date was to much of a hassle. Thanks to 245(i), there is a strong incentive pulling these line jumpers to the United States. Why wait overseas when you can just show up. I admire those individuals who have enough respect for the rule of law that they would prefer years of waiting over entering this country illegally. I believe that as a generalization those people who follow the letter of law, as opposed to picking and choosing which laws they wish to follow, are more likely to be law abiding citizens. We know that every single person that entered this country "without inspection," by definition, violated the law to some degree. This is not so with people who enter this country through consular processing. Knowing that every EWI began their life in this country as a law breaker, how much logic do you have to use to predict which group is more or less likely to follow the laws later on. I say that instead spending our finite resources on rewarding people who do not want to follow the rules, we should help out those people waiting for consular processing by expediting their already tremendously long waits. Why give preferred service to cheaters? 245(i) undermines the State Department's system of priority visas.

Connor Robertson

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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.
Editorial Advisory Board
Marc Ellis, Gary Endelman

Copyright 2002 American Immigration LLC, ILW.COM