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Immigration Daily July 22, 2002
Previous Issues

Editor's Comments

We are pleased to announce that George N. Lester IV will be writing a series of articles on H-1B visas for Immigration Daily. George is the author of the chapter titled "Specialty Occupation Professionals" in Business Immigration Law: Strategies for Employing Foreign Nationals by Rodney A. Malpert and Amanda Petersen published by Law Journal Press. He is also leading a seminar course at ILW.COM titled "Strategies for Business: Employing foreign nationals on Hs, Ls, TN and other visas." Through his article series and seminar series, we hope to bring more information on this important subject to the immigration community.


Deadline For Business Immigration Seminar Is Wednesday, July 24th

Wednesday, July 24th is the deadline to sign up for ILW.COM's new seminar on H-1Bs, TNs, L-1s, O-1s, P-1s, and other non-immigrant employment visas. Attorneys, paralegals, in-house counsel, HR representatives and others will find this an excellent opportunity for an overview of this important area of immigration law. For a detailed course outline, and speaker panel bios, please click on the links below.

For more info, or to sign up online, please click here.
For more info, or to sign up by fax, please click here.

Featured Article

H-1B Series: Introduction - The H-1B "Specialty Occupation" Program - Good for Employers, Good for the U.S.
George N. Lester IV begins a series on H-1B visas with an introduction to the H-1B program.

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Immigration Law News

BALCA Says Unsubstantiated Assertions Do Not Overcome Adverse Business Necessity Finding By CO That Experience Required Was Excessive
In the Matter of Daniel J. Gladen, No. 2001-INA-00119 (BALCA, Jun. 6, 2002), the Board of Alien Labor Certification Appeals said that the Employer had done no more than make unsubstantiated assertions that the position for Child Tutor required two years experience, and that in order to demonstrate business necessity, an employer must show factual support or a compelling explanation.

Washington Third Degree Rape Is Aggravated Felony
In US v. Yanez-Saucedo, No. 00-50606 (9th Cir. Jul. 8, 2002), the court held that under a common, generic, and contemporary meaning of rape, Defendant's conviction under State of Washington statute for engaging in non-consensual sexual intercourse constitutes an aggravated felony for sentencing under the immigration statute.

Arizona Unlawful Use Of Means Of Transportation Is Not Aggravated Felony
In US v. Perez-Corona, No. 01-10461 (9th Cir. Jul. 8, 2002), the court held that since the Arizona offense of "unlawful use of means of transportation" does not require a showing of intent to deprive the owner of the means of transportation of the use and possession of his/her property, it is not an aggravated felony under the immigration statute at 8 USC 1101(a)(43)(G).

Signing Form I-871 Overcomes Defense Based On Reasonable Belief to Reenter US With Unexpired Resident Alien Card
In US v. Sandoval-Gomez, No. 01-2300 (7th Cir. Jul. 8, 2002), the court held that based on testimony from a police officer and an INS agent, and the signing of INS Form I-871 by Defendant, a rational trier of fact would conclude that Defendant intended to reenter the US without the Attorney General's express consent (the Defendant had contended that he held an objectively reasonable belief that he had the permission of the Attorney General to return to the US due to the fact that he had lawfully retained his unexpired resident alien card when he was deported earlier).

Sentencing Disparity Between Southern District Of California And Rest Of Country Is Not Basis For Downward Departure
In US v. Sanchez-Reyna, No. 01-2190 (3rd Cir. Jul. 12, 2002), the court said that the sentencing disparity between the sentences imposed a plea of guilty for illegal reentry in the Southern District of California and the rest of the country does not constitute a legal basis for downward departure.

In Absentia Deportation of Petitioner Late By Two Hours For Hearing Who Was Beneficiary Of Immediate Relative Petition Held To Be Abuse Of Discretion
In Singh v. INS, No. 01-71043 (9th Cir. Jul. 12, 2002), the court found that the INS should not deny reopening of an in absentia deportation order where the denial leads to the unconscionable result of deporting an individual eligible for relief from deportation, and found that the Board of Immigration Appeals abused its discretion by entering an order that was arbitrary and irrational. The Petitioner in this case had been late by two hours for his deportation hearing at the time he had become a beneficiary of an immediate relative petition filed by his US citizen wife.

Assistant Attorney General On INS Detainees
In a letter to the Senate Committee on Governmental Affairs, the Assistant Attorney General gave the most detailed information yet available on post-9/11 INS detainees. (Courtesy Dan Kowalski of Bender's Immigration Bulletin.)

INS Communique
INS released its Communique which quotes INS Commissioner Ziglar: "We cannot judge immigrants by the actions of terrorists."

INS Committee Meeting Notice
INS gave notice of a meeting of its "Airport and Seaport Inspections User Fee Federal Advisory Committee."

Keep on top of the latest in immigration law! Attend ILW.COM seminars! You can attend ILW.COM phone seminars from the convenience of your office! For more info on the seminars currently available, please click here:

House Legislation Splits INS Functions Into Two Departments
The Washington Post reports that House legislation on the Homeland Security Department "proposed moving only law enforcement functions of the INS into the new department, and keeping other INS responsibilities, such as the processing of visas and citizenship requests, at the Justice Department."

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Help Wanted: Paralegal
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Letters to the Editor

Dear Editor:
As a follow up to my article in the daily on July 16 ("Immigration Alert! Failure to Inform INS Promptly of Change of Address May Land You in Removal Proceedings"), readers should know about the 3/14/02 report on teleconference, posted on AILA InfoNet, Doc. No. 02032034. It makes it clear that nonimmigrants have the same obligation to inform the INS of a change of address that LPRs have.

"INS has confirmed that the requirement [of INA Section 265] applies to all nonimmigrants in the U.S. If a nonimmigrant has an application pending with the Service, he or she should advise the office where it is pending of the address change using the preferred method of that office. If no case is pending, the nonimmigrant should use Form AR-11... All permanent residents must notify INS of changes of address using Form AR-11. This obligation continues until the person becomes a U.S. citizen..."

In other words, the Immigration Alert is universal.

Carl R. Baldwin

Dear Editor:
I am writing in response to yesterday's Letter to the Editor submitted by attorney Liem Doan, in reference to your recent carrying an article on my comments on the CIS "report" on the impact of foreign students in the U.S. In his letter, Mr. Doan referred used a variety of words to describe my piece: "smirking", "personal vent piece", "amateurish". Worst of all, and to my chagrin, he didn't like the Smiley Faces I insert into my commentary.


If Mr. Doan had done his homework before socking it to me, he would have easily found the report in question (was finding that monumental a task?) and (by clicking my link below the article) understood why my articles are so completely different than the other articles appearing on ILW. Let me clarify:

1- he is absolutely correct in noting that my writing "does not meet the standard of your typical articles". That is because the articles you carry are from my daily opinion column, Port of Entry, which appears on our law firm's website, It is precisely my "personal vent piece" and I shamelessly smirk there...daily. Many thousands of people come daily to watch me smirk. It's called an Editorial.

2- yes, I am an immigration attorney and, yes, I am an advocate for immigration. My quarrel with CIS is not with their right to be an anti-immigration organization. My quarrel with CIS is their purporting to be a neutral, non-biased think tank and their issuance of purportedly unbiased "reports" in an attempt to advance their agenda with Congress and the public. They call themselves "pro-immigrant" on their website. That's a big, fat lie.

Finally, I want to point out that while all of the articles written for ILW.COM are geared for a professional readership -- immigration attorneys -- my target audience is a little different. The folks who read my column are immigrants, INS officers on the front line, human resource professionals, and Americans who work with, care about, or love immigrants. They actually do enjoy the informality of my writing style and while I too can communicate in the "traditional, lawyerly" way that most other lawyers choose to present their point of view, I prefer my way.

So Liem, Bubba, next time do your homework before you launch your missiles and try some Smiley Faces with your "ad hominem". Your clients will no doubt like you better...(-:

Jose "The Amateur" Latour

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 Letters and articles may be edited and may be published and otherwise used in any medium. Opinions expressed in letters and articles do not necessarily reflect the opinion of ILW.COM.

Editorial Advisory Board
Marc Ellis, Gary Endelman

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