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Immigration Daily

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Immigration Daily August 9, 2002
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Editor's Comments

A State Department web page (click here for web page) offers information on the status of pending J-Visa Waiver applications. This is one more way in which technology has already impacted immigration law. Indeed, without the fast speed and low cost which modern technology makes possible, Immigration Daily could not come to you every day for free.


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Featured Article

The ABC's Of Immigration - New Child Age Out Legislation
Greg Siskind and Amy Ballentine write about the new child age-out legislation.

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Immigration Law News

BALCA Says CO Relied On Questionable DOT Code
In the Matter of City Tours & Travels, No. 2001-INA-148, (BALCA, Jul. 23, 2002), the Board of Alien Labor Certification Appeals said that the duties as described in ETA Form 750A, Item 13 were more consistent with a Dictionary of Occupational Titles job description with an SVP of 6 (upto 2 years experience required), whereas the Certifying Officer had classified the opportunity as another job description with an SVP of 5 (upto 1 year of experience required). The matter was remanded to determine through another Notice of Findings if a "bona fide" job opportunity existed.

Adverse Credibility Determination Involving Failure To Evaluate And Discuss Relevant And Potentially Corroborative Evidence Is Reversible Error
In Gao v. Ashcroft, No. 01-3472 (3rd Cir. Aug. 7, 2002), the court found that the Immigration Judge (IJ) made an adverse credibility determination without substantial evidence in the record on Petitioner's claim of persecution in China because she was a messenger for (not a practitioner of) Falun Gong, and that the IJ completely ignored highly relevant and potentially corroborative evidence, the failure to evaluate which, and discuss which, was reversible error.

Double Counting Appropriate Under Section 1326
In US v. Garcia-Sanchez, No. 02-4084 (4th Cir. Aug. 8, 2002), the court said that double counting of a prior conviction was appropriate under the Sentencing Guidelines in the context of 8 USC 1326.

Pleading Guilty On Day Of Trial Reduces Downward Departure
In US v. Chavez-Jacobo, No. 01-1395 (10th Cir. Aug. 7, 2002), the court said that since Defendant did not actually plead guilty to unlawful reentry by a previously deported aggravated felon alien until the day of the trial, virtually no government of court resources were conserved and that under such circumstances the district court did not err in denying downward departure in sentencing.

EOIR Seeks Comments
The Executive Office for Immigration Review of the Department of Justice seeks comments of "Fee Waiver Request."

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More Power For Government Is Not Solution To Terrorist Problem
A columinst at the Louisville Courier-Journal comments that "A future White House may use the power that the Bush administration has grabbed quite differently. Consider how Republicans, still seeking revenge nearly 30 years after the Watergate scandal drove Richard Nixon from the White House, used the Democratic-inspired independent counsel law of the 1970s to go after and ultimately impeach President Clinton ... it has yet to be proven that our civil liberties were responsible for the terrorists' attack rather than the fact that there were massive and multiple failures by various federal agencies -- the same agencies that, ironically, have been given even more authority under the new rules to collect data they probably won't read and to intervene in many other ways in our private lives."

Undocumented Immigrant Succeeds
Long Island Newsday reports on an undocumented immigrant's success story.

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Help Wanted - Immigration Attorney
Immigration Attorney needed by busy firm in Stamford, Connecticut. Company paid health insurance after 3 months. Please respond with resume, salary requirements, and inquiries by fax to 203-547-6124 or by email to

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Letters to the Editor

Dear Editor:
Immigration Daily readers will be interested to know that Thar Abdeljaber, the Palestinian legal resident who was placed in removal proceedings for having failed to inform the INS of a change of address, had a good day in court on Monday, August 5, 2002, according to an article in The Atlanta Journal-Constitution on August 6. Immigration Judge William Cassidy, persuaded by the repondent's assertion that "Nobody told me about this, ever," held that removal would apply only to aliens who were aware of the law and "willfully" broke it.

Now that the requirement of INA Section 265 is much better known than it was just a short while ago, a future argument of unawareness of the law may be difficult for immigration judges to accept. Promptly downloading Form AR-11 from the INS web site, and using it as needed, would be a good idea.

Carl R. Baldwin

Dear Editor:
Thank you for featuring Jose Latour's article "Nursing Shortage Blamed For Boy's Death".

Unfortunately, this tragic incident is far from isolated. As U.S. nursing schools close their doors and the national shortage of RNs continues to grow, deaths in hospitals due to mistakes in treatment are responsible for more deaths than autmobile accidents.

Mr. Latour is correct. All the legislation in the world is not going to cure the problem if nursing is no longer a popular career choice for Americans. Our country had a very successful temporary visa program for RNs from 1952 to 1995. In each of these years, 5,000 to 10,000 nurses entered the U.S. using temporary visas. This program should be restored as a necessary first step in addressing the nursing shortage.

Last year, I testified before the Senate Immigration Subcommittee about this problem, and assisted the staff of Senator Sam Brownback (R-KS) in drafting legislation to restore the temporary visa problem. The result was the "Rural and Urban Healthcare Act of 2001" (S.1259) which was introduced in the Senate on July 27, 2001. Unfortunately, because of pressure from the nurse unions, this bill may never be considered by the Immigration Subcommittee.

How many deaths will it take before Congress realizes that the health care of Americans is more important than taking sides in the constant bickering between health care providers and nurse unions?

Carl Shusterman

Dear Editor:
I applaud Jose Latour's article on the nursing shortage today and the impotence of Congressional solutions to date. The H-1C program is an example of much hype around a program so limited as to be useless. However, I disagree strongly with the recommendation that the H-1A program be reinstated.

The H-1A program was, for many nursing homes and hospitals, unuseable because of the onerous certifications that had to be made. As one nursing home administrator told me, "If I certified that our quality of care was affected because of our shortage of nurses, the state would pull our license!". Given a choice between green card and H-1A visa, every one of my clients went for the green card because it was cheaper, faster and less risky for the employer.

It would be far better to amend the H-1B program to provide specifically that Registered Nurses - like fashion models - are by definition professionals coming to positions which require that training and experience. Let's stop this ridiculous quibbling by the INS about "does this hospital job really require a BSN?" That would make the H-1B program useable for nurses, and spare hospitals the burden of even more restrictive attestations.

Leslie K. L. Thiele
Whiteman Osterman & Hanna LLP
Albany, NY

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Editorial Advisory Board
Marc Ellis, Gary Endelman

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