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Immigration Daily

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Immigration Daily August 14, 2002
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Editor's Comments

There is much news in immigration law today. INS announced the usage numbers for the H-1B program for Fiscal 2002, and the numbers give cause for concern. Approved and pending petitions as of June 30, 2002 were about 78,000. The implications for Fiscal 2004 (which begins October 1, 2003) are clear. Presuming that program usage continues then at levels seen this year, the H-1B cap of 65,000 for Fiscal 2004 will be hit by Spring, and if history is any guide, even earlier, perhaps by January 2004. INS also proposed for comment an online case status system which will permit individuals and their representatives to check the status of any case or group of cases on the internet. Missing from INS's proposal is any way for employers to receive information on their employees. Software developed by immigration law firms and software companies in immigration has historically been based on employers' need for this important information. Employers and their representatives may want to comment on this INS proposal to express their views. There is much other news - EOIR/INS proposed a rule implementing the Supreme Court's St. Cyr decision, Attorney General Ashcroft announced an "Entry-Exit Registration System" will go into effect on September 11, 2002, and news from INS, BALCA and three cases from the circuits. Last, but by no means least, in today's Featured Article, Gary Endelman writes that elitism is the cause of the complexity in immigration law, which complexity in turn "frustrates enforcement and encourages disrespect for the law itself." Commenting on the fantastic proposals from the DOJ for aliens to register every change of address with the INS, Gary Endelman says "Immigration rights advocates have it all wrong. Instead of screaming against the INS campaign to force change of address notification, they should go into every place where the foreign-born live and coordinate a tidal wave of AR-11 activity that will drown the Service in its own bureaucracy."


Lynn Calder Will Speak At Immigration Overview Seminar

Lynn Calder, a partner at Allen and Pinnix, P.A., will be the guest speaker for the "Overview of the Immigration Process Seminar" led by Robert Divine on August 26th. Immigration lawyers spend much time on the ever-changing rules of eligibility for visas, permanent residence, and citizenship. But at the heart of immigration practice is the process for obtaining and keeping these benefits. ILW.COM has invited Robert Divine to present a seminar series on the immigration process. Mr. Divine is the author of Immigration Practice, a well-respected, readable, 1,400 page handbook treatise on all aspects of immigration law that was just published in its 2002 (8th) edition, available at Mr. Divine is the recently re-elected Chair of the 5 state "MidSouth" chapter of the the American Immigration Lawyers Association, and he is known for his no-nonsense, highly practical approach to discussing how to handle immigration problems.

This series would be a particularly good opportunity for attorneys and their paralegals efficiently to listen together as a training tool, and perhaps serve as a springboard for further in-house discussion and training about particular problems. Of course, it will be extremely helpful for relatively inexperienced immigration lawyers, and even experienced immigration lawyers will find Mr. Divine's overview of the process to be a helpful review.

For the seminar course syllabus and speaker bios, please click here. Don't delay! The Registration Deadline is August 21st!

Featured Article

Honest Choices: Complexity, Elitism And The Frustration Of Fundamental Reform
Gary Endelman writes that the elites who dominate the immigration debate inside the Beltway are the reason why our immigration laws are both complex and out-of-touch with reality in America, and that the bad immigration laws on the books - especially employer sanctions - are unenforceable in the real world because of the inevitable political backlash of any sustained enforcement effort, and that the way to get rid of bad laws is to enforce them strictly.

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Immigration Law News

INS Requests Comments On Online Case Status System
In a sign of the times and the march of technology, INS requested comments on an online Case Status System accessible to individuals and their representatives.

DOJ Proposes St. Cyr Rule
The Department of Justice proposed a rule which "amend the regulations of the [EOIR] and the [INS] by establishing procedures for lawful permanent residents (LPRs) with certain criminal convictions arising from plea agreements reached prior to a verdict at trial to apply for relief from deportation or removal pursuant to former section 212(c) of the Immigration and Nationality Act. It also sets forth procedures and deadlines for filing special motions to seek such relief before an Immigration Judge or the Board of Immigration Appeals for LPRs currently in proceedings or under final orders of deportation or removal."

INS Releases H-1B Numbers For 2002
INS issued a news release on the usage of the H1B numbers for Fiscal 2002. The release says that 60,500 H-1Bs were approved and 18,000 more were pending as of June 30, 2002.

EOIR On St. Cyr Relief
The Executive Office for Immigration Review (EOIR) issued a news release on the proposal of a rule to implement the Supreme Court's Decision in St. Cyr. EOIR also issued a 6-page Question-And-Answers Sheet on the rule's affording relief to certain criminal aliens.

Ashcroft Announces Entry-Exit Registration System
Attorney General John Ashcroft announced that "the first phase of the National Security Entry-Exit Registration System (NSEERS) will be implemented by the Immigration and Naturalization Service (INS) at selected ports of entry throughout the United States on September 11, 2002. After an initial 20-day period for testing and evaluating the system at selected ports of entry, all remaining ports of entry - including land, air and sea - will have the new system in place on October 1, 2002."

INS Announces Break Up Of Child Smuggling Ring
INS announced the arrest of three members of an El Salvadorean child smuggling ring.

BALCA Says Applicant Who Is Potential Competitor May Not Be Available For Vacancy
In the Matter of Pierre Lafond, (BALCA, Jul. 25, 2002), the Board of Alien Labor Certification Appeals considered a Final Determination by the Certifying Officer (CO) that an applicant for the position of Cook was qualified for the job vacancy, where the Employer had asserted that the applicant was operating a competing business, and said that the CO made assertions without any basis as to applicant's availability, noting that "relentless pursuit of an applicant is not required under labor certification, and an employer who might additionally be put to some proprietary risk may be excused from not being overly aggresive," and reversed the CO's denial.

Texas Injury To A Child Is Not Aggravated Felony
In US v. Gracia-Cantu, No. 01-41029 (5th Cir. Aug. 9, 2002), the court held that because an offense under Texas statutes of injury to a child oten stems from an omission rather than an intentional use of force, such offense is not, by its nature, a crime of violence within the meaning of 18 USC 16(b), and is thus not an aggravated felony for sentence enhancements under the immigration statute.

Sexual Abuse Of A Minor Is Crime Of Violence
In US v. Rayo-Valdez, No. 02-10010 (5th Cir. Aug. 12, 2002), the court held that under the recently amended Sentencing Guidelines, sexual abuse of a minor is a crime of violence, as are all the offenses enunciated in part (II) at USSG 2L1.2 "murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling," regardless of their elements under various state laws, and affirmed Defendant's sentence enhancement for illegal reentry after deportation for a crime of violence, which the former Sentencing Guidelines termed "aggravated felony."

Possession Of Stolen Mail Is Aggravated Felony
In Randhawa v. Ashcroft, No. 99-71634 (9th Cir. Aug. 13, 2002), the court found that Petitioner's conviction for possession of stolen mail is categorically an aggravated felony.

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:

Humiliation Is Routine At Borders
The San Jose Mercury News reports that a New Zealand woman, married to a US Citizen, on her annual trip to the US was subjected to humiliating treatment, which is routine procedure for the INS, and put on a return flight to New Zealand for having overstayed her visa by 8 days during her last visit.

How to Get and Keep Corporate Clients? Use ILW's Case Tracking! Each case takes only a few minutes from start to finish! Serious practitioners find this modern technology a "must have." For more info, send e-mail to:, include your phone #.


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:
When the TN visas were established our law office processed many nurses from Canada. As soon as they entered we filed I-140's which were adjudicated in about 30 days. The I-485's were filed and, more important, employment authorization I-765's were filed for the spouses. These were adjudicated at the district offices within a week. And so husbands were able to be employed within about 60 days of arrival in the U.S. I-140 processing times became longer and longer. Now 6 months is normal, and 3 months for the I-765's. Prior to this, however, Sen. Spector (R) sponsored a bill requiring all foreign born nurses to obtain a Visa Screen Certificate. It took a year for various Govt. departments to form the exact regulations. Nurses then had to pay $320 to CGFN, of Philadelphia, to obtain the certificate. More sand in the machinery of immigration !! And so the flow of Canadian nurses has almost ceased. We wonder how the new I-140/485 process will 'gum up the works'. Perhaps INS will put Premium Processing to work for a fee and then use inexperienced officers to adjudicate so that they can send Requests For Further Evidence on the 14th day.


Dear Editor:
I am very frequent visitor of ILW, you can say I visit every day. Today I happened to visit and surprised to see a banner in favor of congressional candidate Mr Courage who challenged anti-immigrant Rep. Lamar Smith. And they are requesting their visitors to contribute money to un-seat Mr. Lamar.

Please join AILA and other prominent immigratrion attorneys to support this campaign.

Mohammad Ali

Editor's Note: We are aware that Mr. Shusterman's site supports candidate Courage's challenge to Rep. Smith (R-TX). As best as we know, AILA does not endorse candidates for elective office. Immigration Daily has carried several Letters to the Editor supporting various challengers to Rep. Smith.

Dear Editor:
With reference to the Notice No. 2198-02 published in the Federal Register requesting comments on the proposed rule that all the aliens including lawful permanent residents are required to report the Immigration and Naturalization Service of their current address and keep the Service informed of any change of address within 10 days of such a change, I would like to make the following comments:

It is widely known to all that the aliens who visit other countries, are generally required to register at immigration office or inform it of their address of stay, if they remain in the country for more than three months. Furthermore, they are mostly given at the port of entry of the country they visit, a slip that contains detail information about their requirement of registration at the immigration office or to inform it of their address of stay. But, at the port of entry of the United States, no other slip is provided to the aliens visiting this country than customs declaration form and I-95 form (Arrival/Departure).

It is hardly known to all the aliens visiting the United States that they are required to fill out the Form AR-11(Alien's Change of Address Card), if they remain in this country for more than 30 days , and that they should also report to the Service of every change of their address within 10 days of such a change. Therefore, I don't think it will be fair and just to charge them with their violation of the law, simply on the grounds that they failed to fill out AR-11 form. First of all, they should be given proper information by the Service that they must provide the Service their current address by filling out this form.

Therefore, in view of the above circumstances, I would like to offer the following solutions, which, I think, are highly desirable that should be implemented:

1. Upon arrival at the port of entry of the United States, all the aliens should be given AR-11 form with information that will clearly explain that failing of mailing it to the Service after filling out will be considered the violation of the law, and they will be held accountable for any consequences.

2. People from different countries of the world come to visit the United States not only to see the different places, but also to meet their relatives and friends. Therefore, they generally remain in this country for more than 30 days, most probably for a period of six months. It is sure that during their stay here generally they visit most tourist places such as New York, Washington, D.C., Chicago, Los Angeles, San Francisco, Las Vegas, Dallas and Miami. Certainly, they will feel irritated having obligation to report to the Service of their new address every time they move to new place. Therefore, the current regulations requiring the aliens to report to the Service of their every change of address within 10 days of such a change, should be abolished. Instead, only those aliens who will remain in this country for more than six months should be made to report the Service of their every change of address within 10 days of the change.

S. Salike

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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