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Immigration Daily

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Immigration Daily August 16, 2002
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Editor's Comments

Today's Featured Article is by Paul Donnelly who was press secretary for the House Immigration Subcommittee chair in 1990, and Communications Director for the Jordan Commission throughout the mid-1990s. Mr. Donnelly recently quizzed Milton Friedman (Nobel Laureate for Economics) on the H-1B program. Mr. Donnelly's article quotes Mr. Friedman's reply "The majority of H-1B immigrants do manage by hook or crook to get permanent residence and become citizens, so as a factual matter they are not a 'farm team' of indefinitely temporary workers. Yet there is no doubt that the program is a benefit to their employers, enabling them to get workers at a lower wage and to that extent is a subsidy." Mr. Donnelly says "Markets are smart and regulations are dumb ... So long as IT employment is defined by regulations rather than market decisions, the H-1B is actually a hindrance to the IT industry's recovery."


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Featured Article

The H-1B Is A Barrier To The IT Industry's Recovery - Even Milton Friedman Says "there is no doubt" H-1B Is A Subsidy
Paul Donnelly writes "There are now roughly 700,000 H-1Bs present in the U.S., virtually all hoping to get green cards. Permanent residency based on jobs is parceled out at a rate that has averaged under 90,000 a year for a decade. So employment-based immigration is not a system that can make it up in volume - not if you like old-fashioned Ellis Island citizenship and free market capitalism."

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Immigration Law News

Claims Of Breach Of SAW Privacy During Naturalization Dismissed As Unripe
In Aparicio v. Blakeway, No. 00-51133 (5th Cir. Aug. 15, 2002), the court found that the Petitioners claims raising a generalized challenge to INS's interpretation of two statutes affecting their naturalization applications, subsequent to their permanent residency obtained through the Special Agricultural Worker (SAW) program, and the alleged use by the INS of confidential information contained in the SAW records, were not ripe because they either did not feel the full impact of the interpretation by being blocked from naturalizing or were denied or delayed for an uncertain reason. The court said that such challenges could only be brought by those who had been denied naturalization and who had followed the administrative and judicial appeal process set forth in Congress's statutory scheme.

Carjacking And Alien Smuggling Cannot Be Grouped For Sentencing Because Primary Victims Are Different
In US v. Gastelum-Almeida, No. 01-50426 (9th Cir. Aug. 15, 2002), involving a number of immigration and non-immigration matters, the court held, inter alia; that the Defendant's desire to stay in the country in order to litigate an unrelated appeal before the Ninth Circuit and to collect on a pending Workers' Compensation claim did not constitute plausible grounds for relief from deportation, and hence he was not prejudiced when the district court, on those grounds, denied motion to dismiss the charge of being an illegal alien found in the US following deportation; that the government's deportation of alien witnesses was done without deviation from normal procedures; and that the alien smuggling charge could not be grouped with the carjacking charge for sentencing purposes since these charges had different primary victims - the victim in the case of the smuggling charge was the United States and the societal interest was the prevention of violation of the immigration laws.

INS Releases Naturalization Statistics
INS released Chapter V of its 2000 Statistical Yearbook which is full of information about Naturalization.

DOL Settles With Employer On LCA Matter
In the Matter of Wage and Hour Division v. American Institute of Computers, Inc., No. 2002-LCA-12 (OALJ, Aug. 13, 2002), the Office of Administrative Law Judges appproved a settlement agreement between DOL and Employer.

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INS Defies Supremes On Detention
An article in the National Law Journal says "the [INS] is systematically thwarting last year's U.S. Supreme Court ruling that limits the legal incarceration time for deportable immigrants whose countries won't take them, according to a court ruling, immigration lawyers and a newly filed class action."

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Letters to the Editor

Dear Editor:
Your recent inclusion of business immigration BALCA cases and H-1B information has been a noticeable improvement in the breadth of your coverage. Keeping up on these issues on a daily basis by simply accessing my email is a most welcome change to Immigration Daily. Thank you for making the life of this business immigration lawyer just a little bit easier.

Alice M. Yardum-Hunter
Attorney at Law

Dear Editor:
I believe the unnamed attorney who lost the case before both the Vermont Service Center and the AAU on the issue of an employer's failure to show the ability to pay the Prevailing Wage on the day the Priority Date is established misses the point of the law. If a Labor Certification and attendant adjustment to permanent residence could all be approved on the day the Labor Certification were filed (wishful thinking), the employer would need to show it could pay the prevailing wage on the day on that very day, because that is the day the Priority Date is established. And that's the law. Notwithstanding that reality rears its ugly head and takes years to process the Labor Certification through adjustment of status, the law remains the same: The employer must prove they can pay the prevailing wage on the date the Priority Date is established. While we immigration lawyers may not like it, that is the law. While the unnamed lawyer may have a practical argument supporting his position, there does not appear to be a persuasive legal argument, because the "bottom line" is not prospective, and unlike theoretical "depreciation" for tax purposes, you either have the nickel, or you don't. Obviously, his employer did not have the nickel. Establishing the prospective intent to replace is something the law does not even want to get into. Simply put, if the money is not there to hire the alien on the day the Priority Date is established, the law requires that that the employer cannot demonstrate they can pay the alien applicant that amount on that day and they have not met their burden under the law, since there is already somebody working in that position (a fact that is set on the date of filing). The law does seem to be rather black and white, but it is clear. It's kind of like being pregnant, you either are or you aren't . . . no mitigating factors for the sake of convenience allowed. The unnamed lawyer must learn that we lawyers are advocates . . . . it is legislators who make the law. He will make no law in this instance, practical as his arguments may be.

David Murray, Esq.
Newport Beach, CA

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Editorial Advisory Board
Marc Ellis, Gary Endelman

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