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Immigration Daily August 30, 2002
Previous Issues
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Editor's Comments

In today's Feature Article, Keith J. Mueller, Chairman of the Rural Health Panel of the Rural Policy Research Institute (RUPRI), and Director, RUPRI Center for Rural Health Policy Analysis, University of Nebraska Medical Center, says that the decision by the Department of Agriculture earlier this year to no longer request placements for physicians seeking J-1 waivers "has a disproportionate impact on some states that have a high number of physicians placed through the USDA process, which in 1994-2001 were: Texas (449), Louisiana (250), Michigan (242), California (232), and Florida (224). Other states, with smaller total numbers, saw most of their J-1 placements done through this process, including Kansas, Arkansas, and South Dakota." The article further says "For any temporary resident undergoing a change in status a new security check may be appropriate. There are reasons, however, to treat waivers for J-1 visa physicians differently: the physicians have already been in the U.S. for at least three years without manifestations of security risk; the ethical code of physicians would make them less likely to be terrorist threats; and the recommendations for waivers would have them remaining in the U.S. for the explicit purpose of serving residents of underserved communities."

While we support measures designed to enhance American security post-9/11, blindly adopting a "Fortress America" mentality is unlikely to increase our security, whereas it would likely threaten our nation's economic strength which flows from the interconnected global economy. We believe that most of our security problems need to be solved in the realm of our State Department and Defense Department. Immigration policy is at best a poor third fiddle to foreign and defense policy in solving our post- 9/11 security problems.


Curriculum For Seminar With INS, DOL, DOS

The following is the curriculum for "INS, DOS, DOL - The Search for Consistency"

FIRST Phone Session on September 10, 2002:

DOL/INS Issues
This session will deal with DOL and INS positions on cutting edge issues including:

  • Start date of H-1B employment where issuance of social security number delayed
  • 245(i) grandfathering based on withdrawn or denied labor certification applications
  • Effect of concurrent filing on labor certification substitutions
  • Impact of leaves of absence on H-1B aliens and employers
  • Effect of changes in employer structure, job description full-time status, salary and location of employment on LCA, I-129, ETA, I-140 and I-485

SECOND Phone Session on October (Date TBA), 2002:

DOS/INS Issues
This session will deal with DOS and INS positions on cutting edge issues, including:

  • Child Status Protection Act
  • Concurrent adjustment/consular processing issues
  • Consular readjudication/revocation of INS-approved petitions
  • 3 and 10 year bar waivers
  • Travel by H-1B portable aliens
  • Who is subject to the two-year return requirement?
  • Accompanying or following to join

THIRD Phone Session on November 20, 2002:

  • Summary of DOL/INS/DOS positions on cross-agency issues
  • Practitioner pointers
  • Miscellaneous issues and new developments
Speakers for this seminar will include:

Jacqueline Bednarz, Special Assistant to the Executive Associate Commissioner for the Office of Policy and Planning of the Immigration and Naturalization Service in Washington, D.C.

Steve Fischel, the Director of Legislation, Regulations and Advisory Assistance in the visa office of the Department of State.

Harry Sheinfeld, Litigation Counsel in the Employment and Training Legal Services Division, Office of the Solicitor, at the U.S. Department of Labor.

For more info, including registration information online, click here.
For more info, including registration information by fax, click here.

Featured Article

The Immediate And Future Role Of The J-1 Visa Waiver Program For Physicians: The Consequences Of Change For Rural Health Care Service Delivery
Keith J. Mueller, Ph.D., Principal Author, The Special J-1 Visa Waiver Program Task Force, Rural Policy Research Institute writes "Federal agencies should continue to participate in the J-1 Visa Waiver Program. This should include consideration by the Department of Health and Human Services to expand its J-1 visa waiver activities to include recommending waivers for physicians to practice in underserved areas ... Homeland security issues involving physicians immigrating to the U.S. for residency training, and staying in the U.S. under the authority of a J-1 visa waiver, should be handled the same as for any other foreign national in the same status."

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Immigration Law News

INS Denies Admission To Alien Alleged To Have Committed Genocide
INS announced that it "has, for the first time, denied admission to a foreign national based on the commission of genocide."

55% Of Noncitizens Prosecuted Are In US Legally - DOJ Statistics
The Bureau of Justice Statistics of the Department of Justice released summary findings on Noncitizens saying "Between 1984 and 1994, the number of noncitizens serving a sentence of imprisonment in a Federal prison increased an average of 15% annually - from 4,088 to 18,929; the overall Federal prison population, by contrast, increased an average 10% annually -- from 31,105 to 87,437. 55% of the noncitizens prosecuted in Federal court during 1994 were in the United States legally."

DOJ Statistics On Federal Detainees Including Immigration Detainees
The Office of the Federal Detention Trustee of the Department of Justice released several sets of statistics on: Persons held in federal detention, by agency with jurisdiction, Fiscal Years-end 1994-2001, Persons admitted to federal detention and incarceration and fiscal year-end population, by agency with jurisdiction, Fiscal years 1994-2000, and Detainees under the jurisdiction of the U.S. Marshals Service and the Immigration and Naturalization Service, by type of Facility, Fiscal Years-end 1994-2001. The released statistics place INS detainees in the context of all Federal detainees.

INS On Part Time Commuter Students - In Spanish
INS issued a News Release and a Fact Sheet (both in Spanish) on Part-Time Commuter Students.

Texas Injury To A Child Is Not Aggravated Felony
In US v. Gracia-Cantu, No. 01-41029 (5th Cir. Aug. 9, 2002, revised Aug. 27, 2002), the court revised its Aug. 9, 2002 opinion where it held that because an offense under Texas statutes of injury to a child often 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.

Driving Under The Influence Is Not Crime Against The Person
In US v. Trejo-Galvan, No. 01-41084 (5th Cir. Aug. 28, 2002), the court held that since the term "crimes against the person" in the enhanced penalty provision at 8 USC 1326(b)(1) is not defined in the statute, and since no other circuit court has had occasion to interpret its meaning, it would construe the term in accordance with the term's common law definition, and accordingly held that a "crime against a person" is an offense that, by its nature, involves a substantial risk that the offender will intentionally employ physical force against another person, and concluded that applying this definition to the case against the Defendant, driving under the influence was not a crime against the person.

State Department Report Does Not Speak To Individual Situation
In Ruano v. Ashcroft, No. 01-70915 (9th Cir. Aug. 29, 2002), the court held that since Petitioner had received multiple death threats at his home and place of business, and had been followed by and narrowly escaped four armed men trying to kill him, and when he had been targeted because of his membership in a political party, a rational factfinder could only conclude that he had suffered past persecution; and said that the State Department report on Guatemala offered by the INS was not sufficient to establish that there was a fundamental change in circumstances there since it provided no insight into Petitioner's individual situation.

Right To Appeal Waived Before District Court With Translator's Aid
In US v. Burgos-Cebreros, No. 01-8012 (10th Cir. Aug. 28, 2002), the court found that Defendant was assisted by a Spanish language interpreter during his plea hearing where he waived his right to appeal his sentence, and that the district court exhaustively inquired into whether he understood and accepted the terms of the agreement, including the waiver provision.

DOS Changes Visa Classification Symbols
The Department of State promulgated a final rule which says in its summary "This rule amends the Department's regulations to add and delete immigrant visa symbols on the immigrant visa classification table. The Department is amending the table to add a new class of special immigrants for certain aliens who had petitions or labor certification applications revoked, terminated or rendered null due to the terrorist activities of September 11, 2001, and for the guardian grandparents of certain children rendered orphans by the attacks. The Department is also taking this opportunity to remove the HK immigrant classification symbols used for transition employees of certain U.S. businesses in Hong Kong and their dependents whose visa validity was extended under section 124 of Public Law 101-649. This immigrant status was valid only through January 1, of 2002. The Department is also changing ``orphan'' to ``child'' under the classification definition IR3 and correcting the section of law citation under the entry AM3 to read ``Public Law 100-102'' instead of ``P.L. 100-202''."

INS Seeks Comments
INS sought comments on Change of address, Form I-697; Registration for classification as refugee, Form I-590; and ABC change of Address Form and Special Filing Instructions for ABC Class Members, Form I-855.

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Shipping Companies Feed Stowaways To Sharks Rather Than Pay INS Fines
The Houston Chronicle reports "Ship captains sometimes throw stowaways overboard in the high sea rather than face the fines of bringing them ashore, according to testimony in court cases." The article quotes a stowaway "If the crew catches you, they throw you in the water to be eaten by the sharks" and also quotes an INS spokeswoman "When stowaways are discovered on a ship arriving at a U.S. port, the company faces a fine of $20,000 or more per stowaway. Also, the shipping company must arrange to have the stowaways sent home, either by putting them back on the same ship or by flying them home with an escort. They lose a lot of money because of stowaways."

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Letters to the Editor

Dear Editor:
Attached are FAIR's public comments on the proposed regulation requiring acknowledgment of the duty of address change notifications on various immigration forms. FAIR supports the proposed amendment, which establishes a simple, just, and effective method to enable non-citizens in the United States meet their affirmative statutory requirement to inform the federal government of their current address. Consistent enforcement of the change of address regulations is a necessary component of immigration law enforcement.

However, the legal rationale offered by the Service to justify the regulatory change is in conflict with and misrepresents the comprehensive statutory scheme established by Congress to govern the conduct of aliens in the United States. Our public comment articulates the correct law of alien registration, enacted by Congress to safeguard our country against non-citizens whom our courts have characterized as subversives, enemies, and, in current public usage, terrorists.

A correct analysis of alien registration law supports FAIR's additional practical recommendations that the required acknowledgement also confirm that adult aliens are aware of their related duty to carry documentation of registration on their person at all times, that the Attorney General authorize a more stringent special registration of aggravated felons and other deportable aliens, and that a systematic public information program would help to minimize the inconvenience of compliance for legitimate foreign visitors and immigrants.

Michael M. Hethmon
FAIR Staff Attorney

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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