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Immigration Daily

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Immigration Daily September 4, 2002
Previous Issues
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Editor's Comments

In its decision today in Mendoza v. Zirkle Fruit Co., the Ninth Circuit held that RICO gave standing to legally documented agricultural workers to sue their employers whom they allege depressed their salaries by consipiring to hire undocumented workers at below market wages. Earlier this year, the Second Circuit decided Commercial Cleaning Services v. Colin Serv. Sys., Inc., holding that RICO gave a janitorial service company standing to sue its competitor who had allegedly hired undocumented workers. Though IRCA is largely a toothless law, these new decisions will give pause to many employers throughout the country who may want to hire undocumented workers, a consequence clearly foreseen by the courts that wrote these opinions. However, a couple of unintended effects are also likely. First, it is now more likely that the proportion of the undocumented workforce hired by small business will increase, since larger businesses are more likely to be worried about being sued, and since it is harder for the government to bring enforcement action against small business. Second, these decisions provide increased incentive for Big Business to lobby Congress for an expanded legal immigration system. These decisions spotlight the need for Congress to provide an immigration policy which balances the country's need for large numbers of immigrant workers, while ensuring that our national security is not compromised. One elegant and painless way for Congress to achieve this may be to delete everything unrelated to national security from the immigration statute. It only makes sense to focus not just enforcement resources, but also the law, on national priorities. Everything standing in the way of the national priority of national security should be discarded.


INS/DOL/DOS Seminar Deadline Is Thursday, September 5th

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  • 245(i) grandfathering based on withdrawn or denied labor certification applications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

An Analysis Of The Child Status Protection Act
Cyrus D. Mehta writes about the Child Status Protection Act.

Attorney listings on ILW.COM are searched 200,000 times/year! Each attorney listed is searched an average of once each day! Just one new client will pay for the entire year's fee! Click here for more info:

Immigration Law News

RICO Provides Legal Workers Standing To Sue Employers Who Depress Wages By Hiring Undocumented
In Mendoza v. Zirke Fruit Co., No. 01-35276 (9th Cir. Sep. 3, 2002), the court held that under the Racketeer Influenced and Corrupt Organizations Act (RICO), legally documented agricultural workers have standing to sue their employers, whom they allege depressed their salaries by consipiring to hire undocumented workers at below market wages. The court said that the fact that RICO specifically provides that illegal hiring is a predicate offense indicated that Congress contemplated the enforcement of the immigration laws through lawsuits like this one (18 USC 1961(1)(F)).

Sentencing Judge's Exercise Of Discretion On Departure Is Not Reviewable
In US v. Colon, No. 01-3864 (3rd Cir. Aug. 30, 2002), the court said that it did not have jurisdiction to review the decision of the District Court not to depart downward in sentencing the Defendant on the ground that he was a convicted deportable alien subject to potential consequences not visited upon others convicted of the same offenses.

Sentencing Court Has Exclusive Province Over Decisions Involving Departure
In US v. Lopez-Mendoza, No. 02-4303 (4th Cir. Sep. 3, 2002), the court said that the District Court's decision not to depart downward on the basis of cultural assimilation in sentencing the Defendant for unlawful reentry by a deported alien was a highly factual determination within the exclusive province of the sentencing court.

DOJ Fact Sheet On EOIR Shearing Says IJs Are Overwhelmingly Correct
DOJ issued a Fact Sheet on the final rule for the Board of Immigration Appeals which quotes testimony before the House Judiciary Committee that the "overwhelming percentage of immigration judge decisions ... [are] legally and factually correct."

DOJ Press Release On Burundi TPS
The Department of Justice issued a press release on the extension of TPS for Burundi.

DOJ Press Release On Sudan TPS
The Department of Justice issued a press release on the extension of TPS for Sudan.

INS Press Release On Stats
INS issued a press release on legal immigration figures for Fiscal 2001.

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:

Post-9/11 Measures' Blunt Message: Immigrants Are Threats
The Miami Herald reports that post-9/11 government measures on immigration "are fueling xenophobia by sending out a blunt message: The flow of immigrants carries national security concerns and should be treated with heightened scrutiny."

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 #.


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Letters to the Editor

Dear Editor:
A question worth posing to this group of Immigration Lawyers and the US Administration regarding the war on terror is this: How can the United States government reconcile allowing the citizens from "axis of evil" countries to apply for the DV (Diversity) Lottery for immigration Green Cards. All the while, refusing acceptance from the allied countries such as Britian and Canada? The writer is aware this immigration lottery is a "game" of numbers alone, however, if the USA, INS and DOJ are truly committed to eliminating terror on their home front, how can they justify the risks of allowing people from these countries (that can hide themselves and be unknowns in the terror cells) to join the ranks of the fortunate winners of the "lottery". This opens the United States to potential terrorism in their land in a very unique sitiuation, by giving these legal immigrants a "gift" from the USA government to enter and have all the same rights and freedoms as any American. Further to the above, the "refuge" gay/lesbians is a bit of a farce also. Looking at some of the past allowances made for them, surely they would have been incarcerated or killed were they sent back to their countries. This does not justify how the Administrations have ignored the rights and freedoms of their own people by disallowing the immigration of same -sex partners of naturalized United States citizens. The Administration, DOJ, INS and many other factions of government have allowed terrorists into the country, and continue to "invite" them. At the same time, they ask their loyal subjects to be on the lookout for the very same legal immigrants allowed in through Diversity from Iran, Iraq, Afganistan, Yemen, and the list goes on. There are possible terrorists lurking,waiting and applying legally for the opportunity to cause disaster in the United States, and somehow without justification, people that are in love with their American-born partners are held at bay. If you or your readers have any thoughts on this topic, I would be interested in hearing it, as would I be delighted to hear the response from the government. Thank you for your time.

G.A. Wilson

Dear Editor:
From his statement on legalization of illegal aliens published in the Immigration Daily of August 26,2002, Representative Gephardt appears that he would be very pleased if he could reward those people who delibratelely brake the law of the United States. It is widely known that the US Congress was established to make laws that should be abided by all staying in the United States. I don't think the Congress would like to pay their attention to make the law that the people wouldn't like to follow it . It is well established that those people who break the law, should be punished according to the law. Any people must obey the law of the land in which they are living. If somebody breaks the law and he/she goes scot- free, I think the law of the land has no any sense, and it 's better to be burnt.

People from different countries enter the United States with valid visa and later on, most of them overstay and become illegal aliens. Similarly, some other people enter the United States from border areas as EWI. These illegal aliens have violated the law of this land. But. Rep. Gephardt shows that he is encouraging foreigners to overstay in the United States affirming that overstaying in this country is not illegal. Therefore, I felt that I also should take liberty of expressing my opinion saying that to violate the law of a country is regarded as illegal, and those foreigners who are living without valid visa or overstaying in this country, are called as illegal aliens. The person who violates the law of the land is also considered as criminal. Therefore, many aliens from different countries are serving their sentence in South and South East Asian countries for violation of the law by overstaying in the countries. Being the most democratic and free country, the United States has not taken stern actions on these illegal aliens. Consequently, they are cashing in on the soft policies of the United States. As I see it that these illegal aliens who are overstaying in this country should be deported immediately. There are hundreds of thousands of honest and qualified aliens waiting for immigrant visa number patiently to enter the United States to contribute their good services to this country. I don't see that the United States do have to depend on these fraud and law-breaker aliens. In my opinion, Rep. Gephardt should move quickly to grant immigrant visa to those law-abiding aliens who are waiting overseas patiently and extraordinarily to come to the United States.

S. Salike

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Editorial Advisory Board
Marc Ellis, Gary Endelman

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