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Immigration Daily

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Immigration Daily September 13, 2002
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Editor's Comments

Today's issue of Immigration Daily features a report by the General Accounting Office which states that the Department of Commerce (DOC) and the INS will be discussing INS's referral to DOC of H-1B change-of-status applications involving controlled technologies. As immigration becomes increasingly woven into our national fabric, it appears that more and more departments of our executive branch will get involved in immigration matters. The Department of Health and Human Services is already involved in refugee matters. It is nearly certain that the to-be-created Department of Homeland Security will have jurisdiction over at least some immigration matters, and the GAO report referred to above, seems to indicate that Department of Commerce will also get involved. Indeed, it may well be that in a year or two, all Cabinet-level Departments will have some role in immigration matters. As our readers are likely aware, ILW.COM is currently conducting a seminar course led by Ron Klasko and Tammy Fox-Isicoff titled "INS, DOS, DOL - The Search for Consistency" (for more information on this course, please click here). By 2004, a similar course may need a veritable alphabet soup in its title. Congress seems determined to ensure an important role for immigration lawyers in immigration matters.


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Featured Article

Concerns With The DOJ's Proposed Rule To Implement The St. Cyr Ruling
Rob Randhava, Nancy Morawetz and Shoba Sivaprasad write "The DOJ's proposed rule in St. Cyr [] amounts to little more than an evasion of both the letter and the spirit of the Supreme Court's ruling."

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Immigration Law News

GAO Calls For INS To Refer H-1B Change Of Status Applications To Commerce Department Where Controlled Technologies Are Involved
The General Accounting Office issued a report on Export Controls which called "for a reexamination of the current approach to controlling foreign national access to technology in the United States." The report also stated that the Department of "Commerce stated that it would contact INS to explore ways of referring to Commerce H-1B change-of-status applications involving employment that might result in access to sensitive technology."

DOS Implements New System For F, J, And M Visas
The Department of State announced the implementation of a system which "will verify the acceptance for enrollment of foreign students and exchange visitors and their dependents who wish to enter the United States in F, J or M non-immigrant visa categories."

INS Memo On Self-Petitions By Intending Spouses
INS issued a Memorandum from the Executive Associate Commissioner of the Office of Field Operations concerning the eligibility to self-petition by intending spouses of an abusive USC or LPR.

INS On Cambodian Orphan Adoptions
INS issued a News Release on Cambodian orphan adoptions.

"Bring" In 8 USC 1324(a)(2) Is Defined Broadly
In US v. Yoshida, No. 01-50311 (9th Cir. Sep. 12, 2002), the court said that the fact that Defendant concealed the baggage claims of three Chinese aliens whom she unlawfully assisted in entering the US in her underwear was strong evidence that she was an escort for those aliens, and evidence of knowledge of the illegality of her acts, and said that the statute indicated that "bring" into the US was to be defined broadly.

Ninety Day Time Limit For Motions To Reopen Does Not Conflict With INA, No Jurisdiction To Review BIA's Non-Exercise Of Sua Sponte Power To Reopen
In Ekimian v. INS, No. 99-70322 (9th Cir. Sep. 12, 2002), the court held that the ninety-day time limit for party-filed motions to reopen contained in 8 CFR 3.2(c)(2) did not conflict with INA 203(a), 203(b), 245(a), or 245(i); and held that because the court could not discover a sufficiently meaningful standard against which to judge the Board of Immigration Appeal's (BIA) decision not to reopen under 8 CFR 3.2(a), it did not have jurisdiction to review Petitioners' claim that the BIA should have exercised its sua sponte power.

Hearsay In "A" File Admissible As Exception To Hearsay Rule
In US v. Torres-Reyes, No. 02-2027 (10th Cir. Sep. 11, 2002), the court said that since reasonable opportunity was given to all parties to investigate the authenticity and accuracy of the Defendant's Mexican birth certificate, the district court did not err in ordering that it be treated as presumptively authentic; and said that documents in the "A" file of the Defendant maintained by INS were admissible as evidence under an exception to the hearsay rule as records of regularly conducted activity pursuant to the Federal Rules of Evidence 803(b).

H-2A Employers Bear FLSA Liability For Transportation Costs And Visa Fees
In Arriaga v. Florida Pacific Farms, L.L.C., No. 01-16402 (11th Cir. Sep. 11, 2002), the court held that the Fair Labor Standards Act (FLSA) did not support the Farmworker-Petitioners's claim for recruitment fees; and held that transportation costs from non-commutable distances in Mexico were an incident of and necessary to employment under the Petitioners' FLSA claim; and held that by participating in the H-2A program, the Grower-Defendants created the need for visa and immigration fee costs which they were not permitted to pass on to the Petitioners as "other facilities"; and that under Florida contract law, the ambiguity about whether the return transportation costs were to be borne to the place of recruitment in Mexico, or to the Petitioners' home villages, should be construed against the drafters, the Defendants.

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Government Seizes Property And Currency Of Deported Aliens, And Burns It
The Laredo Morning Times (of Laredo, TX) reports that when aliens are deported, their meager property, including small amounts of currency, are effectively removed from the aliens and in some cases, burned.

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Editorial Help Wanted
ILW.COM has a New York City based, full-time Editorial position open.
What ILW.COM offers:
We offer an unrivaled opportunity to acquire holistic knowledge of immigration law and an excellent opportunity to gain rapid recognition in the immigration law community. We offer an opportunity to gain useful technological and research skills. We have an informal and friendly small-company environment. Some flex-time is possible. We also provide company-paid health insurance.
What the job involves:
The job involves primary responsibility in preparing our flagship product, Immigration Daily, and in adding new legal content to the website. The position also involves contributing to the team effort in growing a small company.
The right candidate must have the following:
An intense interest in learning about all aspects of immigration law is an absolute must. The right applicant must also be a "power searcher," i.e. must be very comfortable with finding information on the internet. Basic knowledge of immigration law is required. A law degree is highly preferred, but is not an absolute requirement. Experience as an immigration lawyer is desirable, but not necessary.
Who is ILW.COM:
We are a law publisher based in New York City. We are a small business, currently we have 6 team members. We own and operate, one of the most important websites on immigration law in the world. We publish Immigration Daily, the pre-eminent news publication in immigration law, which is emailed to over 10,000 opt-in subscribers 5 days a week. We have an attorney referral service and offer seminars on immigration law to attorneys.
Interested applicants should kindly send a resume by email to References are required.

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Letters to the Editor

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Editorial Advisory Board
Marc Ellis, Gary Endelman

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