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Immigration Daily November 4, 2002
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Editor's Comments

The most read articles for October, 2002 were:

The most read items for October, 2002 were:


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Featured Article

H-1B Series: The Labor Condition Application - Part 4
George N. Lester IV continues a discussion of the labor condition application.

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Immigration Law News

Technical Corrections To LIFE Act Final Rule
The INS made technical corrections to the final rule implementing the LIFE Act.

Venue Claim Waived When Not Raised Before End Of Trial
In US v. Delgado-Nunez, No. 01-50438 (5th Cir. Jun. 20, 2002), the court said the Defendant's venue claim was waived since the facts underlying his claim were already known to him at the start of the trial - the facts being that while he was found in the US after illegal reentry following deportation in the Northern District of Texas, his trial for this offense was in the Western Distric of Texas.

No Statutory Or Common Law Basis For Government Duty To Provide Citizenship And Passport To Witness Against Leader Of Pan Am 1982 Bombing
In Awad v. US, No. 01-1440 (Fed. Cir. Sep. 4, 2002), the court said that Petitioner was unable to point to any statutory or common law basis for a duty on the part of the government to provide him with US citizenship and a passport in return for his testimony against the leader of an organization believed to have been responsible for the bombing of a Pan Am flight in 1982, and said that the sole source of any such duty was contractual, and said that the Court of Federal Claims would decide in the first instance whether Petitioner's suit represents a contract action over which it may assert jurisdiction.

Inaccuracies On Form I-294 Are Not Grounds For Downward Departure
In US v. Miranda-Ramirez, No. 01-4096 (10th Cir. Oct. 31, 2002), the court held that the district court properly determined that a downward departure for Defendant based on inaccuracies on Form I-294 would be contrary to the Sentencing Guidelines' important purposes of affording adequate deterrence to criminal conduct and promoting respect for the law.

GAO Report On H-1B Visa Fees Grants
The General Accounting Office in response to requests from members of Congress submitted a report on Grants from H-1B visa fees.

Immigration Attorney Debates Rep. Tancredo
The Denver Post reports on a debate featuring immigration attorney Donna Lipinski and Rep. Tancredo (R-CO)

Rep. Tancredo Says His Alien Grandfather's Cheap Labor Was Good Public Policy For US
The Aurora Sentinel quotes Rep. Tancredo (R-CO) "Tancredo said times have changed since his Italian grandfather, Joseph Tancredi, was shipped to America at the age of 9 and resisted authorities' attempts to return him to Italy. He said it was good public policy at the time because the nation needed cheap labor."

Police Chief Wants US To Seal Borders
The Portsmouth Herald quotes the Police Chief of Kittery, ME saying "We need to seal our borders. We need stricter enforcement of existing immigration laws and stronger deportation policies."

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Letters to the Editor

Dear Editor:
Imbedded in Cyrus Mehta's article, ably summarizing the ALJ's lengthy opinion in Administrator v. Kutty, I find a troubling statement that compels a response from me, the attorney who initiated the complaint that resulted in the opinion:

"Employers must also be aware that when the wages on the LCA are not complied with, an H-1B worker, who is already very savvy about immigration issues, is likely to complain to DOL through a handful of attorneys who are now increasingly taking on such matters to compensate for reduced business in the filing of actual H-1B petitions."

I am sure Mr. Mehta, an able and honorable attorney, meant no harm by the remark, but I cannot let it pass. The remark tends to suggest that attorneys who represent an alien in enforcing his or her rights under the DOL-based labor condition rules in connection with H-1B cases are only doing so because they lack business representing employers. For the record, I lead the Immigration Team in a full service law firm of 250 lawyers and public policy advisors in 9 cities including a Washington, D.C. office that is one of the top 10 lobbying firms in the nation. The Immigration Team is part of a Labor and Employment Group of about 30 lawyers that chooses, for business reasons, to represent almost exclusively management, as opposed to workers with claims against management. Our Health Law Department, consisting of about 40 lawyers, represents sophisticated health providers throughout the U.S. Our Immigration Team, however, has always handled all kinds of immigration matters, from investors to medical to IT to family to removal proceedings. We represent some of the largest employers and medical providers in the United States. We have not had any slacking of our business, and our Immigration Team was growing steadily larger as I took on their cases against Dr. Kutty (and still is).

When a number of doctors approached me about their complex immigration and other issues, and I confirmed we had no conflict with a representation adverse to their employer who had eggregiously violated their rights, I took on their cases, and my job was to pursue all of their remedies, only some of which were addressed by notifying the Department of Labor Wage and Hour Division about their LCA-based complaint. We also brought lawsuits against Dr. Kutty's various employer entities to invalidate noncompetition and early termination penalty clauses (litigated in state and federal court), worked with their new employers to arrange ongoing immigration status, and worked with INS headquarters to assure their "immigration" protection as whistleblowers. My firm was perhaps uniquely qualified to handle the range of actions necessary. If the business orientation of our practice had posed an impediment to pursuing all their remedies, then I should not have taken on their representation at all. Surely Mr. Mehta would not have done any less had he been contacted by the doctors instead of me. The point is that taking a rarely used position on behalf of a client does not reflect that a lawyer doing so is desperately trying to fill a practice void-- it means only that the lawyer is representing the client zealously, as we are all ethically required to do. Surely Mr. Mehta does not mean to suggest otherwise. Thank you for serving as a meaningful forum for immigration developments. And I thank Mr. Mehta for an excellent article about the ALJ's decision.

Robert Divine, Esq.
Baker, Donelson, Bearman & Caldwell, P.C.
Chattanooga, TN

Dear Editor:
In response to Patrick J. Corr's letter of October 31st, I can provide some insight. It appears that the SS Administration has a link to the INS' database and verifies any documents that are brought into them via this system. I have had 3 employees recently run into this trouble. The 1st entered the US as an H-1B holder (has been for several years), she recently married and went into SS Administration in New Jersey to change her name on the card. SSA said they could not change it because the database showed her as a J-1 holder and not eligible for a SS card. She went to the local INS office to see why her records showed this and they told her to write to a place in ND. After talking with me, we decided the error occurred on her last entry into the US and maybe the airport is the correct place to start. She went to Newark Airport's INS office and they reviewed the documents and noted they would make the correction, it took several weeks but it got resolved. Another employee had entered the US with a valid, although expiring L-1 visa stamp, and presented his new approval notice for extension. He did not review his I-94 card, but when his wife went to get a new SS number based on her new EAD card, they said her husband's status was only valid for a month and they could not issue a card. Back we went to the airport to get the I-94 card corrected to reflect the appropriate date. The wife has subsequently gotten her new SS number. The third individual was also a similar issue with a mistake by the INS inspector. She was the L-1 holder and she came with a rather large family. The inspector indicated on all I-94 cards the L-2 designation. We went back to the airport to get that corrected and when she went to SS Administration they told her the database reflected L-2 status and she required an EAD card to get the proper SS number. It took about another 2 weeks before the SS administration had the right information on their database.

As much as I can determine, in the interest of tracking foreign nationals, INS has this office in ND that inputs all the information obtained at the airports. This is where data error has had an impact on various government agencies that can access the information. Another employee had a recent issue with an Inspector at the airport when he put the wrong information on the I-94 card and before leaving the station the employee asked him to correct it. His response was to send her into the INS office for their review. Another inspector corrected the card but advised her that her database records showed that she had an overstay issue that would impact her staying here permanently. He wouldn't give her specifics and since she will be pursuing permanent residency, we thought we better review what INS has on her records. Based on our employment/immigration documents, there has been no overstay issue, so the employee has sent a letter with documentation to the ND center to ask for clarification on her immigration history. This was done about 3 weeks ago and she has not had a response from INS. This is the address provided to us by INS Vermont: INS Database Correction and Entry Unit, ACIS/NIIS, PO Box 1059, Belcourt, N.D. 58316-1059.

Any other insight would be greatly appreciated.

Deborah Couch
Immigration Paralegal, Dow Jones & Company, Inc.
Princeton, NJ

Dear Editor:
In response to your editorial in the November 1, 2002 issue of Immigration Daily, all I can say is "Stop the world, I want to get off . . . . ." (sorry if I "plagiarized" this phrase, but I don't remember where it came from, so I can't give the author credit - I probably got it in an email that had no reference to its origin) . . . . and stop calling lawbreakers "immigrants" and start calling them "illegal immigrants", or just plain "illegals" . . . . I thought I covered this in a previous letter.

While the plight of all Haitians, in Haiti and on boats bound for the United States, may be horrible - because their government is horrible - that does not give Haitians, or any other people of the world, the right to invade the shores of the United States by land, sea or air. Many governments around the world are horrible and, regretfully, their people suffer economic hardship because of their horrific human rights policies or because of war, famine, natural disaster or lack of infrastructure. But no first world country, including the USA, can just open their borders to a mass influx of uncontrolled immigration whether it is from contiguous nations, or far abroad. Who was it that said, "Justice is blind"? (Again, sorry I can't quote the source, and again, please excuse my plagiarism.) Were they right? . . . . whoever they were? Or should justice be denied those who cannot walk, swim or drive into the United States because they do not reside in a contiguous nation, and favor be given only our closest neighbors, as President Bush and President Fox would like? The fact is, no person from any ghetto of any U.S. city has the lawful right to come to the suburbs, enter, without permission, the house of a prosperous suburbian, demand to be sheltered, fed, clothed and given work, and justify such entry on the basis they are unemployed, their ghetto landlord is an repressive, irresponsible skinflint and their own house in the ghetto is not so fine. (For those suburbians out there who disagree, please leave your name, address and phone number in your reply - I will be happy to accommodate your generous offer to shelter the ghetto - we can begin by sending some from 4th Street in Los Angeles, or perhaps those "Down and Out in Beverly Hills".) The analogy is simple. There . . . that solves that debate - now let's solve problems . . . . . . We must work, as a nation, work to pass good, well reasoned, immigration laws to replace the currently unworkable and often cruel H-2 program, which replaced the reprehensible Brasero Program of the fifties. We need to speed up the processing of "immediate relatives", who, using overseas processing, can take a year or more from filing to adjustment and family unification. We need laws that will allow people from other countries to legally enter the United States to fill jobs "Americans will not do" (that's what I meant by "meeting the needs of employers" - including all the diplomats and politicians in Washington D.C. who hire Guatemalan and Salvadorian domestics). But allowing a wholesale invasion by land, air or sea is not immigration, it is lawlessness, plain and simple.

I am neither on the right, nor am I on the left, but you forgot to mention those voices of moderation standing out there in the wilderness, who do not have a political, economic or religious agenda to fulfill, who do not believe salvation lies in the second coming of the Messiah, but who recognize that U.S. immigration law has grown over the past century like the Winchester mansion, adding one room at a time, until it is a maze of disconnected rooms, anterooms and hallways, with doors that open into brick walls and stairways that lead nowhere. It is time, rather than concentrating on the right or on the left, that credit is given to the moderates, who, rather than furthering agendas, truly care about passing good laws.

David D. Murray, Esq.
Newport Beach, CA

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