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Immigration Daily

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Immigration Daily November 18, 2002
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Editor's Comments

Due to an error, the November 15th issue of Immigration Daily was sent out three times. We apologize to our readers.


H-1B Seminar Will Cover LCAs, Adjudications And H-1B/LC Issues

ILW.COM's new seminar "Cutting-Edge Topics In H-1B Practice" features Cyrus Mehta, Robert Divine, Wendi Lazar, Angelo Paparelli, Eleanor Pelta, William Stock and other speakers to be announced. The curriculum is as follows:

FIRST Phone Session on November 25: Latest on LCAs: Analyzing DOL v. Kutty

  • Representing an employee who is not being paid the required wage
  • DOL assessment of back wages and other penalties
  • Deducting Attorney Fees from the required wage
  • When can firing constitute retaliation under the "whistleblower" protections?
  • Benching: Maternity Leave vs. Lack of a License
  • Understanding actual vs. prevailing wages
  • Best practices on developing the public access file

SECOND Phone Session on December 19: H-1B Adjudications at INS Service Centers

  • Responding to the dreaded RFE
  • Problematic Occupations: Marketing Analyst, Nurse Supervisor, etc.
  • Best practices for obtaining a credential evaluation
  • AC21 portability and gaps in employment
  • Representing the terminated H-1B employee in maintaining status
  • Representing the H-1B employer in financial difficulty
  • Tolling 6 year limit for time not spent in the US

THIRD Phone Session on January 24: Achieving Consistency between H-1B and Permanent Residency

  • Holistically planning the case from H-1B to Permanent Residency
  • Ethical issues arising out of dual representation and what to do when a conflict arises
  • Achieving consistency in work experience equivalencies for H-1Bs and EB-3s
  • Prevailing wage issues in the H-1B and Labor Certification
  • 7th year H-1B extensions vs. concurrent filing of I-140 and I-1485
  • Maintaining H-1B status vs. AOS portability with an EAD

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

Featured Article

H-1B Series: The Labor Condition Application - Part 6
George N. Lester IV continues a discussion of the labor condition application.

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Immigration Law News

Congress Continues Debate On The Bill To Abolish The INS
Congress continued its debates on the Homeland Security Act of 2002 including its immigration law provisions. During the debate, Sen. Byrd (D-WV) said, "... Mr. President, do you really believe Osama bin Laden cares whether the associate commissioner for border enforcement will have his title changed to the Assistant Secretary of the Bureau of Border Security? ...No. Osama bin Laden doesn't give a whit what his title is going to be. The al-Qaida doesn't care about that. They are tickled to sit back and watch us be fooled into complacency by virtue of our passing this piece of trash." The continued debate is in two parts: One and Two.

Rep. McCollum Opposes Sober Borders Act
Rep. McCollum (D-MN) expressed her opposition to the Sober Borders Act stating, "while I support the intent of this legislation, it unnecessarily fails to balance our need for safe driving on the borders with the interests of a safe and legal flow of people across the borders too and from the United States."

Bill Introduced To Give Haitians Same Treatment As Cubans
A bill was introduced in Congress which will amend the Cuban Adjustment Act of 1966 to include Haitians as well. Rep. Meek (D-FL) said, "under my bill, the legal rights of Cuban immigrants would continue unchanged. But Haitian immigrants would finally have the same rights as Cubans, under the law."

Private Bill For Adoptee
Private bill H.R. 3758 was passed by the House of Representatives to provide relief to help an adopted girl remain in the US with her new family on the grounds that her adoption was begun before she turned sixteen.

DOS Requests Grant Proposals
The Youth Programs Division of the Bureau of Educational and Cultural Affairs of the Department of State announced an open competition for the Host Family and School placement component of the FREEDOM Support Act/Future Leaders Exchange (FSA/FLEX) program.

Texas Possession Of Marijuana With Mandatory Probation Is Aggravated Felony
In US v. Caicedo-Cuero, No. 02-20751 (5th Cir. Nov. 14, 2002), the court found that Defendant's prior Texas conviction for possession of marijuana was an aggravated felony for purposes of sentence enhancement for illegal reentry after deportation, since the mandated probation in Texas for first-time offenders could be revoked and substituted by a term of imprisonment of up to two years and found that the definition of "drug trafficking crime" at 2L1.2 of the Sentencing Guidelines does not supercede that in 8 USC 1101(a)(43) for purposes of the aggravated felony enhancement. In its latter finding, the first on this issue by a circuit court, the court disagreed with two district court findings on this subject in the 5th and 2nd circuits and said that a 16-lebel increase was intended in the case of serious offenses like murder or drug trafficking offenses where the sentence was over 13 months, while lesser penalties were intended for the less serious but still aggravated offenses including simple drug possession.

Confirmation Of Understanding At Plea Hearing Supercedes Counsel's Prediction
In US v. Gil-Becerra, No. 02-1958 (8th Cir. Nov. 15, 2002), the court said that the District Court did not commit plain error in sentencing Defendant to 1 year of imprisonment followed by 1 year of supervised release for illegal reentry after deportation since Defendant confirmed at his plea hearing that he realized despite his counsel's prediction that he would be sentenced to time served that he could be sentenced to up to 2 years imprisonment.

Going To Trial As Protest Precludes Downward Departure For Acceptance Of Responsibility
In US v. Garcia-Zavala, No. 02-4002 (10th Cir. Nov. 14, 2002), the court said that the Defendant's going to trial for illegal reentry after deportation as a form of protest as to the length of time that the sentencing guidelines indicate for this kind of crime was not a rare situation contemplated by the sentencing guidelines affording him a downward departure for acceptance of responsibility.

Guilt Finding At Prison Disciplinary Hearing Is Not Determination Under 8 USC 1182(a)(2)(A)(i)(II)
In Wilcox v. Aleman Jr, No. 01-6314 (10th Cir. Jul. 22, 2002), the court said that Petitioner's habeas claim was moot since a guilty finding at a prison disciplinary hearing for possessing methamphetamines was not a "determination" that he committed a violation of a controlled substance or regulation under 8 USC 1182(a)(2)(A)(i)(II) because such a violation would require either an admission by the party or a formal judgement entered by a court.

INS Director Defends INS Against Fanatics Saying INS Only Enforces Laws, Does Not Make Them
The Daily Camera of Boulder, CO quotes the Acting Regional Director of the INS in Denver said "Not having a clear mandate and having conflicting laws makes us look like idiots. And I understand that. But we don't make the laws, we enforce what's there."

Court Orders Immediate Release Of Yugoslav Detainee
The Legal Intelligencer reports "In a stiff rebuke to the government, a federal judge in Philadelphia has ordered the immediate release of a Yugoslav native who has been jailed for more than a year, awaiting deportation, saying that the case was marked by "egregious" delays and that there was no reason to believe that the new government in Yugoslavia would ever agree to take him."

Pennsylvania DA Wants To Round-Up All Undocumented And Deport Them, Implies Undocumented Jeopardize Country's Security
The Morning Call of Allentown, PA quotes Northampton County District Attorney John M. Morganelli saying that "the federal government continues to believe that immigration violations by themselves do not warrant enforcement. In my view, this thinking must change. For people who are in this country illegally and commit crimes, we need to round them up, prosecute them and deport them. Political correctness run amuck is jeopardizing the security of our country and the reliability and accuracy of our record-keeping system.''

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Letters to the Editor

Dear Editor:
I received 3 copies of your November 15, 2002 issue. Did someone hit the send button too many times? is there some other glitch in the system?

Pat Vacca

Editor's Note: Please see Editor's Comments above.

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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