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Immigration Daily November 19,2002
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Editor's Comments

In today's Featured Article, "Come Back To America: Alienation And Immigration Advocacy," Gary Endelman makes several interesting points:

He analyzes the recent election losses of the Democratic Party saying "the Democrats lost for the same reason that advocates of a more pro-immigrant posture are losing, namely that they have fundamentally lost touch with a majority culture they neither like nor understand." (Mr. Endelman is a life-long Democrat.) He continues "... the sad truth is that many pro-immigrant advocates do see the private sector, and the culture of capitalism, in [a] sinister light. They reject the profit motive and distrust the American economy. They see immigration policy, in its purest form, as international social work divorced from the grubby pursuit of national objectives ... They see no interest in using immigration to grow the economy, no sense in which national enrichment emerges as a unifying theme. Indeed, the very idea of trusting the market and embracing the profit motive seems inherently immoral, unworthy of true commitment or sincere belief. Pro-immigrant advocates believe that to be successful, to retain its soul, US immigration policy must be immune to the corrupt tendencies of national chauvinism."

Mr. Endelman writes "pro-immigrant advocates who hold the American economy at arms length are the unwitting allies of the Fortress America Crowd that want to keep the gates tightly shut ... [Their essentially and] profoundly conservative mind set [has] disastrous consequences for US immigration. Once we write-off tomorrow and practice the zero-sum gain politics of rearranging the pie that now exists to the exclusion of all else, we play on the anti-immigrant's turf. It is his game played by his rules. It is game that those who want a more expansive and enlightened immigration policy can never win ... Nothing characterizes the anti-capitalist immigration ethos of pro-immigrant advocates, and their nativist soul mates, as its deep pessimism. They shrink from global competition precisely because they think we cannot win."

Instead of proposing ever more onerous labor controls on immigration, as many pro-immigrant advocates do, Mr. Endelman says: "rather than imposing more severe roadblocks to employment-based immigration, pro-immigrant advocates should lobby Congress to support more immigration. Protection of US workers is most fully achieved not when current jobs are protected, an impossible task in any case, but when new ones are created. Properly understood, such protection should not prevent employment-based immigration but make it more possible and rewarding for all segments of American society. The expansion of economic opportunity will render unnecessary artificial labor controls that are out of sync with the real economy and condtradict the way it works."

Pointing out that we live in the information-age and its immigration-related differences with the industrial age which is now passing into history, Mr. Endelman says "refusing to see the clear and present connection between immigration and the aggressive advancement of American interests is to ignore fundamental realities about the world in which we live. Just as great nations competed for raw materials in the era of industrial growth, so international relations in the digital age will increasingly be marked by a global competition for high technology and the talent to make it work. This struggle will be most obvious in the world's advanced economies with the lowest fertility rates and, consequently, the greatest need for immigation. The line between geopolitics and immigration will slowly fade."

Mr. Endelman's article is a fascinating commentary on immigration today.


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

Come Back To America: Alienation And Immigration Advocacy
Gary Endelman writes about the parallels between the Democratic Party and pro-immigrant advocates saying "nothing characterizes the anti-capitalist immigration ethos of pro-immigrant advocates, and their nativist soul mates, as its deep pessimism."

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:

Immigration Law News

Secretary Powell Speaks On Current Controversies In Canada
Secretary of State Powell appeared in Ottawa with Canadian Minister of Foreign Affairs Bill Graham and spoke about the NSEERS program and related issues.

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. Dorgan (D-ND) said, "... I specifically wish to talk about one of their concerns raised in this report that I read, which gave me great personal concern. In the report, the task force concluded that the 650,000 local and State law enforcement officials around the country continue to operate in a virtual intelligence vacuum without access to the terrorist watch list provided by the U.S. Department of State to Immigration and consular officials.''

Rep. Napolitano Lauds Retiring INS District Director
Rep. Napolitano (D-CA) lauded INS District Director Schiltgen, who will be retiring in December 2002 after 27 years of service, saying, " he has achieved a dramatic reduction in the huge backlog of pending applications for naturalization. Today, citizenship cases in Los Angeles are processed in six to eight months, compared to an average of 24 months prior to his arrival. His energy and vision have made him one of the agency's most respected and valued leaders."

President Bush Issues Executive Order Concerning Undocumented Carribeans
President Bush issued an executive order outlining the appropriate responsibilities of the Attorney General, Secretary of State, and Secretary of Defense respectively with regards to undocumented aliens interdicted or intercepted in the Caribbean region.

2241 Petitions Not Subject To Gatekeeping
In Zayas v. INS, No. 01-2564 (3rd Cir. Nov. 18, 2002), the court said that it agreed with the 7th and 9th circuits that the Petitioner's 2241 habeas petition was not subject to the gatekeeping regime of 2244(b), but still upheld the district court's dismissal of his petition for habeas corpus for abuse of writ. In dicta, the court noted that the Board of Immigration Appeals's administration of its timeliness rules seemed, in spirit, not entirely in harmony with the Supreme Court's opinion in Houston v. Lack, 487 US 266 (1988).

Sentencing Court's Discretionary Decision Is Unreviewable
In US v. Beltran-Bueno, No. 02-2271 (8th Cir. Nov. 18, 2002), the court said that the district court's decision not to depart downward on the grounds that Defendant agreed to be voluntarily deported was purely discretionary and thus unreviewable on appeal.

Nevada Battery Is Aggravated Felony
In US v. Gonzalez-Tamariz, No. 00-10542 (9th Cir. Nov. 18, 2002), the court the court said that the district court did not err in applying the 16-level enhancement for aggravated felony because the Defendant's offense of Nevada battery causing substantial bodily harm met the federal defiinition of an aggravated felony even though Nevada state law classified it as gross misdemeanor and because the federal statute plainly provides that a crime of violence is an aggravated felony when the term of imprisonment is "at least one year," not "exceeding one year."

INS Seeks Comments
The INS allowed an additional 30 days for public comments on: the application to replace alien registration card; Form I-90 and the inspection of persons applying for admission involving transit without visas (twov), international-to-international agreements and related liquidated damages.

Ambassador-Designate Discusses Long Awaited Legalization Plans Of Bush Administration
The Star-Telegram of Fort Worth, TX reports on the Bush administration's plans for the long awaited legalization program as explained by the new US Ambassador-designate to Mexico.

Immigration Attorney Advocates For Haitians
Miami New Times reports "Immigration attorney Cheryl Little spent years banging her head against INS bureaucracy, until a Haitian boat cracked it open."

Border Patrol Stops Offend 4th Amendment
An opinion column in the Midland Daily News of Midland, MI says "What part of [the 4th] amendment does the U.S. Border Patrol not understand?"

Court In Nevada Upholds Back Pay To Undocumented Migrants
The Review-Journal of Las Vegas, NV reports "A District Court judge has upheld a state labor commissioner's ruling that five Spanish-speaking carpenters, three of whom are illegal aliens, were denied prevailing wages on a public works project."

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Letters to the Editor

Dear Editor:
Does anyone know whether the Child Status Protection Act also applies to NACARA applicants? My guess is yes, but I cannot find any literature to back up this claim. Any help would be greatly appreciated.

Attorney Name Withheld

Dear Editor:
I am an associate at the law firm of Grotta, Glassman & Hoffman. I was wondering if you could help me locate a case that was on ILW.COM about 3 weeks ago. It was an AAU case that held that an O-1 nonimmigrant must be extraordinary, but that the job they will be working in does not have to be extraordinary. Any help that you could provide would be greatly appreciated.

Andrew J. Zeltner

Editor's Note: Material in the Immigration Daily archive is available at at no cost on ILW.COM. Currently, we have two search engines - Googlesearch under the "Immigrants" section in the left menu strip and the cross-links at the bottom of each page, and Freefind under the "Lawyers" section. We are in the process of overhauling the search function on our site. You can also browse our archives by date.

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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