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Immigration Daily December 13, 2002
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Featured Article

Special Registration Requirements Clash with EEOC Compliance Manual on National Origin Discrimination
Carl R. Baldwin compares the Compliance Manual of the Equal Employment Opportunity Commission (EEOC) and the INS Special Registration Requirements, making him wonder "whether our national security concerns have crossed the line to become national origin discrimination."

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Immigration Law News

INS Issues Final Rule For Retention and Reporting of F, J, and M Nonimmigrants
The INS issued a final rule amending the INS regulations governing the retention and reporting of information regarding F, J, and M nonimmigrants. This rule also implements the student and exchange visitor information system (SEVIS), establishes a process for electronic reporting by designated school officials of information required to be reported to the INS, and provides clear standards governing student status.

DOS Promulgates SEVIS Interim Final Rule
The Department of State promulgated an interim final rule establishing regulations and procedures for designated Exchange Visitor Program sponsors to gain access to the student and exchange visitor program (SEVP) database through the student and exchange visitor information system (SEVIS) for the reporting of information essential to the administration of their exchange visitor program in an electronic environment.

INS Seeks Comments
The INS requested comments on: Contacts Concerning INS Practitioner Fraud Pilot Program; Form G-1046 and Applicant Survey; Form G-942.

Failure To Challenge BIA's Dismissal Is Waiver Of BIA's Basis Of Dismissal
In Ramirez-Ruiz v. INS, No. 02-2001 (8th Cir. Dec. 12, 2002), the court said that since Petitioner argued only that the Immigration Judge (IJ) abused his discretion in denying his asylum petition, and did not challenge the Board of Immigration Appeal's (BIA) summary dismissal of his appeal from the IJ's denial of his applications for asylum, withholding of removal and protection under the Convention Against Torture, he waived any challenge to the BIA's basis for summary dismissal.

Requirement To Report To Probation Office Within 3 Days Of Reentry, Legal Or Illegal, Is Not Plain Error
In US v. Calles-Abrego, No. 02-2357 (8th Cir. Dec. 12, 2002), the court said that the district court did not plainly err in imposing on the Defendant, as a special condition of his supervised release, the requirement that he comply with the INS rules and not reenter the US illegally, and report to the nearest US Probation Office within 72 hours of any reentry during his supervised release.

Case Remanded To BIA In Light Of Government Brief
In Chen v. Ashcroft, No. 99-71546 (9th Cir. Dec. 12, 2002), the court remanded the case to the Board of Immigration Appeals (BIA) since the BIA appeared ready to grant asylum until more briefing was sought at the 9th circuit.

Consecutive Sentence For Undischarged Term Is Proper
In US v. Morales-Castillo, No. 01-00469 (11th Cir. Dec. 11, 2002), the court said that the district court properly imposed a consecutive sentence on Defendant who was convicted of illegal reentry while serving an undischarged term of imprisonment for a prior aggravated felony.

Immigration Lawyer Convicted
The Las Vegas Sun reports "The owner of an immigration-law firm that filed thousands of work-permit applications with false information and phony signatures was convicted of conspiracy, fraud and money laundering."

Nazi State Being Built In America
An opinion column in the Washington Times says "When a former Iran-Contra defendant gets appointed to run a little-known Defense Department operation called "Total Information Awareness," then posts a sign on his office stating that "Knowledge Is Power," civil libertarians, not surprisingly, are exercised. Adm. John Poindexter may be suited for the job, but is the job suited for a free society that has, until recently, fastidiously safeguarded the privacy of its citizens?"

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Letters to the Editor

Dear Editor:
Thanks for headlining the Colorado case.

Daniel M. Kowalski, Editor-in-Chief
Bender's Immigration Bulletin

Dear Editor:
In the 12-11-2002 ILW.COM featured article, Brian E. Grutman, Executive Vice President of Pilot Employment Agency II, INC., a company that brings foreign nurses to the US, makes an impassioned plea that "INS Policy Costs Tens of Thousands of American Lives Each Year" by denying that critical care registered nurses are professionals affects all Americans. Mr. Grutman also states that it would not take a change in law, but only in INS policy to right this wrong. While Mr. Grutman may be right that we need more nurses in the US, and right that perhaps critical care nurses should be considered professionals, he is wrong on the issue of policy vs. law, and it is clear he does not understand H-1B visa requirements, which are a matter of law, not INS policy, as he suggests.

The bottom line is that if ALL hospitals required critical care nurses to have a bachelor's degree as a minimum qualifying factor of employment, they should qualify for H-1B visas. The devil is in the details of the industry and the nurse licensing boards, and in the educational process. Aha! INS absolved? Perhaps, perhaps not. Perhaps it is a combination of everything . . . the horns of a dilemma from which there is no easy escape.

Nurses, whether they have a bachelor's degree or not, remain on the DOL's Schedule "A" as a recognized shortage occupation and may be directly petitioned for Permanent Residence without the need for a Labor Certification (of course, as we know, this takes a long, long time and produces permanent employees sight unseen by the employer). While it may seem odd, that because of a recognized shortage in U.S. workers, nurses can go straight to the "Green Card", without "passing Go", they cannot obtain the "quick fix" of a nonimmigrant visa (except the H-1C category which is a joke and unworkable) and there simply is no nonimmigrant visa category for which nurses can qualify. Contrary to Mr. Grutman's position, this will take an act of Congress to remedy. Perhaps Mr. Grutman has not been around long enough to be aware the former H-1A program, a really not-so-good program that for years did allow nurses to qualify for H-1 visas, that has now been abolished - by passage of law, not INS policy. Remember, under the former H-1A law, nurses did qualify for H-1A nurse visas. But that is history, relegated to the archives of immigration law by Congressional repeal of the H-1A, not by INS policy, and reinstated by the ill-conceived H-1C boondoggle that is so complex a rocket scientist could not understand and comply with, much less a hospital administrator, or, for that matter, a lawyer . . . . at least not this one - at least not for a reasonable fee.

There are three basic nonimmigrant work authorized visa categories, "E", "H" and "L". "E" visas are out for nurses because hospitals in the US are normally not owned by citizens of countries having a trade treaty with the US. "L" visa are out for nurses because not many US hospitals have overseas branches, subsidiaries, affiliates or parents. This leave the "H" category as the singular salvation for wannbe Florence Nightingales.

In order for a candidate to qualify for an H-1B visa, three basic elements must be met: 1) the alien must have a bachelor's degree or its equivalent; 2) the alien must be offered a job that is considered a "specialty occupation", i.e., an occupation that normally requires a bachelor's degree or higher as a minimum for entry-level; and 3) that the employer guarantee, through registration of a Labor Condition Application, to pay the "prevailing wage", as determined by an appropriate wage survey.

"Nurses", in the nursing industry, are not generally required to have a bachelor's degree for entry level, except in certain categories in which INS might approve the case if the nature of the nursing function clearly requires, as an occupational requirement, that the applicant have a bachelor's degree. Evidently, in Mr. Grutman's experience, critical care nurses are not one of these categories, and alludes to a period in time where INS appears to have approved some critical care nurses in 2000-2001, and he is upset at this fact, and possibly rightfully so. However, so long as there is an LVN - RN dichotomy in the nursing industry, and while LVN's and RN's continue to perform same or similar functions in the nursing industry, nurses will not qualify for H-1B visas, simply because nursing is not considered - within the industry - to be a "specialty occupation". This, sadly is by virtue of the fact that a bachelor's degree is not required as a minimum qualification for entry level. Yet, interestingly, both LVN's and RN's qualify for nursing licenses, with distinctions so miniscule, if any, they do not appear, industry wide, to qualify even degreed nurses as a "specialty occupation". Quite simply, if ALL nurses need bachelor's degrees to become licensed, all nurses should be able qualify for H-1B visas on the basis that nursing is a "specialty occupation" . . . but the fact is, bachelor's degrees are not required for minimum entry level for nurse licensure. Perhaps it is the educational system and state nurse licensing boards that are to blame, rather than INS "policy". Perhaps it is these omnipotent bodies that keep nurses relegated to non-professional status, and this is sad. While Mr. Grutman argues that critical care nurses should be H-1B eligible, it appears the entire system, not only the INS, is against him.

Contrary to Mr. Grutman's position, it would take an act of Congress to re-instate the H-1A program, or any other non-immigrant nurse visa category that would allow nurses to enter the US as nonimmigrants. Yes, the US needs nurses . . . but if the industry and the general public wants nonimmigrant nurses, they should write their Congresspersons and Senators and ask them to change the law, but let's keep the facts straight.

David D. Murray, Esq.
Newport Beach, CA

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