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Immigration Daily December 17, 2002
Previous Issues
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Editor's Comments

Nationals of Saudi Arabia, Pakistan and Armenia were added to the list of countries subject to Registration requirements. This fast-expanding list (will India, with its large Muslim population, be next?) makes it appear that sooner or later, Special Registration and NSEERS will cover all nationals. Doubtless, that would lay to rest the argument that Registration requirements are discriminatory. What this has to do with national security is far from clear. It is hard to believe that fingerprinting the next Mohammed Atta upon entry and requiring him to register will prevent the next September 11th from occurring. Terrorists are unlikely to comply with Registration requirements, and nor are they likely to be deterred by such requirements. What Registration will lead to is harrassment aplenty for the hapless multitude of innocent immigrants ensnared by it. Their travails, which will likely be well-covered by the media, will make it appear that, by golly, our government is doing something to prevent the next disaster. In other words, Special Registration appears to us to be more form than substance as far as any nexus with national security goes. Turning to immigration issues in this area, Special Registration will likely be a mixed blessing for immigration lawyers. On the one hand, it increases the portion of the immigrant population likely to seek counsel. On the other hand, good counsel on this subject is hard to give in the fast-changing environment today. Immigration Daily will continue to keep you on top of the events in this area.


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Featured Article

Matter of Gomez-Gomez: The Boards Second Decision On The Effectiveness Of Service Of Removal Notices On Minors
Christina B. LaBrie writes about the effectiveness of service of notice on a minor and compares the Mejia-Andino decision with the recent Gomez-Gomez decision.

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Immigration Law News

Armenians, Pakistanis, and Saudis Need To Register
The Department of Justice issued the third such Notice, this time requiring that certain nationals and citizens of Armenia, Pakistan, and Saudi Arabia who entered the US on or before September 30, 2002, and who will remain in the US after February 21, 2003 to submit information under the National Security Entry-Exit Registration System ("NSEERS").

DOL Dismisses Appeal In Wrongly-Docketed LCA Matter
In the Matter of Wage and Hour Division v. Computech Corporation, No. 2002-LCA-9 (OALJ, Dec. 10, 2002), the Office of Administrative Law Judges dismissed the appeal since the Employer did not seek review of the prevailing wage decision by the State Workforce Agency within the 10 days allotted by 20 CFR 655.731(d)(2).

Downward Departure Is In District Court's Discretion
In US v. Maganda-Chino, No. 02-4513 (4th Cir. Dec. 16, 2002), the court said that the district court's decision not to depart downward was not subject to appellate review and said that it did not have the authority to review Defendant's sentence.

No Abuse Of Discretion In Denial Of Downward Departure For Cultural Assimilation
In US v. Ortega-Ibarra, No. 02-2825 (8th Cir. Dec. 16, 2002), the court said that the district court did not abuse its discretion in denying to depart downward based on cultural assimilation.

Denial Of Extension Motion By Disbarred Attorney Reversed
In Rios v. Department of Justice, No. 02-2032 (10th Cir. Dec. 16, 2002), the court said that the magistrate judge failed to apply the appropriate legal standard when she did not render a determination on the issue of excusable neglect due to representation by a disbarred attorney resulting in the plaintiff's failure to file a timely notice of appeal and reversed the denial of plaintiff's motion for an extension to file an appeal.

3rd Circuit Remands To BIA In Light Of Supremes Decision In Ventura
In Sene v. Ashcroft, No. 01-3278 (3rd Cir. Dec. 11, 2002), the court found that since the Board of Immigration Appeals (BIA) did not consider Petitioner's explanations for discrepancies, it was constrained to remand for further proceedings before the BIA in light of the Supreme Court's recent decision in INS v. Ventura.

Eligibility For 212(c) Relief Does Not Warrant Due Process Protection
In US v. Lopez-Ortiz, No. 01-21264 (5th Cir. Dec. 13, 2002), the court revised its Nov. 18, 2002 opinion where it held that because eligibility for 212(c) relief is not a liberty or property interest warranting due process protection, the Immigration Judge's error in failing to explain Defendant's eligibility did not rise to the level of fundamental unfairness.

DREAM Act Would Not Let Potential Go To Waste
The San Diego Union-Tribune reports "The Development, Relief and Education for Alien Minor Act, known as the DREAM Act, would grant U.S. residency to certain undocumented immigrants who graduate from high school. Its supporters are optimistic the bill will become law, because it has influential sponsors on both sides of the aisle: Sens. Orrin Hatch, R-Utah, and Richard Durbin, D-Ill."

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Letters to the Editor

Dear Editor:
From Mr. Frecker's perspective, the matricula consular "is not such a great deal". He notes it does nothing to legalize the holder's immigration status, claims it doesn't do anything for security, and opines that anyone to whom the card may be presented will most likely know that they are dealing with an illegal (i.e. undocumented) alien. I admit to all this; except, I believe it does help security somewhat in that Mexico is now identifying its undocumented immigrants in this country (any record is better than no record). From the point of view of the undocumented Mexican immigrant, on the other hand, the card is "a great deal". The little white card with a green-and-red curved stripe and the holder's photo identifies him as a Mexican citizen. It gives him an official identity where he had none. A positive identification allows him to cash a paycheck, open a bank account to deposit his savings (instead of stashing it unsafely under the mattress or in a coffee can); and with a bank account he can transfer money to his family in Mexico at reasonable rates-of-charge instead of the almost 20% now charged by some private money changers who arbitrarily establish their own fees. (Charging 20% for international money transfer to me seems like usury--one fifth of the moneys sent home is lost in transfer fees!).

That the users of the matricula are likely to be undocumented, doesn't concern at least some banks here in Columbus, Ohio. In fact, most people that I know care little or nothing about the political status of Mexican immigrants they encounter working here. As another recent writer ("Name not Supplied") wrote: " [The government] has an informal policy of winking at illegal immigration". I would like to rephrase that: Our government treats undocumented workers with benign neglect. It realizes (as do most economists) the need for these workers in our economy but does not have the will to resolve their status. I believe that these workers have lingered long enough in their political purgatory and have earned their expiation. The government of Mexico in issuing these matricula cards is identifying its own citizens that are working in this country without papers. That in no way interfers with the internal affairs of our country. Identification of ones own citizens by ones own country in no way affects the national security of another country. Mexico is proud of its citizens who leave home and loved ones, risk their lives, and work at demeaning and thankless jobs to support their families and homeland. These immigrants, with the earnings they send back to their families, are the second largest source of revenue for their country. To their countrymen, they are national heroes--and rightly so. In the US, undocumented Mexican workers contribute over $300 billion annually to our economy (UCLA report, 9-10-01).

The "Name not Supplied" writer also wrote : "thirteen states allow holders of Mexican Consular cards to use these cards as documentation to get a driver's license". I am not aware of this and wonder if this writer can substantiate his statement? Which thirteen states honor the card?) I concur with this writer that neither a driver's license nor a social security number is adequate for national security identification in these times of terrorism. T

Richard E. Baer, DVM

Dear Editor:
David D. Murrays letter of 12/12/02, responding to my article that accuses INS, for policy reasons, of killing tens of thousands of American citizens each year, is apparently the current general position in this country on the question of whether any registered nurses should receive H-1B visas. His expert opinion aside, however, he is wrong in several particulars. He is particularly wrong where he claims that it is the law that is killing all of these American citizens, not policy. In point of fact it is INS policy that is directly causing all of these deaths. First and foremost, we are dealing with critical care nurses who are specialty workers in a specialty occupation. They are not ward nurses. The expertise, education, training and experience necessary to fill a critical care position far exceed the minimum education needed to qualify a registered nurse for an RN license. A critical care nurse must receive this additional expertise, education, training and experience before being allowed to take an unsupervised post in a critical care unit. This additional knowledge is earned by the nurse either from additional years of study in school or long years of training on the job.

INS already accepts certain nursing positions as specialty positions. Head nurses, nurse administrators, nurse anesthesiologists and nurse practitioners, among others, are generally accepted by INS as requiring a baccalaureate degree to qualify for the position and receive H-1B visas. This is because it is perceived by INS that it takes much more education and training for these nurses to be able to do their job than is received in a two or three year program. Attorney Murray states, if all nurses need bachelors degrees to become licensed, all nurses should be able [to] qualify for H-1B visas on the basis that nursing in a specialty occupation but the fact is, bachelors degrees are not required for nurse licensure. While he is correct in what he says, he misses the entire point of the arguments made at the time the petitions were filed by our attorney, an attorney who had, at that time, over 30 years of experience in Immigration Law and over 20 years experience bringing in foreign nurses.

Within the job classification of registered nurse there are positions that require professional abilities from the nurse that are far above those abilities gained in the basic non-baccalaureate nursing program. For example, a surgical patient who has had heart surgery is placed into a critical care unit after surgery. The doctors present in that unit, merely to qualify to be in that unit, must have had many years of specialty training in addition to their basic four year medical degree. There is complicated modern medical apparatus present that requires the RN to have special training and education. The nurses that care for these patients must have knowledge, experience and education far in excess of the knowledge received in a two or three year degree so that they will immediately recognize the possible complications that may arise in the critical care unit and be able to take the proper immediate corrective action necessary to save the life of the patient. In fact, the surgical nurses that assisted the surgeons during the operation that put this patient into the critical care unit also required that same higher level of knowledge in order to work with a surgical team in the pressure filled operating room. Imagine inexperienced, non-professional nurses assisting the cream of the medical profession, the heart surgeon, in the operating room. It doesnt happen. Yet INS says it should happen. I have been informed by our attorney that 8 C.F.R. 214.2(h)(4)(iii)(A)(1-4) is the regulation that determines whether or not a worker qualifies as a professional for H-1B purposes, and that in particular number 4 pertains to this case. To qualify as a specialty occupation, the position must meet one of the following criteria: (4) The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. Critical care nurses must have a professional level of education to do their jobs because of the necessity of specialized knowledge and complex duties.

The reality is that it is merely the policy of INS and not the law or regulations that result in denial of H-1B visas for critical care specialty nurses. Because the arguments made by our attorney were sound, numerous INS reviewers at the Vermont Service Center approved about 40 H-1B visas over a period of several months, all without any denials. These were all for critical care RNs being petitioned for our clients. The approvals were based solely on these and similar arguments. Suddenly the approvals stopped coming. INS became aware that specialty RNs were being approved by their reviewers. They stopped the approvals and changed policy. Subsequent responses were denials. The fact is that the positions petitioned for are and were professional, the approvals were correctly issued and that the subsequent denials were improperly made merely because of INS policy.

It may surprise you to know that the Department of Veterans Affair, a department of the US government, has a policy that now requires that all new hires of critical care nurses to work at VA hospitals have at a minimum a baccalaureate degree in nursing. They must be professional. All RNs currently working for the VA without a baccalaureate are being educated at government expense to raise their education to the baccalaureate level. Evidently the federal government believes this is the minimum education level necessary to safeguard patients using its hospitals, and is using tax dollars to enforce this policy. This contrasts markedly with the INS policy that denies foreign baccalaureate nurses to the rest of the American public. This VA policy is a good policy. Yet, why is it US policy that veterans tended in VA Hospitals have baccalaureate nurses in critical care units, but not veterans in public hospitals? Civilians and veterans should also receive quality nursing care in critical care units in civil hospitals.

Tens of thousands of US citizens will die this year because hospitals and other medical facilities are not allowed by INS policy to bring in professional RNs. The Journal of the AMA is clear on this point. It seems particularly galling when contrasted with the actions taken by the administration in setting up The Department of Homeland Defense. Here, the entire fabric of government is being changed as a reaction to the bombing of the World Trade Center, the fear of future terrorism and the death of three thousand people. As to RNs, INS policy kills tens of thousands of US citizens each year. The fabric of the government does not have to be reformed. New laws need not be passed. All that needs to be done is to have an ill-conceived, recidivist policy reconsidered by INS. Critical care nurses are professional. INS should accept this, change its policy and save these tens of thousands of lives. Tell your Congressional leaders.

Brian E. Grutman, Executive Vice President
Pilot Employment Agency II, Inc.

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