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Immigration Daily December 27, 2002
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Editor's Comments

As we look back at what has been a dismal 2002 for most immigration attorneys and as we prepare to move into 2003, we find reason for hope. 245(i) remains a live matter for legislators and the administration, and this is the one provision above all else that would affect immigration attorneys' bottom lines. So the fact that it has powerful support should be an encouraging sign. The administration also remains committed to some sort of accord with Mexico over employment-based immigration. It appears that some movement on this issue is high on the President's agenda for 2003. That should be another reason for business-immigration practitioners to look at 2003 with hope instead of dread. Fundamentally, much of immigration remains tied to our economy and when the economy picks up, so will immigration. We look forward to an eventful and exciting 2004.


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Featured Article

Department of Homeland Security Update: Part Two
Jose Latour writes about the newly formed Department of Homeland Security.

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Immigration Law News

Adjustment Of Status For Certain Aliens From Southesast Asia
INS issued the final rule for Adjustment of Status for Certain Aliens from Vietnam, Cambodia, and Laos in the US, along with an interim rule with request for comments regarding the waiver of criminal grounds of inadmissibility for certain aliens from Cambodia, Vietnam, and Laos.

No Abuse Of Discretion Where No Argument Advanced About Adequacy Of Application Sent To Wrong Address
In Cabrera-Alvarado v. INS, No. 02-1218 (1st Cir. Dec. 20, 2002), the court said that the Board of Immigration Appeals (BIA) did not abuse its discretion in denying the Petitioner's application for NACARA relief which was mailed to the wrong address, and on which there was conflicting evidence as to its timeliness, and where no argument had been advanced as to whether mailing to the wrong address would be adequate to satisfy Petitioner's regulatory obligation.

No Evidence Offered That Asylum Seekers's Lifestyle Would Be Offensive To Islamic Radicals
In Mediouni v. INS, No. 02-1492 (1st Cir. Dec. 20, 2002), the court said that while evidence in this case permitted an inference that the Petitioner, who was the Algerian son of a French-colonial era military police officer could be targeted for attack by terrorists subsequent to the civil war in Algeria, the evidence did not compel such an inference. The court noted that no evidence was offered that Petitioner's lifestyle would be deemed offensive in the eyes of Islamic radicals.

Ineffective Assistance Of Counsel Claim Denied
In Nabe v. INS, No. 02-1733 (4th Cir. Dec. 24, 2002), the court said that the Board of Immigration Appeal did not abuse its discretion in refusing to reopen proceedings upon finding that Petitioner failed to meet the filing requirements required to prove an inefffective assistance of counsel claim under standards established in Lozada.

District Court's Discretionary Decision On Downward Departure Is Not Reviewable
In US v. Tabares, No. 02-2117 (3rd Cir. Dec. 23, 2002), the court said that Petitioner's appeal for downward departure was not reviewable because the district court explained the reasons underlying its denial, carefully considered all arguments advanced by Petitioner in support of his motion, and acted well within its discretion in denying the relief sought.

Scapegoating Undocumented Does Not Improve Airport Security
The Orange County Register reports on Operation Tarmac and says "Across the country, some have questioned whether the raids really improved airport security, because no terrorists were found."

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Letters to the Editor

Dear Editor:
Thank you, Liem Doan, Esq., for your letter of 12/14/02. It was a good reminder that our system, while far from perfect, still draws people from all over the world.

John H. Frecker
Baileyville, ME

Dear Editor:
I am an attorney concentrating in the practice of Immigration Law, and have done so for over 16 years. I am also the attorney for Pilot Employment Agency and am a prime architect of my clients position in sponsoring registered nurses for H-1B visas. Coincidently, the INS has now apparently espoused new policy that interprets present law and regulations that closely mirror my clients long held position, i.e. that critical care nurses qualify as specialty workers.

Specifically, the memo from Johnny N. Williams, Executive Associate Commissioner, Office of Field Operations, INS to the Service Centers and Appeals Unit on adjudication of H-1B applications for registered nurses was to set policy. While not granting a free pass to all foreign registered nurses wishing to enter the US on H-1B visas, it does set parameters for the approval of registered nurses in many nursing areas, including critical care, operating room, oncology, rehabilitation and pediatric nursing among others. It would appear that there has been some gain to the general health of the country, by INS having adopted this policy. Unfortunately, this is not yet true. What the government gives with one hand, it takes away with the other.

By a Department of State interim rule, effective December 17, 2002, it is generally believed that it is necessary to obtain a Visa Screen certificate in order for the issuance of a nonimmigrant visa to all health care workers with the exception of doctors. The current consensus opinion is that this interim rule does not allow a foreign registered nurse to enter on an H-1B visa unless and until the CGFNS (or a State NCLEX), the TOEFL, TWE and TSE have all been passed and the Visa Screen Certificate has been issued, for all aliens except Canadians and Mexicans. Fortunately, like the general consensus about whether or not critical care nurses qualify for H-1B visas, the general consensus is wrong here too. Since enactment of the visa screen requirement under IIRAIRA, there has been a waiver of the visa screen requirement for the issuance of nonimmigrant visas. Due to a perceived conflict with the provisions of NAFTA, in the area of nonimmigrant visas, the requirement that health care workers obtain the visa screen was limited to permanent resident applications. A waiver of the requirement was granted to nonimmigrant petitions until the perceived conflict with the provisions of NAFTA is corrected. The perceived conflict with the provisions was not corrected by 12/17/2002, the date of the interim rule, nor has it been corrected to date. The language in the interim rule explains that because of the perceived conflict with certain provisions of NAFTA, the waiver will be continued. Most of the articles written on this subject state the belief of their authors that the waiver pertains only to NAFTA countries, i.e. Mexico and Canada. This is not correct. The waiver is still in effect for all countries. Am I correct on this too? Youll have to decide. However, the waiver can be rescinded at any moment, and it is up to the Consuls in each of the US Consulates around the world to decide on an individual case basis whether or not to continue granting the waiver. Also, should the interim rule becomes final, the waiver can be discarded whenever the conflict is resolved between the provisions of NAFTA and the rule.

There is much to do if the interim rule is to be defeated. Congress must be made aware of all of the problems created by a visa screen requirement for nonimmigrant visas. It must also be educated as to the problems inherent in bringing foreign nurses to the US. For example, there is the CGFNS which, though it tries to do its job properly, takes far too long to qualify foreign personnel. Getting anything through CGFNS is difficult. When it was first formed in the late 1970s, the Commission efficiently processed applications and gave tests within a period of a few months. Over the years this changed. Due to its internal procedures the process is now unreasonably extended. It can take 6 to 9 months merely to get verification of a foreign nurses credentials if CGFNS is doing the verification. This does not include setting a date for the test. And the test is given only a few times each year. Despite the fact that many of the foreign nurses take their nursing education in the English Language, pass TOEFL and the TWE, and pass the CGFNS examination which is given in English, they do not fare so well with the TSE (Test of Spoken English). This test, given by the Educational Testing Service (ETS), has a much lower rate of passage. The TSE is recorded on tape, and graded in the USA by ETS personnel. Unlike a written test, where the grade is objective, the mark based objectively on correct answers, the TSE is graded in a subjective manner. It is up to the considered opinion of the grader whether or not the nurse passes, and this most often leads to the necessity of the nurse taking the test time after time, paying a new fee each time the test is taken. Whatever criteria are used to grade the test, over 75% of Philippine registered nurses fail it the first time. This is not because they do not understand English, or because they cannot do their job. It is because of perceived deficiencies in pronunciation and accent, among other criteria. Why this test is a requirement is a mystery, because the test does not impact upon the ability of foreign nurses to do their jobs in America. The law says that the TSE is a requirement, but I question, and Congress should also question, what administration policy is so important that we put a totally spurious obstacle in the way of hospitals obtaining the nurses necessary to keep our hospital patients alive.

Here is where policy and law get mixed. Law dictates that INS enforce the visa screen. Policy, as evidenced by the will of the people, should result, if enough people complain, in the interim rule being defeated. Ask for a better rule, one that exempts registered nurses for the time being. Congress, of course, must change the law, but there is no reason for INS to rush enforcement of this law. It need not do so. INS can make the waiver permanent, or, as it has done to date, continue the waiver indefinitely. There is indication that certain members of Congress are beginning to understand the effect of INS policy on the lives of the average American citizen. The question for Congress is whether to expedite the entry of foreign nurses, or whether to accept the steadily mounting death toll in the hospitals, due directly to understaffing of registered nurses. The problem is exacerbated by the ageing of the RN population in our medical facilities, their retirement due to ageing and their retirement due to dissatisfaction with the profession because of chronic overwork and forced overtime. Within a few years, no less than 20% of our present working RNs will have retired solely due to ageing, and our nursing schools are not only failing to fill the medical facilities with new RNs, they are failing to merely keep up with the retirees.

Make no mistake about it. The general question is one of immigration policy. The laws that will be passed will all conform to the policy decided upon. Enforcement will also conform to policy. In the meantime, if you must have an operation in the hospital, bring your own RN to the hospital with you. That is, if you want to be certain that there will be a registered nurse watching over you and available to save your life.

To the question what you can do now, write a letter to the Department of State, giving your comments on the interim rule. Send them in duplicate, to Chief, Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20520-0106; by e-mail to; or by fax at 202 663-3898. Send copies to your Congressional representatives and Senators. Explain your concerns, if you have them. Perhaps you can help educate them.

Be proactive. The life you save may be your childs.

Robert M. Kuhnreich, Esq.
New York, NY

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Editorial Advisory Board
Marc Ellis, Gary Endelman

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