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Immigration Daily

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Immigration Daily July 30, 2002
Previous Issues

Editor's Comments

Today's Immigration Daily features a BALCA case on the issue of whether unpaid experience can be used to qualify the alien for the job in a labor certification application. In the case today, BALCA said that such experience, including experience where the alien was paid "under the table," could be used provided credible supporting documentation and/or corroborating affidavits or declarations of witnesses with personal knowledge was offered as proof of the employment. As long time readers of Immigration Daily may have noticed, we have recently increased our coverage of matters from the Department of Labor affecting Business Immigration. We hope this helps us further round-out coverage of the immigration law field.


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Featured Article

Virginia Immigration Attorney Charged In Major Visa Scam
Jose Latour writes about the recent arrest of an immigration attorney for fraud.

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Immigration Law News

BALCA Says Unpaid Experience Could Be Used To Qualify Alien For Job If Burden Of Proof Is Met
In the Matter of B & B Residential Facility, No. 2001-INA-00146 (BALCA, Jul. 16, 2002), the Board of Alien Labor Certification Appeals said that it is not the position of the Department of Labor that upaid experience cannot be used to establish an alien's qualifications for the job. The BALCA said that it unpaid experience or "under the table" payments may be difficult to document, but that in order to carry the burden of proof, the applicant would need to present credible supporting documentation of the work and/or corroborating affidavits or declarations of witnesses with personal knowledge. The alien in this case had stated that she had been virtually a "slave" to a family in Kuwait, Saudi Arabia (sic).

President Wants INS Services To Be Moved Along With INS Enforcement And EOIR
The Bush Administration issued a Statement of Administrative Policy on the Homeland Security Bill recently passed by the House, which said in relation to immigration matters: "The Administration appreciates that the Committee transferred INS enforcement functions to the new Department, but is deeply concerned that the bill retains INS services functions in the Department of Justice. The services and enforcement functions of the INS are mutually supportive, are governed by the same provisions of immigration law, and rely for their effective operations on the same information systems. Therefore, both the service and enforcement elements of the INS should be moved to the new Department. The Administration also believes that it is important that the Executive Office of Immigration Review and associated adjudicatory functions be moved to the new Department, in order to maintain consistent and uniform control, interpretation, and application of immigration law and policy."

White House On Immigration Attorney Arrest
In reply to a question about the immigration attorney arrested for fraud in Virginia, White House Press Secretary Fleischer said the government would "vigorously investigate and prosecute and arrest .. anybody who engages in such practices."

House Debates Immigration And Homeland Security
The House debate on H.R. 5005 (the Homeland Security Bill) featured numerous comments on immigration by various Representatives.

Border Patrol Chief Receives Award From Attorney General
The Chief of the Border Patrol for the INS was awarded the Attorney Generals Award for Distinguished Service.

Almendarez-Torres Not Overruled By Apprendi
In US v. Baltazar-Felix, No. 02-4012 (4th Cir. Jul. 29, 2002), the court said that the increase in the sentence for illegal reentry after deportation as an aggravated felon is only a sentencing factor, not a separate offense that must be charged in the indictment or proved beyond a reasonable doubt.

Amended Sentence Leads To Rehearing
In Bayudan v. Ashcroft, No. 00-70916 (9th Cir. Jul. 29, 2002), the court set aside its April 15, 2002 decision dismissing the case for lack of jurisdiction, since Petitioner's one year sentence for manslaughter in Hawaii was amended to 364 days, thus making his offense not an aggravated felony. The court requested briefing from the parties on whether it had jurisdiction to hear the case as it now stands, and whether Petitioner was deportable for conviction of a crime of moral turpitude.

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Rep. Gephardt Begins Conversation On Legalization
The Atlanta Journal-Constitution says that House Minority Leader "Gephardt's proposal to legalize all illegal immigrants who have lived here for five years as law-abiding citizens and worked for at least two years may not be quite the right solution. But it is certainly a good place to start the conversation."

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Letters to the Editor

Dear Editor:
This is in reply to a letter in the July 29th issue of Immigration Daily. It is a sad day, but one cannot classify an entire group pejoratively, based on a few "bad" apples. No, a few bad apples do not spoil the whole barrel of immigration attorneys. Immigration attorneys are among the most dedicated as a topical practice area to "legal social work" and "pro bono" work for indigent clients, and many immigrants would ask and expect services at a very low cost, or no cost, and I wonder if the author of the ascerbic letter condemning "all" immigration attorneys, donates hundreds of hours and thousands of dollars in costs to indigent immigrants, or others in charity work? Each time I help another immigrant (or their American friend of family), and it is pro bono, they appreciate it. I have been told in several languages, that I have been an angel to someone. Has the writer of that letter been told that? Many of the people I have helped could have paid me. I wonder if the author of that scathing letter, would assist someone with your best efforts in your profession, even if the receiver is receiving your assistance at no charge, even if he/she could pay. Sometimes, yes, even immigration attorneys, are people too, and we just help people to the best of our ability, because that is part of living a meaningful life that makes a difference. Walk a mile in our shoes before you condemn "all" immigration attorneys!

E.Schneider, Esq.
Minneapolis, MN

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Editorial Advisory Board
Marc Ellis, Gary Endelman

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