Editor's Comments

Immigration Daily today brings you much news. The House of Representatives passed by a vote of 400-4 a provision sponsored by Rep. Lamar Smith, Republican from Texas, to grant a 7th year extension to H-1B visa holders whose labor certification was filed before the end of the fifth year. Sen. Campbell (R-CO) introduced a private bill to grant permanent residence to a family targeted by Rep. Tancredo (R-CO) for deportation. We understand that Rep. Tancredo's views on this matter are not shared by INS Commissioner Ziglar or the White House. A BALCA decision rejected an employer's alternate wage survey since the requisite criteria enunciated in GAL 2-98 were not met, a study of this decision might help attorneys contemplating prevailing wage challenges before SWAs, the DOL Regions and/or BALCA. The BIA has extensively revised its Practice Manual Q&As. There is ofcourse, much else including articles on H-1B and INS Detainees, an immigration attorney help wanted ad and three letters to the Editor, plus much more. Scroll down to find the item of interest to you.

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Featured Article

H-1B Series: The H-1B Beneficiary's Required Qualifications, Part 3
George N. Lester IV continues a detailed examination of the qualifications for H-1B beneficiaries.

ABA Series: A Legal Guide For INS Detainees
The Commission on Immigration Policy, Practice and Pro Bono of the American Bar Association provides the 5th of 8 parts of its Legal Guide for INS Detainees.

Immigration Law News

BALCA Says Alternate Wage Survey Provided By Employer Does Not Meet GAL 2-98 Requirements
In the Matter of Metropolitan Life Insurance Co., No. 2002-INA-31 (BALCA, Sep. 25, 2002), the Board of Alien Labor Certification Appeals said that the alternate wage survey provided by Employer did not address all the requirements of GAL 2-98, even though it was performed by an individual who represented that he had over 30 years of experience in recruitment and had published a survey that is relied upon by industry and the Bureau of Labor Statistics for the past 17 years, since the job description used in the survey was too restrictive, and since he did not provide a description of the survey methodology used, did not identify the number of companies surveyed, the source used to select them, but merely provided a conclusory survey.

Sen. Campbell Introduces Private Bill For Family Targeted For Deportation By Rep. Tancredo
Sen. Campbell (R-CO) introduced a private bill to grant permanent residence to the Colorado family that Rep. Tancredo (R-CO) wanted deported.

Rep. Lamar Smith Sponsors 7th Year Extension For H-1Bs With LCs Filed Before 5th Year
By a vote of 400-4, the House of Representatives adopted a conference report on the Department of Justice's Appropriations Bill which includes a provision granting a 7th-year extension for H-1B visa holders whose labor certification was filed before the end of the fifth year. Rep. Dreier (R-CA) and Rep. Jackson-Lee (D-TX) spoke on immigration matters in the bill. Rep. Smith (R-TX) sponsored this provision. Here are Lamar Smith's comments: "An immigration provision I sponsored benefits the high-tech sector. It allows high-tech workers with H1-B visas who apply for an extension beyond their normal 6 years to extend their stay in the U.S. while their application is pending ... Mr. Speaker, I urge my colleagues to support this conference report. Mr. Speaker, Section 11030 A of the conference report will permit H- 1B aliens who have labor certification applications caught in lengthy agency backlogs to extend their status beyond the 6th year limitation or, if they have already exceeded such limitation, to have a new H-1B petition approved so they can apply for an H-1B visa to return from abroad or otherwise re-obtain H-1B status. Either a labor certification application or a petition must be filed at least 365 days prior to the end of the 6th year in order for the alien to be eligible under this section. The slight modification to existing law made by this section is necessary to avoid the disruption of important projects caused by the sudden loss of valued employees. This corrects a problem created in the American Competitiveness in the 21st Century Act (Pub. L. 106-313)(AC21). The provision, as it was orginially written, allowed for extensions of H-1B status beyond the usual 6 years, but required that a labor certification be filed more than 365 days before the end of the 6th year and that an immigrant petition, the next step in the long line to permanent residency, be filed before the end of the 6 year as well. When it passed AC 21, Congress intended to protect foreign nationals and the companies who sponsor them from the inequities of government bureaucracy inefficiency. This specific provision was put in place to recognize the lengthy delays at INS in adjusticalting petitions, rather than DOL. But since that time, DOL has slowed down its own processing, and the provision as it was orginially written has become useless for many otherwise qualified applicants. This correction allows for those in H-1B status to get extensions beyond the six years when a labor certification was filed before the end of the fifth year, without regard to the ability to file an immigrant petition within the next year. The conferees intends that those who are about the exceed their six years in H-1B status should not be subject to the additional requirement of having to file the immigrant petition by the end of the sixth year, which is simply impossible when DOL has not finished its part in the process. This recognizes that these individuals are already well-valued by their companies, have significant ties to the U.S. and whose employers have to prove that they are not taking jobs from U.S. workers. It also is meant to permit those who have exceeded their six year limitation to return to H-1B status. The conferees intend for this provision to allow those who already exceeded the 6-year limitation to have a new H-1B petition approved and obtain a visa to return from abroad or otherwise re-obtain H-1B status."

Bill Introduced To Defray Cost To States Of Health Care For Undocumented
Sen. Kyl (R-AZ), Sen. McCain (R-AZ), Sen. Domenici (R-NM), and Sen. Bingaman (D-NM) introduced the Local Emergency Health Services Reimbursement Act of 2002 in order to provide appropriate Federal reimbursement to States and localities whose budgets are disproportionately affected by the emergency health costs associated with illegal immigration.

Rep. Schiff Comments On Korean Immigration 100th Anniversary
Rep. Schiff (D-CA) commented on the 100th anniversary of Korean immigration to the United States.

Oversight Hearing On Egyptian Killer
Rep. Gekas (R-PA) announced an oversight hearing on the Egyptian immigrant who shot 2 people dead in Los Angeles on July 4th.

BIA Revises Practice Manual Q&As
The Board of Immigration Appeals issued a document listing "Practice Manual and Questions and Answers Regarding Proceedings Before the Board [which] have been revised throughout." (Thanks to Elaine C. Schneider, Esq. of Minnesota for bringing this to our attention.)

INS Announces Phase II Of SEVIS
INS announced Phase II of the SEVIS implementation for schools with foreign students.

Mandatory Detention Not Unconstitutional, But Due Process Violations Might Exist
In Kimbembe v. INS, No. 01-8015 (4th Cir. Sep. 27, 2002), the court said that it recently held that 8 USC 1226(c) requiring detention without bail of certain categories of aliens in removal proceedings was not unconstitutional on its face, and remanded the case to the district court to reconsider its decision under the light of the new case law and examine if due process was violated in the instant case.

INS Seeks Comments
INS sought comments on Memorandum of Understanding to Participate in an Employment Eligibility Confirmation Pilot Program; LIFE Legalization Supplement to Form I-485 Instructions, Form I-485D; Application for Replacement Naturalization/Citizenship Document, Form N-565; and The Student and Exchange Visitor Information Systems (SEVIS).

Sen. Campbell Introduces Private Bill To Prevent Deportation Of Family Targeted By Rep. Tancredo
The Rocky Mountain News reports "U.S. Sen. Ben Nighthorse Campbell on Thursday proposed a bill to grant permanent resident status to a family targeted for an INS investigation by Rep. Tom Tancredo."

Immigration Law Out Of Sync With Reality Leads To Frustration Among Enforcers Of The Law
The Washington Times reports "The question of amnesty for illegal aliens is a hot topic not only for politicians in Washington, but also among the thin green line of U.S. Border Patrol agents here and elsewhere along the U.S.-Mexico border. "What the hell are we doing out here?" asked one veteran agent. "Why don't we just pack it in? Amnesty? It's just an open invitation for more illegal aliens to come into the country, stay low for a while and, eventually, get their citizenship papers."

Legislative Fix To Matter Of Izumii?
The Baltimore Sun reports "Acting at the last minute and without public notice, Congress is moving to give special exemptions to a small group of foreign investors who sought to gain permanent U.S. residency by participating in financial partnerships labeled "questionable" by a federal agency."

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Letters to the Editor

Dear Editor:
In David D. Murray's thoughtful letter of September 27, he calls illegal immigration "a crime, perhaps not as serious a crime as serial murder ...". Surely he means "crime" in the colloquial sense of "violation," but non-lawyers might get the wrong idea. Many if not most "illegal immigrants" are civil violators who lack important protections (guaranteed counsel, speedy trials, judicial review, &c.) enjoyed by accused murderers.

Jeffrey A. Heller, Esq.
Cranford, NJ

Dear Editor:
Maybe I'm just the last one to learn about these things, or maybe I missed the issue where you previously discussed this, but I just discovered the that the INS has implemented the capability to allow us to conduct case status searches on line. The URL for this is: "https://egov.ins.usdoj.gov/graphics/cris/jsps/caseStat.jsp". In case this information is not yet widely known by your readership, I am passing this on. If this is old news, I apologize. Keep up your good work.

Paul N. Gilbert, Esq.
Parsippany, NJ

Editor's Note: Earlier this year, we mentioned that this was in the works. Many readers will find the link above useful.

Dear Editor:
"Blimey" has nothing to do with "blarney," which in my dictionary has "nonsense" listed as a synonym, which is not what I meant (for one thing, it would be rude, and I'm sure we're having a civilized discussion here.) "Blimey" (=blind me!) is the Cockney British equivalent of "holy cow!", which is what I meant. The person I was referring to had cited her very impressive credentials in support of her opinion, and I was impressed.

However, she still appears to be missing the point: the phrase "the BIA remanded the case back to the IJ" is one that no editor would let pass intentionally, and you didn't. But to say "the BIA remanded, or sent back, the case to the IJ" would be not only respectful of standard American English usage but also potentially helpful and wholly in line with the "common practitioner" approach, which I believe all 21st-century lawyers should get behind.

Two things seem to be important here: the initial critic of this locution in essence said only what I've just said, so reading with care before taking issue is still a problem; and, no matter who their audience is, people should not talk about "remanding a case back" to the lower court. And that's the whole megillah.

Jane A. Hanson, Attorney at Law