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Immigration Daily April 11, 2003
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Editor's Comments

Citizenship - Reward Or Recognition?

An online petition drive has been started by a former Marine to appeal to Congress to grant US citizenship to an Iraqi called "Mohammed" and his family for their role in the rescue of Prisoner of War Jessica Lynch. The petition says that "good comes to those who help U.S. Troops and citizens in danger", obviously implying that US Citizenship should be viewed as a reward. While we would be delighted if US immigration policy could be used to help our troops when they are in peril, there is danger in the view that US Citizenship should always, or even mainly, be viewed as a reward. Many people in America, regardless of whether they are pro-immigration or anti-immigration or neutral on immigration, view US Citizenship as a reward, and Congresspersons are never short on rhetoric in describing US Citizenship as a privilege bestowed from on high by this country upon its immigrants if they qualify for such an act of grace. This view, while popular and seductive, is mistaken. The plain fact is that we need immigrants (of course they need us, too). Our economy and country need their energy, their dedication, their productivity, all of which are impossible without their presence. Our country's relationship with immigrants is two-way; not one-way. Once immigrants have assimiliated into our society, citizenship completes their assimiliation into our body-politic. Conferring eventual citizenship upon immigrants should be viewed simply as a way of recognizing the immigrants who have already assimilated into our economy, and our country.


Curriculum For Labor Cert Phone Seminar

Seasoned practitioners of the art and science of labor certification know that we immigration lawyers face the toughest times in our collective memory:

  • Industry and employer layoffs have made Reduction in Recruitment a burdensome and seemingly snail-paced process.
  • Regional variations in policies and practices among the several Certifying Officers can trip up even the most accomplished immigration lawyers.
  • The lack of agency funding and the still-to-be processed 245(i) cases have created backlogs in standard and RIR cases for as far as the eye can see.
  • New legislation allowing H-1B extensions beyond six years cause us to puzzle over the choice of RIR or standard labor certification.
  • Against this backdrop, we fret over the as-yet unpublished PERM final rule. The latest predictions from the Labor Department are that a final or interim final PERM rule will be published in July and effective by October, 2003.
  • How can practitioners best prepare cases in the current economic environment?
  • How should we gear up for PERM?

Topics will include:

  1. Prevailing Wage issues:
    • Level 1/Level 2 and jobs in the mid-level range
    • Area of intended employment
    • Crosswalk and Reverse Crosswalk Issues and the grouping of DOT positions as transferred to the OES
    • Applying the TEGL: Perspectives of the Regions, SWAs and practicing attorneys

  2. RIR Issues:
    • Differences between the SWA and the Region
    • Labor certifications for IT jobs: Myth or Reality?
    • Aftermath in the Regions of the Ziegler I and II memoranda involving layoffs in the industry or by the sponsoring employer
    • Employer burdens in responding to the flood of resumes from unqualified applicants, and the resultant extra work in preparing the recruitment report: How much detail is required?

  3. Backlog reduction measures:
    • What steps are the Regions and the SWAs taking in advance of the PERM rollout?

  4. The PERM Rollout:
    • What's going to happen and when?
    • What will happen to related occupations?
    • What will happen to university degree requirements for certain positions involving a combination of education and experience?
    • How will Schedule A be affected?
    • Will business necessity survive?

  5. Potpourri of other issues:
    • The status of "Or equivalent" today after Chintakuntla
    • Inconsistencies among adjudicators in the same Region
    • Increased NOFs at some Regions.

For more info on this phone seminar series, including detailed curriculum, speaker bios, and registration information, please see:
For all the above by fax, please see:

Featured Article

Family Sponsor Immigration Act of 2002 (Public Law 107-150, March 13, 2002)
Pravinchandra J. Patel, Esq. provides an analytical overview of this statute with some practical procedural guidance.

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Immigration Law News

DOS Seeks Montenegro Grant Proposals
The Department of State sought grant proposals for a project to support training in public administration and public policy development in Montenegro. All submitted proposals must be in compliance with J Visa regulations.

Time Limit For Filing A Petition For Review Under INA Is Mandatory And Jurisdictional, And Not Subject To Equitable Tolling
In Gaur v. Ashcroft, No. 01-2988 (3rd Cir. Apr. 4, 2003), the court denied Petitioner's petition for review for lack of appellate jurisdiction as untimely filed. However, the court said that he was not without recourse and that Petitioner could file a motion with the Board of Immigration Appeals (BIA) to reopen removal proceedings on the basis of ineffective assistance of counsel or that the BIA could reopen sua sponte.

Muslim Native Of Ivory Coast Fails To Demonstrate Eligibility For Asylum
In Bamory v. Ashcroft, No. 02-2515 (3rd Cir. Apr. 4, 2003), the court said that the the Board of Immigration Appeal's (BIA) conclusions were supported by substantial evidence, since, inter alia, Petitioner was never arrested or harmed by government officials, offered no testimony that he received direct threats from anyone, and remained in the Ivory Coast without incident for nine months.

BICE Faces Challenge Of Validating Identification Documents
Washington Technology reports that "One of the biggest challenges facing [BICE], the enforcement bureau is how to establish the identities of people in other countries who wish to come to the US.... Proving the validity of source documents, such as birth certificates, called feeder documents, is part of the challenge, said Scott Hastings, chief information officer of the bureau."

Judge Who Ruled That Immigration Hearings May Be Closed For National Security Reasons Retires As 3rd Circuit Chief Judge
The Northeastern Pennsylvania News reports that Judge Becker will step down as chief judge of the 3rd US Circuit Court of Appeals. During his career, he wrote the court's ruling that immigration hearings may be closed by the government for reasons of national security.

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Letters to the Editor

Dear Editor:
Immigration Daily's featured article entitled "Health-Related Grounds Of Inadmissibility" by Gregory Siskind and Amy Ballentine was excellent. The discussion of drug abuse or addiction was enlightening, but should have specified that drug abuse or addiction renders the alien inadmissible, pursuant to INA 212(a)(1)(A)(iv).

Anna Boryczewski's Immigration Daily article titled "Running to Canada" was informative, but included the following broad statement: "A major benefit is that Canada, unlike the US, allows the immigrant to begin working while their asylum application is being processed." A US asylum applicant can work during the processing of his or her application for asylum. The asylum applicant in the US can apply for employment authorization pursuant to 8 CFR 208.7. See also 8 CFR 274a.12(c)(8) and 8 CFR 274a.13(a)(1) for more details. The I-765 Application for Employment Authorization (EAD) contains a ground for asylum [(c)(8)]. Admittedly, there is a minimum 150-day wait after the filing of the asylum application before the application for EAD can be filed, and the BCIS sometimes wrongly denies the EAD. But the right to work remains.

Martin M. Solomon

Dear Editor:
There are a lot of misleading statements and inaccuracies in Chicago Tribune's news item, Congress Takes on H1B visas (which appeared in the April 9th issue of Immigration Daily), which I would like to point out. First of all, Mr. Peter Bennett claims that "every place [he] sent a resume had an H1B bidding for the same job." I wonder how Mr. Bennett knew that. Companies are not in the habit of divulging information about fellow job applicants to those who apply, not even to recruiters. That would be confidential information. Mr. Bennett then states that he was there just so they (the company) could say they had interviewed an American. Well, this implies that a pre-requisite of the H1B program is the testing of the US labor market. Here, Mr. Bennett and the writer are confusing the H1B program with the permanent labor certification program. There is no requirement to test the labor market for H1B's, and hence no requirement to "interview Americans". There is, however, a requirement that the prevailing wage be met, precisely so that U.S. workers' wages are not undercut. As one who handles immigration matters for many IT companies, it has been my experience that H1B workers can be among the highest paid workers in a company. Rather than think of the justification for H1Bs in terms of worker shortages across the IT industry, I think it's more constructive to see it as shortages in particular skill areas. Companies are simply bidding for the best talent - the high tech workers with the appropriate skillsets - often the hottest and most marketable skillsets - whereever these workers may come from. After all, if you are a company trying to make a profit, particularly one in a besieged industry within a struggling economy, don't you have to hire the best person for the job in order to stay competitive? Many critics like to talk about high tech workers as if they were a homogenous lot. However, as anyone who actually works in the industry knows, very few software engineers are boilerplate professionals. Each job demands a unique skillset, which is very dynamic. By no means is one software engineer interchangeable with another. Add to that the fact that some multinational companies have proprietary technology which is developed and marketed all over the world through corporate partnerships, and the pool of potential job candidates becomes truly global. While I sympathize tremendously with any unemployed American high-tech worker, I don't think the H1B program should be scapegoated for all of his job woes. The second misleading comment in the article concerns the return to the 65,000 annual cap on H1B's. The article says that foes of the H1B program want the annual cap to return to the 65,000 limit established in 1990. Well, this is not something for which they need to lobby. The same legislation that raised the cap to 195,000 - the American Competitiveness in the 21st Century Act (AC21) stipulated that the cap would return to 65,000 in October of 2003. There need be no additional act of Congress to roll the numbers back, as the article implies. In fact, there may need to be an act of Congress to increase the numbers should the economy recover such that labor shortages are once again a factor. The third inaccuracy concerns the statement that H1B petitioners must overcome the assumption they will try to immigrate. This is not true. The INS has for some time recognized the principle of "dual intent" with regard to H1B's. This means that H1B's can legitimately have the intent to work temporarily at the same time that they can have the intent to apply for permanent residence. By contrast, F-1 students cannot have dual intent until and unless they convert to H1B status. And, yes a green card candidate can work in the U.S. on a permit for as long as the process takes, but why is Mr. Gildea indignant about this? By the time the individual has filed an I-485 application and obtained an Employment Authorization Card, he has already met the criteria for labor certification, including the labor market test, and his employer has filed an I-140, Petition for Alien Worker on his behalf. Most people have, by the time they file their I-485, been in the permanent residence process for 1-3 years already. No one is pretending that the immigration program is temporary by that point. Many have by the end of the process given 6-10 years of their lives to one company, perhaps forfeiting better career opportunities along the way. Are we going to begrudge them the promise of some stability as to their living situation so that they can purchase a home, educate their children and become contributing members of their communities? Are we going to force companies to lose loyal and talented workers because of increasing INS (BCIS) processing delays? Given that this is such an emotional issue for so many people, all the more reason I think we have to be really careful to get the facts straight.


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Editorial Advisory Board
Marc Ellis, Gary Endelman

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