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Immigration Daily June 30, 2003
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Editor's Comments

NOLA Roundup

For the 90% of our readers who were not at the recently concluded AILA conference in New Orleans, here are some of the highlights from the meet. Many practitioners felt negative vibes from the senior governmental representatives - the idea that immigration is mostly about security led to a gloomy feeling among many attendees (perhaps the anti-immigrationists will celebrate at this news). Reflecting the current state of finances (or the lack thereof) at immigration law firms across the country, attendance was reportedly down about 15%. On a positive note, however, the number of exhibitors was up strongly to its highest ever, mostly due to the large number of new software companies. The improved productivity and client service made possible by the new generation of software in immigration law portends a major change in business processes at law firms and may also perhaps alter the competitive landscape for practitioners in the years to come. We understand that the annual member's meeting was unusually spirited with a large number of motions and issues debated. New Orleans was very hot and humid, and a trip outside the Conference hotels was a sweaty experience. However the location of the hotels was right in New Orleans's historic French Quarter, so hopefully many of the attendees were able to take in a pleasant cultural and tourist experience before heading home.


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Featured Article

Employment Options For Students, Part 3 of 4
Gregory Siskind offers a comprehensive look at employment options for students.

Staying Out Of Harm's Way: Immigration Pitfalls That Employment Lawyers And Their Clients Should Avoid: Part 1 of 3
Angelo A. Paparelli and John C. Valdez provide an overview of the immigration consequences of a variety of employment decisions.

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Immigration Law News

DHHS Seeks Grant Proposals
The Office of Refugee Resettlement (ORR) of the Department of Health and Human Services sought eligible entities to submit competitive grant applications for microenterprise development projects for refugees.

DOS Seeks Comments
The Office Of Visa Services of the Department of State sought comments on Form DSP-122, Supplemental Registration for the Diversity Immigrant Visa Program.

OMB Says BCIS E-filing Is Boost To Businesses
The Office of Management and Budget, Executive Office of the President in a notice said, "The Bureau [BCIS] has instituted electronic filing of some applications and provides application status on line. These improvements have been a boost to many businesses, providing a speedy mechanism for filling critical positions with foreign experts or semi-skilled workers with temporary and permanent foreign workers."

BCIS "Adjudicate Orphan Status First" Pilot Program
A memorandum from the Acting Associate Director, Operations at the Bureau of Citizenship and Immigration Services to interim regional directors, services acting director, international affairs offers guidance on a new pilot program to determine a child's status as an orphan under the INA prior to a US citizen adopting or obtaining legal custody of a child for the following five countries: Haiti, Honduras, Philippines, Poland, and Sierra Leone. For the memorandum please see this link. For additional information on the Adjudicate Orphan Status First Pilot Program, please see this link.

White House Says Immigrants Make For A Richer, Stronger, Better Country
During a press briefing, White House Spokesman Fleischer in response to a question, said "The President wants to welcome immigrants legally to the US."

Alien Subject To Removal Due To Felony Committed Pre-IIRIRA But Convicted After IIRIRA Is Ineligible For 212(c) Discretionary Relief
In Hibbert v. Ashcroft, No. 02-2281 (2nd Cir. Jun. 20, 2003), the court said that an alien, subject to removal because of a felony committed prior to the effective dates of [AEDPA] and [IIRIRA] but convicted after those dates, was ineligible for discretionary relief pursuant to former section 212(c).

Rational Basis Exists For Denial Of 212(h) Waiver To LPRs
In Taniguichi v. Ashcroft, No. 00-16928, 00-71053 (9th Cir. Jun. 18, 2003), the court denied rehearing en banc (the dissent to this order said that 212(h) violates the bedrock concept of Equal Protection under the law) for its original opinion dated Aug. 23, 2002 and later amended Sep. 25, 2002 where it held that equitable tolling was not argued to the Board of Immigration Appeals (BIA), nor discussed by the BIA, nor argued to the court and that therefore that issue was not exhausted and was waived by failure to present it to the court; and that a rational basis exists for denying 212(h) waiver to aggravated felon Legal Permanent Residents but not other aliens; and that since Petitioner did not raise before the District Court an ineffective assistance of counsel argument on the grounds that her former attorney failed to file an administrative appeal, she waived the claim.

212(h) Trumps ICCPR
In Verissimo v. INS, No. 02-2151 (1st Cir. Jun. 26, 2003), the court said that the district court correctly determined that Petitioner failed to state a claim because an alien convicted of narcotics violation was ineligible for a waiver under INA 212(h). The court also said that the district court correctly determined that section 212(h) trumps the International Covenant of Civil and Political Rights (ICCPR) because the statute was subsequent in time to the treaty.

Opinion On Bribery During Course Of Arrest Of Alien
In US v. Synowiec, No. 03-1169, 03-1235 (7th Cir. Jun. 24, 2003), the court said it rendered a decision regarding when Defendant had bribed an immigration agent. The bribery arose in the course of an arrest of an undocumented alien.

Post 9/11 Detentions And Immigration Enforcement Ineffective
The San Francisco Chronicle reports that "Doris Meissner, who was commissioner of the INS in the Clinton administration and is now a senior fellow with the Migration Policy Institute said, "We support effective immigration enforcement, but . . . this kind of enforcement is not effective."

Sen. Lieberman Calls US Border Policy Immoral And Unacceptable
The San Jose Mercury News reports "Two rivals for the Democratic presidential nomination bitterly complained Friday that the Bush administration is using the Sept. 11 terrorist attacks as a pretext for sharply curtailing immigration."

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Letters to the Editor

Dear Editor:
Let me remind Mr. Ranger that menial jobs do exist in this country and someone has to do them. It is predicted that by the year 2010 that they will constitute 43% of all job openings, i.e. of jobs that require only a minimal education. Who will fill these jobs? Not our American compatriots. They would rather go on welfare than do that kind of work. Americans are obtaining college degrees in record numbers and are unlikely to accept, at any wage, positions requiring only minimal educations. The Mexican immigrants want to fill these jobs and they do it well. Let's find a legal way in which they can come into this country, properly identified, to do this work and let's protect their rights and pay them a compensatory wage for it. The vast majority of Mexican immigrants will return to their homeland after a few years' work; and the few that want to obtain citizenship should be welcomed as were our own ancestors. In the meantime, the 3/10 year ban law should be abolished so that the millions now here that want to return home can; and, hopefully, if they should want to return again, can do so and this time can do it legally.

Richard E. Baer

Dear Editor:
I'm glad to see my remarks on the H-1B issue sparked a good debate, but I must say I am surprised to see the, forgive me, disingenuous nature of many of the comments made. A common theme among those who responded was an objection to my mentioning that the H-1Bs are de facto indentured servants. The indignant respondents implied that this was something I conjured up myself, ignoring my statement that even the highly pro-industry National Research Council report, commissioned by Congress, had made the same point. The H-1Bs themselves have made the point as well. As many of you know, they formed an organization, the Immigrants Support Network, to lobby Congress to alleviate precisely this problem. ISN Board Member Murali Devarakonda has put it this way: "This is legal human rights violation in America...You [as an H-1B] are an indentured servant, a modern-day slave, must leave the country...You can't be promoted. You are legally prohibited from competing and going up...We cannot compete legally." Whether one likes the specific term "slave," as insulting to Justin's ancestors indicated in his letter to the Editor(and Mr. Siskind's and mine, I might point out to Justin), the fact is that what Mr. Devarakonda said was true, and of course totally contrary to what Mr. Siskind claimed in his letter. All immigration attorneys are well aware of this, so there is no need to "protest too much" in this forum of Immigration Daily. If an H-1B is being sponsored for a green card, he/she is basically immobile until the very last stage of the green card process, i.e. immobile for several years. Employers, immigration attorneys, HR executives etc. have admitted that this immobility (euphemistically referred to as "employer loyalty") is highly attractive to employers. If Mr. Siskind's letter is sincere in its claim that H-1Bs should have full mobility, including during the entire time their green card is pending, from Day One, then he should endorse one of the various "instant green card" proposals which I and others have made. My proposal, outlined in the Web document I cited last time, would allow an H-1B to change jobs as often as he/she wishes, starting right away, yet still get a green card. There is just one problem: My proposal would eliminate the immigration lawyer from the equation. Mr. Siskind's letter to the Editor then brings up the dreaded "P word" - protectionism. How can you accuse "J," the Chinese-American engineer I mentioned who was basically laid off and replaced by H-1Bs, as being "afraid of competition"? He had done a scintillating job for his employer, having been awarded US patents (one of which got a mention in the Wall Street Journal) and formal honors from the employer. But the employer (a household name which I won't mention here) was on a cost-cutting binge, so "J" was tossed out. Those of you who naively think that the best always survive might consider the following rather low-tech example: Circuit City recently announced that it was laying off its top salespeople, and replacing them with entry-level people. The firm hated to do this, but again, the short-term lure of cost-cutting is what took priority. Personally, I'm really big on quality. I've driven only Japanese cars for years, because I think they're made better than the American ones. Similarly, I have very actively supported bringing in "the Best and the Brightest" engineers into this country. I've helped top foreign students get jobs and green cards in the industry, and have persuaded my department colleagues to hire brilliant foreign nationals for our faculty. People of "J"'s talents, whether native or foreign-born, are rare in this industry, so we should grab top people when we have the chance, again regardless of where they were born. But the vast majority of high-tech H-1Bs are ordinary people doing ordinary work. They are the cheapest, not the best and the brightest, as numerous studies have shown, and as those of us who work in the trenches have repeatedly observed. Objecting to the importation of cheap labor is not protectionism, it's the law.

Norm Matloff

Dear Editor:
I would like to make a comment regarding the use of Netscape Browser on ILW.COM. As a matter of choice, I am using an "ancient" (your word) version of Netscape 4.7 because I have downloaded 6.0 and then 7.0 (more recently and am sending this email with 7.0) but have had problems / bugs with both of these versions and so, have returned to 4.7 which works just fine. I also have Explorer (which I do not prefer to use). As far as upgrading and entering the "21st century," I will certainly do so when Netscape and other software manufacturers can get their acts together and produce a product that their users can access the first time without problems. Until then, I obviously, will use the program that I am comfortable with and which, at the very least, works. I understand your site's need to upgrade, however, you must realize that there will be a number of your subscribers who will find accessing your site with older versions impossible, and thus, will go elsewhere for their immigration information.

Jessica LeBeau

Editor's Note: While we are not experts on Netscape issues, we do believe that Netscape 7.02 (not Netscape 7.0) is robust and unlike Netscape 6.0 which we understand had many bugs. Netscape 4.7 is undoubtedly a robust browser; however, it lacks many features and improvements that this category of software has seen over the past several years. We also understand that Netscape 7.02 may be the last version of Netscape. According to our statistics, even prior to our website redesign in late 2002, Netscape users (all versions) were in the low single digit percentages of our website visitors. We believe that this number is in line with the experience of many other websites. We once again urge those of our readers using older versions of Netscape to consider upgrading to Netscape 7.02 or Internet Explorer 5.0 and above.

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Editorial Advisory Board
Marc Ellis, Gary Endelman

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