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Immigration Daily February 14, 2005
Previous Issues
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Comment

Unpublished PERM Memo?

Unconfirmed reports are circulating among immigration practitioners that DOL has allegedly issued an unpublished Jan 27, 2005 memo to the SWAs prohibiting the SWAs to assist employers and their counsel with entering job orders preparatory to a PERM filing post-March 28th, and also prohibiting the SWAs to provide prevailing wage determinations prepratory to a PERM filing. At least some SWAs appear to be refusing to cooperate with attorneys preparing for a PERM filing, although other SWAs appear to be cooperating. The situtation is causing great frustration to the bar and the employer-community. DOL's alleged memo may make sense given the statutory March 8th deadline for the new prevailing wage provisions of the Consolidated Appropriations Act of 2005 mandating a new, 4-tier, prevailing wage system to replace the current 2-tier system. Since some states apparently require wages to be part of the job orders, DOL may have a rationale to issue this memo. Unfortunately, however, there is no official word from DOL as to truth or falsehood of the reports of the existence of this memo. We urge DOL to confirm or deny the reports as soon as possible. Denial by DOL will help attorneys confront recalcitrant SWAs, and confirmation will signal attorneys to be patient as DOL rolls out its new PW system. Either way, the sudden freeze in communication by DOL post-PERM rule publication ill-serves the employer and attorney communities. We urge DOL to publish this alleged memo publicly on its website, if indeed such memo exists, or else quickly issue a public denial on its website if reports of the existence of this memo are inaccurate.

We welcome readers to share their opinion and ideas with us by writing to editor@ilw.com.


Focus

Consular Processing Today: Visa Procedures, Security Clearances, And Waivers

ILW.COM is pleased to announce a new 3-part seminar series "Consular Processing Today: Visa Procedures, Security Clearances, And Waivers". The detailed curriculum is as follows:

FIRST Phone Session on February 28th: NIV Issues

Third Country National NIV applications in Canada and Mexico.

  1. Border Post review of who can apply and who cannot.
  2. Rationale for limitations on who cannot apply.
  3. Appointments always necessary.
  4. Can List of 26 and T-7 apply? At which posts can they apply?
  5. Is there a case for a TCN not applying in Canada or Mexico, if eligible to do so?
  6. Border Post review of right to counsel at visa interviews.
  7. Circumstances under which an applicant not issued a visa at a border post can return to the United States.

Home Country Visa Applications.

  1. Appointments almost always necessary. Check waiting times on DOS Website and check consular post Website for details.
  2. Research post policies, personnel and local red flags.
  3. Why BCIS approved petitions (H, L, O, P) are not a promise of a visa.
  4. Prepare the client for the interview and ensure visa applications are completed accurately and completely.
  5. Documents applicant should bring to the interview.
  6. Personal Appearance Waivers.
  7. What to do when there is a glitch at the visa interview (Security clearances; NCIC Checks and Hits in the Database-the applicant forgot about the rest for pot or shoplifting 30 years ago; Petition Issues- Job Inflation, Skills Tests, DOes the job exist and can the employer afford to pay the wage.)

Special Visa Processing Issues.

  1. Considerations in Applying for a B-1/B-2 visa after BC/BP refuses entry under the visa waiver program.
  2. What happens at the visa interview when an applicant subject to NSEERS registration forgot to report to BC/BP upon departure or reported but the computer indicates an NSEERS violation?
  3. Unlawful presence and 222(g) considerations.

SECOND Phone Session on March 16th: IV Issues

Considerations in Consular Processing. Unlawful Presence.

  1. Risk that the applicant's visa and/or immigration history will risk a delay or denial.
  2. Readjudication of labor certifications, visa petitions and
  3. qualifications of applicant.

Considerations in consular policies in processing employment-based immigrant visas on the basis on an original notice of approval of the I-140 and consular acceptance of third country national immigrant visa cases, per DOS Cable 180792, "Processing I-140 Petitions for Applicants Residing in the U.S."

  1. The DOS cable encourage posts to accept third country national IV cases, yet attorneys report few posts willing to help. What can be done?
  2. Processing an IV on the basis of an original notice of approval can save years of waiting. What can attorneys do to increase consular receptivity to such processing, particularly where there are no fraud indicators (Cases with low/no fraud indicators.)
"Following-to-join" issues.
  1. Documents to file with the consular posts.
  2. When can principal alien's entitlement to LPR status be readjudicated at the IV interview of the "following-to-join" spouse or child? When may the IV issuance be properly delayed and for how long? (Issue arises in Manila when principal alien adjusted status as a nurse; Issue arises when principal alien adjusted status as an asylee or through legalization; Issue arises when consular officer questions whether principal alien in F2A (unmarried minor child) and F2B (unmarried, adult son or daughter) cases is maintaining his/her principal place of residence and domicile in the United States at the time of the interview.)
Considerations in family-based petition cases.
  1. When blood relationship questioned, may attorney insist on DNA test and through what mechanism? Often, much time would be saved through DNA testing, particularly when the alternatives are returning an approved petition to BCIS and/or awaiting the outcome of a local investigation.
  2. Strategies to resolve relationship questions locally in lieu of petition return to BCIS.
  3. I-864 issues (Whether petitioner "resides" in the United States.)

Processing of an "Age-Out" Case.

Processing of a Child Status Protection Act (CSPA) Case.

"Portability of an approved alien labor certification and I-140" to immigrant visa processing.

THIRD Phone Session on April 7th: Waiver Practice in Consular Processing

Nonimmigrant Visa Waivers of Inadmissibility.

  1. General Issues
    • Who is eligible for a 212(d)(3) waiver?
    • Which grounds can be waived?
    • Which grounds cannot be waived?
    • The life of a waiver.
  2. Procedures for requesting a 212(d)(3) waiver.
    • Request made to consular officer after refusal.
    • Consular officer can either recommend or refuse to recommend to overseas DHS office that a waiver be granted.
    • DHS has final authority to grant or deny waiver.
    • Appeal Procedures if consular officers refuses to make favorable recommendation and winning strategies.
  3. Processing Times and Procedures.
    • When the waiver request must or may be sent to the Visa Office by the consular officer.
  4. Criteria considered in waiver request/approvals.
    • Matter of Hranka-is it the beginning or end of the consular decision making process?
    • How big, how bad and how long ago was the prevarication?
    • How long ago was the conviction and how serious was the crime?
    • Evidence of reformation and remorse.
    • Purpose of trip. Does life-saving medical treatment trump a trip to Disneyland?
    • Consular officers are directed to apply a balancing test; weighing the equities against the negative factors. How this works in practice.
Immigrant Visa Waivers of Inadmissibility
  1. General Issues
    • Who is eligible for a waiver?
    • Which grounds can be waived?
    • Which grounds cannot be waived?
  2. Procedures for requesting a waiver.
    • Form I-601 filed with consular officer for most grounds.
    • Consular officer must forward I-601 to DHS office overseas for adjudication.
    • Fingerprints and G-325a often required.
    • Send client to IV interview fully documented with respect to both possible grounds of ineligibility and reasons why waiver should be granted.
Coming to America when a visa isn't issued.
  1. General Issues
    • Humanitarian Parole.
    • Visa Waiver at port-of-entry.
    • 212(d)(4) waiver at land border port of entry.

The deadline to sign up is Thursday, February 24th. For more info, detailed curriculum, speaker bios, and registration information, see: http://www.ilw.com/seminars/february2005.shtm. (Fax version: http://www.ilw.com/seminars/february2005.pdf.)


Article

Highlights And Lowlights Of 2004
Alan Lee, Esq. looks back and ranks the various important immigration developments of 2004.


Keep on top of the latest in immigration law! Attend ILW.COM seminars! You can attend ILW.COM phone seminars from the convenience of your office! For more info on the seminars currently available, please click here: http://www.ilw.com/seminars/

News

OIG Audit Concludes Restoring 245(i) Created Flood Of Poor Quality Labor Certs
The Office of Inspector General (OIG) audited the DOL's permanent Foreign Labor Certification program and detailed the adverse affects of the restoration of Section 245(i) of the INA on the ETA's foreign labor certification program in terms of significant increase in workload, predominance of illegal aliens applying for permanent residence status, and poor quality of applications.


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Classifieds

Consular Processing Services
Embassy Connection, LLC, a US based firm with a global network of in-country professionals is available to assist with NIV and IV processing worldwide. We schedule interview appointments, pay visa application fees, communicate any changes of local policies, help gather country-specific supporting documents, and provide on-the-ground comprehensive support in virtually every country. We offer simple fee structure and flexible billing options. Visit www.embassyconnection.com or call 1-888-476-2195 to learn more.

Help Wanted: Immigration Attorney
The Law Offices of Brian D. Lerner in Long Beach, CA, seeks an associate attorney with 2+ years deportation/removal immigration experience in a high volume, fast paced environment. Experience in the following is required: written motions to reopen, opening briefs to the BIA and other appellate agencies; Immigration Court experience (both master and individual hearings); familiarity with cancellation of removal, AOS, asylum, and CAT applications.; familiarity with law on aggravated felonies. Should know how to do bond redetermination hearings. Candidates must: make court appearances, handle large caseload with multiple deadlines, work hard, possess excellent research and writing skills. Duties include drafting points and authorities, briefs, appellate motions, appeals, attorney cover letters, etc. Must be aggressive and thrive in deadline driven environment. We offer competitive pay and benefits. Send resume + cover letter to: Brian D. Lerner at attorney@eimmigration.org.

Help Wanted: Immigration Paralegal
Small mid-town NYC Immigration law firm seeks an enthusiastic, ambitious, multi-tasker, team player with strong writing and verbal skills and experience and interest in immigration law who will "hit the ground running" to handle day-to-day operations, that includes administrative and legal functions. Candidate must be detail-oriented, manage case load independently, possess good organizational and computer skills and is tech savvy. We offer a competitive salary, casual environment, flex/full time and a chance to play a key role in an expanding practice. Send resume + salary requirements in confidence to Virginia Fling: patbarvir@yahoo.com.

Help Wanted: Immigration Paralegals
The Law Offices of Darren B. Silver, a medium sized established law firm in Los Angeles, CA seeks full time paralegals. Experience must be in business/employment petitions, such as H's, L's and E's. Please forward detailed resume regarding your specific experience. Ideal candidate will have two years of experience, is hard working, self-motivating, organized and enjoys a pleasant team work environment. E-mail resumes to Darren Silver at: info@darrensilver.com or fax to: 213-384-8285.

Help Wanted: Immigration Paralegal
Kapoor & Associates, a boutique immigration law firm with offices in mid-town Atlanta and downtown Orlando, is looking for an immigration paralegal for our Atlanta office. We are a high-paced firm with a diverse mix of corporate and individual clients handling all types of employment-and family-based immigration cases. The ideal candidate will have 1-2 years of employment-based immigration experience. But most importantly, s/he will have a true passion for helping our clients achieve their dreams in the US. We offer a competitive salary and benefits. Please forward your resume to Romy Kapoor romy@kapoorlaw.com for consideration.

Help Wanted: Immigration Attorney
Quan, Burdette & Perez, P.C., a leading immigration law firm in Houston, Texas seeks an associate attorney with 3+ years business immigration practice in a high volume, fast paced environment. Experience must include preparation of non-immigrant visa petitions, labor certification applications, EB-1 and NIW petitions, adjustment of status and consular processing. Strong communication skills and case management skills required. E-mail your resume with subject: Immigration Attorney Position to: personnel@quanlaw.com.

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Letters

Readers are welcome to share their comments, email: editor@ilw.com (300-words or fewer preferred).

Dear Editor:
The passage of H.R.418 makes one point clear, that the White House is out of step with the people that live in the US. The Post/ABC poll did not show the junk reported by the likes of polls by American Patrol, FAIR or Lou Dobbs that 95% of the people want the military on the border and that 95% want (all illegals) rounded up and deported (see 2/11/05 ID comment). Like Arizona's Prop 200 which was about non-US citizens not being able to vote, in fact the hope of FAIR and other supporters was to make Latinos and Native Americans intimidated so they would not vote. H.R. 418 will do nothing to fight terror, it will add to the terror and suffering of asylum seekers and for sure result in their abuse and deaths. It will not stop undocumented people from coming to the US. People crossing the border is not a legal issue and laws will not fix it. It is one of surviving, people come after trying everything else they don't stand on the other side and say we don't care about your laws. This H.R. 418 is a slap in the face of all religions, it is disrespect of the Bible, the Torah and Koran.

John Connors

Dear Editor:
I would suggest Immigration Daily and its readership take a look at the other two immigration-related questions in the same poll, one of which appeared before and one after the question Immigration Daily's comment cited (2/11/05 ID). Taking one question from one poll out of context, then using it to make blanket statement that "Americans support immigration" is bad statistics and poor reporting, though it is, I presume, good politics. The immigration-related questions in this poll actually produce contradictory results, which suggests there's something wrong with either the wording of the questions or the sampling. But what can one expect from an "overnight" poll, and only 500 repsondents? To the question "Do you think the US is or is not doing enough to keep illegal immigrants from coming into this country? Do you feel that way strongly or somewhat?", 77 percent said that the US is not doing enough to keep them out. To the question, "Would you support or oppose a law that would prohibit states from giving drivers licenses or any other official photo ID to illegal immigrants?", 57 percent supported such a law. I sure wouldn't interpret the responses to these questions as suggesting that "Americans support immigration", and certainly not illegal immigration.

Ali Alexander

Dear Editor:
Illegal immigration is a pox on our national house. Illegals are by definition law breakers. If we are to expect all persons to abide by the law, then illegal immigrants should be deported as soon as they are caught. Otherwise, why not release all jailed criminals back into society? There is a proper way for an immigrant to gain access to the US. They should follow the law. To do any less is a slap in the face of the taxpayer, the law abiding citizen, and the law itself.

Paul Rusin

Dear Editor:
The House of Representatives just passed legislation that would prevent illegal aliens from obtaining drivers licenses. This has the President's support as well. This will be the beginning of sweeping change in our immigration system that wil no longer reward those who choose to break the law.

Chucky

Dear Editor:
I read Immigration Daily all the time for updates and information. I was wondering if you can maybe help me. Who makes these immigration laws? I am tired of waiting for the I-130 application. First you have to wait years for your petition to get approved, then you have to wait for a visa, mine has a 1998 date, so I still have years and years to go. But employment based applications are much faster. They can get work permits while they wait, and they don't need a visa. I have written to my Senator, and Congressman for help, they were no help. They said that since visas are not available now, I can't expedite my case. Somebody needs our voice heard, everybody thinks we are bad because we are undocumented. I have been living here for 20 years, but because I had bad advice and bad lawyers I'm still waiting for residency. I want to know who makes the laws for immigration? I would like to write them a letter requesting taht they make things easier for everybody, not just for employment based visas.

Liz


comingsNgoings

Readers can share their professional announcements (100-words or less at no charge), email: editor@ilw.com.

New Office
We are pleased to announce the opening of David & Jurakhan LLP, a law firm concentrating in Immigration & Nationality Law. The firm is located at 299 Broadway, Suite 1120, NY, NY 10007. (Ph) 212-791-7646. (Fax) 212-791-7606.


An Important disclaimer! The information provided on this page is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney. Send Correspondence and articles to editor@ilw.com. Letters and articles may be edited and may be published and otherwise used in any medium. Opinions expressed in letters and articles do not necessarily reflect the opinion of ILW.COM.

Publisher:  Sam Udani    Legal Editor:  Michele Kim

Editorial Advisory Board:   Marc Ellis, Gary Endelman

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