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Immigration Daily February 15, 2005
Previous Issues
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Comment

Is There A Visa In The House?

Today's Immigration Daily Featured Article by Gary Endelman addresses the AC 21 Section 104 critique raised by many readers (see letters to the Editor) to his recent PERM article, "Somethin's Gotta Give: PERM And The Pressure For Larger Immigrant Quotas" (2/02/05 ID). For the article, see here.

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

Is There A Visa In The House? Why AC 21 May Not Help Us After PERM
Gary Endelman writes "...how will our clients stay in the US while waiting to grab their brass ring? The solution that most immigration lawyers thought would be there, namely section 104(c) of the American Competitiveness in the 21st Century Act ("AC 21") may not turn out to be that much help after all."


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News

DHS, DOS Announce Extension Of Visa Mantis Clearances
The DHS and the DOS announced the extension of visa clearances for persons studying or working in certain sensitive scientific and technical fields. For the DHS press release, see here. For the DOS, press release, see here.

White House Responds To Construction Of Wall Along Mexico Border
During a White House press briefing, White House Spokesman responded to the following query, "Does the President support, specifically, construction of the wall on the border?"


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Classifieds

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Consular Processing Services
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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.

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Letters

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

Dear Editor:
I read your coment (2/14/05 ID) regarding the SWA's attitude toward helping attorneys with PERM. My experience with the SWA was very positive. I telephoned the California SWA yesterday to request a prevailing wage determination form and to get some help with the filing. My call was answered on the first ring by Officer Rick. He was extremely helpful, not only in answering my questions, but in also voluntarily pointing out websites where I could obtain more information as well. Perhaps some state SWAs are having problems, but California does not seem to.

Anu Gupta, Esq.
Immigration Desk, Inc.

Dear Editor:
John Connors, a fellow "Maine-iac (resident of Maine), is reacting predictably to the passage of HR 418 by the House of Representatives (2/14/05 ID). Mr. Connors is a staunch defender of illegal aliens and rushes "into the breach" to attack any measure which might control illegal immigration to this country. I can agree with Mr. Connors on one thing - "the White House is out of step with (the majority) of people that live in the U.S". A large majority of Americans want something done about illegal immigration.

John H. Frecker

Dear Editor:
It appears that Mr. Connors has the idea (admittedly reinforced by our President's public posture) that the immigration policy of the U.S. should be run on religious precepts (2/14/05 ID). If control of one's borders and who lives within them is "disrespect" of the Bible, the Torah, and the Koran, then why is it that Israel and Muslim nations are the ones pushing the hardest for respect of their borders and their sovereignty? Why are some of the most repressive and exclusionary regimes in this world ones which use religion as justification for governing? Religion is a lousy basis on which to run an immigration policy, much less a country.

Ali Alexander

Dear Editor:
While I don't disagree with polls, what I disagree with is the "guest worker" legislation that I have seen so far (2/11/05 ID). If I were an illegal immigrant I would prefer illegal status to what the proposed guest worker legislation provides. Immigration Daily should provide serious words of caution on everything put forward so far for the guest worker. Becoming legal in the guest worker legislation I have seen means you would get all the pain and no gain for becoming a guest worker. I think if I were an illegal worker I would prefer the cash system that exists right now, no taxes on my poor wages to go with no rights, to the "guest" option, taxes on my wages and poor treatment to boot. The guest worker legislation is a boon for employers who stand to gain a lot more than the "guests." I would like to see one critical essay that outlines exactly what guest workers would gain through currently proposed legislation vs. what employers would gain in a side by side. It's less for more for the illegal immigrants. So I vote no. I cannot support immigration that will legalize further mistreatment of those who take jobs that "no other American's want". As the grandchild of an immigrant who worked in a locked garment factory I cannot support legalization that does not provide all legal workers with the same benefits and labor rights that I have. My mother always taught me that I should treat a guest to the very best I have to offer. I think what we have suggested so far misses the mark by a long shot.

Stephanie Tabone

Dear Editor:
As usual, I read Gary Endelman's most recent article eagerly (2/02/05 ID). It's wonderful to have someone in AILA thinking out of the box and more big picture than the rest of us. I did notice an unusual error I believe on the second page paragraph beginning "Unless and until..." AC21 Sec. 104(c) provides for continued H1B grants in increments of 3 years where I-140 is approved and adjustment can't be filed because of per country limitations - see June 19, 2001 Memo - unless you know of something superseding this that I missed.

Lynne R. Feldman, Esq.
Erwin, Martinkus & Cole, Ltd.

Dear Editor:
A few comments on Gary Endelman's thoughtful article on Immigrant Visa Quotas, Somethin's Gotta Give: PERM And The Pressure For Larger Immigrant Quotas (2/2/05 ID). First, with respect to H-1B extensions beyond 6 years for individuals affected by the per country quotas, the article overlooks an important provision of AC21. Section 104(c) of AC21 allows for extensions beyond 6 years for H-1B workers who are ineligible for adjustment of status because of the per country limitations. Secondly, the article mistakenly blames the retrogression in the EB-3 (and EB-2) categories on a sudden flood of I-140 petitions arising from 245(i) labor certifications finally being adjudicated. In fact, the honeymoon period we have enjoyed, with an absence of cut-off dates, has little to do with the flow of I-140 petitions, and much more with the INS/CIS failure to adjudicate the backlog of pending adjustment of status applications. Now that the agency is beginning to deal with the I-485 backlog, AC21 104(a), which had the effect of lifting the per country limits, is no longer applicable. These two points, however, should not detract from the article's overall important message: until Congress takes action on the artificial and anachronistic quota-based barriers to immigration, there will always be a choke point in the system where the imbalance between the supply of immigrant visas and the demand creates a backlog. The issue is not where to move the choke point within the bureaucracy, but to bring law into conformity with business reality, and to raise the artificial limits on the number of immigrant visas available to qualified, sponsored, and economically stable immigrants.

Eric S. Bord, Director, Morgan Lewis Resources
Morgan, Lewis & Bockius LLP

Dear Editor:
I certainly enjoy Immigration Daily and have learned a great deal. I am not a lawyer, I am a sales and marketing professional. I have been trying to assist a good friend with his immigration concerns. He has tried to find an immigration lawyer who is patient, has some compassion and sensitivity for the issues and insecurities of the foreign-born. I understand marketing and making money as well as the collective legal community. However, shouldn't there be some kindness and consideration, as well as professional business practices, among immigration lawyers. Simple courtesies, like returning a phone call, must be practiced. Do you know how difficult and frustrating it must be to call a lawyer’s office with less than perfect English command, walk the maze through secretaries and paralegals, only to leave messages that are never returned? I may be naive as a lay person, but I would think that immigration lawyers should be more considerate and empathetic than corporate and criminal lawyers. It should be more than just a revenue building sport.

Karen LaPaglia


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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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