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Immigration Daily February 3, 2010
Previous Issues
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New Circuit Split And CIR

Many months ago, the 9th Circuit, reputed to be the most liberal circuit court, held that Arizona's immigration law was not preempted by IRCA. The much more conservative 10th Circuit just held Oklahoma's immigration law is preempted (at least in part, the opinion is almost 60 pages long, and we are still in the process of summarizing its holdings). This cicuit split sets the stage for the Supreme Court to grant cert should one of the parties take appeal. If the Supreme Court sides with the 10th Circuit, hundreds of state laws will be unconstitutional, guaranteeing that Congress, even if it Republican by then, will have no choice but to enact CIR (including full legalization). Thanks to Greg Siskind for being the first out with this news, and to Gary Endelman for his insightful comments which we have built upon above. See the opinion here.

We welcome readers to share their opinion and ideas with us by writing to


Today Is Deadline For Ensuring a Successful Recruitment Campaign

Wednesday, February 3rd is the deadline for the Thursday, February 4th phone session of "PERM For Experts" with speakers Devang Shah (discussion leader), Leslie DiTrani, Aron Finkelstein, Aggie Hoffman, Daniel C. Horne, Allen Orr and Steve Springer. The curriculum is as follows:

  • Tips for advertising and other recruitment requirements for professional occupations.
  • Ensuring the employer's compliance for the review of resumes, interviews and preparation of recruitment reports.
  • Avoid sanctions; understanding the attorney's role in recruitment process. What is and is not permissible.
  • Filing PERM applications in economically challenging times.
    • Layoffs in the company industry pre PERM filing and/or post PERM filing.
    • Effect of Employer's Bankruptcy.
    • Is supervised recruitment in our future ?
Wednesday, February 3rd is the deadline to sign up. For more info, including speaker bios, detailed curriculum, and registration information, please see: Online: Fax form: Don't delay, sign up today.


USCIS Says Marriage Does Not Require Sex
Jacqueline Stevens writes "No doubt couples across the country are heaving a sigh of relief now that US Citizenship and Immigration Services (USCIS) has reaffirmed in a recent case that a marriage can be for real without sex."

European Malaise
Hans F. Sennholz for the Foundation For Economic Education writes "While young people are demonstrating and rioting, the governments are enacting laws and regulations discriminating against immigrants or even expelling them under various pretexts."

Bloggings On Immigration Law And Policy
Greg Siskind writes "The case rules that the state of Oklahoma is preempted by the 1986 Immigration Act from trying to impose various sanctions on employers. This presumably puts many laws around the country in jeopardy."

To submit an Article for consideration, write to


DHS Implements Regulation To Enhance Attorney Discipline Program
DHS announced a new rule clarifying who is authorized to represent applicants and petitioners in cases before DHS; and updates and enhances the standards and disciplinary procedures for these immigration practitioners.

EOIR Announces Latest Disciplinary Actions
The Executive Office for Immigration Review (EOIR) announced that it has recently taken disciplinary action against eight attorneys for violations of the Rules of Professional Conduct for immigration practitioners.

Mayorkas Memo To CIS Ombudsman On Temporary Acceptance LCAs
Alejandro N. Mayorkas, Director, USCIS issued a memo responding to Recommendation 43 of CIS Ombudsman on temporary acceptance of filed Labor Condition Applications (LCAs) for Certain H-1B Filings.


Forensic Psychology Services
Forensic Psychology Group - nationwide service - 800-852-2160. The Forensic Psychology Group provides nationwide expert witness services in all areas of immigration law. It is led by Stephen Reich, PhD, JD, and Grace P. Lee, PhD, JD, who are both clinical psychologists and attorneys, and also AILA members. The Group's experts - all licensed psychologists or psychiatrists - have extensive experience in working collaboratively with immigration lawyers on a wide range of forensic psychological issues. We offer nationwide service in the following areas: psychological consultation, psychodiagnostic evaluation, psychological reports, expert witness services, courtroom testimony, political asylum evaluation, extreme and exceptional hardship evaluations, spousal abuse, citizenship waivers. Dr. Stephen Reich, the Group's founder and director, is a nationally known forensic psychologist who holds a BA, JD, and MBA from Columbia University, and an MA and PhD in Clinical Psychology from Fordham University. He has been on the faculty of Weill Cornell Medical College and on the Attending Staff of New York Presbyterian Hospital for 30+ years. Visit The Forensic Psychology Group. The right experts make a real difference.

E-3 Treaty Visa
Job Expo Australia - Sydney in March 2010 - Melbourne in October 2010. Hire Australians using the E-3 Treaty Visa. It is good business to hire Australia's robust, educated and English-speaking job seekers. Employers happily find that Australians do not have the cultural assimilation or English language challenges of many workers from other countries. Can't make the Expo - utilize our Rsum Service. The Icon Group of Poulsbo, Washington USA produces Job Expo Australia. Icon has been producing world class international job expos for 12-years. Excellent, high profile, Sponsorship opportunities are available that will bring you to the attention of job seekers before and during the Expo! Outstanding hotel and airline discounts welcome you. Visit our website at Contact us at Australia(at) with your questions and requirements. Now is the time to plan and reserve your 2010 job fair participation. A portion of the Expo proceeds will benefit The Steve Irwin Wildlife Reserve - Australia Zoo. Review the National Press Release -

J-1 Visa Program
Discover the ease and flexibility of the J-1 Visa with Global Current, a service of AIESEC U.S., a leader in international exchange and professional training for over 50 years. Unlike other visas, the J-1 does not require a lengthy petitioning process, has few restrictions and can be processed at any time of year to facilitate the quick and simple implementation of an Exchange Visitor Program. Global Current has developed a streamlined sponsorship process supported by J-1 experts that allows us to maintain an unrivaled 48 hour turnaround time on complete applications. Global Current provides J-1 Trainee and Intern programs in a variety of occupational categories including law, engineering, finance, architecture, graphic design, marketing and fashion. For more information on eligibility requirements and a complete list of occupational categories, visit or email Melany Hamner at


Gary Endelman says this sets up circuit split on constitutionality of state #immigration laws

Fed Court in Oklahoma case says state #immigrationlaw pre-empted (HT Greg Siskind) Msg to Congress: Wake Up!

Support pro-immigrant films: Lost Souls explores impact of deportation and increased attention to US-Mexican border

Interesting... RT @SaraLasham: Supreme Court ruling on campaign finance may hurt the GOP in i#mmigration

RT @tweetRI4A #Immigration Reform is Necessary for America's Economic Recovery #RI4A

#Immigration authorities worked w/ oil company 2 discourage protests by guest workers over their job conditions #fail

#Schumer & #Durbin battle 4 leadership each has an immigration Ace #CIR & #DREAMACT who will play the Ace?

Will You Ride With Illinois? IL, Obama's home state, is on a roll in holding him accountable! via@dreamact #immigration

Rep. Gutierrez & advocates call for day of action on March 21- 10,000 ppl will wake up Obama n Congress n demand #cir!

RT @LongIslandWins: Will Latinos Abandon Dems If #Immigration Reform Fails? The future of the party #ri4a


Readers can share professional announcements (up to 100-words at no charge), email: To announce your event, see here

Immigration Event - Cambridge MA
Harvard Center for Population and Development Studies is pleased to present 'The Politics of Citizenship in Europe' Speaker: Marc Howard, Georgetown University. For more info see


Readers can share comments, email: (up to 300-words). Past correspondence is available in our archives

Dear Editor:
In a letter sent to AILA's Director of Advocacy, the following was suggested. Further, I believe it is incumbent upon our Chapter Chairs, and us, to implement something along these lines: Powerful information was cited in this week's "Director's Corner" re: an increase in trillions of dollars with immigration reform. That is, a recent study reported that CIR "will add $1.5 trillion to the U.S. economy, help drive up wages for all workers, and support nearly a million jobs." Recommendation to AILA advocacy: (1). Packet: a. prepare a one page fact sheet stating each of the above three economic benefits from CIR; and b. attach a copy of the studies supporting each economic conclusion (no more than 25 pages together). (2). Arm each advocate on March 25th Advocacy Day w/ the packet to present to each member of Congress (or their aide). (3). Distribute packet to each AILA Chapter chair for their distribution to Chapter members for presentation to: a. members of Congress in their district offices; and b. local ethnic advocacy groups. (4). Prepare a sample media letter using the fact sheet points, and distribute to AILA membership via your online column for them to forward to: a. local media via letter to the editor; and b. their members of Congress. Note: I believe it's always been about money and jobs. While humanitarian arguments work with some, they have apparently been insufficient to overcome intransigent anti-immigrant sentiment and simple ignorance of the facts. AILA members ourselves, while understanding the value of immigration, have been short on the facts re: the financial and job creation stats. Let us get those amazing trillion dollar facts out there, in short, punchy and repetitive ways.

Norine F Krasnogor, Esq.

Dear Editor:
The article by Frosty Wooldridge (02/02/10 ID) states, "we import 100,000 immigrants legally every 30 days, month in and month out, year in and year out. Congress engages hundreds of thousands of H-1B and H-2B visas for foreign labor annually" . . However I think the article is exaggerating. annually, there are 65,000 new H1B's and 66, 000 H2B's. Even counting renewed H1B's, for up to the 6 year limitation and assuming that all H1B's stay put and don't return home or have to go home because their employment was terminated- that would be 65,000 x 6 or 390,000 H1B's over the course of 6 years - not annually. The article forgets that although Congress sets the visa number availability, it is American businesses that apply for these visas for individuals they have determined they would like to hire here to make their American business more competitive. Once here, the individual consumes goods and services here. And the article also ignores the fact that for most of this year, American businesses were not applying for new H1B's as their business reality dictated that they didn't need new employees regardless of origin and many previous H1B's were let go and had to return home because the companies here could now no longer afford to employ them So now these Bright, Educated people will return home to be customers of local goods and service providers and use their education and creativity to provide more competition for us. The real cycle goes like this people create messes and problems, innovative people find solutions and better ideas to solve problems and make money. We do have room for common dialog in that we both agree with Mark Twain's assessment of Congress.

Ms. R. Black, Esq.
Jacksonville, FL

Dear Editor:
The letters of two respected legal scholars, Bruce Hake (02/02/10 ID) and David D. Murray (02/01/10 ID), disagree as to what could happen to someone with a properly filed and pending adjustment of status (green card) application, but who does not (or cannot) extend his temporary legal status while waiting for the green card to be approved. Mr. Hake's letters appear to argue that the person is protected from deportation by the pending green card application. Mr. Murray's letters, on the other hand, seem to contend that, in effect, the Department of Homeland Security (DHS) cannot be relied on to follow the law. This reminds me of the Jewish story about a rabbi who listened to the two conflicting parties in a dispute and then agreed with each side. Someone said: "But Rabbi, they can't both be right". The rabbi replied: "You're right too!". Mr. Hake's letter is right about the law, to the best of my knowledge. But can DHS be relied on to follow the law? Not according to a May 6, 2009 USCIS Interoffice Memorandum of Donald Neufeld, which attempts to explain the difference between "unlawful presence", leading to the 3 and 10 year bars (not at issue in my above example or in the Hake/Murray letters) and ordinary "garden variety" illegal status. This memo states that while a pending adjustment of status application protects the green card applicant against "unlawful presence", the person would still be an "alien present in unlawful status who does not accrue unlawful presence". Such a person, the memo argues, is subject to deportation if his temporary legal status is not extended. This convoluted, irrational memo confirms the worst fears of Mr. Murray's letters, if I understand them correctly.

Roger Algase, Esq.
New York, NY

Dear Editor:
It appears Bruce Hake's recent letters (02/02/10 ID and 01/29/10 ID) and my letters of (01/28/10 ID) and (02/01/10 ID) are engaged in a game of semantics, rather than law and substance. It appears Mr. Hake's letters are bound and determined to prove the position taken in my letters is "wrong". That position is not wrong. There is no statute or regulation that provides that an I-485 in any way protects an alien from being put into removal proceedings. For years it has been the policy of the service not to place an out-of-status person with a filed I-485 into removal proceedings, because the net result is that, as Mr. Hake's letter correctly points out, an approvable I-485 is often a defense to removal. But that defense is not absolute and not an automatic savior to removal in all instances, since every case must be adjudicated on its own merits. Therefore, my letters are not "wrong," but simply misinterpreted by Mr. Hake's letters. Perhaps a Bible quote would be appropriate here, but I have found none that appropriately applies. Also, it must be noted that my letters never said, as Mr. Hake's letter claims, "... it is not just fleeting "policy" as Murray's letter claims that counsels against institution of removal proceedings for somebody with a pending adjustment application." "Fleeting"? I don't believe my letter ever said that the immigration service's policy was "fleeting"; I believe it just said it was "policy," and a good one at that, because it saves much time, trouble and resources, and precludes, in a great majority of the cases, the necessity of the I-485 issue being successfully raised before an immigration judge.

David D. Murray, Esq.
Newport Beach, CA

Dear Editor:
I can understand that you might have to have tweets on your page these days, however, I find the actual newspaper articles to be much more helpful, informative, entertaining, and well written. Could you please include both?

Laurie Bonilla

Editor's Note: Most of the tweets link to newspaper articles.

Dear Editor:
With regard to the chances of CIR passing in Congress this year, I believe that there is an old Japanese saying to the effect that if someone cannot cross a ditch that is three feet wide, he will never be able to cross a river that is a half mile wide. For Congress, health care reform was the three-foot wide ditch. Immigration reform is the half-mile wide river. With the economy still in the doldrums and all limits on corporate campaign spending having been trashed by the Supreme Court, we can expect a Republican-controlled Congress in the fall. Based on experience with the last Republican-controlled chamber, the House of Representatives, in 2005 (remember the notorious H.R. 4437, that would have made even the most technical immigration violation a felony?) the big issue next year will probably not be whether to reform immigration, but whether to declare a complete immigration moratorium. Will the Democrats bravely stand up to stop this? The answer may be in another old Japanese saying: "Snakes know the way of snakes".


Dear Editor:
D. Murray article, "The Bible and U.S. Immigration" (02/01/09 ID) purportedly written as "humorous commentary" rather seems an attack upon it's veracity that only a lawyer could concoct. I suppose this should not be too suprising as the Bible similarly holds lawyers and other critics in contempt: [Luke 11:45-54, Isaiah 5:20-21]. In sharp contrast, yesterday's article by Frosty Wooldridge, (02/02/09 ID) "Congress Cutting Americans Financial Throats: Immigration And Outsourcing Jobs" was one of the best is some time as to the problems with our economy, entry and out sourcing. While the latter is brief, cogent and presents substantive facts and figures, the recent R. Gittelson article: "We Are Here, We Are United, We Are Determined, And We Are Ready" (01/19/10 ID) feebly attempts to rouse support for CIR with a rambling article using a short meeting with Ronald Reagan, an attack on Roy Beck and RG's own opinions as "evidence". For once I agree with R. Algase that this is mere "whistling by the graveyard" as BO made no mention of CIR in the SOTU address and his Obamacare and other Marxist agenda is in shambles and for good reason. CIR again tries to use the "carrot" enticement of border encorcement to grant amnesty which really is getting old. If you cross the US border illegally you get: A job, drivers license, SS card, food stamps, welfare, credit card, subsidized rent or a home lone, free education, healthcare, false ID, lobbyists, right to protest, sue and even vote. It is beyond deceit to use a false promise of serious entry enforcement to grant CIR.

Jim Roberts

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Publisher:  Sam Udani    Legal Editor:  Michele Kim                        ISSN:   1930-062X