Bill Gates: Remove Limits on H1-B Visas
Thursday March 8, 2007 9:01 PM
AP Photo WCAP105, WCAP103
By NANCY ZUCKERBROD
AP Education Writer
WASHINGTON
(AP) – Microsoft Chairman Bill Gates told Congress on Wednesday that
overhauls of the nation’s schools and immigration laws are urgently
needed to keep jobs from going overseas. “The U.S. cannot maintain its
economic leadership unless our work force consists of people who have
the knowledge and skills needed to drive innovation,” Gates told the
Senate committee that oversees labor and education issues.
Gates,
whose charitable foundation has given away more than $3 billion since
1999 for educational programs and scholarships, noted that about 30
percent of U.S. ninth-graders fail to graduate on time. “As a nation,
we should start with this goal: Every child in the United States
graduating from high school,” he said.
Gates also
challenged lawmakers to push for higher educational standards and to
make more challenging coursework available to students.
A federal
study released last month showed about a third of high schoolers fail
to take a standard-level curriculum, which is defined as including at
least four credits of English and three credits each of social studies,
math and science.
Gates also
called on lawmakers to give more resources and attention to improving
the teaching of math and science – knowledge essential to many of
today’s jobs. Another recent federal study found 40 percent of high
school seniors failed to perform at the basic level on a national math
test. On a national science test, half of 12th-graders didn’t show
basic skills.
“We
simply cannot sustain an economy based on innovation unless our
citizens are educated in math, science and engineering,” Gates said.
Legislation
moving through the Senate, backed by Democratic and Republican leaders,
seeks to get more people to become math and science teachers and would
improve training for them. The bill also seeks to get more highly
trained teachers in poor schools and would offer grants to states to
better align their teaching with what kids should know to succeed at a
job or in college.
Gates said
the nation’s economy depends on keeping the country’s borders open to
highly skilled workers, especially those with a science or engineering
background. Federal law provides 65,000 H1-B visas for scientists,
engineers, computer programmers and other professionals every budget
year. High-tech and other employers say that’s not enough.
“Even
though it may not be realistic, I don’t think there should be any
limit,” Gates said, adding that Microsoft hasn’t been able to fill
approximately 3,000 technical jobs in the United States because of a
shortage of skilled workers.
Sen.
Edward M. Kennedy, D-Mass., chairman of the Committee on Health,
Education, Labor and Pensions, said the issue would be addressed when
Congress takes up broad immigration reform legislation this session.
President Bush has expressed support for raising the visa cap.
Gates –
who is No. 1 on Forbes magazine’s list of richest Americans – also told
the committee in response to a question that he opposes repeal of the
federal estate tax. Current law will phase out the tax by 2010, but
without further action by Congress it will be restored at a 55 percent
rate in 2011.
US faces skill crunch, to review H1B visa
Washington: Making a case for
increasing the number of H1B visas, the US Commerce Secretary has said
high-tech businesses are facing shortages in filling up positions and
lamented that students from India and China cannot stay in US and apply
their skills.
Secretary of Commerce Carlos Guttierrez
made the point in his testimony before the Judiciary Committee that was
having Comprehensive Immigration reform as its topic of hearings when
the issue of the H1B visas came up for a brief discussion.
“Just on the issue of high-skilled
workers, what I hear very often from businesses in the high-tech field
and other fields where they cannot fill their high-skilled engineering,
science-based jobs as quickly or as readily as they would like,” the
Commerce Secretary said.
“We have students come over from the
world: India, China, primarily. They get the best education money can
buy, and then they have to go back home; they can’t stay here and apply
their skills. We believe that we should be able to do better than that
in order to serve our competitiveness needs as a nation,” Guttierrez
said agreeing with a Republican lawmaker that the current quotas on the
H1Bs need to be revised upwards.
Guttierrez was responding to a statement
by Republican Senator Orin Hatch of Utah who called for the H1B visa
programme to be revisited as a part of the comprehensive overhaul of
the immigration laws of America.
“The Chinese are educating 300,000
engineers a year. We educate 60,000, half of whom are foreigners, and
many of whom then go home to their countries and educate their people
in competition with us where they’d love to stay here and work as maybe
not citizens, but at least as people who have the credentials to work,”
Senator Hatch observed.
“I think (Microsoft founder) Bill Gates is
absolutely right on that. And we need to up those figures. But every
time we try to up the figures on the H-1B – PhD engineers and
scientists and others that are going to be crucial to keep our country
moving ahead – we then have the other side coming out and saying we’re
being unfair because you’re taking care of them but you’re not taking
care of the average person.
“How are we going to balance that? Because
I personally believe we’ve got to expand the H-1B program, as Gates and
almost everybody in the high-tech world believes. And then, of course,
at the same time, do some reasonable things without granting amnesty,
and having people earn their right to citizenship the way you’ve been
talking here today,” the senior lawmaker said.
The issue of H1B visas was a part of the
Senate package on Immigration reform in the 109th Congress which failed
to get anywhere as Republican and Democratic law makers could not get
into a Conference on widely varying Immigration bills that came out of
the House of Representatives and Senate.
Law makers in the 110th Congress are a
long way off from any agreement on a comprehensive package but the
Senate version in the 109th Congress had called for nearly doubling the
current levels of H1B’s from the current 65,000 annual cap and yearly
increases.
The version of Immigration Bill that cleared the House last Congress had virtually nothing on the H1B visas.
DOL Publishes H-2A Adverse Effect Wage Rate for 2007
[Notices]
[Page 7909-7911]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21fe07-71]
—————————————
DEPARTMENT OF LABOR
Employment and Training Administration
Labor Certification Process for the Temporary Employment of Aliens in Agriculture and Logging in the United States: 2007 Adverse Effect Wage Rates, Allowable Charges for Agricultural and Logging Workers’ Meals, and Maximum Travel Subsistence Reimbursement
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Notice of Adverse Effect Wage Rates (AEWRs), allowable charges for meals, and maximum travel subsistence reimbursement for 2007.
—————————————
SUMMARY: The Employment and Training Administration (ETA) of the U.S. Department of Labor (Department or DOL) is issuing this Notice to announce the 2007 AEWRs for employers seeking to employ temporary or seasonal nonimmigrant foreign workers to perform agricultural labor or services (H-2A workers) or logging (H-2 logging workers); the allowable charges for 2007 that employers seeking H-2A workers and H-2 logging workers may levy upon their workers when three meals a day are provided by the employer; and the maximum travel subsistence reimbursement which a worker with receipts may claim in 2007.
AEWRs are the minimum wage rates the Department has determined must be offered and paid by employers of H-2A workers or H-2 logging workers to U.S. and foreign workers. AEWRs are established in order to prevent the employment of these foreign workers from adversely affecting wages of similarly employed U.S. workers. The Department also announces the minimum and maximum charge of travel subsistence expenses a worker may claim in 2007.
EFFECTIVE DATE: February 21, 2007.
FOR FURTHER INFORMATION CONTACT: William L. Carlson, Administrator, Office of Foreign Labor Certification, U.S. Department of Labor, Room C-4312, 200 Constitution Avenue, NW., Washington, DC 20210. Telephone: 202-693-3010 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION: The U.S. Citizenship and Immigration Services may not approve an employer’s petition for admission of H-2A workers or H-2 logging workers in the United States unless the petitioner has received from DOL an H-2A or H-2 labor certification, as appropriate. Approved labor certifications attest: (1) There are not sufficient U.S. workers who are able, willing, and qualified and who will be available at the time and place needed to perform the labor or services involved in the petition; and (2) the employment of the foreign worker in such labor or services will not adversely affect the wages and working conditions of workers in the U.S. similarly employed. 8 U.S.C. 1101(a)(15)(H)(ii)(a),1184(c), and 1188.
DOL’s regulations for the H-2A and H-2 program require employers to offer and pay their U.S., H-2A, and H-2 workers no less than the appropriate hourly AEWR in effect at the time the work is performed. 20 CFR 655.102(b)(9)
[[Page 7910]]
and 655.202(b)(9). See also 20 CFR 655.107, 20 CFR 655.207, and the preamble of the Final Rule, 54 FR 28037-28047 (July 5, 1989), which explains in great depth the purpose and history of AEWRs, DOL’s policy in setting AEWRs, and the AEWR computation methodology at 20 CFR 655.107(a). See also 52 FR 20496, 20502-20505 (June 1, 1987).
A. Adverse Effect Wage Rates for 2007
AEWRs are the minimum wage rates which must be offered and paid to U.S. and foreign workers by employers of H-2A workers or H-2 logging workers. Employers of H-2A workers must pay the highest of (i) the AEWR in effect at the time the work is performed, (ii) the applicable prevailing wage, or (iii) the statutory minimum wage, as specified in the regulations. 20 CFR 655.102(b)(9). As U.S. Department of Agriculture (USDA) regional surveys are not available for logging occupations, employers of H-2 logging workers must pay at least the prevailing wage in the area of intended employment, which is deemed to be the AEWR. 20 CFR 655.202(b)(9) and 20 CFR 655.207(a).
Except as otherwise provided in 20 CFR part 655, subpart B, the region-wide AEWR for all agricultural employment (except those occupations deemed inappropriate under the special circumstance provisions of 20 CFR 655.93) for which temporary H-2A certification is being sought, is equal to the annual weighted average hourly wage rate for field and livestock workers (combined) for the region as published annually by the USDA. 20 CFR 655.107(a). USDA does not provide data on Alaska.
20 CFR 655.107(a) requires the Assistant Secretary, Employment and Training Administration, to publish USDA field and livestock worker (combined) wage data as AEWRs in a Federal Register Notice. Accordingly, the 2007 AEWRs for agricultural work performed by U.S. and H-2A workers on or after the effective date of this Notice are set forth in the table below:
Table.–2007 Adverse Effect Wage Rates
(SEE PDF VERSION FOR TABLE)
For all logging employment, the AEWR shall be the prevailing wage rate in the area of intended employment, and the employer is required to pay at least that rate. 20 CFR 655.207(a).
B. Allowable Meal Charges
Among the minimum benefits and working conditions which DOL requires employers to offer their U.S., H-2A, and H-2 logging workers are three meals a day or free and convenient cooking and kitchen facilities. 20 CFR 655.102(b)(4) and 655.202(b)(4). Where the employer provides meals, the job offer must state the charge, if any, to the worker for meals.
DOL has published at 20 CFR 655.102(b)(4) and 655.111(a) the methodology for determining the maximum amounts that H-2A agricultural employers may charge their U.S. and foreign workers for meals. The same methodology is applied at 20 CFR 655.202(b)(4) and 655.211(a) to H-2 logging employers. These rules provide for annual adjustments of the previous year’s allowable charges based upon Consumer Price Index (CPI) data.
Each year, the maximum charges allowed by 20 CFR 655.102(b)(4) and 655.202(b)(4) are adjusted by the same percentage as the twelve-month percent change in the CPI for all Urban Consumers for Food (CPI-U for Food). ETA may permit an employer to charge workers no more than the higher maximum amount set forth in 20 CFR 655.111(a) and 655.211(a), as applicable, for providing them with three meals a day, if justified and sufficiently documented. Each year, the higher maximum amounts permitted by 20 CFR 655.111(a) and 655.211(a) are changed by the same percentage as the twelve-month percent change in the CPI-U for Food. The program’s regulations require DOL to make the annual adjustments and to publish a Notice in the Federal Register each calendar year, announcing annual adjustments in allowable charges that may be made by agricultural and logging employers for providing three meals daily to their U.S. and foreign workers. The 2006 rates were published in the Federal Register at 71 FR 13633 (March 16, 2006).
DOL has determined the percentage change between December of 2005, and December of 2006, for the CPI-U for Food was 2.4 percent. Accordingly, the maximum allowable charges under 20 CFR 655.102(b)(4), 655.202(b)(4), 655.111, and 655.211 were adjusted using this percentage change, and the new permissible charges for 2007 are as follows: (1) Charges under 20 CFR 655.102(b)(4) and 655.202(b)(4) shall be no more than $9.52 per day, unless ETA has approved a higher charge pursuant to 20 CFR 655.111 or 655.211 and (2) charges under 20 CFR 655.111 and 655.211 shall be no more than $11.80 per day, if the employer justifies the charge and submits to ETA the documentation required to support the higher charge.
C. Maximum Travel Subsistence Expense
The regulations at 20 CFR 655.102(b)(5) establish that the minimum daily travel subsistence expense, for which a worker is entitled to reimbursement, is equivalent to the employer’s daily charge for three meals or, if the employer makes no charge, the amount permitted under 20 CFR 655.102(b)(4). The regulation is silent about the maximum amount to which a qualifying worker is entitled.
The Department established the maximum meals component of the standard Continental United States (CONUS) per diem rate established by the General Services Administration
[[Page 7911]]
(GSA) and published at 41 CFR Pt. 301, Appendix A. The CONUS meal component is now $39.00 per day. Workers who qualify for travel reimbursement are entitled to reimbursement up to the CONUS meal rate for related subsistence when they provide receipts. In determining the appropriate amount of subsistence reimbursement, the employer may use the GSA system under which a traveler qualifies for meal expense reimbursement per quarter of a day. Thus, a worker whose travel occurred during two quarters of a day is entitled, with receipts, to a maximum reimbursement of $19.50. If a worker has no receipts, the employer is not obligated to reimburse above the minimum stated at 20 CFR 655.102(b)(4) as specified above.
Signed in Washington, DC this 13th day of February, 2007.Emily Stover DeRocco,
Assistant Secretary, Employment and Training Administration.
[FR Doc. E7-2859 Filed 2-20-07; 8:45 am]
BILLING CODE 4510-30-P
In hitting US shores, Indians are second only to Mexicans
NEW DELHI: If flights to the US were already full, they’re set to get crammed thanks to the growing bonhomie between the two countries.
US ambassador David Mulford said on Thursday that 8 lakh visas were expected to be issued to Indians this year for both business and pleasure, making India the second largest source of travellers to the US — after Mexico. “And we don’t even share a border with India,” said Mulford.
There was also good news for work visas and a windfall in FDIs. US-sourced FDI to India was set to touch $1 billion, breaching by several hundred millions the last highs. A senior trade official pointed out, “The India-Russia bilateral trade is less than the pledged investment by IBM alone.”
The surge in the number of Indians travelling to the US — last year 5 lakh visas were issued — is only matched by the rush for H1B visas. Having filled the quota in May 2006, this year, it’s largely believed to breach its cap by April 15. Two years ago, the H1B quota finished on August 9. Last year, it finished on May 25.
US president George Bush has publicly advocated raising the H1B cap, giving a bigger profile to the immigration debate currently raging in the US. “We’ve got to expand what’s called H1B visas… I feel strongly about what I’m telling you. It makes no sense to say to a young scientist from India, you can’t come to America to help this company develop technologies that help us deal with our problems,” Bush had said.
The H1B visa programme is currently capped at 65,000. High-tech industry in the US and India has been lobbying, along with Indian-American advocacy groups, for increasing the cap to 115,000. Legislation to this effect failed to make the grade in the last Congress, and with elections coming up, its prospects this year are uncretain.
The contrast to travel patterns of the global Indian to Britain and other European countries could not be starker. With the British government effecting the highly skilled migration programme (HSMP visa) in December, it has actually constrained movement of skilled Indians. It took finance minister P Chidambaram to warn the UK in London last week that it would be the ‘loser’ if it did not relax immigration laws.
Little India Interview with Peter Kaestner, Minister Counselor for Consular Affairs at the U.S. Embassy in New Delhi
Via Little India
By: | |||
Continue reading |
USCIS Releases Updated Form I-765, Application for Work Authorization
Via AILA
USCIS revised Form I-765, Application for Employment Authorization, to obtain additional information from NIW physicians following Snider v. Chertoff, 450 F.3d 944 (9th Cir. 2006). The 11/20/06 edition of the form will be accepted until March 30, 2007.
EEOC RESOLVES SLAVERY AND HUMAN TRAFFICKING SUIT AGAINST TRANS BAY STEEL FOR AN ESTIMATED $1 MILLION
Via The U.S. Equal Employment Opportunity Commission
LOS ANGELES – The U.S. Equal Employment Opportunity Commission (EEOC) today announced a major litigation settlement with Trans Bay Steel, Inc. for an estimated $1 million in total monetary relief and compensation for 48 welders of Thai descent who were discriminated against and exploited due to their national origin.
EEOC charged that the class of Thai nationals, contracted under H2B visas by Trans Bay and a third party agency, were held against their will, had their passports confiscated, had their movements restricted, and were forced to work without pay. Additionally, some workers were confined to cramped apartments without any electricity, water, or gas.
At least 17 of the workers were told if they tried to leave the location where they were being forcibly held, the police and immigration officials would be called to arrest them. EEOC also contends that all the workers were made to pay exorbitant “fees” to the recruiting company which kept them in involuntary servitude. Ultimately, some of the workers escaped the slave-like conditions.
Trans Bay received a large sub-contract to provide services to retrofit the Bay Bridge and became the sponsoring employer for the workers. Trans Bay contracted with Kota Manpower Co., and Hi Cap Enterprises, Inc., to bring the skilled welders from Thailand to meet the needs of the project. While Kota and Hi-Cap brought over approximately 48 welders from Thailand, only nine of them went to work for Trans Bay. The remaining welders were brought to Los Angeles and Long Beach and forced to work without pay at Thai Restaurants owned by Kota Manpower and Hi-Cap, and forced to work other menial jobs without pay.
“The issues of human trafficking and slavery are an enforcement priority for the Commission,” said Anna Y. Park, Regional Attorney in EEOC’s Los Angeles District Office, which has jurisdiction for the southern half of California. “The EEOC is committed to the protection of all workers, particularly those most vulnerable in our society. The workers in this case sought out the American dream, but instead faced a nightmare.”
EEOC conducted a comprehensive investigation of the charges and, after extensive negotiations, entered into a three-year consent decree with Trans Bay to resolve the case for an estimated $1 million in total monetary relief and compensation. Under the decree, Trans Bay will:
- Provide monetary relief for each of the claimants;
- Guarantee work on the Bay Bridge Project;
- Provide housing for the claimants who agree to work for Trans Bay, including a housing stipend;
- Pay for tuition and books at a local college for training as a welder;
- Provide sponsorship, if required, to continue to work in the U.S. and certify claimant welders;
- Guarantee minimum pay and a base pay once the claimants complete the training period;
- Pay the claimants relocation costs, including reimbursement for travel;
- Reimburse the claimants for moving expenses to relocate to Napa, Calif.
EEOC filed the lawsuit under Title VII of the Civil Rights Act of 1964, as amended in U.S. District Court for the Central District of California (U.S. EEOC v. Trans Bay Steel, Inc., Case Number CV 06-07766 CAS (JTLx)) after first attempting to resolve the matter out of court. Other injunctive measures contained in the consent decree include:
- Monitoring by the EEOC to ensure compliance;
- Training of Trans Bay’s employees on anti-discrimination laws;
- Revising Trans Bay policies and procedures;
- Developing a viable complaint procedure.
EEOC Los Angeles District Director Olophius E. Perry said, “Through the cooperative efforts between the federal government and non-profit organizations, a just resolution was reached that is a win/win for the workers and for the employer.”
The EEOC worked closely with non-profit organizations such as the Thai Community Development Center, the Coalition to Abolish Slavery and Trafficking, and the Legal Aid Foundation of Los Angeles.
EEOC is the federal agency responsible for enforcing the nation’s anti-discrimination laws in the workplace. Further information about the EEOC is available on its web site at www.eeoc.gov.
CA4 Holds Immigration Judge’s Finding of 10% Risk of FGM Based on Speculation
Via AILA
Haoua v. Gonzales, (4th Cir. Jan. 5, 2007)
The IJ’s finding that Petitioner was at 10% risk of FGM
if returned to Niger was necessarily premised on speculation and
conjecture, in that there was no evidentiary basis for it. The IJ’s
finding regarding relocation was specifically predicated on the 10%
finding and, therefore, was also not supported by substantial evidence.
Petitioner, a citizen of Niger, sought asylum, withholding of
removal and Convention Against Torture (CAT) protection based on her
fear of female genital mutilation (FGM). She stated that her parents
had arranged for her to marry the elderly chieftain of a nearby village
and that in keeping with the customs of the Hausa, the ethnic group of
which she is a member, she would be forced to undergo FGM before
marrying the chieftain. Upon hearing this and being unable to deter her
family from enforcing the marriage agreement, Petitioner returned to
the United States, where she had been studying. Upon her return,
Petitioner learned that a wedding ceremony had been conducted in her
absence. She also was informed that her family had accepted a large
dowry as consideration for the marriage arrangement. Petitioner decided
that she could not safely return to Niger and sought asylum.
At her hearing Petitioner submitted a State Department report which
indicated that one in five Nigerien women is forced to undergo FGM and
that the practice persists despite a law criminalizing it. She
testified that her ethnic group continues to practice FGM and that the
government’s efforts to suppress FGM have been ineffective in rural
areas. The immigration judge found Petitioner to be credible, but found
that she had only “at least a 10 percent change” of suffering FGM. The
IJ also found the internal relocation was a feasible alternative for
Petitioner given her level of education and support she received from
her uncle who lived in the capital. The IJ then determined that because
Petitioner had a reasonably available internal relocation alternative,
that alternative overcame her 10% fear of persecution. The IJ,
therefore, denied asylum. The IJ also denied withholding of removal,
finding it highly unlikely Petitioner would suffer FGM in light of her
ability to relocate. Lastly, the IJ denied CAT relief finding that she
was unlikely to suffer FGM and that if she did, it was not with the
acquiescence of the Nigerien government. The BIA affirmed the IJ’s
decision without opinion.
On review, the Fourth Circuit began its decision by noting that FGM
constitutes persecution. The court further found that the IJ’s 10%
finding was not supported by substantial evidence. The court noted that
even the Attorney General conceded this point at oral argument and that
the concession was consistent with the evidence, including Petitioner’s
testimony which was deemed credible by the IJ. The court held that the
IJ’s 10% finding was premised on speculation and conjecture and that
there was no evidentiary basis for it.
The court rejected the government’s argument that the IJ’s finding
that Petitioner could reasonably relocate within Niger was an
independent basis for denying asylum. The court held that the IJ’s
finding regarding relocation was predicated on the 10% finding and,
therefore, was not supported by substantial evidence. The court also
found that the IJ erred in denying withholding of removal because the
denial was also based on the erroneous 10% finding.
Lastly, the court upheld the IJ’s CAT denial, noting that Petitioner
did not challenge the IJ’s independent basis for denying CAT, namely
that the FGM would not be with the consent or acquiescence of Nigerien
government officials.
The petition for review was granted in part and denied in part. The
case was remanded to the BIA for further proceedings as may be
appropriate.
RN License Exam to be Offered in Manila, Philippines
Via AILA
The National Council of State Boards of Nursing
has selected Manila, the capital city of the Philippines, as a new
location for taking the Registered Nurse licensing examination – the
NCLEX exam. Read the NCSBN notice.
The exam is already offered in the following cities outside the
United States and its territories: London, England; Seoul, South Korea;
Hong Kong; Sydney, Australia; Toronto, Montreal, and Vancouver, Canada;
Frankfurt, Germany; Mumbai, New Delhi, Hyderabad, Bangalore, and
Chennai, India; Mexico City, Mexico; Taipei, Taiwan; and Chiyoda-ku and
Yokohama, Japan.
CA9 Holds AZ Domestic Assault Statute Does Not Categorically Involve Moral Turpitude
Via AILA
Fernandez-Ruiz v. Gonzales, (9th Cir. Nov. 15, 2006)
AZ Rev. Stat. §13-1203 requires neither “willful intent”
nor abuse severe enough to cause “a traumatic injury” and therefore,
does not qualify as a categorical crime involving moral turpitude.
Petitioner was convicted of several crimes after having been
admitted to the U.S. as a lawful permanent resident in 1990. In 2002
and 2003, Petitioner was convicted of violating Ariz. Rev. Stat.
§§13-1203 and 13-3601, “domestic violence/assault.” In removal
proceedings, Petitioner was charged with removability based on (1) his
crime of domestic violence (the 2003 conviction); (2) two crimes
involving moral turpitude (the 2002 and 2003 convictions); and (3) an
aggravated felony (a 1992 theft conviction). The immigration judge
sustained all charges of removability and denied cancellation of
removal. The BIA affirmed. A three-judge Ninth Circuit panel denied the
subsequent petition for review, finding Petitioner’s 2003 domestic
violence offense constituted a “crime of violence” as defined by 18 USC
§16(a) which rendered him removable under INA §237(a)(2)(E)(i). Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 588 (9th Cir. 2005). An en banc court reversed, holding that under Leocal v. Ashcroft,
543 U.S. 1 (2004), a federal “crime of violence” must involve the
intentional use of force against the person or property of another. Fernandez-Ruiz v. Gonzales,
466 F.3d 1121 (9th Cir. 2006). The en banc court then remanded the case
for a three-judge panel decision on the remainder of the issues: (1)
whether Petitioner’s 2002 and 2003 convictions constituted crimes
involving moral turpitude; and (2) whether his 1992 theft conviction
constituted an aggravated felony.
AZ Rev. Stat. §13-1203(A) states that a person commits misdemeanor
assault by “(1) [i]ntentionally, knowingly or recklessly causing any
physical injury to another person; or (2) [i]ntentionally placing
another person in reasonable apprehension of imminent physical injury;
or (3) [k]knowingly touching another person with the intent to injure,
insult or provoke such person.” Petitioner’s 2003 conviction
constituted a “class 2” misdemeanor conviction which is classified as
either “reckless” assault under subsection (A)(1) or assault pursuant
to subsection (A)(2).
The court applied the categorical approach set forth in Taylor v. United States,
495 U.S. 575 (1990), and held that Petitioner’s 2003 class 2 assault
conviction did not qualify as a crime involving moral turpitude. The
court explained that generally, a conviction for simple assault does
not involve moral turpitude and pointed out that AZ Rev. Stat. §13-1203
is in fact a “simple assault” statute. The court also found the BIA’s
reliance on Grageda v. INS, 12 F.3d 919 (9th Cir. 2003) to
support its holding that “the additional element of the domestic
relationship turns the assault into a crime involving moral turpitude,”
to be misplaced. First, the court explained that while Grageda
involved a California domestic violence conviction which was found to
constitute a crime involving moral turpitude, its holding was limited
to those acts of domestic violence that are done willfully. The court
further noted that “a finding of willfulness and/or evil intent is
necessary in order to establish moral turpitude [and] Arizona’s class 2
misdemeanor assault does not require a willful or intentional act.” The
court stated that it’s holding in Grageda is further limited to
situations where “a person beats his or her spouse severely enough to
cause ‘a traumatic condition’ [and] does not suggest that a spousal
contact that causes minor injury…constitutes a crime involving moral
turpitude.” Not only does AZ Rev. Stat. §13-1203(A) not require a level
of injury of this magnitude, its does not require bodily injury of any
kind. The court then applied the modified categorical approach but
quickly concluded that the record of conviction did not contain any
information that would indicate that Petitioner pleaded guilty to acts
involving moral turpitude. The court held that Petitioner’s 2003
conviction could not be used as a basis for removal.
For similar reasons, the court also found that Petitioner’s 2002
conviction did not qualify as a crime involving moral turpitude.
Examining AZ Rev. Stat. §13-1203(A)(3), the court found that the plain
text clearly states that a conviction under this subsection does not
require physical injury of any kind, as it only requires an act of
“touching” one’s spouse in order to “insult” or “provoke.” The record
of the 2002 conviction provided no additional information and the court
held that Petitioner’s 2002 conviction could also not be used as a
basis for removal.
Finally, the court turned to the question of whether Petitioner’s
1992 theft conviction constituted an aggravated felony. INA
§101(a)(43)(G) defines as an aggravated felony, “a theft offense…for
which the term of imprisonment [is] at least one year.” Although
Petitioner was sentenced to one year of imprisonment, he argued that
the sentence was unlawful because at the time sentence was imposed, his
conviction was classified as a misdemeanor and under AZ law, the
maximum term of imprisonment for a misdemeanor is, and was, six months.
The court remanded the case to the BIA for it to consider whether
Petitioner’s one-year sentence is illegal on its face and, if so,
whether he may still be removed as an aggravated felon. The court
concluded by holding that because Petitioner is no longer removable for
two crimes involving moral turpitude, he would be eligible for a waiver
of inadmissibility as to his theft offense under former INA §212(c) if
he is not otherwise barred. The petition for review was granted.
CA9 Upholds USCIS’s Denial of [L-1A] Multinational Manager Petition
Via AILA
Family, Inc. v. USCIS, (9th Cir. Dec. 4, 2006)
USCIS may properly, but not exclusively consider an
organization’s small size as one factor in assessing whether its
operations are substantial enough to support a manager.
Appellants, a corporation and its president, a native and citizen of
South Korea, sought review of the district court’s summary judgment
order affirming USCIS’s denial of their immigrant petition for
classification as a multinational manager under INA §203(b)(1)(C). The
corporation, Family, Inc., owned a dry cleaning operation that employed
Appellant, his wife, three pressers and a cashier. USCIS determined
that Appellant did not carry his burden of establishing that he was
acting in a managerial capacity. Specifically, USCIS determined that
“in light of all the evidence submitted, including [the company’s]
small size, Appellant was ‘likely to be involved in the performance of
routine operational activities of the business’ rather than in managing
the business.”
The court rejected Appellant’s argument that USCIS “exclusively and
improperly” relied on the company’s small size in determining that his
duties did not meet the statutory definition of “managerial capacity.”
See INA §101(a)(44)(A). The court agreed with Appellant that the size
of a company cannot alone justify USCIS’s finding that he is not
operating in a managerial capacity. However, the court concluded that
the plain language of the agency’s denial of the petition indicated
that it considered all of the evidence before it and did not err by
considering the company’s size as one factor in drawing its conclusion.
Furthermore, the court found that the facts in the record support
USCIS’s determination that Appellant was likely engaged in ordinary
operational activities as opposed to managerial activities. The court
held that USCIS’s decision was supported by substantial evidence.
Klan growing, fed by anti-immigrant feelings, report says
02/06/2007
Via CNN.com
NEW YORK (AP) — The Ku Klux Klan has rebounded by exploiting
current hot-button issues, especially immigration, according to a new
report released by the Anti-Defamation League.
The Klan, and
other white supremacist groups like skinheads and neo-Nazis, grew
significantly more active in the past year, holding more rallies,
distributing leaflets and increasing their presence on the Internet —
much of it focused on stirring anti-immigrant sentiment, according to
the report.
Passport Requirement for Air Travel Begins Today
Release Date: January 23, 2007
For Immediate Release
Office of the Press Secretary
Contact: (202) 282-8010
Beginning today, citizens of the United States, Canada, Mexico, and
Bermuda are now required to present a passport to enter the United
States when arriving by air from any part of the Western Hemisphere.
The department expects a smooth transition to the new passport
requirement based on the current numbers of travelers arriving at U.S.
airports with passports. Over 90 percent of U.S. citizens, 97 percent
of Canadians, and virtually 100 percent of Mexicans and Bermudans
flying to the United States over the past week arrived with passports.
The air requirement is part of the departments of State and Homeland
Security’s Western Hemisphere Travel Initiative. This change in travel
document requirements is the result of recommendations made by the 9/11
Commission, which Congress subsequently passed into law in the
Intelligence Reform and Terrorism Prevention Act of 2004.
The only acceptable alternative documents to a passport for air
travel will be the Merchant Mariner Document (MMD) and the NEXUS Air
card. The MMD, or “z card”, is issued by the U.S. Coast Guard to U.S.
Merchant Mariners. The NEXUS Air card is issued to citizens of Canada
and the United States, lawful permanent residents of the United States
and permanent residents of Canada who meet certain eligibility
requirements. The NEXUS Air card will only be accepted when used in
conjunction with the NEXUS Air program at certain airports. The MMD
card will only be accepted when used on official business by U.S.
Citizen Merchant Mariners. All active duty members of the United States
Armed Forces traveling with military identification will be exempt from
the requirement to present a valid passport when entering the United
States. Legal Permanent Residents of the U.S. may re-enter on their
I-551 Permanent Resident Card.
A separate proposed rule addressing land and sea travel will be
published at a later date with specific requirements for travelers
entering the United States through land and sea border crossings. As
early as Jan.1, 2008, citizens traveling between the United States and
Canada, Mexico, Central and South America, the Caribbean, and Bermuda
by land or sea may be required to present a valid passport or other
documents as determined by the Department of Homeland Security to enter
the United States.
The U.S. Immigration Law Blog by Ashwin Sharma 