In U.S. Immigration Debate, Specter Has It Right: Kevin Hassett
April 3 (Bloomberg) — Last week, the U.S. Senate began
considering major reforms of immigration and border-security
legislation, elevating a simmering issue into an explosive
national debate. Of all the proposals out there, only one has its
economics right.
Right now in the Senate, the two major plans being debated
are from Majority Leader Bill Frist and Judiciary Committee
Chairman Arlen Specter. Frist’s bill focuses primarily on border
protection, and has been characterized as an “enforcement only”
proposal. Specter’s proposal borrows from a bill that Senators
John McCain and Ted Kennedy introduced last year. It includes
provisions for temporary guest worker visas and for legalizing
the status of currently undocumented individuals.
Both bills exist because lawmakers and citizens are worried
about illegal immigration. The best estimates suggest about 12
million individuals reside in the U.S. illegally. Since
essentially anyone born in the U.S. has a right to citizenship,
many illegal immigrants have become parents of legal citizens,
and productive members of their communities. Accordingly, despite
the heat of the debate, any plan to round up existing illegals
and send them home is politically dead on arrival.
The immigration divide
As debate on immigration heats up, all agree the system is broke
Sunday, April 2, 2006; Posted: 3:35 p.m. EDT (19:35 GMT)
(Time.com
) — The numbers tell the story — one of conflicted values and little resolution.
Of
those surveyed in a Time poll last week, 82 percent said they believe
the government is not doing enough to keep illegal immigrants out of
the country, and a large majority (75 percent) would deny them
government services such as health care and food stamps.
Half (51
percent) said children who are here illegally shouldn’t be allowed to
attend public schools. But only one in four would support making it a
felony to be in the United States illegally, as the House voted to do
when it approved the tough enforcement bill submitted by Wisconsin
Republican F. James Sensenbrenner.
Rather than expel illegal
immigrants from the country, more than three-quarters of those polled
(78 percent) favored allowing citizenship for those who are already
here, if they have a job, demonstrate proficiency in English and pay
their taxes.
These figures help to shed light on how two chambers
of Congress, both run by the same political party, should appear to be
headed in such different directions on immigration. The Senate
Judiciary has passed a measure far more open to immigration than the
House version.
The kind of comprehensive immigration reform
being discussed by the Senate carries the potential of transforming the
politics of the country by making citizens — and therefore voters —
of millions of mostly Hispanic residents in relatively short order.
Says
Sen. John McCain, R-Arizona: “This legislation is a defining moment in
the history of the United States of America.” And possibly in the
history of the Republican Party, which is why the politics of
immigration is becoming so tricky for the GOP.
The business
interests in the party base don’t want to disrupt a steady supply of
cheap labor for the agriculture, construction, hotel and restaurant
industries, among others. That’s why business lobbyists broke into
applause and embraced in the Dirksen office building as the Senate
Judiciary Committee voted 12-6 to send its bill to the Senate floor,
with four of the committee’s 10 Republicans joining all its Democrats
in favor.
Lawmakers draw immigration battle lines
WASHINGTON (CNN) — On the eve of a
showdown over what could be a historic overhaul of U.S. immigration
law, congressmen drew lines in the sand Sunday, leaving it all but
impossible to envision what kind of legislation might ultimately win
passage.
“It is incumbent upon us in the Senate to
compromise,” Majority Leader Bill Frist said on CNN’s “Late Edition.”
He called the nation’s immigration system “flat-out broken.”
Sen.
Lindsey Graham, a South Carolina Republican, cast the fight ahead —
and the impact it might have on Latino citizens, the nation’s
fastest-growing voting bloc — as “a defining moment for the Republican
Party.”
The fierce debates — centering mostly on what to do
about the millions of undocumented immigrants in the country — don’t
fall along a simple partisan divide. Splits within each party and a
wedge between many Republicans and President Bush lay the groundwork
for a passionate, bitter battle.
The Senate began deliberations Thursday and plans to try to tackle the issue this week.
Even
if it manages to pass a bill this week, as Frist predicted Sunday,
another fight likely would follow in the joint House-Senate Conference
Committee, with some House members fighting for a tougher bill than the
Senate is set to consider.
“There’s a chasm between the House and the Senate,” Sen. Dick Durbin, an Illinois Democrat, said on CBS’s “Face the Nation.”
“It’s
the toughest thing I’ve done in 37 years in public office,” Rep. James
Sensenbrenner, a Wisconsin Republican, told CBS. He is one of many
House members opposing legislation passed last week by the Senate
Judiciary Committee.
That committee’s bill lays out steps for
millions of illegal immigrants in the United States to obtain permanent
residence or citizenship. It also strips Sensenbrenner’s provision in
the House bill that would make undocumented immigrants and those who
help them felons.
Church Concerned Over U.S. Immigration Bill
Bishops Say It Would Violate Human Rights
MEXICO CITY, MARCH 28, 2006 (Zenit.org).-
Representatives of the Holy See and of the Catholic Church in Mexico
are opposing a U.S. bill on immigrants, considering it a violation of
human rights.
Hispanics demonstrated in a number of U.S. cities last weekend against the so-called Sensenbrenner bill on immigrants.
There are three options on which the U.S. Senate must decide.
The first is the Sensenbrenner bill, named after a congressman who
sponsored it. The bill involves building a 1,000-kilometer (620-mile)
wall on the Mexican border and classifying illegal immigrants as
felons.
The second is moderate amnesty. And the third, pushed by President George Bush, favors the regulation of labor but no amnesty.
The Catholic Church in the United States is exerting pressure so
that the human rights of immigrants and their families will be
respected, favoring an integral migratory reform.
On Sunday, the California Catholic Conference of Bishops appealed
for full migratory reform, which will include the legalization earned
by illegal workers with their effort, said the prelates in a
communiqué. Their statement came a day after a half-million people
demonstrated in Los Angeles.
Appeal to Fox
The bishops insist that immigration reform must include a program
for temporary workers and a policy of reunification with their
families.
For his part, the president of the Mexican episcopal conference,
Bishop José Guadalupe Martín Rábago of Leon, called on President
Vicente Fox to appeal to his U.S. counterpart for respect for the human
rights of Mexicans working in the United States. Fox and Bush meet this
week in Cancun.
This is not the time “to build walls, but bridges that will allow
the integration of countries for mutual development, for the benefit of
the populations on either side,” Bishop Martín told a news conference
Sunday.
The same opinion was expressed by the chancellor of the Holy See’s
Pontifical Academy of Social Sciences, Argentine Bishop Marcelo Sánchez
Orondo, on a visit to Mexico to take part in a symposium on
international migration.
He said Rome is very concerned about the Sensenbrenner bill.
“Man is not born attached to a land; he is born with two legs to
walk,” Bishop Sánchez Orondo said. “All men have always walked, all
peoples have been migrants. The doors cannot be closed to them. It is
against the natural order, against the Christian order and all the more
so for those who work, as we all have the right to work.”
Consensus on Immigration Bill Elusive
Via ABCNews.com
By SUZANNE GAMBOA
WASHINGTON Mar 30, 2006 (AP)— Should they stay or should they go, those 11 million illegal immigrants living in the United States?
While that question hangs over a Senate debate on border security
and immigration, most senators agree on allowing undocumented workers
to stay at least temporarily. The fight is over whether they should
have to leave three years to six years down the road.
Even senators who oppose providing a path to citizenship to illegal
immigrants are willing to grant them temporary legal status as long as
they register with the government, pay fines and eventually leave.
“Our first obligation is to bring them out of the shadows, make sure
we know who they are, why they’re here, make sure we have a name and
some kind of identification for them,” Senate Majority Leader Bill
Frist said in an interview with The Associated Press.
“Then there will be a period of time, whether it’s three years or
six years … but they can continue to work here and at that point in
time that’s where the debate is do they have to go home or are they put
on some sort of path to citizenship?” Frist said.
As the Senate opened two weeks of debate Wednesday night,
Republicans clashed over whether providing a path to legal citizenship
would lead to more flouting of U.S. immigration laws.
House Speaker Dennis Hastert raised the possibility that a program
letting illegal immigrants continue to reside in the U.S. for a period
of time might be considered by the House if the Senate approves one.
“Our first priority is to protect the borders. We also know there is
a need in some sectors of this economy for a guest worker program,”
Hastert told reporters Wednesday.
The House has passed legislation limited to tightening borders and
making it a crime to be in the United States illegally or to offer aid
to illegal immigrants.
However, there is a growing consensus among lawmakers that any
merging of the House and Senate measures so that Congress could send a
bill to President Bush won’t occur until after the November election.
Immigration tops summit agenda
Via The Chicago Tribune
By Hugh Dellios
Tribune foreign correspondent
Published March 30, 2006
night in the Mexican resort of Cancun for a two-day summit with Mexican
President Vicente Fox and Canadian Prime Minister Stephen Harper that
is likely to be dominated by immigration issues.
The meetings Thursday and Friday will take place as the U.S. Senate
debates ways to control illegal immigration. Bush and Fox support the
idea of a guest-worker program, which the Senate will be debating as
the summit unfolds.
The main Senate proposal would create a
legal channel for hundreds of thousands of immigrants who enter the
U.S. illegally each year. It also would create an eventual path to
residency and citizenship for the nearly 12 million undocumented
workers already in the U.S., after they pay fines, pass criminal
background checks and learn English. But many senators prefer a tough
U.S. House bill that would make illegal immigration a felony and punish
employers of illegal immigrants without creating a temporary worker
program.
Goals
What Bush wants: To push immigration
reform in the context of improved cooperation among the U.S. and its
two North American neighbors and chief trading partners. The president
also will be pushing Mexico to demonstrate, with concrete steps, a
commitment to secure the U.S.-Mexico border.
What Fox wants: To
put Mexico’s voice behind proposals to allow more workers to enter the
U.S. legally. Fox, who leaves office after an election to replace him
in July, has ceaselessly lobbied for U.S. immigration reform and would
score it as the crowning achievement of his six years in office.
What Harper wants: The new Canadian prime minister will be pushing the
U.S. to drop tariffs on softwood lumber that have cost exporters $5
billion. He also wants to ease pending rules that would require
passports to enter the U.S. from Canada beginning Jan. 1.
Political Parties Pressured on Immigration
Via ABCNews.com
By RON FOURNIER AP Political Writer
WASHINGTON Mar 30, 2006 (AP)— Arizona’s
leaders are in a tizzy over immigration, pressured by political
crosswinds that reflect the growing national debate over how to control
U.S. borders.
Republicans are bashing Republicans. The Democratic governor is in cahoots with a GOP senator. Both parties fear voter backlash.
Bordering Mexico, Arizona may be the perfect spot to show the state of policy and politics of U.S. immigration.
In a word, it’s a mess.
“You’ll find every view in Arizona,” jokes Rep. Jeff Flake, a conservative Republican from Mesa.
In the House, he has backed the approach of the state’s most notable
politician, GOP Sen. John McCain, who wants to give illegal immigrants
a clear path to citizenship through work.
McCain’s position puts him on the side of President Bush and the
U.S. Chamber of Commerce and many prominent Democrats, including
Arizona Gov. Janet Napolitano and liberal icon Sen. Edward Kennedy of
Massachusetts.
Arizona’s junior senator, Republican Jon Kyl, also wants to help the
estimated 11 million illegal immigrants remain in the United States
legally, but his approach would make it harder for them. He wants
illegal immigrants to return to their native countries before returning
as so-called guest workers.
Then there is another conservative Arizona lawmaker, Rep. J.D.
Hayworth, who has written a book that proposes building a fence along
the U.S.-Mexico border, using armed forces to help patrol the region
and denying citizenship to the U.S.-born children of illegal
immigrants.
There is unanimity on one point in Arizona: illegal immigration is a major problem.
The state is the largest gateway for illegal immigrants, accounting
for 54 percent of the 1.1 million apprehensions nationwide during the
2004 fiscal year. It is home to an estimated 500,000 illegal immigrants
out of the state’s population of about 6 million, a costly drag on
health care, education and law enforcement budgets.
Gregory W. Christian Acting Director, USCIS Nebraska Service Center, answers the American Immigration Lawyers Association’s Questions about PERM, I-129, I-130, I-131, I-140, I-485, I-765, TN and H-1B applications
March 9, 2006
The following are questions supplied prior to the March 9, 2006 AILA Northwest Regional Immigration Law Conference and the NSC’s answers.
1. If an H-1B petitioner asks for a
certain period of time (based on the “recapture” of time outside the
country) but the Service did not see the evidence or felt that the
evidence of “recapture-able” time was insufficient, should it have
issued an RFE or just issued the approval for the period of time it
felt was demonstrated by the evidence (i.e., without issuing an RFE).
Of course, this could be generalized to other issues, too.
A:
In accordance with the HQ policy memo we do not RFE on recapture
issues. The burden is on the petitioner to provide clear evidence to
support any assertions made. If the petition is otherwise approvable,
an approval will be issued for the period of time demonstrated by the
evidence submitted.
2.
The I-140 form has a place for CIS itself to check Schedule A, Group
II, but there is no place for the petitioner to check that box, so
which box is the petitioner to check for these cases? There is a
“members of the professions/exceptional ability” box, but that
“exceptional ability” is different from Schedule A, Group II
“exceptional ability.”
A: In the situation where the
applicant is applying under schedule A it is recommended that a cover
letter be submitted with the I140 indicating that a schedule A
occupation is requested.
3.
The Yates Memo on “ability to pay” seems to indicate that the three
scenarios listed are meant to be obviously approvable cases (i.e., so
obvious that not even an RFE should be issued), but the NSC seems to
treat these as the only tests capable of proving ability to pay. That
is, NSC appears to insist on denying the I-140 if the petitioner does
not meet one of the tests, but the wording of the memo seems to
indicate only that those scenarios are completely obvious and don’t
warrant an RFE. For example, we had a case in which the denial included
a CIS-created table showing that the company’s bank statements
reflected monthly cash balances of more than $90,000 for a position
with a proffered salary of only $45,000, and the alien was being paid
about $44,000 at the time of I-140 filing.
A: On Page
3 of the same memorandum, it was explained that if required initial
evidence has been submitted but fails to establish ability to pay,
USCIS adjudicators are not required to accept, request, or RFE for
additional financial evidence. If additional financial evidence is
submitted but does not clearly establish the petitioner’s ability to
pay, the USCIS adjudicator may deny the petition and not RFE for
additional evidence to further clarify the discretionary evidence that
was accepted.
4. What exactly is the third-prong test in national interest waiver cases?
A: For purposes of submitting and reviewing evidence, Service guidance regarding the final threshold in Matter of New York State Dept. of Transportation, 22 I&N 215 (Comm. 1998) is:
“…The Service here does not seek a quantified threshold of experience
or education, but rather a past history of demonstrable achievement
with some degree of influence on the field as a whole.” 22 I&N at
219, note 6.
“Because, by statute, “exceptional ability” is not by itself sufficient
cause for a national interest waiver, the benefit which the alien
presents to his or her field of endeavor must greatly exceed the
“achievements and significant contributions” contemplated in the
regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F).” 22 I&N at 218.
(8 C.F.R. § 204.5(k)(3)(ii)(F) defines one of the criteria used to
demonstrate “exceptional ability”: “Evidence of recognition for
achievements and significant contributions to the industry or field by
peers, governmental entities, or professional or business
organizations.”)
Accordingly, petitioners seeking the national interest waiver should
present documentary evidence relating to achievement, influence in the
field and, if applicable, evidence of recognition as set out in 8
C.F.R. § 204.5(k)(3)(ii)(F).
5.
The Service Center says one thing, but the AAO always says something
else. For example, in national interest waiver cases, some CIS
examiners have denied cases stating that the beneficiary did not prove
that the national interest would be “adversely affected” if a labor
certification were required, but the AAO never uses that language in
its opinions.
A: The precedent decision states, “The
petitioner seeking the waiver must persuasively demonstrate that the
national interest would be adversely affected if a labor certification
were required for the alien.” 22 I&N at 217. Probably for that
reason many petitioners seeking the waiver assert the national interest
would be adversely affected if the waiver were not granted. When a
petition is approved it is because the evidence is persuasive on this
point. If a petition is denied, the adjudicator would normally be
correct in addressing the point, both because it was argued by the
petitioner and because it was used by the AAO in the precedent
decision.
6.
Some examiners imply that if the person has H-1B status, he or she is
eligible for ongoing research anyway, and therefore the national
interest would not be “adversely affected” by requiring a labor
certification instead. This kind of analysis, however, appears nowhere
in AAO opinions. In addition, the same statements could be made about a
Nobel Prize winner in H-1B status – i.e., the national interest would
not be “adversely affected” by requiring a labor certification, because
the Nobel Prize winner could continue on in H-1B status, too.
A:
If the evidence presents “a history of demonstrable achievement with a
degree of influence on the field as whole,” and assuming the underlying
visa requirements and prongs one and two are also satisfied, the waiver
is warranted regardless of the alien’s nonimmigrant status.
From
time to time, researcher petitioners assert labor certification is
inappropriate or unavailable, and from there contend the national
interest would be adversely affected if the immigrant petition is not
approved. In the precedent decision, the Service determined that
“inapplicability or unavailability of a labor certification cannot be
viewed as sufficient cause for a national interest waiver,” even for
“certain occupations wherein individuals are essentially self-employed,
and thus would have no U.S. employer to apply for a labor
certification.” 22 I&N at 218, note 3.
Because
researchers typically have university or laboratory employers, an
adjudicator would not be in error if s/he were not to give the
assertion significant weight. Also, it would not be incorrect for an
adjudicator to address the claim by noting there is no automatic bar to
the alien’s services (whether by way of labor certification, extension
of any current H-1B status, or potential change to H-1B or J
nonimmigrant status). Contrary to the claim presented in the question,
this analysis also appears in AAO decisions.
7.
Please ask them to explain the relationship among EB-1A, EB-1B, and
NIW. It seems that NSC does not recognize the great difference between
EB-1A and NIW.
A: Each benefit is to be adjudicated
under its own statute, regulation and case law. To illustrate, for
petitions seeking alien of extraordinary ability classification,
adjudicators should refer to Matter of Price, 20 I&N 953
(Assoc. Comm. Exams 1994)(reaffirming “Congress’ intent to reserve this
category to ‘that small percentage of individuals who have risen to the
very top of their field of endeavor’”) and Matter of Chawathe (USCIS
Adopted Decision January 11, 2006) note 6 (reaffirming that “that
specific objective evidence be submitted to demonstrate eligibility”),
whereas in petitions involving a request for the national interest
waiver, adjudicators should rely on Matter of New York State Dept. of Transportation, 22 I&N 215 (Comm. 1998).
8. Please verify again when duplicate petitions are required on I-129 petitions.
A:
Whenever an alien will be applying at a consulate or POE and we need to
send a duplicate copy. As a courtesy, we would appreciate being sent a
duplicate of the actual petition and supplement in all cases, but
duplicate copies the supporting evidence are not needed. In the event
classification is approved but the COS or EOS request is denied, we
would need to send a copy abroad.
9.
When there are a number of attorneys in a firm, must the G-28 be signed
by all attorneys or only the one filing the case? As long as the firm
name is mentioned, can all attorneys at the firm discuss the case? Can
the signature of the attorney be a copy or must it be original.
A:
The attorney signing the G-28 is the attorney with whom we correspond.
The applicant or petitioner signature must be original. We will accept
a rubber stamp or mechanically produced signature for the attorney.
10. If an I-130 IR is received in your office, is it immediately transferred to California?
A: Yes.
11.
Why, when the primary beneficiary files the I-140/I-485 concurrently
and the spouse enters at a later date and his/her I-485 is interfiled,
does CIS transfer the case to the local district office? The local
office has no idea why it is being done and all the information NSC
needs for the determination, such as a marriage certificate and the
person’s passport and birth certificate is submitted with the
interfiled case.
A: The NSC does not summarily
relocate EB485 cases as indicated in the above scenario. The NSC
generally relocates EB485 cases on a case-by-case basis applying the
national EB485 SOP standards. Some of the case considerations outlined
in the national SOP are:
- A need for validation of identity;
- A need for validation of legal status;
- Questionable admissibility and /or qualifications;
- Apparent fraud;
- A second filing;
- An applicant with fingerprint results rejected twice;
- An applicant medical condition class A or B;
- The A-file cannot be located at the time of adjudication
An officer may choose to modify the interview-waiver criteria based
upon articulable case aspects, in response to developing local
circumstances, or regional concerns. Cases that involve recent
marriages may be one of the areas in which NSC adjudicators may deviate
from the interview waiver criteria; however, these assessments are made
on a case-by-case basis, based upon the individual case’s facts and the
evidence of record.
12.
Our office filed a TN application at the NSC requesting notification of
the approval be sent to the consulate (aka: loose TN). Our client was
then going to present the TN approval notice at the port of entry
instead of having the TN adjudicated at the border. In December 2005,
our office received a denial of the Nonimmigrant Worker Petition and
the NSC denial letter cited Title 8, Code of Federal Regulations,
Section 214.6(e) and have quoted the pertinent section to read as
follows:
Application for admission. A citizen of
Canada seeking admission under this section shall make application for
admission with an immigration officer at a United States Class A port
of entry, at a United States airport handling international traffic, or
at a United States pre-clearance/pre-flight station. No prior petition,
labor certification, or prior approval shall be required ……
However,
Section 214.6(e) does not state the above referenced language, nor
could we locate any other section under 214.6 that reflects the above
cited language. It remains unclear to us whether our petition was
denied in error, or whether it reflects a change in the Service
Center’s policy with regards to adjudications of TN petitions requiring
consular notification. As this is a very significant deviation from
prior practice and therefore of significant concern to our client, we
request that NSC provide clarification as to the basis for this denial.
Thank you.
The regulation quoted in the
denial you received was taken from an old copy of the 8 CFR and is no
longer in that format in the current regulations. However, the
regulation is still in effect. The NSC has jurisdiction to adjudicate
extensions of TN status and changes to TN status from another valid
nonimmigrant status. We do not have jurisdiction or authority to
adjudicate a petition for initial TN status. Application for initial
admission in TN status must be made at a US Class A port-of-entry, a US
airport handling international traffic, or a US
pre-clearance/pre-flight station. Based upon the information provided,
the petition in question was for new employment for a person currently
outside the US. The NSC does not now, and has not previously, processed
any TN petitions for Canadian Citizens who are not already in the US in
a valid nonimmigrant status.
13.
What is the criteria and procedure for requesting an expedited re-entry
permit application? In the past, NSC has accepted and approved expedite
requests but we would like to know the current criteria/procedure as
well as the timeframe for the expedite.
A: I-131
expedite requests are handled in one of two ways. You may request the
expedite at the time of filing. Clearly and boldly mark the case as
“expedite requested” and attach a reason for the request. Simply asking
for an expedite without giving an explanation will not result in the
case being expedited. Expedite criteria include severe financial loss,
extreme emergent situations, humanitarian situations, Service error,
compelling interest of the Service, a request originating from a U.S.
Government entity, or a request originating from a non-profit
organization in furtherance of the cultural and social interest of the
United States.
You may
also request that an already-filed application be expedited. You may
submit such a request by mail, clearly and boldly marking the
correspondence as an expedite request and giving a reason. As an
alternative, you may FAX the request to 402-219-6170 or 402-219-6171.
Again, clearly request an expedite and give a reason for it.
For
I-131s that are expedited, the turn-around time is 7 to 14 days if no
additional information is needed. It is very important to submit a complete application
at filing with passport-style photos (non-digital), proof of status,
proof of identity (facial features should be clearly recognizable), and
the appropriate filing fee. If requesting delivery of the travel
document by UPS, FedEx or other service, include a prepaid,
preaddressed mailer.
You can request
expeditious handling for other form types in the same manner unless the
petition is eligible for premium processing.
14.
How do the Service Centers handle rider I-765 petitions for spouses of
Ls. There are liaison notes suggesting it is preferred that these be
filed this way, presumably because of the relationship of the petitions
(that is, if the L renewal is denied, so is the I-539 and I-765).
However, I’ve had mixed experiences doing this. E.g. Recently I filed
with California this way and the EAD petition was first returned to me,
then accepted but forwarded to Nebraska.
A: We have
found it most efficient to have the I-765 filed with the I-129 and
I-539 so all can be adjudicated together. The example you reference
refers to an application filed with the CSC – we cannot comment on the
practices in place at that office.
15. Is the I-140 line of the NSC acknowledging the Grace Church case
(Nov. 2005 Fed. Dist. Ct., Portland, OR) as persuasive for EB(3)
equivalency cases? The case says that the USCIS must consider the
qualifications of the foreign national under both professional and
skilled worker and also that the employer and DOL have more authority
in interpreting what is equivalent in terms of degree equivalency as
stated on a labor certification application. The appeal filed by the
Service in this case has been dismissed.
A: We do
consider applicants under both the professional and skilled worker
categories. What happens most often is that the labor certification
specifies that the alien must have a bachelor’s degree or “equivalent.”
Equivalent is interpreted to mean a single foreign degree that is
equivalent to a US bachelor’s degree. If the beneficiary does not meet
the degree requirement as outlined in the labor certification form, the
petition is not approvable as either professional or skilled worker.
This is because the alien does not meet the minimum qualifications as
stated in the labor certification, i.e., a bachelor’s degree. If the
labor certification stated the requirement of a bachelor’s degree, but
also stated in block 15 that the employer would be willing to accept
certain training, experience, and/or education in lieu of the
bachelor’s degree requirement, it could potentially support a petition
for a skilled worker.
With
regard to the Grace Church decision, the NSC is not following the
finding by the court. In essence, in concluding that USCIS has no role
in interpreting the requirements listed on the labor certification in
the visa approval process, the court in this decision held that DOL,
not USCIS, makes the final determination of whether a beneficiary’s
qualifications meet the requirements of the labor certification. This
is contrary to 8 U.S.C. 1154(b) and to precedent 9th Circuit case law.
See K.R.K Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984); Black Const. Corp. v. I.N.S.,
746 F.2d 503 (9th Cir. (Guam)1984). In these cases, the Circuit Court
states that INS [USCIS] is the final authority on that issue. Implicit
in determining whether an alien meets the requirements, is determining
what those requirements are.
16.
Beginning April 1, 2006, when we begin filing H-1B Petitions for a
start date of 10/01, will the numbers be reserved upon receipt of the
petition, or when it is adjudicated.
A: Guidelines and instructions for FY07 cap cases will be issued by headquarters.
17.
If we have cases that are unadjudicated 30 days or more after you
receive our response to RFE, what can we do to obtain a decision?
A:
Please use normal inquiry channels on cases of this nature, that is,
contact the National Customer Service Center. Be sure to tell the
customer service rep that 30 days have expired since the Center
received the RFE response. The NCSC practice is to refer the inquiry to
us.
18.
If all evidence presented, including the cover letter, with a petition
reveals that a box was incorrectly checked on the I-129, [e.g. all
evidence supports an extension of stay for a successive petition, but
the notify consulate box is accidentally checked] it would be
appreciated if your examiner would telephone the attorney to clarify,
rather than err in the adjudication, due to one erroneously-checked box.
A:
The form is the guiding document guiding document. It would not be an
officer error to adjudicate an I-129 based on what the petitioner and
counsel marked on the I-129. That said, however, the NSC does encourage
officers to seek clarification if everything in the file appears to
belie what is checked on the form. The NSC encourages practitioners to
supply their e-mail addresses with their filings to facilitate this
contact.
19.
If all evidence presented reveals an attorney is representing the
petitioner, including signature of the cover letter on letterhead
paper, on the filing fee check, signature on the petition papers, etc,
but the G-28 is inadvertently unsigned in the attorney box, could you
examiner please call the attorney rather than ignoring the presence of
the attorney and sending correspondence to the petitioner.
A:
In the absence of a properly-executed G-28, we are required to
correspond with the applicant or petitioner. Per regulations at 8 CFR
103.2(a)(3) “where a notice of representation is submitted that is not
properly signed, the application or petition will be processed as if
the notice had not been submitted.”
20.
How do you want us to handle appeals/motions for reconsider under 8 CFR
§ 103.3 (a) (2) (iii) and § 103.5 (a) (8)? Is a particular form
required, or may we advise you in our letter that we wish for you to
first consider the matter as a reopening/reconsideration and then, an
appeal to the AAO? Is one filing fee sufficient for both?
A:
For appealable cases, an appeal must be submitted on an appeal form.
There is only one fee for an appeal. The appeal is treated as though it
were a motion to reopen/reconsider. Should the reviewing officer find
that the appeal overcomes the denial, he/she will reopen the case and
approve. If not, the appeal will be forwarded to the AAO.
21.
If an appeal is filed, does the same examiner who denied the case
review it again or does someone other examiner review it before
forwarding it to AAO?
A: Yes, the original deciding
officer reviews the appeal; however it is reviewed by a supervisor
before being sent to the AAO.
22.
My understanding is that the examiner can issue an RFE without
supervisory review, but cannot deny without supervisory review. Is that
true? Please explain. Thanks.
A: Regulation requires
supervisory review of most denials; however there is no such
requirement for RFEs. Supervisory review of RFEs would place an
unmanageable burden on the Center.
Sincerely,
Gregory W. Christian Acting Director
A look at major immigration proposals – Via CNN
Via CNN.com
Monday, March 27, 2006; Posted: 10:41 p.m. EST (03:41 GMT)
(AP) — Highlights of major immigration proposals in Congress:
Senate Judiciary Committee’s bill:
•
Allows illegal immigrants who were in the United States before 2004 to
continuing working legally for six years if they pay a $1,000 fine and
clear a criminal background check. They would become eligible for
permanent residence upon paying another $1,000 fine, any back taxes and
having learned English.
• New immigrants would have to have temporary work visas. They also could earn legal permanent residence after six years.
• Adds up to 14,000 new Border Patrol agents by 2011 to the current force of 11,300 agents.
• Authorizes a “virtual wall” of unmanned vehicles, cameras and sensors to monitor the U.S.-Mexico border.
•
Creates a special guest worker program for an estimated 1.5 million
immigrant farm workers, who can also earn legal permanent residency.
•
Allows illegal immigrant students with high school diplomas or GED, no
criminal record and meet other criteria to enroll in college or
university or enlist in the military. Permits state schools to charge
such students in-state tuition.
Senate Majority Leader Bill Frist’s proposal:
• Requires all employers to verify the identity and immigration status of their employees through an electronic system.
•
Assesses civil penalties of between $500 and $20,000 against employers
for each illegal immigrant they hire and criminal penalties of up to
$20,000 per illegal immigrant hired and up to six months in jail for
engaging in a pattern of employing illegal workers.
• More than
doubles the number of employment-based green cards, from 140,000 to
290,000, and makes more employment-based visas available to unskilled
workers. It also would free up other visas by exempting immediate
relatives of U.S. citizens from being counted in the annual pool of
480,000 visas, and increase country-by-country ceilings on
family-sponsored and employment-based immigrants.
• Cancels visas
of immigrants who have overstayed their visas and requires them to
return to their home country to undergo additional screening at U.S.
consulates.
• Makes it a misdemeanor crime for an immigrant to be in the country illegally.
• Increases the number of visas available for high-tech workers.
• Does not address President Bush’s proposal for a guest-worker program.
House bill passed in December:
•
Requires all employers to use within six years a database to verify
Social Security numbers of employees or face civil or criminal
penalties for hiring illegal workers.
• Requires mandatory detention for all non-Mexican illegal immigrants arrested at ports of entry or at land and sea borders.
•
Establishes mandatory sentences for smuggling illegal immigrants and
for re-entering the United States illegally after deportation.
• Makes illegal presence in the country a felony.
• Makes a drunken driving conviction a deportable offense.
• Requires building two-layer fences along 700 miles of the 2,000-mile border between Mexico and the United States.
• Does not address President Bush’s proposed guest-worker program for illegal immigrants already in U.S.
THE WHITE HOUSE, Office of the Press Secretary: For Immediate Release March 27, 2006
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release March 27, 2006
Comprehensive Immigration Reform: Securing Our Border, Enforcing Our Laws, And Upholding Our Values
Today’s Presidential Action
Today, President Bush Attended A Naturalization Ceremony And Discussed His Vision For
Comprehensive Immigration Reform. The President supports comprehensive immigration
reform to secure our border, improve enforcement of our laws, and uphold our values. The
President also discussed his proposal for a temporary worker program that rejects amnesty, allows
foreign workers to fill jobs no American is willing to do, and reduces smuggling and crime at the
border.
America’s Immigrant Heritage Continues To Shape Our Society. Our Nation is bound
together by liberty and a conviction that all people are created with equal dignity and value.
Through the generations, Americans have upheld that vision by welcoming new citizens from
across the globe. Immigrants have helped shape our identity and sustain our economy.
The President Strongly Believes America Is Stronger And More Dynamic When New
Citizens Are Welcomed. The President has called on Congress to increase the number of
green cards that can lead to citizenship. He supports increasing the number of visas available
for foreign-born workers in highly skilled fields. The President signed legislation creating a new
Office of Citizenship at the Department of Homeland Security to promote knowledge of
citizenship rights and procedures; the Office of Citizenship created a new official guide for
immigrants, and the Administration is working with faith-based and community groups to offer
civics and English-language courses. In July 2002, the President signed an Executive Order
making foreign-born members of our military immediately eligible for citizenship. Over the past
four years, more than 20,000 men and women in uniform have become citizens.
Every New Citizen Makes A Lifelong Pledge To Support The Values And Laws Of
America. New citizens have an obligation to learn the customs and values that define our
Nation – including liberty and civic responsibility, equality under God, tolerance for others, and
the English language.
The President Welcomes A Civil And Dignified Debate On Comprehensive Immigration
Reform. Congress is now considering immigration reform proposals. Immigration is an emotional
topic, and we need to maintain our perspective as we conduct this debate.
To Keep The Promise Of America, We Must Enforce The Laws Of America. President Bush’s Proposal For Comprehensive Immigration Reform Includes Three Critical Elements – Securing The Border, Strengthening Enforcement Inside The Country, And Creating A Temporary Worker Program. These elements depend on and reinforce one another. Together, they will give America an immigration system that meets 21st century demands.
The First Element Is Securing Our Border. Since President Bush took office, funding for border
security has increased by 66 percent. The Border Patrol has been expanded to more than 12,000
agents, an increase of more than 2,700 agents, or nearly 30 percent. The President’s FY07 budget
funds another 1,500 new agents. Agents are being provided with cutting-edge technology like
infrared cameras, advanced motion sensors, and unmanned aerial vehicles. Protective
infrastructure, such as vehicle barriers and fencing in urban areas, is being installed. Manpower,
technology, and infrastructure are being integrated in more unified ways than ever before.
The Administration’s Border Security Strategy Is Getting Results. Since President Bush
took office, agents have apprehended and sent home more than 6 million people entering the
country illegally – including more than 400,000 with criminal records. Federal, State, local, and
tribal law enforcement are working together. More than 600,000 illegal immigrants were
apprehended through the Arizona Border Control Initiative last year – an increase of more than
50 percent increase over the previous year. The men and women of our Border Patrol have
made good progress – but we have much more work ahead, and we will not be satisfied until
our agents have full control of our border.
The Administration Is Ending The Practice Of “Catch And Release.” The President has
set a goal to end “catch and release” over the next year. Most illegal immigrants from Mexico
can be returned to Mexico within 24 hours. Non-Mexican illegal immigrants present a different
challenge. For decades, government detention facilities did not have enough beds for the non-
Mexican illegal immigrants caught at the border – so most were released back into society.
They were each assigned a court date, but virtually no one showed up. The Administration is
ending the practice of “catch and release” by increasing the number of beds in detention
facilities by 12 percent this year; the President’s FY07 budget proposes increasing that number
by another 32 percent. The Administration is expanding the use of “expedited removal,” which
allows us to send non-Mexican illegal immigrants home more quickly.
We Are Making Progress In This Effort. Last year, it took an average of 66 days to
process a non-Mexican illegal immigrant. Now, the process is taking only 21 days. This
has helped us end “catch and release” for illegal immigrants from Brazil, Guatemala,
Honduras, and Nicaragua caught crossing our Southwest border. Since last summer, the
total number of non-Mexican illegal immigrants released into society has been cut by more
than a third. There is more work ahead, and the Administration will work with Congress to
close loopholes that make it difficult to process illegal immigrants from certain countries
and will continue pressing foreign governments like China to take back their citizens who
enter our country illegally.
The Second Element Is Strengthening Enforcement Of Our Laws In The Interior Of Our
Country. Since President Bush took office, funding for immigration enforcement has increased by
42 percent. These resources have helped agents bring to justice smugglers, terrorists, gang
members, and human traffickers. For example, through Operation Community Shield, Federal
agents have arrested nearly 2,300 gang members who were in America illegally, including violent
criminals like the members of the “MS-13” gang.
Better Interior Enforcement Requires Better Worksite Enforcement. Last year, President
Bush signed legislation to more than double the resources dedicated to worksite enforcement.
Next month, the Administration will launch new law enforcement task forces in 11 cities to
dismantle document fraud rings.
The Third Element Is Creating A New Temporary Worker Program That Would Not Provide
Amnesty. A temporary worker program would make the system more rational, orderly, and secure
by providing a legal way to match willing foreign workers with willing American employers to fill jobs
that no American is willing to do. Workers would be able to register for legal status on a temporary
basis. If workers decided to apply for citizenship, they would have to get in line. This program
would help meet the demands of our growing economy and allow honest workers to provide for
their families while respecting the law.
A Temporary Worker Program Is Vital To Securing The Border. Creating a separate, legal
channel for those entering America to do an honest day’s labor would dramatically reduce the
number of people attempting to sneak back and forth across the border. That would help take
pressure off the border and free up law enforcement to focus on the greatest threats to our
security – terrorists, drug dealers, and other criminals. The progra
m would also improve
security by creating tamper-proof identification cards that would allow authorities to keep track
of every temporary worker who is in America on a legal basis and help authorities identify
those who are here illegally.
A Temporary Worker Program Should Not Provide Amnesty. Granting amnesty unfairly
allows those who break the law to jump ahead of people who play by the rules and wait in the
citizenship line. Amnesty would also encourage future waves of illegal immigration, increase
pressure on the border, and make it more difficult for law enforcement to focus on those who
mean us harm. For the sake of justice and the sake of border security, the President firmly
opposes amnesty.
# # #
US Senate panel approves broad immigration reform
WASHINGTON, March 27 (Reuters) – An immigration reform bill that
would create a guest worker program pushed by President George W. Bush
and give millions of illegal immigrants a chance to earn citizenship
was approved on Monday by a U.S. Senate panel.
The first step toward comprehensive legislation was passed by the
Senate Judiciary Committee and now goes to the full Senate for debate.
Including the contested guest worker program, which would allow
future temporary workers a chance to become permanent residents, sets
the stage for a bruising battle over immigration. The bill would also
give some of the millions of illegal immigrants a chance to legalize
their status and earn eventual citizenship.
House of Representatives-passed legislation has focused solely on
tightening border security and enforcing immigration law, and many
conservative Republicans say the guest worker provision is a form of
amnesty.
© Reuters 2006. All Rights Reserved.
Read the preliminary CNN take on the issue
Thousands March in L.A. Over Immigration
Via Yahoo News
LOS ANGELES – Tens of thousands of immigrant rights advocates from
across Southern California marched Saturday in protest of federal
legislation that would build more walls along the U.S.-Mexico border
and make helping illegal immigrants a crime.
The march followed rallies on Friday that drew throngs of protesters to major cities around the nation.
On Saturday, demonstrators streamed into downtown Los Angeles for
what was expected to be one of the city’s largest pro-immigrant
rallies. The crowd was estimated at more than 100,000, said police Sgt.
Lee Sands.
Many of the marchers wore white shirts to symbolize peace and also
waved U.S. flags. Some also carried the flags of Mexico and other
countries, and even wore them as capes.
Elger Aloy, 26, of Riverside, a premed student, pushed a stroller with his 8-month-old son at Saturday’s Los Angeles march.
“I think it’s just inhumane. … Everybody deserves the right to a better life,” Aloy said of the legislation.
The House of Representatives has passed legislation that would make
it a felony to be in the U.S. illegally, impose new penalties on
employers who hire illegal immigrants and erect fences along one-third
of the U.S.-Mexican border. The Senate is to begin debating the
proposals on Tuesday.
Immigration legislation sends protesters to city streets
VIA CNN.com
Friday, March 24, 2006; Posted: 6:02 p.m. EST (23:02 GMT)
Demonstrations held in Arizona, California, Georgia and Wisconsin
TV coverage showed the Phoenix march stretching for several blocks.
PHOENIX, Arizona (AP) — Thousands of
people across the country protested Friday against legislation cracking
down on illegal immigrants, with demonstrators in Phoenix, Los Angeles,
California, and Atlanta, Georgia, staging school walkouts, marches and
work stoppages.
Congress is considering bills that would make
it a felony to be illegally in the United States, impose new penalties
on employers who hire illegal immigrants and erect fences along
one-third of the U.S.-Mexican border. The proposals have angered many
Hispanics.
The Los Angeles demonstration led to fights between
black and Hispanic students at one high school, but the protests were
largely peaceful, authorities said.
Chantal Mason, a sophomore at
George Washington Preparatory High, said black students jumped Hispanic
students as they left classes to protest a bill passed the House in
December that would make it a felony to be in the U.S. illegally.
“It
was horrible, horrible,” Mason said. “It’s ridiculous that a bunch of
black students would jump on Latinos like that, knowing they’re trying
to get their freedom.”
In Phoenix, police said 10,000
demonstrators marched to the office of Republican Sen. Jon Kyl,
co-sponsor of a bill that would give illegal immigrants up to five
years to leave the country. The turnout clogged a major thoroughfare.
“They’re
here for the American Dream,” said Malissa Greer, 29, who joined a
crowd estimated by police to be at least 10,000 strong. “God created
all of us. He’s not a God of the United States. He’s a God of the
world.”
Kyl had no immediate comment on the rally.
At least
500 students at Huntington Park High School near Los Angeles walked out
of classes in the morning. Hundreds of the students, some carrying
Mexican flags, walked down the middle of Los Angeles streets, police
cruisers behind them.
The students visited two other area high
schools, trying to encourage students to join their protest, but the
schools were locked down to keep students from leaving, said Los
Angeles district spokeswoman Monica Carazo.
In Georgia, activists
said tens of thousands of workers did not show up at their jobs Friday
after calls for a work stoppage to protest a bill passed by the Georgia
House on Thursday.
The U.S. Immigration Law Blog by Ashwin Sharma 