Little India Interview with Peter Kaestner, Minister Counselor for Consular Affairs at the U.S. Embassy in New Delhi
Via Little India
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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.
VISA BULLETIN FOR MARCH 2007
Visa Bulletin
Number 103
Volume VIII
Washington, D.C.
VISA BULLETIN FOR MARCH 2007
A. STATUTORY NUMBERS
1. This bulletin summarizes the availability of immigrant numbers during March. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by February 8th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.
2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:
FAMILY-SPONSORED PREFERENCES
First : Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.
Second : Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:
A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.
Third : Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.
Fourth : Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.
EMPLOYMENT-BASED PREFERENCES
First : Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second : Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third : Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.
Fourth : Certain Special Immigrants: 7.1% of the worldwide level.
Fifth : Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.
4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.
5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
| Fam-ily | All Charge- ability Areas Except Those Listed | CHINA-mainland born | INDIA | MEXICO | PHILIPP-INES |
| 1st | 01MAY01 | 01MAY01 | 01MAY01 | 01JAN94 | 22JAN92 |
| 2A | 22MAR02 | 22MAR02 | 22MAR02 | 15AUG00 | 22MAR02 |
| 2B | 01JUL97 | 01JUL97 | 01JUL97 | 01MAR92 | 01OCT96 |
| 3rd | 01MAR99 | 01MAR99 | 01MAR99 | 01AUG94 | 01SEP90 |
| 4th | 22MAR96 | 22AUG95 | 08NOV95 | 01MAY94 | 01SEP84 |
*NOTE: For March, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15AUG00. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15AUG00 and earlier than 22MAR02. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)
All | CHINA- mainland born | INDIA | MEXICO | PHILIP-PINES | |
| Employ-ment -Based | |||||
| 1st | C | C | C | C | C |
| 2nd | C | 22APR05 | 08JAN03 | C | C |
| 3rd | 01AUG02 | 01AUG02 | 08MAY01 | 15MAY01 | 01AUG02 |
| Other Workers | 01OCT01 | 01OCT01 | 01OCT01 | 01OCT01 | 01OCT01 |
| 4th | C | C | C | C | C |
| Certain Religious Workers | C | C | C | C | C |
| Iraqi & Afghani Translators | 18SEP06 | 18SEP06 | 18SEP06 | 18SEP06 | 18SEP06 |
| 5th | C | C | C | C | C |
| Targeted Employ-ment Areas/ Regional Centers | C | C | C | C | C |
The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.
Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105 – 139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.
B. DIVERSITY IMMIGRANT (DV) CATEGORY
Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2007 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.
For March, immigrant numbers in the DV category are available to qualified DV-2007 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
| Region | All DV Chargeability Areas Except Those Listed Separately | |
|---|---|---|
| AFRICA | 15,250 | Except: |
| ASIA | 4,450 | |
| EUROPE | 13,175 | Except: Ukraine 10,400 |
| NORTH AMERICA (BAHAMAS) | 7 | |
| OCEANIA | 700 | |
| SOUTH AMERICA, and the CARIBBEAN | 1,010 |
Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2007 program ends as of September 30, 2007. DV visas may not be issued to DV-2007 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2007 principals are only entitled to derivative DV status until September 30, 2007. DV visa availability through the very end of FY-2007 cannot be taken for granted. Numbers could be exhausted prior to September 30.
C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN APRIL
For April, immigrant numbers in the DV category are available to qualified DV-2007 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
| Region | All DV Chargeability Areas Except Those Listed Separately | |
|---|---|---|
| AFRICA | 17,700 | Except: |
| ASIA | 5,125 | |
| EUROPE | 15,100 | Except: Ukraine 10,700 |
| NORTH AMERICA (BAHAMAS) | 7 | |
| OCEANIA | 825 | |
| SOUTH AMERICA, and the CARIBBEAN | 1,240 |
D. RETROGRESSION OF THE MEXICO AND PHILIPPINES FAMILY THIRD PREFERENCE CATEGORY CUT-OFF DATES
It has been necessary to retrogress the cut-off dates for the Mexico and Philippines Family Third preference categories for the month of March in an attempt to keep the issuance level within the annual numerical limit. Further retrogression, or “unavailability”, in future months cannot be ruled out.
E. EMPLOYMENT THIRD PREFERENCE VISA AVAILABILITY DURING THE COMING MONTHS
Little if any forward movement in the Employment Third preference category is expected in the near future. Recent discussions with both Citizenship and Immigration Services (CIS) and the Department of Labor indicate that the demand for numbers with pre-August 2002 priority dates is likely to be extremely high in the coming months as both agencies continue to work on their backlogs. This could easily cause a retrogression of the current Employment Third preference cut-off dates should that demand begin to materialize at CIS offices during the spring and summer months.
F. OBTAINING THE MONTHLY VISA BULLETIN
The Department of State’s Bureau of Consular Affairs offers the monthly “Visa Bulletin” on the INTERNET’S WORLDWIDE WEB. The INTERNET Web address to access the Bulletin is:
From the home page, select the VISA section which contains the Visa Bulletin.
To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:
listserv@calist.state.gov
and in the message body type:
Subscribe Visa-Bulletin First name/Last name
(example: Subscribe Visa-Bulletin Sally Doe)
To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address :
listserv@calist.state.gov
and in the message body type: Signoff Visa-Bulletin
The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (area code 202) 663-1541. The recording is normally updated by the middle of each month with information on cut-off dates for the following month.
Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:
VISABULLETIN@STATE.GOV
(This address cannot be used to subscribe to the Visa Bulletin.)
Department of State Publication 9514
CA/VO:February 8, 2007
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.
The 110th Congress and Immigration Reform
Author: Robert McMahon, Deputy Editor
Counsel on Foreign Relations
Introduction
The
country’s immigration system, assailed by all sides as inadequate,
generated intense congressional debate in 2006. However, widely
divergent approaches by the House of Representatives and the Senate
doomed efforts at comprehensive reform. Democrats, now in leadership
positions in the 110th Congress, say they will attempt to revive
efforts at comprehensive immigration reform with measures that
encompass temporary work provisions, a path to citizenship for illegal
aliens in the country, as well as bolstered security at the border.
President Bush and a number of Senate Republicans share common ground
with Democrats on many key aspects of immigration reform, including
efforts to legalize many of the estimated twelve million illegal
immigrants in the country. Congressional Republicans opposed to such
moves, though diminished in numbers since the 2006 election, have vowed
to fight any attempt at what they term an amnesty for workers who break
the law.
Round 3: H-1B Battle – American engineers vs. senior Democrats!
By Dino Perrotti on Sun, 02/11/2007 – 6:56pm
Leading
Democrats struck American engineers with a powerful left-left combo
before the opening bell of round 3 of the H-1B battle. Senator Kerry
(D-MA) and Senator Kennedy (D-MA) attempted to secretly add an amendment to
the Minimum Wage bill last week. This earmark would have massively
increased the H-1B cap and could have dealt a death blow to countless
engineering careers across the country. With the immigration bill
still months away, two senior Democrats stepped into the ring to
demonstrate where their allegiance lies. It looks like it may be
“curtains” for the engineers of America.
First, senior Republican Senators Cornyn and Shadegg secretly
attempted to earmark an H-1B increase into the India-Nuke bill. Now,
senior Democratic Senators Kerry and Kennedy secretly attempt to do the
same with the Minimum Wage bill. The President campaigns in favor of
expanding the program while his administration has not been enforcing
the current cap.
For the last several years, ordinary citizens have been begging the
government to reform the program, yet their voices are muted by those
in power. Why would all of these Senators secretly attempt to amend
H-1B provisions onto bills which are completely unassociated with
immigration? It would appear to the average voter that tech company
lobbyists wield unimaginable influence and control over the very
highest levels of our government.
It looks like a duck
It hardly seems necessary to even continue this battle. After all, the
fight is fixed. The H-1B cap has not been enforced under this
administration, so why would Kerry and Kennedy bother to attack
middle-class engineers when they are already de facto defeated?
The Democrats are supposed to be attempting to reach out to the
middle-class by raising the minimum wage. The truth is that the
minimum wage only affects people living at the poverty level. It
should be raised, but so should the salaries of America’s
professionals, who are feeling squeezed by politics such as this.
Engineering salaries have been stagnant for the last decade due to the
H-1B law and outsourcing.
Why would these two senior Democrats make the same “secret” move
that the senior Republicans just tried? Perhaps members of both
parties are competing for those huge tech company campaign
contributions but do not want the public to know about their actions.
This leads us to confront the ugly question of whether legal variations
of graft have deeply infected both major parties. If that is true,
then who can you trust?
Who do you vote for when the most powerful members of both major
parties are equally trying to destroy your livelihood? It seems that
the days of voting straight down the line for one party or the other
are over for U.S. citizens. Americans will have to pay closer
attention to the specific positions that each candidate supports and
votes for. Americans will also have to pay closer attention to the
flow of campaign contributions to political candidates. And it is not
easy to track all the players in this congressional battle.
Let’s get ready to rumblllllllllllll…!
In one corner are the tech companies and their highly paid lobbyists
who want to dramatically increase the H-1B cap without considering any
reform at all. They’re represented by some of the most powerful
members of our government who support expanding the H-1B visa program
as it is. They are:
President Bush (R-TX)
Senator Cornyn (R-TX)
Senator Shadegg (R-AZ)
Senator Kerry (D-MA)
Senator Kennedy (D-MA)
Senator Specter (R-PA)
Senator Boehner (R-OH)
In the other corner are American engineers and informed middle-class
voters who want intelligent immigration reform. They are represented
by a minority of members of both parties who are against expanding the
H-1B visa program without reforming it first. They are:
Senator Webb (D-VA)
Senator Tancredo (R-CO)
Congessman Pascrell (D-NJ)
It looks like the odds of American engineers winning this fight are
microscopically low. Dazed and confounded by the pervasive power of
their opponents, they stand wearily in the middle of the ring, as if to
simply prove they’re still there. If there are no more underhanded
attempts to earmark any other bills, the fight will be won or lost
fairly in the immigration reform bill coming up in congress. The
Judiciary committees of the House and Senate are responsible for
drafting any reform or adjustment to the cap.
Apocalypse Soon: The Judiciary Committee battles
If the House of Representatives members
are not sympathetic to this cause, all may be lost. If they increase
the cap, and the Senate follows suit, engineers may again be forced out
of their jobs and out of their professions. If that happens, American
engineering careers will be knocked out for good. American students
will be discouraged further from entering math and engineering fields.
Tech companies will get their cheap labor and America will have lost
her soul. The stakes could not be any higher.
Many new House members are largely unaware that there are H-1B
problems. Voters in the states listed below have the most power to
influence the first draft of the H-1B immigration reform bill. Anyone
who lives in one of these states and wants to be a part of this fight,
should contact their representatives. These are the states with the most House members in the Judiciary Committee:
Florida
Hon. Wasserman Schultz (D)
Hon. Keller (R)
Hon. Wexler (D)
Hon. Feeney (R)
California
Hon. Berman (D)
Hon. Lofgren (D)
Hon. Waters (D)
Hon. Sánchez (D)
Hon. Sherman (D)
Hon. Schiff (D)
Hon. Gallegly (R)
Hon. Lungren (R)
Hon. Issa (R)
Virginia
Hon. Boucher (D)
Hon. Goodlatte (R)
Hon. Scott (D)
Hon. Forbes (R)This is a list of members of the Senate Judiciary Committee:
Patrick J. Leahy, CHAIRMAN (D-VT)
Arlen Specter, RANKING MEMBER, (R-PA)
Edward M. Kennedy (D-MA)
Charles E. Schumer (D-NY)
Joseph R. Biden, Jr. (D-DE)
Orrin G. Hatch (R-UT)
Herb Kohl (D-WI)
Russell D. Feingold (D-WI)
Charles E. Grassley (R-IA)
Dianne Feinstein (D-CA)
Jon Kyl (R-AZ)
Jeff Sessions (R-AL)
Lindsey Graham (R-SC)
Richard J. Durbin (D-IL)
John Cornyn (R-TX)
Benjamin L. Cardin (D-MD)
Sam Brownback (R-KS)
Sheldon Whitehouse (D-RI)
Tom Coburn (R-OK)
The above men and women are the political warriors who will decide
the fate of the next major H-1B battle. It doesn’t look good for
engineers. Many of the members of these commitees are highly funded by
tech company lobbyists. However, new members of congress who may not
be members of this committee, but have broad support among voters, may
also become powerful players in this battle.
Mr. Webb goes to Washington
Is there any member of congress who has the “right stuff” to make a
difference in Washington? Is there an American who has the proper
qualifications, someone who is not beholden to special interests
groups, and someone we can trust? One person is newly elected Senator
Jim Webb, an intelligent military man with a son in Iraq and a genuine
concern for the middle-class. He does not believe in the myth of the
high-skilled labor shortage and wants to reform the H-1B program. He
may soon become a leader in congress and his honor is beyond reproach.
Jim Webb is proof that elections can be won without receiving massive
campaign contributions from special interests groups.
Senator Webb showed his mettle when, instead of getting seduced by
President Bush’s presence, he confronted the president on the Iraq
war. The President insisted on asking Webb about his son, who is
currently serving in Iraq. “That’s between me and my boy Mr.
President”, Webb told the the President. At that moment, Senator Webb
sent a message to senior members of the government that he is there to
do the people’s business. With a few more people like Jim Webb,
Americans might actually be able to wrestle back control of the country
from the tight grips of big business.
Round 3: Fight recap
So to recap, the tech companies have in their corner, the President and
most senior members of congress. American engineers have in their
corner, only a few newer members of congress, a few awakening news
outlets, and an active grass-roots movement.
American engineers may want to just throw in the towel and begin to
look for other types of work at this point. But the fight’s not over
yet, in fact, this may actually be a victory for American engineers and
other high-skilled professionals. If the Minimum Wage bill passes
without another attempt to slip in an H-1B provision, then American
engineers and the middle-class will win this round. The larger battle
may still seem all but lost, but American engineers have a
not-so-secret weapon of their own.
Right makes might
American engineers may have one indomitable defense in this brawl.
They have the moral high ground. It’s hard to beat a fighter who’s
fighting for a just cause. Many government reports
have reported continuing abuse and corruption within the H-1B visa
program. Many victims of abuse and experts in the field have testified
to congress about such abuses in the system. Millions of Americans
empathize with this battle as part of a larger war on the
middle-class. It will be difficult for politicians to face their
voters, debating in favor of blindly expanding this program.
Eventually enough voters will become informed and elect new leaders
accordingly. Then maybe graft will be eliminated or at least
marginalized in our government.
Dubai Ports + amnesty = H-1B
Like the Dubai Ports deal, this is a major homeland security concern
that does not sit well with the public. Like the Amnesty bill proposed
last year, this issue pits the will of the voters against the actions
of their representatives. Voters are getting frustrated with the
hypocritical actions within their government. How can politicians talk
about a war on terror while they remain mute about hundreds of
thousands of visas from the Middle-East and Southeast Asia which are
rubber-stamped by the department of immigration and homeland security
each year? How can they blatently state there is a skilled labor
shortage when so many experts in the business say none exists? It is mind-boggling to the average person.
The H-1B debate is shaping up to be ground zero for the larger
immigration battle soon to come. That is, of course if the debate is
allowed to openly take place.
Stay tuned for more fight coverage.
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.
Applications for Replacement Naturalization/Citizenship Doc. to be Filed with NSC or TSC
[Federal Register: January 25, 2007 (Volume 72, Number 16)]
[Notices]
[Page 3402-3403]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ja07-41]
—————————————–
DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
[CIS No. 2395-06; DHS Docket No. USCIS-2006-0052]
RIN 1615-ZA41
Direct Mail Program for Submitting Form N-565, Application for
Replacement Naturalization/Citizenship Document
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Notice.
—————————————–
SUMMARY: U.S. Citizenship and Immigration Services (USCIS) is expanding
its Direct Mail Program to provide that filings of Form N-565,
Application for Replacement Naturalization/Citizenship Document, be
filed at a designated Service Center for processing. Applicants were
previously required to file at a USCIS field office having jurisdiction
over their place of current residence. The Direct Mail Program allows
U.S. Citizenship and Immigration Services to more efficiently process
applications by eliminating duplicative work, maximizing staff
productivity, and introducing better information management tools.
USCIS intends for this Direct Mail process to be implemented on
February 26, 2007 and it will affect all applicants filing Form N-565.
DATES: This notice is effective February 26, 2007.
FOR FURTHER INFORMATION CONTACT: Leah Torino, HQ Adjudications Officer,
Office of Field Operations, or Deanna Garner, Adjudications Officer,
Office of Service Center Operations, U.S. Citizenship and Immigration
Services, Department of Homeland Security, 20 Massachusetts Avenue,
NW., Washington, DC 20529, Telephone (202) 272-1001 or (202) 272-1688.
Background
What is the Direct Mail program?
Under the Direct Mail program, applicants for certain immigration
benefits mail the designated application or petition directly to a U.S.
Citizenship and Immigration Services (USCIS) Service Center instead of
submitting it to their local USCIS office. The purpose and strategy of
the Direct Mail program have been discussed in detail on previous
rulemakings and Notices (see 59 FR 33903 and 59 FR 33985).
What is Form N-565?
The Form N-565 is an application for replacement naturalization or
citizenship documents. This form is used by individuals seeking a
replacement Naturalization Certificate, Certificate of Citizenship,
Declaration of Intention, or Repatriation Certificate, or to apply for
a special certificate of naturalization as a U.S. citizen to be
recognized by a foreign country.
Interested individuals may find eligibility requirements for Form
N-565 as well as all other applications at the USCIS Web site: http://www.uscis.gov
.
Explanation of Changes
Does this Notice change an alien’s eligibility for issuance of a
replacement naturalization or citizenship document?
No. This Notice only changes the filing location for these
applications. These forms, previously filed at several locations
nationwide, will now be filed under the Direct Mail Program at
specified Service Centers.
What is the new filing location for Form N-565?
Effective February 26, 2007, those applicants residing in Alabama,
Arkansas, Connecticut, Delaware, District of Columbia, Florida,
Georgia, Kentucky, Louisiana, Mississippi, Maine, Maryland,
Massachusetts, New Hampshire, New Jersey, New Mexico, New York, North
Carolina, South Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode
Island, Tennessee, Texas, Virginia, Virgin Islands, Vermont and West
Virginia, will forward their application to the Texas Service Center
at: DHS/USCIS, Texas Service Center, PO Box 851182, Mesquite, TX 75185-
1182.
Those individuals residing in Alaska, Arizona, California,
Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas,
Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota,
Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin and Wyoming,
will forward their application to the Nebraska Service Center at: DHS/
USCIS, Nebraska Service Center, PO Box 87565, Lincoln, NE 68501-7565.
What will happen to Form N-565s that are filed at the wrong address?
USCIS will have a 30-day transition period, beginning February 26,
2007, through March 26, 2007, during which USCIS will automatically
forward any locally filed Form N-565 to the correct designated Service
Centers.
After March 26, 2007, all local USCIS offices will no longer accept
any Form N-565 filings. Applications received by
[[Page 3403]]
a local USCIS office after March 26, 2007, or received by an incorrect
designated Service Center, will be returned to the applicant with
accompanying fees for resubmission at the proper filing location.
Which version of the Form N-565 will USCIS accept?
As of February 26, 2007, USCIS will accept Form N-565 (edition date
09/29/06, OMB Control No. 1615-0091). Any prior versions submitted
after March 26, 2007 will be returned to the applicant with
accompanying fees for resubmission of the proper form edition.
Does this Direct Mail Notice affect Form N-565s that have already been
filed with USCIS?
No. Applications received by a local USCIS office prior to February
26, 2007 will remain within the jurisdiction of that office for the
completion of processing. Therefore, it is not necessary for
individuals who previously filed an application at a local USCIS office
to file a new application in connection with this change of procedure.
Paperwork Reduction Act
USCIS will be amending the instructions to the Form N-565 to
reflect the new filing instructions. Accordingly, USCIS will provide
the Office of Management and Budget with a copy of the amended form
through the automated Regulatory Office Combined Information System
(ROCIS). Changing the filing instructions will not have any affect on
the reporting burden hours.
Dated: November 21, 2006.
Emilio T. Gonzalez,
Director, U.S. Citizenship and Immigration Services.
[FR Doc. E7-1131 Filed 1-24-07; 8:45 am]
BILLING CODE 4410-10-P
The U.S. Immigration Law Blog by Ashwin Sharma 
High cost of U.S. citizenship could exact high price
Karen has been in the United States for three years. She has applied for a work permit four times, paying almost $300 each time, including the cost of all the documents required.
Her petition always has been denied. She works – without a permit – as a waitress in Miami, earning $300 a week.
If she were to qualify for citizenship, she wouldn’t hesitate to make the sacrifice, work extra hours and pay the high cost of becoming an American.
If her petition were denied again, it would take a toll on her finances and her spirit.
U.S. Citizenship and Immigration Services officials have announced their intent to significantly raise the price for services.
If approved by Congress, the price of a work permit would go from $180 to $340. Permanent residency costs would almost triple, from $325 to $905, and citizenship applications would go from $330 to $595.
The immigration service doesn’t receive funds from Congress. It’s supported almost entirely by applicants.
In 2006, there were 823,000 petitions filed for citizenship and 806,000 for permanent residency.
There are approximately 8 million legal residents in the country who are eligible to become U.S. citizens. So immigration service officials are poised to make plenty of money from potential new clients.
Before implementing such changes, agency officials have opened the process to public opinion for 60 days.
They didn’t have to wait long to have the proposed hike come under a storm of criticism.
Immigration advocates complain it’s unacceptable and excessive. It will become one more obstacle for immigrants who want to legalize their status, they say.
It could prevent immigrants from applying for citizenship and make them lose out on the right to vote in 2008.
Excessive? Perhaps. Especially if you’re surviving on the minimum wage. Suppose a person, like Karen the waitress, would be willing to do whatever is necessary to become a legal resident or U.S. citizen, the new price increase wouldn’t benefit her in any way or improve her chances of getting it, for now.
Immigration service officials claim the higher fees will help it provide better service, better treatment and shorter waiting time for the applicants.
It would allow them to hire more personnel and acquire better technology and, subsequently, speed up the process.
They say citizenship claims will be processed in five months instead of seven, and residency in four months instead of six.
The problem is the “new and improved” services wouldn’t kick in until 2009.
Jorge Rivera, an immigration attorney in Miami, said the average wait is a lot longer than the immigration service claims.
“You have to add to those six or seven months the time it takes to do a background check,” he said. “If your name just happens to be similar to that of someone with a criminal background or (you) live in a city with a high number of applicants, you are looking at years and years of waiting for residency or citizenship.”
Members of the American Immigration Lawyers Association are appalled by the proposal to increase the rates.
It’s unacceptable, they say, to promise a 20 percent improvement in processing times by the end of 2009 and ask applicants to pay approximately 66 percent more for services they most likely will not be receiving.
“They are charging immigrants not only to process applications but for the agency’s overhead and for law enforcement activities such as investigations and security checks,” the association added in a written statement.
Members of Congress need to take a serious look at this price hike.
The fees already have been increased – or “adjusted,” as they like to call it – four times in the past decade.
Immigrants from all over the world are willing to pay the high price of becoming Americans, but they shouldn’t have to support a U.S. agency, especially when the great majority already are helping support this country with their work, taxes and as consumers.
The federal government should help subsidize the cost of the immigration process instead of making immigrants pay now for services someone else might receive in the future.
Salinas hosts “Noticieros Univision.” Her Web site is http://www.mariaesalinas.com.