American Immigration Lawyers Association July/August 2007 T o Why Filipinos Call d H-1B Employers H-1B Employers Surviving Labor Beware Certification H-3 vs.J-1 Training This Country
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departments CONTENTS 6 President’s Page The Centennial Call to Mission Beyond 12 of the Great Migration: Comprehensive Immigration Reform Why Filipinos Call This Country Home 8 Pro Bono by Miriam Bustamante Riedmiller AILA Citizenship Day Leaves a Lasting Legacy
3 4 Ask the Expert Coping with Potholes in the Employment-Based Immigration Highway
38 Tech Notes Tried and Tested Computer 18 Life-Saver Tips and Tricks Playing BIG BROTHER: 42 Reader’s Corner Watching Over the H-1B A Nation by Design: Portrait Employer of Immigration Policy in the by Praveena Nallainathan, Karen C. Fashioning of America Selking, Pamela P. Mick, and 48 Practice Pointers Steven H. Garfinkel A Labor Certification Survivor Guide 56 Status Checks 26 ALSO Practice Makes Perfect: The Chavez World H-3 and J-1 Training Categories p. 10 by Marcia N. Needleman, Alexis S. Axelrad, and Eric Bland Advertisers Index p. 54
On the cover: CORBIS / BonoTom studio July/August 2007 Immigration Law Today 3 AILA’s Contact Information Immigration Law Reprint requests; editorial comments; letters to the editor; proposals for Today submission of articles: [email protected] Managing Editor tatia L. Gordon-Troy AILA National Officers Display advertising information: Assistant Editor Kristine L. Tungol President Kathleen C. Walker [email protected] Editor-in-Chief crystal Williams President-Elect charles H. Kuck or call (202) 216-2400 Contributors Alexis Axelrad, Dan Berger, 1st Vice President Bernard P. Wolfsdorf Address changes: Eric Bland, Steve Clark, Nick Chavez, www.aila.org/myprofile (AILA members) Kathleen Campbell Walker, Steven 2nd Vice President David W. Leopold 1-800-982-2839 (nonmembers) Garfinkel, Pamela Mick, Praveena Treasurer Eleanor Pelta Nallainathan, Marcia Needleman, Ordering AILA publications: Secretary Laura Lichter Miriam Bustamante-Riedmiller, www.ailapubs.org; 1-800-982-2839; Karen Selking, William Stock, Susan Executive Director Jeanne A. Butterfield or for general publications-related Timmons, Reid Trautz questions: [email protected]
Design & Production Bono Tom Studio, Inc. Disclaimer www.bonotom.com AILA’s Immigration Law Today features and departments do not necessarily represent John Clemmer, AILA the views of AILA, nor should they be regarded as legal advice from the association Senior Graphic Designer or the authors. AILA does not endorse any of the third-party products or services Editorial Advisory BoARD advertised in Immigration Law Today, nor does it verify claims stated therein. Barbara Bower, Pittsburgh Ted J. Chiappari, New York AILA’s Immigration Law Today (ISSN: 1532-1398) is published six times a year by the American Neil Dornbaum, Newark, NJ Immigration Lawyers Association, 918 F Street, NW, Washington, DC 20004, (202) 216-2400. Mark Ivener, Los Angeles Copyright © 2007 AILA. All rights reserved. No part of this publication may be reprinted or otherwise reproduced without the express permission of the publisher. “AILA” and the AILA logo Steven Klapisch, New York are registered trademarks of the American Immigration Lawyers Association. Periodicals postage Jonathan Montag, San Diego paid at Washington, D.C. POSTMASTER: Send address changes to Immigration Law Today, AILA, H. Sam Myers, Minneapolis 918 F St., NW, Washington, DC 20004 Martha Schoonover, McLean Subscription Information and Rates: Annual subscription rate (six issues): $72. Single issue price: $16. Steven Thal, Minnetonka, MN Additional charge for delivery outside continental United States. Call 1-800-982-2839 for details. Matt Trevena, Austin A subscription to Immigration Law Today is included with AILA membership.
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4 Immigration Law Today July/August 2007 USAWEB pu page 5 president’s page / by Kathleen Campbell Walker
Call to Mission Beyond Comprehensive Immigration Reform
am honored to have the opportunity to serve as the 2007–08 American Im- Will Piecemeal Packaging Work? migration Lawyers Association (AILA) president. Being a lawyer on the United There is murmur of possible single-shot reforms that might get through as part of States and Mexico border for more than 20 years has helped me deal with the I SKIL, AgJOBS, DREAM, and other em- tumult over border security during my tenure on the AILA Executive Committee, ployment-related bills. But since Congress and hopefully has prepared me to lead AILA during these uncertain times. could not craft a balanced reform package, all 50 states now have engaged in their own Remembering the Past The Push for Reforms version of “fixing” the illegal immigration The field of immigration law has had its in the 21st Century problem. As of April 13, 2007, the National share of xenophobia and nativism. Sadly, AILA anticipated an immigration reform Conference of State Legislatures reported some of these are still relevant in the ongo- package back in 2002. Five years later that 1,169 bills and resolutions had been ing immigration debate. and a few votes shy of witnessing a com- introduced across the nation, with the prehensive immigration reform (CIR) highest number of bills addressing the Mid-19th Century Mass Migration package actually come to fruition, we issue of employing unauthorized work- The Anglo-American resentment toward are still plagued with the same problems ers. For example, Arizona Governor Janet the influx of Irish Catholic immigrants dur- and shortcomings. In light of the Senate’s Napolitano signed into law a measure that ing the potato famine of the 1840s led to the lack of ability to agree on immigration would require all employers to run their Know-Nothing movement that formed the reforms, it seems predictable that any employees through the Basic Pilot Pro- American Party a decade later, which pro- compromise on immigration legislation gram to determine their legal status start- moted limits on immigrant admissions, 21- would be crafted behind closed doors. ing January 1, 2008. In addition, the Prince year waits for citizenship, and restrictions This is troubling since many anti-immi- William County Board of Supervisors in on voting rights and office holding. gration legislators, such as Senator Rick Virginia voted unanimously to approve a From the 1850s to the 1870s, Chinese Santorum (R-PA), Rep. J.D. Hayworth resolution that targets illegal immigrants workers were recruited to work on rail- (R-AZ), and Rep. John Hostettler of by attempting to curb their access to public roads, mines, and farms. Soon after, Con- (R-IN), were not re-elected to Congress. services and increase immigration enforce- gress passed the Chinese Exclusion Act of What then is stopping Congress from ment by local police. 1882, which suspended admission of Chi- making the necessary reforms? nese immigrants for 10 years. Helping Mold the Future Is Comprehensive Reform Possible? As immigration lawyers, we take on our share World Wars I and II I became the new AILA president on June of an evolving complex area of law and serve Public burnings of German books were 14, 2007, and four days later, Senate Major- as torchbearers for the ideals that have kept common in 1918, and some states prohib- ity Leader Harry Reid (D-NV) resurrected our country so strong as a nation of immi- ited speaking German or playing German- the Grand Bargain bill via the introduc- grants. We have difficult times ahead due to composed music in public. Between 1921 tion of Senate Bill 1639. But to reach the increased turbulence and tension over the is- and 1925, Congress passed restrictive Faustian bargain, the bargainers basically sue of immigration. We must be mindful of national-origins quotas to slow Southern created a kitchen sink of comprehensive our place in this maelstrom—to cut through and Eastern European immigration and reform bills that were filled with funda- the rhetoric and hysteria and to provide a barred almost all Asian admissions, which mental problems. Furthermore, someone voice of reason. Looking back over our his- resulted in few Jewish refugees escaping the had proposed a radical experiment on the tory as a nation, I have no doubt that our voice Holocaust to the United States. Japanese family– and employment-based systems will be strong enough for this mission. ILT internment camps created after the Pearl that basically gutted the current process. Harbor attack were an example of perhaps Therefore, when cloture on the CIR bill Kathleen Campbell Walker is a partner the zenith of racist beliefs combined with could not be invoked on June 26, 2007, the in and chairperson of Kemp Smith, LLP’s national security imperatives. vote was bittersweet to many. immigration department in El Paso.
6 Immigration Law Today July/August 2007 Law Logix* new page 7 pro bono / by Susan Timmons AILA Citizenship Day Leaves a Lasting Legacy
merican Immigration Lawyers Association (AILA) the Washington State Chapter’s pro bono attorneys were out in full force across the country, as local chapters joined forces committee, and AILA National’s Pro Bono Services Committee, the idea was formally with other grassroots organizations to launch AILA’s first annual Citizenship A presented at the September 2006 meeting of Day. The event took place on March 24, 2007, and focused on assisting eligible lawful the chapter chairs. From there, Citizenship permanent residents (LPRs) to prepare their naturalization applications. Fourteen Day began its national movement. With the chapters participated in the nationwide, one-day drive to provide free or low-cost help of the Pro Bono Services Committee and its Chair, Leslie Dellon of the Wash- assistance and answer questions about the application process. With Citizenship Day ington, D.C. Chapter, an inaugural National heralded as an enormous success, the wheels already are in motion for next year’s Citizenship Day began to take shape. event, while more AILA chapters plan on holding similar events later in the year. Blueprint for Success Citizenship Day Conception ton State Chapter held its first Citizenship Naturalization drives are fairly common in Citizenship Day began as the brainchild Day in April 2006, with the support and the immigration activist community, but of Washington State Chapter member encouragement of then–President-Elect this plan was different. Soreff and the Na- Paul Soreff. “I knew that citizenship assis- Carlina Tapia-Ruano and the backing of tional Pro Bono Services Committee didn’t tance was needed in the community and the Washington State Chapter’s pro bono just encourage the other 34 AILA chapters was something that most AILA attorneys committee. to hold a Citizenship Day event—they could do well with just a little training, as The first Citizenship Day was a tre- told them exactly how to do it and then long as there were some qualified persons mendous success so the chapter wanted assisted them along the way. The big in- available to supervise and watch out for to expand the event in 2007. After addi- novation was “Citizenship Day in a box.” problem cases,” said Soreff. The Washing- tional consultations with AILA leadership, This concept, modeled on the “clinic in a box” programs that have achieved remark- able success nationwide, enabled event co- ordinators to focus on the logistical needs of Citizenship Day. Using the materials the Washington State Chapter had developed in 2006, AILA made everything available for local Citizenship Day event coordina- tors to download from InfoNet. The documents provided by the Wash- ington State Chapter included more than 20 ready-to-go forms, such as an Intake sheet, Commonly Asked Questions About Naturalization, a Volunteer Check-in sheet, a chapter member recruitment e-mail and a publicity flyer. These materials enabled even the smaller chapters to participate.
Launching with Great Execution Ultimately, 14 AILA chapters held drives at 27 sites nationwide. Approximately 350 attorneys were joined by 500 volunteers to serve more than 1,700 LPRs. Many chapters Citizenship Day—Chicago: AILA volunteers assisted immigrants with their applica- developed partnerships with community- tions for naturalization at the West Side Tech Community Center in Chicago during based organizations, immigration advocacy AILA’s Citizenship Day on March 24, 2007. groups, local churches, and schools to get
8 Immigration Law Today July/August 2007 the word out and staff the clinics. “This was the D.C. chapter’s first time organizing Citizenship Day,” said Cheryl Geiser-Young, Citizenship Day coordinator. “While there were certainly things we could have done differently, or may change for next year, our first go was a success,” she added. The Washington, D.C. Chapter partnered with 11 community-based organizations and had more than 45 volunteer attorneys, paralegals, and interpreters at three different locations in the Baltimore/Washington, D.C., metropoli- tan area. At the end of the day, they served nearly 90 people. Geiser-Young concluded, “It was exciting to be a part of something that was national in scope; to know that chapters nationwide were serving people just as we were was inspiring.” Most chapters used their partners’ facili- ties as site locations on the day of the event, and several chapters partnered with local law schools. This accomplished a two-fold mission: to garner volunteers from students and encourage the future generation of im- migration practitioners to commit to pro bono service early in their careers. “This really helped me remember why I wanted to be a lawyer—helping people,” re- Citizenship Day—Rochester, MN: Volunteer Ron Buzard carefully examined an appli- marked Holly Smith, a student at the Seattle cant’s Form N-400 at the Hawthorne Education Center in Rochester, MN, where the University School of Law. AILA Minnesota/Dakotas Chapter assisted more than 80 U.S. citizen hopefuls.
Platform for Advocacy brings,” said Williams. Numerous Citizen- distribution of press releases to all the local With U.S. Citizenship and Immigration ship Day volunteers noted that they hoped media.” In fact, the Atlanta Journal Constitu- Services almost doubling the application fee the event would be not only a pro bono tion printed a half-page special interest piece for naturalization, and significant changes community project, but also an advocacy about Georgia’s Citizenship Day events and in immigration law on the horizon, LPRs event to promote support for comprehen- the local CBS news station also aired the decided that this was the time to become a sive immigration reform. story—demonstrating the successful combi- U.S. citizen. “As I planned the Citizenship day events nation of pro bono work with advocacy. AILA Deputy Director of Programs for the Georgia Chapter of AILA, I envi- Crystal Williams explained the recent surge sioned this event not only as a wonderful Lasting Legacy in naturalization applications and the in- opportunity for AILA attorneys and volun- At the end of the day, more than 1,700 in- crease in demand for the services provided teers to provide pro bono services, but also dividuals were helped along their journey through Citizenship Day. “Undoubtedly, the as a day to raise awareness and even educate to citizenship. “To me, the most important main reason for the surge is the increase in our community about the positive aspects thing we did here was to establish a na- fees. But another factor is the growing pock- of immigration in an era when we are con- tional AILA pro bono program that not ets of anti-immigrant sentiment. Local ordi- stantly bombarded with negative and anti- only assists thousands of people each year nances against immigrants, authorization of immigrant press,” said Elizabeth Garvish, to become citizens, but that also helps to the building of a fence, and the nightly hy- Georgia Chapter Citizenship Day coordina- strengthen AILA’s links with the communi- perbole on cable news lead some to feel that tor. “My efforts included enlisting over 20 ties we serve,” said Soreff. citizenship is a path to safety, in addition to community-based organizations to partner The participating chapters reported that the freedoms and privileges that citizenship with our local chapter in this event and the the individuals who were served ➝
July/August 2007 Immigration Law Today 9 Pro Bono AILA Citizenship Day
Citizenship Day Movers and Shakers
AILA National would like to commend the chapter chairs and Citizenship Day coordinators who worked tirelessly to make this day a success. Your local efforts have strengthened AILA and your communities, and made a tremendous difference in the lives of those you served. Thanks to you, they will be able to call themselves U.S. citizens soon.
Arizona Idaho Nicomedes E. Suriel, Chapter Chair Kathryn Railsback, Citizenship Day Coordinator Gloria Goldman, Citizenship Day Coordinator Michigan Maurice “Mo” Goldman, Citizenship Day Coordinator Scott Cooper, Chapter Chair Atlanta Lesley L. Baribeau, Citizenship Day Coordinator Elizabeth Garvish, Citizenship Day Coordinator Melanie Goldberg, Citizenship Day Coordinator Carolinas Casey Mobley, Citizenship Day Coordinator Laura A. Edgerton, Chapter Chair Minnesota/Dakotas Jeremy L. McKinney, Citizenship Day Coordinator Christopher Wendt, Citizenship Day Coordinator Nichola Prall, Citizenship Day Coordinator Missouri/Kansas Central Florida Roger K. McCrummen, Chapter Chair Dilip Patel, Chapter Chair Angela J. Ferguson, Citizenship Day Coordinator Mayra Calo, Citizenship Day Coordinator Southern California John Dubrule, Citizenship Day Coordinator Yeu S. Hong, Chapter Chair Chicago Texas Martina Keller, Chapter Chair Magali S. Candler, Chapter Chair David Cook, Citizenship Day Coordinator Vishal Chander, Citizenship Day Coordinator Kathryn Weber, Citizenship Day Coordinator Jennifer Reynolds, Citizenship Day Coordinator Mony Ruiz-Velasco, Citizenship Day Coordinator Mary Meg McCarthy, Citizenship Day Coordinator Washington Steve S. Miller, Chapter Chair Colorado Paul Soreff, Citizenship Day Coordinator Kirby Gamblin Joseph, Chapter Chair Washington, D.C. Connecticut Matthew Glinsmann, Chapter Chair Andrew Wizner, Chapter Chair Cheryl Geiser-Young, Citizenship Day Coordinator Kristin Hoffman, Citizenship Day Coordinator Michelle Funk, Citizenship Day Coordinator Hawaii John Egan, Citizenship Day Coordinator
CHAVEZ WORLD expressed sincere, heartfelt thanks and appreciation for the vol- unteers’ assistance. Upon leaving the Minnesota/Dakotas site, one individual commented, “It is nice that events like this [are] done for us. We really need it and I thank those who took the time.” An- other person in Washington was so appreciative of the assistance that he donated money to help with the project. The response AILA National has received regarding Citizen- ship Day has been overwhelmingly positive. All of the local co- ordinators reported that their volunteers were enthusiastic about the project and are planning to participate in Citizenship Day 2008. “Every single volunteer said he or she would be willing to volunteer again,” said AILA member and volunteer Christo- pher Wendt. “One uniform refrain from everyone was that they enjoyed the project and wanted to do it again next year,” added Soreff, as he looks forward to Citizenship Day becoming an an- nual AILA event. ILT
Susan Timmons is AILA’s Pro Bono associate.
10 Immigration Law Today July/August 2007 INSZoom page 11 The Centennial of Great Migration
A Filipino boy toiled in a cauliflower field near Santa Maria, CA, in March 1937.
Philippine President Gloria M. Arroyo (standing 2nd from L) was at the Philippine Embassy in Washington, D.C., for a Memorandum of Understanding meeting to expand consular assistance to distressed Filipinos living in the United States.
Fil-Ams in Honolulu circa 1950.
Philippine Vice-Consul Felipe S. Lamdagan (standing 2nd from L) entertained guests in his Los Angeles residence in the 1950s.
Photos by Pedro Lamdagan Corbis the The Centennial of Great Migration
by Miriam Bustamante Riedmiller Why Filipinos Call This Country Home Buried in the folds of American history—from 1906 to the present—is the unique story of Filipino migration to the United States, shaped by annexation and colonial ties, the aftermath of World War II (WWII), alliance, and vicissitudes in the Philippine and world economies, politics, and legislation. The Philippines is prominently and perpetually listed in the U.S. Department of State’s (DOS) Visa Bulletin as having oversubscribed visas—along with China, India, and Mexico. Very few understand this phenomenon because of the country’s geographical distance to the United States and its population size of approximately 89 million people (see the Philippine National Statistics Office estimate at www.census.gov.ph). However, his- tory reveals an explanation to this Visa Bulletin prominence—one that traces the Philippines’ long-standing relations with, and support to, the United States in times of war and peace.
The Filipino-Americans (Fil-Ams) stand on the shoul- According to DOS, four million Filipinos account for this coun- ders of their predecessors who came to the United States try’s population as of 2007 (see www.state.gov). This number is under trying circumstances and unusual visa categories. expected to rise, as more than 80,000 Filipinos immigrate to the From U.S. nationals contracted to work in Hawaiian plan- United States annually. tations, to WWII veterans being granted U.S. citizenship, Filipino presence in the this country is traced back to to lawful permanent residents (LPRs) with derivative sta- 1587 in California during the Galleon Trade between the tus, and employment-based beneficiaries, Filipinos have Philippines and the “new world,” as advance scouts for the entered this great nation by virtue of the alphabet soup of Spanish expedition. However, mass migration did not oc- visa categories from A to Z. cur until the end of the 19th century, when labor disputes in Hawaiian plantations and California farmlands created The Pervasive Presence of Fil-Ams in America Today the surge of Filipino men to fill the need for good, cheap The Fil-Am community is the second largest Asian-American labor. Historically, this migration event is known as the group in the United States (following the Chinese-American first among the three official waves of Filipino migration community) and the largest Southeast Asian-American group. to the United States. ➝ Photos by Pedro Lamdagan July/August 2007 Immigration Law Today 13 The Centenial of the Great Migration Why Filipinos Call This Country Home
tations with more efficient and affordable workers. These im- migrants also worked in California and Washington farmlands, Washington lumber yards, and salmon canneries in Alaska. However, centuries of colonial rule did not quench the Fili- pinos’ fight for freedom and a mere 73 years ago, the Tydings- McDuffie Act (officially the Philippine Independence Act, Pub. L. No. 73-127) gave the Philippines its taste of independence. The Tydings-McDuffie Act was approved on March 24, 1934, and provided for the drafting and guidelines of a Constitution for a 10-year “transitional period,” which recognized a govern- ment of the Commonwealth of the Philippines before the United States granted Philippines its full independence. During this time, the United States would maintain military forces in the Philippines. Furthermore, the American president was granted Philippine Vice-Consul Felipe S. Lamdagan hosted a Visayan-dialect program at KPOA radio station in Honolulu in the late 1940s. the power to call into military service all military forces of the Philippine government. The First Wave: From Open Borders to 50-Per-Year The act also reclassified all Filipinos that were living in the Unit- The U.S. borders were flung wide open to the Filipinos’ first wave ed States as “aliens” for the purposes of immigration to America. of migration around 1906–1934, when the archipelago islands Filipinos were no longer allowed to legally work in the United of the Philippines were a U.S. territory. Filipinos were catego- States, and an annual quota of 50 immigrants was established. rized as U.S. nationals as a proximate result of the U.S. victory in the Spanish-American War. In the Treaty of Paris of 1898, Spain The Second Wave: Soldiers and War Brides ceded the Philippines to the United States as a territory after 300 WWII dictated the second wave of Filipino migration to the years of Spanish colonial rule. Not long after came the ensuing United States. President Franklin Roosevelt signed the Execu- Philippine-American War from 1899 to 1902, in which President tive Order on July 26, 1941, calling members of the Philippine Theodore Roosevelt declared U.S. victory—effectively making Commonwealth Army to serve in the U.S. Armed Forces of the the Philippines a U.S. territory. In contrast to the multi-faceted Far East with the promise of U.S. citizenship and other benefits. Filipino immigrants of today, the first wave of immigrants were More than 200,000 Filipinos served in the war with distinction all men and proved to be the perfect solution for American labor and fought with Americans against the Japanese, including Con- unions looking to fill Hawaiian sugarcane and pineapple plan- gressional Medal of Honor recipient Army Sgt. Jose Calugas.
Timeline: How Filipinos Came to the United States
1587—first Filipinos in North lege in the United States on persons and members of the a member of the Hawaii State America landed in Morro Bay American government scholar- Malay race (i.e., Filipinos). House of Representatives. near San Luis Obispo, CA. ships arrived. (Stats. 1933, p. 561). 1956—Bobby Balcena be- 1763—first permanent Filipi- 1906—first Filipino labor- 1936—the Philippines became came the first Fil-Am to play no settlements established in ers migrated to the United self-governing as the Common- Major League baseball for the North America near Barataria States to work on the Hawai- wealth of the Philippines. Cincinnati Reds. Bay in southern Louisiana. ian sugarcane and pineapple 1939—Washington Supreme 1965—Congress passed the plantations, California and 1781—Antonio Miranda Court ruled unconstitutional Immigration and Nationality Act Washington asparagus farms, Rodriguez was among the first the Anti-Alien Land Law of Amendment of Oct. 3, 1965, Washington lumber, and group of settlers to establish 1937, which banned Filipino- facilitating the ease of entry for Alaska salmon canneries. the city of Los Angeles. Americans (Fil-Am) from skilled Filipino workers. 1920s—Filipino labor leaders owning land. 1898—United States annexed 1965—Delano grape strike organized unions and strate- the Philippines. 1946—the Philippines be- began when members of Ag- gic strikes to improve working came completely independent; ricultural Workers Organizing 1899—Philippine-American and living conditions. , by America Is in the Heart Committee—mostly Fili- War began. Carlos Bulosan, is published. 1933—California Civil Code pino farm workers in Delano, 1903—firstpensionados , §60 was amended to pro- 1955—Peter Aduja became CA—walked off the farms of Filipinos invited to attend col- hibit marriages between white the first Fil-Am to be elected as area table grape-growers and
14 Immigration Law Today July/August 2007 Filipinos’ Call to Action Filipinas’ Call to Duty The WWII Filipino soldiers were promised the same benefits The second wave of Filipino immigrants did not exclusively con- afforded to those serving in the U.S. Armed Forces. However, sist of men. The women also comprised this wave during WWII Congress yanked the rug from under the feet of these veterans because of the War Bride Act of 1945. Filipino women were liter- when it passed the Rescission Act of 1946, signed by President ally swept off their feet to marry their Filipino sweethearts already Harry Truman. The law stripped Filipinos of their U.S. veteran living in the United States. This law sought to relieve the tensions status (except for a few who died or were wounded in battle). caused by the Filipino men’s dilemma under anti-miscegenation The Rescission Act singled out Filipino WWII veterans—the laws, which prohibited certain interracial marriages. only group—from among the 66 countries allied with the Unit- ed States during the war that did not receive equal military The Third Wave: Professionals and Their Families benefits from the United States. Since the passage of the Re- The third wave of Filipino migration departed from the first two scission Act, Filipino veterans persist to lobby for their earned waves, as the new immigrants flowed in much larger numbers to benefits. Numerous “full equity bills” have been introduced in fulfill America’s need for professionals. These educated Filipinos Congress only to die before reaching the Senate or House floor. arrived in the third preference category carved by the Immigra- Veterans and their supporters remain hopeful for the two bills tion and Nationality Act Amendment of Oct. 3, 1965 (Pub. L. that are pending in Congress: the Filipino Veterans Equity Act No. 29-236, 79 Stat. 911). of 2007 (S.57) in the Senate and a bill of the same name in the It is relatively easy for Filipino nationals to enter the American House (H.R. 760). healthcare workforce. Although many hospitals employ their fair Out of the 200,000 Filipino soldiers who fought during share of Filipino doctors, physical therapists, and medical technolo- WWII, 6,000 survivors are living in the United States and 12,000 gists, to name a few, Filipino nurses are the most prevalent profes- remain in the Philippines. Those remaining in the Philippines sional exports from the Philippines. Nursing education in the Philip- are hopeful that these two pending bills will “restore their U.S. pines is highly regarded world-wide; therefore, Filipino nurses are veteran status and make them eligible for a full range of U.S. preferred by many American hospitals. (O. Bocunana, “Filipino veteran’s benefits,” said Eric Lachica, Executive Director for the Nurses Preferred,” The Philippine Inquirer, Jan. 5, 2004). With the American Coalition for Filipino Veterans. In June 2007, the Sen- shortage of American nurses beginning in the 1980s, clinics and hos- ate Veterans Affairs Committee passed the equity bill legislation pitals in the United States have been directly hiring from the Philip- for final approval on the Senate floor. If the House approves this, pines and offering substantial salaries. According to the U.S. Census and President Bush signs it into law, it will restore these unsung Bureau, 60,000 Filipinos migrated to the United States every year in Filipino soldiers’ veteran status and overturn the adverse effects the 1990s to take advantage of such professional opportunities. of the Rescission Act of 1946. The third wave of Filipino migration continually ➝
Timeline: How Filipinos Came to the United States
demanded wages on level American-dominated district; 1990—David Mercado dent, and Simeon R. Acoba, Jr., with the federal minimum Kauai’s Eduardo E. Malapit Valderrama became the first was appointed Justice to the wage. Labor leader Philip Vera was elected first Fil-Am mayor. Fil-Am to be elected to a state Hawaii State Supreme Court. Cruz subsequently served as legislature on the mainland 1981—Silme Domingo and second vice president and United States, serving Prince 2003—Philippine Republic Gene Viernes were both as- was on the managing board of George’s County in Maryland. Act No. 9225, also known as the United Farm Workers. sassinated on June 1, 1981, the Citizenship Retention and inside a downtown Seattle 1991—Seattle’s Gene Canque Re-Acquisition Act of 2003, 1974—Benjamin Menor was union hall. The late Philippine Liddell became the first is enacted, allowing natural- appointed Justice of the dictator, Ferdinand Marcos, Fil-Am woman to be elected born Filipinos naturalized in Hawaii State Supreme Court, hired gunmen to murder both mayor, serving the suburb of the United States and their the first Fil-Am to serve in a ILWU Local 37 officers to si- Lacey City, WA. unmarried minor children to state’s highest judiciary office. lence the growing movement in reclaim Filipino nationality 1994—Benjamin J. Cayetano the United States opposing the and hold dual citizenship. 1975—Governor John A. dictatorship in the Philippines. became the first Fil-Am and Burns (D-HI) convinced Ben- second Asian-American to be 2006—Commemoration of the jamin J. Cayetano to run and 1987—Benjamin J. Cayetano elected governor of a state of 100 Years of Filipino migra- win a seat in the Hawaii state became the first Fil-Am and the Union. tion to the United States. legislature, despite Cayetano’s second Asian-American to be doubts about winning office elected as a Lt. Governor in 2000—Robert Bunda was Source: http://en.wikipedia. in a white– and Japanese- the United States. elected as Hawaii Senate presi- org/wiki/Filipino_American
July/August 2007 Immigration Law Today 15 The Centenial of the Great Migration Why Filipinos Call This Country Home
produces immigrants who are eligible under the and Mexico (see http://travel.state.gov/visa/frvi/ extraordinary and exceptional ability alien category bulletin). Because the number of qualified green (EB-1 and EB-2). One inspiring example is former card aspirants far exceeds the statutory visa nu- Maryland State Legislature Delegate David Valder- merical limits that are periodically set by the rama (D-District 26), who represented Prince U.S. government, Filipinos must stand in one of George’s County for more than 12 years. Valder- the longest queues to obtain LPR status. rama was the first Filipino to be elected to a state Compared to its counterparts in the visa wait- legislature in the mainland United States in 1990. ing list, the Philippines shows a greater presence According to Valderrama, he initially entered the in the United States when viewed in perspective United States on an A-visa as a household member of the country’s population size and geographical of his diplomat brother, Nick Valderrama. Because distance. The Philippines has the smallest home Valderrama was an attorney in the Philippines, the population size among the four countries at ap- U.S. Library of Congress hired him as a senior le- proximately 89 million compared to China’s 1.3 gal specialist, and he became an LPR through this billion, India’s 1.1 billion, and Mexico’s 107 million employment-based petition. Valderrama’s U.S.-born and educated (see www.cia.gov/library/publications/the-world-factbook/index. daughter, Delegate Kris Valderrama (D-District 26), continued this html). Hence, by ratio and proportion, the Philippine immigra- political legacy when she won the seat in 2006. tion impact on the United States far outweighs those of the largely Furthermore, American schools are hiring highly qualified populated China and India, and that of the geographically proxi- Filipino teachers and instructors. More states have been looking mate Mexico. Evident from history, this Philippine phenomenon to the Philippines to recruit and fill the need of their respective is a result of the country’s long-standing relations and support to schools—particularly North Carolina, Kansas, Maryland, and Vir- the United States in times of peace and war. ginia. These schools and other employers hire Filipino profession- als because they are fluent in English—an ability that is largely due Evading the Three– and Ten-Year Bars to continued U.S. presence in the Philippines and its educational Despite the Fil-Ams’ new place in mainstream America and their system’s insistence on a bilingual education of English and Tagalog. 101-year impact in U.S. history and economy, this community has Hence, Filipino immigrants still account for a large slice of the its share of undocumented and illegal aliens whose future remain in employment-based category pie. a quandary under the existing and upcoming laws. Undocumented Filipino aliens continue to live in limbo even though most of them The Visa Priority Wait hold employment, pay their taxes, send their children to school, After riding out the immigration fluctuations brought by and contribute to the American economy in a positive way. historical events, the Philippines stands out in the DOS Visa Unfortunately, the strong push to pass comprehensive immigra- Bulletin with oversubscribed visas along with China, India, tion reform laws (CIR) fell short, and proponents for this action tasted bitter defeat when the Senate was unable to garner enough votes for CIR. Although not completely dead, CIR might not be resurrected until after the 2008 presidential election, if ever. Hence, the present climate of immigration relief is nil under the existing Illegal Immigra- tion Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (Pub. L. No. 104-208, div. C, 110 Stat. 3009, 3009-546 to 3009-724). Specifically, IIRAIRA has created a segment of Filipinos in the United States caught in a catch-22. With the penalties of three– and ten-year bars to admissibility, Filipinos deserving of green cards based on approved family or employment-based petitions—but meanwhile are out of status—are trapped. Stuck in the DOS visa pipelines due to backlogs, they are unable to return home, since their departure trig- gers inadmissibility to the United States for three or ten years.
The Continuing Push for Immigration Reforms Fil-Ams are active participants in the congressional and public debates over immigration reforms. They witness a great divide in The Philippine-American Bar Association of Greater Washing- Congress and in their own communities. Like most Americans, ton, D.C., Inc. marched at an annual Philippine Independence Day parade in Washington, D.C. This nationwide event takes Fil-Ams are divided between the need to legalize the millions of place every June 12 and celebrates Philippine independence undocumented aliens on the one hand, and the preservation of from 300 years of Spanish colonial rule. border security on the other.
16 Immigration Law Today July/August 2007 A Century of Service To commemorate the centennial of the Filipino migration, the Smithsonian Institute in Washington, D.C., honored the event in 2006 with symposia, exhibits, and cultural events, to showcase the three waves of official Filipino immigration to the United States. Each presentation displayed a consistent theme throughout history: the tie that binds the Filipino people to the United States. From plantation and farm laborers and WWII soldiers, to today’s professionals and domestic help, Filipinos were brought to this country for one form of employment or another. Many Filipinos consider the United States as their promised land, and they come here in search of a better life and a better future for their family. While they share the dreams and aspirations of many immigrants coming from other countries, history reveals how a tiny island nation from far across the Pacific has preserved a unique relationship with this great nation, and has Filipino-American fondness for festivities has led to the estab- helped shaped its economy and public policy. ILT lishment of community-wide festivals celebrating the Filipino culture. The author, Miriam Bustamante Riedmiller, and her Miriam Bustamante Riedmiller is an immigration attorney in late husband, Michael Riedmiller, participated in the popular Washington, D.C., and was the 2002–03 president of the Philippine- Flores de Mayo parade—a Roman Catholic harvest feast in American Bar Association of Greater Washington, D.C., Inc. honor of the Blessed Virgin Mary. Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association. The Guest Worker Program or Its Equivalent While largely perceived as a Mexican cause, President George W. Bush’s proposal of a guest worker program hits home among Fil-Ams who occupy a significant place in today’s U.S. demographics. This proposal would allow the more than 12 million illegal immigrants to legally work in the country on a temporary basis and pay a heavy fine for a possible path toward naturalization or be forced to go back to their home country. (See www.whitehouse.gov/news/releases). In the spring of 2006, the Philippine Embassy in Washington, D.C., commemorated the centennial of the Filipino migration, and hosted a community discussion and informational campaign to discern the Fil-Am community’s position on CIR and the guest worker program. Surprisingly, the community united toward a goal in favor of Filipino immigration to the United States and took divergent positions on the guest worker program.
The Different Perspectives The Guest Worker Program is a “glass half full” solution to many Fil-Am community sectors, which prefer to have this or a similar legislation enacted in the absence of more favorable relief. On the other hand, sectors such as the Asian Pacific American Labor Al- liance (APALA) expresses protest against the program. APALA’s position is that “the program will create another tier of vulner- able workers who will be unable to neither unionize nor enjoy wage and benefits available to citizens and residents,” according to APALA Board Director Jon Melegrito. In between the two viewpoints are those with neutral views of the program, and those who see it as a source of unfairness for Filipino workers and relatives standing in line for decades for their green cards. They are apprehensive that newcomers under the program might “leap frog” over their beneficiaries abroad or in the United States who were waiting for LPR status.
July/August 2007 Immigration Law Today 17 wwww
Playing Big Brother
Watching Over the H-1B Employer
by Praveena Nallainathan, Karen C. Selking, Pamela P. Mick, and Steven H. Garfinkel
18 Immigration Law Today July/August 2007 wwww
mmigration practitioners and employers increasingly focus on—and at times obsess over—the H-1B cap and meeting the April filing deadline of H-1B petitions. However, the Playing tumultuous process does not end once U.S. Citizenship and Immigration Services (USCIS) approves an H-1B petition. Employers must continually monitor an approved H-1B petition since its validity will be affected if there is a change in the employment structure. Specifically, they should be mindful of corporate mergers and acquisitions, market needs altering job responsibilities, H-1B employees changing employers, or businesses firing workers, to name a Big Brother few. Hence, immigration practitioners should carefully utilize immigration and U.S. Department of Labor (DOL) statutes and regulations, as well as case law and advisory memoranda in advising employers whether they should file a new or amended H-1B petition, or terminate an existing petition in order to lawfully maintain their obligations as an H-1B employer.
Facing the Inevitable: Filing a New or Amended Petition restructuring—explicitly providing that employers do not In recent years, various advisory opinions and guidance memo- need to file new or amended petitions in instances of “merg- randa from legacy Immigration and Naturalization Service (INS) ers, acquisitions, or consolidations.” (Visa Waiver Permanent and USCIS have outlined what circumstances should be catego- Provision Act, Pub. L. No. 106-396 §401, 114 Stat. 1637 (2000), rized as “material change” in employment and when a foreign adding INA §214(c)(10)). national actually is considered to have a “new employer.”1 Ad- In the context of H-1B petitions, a U.S. employer is a “person, ditionally, pursuant to DOL regulations, certain changes in H-1B firm, corporation, contractor, or other association or organiza- employment often impose other requirements on the employer tion” that engages an individual to work in the United States, has in terms of an employer’s responsibility for labor condition ap- an “employer-employee relationship” by virtue of its authority to plications (LCAs) and public access files. However, immigration “hire, pay, fire, supervise, or otherwise control the work” of the regulations do not define “material change,” nor specify what cir- employee, and has an Internal Revenue Service (IRS) tax identifi- cumstances would trigger the filing of a new or amended peti- cation number. (See 8 CFR §214.2(h)(4)(ii)). tion. The regulatory language only signals that “material change” exists when changes substantially alter the terms or conditions Change in Place of Employment of the H-1B employee’s employment. According to legacy INS, Since H-1B approvals are location-specific, changes in worksite “[t]he amended petition procedure was not devised as an avenue locations can require employers to file new or amended H-1B peti- to advise the Service of minor, immaterial changes in the con- tions, file new LCAs, or re-post existing LCAs at new locations. If ditions of the alien’s employment.” (See INS Memorandum, T. the H-1B employment will take place outside the area of intended Aleinikoff, “Amended H-1B Petitions” (Aug. 22, 1996), reprinted employment listed on the original LCA and the employer has not in 73 Interpreter Releases 1231–32, App. III (Sept. 16, 1996)). An filed a new LCA before placing the H-1B employee at the new appropriate method to notify the immigration service of minor location, an amended petition is required as well as a new LCA. changes would be to request an extension of stay beyond the au- (See 20 CFR §655.735). However, according to DOL regulations thorized employment period for the H-1B employee. and a legacy INS memorandum, where the employer places any Central to understanding what constitutes “material change” H-1B employee at new worksites “which are within the area of often is an analysis of whether the H-1B employee has a “new” intended employment” listed on the LCA, the employer is required employer. The regulations are very clear that a new petition to post notices at such worksites on or before the foreign national must be filed when the H-1B employee is employed by a new begins work (see 20 CFR §655.734(a)(2)), but does not have to file employer. (See 8 CFR §214.2(h)(i)(2)(D)). However, decipher- an amended H-1B petition. (See Letter from Efren Hernandez III, ing who or what is a “new employer” often can be more dif- Director, Business and Trade Branch, USCIS, to Lynn Shotwell, ficult than it appears in today’s world of mergers, acquisitions, AILA InfoNet Doc. No. 03112118). Additionally, it is important takeovers, and company relocations. In fact, to address this is- to note that where an employer has failed to file a new LCA based sue, the Immigration and Nationality Act (INA) was amended on new location, the courts have found that the H-1B employee in 2000 to include special provisions with regard to corporate worked without proper authorization.2 ➝
July/August 2007 Immigration Law Today 19 Playing Big Brother Watching Over the H-1B Employer
☛ Practice Pointer: There must be a clear distinction Change of Employer between H-1B employees who change permanent worksite When the H-1B employee transfers from one U.S. employer to locations and “peripatetic” employees—whose normal du- another U.S. employer during the term of authorized employ- ties include frequent travel from one location to another. ment, the new employer should always file a new H-1B peti- Furthermore, H-1B employees whose duties require them to tion. (See 8 CFR §214.2(h)(2)(i)(D)). As described above, a new spend most of their work time at one location but occasion- employer will hold a different federal employer identification ally travel for short periods to work at other locations are not number and have the authority to otherwise “control” the H-1B changing to a new “worksite,” and do not require a new LCA employee’s work. In addition to filing a new petition, the new or amended H-1B petition. (See 20 CFR §655.715). employer must obtain a new LCA reflecting the new wage, period of employment, and occupation pursuant to DOL regulations for DOL regulations provide helpful examples of what constitutes a LCA filings. (See 20 CFR §655.730). “worksite” when there are changes in employment location. For instance, when a computer engineer is sent to customer loca- When to File New or Amended Petitions tions to troubleshoot complaints, this may be considered a “non- Although the regulations do not provide guidance on timelines worksite” location, whereas when a computer engineer works on for filing amendments, it is recommended that an amended projects or accounts at different locations for weeks or months at petition be filed—if possible—before the material change a time, that may be considered a “worksite” location. in employment occurs. The timing issue for new petitions is quite clear: when an H-1B employee changes employers, Changes in Job Duties the new employer must file a new H-1B petition and LCA The employer is required to file a new or amended H-1B petition before the H-1B employee joins the new employer. (See 8 CFR when the employee’s duties change from one specialty occupation §214.2(h)(2)(i)(D)). to another specialty occupation. (See Aleinikoff memo). For ex- ample, when a foreign national attorney has an approved H-1B peti- When a New or Amended Petition Is Unnecessary tion to teach or research at a university, a new or amended petition In a number of instances, a new or amended H-1B petition is not must be filed when he or she takes on a position at the university required when there is some change in employment conditions, that primarily involves giving legal counsel. Determining whether such as the examples that are described below. there is a “material change” requires a case-by-case analysis on the changes in actual job functions rather than the mere change in job Change in the Name of the Employer title. It often is helpful to evaluate whether the change in job duties When the employer changes its name, an amended petition is places the position in a different prevailing wage category. not required, presuming that the initial terms and conditions of the H-1B employee’s employment have not changed. Rather, the Changes in Hours of Employment employer should inform USCIS of the name change at the time Changes in hours or schedules do not require any action on the of filing an H-1B petition for an extension of stay. (See Letter part of the employer unless hours fall below full-time (gener- from Efren Hernandez III, Director, Business and Trade Services ally defined as at least 35 hours per week). If the H-1B petition Branch, INS Office of Adjudications, to Steven M. Ladik, AILA was initially filed for full-time employment, and the employ- InfoNet Doc. No. 01032901). ment changes to part-time, an amended H-1B petition must be filed, since this change would be considered “material.” (See 20 Corporate Restructuring and “Successor in Interest” CFR §655.736(a)(2)(iii)(A)). Employers also will have to care- An employer does not need to file a new or amended H-1B visa fully consider the impact of the number of hours per week of petition in the event of a corporate restructuring, “including but work that are stated on the H-1B petition, because they may not not limited to a merger, acquisition, or consolidation, where a “bench” a full-time or part-time H-1B employee due to lack of new corporate entity succeeds to the interests and obligations of work. “Benching” is the term used for temporarily laying off an the original petitioning employer and where the terms and condi- employee or putting the employee in nonproductive status with- tions of employment remain the same but for the identity of the out pay or with reduced pay during periods of no work. Bench- petitioner.” (See Visa Waiver Permanent Provision Act, Pub. L. No. ing is considered to be an employer’s failure to pay the H-1B 106–396, §401 (2000)). employee his or her full rate of pay based on the employer’s In order for corporate restructuring to be eligible for “successor lack of work, periods between contracts, or after a downturn in interest” treatment so that no new H-1B petition need be filed, in business. In these situations, USCIS requires the employer the new corporate entity must take on the “interests and obliga- to pay the H-1B worker his or her full rate of pay as stated on tions” of the initial employer, and the “terms and conditions of the H-1B visa petition. (See INA §212(n)(2)(C)(vii)(I)–(V)). employment” must remain unchanged. According to a legacy INS The reverse would also be true when going from part–to opinion letter, “the assumption of liabilities refers to immigration- full-time employment. related liabilities, such as LCA obligations and violations thereof.
20 Immigration Law Today July/August 2007 The timing issue for new petitions is quite clear: when an H-1B employee changes employers, the new employer must file a new H-1B petition and LCA before the H-1B employee joins the new employer.
It does not refer to non-immigration related obligations and li- Change in Wages abilities, such as environmental or tort obligations [...] [M]erger, USCIS has stated that where there is a company-wide salary acquisition, or consolidation does not automatically create mate- change, but the employer continues to pay the required wage, a rial changes to the terms and conditions of the employment....” new or amended H-1B petition does not need to be filed if the (See Letter to Steven M. Ladik). required wage is higher than the actual or prevailing wage. (See While no new or amended H-1B petitions are required when a 20 CFR §655.715). However, the employer will need to update the new corporate entity succeeds in interest, the new employer must public access file. (See AILA, “Service Center Operations Telecon- formally accept the acquired company’s immigration-related ob- ference of July 24, 2003,” AILA InfoNet Doc. No. 03080713). ligations and liabilities. (See 20 CFR §655.730(e)). DOL regulations require that the new employer update the Terminated Employees and the Employer’s Obligations relevant public access files prior to the corporate change. (See 20 Just as an employer must notify USCIS of material changes in CFR §655.730(e)(iv)). Specifically, the new employer must meet employment for its H-1B employee by filing an amended H-1B the following requirements: petition, an employer similarly must inform USCIS in writing that an H-1B employee no longer works for it through a letter explain- 1. The new employer must maintain in its records a list ing the change, so that USCIS has an opportunity to revoke the of the H-1B nonimmigrants transferred to the new em- underlying H-1B petition. (See 8 CFR §214.2(h)(11)(iii)(A)(1)). ployer; and Notifying USCIS of this change is fundamental to ending an H-1B 2. a document must be maintained in the employees’ public employer’s obligations, pursuant to the LCA and immigration and access files containing: DOL regulations. Specifically, notification is critical to ending an • Each affected LCA number and its date of certification; employer’s duty to pay the employee his or her wages as provided • A description of the new employer’s actual wage system ap- in the LCA. plicable to the H-1B nonimmigrant; In September 2006, the DOL Administrative Review Board • The new employer’s identification number; and (ARB) underscored the importance of notifying USCIS of an • A sworn statement executed by an authorized official from H-1B employee’s termination in Amtel Group of Florida v. Yong- the new employer acknowledging the assumption of obliga- mahapakorn, ARB Case No. 04-087, ALJ Case No. 2004-LCA-006 tions, liabilities, and undertakings contained in a certified (Sept. 29, 2006). Where there previously was some flexibility on and valid LCA, including statements that the employer will: what constituted “bona fide termination” of an H-1B employee, (i) abide by DOL’s H-1B regulations applicable to the LCAs; the ARB in Amtel created a bright-line rule by holding that an (ii) maintain a copy of the statement in the public access file; H-1B employer did not effectuate a bona fide termination unless and (iii) make the document available to any member of the it provided formal notice to USCIS and provided payment for public or DOL upon request. the terminated employee’s return transportation to his or her last country of residence. (See D. Horne, “Requests for Evidence: Is If the employer does not update its public access file with Termination the End of it All?” 11 Bender’s Immigr. Bull. (Dec. the sworn statement before the corporate change, the successor 15, 2006)). entity should file amended petitions as soon as possible. If not, the new employer potentially can be held responsible for not Bona Fide Termination filing new LCAs and H-1B petitions because it did not follow An employer can be found to have violated the INA for em- DOL’s timing requirements. ployment-related reasons when it fails to pay full-time wages of an H-1B employee in “non-productive status” based on lack of ☛ Practice Pointer: A petitioning employer must work or on the nonimmigrant’s lack of a permit or license. (See immediately notify USCIS of any changes in the beneficiary’s INA §212(n)(2)(C)(vii)(I)). However, DOL regulations relieve employment terms and conditions that may affect the H-1B sta- the H-1B employer of this obligation where the employer effec- tus. (See 8 CFR §214.2(h)(11)(i)(A)). Thus, some practitioners tuates a “bona fide termination” of employment. (See 20 CFR advise that while the new employer resulting from a corporate §655.731(c)(7)(ii)). The “bona fide termination” occurs when merger, acquisition, or consolidation is not required to file a new the H-1B employer notifies USCIS of the termination, when the or amended H-1B petition, the new employer at least should no- H-1B petition has been canceled, and when the employer pro- tify USCIS of its successor-in-interest status with respect to each vides the terminated H-1B employee payment for return trans- transferred H-1B employee. If there is doubt as to whether to portation back to his or her home country as required by the file an amended petition in a particular corporate restructuring relevant immigration H-1B regulations. (See 65 Fed. Reg. 80171 situation, an employer then can file an amended petition. (Dec. 20, 2000) (interim final rule)). ➝
July/August 2007 Immigration Law Today 21 Playing Big Brother Watching Over the H-1B Employer
The Amtel decision serves as an important reminder to H-1B employers of their serious obligation to pay the required wages to their H-1B employees, and that this obligation does not cease until there is a bona fide termination of the H-1B employment.
Notification to USCIS his or her position, it is best practice for employers to promptly The H-1B regulations require an employer to “immediately” no- notify USCIS in writing of the termination of employment. tify USCIS of any changes in the terms and conditions of H-1B The notice does not need to revoke the underlying H-1B peti- employment that may affect an employee’s eligibility for H-1B sta- tion, but simply inform USCIS of the date of termination or tus. (See 8 CFR §214.2(h)(11)). This notice triggers USCIS’s ability the employee’s last day of employment. to revoke the H-1B petition, thereby invalidating the employee’s H-1B status. As noted above, the employer must satisfy this regu- n Pay for Return Transportation: When an employee is termi- latory requirement regarding notification of termination for the nated prior to the expiration of his or her H-1B status, the DOL to consider it a bona fide termination. The ARB has further employer is responsible for paying for the employee’s trans- clarified that the bona fide termination of employment can occur portation back to his or her last country of residence. While on the date that the employer notifies USCIS of the employment an employer cannot force an individual to leave the United termination, not the date USCIS actually revokes the employee’s States, employers are advised to maintain documentation es- H-1B visa. (See Neeraja Rajan v. International Business Solutions, tablishing that they offered to pay the H-1B nonimmigrant for Ltd., ARB No. 03-104 (Aug. 31, 2004)). his or her return transportation costs and that the employee acknowledged such an offer. (See Y. Robertson, “Avoiding the Payment for Return Transportation Abyss: H-1B Strategies When Facing Reductions in Force,” 6 If an employer terminates H-1B employment before the end of the Bender’s Immigr. Bull. (Dec. 15, 2001)). H-1B employee’s period of authorized stay, the employer is liable to the employee for “reasonable costs” of return transportation n Avoid Willful Violations: Amtel also raises the consideration of to his or her last country of residence. (See 8 CFR §214.2(h)(4) whether an H-1B employer can be found liable for civil penal- (iii)(E)). The employer is not expressly obligated by the statute ties for willful violations of the H-1B requirements. A “willful” to actually pay for the employee’s travel home, but the H-1B em- violation is a knowing failure to comply or a reckless disregard ployer must offer to pay for such transportation costs. While the of whether the conduct complied with 20 CFR §§655.731 or statute does not define the scope of “reasonable costs of return 655.732. An employer’s failure to notify USCIS or pay for an transportation,” legacy INS advisory letters suggest that an em- employee’s return transportation home may in some instances ployer’s liability does not extend to the cost of relocating family be regarded as a willful violation, thus exposing employers to members or property. Although it is clear that there is no penalty not only back wages, but civil penalties. provision in the immigration regulations for employers violating this statutory requirement—and also unlikely that USCIS would n Consider Maintenance-of-Status Issues: Amtel’s emphasis on no- deny an employer’s subsequent H-1B petitions because of such a tifying USCIS about the termination of an H-1B employment violation—payment for return transportation home is essential to relationship raises critical maintenance-of-status issues for the show a bona fide termination of employment, according to DOL. H-1B employee. An employee’s H-1B status immediately ends (See S. Mailman and S. Yale-Loehr, “When H-1B Workers Lose upon termination of his or her H-1B employment. (See Matter Their Jobs,” 6 Bender’s Immigr. Bull. (Sept. 1, 2001)). of Lee, 11 I & N Dec. 601 (Comm. 1966)). The H-1B employee will no longer be in lawful status and may become removable How Employers Can Avoid Back Wages and Penalties unless he or she leaves the United States, changes status, or The Amtel decision serves as an important reminder to H-1B em- has his or her H-1B status restored. In order to avoid remov- ployers of their serious obligation to pay the required wages to their ability, an individual whose H-1B employment is terminated H-1B employees, and that this obligation does not cease until there must either have a new petition to extend or renew his or her is a bona fide termination of the H-1B employment. Amtel points H-1B status filed by a new employer, file for change of status to to several important lessons for avoiding liability for back wages another nonimmigrant status for which he or she is eligible, or and other penalties, while raising other key considerations: arrange to leave the United States.
n Notify USCIS of Termination: When an employer terminates an n DOL vs. USCIS Interpretation: Amtel reflects a fundamen- H-1B employee or when an H-1B employee voluntarily leaves tal difference on how DOL and USCIS view H-1B ➝
22 Immigration Law Today July/August 2007
Playing Big Brother Watching Over the H-1B Employer
petitions. In Amtel, while there is no factual dispute that violating immigration and DOL regulations, it is critical that the H-1B employee was terminated, the ARB creates a legal immigration practitioners maintain a keen watch on employ- fiction of what constitutes bona fide termination. Basing its ment changes to ensure that an H-1B employer meets its lawful decision on a technicality—Amtel’s failure to notify USCIS obligations and to protect it from liability. ILT of the H-1B termination—the ARB essentially interprets the H-1B petition as an element of an individual’s employment. Praveena Nallainathan is as an associate in Proskauer Rose LLP’s In contrast, USCIS has historically viewed an H-1B petition Labor and Employment department, specializing in business as separate and apart from the individual and as a tool to immigration law. Karen C. Selking is an associate in Zulkie Partners LLC in Chicago, where Pamela P. Mick became a principal in facilitate employment. 2005. Steven H. Garfinkel is a principal in Garfinkel Immigration Law Firm in Charlotte. Protecting Employers from Liability During the course of employment, it is inevitable that some as- Articles in ILT do not necessarily reflect the views of the American Immigration pect of an H-1B employee’s employment or duties will change. Lawyers Association. When the change is “material,” employers are obligated to take Notes responsive action: filing a new or amended petition, filing a new LCA, notifying USCIS of an H-1B employment termina- 1 For an overview of the various authorities relevant to the “material change” analysis, see L. Grossman & S. Cohen, “The Effect of Changed Circumstances tion, and/or paying for an employee’s return transportation on H-1B Nonimmigrant Workers,” 2 Immigration & Nationality Law Handbook home abroad. Unfortunately, the immigration and DOL regu- 186 (AILA 1997–98 Ed.). lations and multiple advisory opinions on this subject make 2 CDI Information Services, Inc. v. Reno, 101 F. Supp. 2d 546, 549 (E.D. Mich. 2000). The court found that the beneficiary “failed to maintain his status previ- deciphering the definition of “material” and what action to take ously accorded because he engaged in unauthorized employment in a state other particularly difficult. To avoid the potential consequences of than … the one stated on the LCA.”
24 Immigration Law Today July/August 2007 Morningside Evaluations pu page 25 Practice Makes Perfect
The H-3 and J-1 Training Categories
by Marcia N. Needleman, Alexis S. Axelrad, and Eric Bland
he J-1 exchange visitor visa and H-3 classification for trainees enable foreign students and professionals to achieve their aspirations of being the best in their line of work by allowing these stu- dents to seek training opportunities in the United States. However, while both categories lead appli- cants to the same end—that of obtaining a higher degree of training—the means to get there are laid out differently, depending on which visa a trainee hopeful can obtain. Thus, before appli- cants can train to perfect their skills, they first must decide which program is available and most advantageous to them in the long run.
26 Immigration Law Today July/August 2007 Training Opportunities for H-3 Trainees H-3 regulations provide for “instruction in any field of endeav- or, such as agriculture, commerce, communications, finance, government, transportation or the professions as well as train- ing in a purely industrial establishment.” (See 8 CFR §214.2(h) (7)(i)). However, physicians seeking graduate medical training or education are excluded from this category, with the exception of seeking an externship during a medical school vacation at a program approved by the American Hospital Association or the American Osteopathic Association. (See 8 CFR §214.2(h)(7)(i) (A)). Meanwhile, nurses coming for brief training not available in their home country and benefiting an overseas employer are eligible. (See 8 CFR §214.2(h)(7)(i)(B)).
H-3 Visa Requirements U.S. Citizenship and Immigration Services (USCIS) regula- tions outline four conditions and eight supplemental restric- tions for H-3 cases (see 8 CFR §214.2(h)(7)(ii)(A)). The four conditions are:
n The proposed training is not available in the alien’s own coun- try; n The beneficiary will not be placed in a position that is in the normal operation of the business and in which citizens and resident workers are regularly employed; n The beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training; and n The training will benefit the beneficiary in pursuing a ca- reer outside the United States.
As for the training program restrictions (see 8 CFR §214.2(h) (7)(iii)), one may not be approved if the problem:
n Deals in generalities with no fixed schedule, objectives, or means of evaluation; n Is incompatible with the nature of the petitioner’s business or enterprise; n Is on behalf of a beneficiary who already possesses substan- tial training and expertise in the proposed field of training; n Is in a field in which it is unlikely that the knowledge or skill will be used outside the United States; n Will result in productive employment beyond that which is incidental and necessary to the training; n Is designed to recruit and train aliens for the ultimate staffing of domestic operations in the United States; n Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified; or n Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student.
Procedure for Acquiring H-3 Status Like other “H” classifications, an H-3 applicant must file an I-129 petition and supporting documentation with the appropriate USCIS regional service center. ➝
July/August 2007 Immigration Law Today 27 Practice Makes Perfect The H-3 and J-1 Training Categories
(See 8 CFR §214.2(h)(2)(ii)). In addition to addressing the condi- H-3 visa category. (See 8 CFR §214.2(h)(9)(iii)(C)(1)). The request tions and restrictions noted above, a successful petition must: for a change of status to H-1B should be made prior to the last six months of the full two-year program, if applicable. In addition, ex- n Describe the type of training and supervision to be given and the perience gained during the H-3 training cannot be used to qualify structure of the training program; for H-1B status. Specifically, if the beneficiary is attempting to use n Set forth the proportion of time that will be devoted to produc- a combination of work experience and education, or work experi- tive employment; ence alone to show the equivalent of a U.S. bachelor’s degree, the n Show the number of hours that will be spent, respectively, in period of H-3 training cannot be used to meet the equivalency de- classroom instruction and in on-the-job training; termination. If the H-3 applicant has used the full two-year stay in n Describe the career abroad for which the training will prepare H-3 status, he or she must reside and be physically present outside the alien; the United States for six months prior to applying for H-1B status. n Indicate the reasons why such training cannot be obtained in the (See 8 CFR §214.2(h)(13)(v)). alien’s country and why it is necessary for the alien to be trained in the United States; and Training Opportunities for J-1 Trainees n Indicate the source of any remuneration received by the trainee The newly established 22 CFR §62 (2007) took effect July 19, 2007, and any benefit that will accrue to the petitioner for providing and contains interim final rules that split the existing J Trainee the training. category into Trainees and Interns. This new regulation replaces the provision for specialty and non-specialty programs and establishes H-3 Admittance and Limitations new eligibility criteria for both trainees and the companies that train H-3 applicants can be admitted for a maximum of two years. (See 8 them. It also changes the maximum length of stay in some cases, CFR §214.2(h)(9)(iii)(C)(1)). An H-3 nonimmigrant may change and requires a placement plan to be signed by the trainee, training his or her status to H-1B during the course of the training program, supervisor, and visa sponsor on government Form DS-7002. How- but is prohibited from doing so if he or she has been in H-3 status ever, participants with DS-2019 forms that were issued on or before for the maximum two-year period of admission allowed under the July 18, 2007, will be governed by the old regulations.
28 Immigration Law Today July/August 2007 Minimal Educational Requirements Interns Under the New Rule: Interns are individuals who either are ☛ Practice Pointer: Under the new J-1 regulation, currently enrolled in and pursuing academic studies abroad, or who all training or placement plans must be detailed on Form DS- have graduated from an overseas institution no more than 12 months 7002 and tailored to the individual skills and experience of the prior to the start date of his or her exchange visitor program. trainee or intern. The trainee or intern, host organization super- visor, and responsible officer of the visa sponsor must sign the Trainees Under the New Rule: Trainees are individuals who ei- DS-700 prior to the issuing of the Form DS-2019. Providing false ther have a degree or professional certificate from a post-secondary information on this form can have serious legal ramifications. academic institution abroad and at least one year of related work experience acquired outside the United States, or have five years of A J-1 program will provide a J-1 trainee applicant with a Form related work experience acquired outside the United States. DS-2019 that will accompany a nonimmigrant visa application submitted to a U.S. consulate with additional supporting docu- Foreign Nationals with U.S. Degrees: Furthermore, foreign na- mentation. An individual may request a change of status to J-1 tionals with degrees from the United States will not qualify for the while in the United States, if otherwise eligible to change status internship category of the J-1 visa. However, they will qualify for under the statutes and regulations, but may find resistance from the training category if they have five years of related work experi- some J-1 sponsoring organizations that prefer applicants to apply ence acquired overseas. directly with U.S. consulates and embassies abroad.
Applying for J-1 Trainee Status ☛ Practice Pointer: J-1 sponsors are now required to J-1 applicants must apply through the sponsorship of J-1 training interview every applicant either in-person or by video confer- programs. A list of available J-1 training programs can be found ence or web camera—although officials at the Office of Educa- online at http://exchanges state.gov/jexchanges/. The entity where tion and Cultural Affairs (ECA), which oversees the J programs, a J-1 applicant will be placed will typically file an application with have verbally agreed to specify in the final rule that telephone in- a J-1 training program on behalf of the J-1 trainee. terviews are permissible means of screening applicants. ➝
July/August 2007 Immigration Law Today 29 Practice Makes Perfect The H-3 and J-1 Training Categories
STILL THE ONE Participants can apply for additional intern or training pro- AUTHORITATIVE grams after completing their original program. However, they must have spent at least two years outside of the United States be- REFERENCE tween programs and otherwise meet all eligibility requirements. GOVERNMENT OFFICIALS Length of Programs An intern program has a maximum length of 12 months. A trainee RELY ON program has a maximum length of 18 months. While training for Hospitality and Tourism is now limited to 12 months, higher-level Kurzban’s Immigration Law Sourcebook is management training for this category still may last 18 months STILL THE ONE book government officials turn (even at a hospitality facility). Furthermore, if an agricultural pro- gram does not contain at least six months of classroom study, then to when they need an easy-to-reference and it is limited to 12 months. comprehensive immigration law resource. Occupations Excluded from J Programs Kurzban’s Sourcebook intelligently condenses Trainee or interns may not be placed in unskilled or casual la- the laws governing immigration into bor positions, positions involving more than 20 percent clerical concise references that make research less work, positions requiring trainees to provide therapy, medication, or other clinical or medical care (e.g., sports or physical therapy, exasperating and time-consuming. psychological counseling, nursing, dentistry, veterinary medicine, social work, speech therapy, or early childhood education). Not convinced you need the current edition of Kurzban’s Immigration Law Sourcebook? Requirements for the Sponsor Do you wantH governmentouse officials to have a According to the U.S. Department of State (DOS), sponsors ➝ better and more up-to-date reference on the law thanK you?urzban
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30 Immigration Law Today July/August 2007 Two-Year Foreign Residence Requirement for Some J-1 Visa Holders J-1 trainees trigger the two-year foreign residence “No Objection” Waiver than the burden of proof required in a standard requirement under the following conditions: There are five instances in which a waiver is political asylum application. available for the foreign residency requirement. n The J-1 program was financed in whole or Attorney General Waiver (See 8 CFR §212.7(c); 22 CFR §41.63(a)(2)– in part, directly or indirectly, by an agency The attorney general may waive the requirement (g)). A waiver is available if the J-1 visa holder of the U.S. government or the applicant’s of two-year foreign residence abroad in the case can obtain a “no objection” letter from his or home country; of a recommendation by an interested U.S. gov- her country of origin, indicating that the country n The applicant received training in a field ernment agency. does not object to the fact that the individual which appears on DOS’s skills list; will not return to fulfill the foreign residency Waiver by Public Health n J-1 applicant participated in graduate medi- requirement. In general, no objection-based cal education or training; and Department Request waivers are most effective where the foreign Finally, a foreign medical graduate—upon a re- n Bilateral agreements that would apply residency requirement is imposed due to being quest made by a state’s public health department to all J-1 participants from certain coun- on the skills list. or its equivalent—may also obtain a waiver. tries (e.g., China) Exceptional Hardship Waiver The policy underlying the development and While “no objection” waivers often are freely A waiver also may be obtained if the J-1 visa hold- use of the skills list is to help ensure that the in- granted, hardship waivers are quite difficult to er’s departure from the United States would im- dividual’s home country or country of last resi- obtain since hardship shown usually must be pose exceptional hardship on the J-1 visa holder’s dence will benefit from the individual’s acquisition quite severe. Furthermore, even where hardship spouse or child (if such spouse or child is a U.S. of skills that may be lacking in those countries. is found, the waiver may be denied for “program citizen or resident). When subject to the foreign residence require- and policy” reasons. Similarly, where government ment, the individual must return to his or her Claim of Persecution Waiver funding or grants are involved in the program— country of origin for a period of two years before Another basis for a waiver is if the individual can such as a Fulbright Scholarship or funding from that individual is permitted to return to the United substantiate a claim that he or she will be per- the National Endowment for the Arts—the views States as a permanent resident or under many secuted on account of race, religion, or political of the funding agency generally will be consid- of the nonimmigrant categories. DOS is currently opinion, if the individual returns to the country of ered, and usually followed, in granting or denying renegotiating the skills list, because the list has nationality or last residence. The burden of proof a “no objection,” hardship, or interested govern- not been updated since 1997. that must be met in this type of claim is higher ment agency waiver.
July/August 2007 Immigration Law Today 31 Practice Makes Perfect The H-3 and J-1 Training Categories
are directly responsible for all aspects of their program, including Not all sponsors will be designated in both Trainee and Intern the selection, orientation, training, supervision, and evaluation of categories. They will be grandfathered into one category or the oth- the trainee. Sponsors must ensure that: er, and will have to apply for designation in the second category. n Individuals and/or entities providing the training possess and main- tain the demonstrable competence to provide the offered training; Host Organization Qualifications n Sufficient plant, equipment, and trained personnel are available A host organization conducts training or internship programs on to provide the training specified; behalf of ECA-designated program sponsors, such as the American n Prior to the start of the training program a detailed training plan Immigration Law Foundation (AILF). A host organization must that responds to defined objectives for each trainee or group of sign a written agreement with the program sponsor. similarly-situated trainees is developed; Host organizations that have not successfully participated in n Skills, knowledge, and competence are imparted to the trainee the J visa sponsor’s training or internship programs must be vis- through a structured program of activities which are supportive ited by a visa sponsor representative prior to a DS-2019 approval. and appropriate to the training experience; and Companies with 25 or more employees or with at least $3 million n Continuous supervision and periodic evaluation is provided for in annual revenue are exempt from this mandatory visit. each trainee. (See generally 22 CFR §62.22(d)). The host organization must cover the intern or trainee un- Sponsors also must provide: der workers’ compensation insurance. Furthermore, it must be n A written statement which clearly states the stipend, if any, to be able to provide a Dun & Bradstreet identification number and an paid to the trainee; employer identification number. Host companies must agree to n The costs and fees for which the trainee will be obligated; An contact the visa sponsor immediately in the event of an emergency estimate of living expenses during the duration of the trainee’s involving trainees or interns. stay; and n A summary of the training program which recites the training H-3 vs. J-1 objectives and all significant components of the program. (See J-1 training requirements generally are easier to meet than H-3 re- generally 22 CFR §62.22(l)). quirements. Furthermore, J-1 trainees can apply for a visa without initial USCIS approval. This means that the cost may be less than the H-3 and the timing may be much faster. On the other hand, certain J-1 trainees are subject to a two- year home residency requirement that requires trainees to return to their home country before they can acquire H or L visa status or permanent residency. (See INA §§212(e), 214(l), and 248; 22 CFR §41.63). The H-3 category does not have such a require- ment, and there are no specific rules excluding any particular occupations—unlike the J-1 training category, which has numer- ous occupational exclusions. H-3 and J-1 trainee visas can be valuable tools in meeting the goals of U.S. employers and foreign nationals seeking training in the United States. The circumstances of each case must be evalu- ated to determine which would be more appropriate and advanta- geous to the particular case, taking into consideration many of the factors discussed above. ILT Editor’s Note: The AILF Exchange Visitor Program has up- dated information on the latest J-1 visa regulatory changes. For more on this and other AILF Exchange Training Program resources, visit www.ailf.org/exchange.
Marcia N. Needleman is a partner in the firm of Levitt & Needleman P.C. in New York, a member of the American Immigration Lawyers Association (AILA) Board of Governors, and AILF Board of Trustees. Alexis S. Axelrad is a partner at Barst & Mukamal LLP in New York and member of the AILA National USCIS Benefits Committee. Eric Bland is a partner in the firm of Siskind Susser Bland, P.C. in New York. The authors would like to acknowledge Lois Magee, AILF Exchange Visitor Program Director, for her input regarding the new J-1 visa regulations. Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association.
32 Immigration Law Today July/August 2007 American Eval and Trans Service pu page 33 e h
ASK t Expert with Steve Clark Practice Tips for the Busy Immigration Lawyer
ONG-TIME IMMIGRATION LAW ATTORNEY Steve Clark offers practice tips to the busy immigration lawyer and answers to commonly asked questions. This issue’s Q&A focuses on coping with some familiar potholes in the em- L ployment-based immigration highway—the H-1B gap and visa retrogression for employment-based applications.
The American Competitiveness in the Twenty First Century Act filed on the first two days. Applications received after April 2, 2007, of 2001 (AC21) (Pub. L. No. 106-313, §§101–16, 114 Stat. 1251, were to be returned to petitioners and attorneys with a notice that 1251–62) increased the annual H-1B visa limit to 195,000 for fiscal no further filings could be made until April 1, 2008. USCIS was years (FY) 2001–03. This allocation reverted to 65,000 per year no happier than practitioners and employers as the massive filing in FY 2004. During the recession years, the allocations were not took several weeks to process. The lottery had to be run before exceeded, but in FY 2006, the cap was hit on August 10, 2005— any adjudication of petitions began, so the normal time require- roughly four months after the filing period began on April 1, 2005. ments for premium processing could not be met. USCIS accepted Practitioners were caught off guard last year when the cap was hit the premium processing fees despite processing delays because the on May 26, 2006—less than two months after the filing period applications were deemed not filed until the cases were selected began. With 4.4 percent unemployment in today’s market, there in the lottery process. However, USCIS missed out on millions in was apprehension that the numbers could be used up quickly this potential filing and premium processing fees that would have been year, and anxiety peaked when U.S. Citizenship and Immigration available if the cap had not artificially and arbitrarily limited the Services (USCIS) announced only days before the filing season number of cases. began on April 1, 2007, that it would have to conduct a lottery if The reliable H-1B work-horse visa became a lottery. Employ- the cap was reached on the first day. The cap, in fact, was reached ers—in some cases—had been counting on bringing these specialty within hours. Under the regulations (8 CFR §214.2(h)(8)(ii)(B)), workers in since May 2006 when the cap for FY 2007 was hit. Stu- USCIS shall conduct a lottery of the estimated 133,000 applications dents who came to the United States for their education—with the expectation of employment in the United States upon graduation— were, in effect, given a deportation order as a graduation present. Thanks to the H-1B Visa Reform Act of 2004, an additional 20,000 About Steve Clark AILA past President Steve H-1B numbers were set aside for those who had earned an ad- Clark (1999–2000), of Flynn vanced degree in the United States. The limit on those numbers & Clark, P.C., has practiced lasted for almost nine months in FY 2006 (capped on January 17, business immigration in 2005), almost four months in FY 2007 (capped on July 26, 2006) Cambridge, MA, for more and only one month this year (capped on April 30, 2007). than 30 years. As a long-time The sad news does not end there, however, because the H-2B AILA member, Clark authored cap also was hit for the second half of FY 2008 on March 16, 2007. a monthly practice advisory Department of Labor processing delays meant that employers in on employment-based issues, many states had not received their first H-2B labor certifications which appeared in the AILA Monthly Mailing (a for the filing period before the H-2B cap had hit. Employers who predecessor of Immigration Law Today) from 1989 to filed on the first day of the filing period, December 1, 2006, were 1996. In addition, he has served as senior editor of AILA’s annual conference handbook, the Immigration still waiting for their labor certifications on April l, 2007, when and Nationality Law Handbook, and editor-in-chief of their summer season opened. Given the processing time required AILA’s monograph, Representing Professionals Before at USCIS and consular posts, this means a late start for the season the Department of Labor. He also is a contributor in many resort areas, even for the returning workers who are cap- to AILA’s David Stanton Manual on Labor Certifica- exempt—a potentially crippling blow for employers already reeling tion (Third ed. (2005)). Clark currently updates the from the early onset of the cap. chapter on labor certifications in the Matthew Bender treatise, Immigration Law and Procedure. He is a What are the options for H employers? graduate of Yale College and Harvard University Law H-2B employers still can petition for returning workers who have School, and he is listed in Who’s Who Legal, Best worked for them or other H-2B employers during the past three Lawyers in America, and Super Lawyers. FYs (October 1, 2004–September 30, 2007). They also may use re- turning workers to fill an approved position if the petition was for
34 Immigration Law Today July/August 2007 unnamed workers. Apart from this, they can only seek legislative filed, and might encounter difficulties even if only an I-140 has relief. H-1B employers should determine whether any opportunity been filed. The Foreign Affairs Manual does, however, provide that to claim exemption from the cap was overlooked. Was the worker E-3s are subject to the same relaxed nonimmigrant intent standard the beneficiary of an H-1B petition within the past six years? Is the as E-1/E-2 treaty visa holders, and should not be refused a visa on petitioner a nonprofit research organization or located at, related to, the basis of a mere I-140. (See 9 FAM §41.51, Note 16.6). or affiliated with an institution of higher education?1 If the cap ap- plies, there are some very limited options depending on occupation, What are the options based on occupation? nationality, and whether the position involves training. Perhaps a Options include the O (performers, scholars, etc.), the P (entertain- few will qualify for Q visas (performing a cultural exchange func- ers and athletes), the Q (cultural exchange), and the R (religious tion incident to their work) or L-1 status (if they have worked, or workers). While these are very restrictive, they work well in the can work for the company abroad in a managerial or specialized correct situation. knowledge capacity for 12 months). H-1B work candidates who do not qualify for the meager array of work visas may consider return- What are the elements ing to school, changing status to visitor, or returning home. of a successful O-1 case? In essence, the country has shut its doors to foreign talent to The O-1 is not limited to scholars, artists, or performers, but they meet its specialized labor needs. Employers cannot rely on a lottery do remain the most likely users. The O requires a high level of ac- to hire new workers. Nor can they afford to wait five years or more complishment and recognition, but there is room for those whose for skilled and professional workers filing for permanent residence. level of acclaim is less than stellar. This is particularly true in the Economic growth is the victim of fear and anger. The global labor arts, which only require “distinction,” whereas the sciences, educa- market will simply have to migrate elsewhere, and American jobs tion, business, or athletics require the “very top of the field.” will follow them unless there is a realization that visa caps only stop economic growth. What are the options for P athletes and entertainers? What are some visa options The P-1 is available for athletes or teams at an international level of limited to specific nationalities? performance and for entertainers that are part of an entertainment The E-3: The E-3 is available for Australians who otherwise meet group that has been recognized internationally as being outstand- the H-1B definition of “specialty occupation.” A labor condition ing in the discipline and have had a relationship with the group application is required, but no petition is required when the ap- for at least one year. The one-year prior relationship requirement plication is filed at a consular office. E-3s are subject to a gener- may be waived for up to 25 percent of the performers in a group. ous cap of 10,500. Entertainers may not perform individually as P-1s; they must ob- tain an O-1 for individual performance. P-3 status is available for The TN: Canadians are visa-exempt and qualify for TN status. Mex- artists or entertainers who enter to perform, teach, or coach in a icans also qualify for TNs, but they must apply for a visa. In both culturally unique program. P status also may be available for es- cases, only scheduled occupations qualify. See 8 CFR §214.6(c) for sential support personnel of the P athlete or entertainer. the list of occupations with education and experience requirements. This list is heavily weighted toward technical, academic, and sci- Is a Q visa realistic? entific occupations while remarkably deficient in business occupa- The Q requires activity interacting with the public and display- tions. Although one may not qualify for a TN through equivalence ing a cultural aspect of the person’s home country, which must be to a degree based on experience, some occupations require less than integral with the activity performed. Epcot Center store clerks are a bachelor’s degree. There is no numerical limit on the TN visa, nor the classic example for whom this visa was created, but it can be is there a formal limit on the number of extensions available. used in other museum and cultural positions.
Nationals of Chile and Singapore: Nationals of Chile and Singa- When will the R visa be attainable? pore qualify for a Free Trade visa based on the H-1B requirement The R visa will be an option if the individual has been a member of specialty occupation, and no petition is required when applying of a religious denomination for at least two years and has an offer at the consul. They are granted in one-year increments and are of employment in either a religious occupation or a job that is subject to a generous numerical limit of 6,800 per year, although religious in nature from that denomination. Due to the fact that usage under that quota is deducted from the overall H-1B quota. the R is so open-ended, USCIS will strictly adhere to the require- Like all of the country-specific visas mentioned here, the Chil- ment that the job be religious in nature. Where the position does ean and Singapore Free Trade visas do not explicitly provide for not fall under a “traditional” religious capacity, the burden is on dual intent, so they would not be usable once an I-485 has been the petitioner to show that the duties require more than the ➝
July/August 2007 Immigration Law Today 35 Ask the Expert Practice Tips for the Busy Immigration Lawyer
voluntary services of a devout member. Part-time employment will 60-day grace period will be reduced to 15 days. If the person must be acceptable for an R, although it may not be used to qualify for change status to F-1—and bear in mind that F-2 spouses must the EB-4 immigrant religious worker category. change to F-1 before becoming a full-time student—then it will be necessary to file an I-539 and establish that one has sufficient Is an L-1 visa worth considering? funds to pay tuition and living expenses without working. This L-1 classification will be worth considering where the company will not be a problem for those with sufficient assets in their own can place the person in an overseas office for 12 months. Despite name or the name of immediate family members, provided that the 12-month requirement, the company may be able to bring the funds have been on deposit for a period of time. A nonim- the person back to the United States in B-1 status for training or migrant fiancé(e) also may be an acceptable provider of funds. business visits, and accrue the required qualifying employment However, if a U.S. employer, U.S. spouse or fiancé(e), or a “family through alternating periods of placement abroad and in the United friend” of unknown origin is the source, USCIS can be skeptical States. Of course, only time spent abroad will count toward the 12- in thinking that either the funds will not be forthcoming, the ap- month requirement. One also must consider whether it is realistic plicant will work in exchange for the support, or the applicant will to meet the requirement of managerial or specialized knowledge not depart when studies are completed. capacity for both the position abroad and in the United States. If the student will need to travel, then one can expect greater Managerial capacity only will be recognized where the individual scrutiny, presuming an F-1 visa will be needed. The consul may has other managerial, supervisory, or professional level reports, or be skeptical that the studies are simply a means to remain in the meets the requirements for a function manager. A function man- United States indefinitely if the purpose of the study is not serious ager will be responsible for an important function or division of or well defined, or if similar or better schools are available in the the company and typically will interface with senior management. home country. Another barrier is that students can only enter the Pension or mutual fund managers are a prime example—the per- United States when studies will start within 30 days. Where their son has a remarkably high level of responsibility but may have no status expires more than 30 days prior to commencement of stud- reports other than an administrative person. ies, a change of status will be denied. On the more positive side, Alternatively, the person may qualify through specialized those who complete a new degree level will qualify for another year knowledge. The specialized knowledge cannot be a skill that of OPT. This will not be the case, however, where one already has is available in the market through employment or training at a a degree of the same level in a different field. competitor, but that which is particular to the company and its products or procedures. USCIS will be skeptical of the claim of Will the returning student specialized knowledge, particularly where it has been acquired in be permitted to work? only a year. If the individual has a related degree, and the experi- Students generally cannot engage in off-campus employment and ence builds on that know-how, then a mere 12 months of experi- will not be permitted to engage in curricular or OPT during the ence is more likely to qualify. Quite clearly, the L option will work first academic year. However, if engaged in a graduate program only in particular circumstances. If the company does not have a where students are required to participate in a practicum imme- foreign office already, USCIS will require proof of an appropriate diately upon commencement of studies, then the F-1 also will be entity abroad. Placing the individual in a home office abroad is able to engage in curricular practical training on an immediate not likely going to be recognized, as even employees transferring basis, if otherwise qualified to do so. from an established office will be required to provide rigorous documentation of the relationship between the United States and Will the B visa be an option, given that foreign entity, as well as the qualifying experience and managerial some will have a 16-month or longer gap? or specialized knowledge position in the United States. Last year, when there was an H gap of only four months, it was realistic to request a change of status to visitor to sightsee, but even What are the considerations then, USCIS was sometimes skeptical whether the applicant was for those who will return to school? a bona fide visitor or simply attempting to prolong one’s stay in an School remains an option for those who have an academic inter- effort to ultimately work in the United States. This year, applicants est, or who wish to pursue full-time language studies (minimum will need to bridge a period of 16 months if they are unsuccessful of 18 hours per week of classroom work, or 22 if mostly labora- in what is now the H-1B lottery program—28 months if they were tory work), or who wish to take an entrance or professional exam unsuccessful in capturing an H-1B number last year. Certainly, with an institution such as Kaplan, Princeton Review, or the Olin those seeking a shorter period of time—perhaps to travel or be Institute. Those who already are in F-1 status and still in school, with a nonimmigrant spouse or partner while waiting for school optional practical training (OPT), or in the 60-day grace period to begin—may face an easier time of it. USCIS also will be more will be able to simply get a new I-20 from their institution and, receptive where the applicant has a clearly defined purpose consis- if going to a new institution, complete the F-1 transfer process. tent with a visit: to travel or sightsee to specific places or to remain Of course, if they stopped attendance without authorization, the here for a family wedding or similar event. Visitors can engage in
36 Immigration Law Today July/August 2007 Ask your clients to contact you with details about how the H-1B cap is hurting their company so that you can let Congress know. Offer the option not to have their company’s name made public.
independent research (e.g., in connection with a thesis or other Offer the option not to have their company’s name made public. publication). Such an application will be more credible where there The cost of not taking these steps could be enormous, because is a U.S. educational institution willing to provide library privileges, legislative proposals can offer dramatic relief, (e.g., the STRIVE a faculty advisor, or other support, but no remuneration. Act introduced by Rep. Luis Gutierrez (D-IL) and Rep. Jeff Flake Also, where the H-1B employer is able to place the person over- (R-AZ), H.R. 1645), or can make our current state of affairs seem seas, it may be possible to have him or her come here to visit for an like paradise (e.g., the H-1B and L-1 Visa Fraud and Abuse Preven- initial period of training and, perhaps, for even longer intervals as tion Act of 2007, S. 1035, which was introduced by Senator Richard a B-1 in lieu of H-1B where the consular or immigration officer is Durbin (D-IL) and Senator Chuck Grassley (R-IA)). ILT receptive to such an application. If the purpose is clearly tempo- Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association. rary, the amount of time can sometimes be prolonged, for example, where the foreign employer is working with the U.S. company in a Notes cooperative venture that clearly will promote trade. Obviously, in 1For a discussion of the exceptions to the cap and expansive interpretation, see any visitor scenario, the more clear the short-term objectives, and N. Waxman and N. Schorr, “AC21 and H-1B Cap: So Quick Bright Things Come the stronger the magnet pulling them back upon completion of to Confusion,” 9 Bender’s Immigr. Bull. 700 (June 1, 2004) revised and reprinted in Immigration Options for Academics and Researchers 133 (AILA 2005 Ed.). Also these objectives (ownership of a home or business abroad, a strong consider the more narrow definitions of “affiliate” and “employed at” contained in career interest abroad, or immediate family members remaining M. Ayes, “Guidance Regarding Eligibility for Exemption from the H-1B Cap …,” AILA InfoNet Doc. No. 06060861. abroad), the stronger the case.
These alternatives will help only a small percentage of those in need of work visas. This is not a mere H gap, but a gaping chasm. What can employers do about this deplorable situation? This situation cries out for congressional action, but Congress is overrun with sympathetic situations crying out for immigration relief. If it begins to help one interest group, it will abandon the many others with similarly compelling claims. The business com- munity has done very little to make the job easier for Congress. Businesses have not been engaging in mass marches, and have even been reluctant to speak out, for obvious reasons. Until busi- nesses speak out, the situation is unlikely to improve, regardless of how compelling the cause. One can no longer count on the inevitability that Congress will come to the aid of business. Hence, here are some action items that can be taken today by you and your clients: n Ask Congress to raise the H-1B cap. The AILA model letter takes less than 60 seconds to send (http://capwiz.com/aila2/issues/a lert/?alertid=9862641&PROCESS=Take+Action). Send it yourself, and ask your clients to do so. Ask your colleagues, employees, and friends to do the same. n Put the model letter link on your company Intranet and Internet, and anywhere else there is Internet traffic, including listserves. n Ask clients to write about the negative impact on their business. n Get the media involved! Let your newspapers, local radio sta- tions, and TV stations know about how this adversely impacts businesses and lives. n Ask your clients to contact you with details about how the H-1B cap is hurting their company so that you can let Congress know.
July/August 2007 Immigration Law Today 37 techN TES/ by Reid F. Trautz Tried and Tested Computer Life-Saver Tips and Tricks
omputers have a short life span. Every year, competing companies present the latest versions of desk- tops, laptops, or the must-have software products. Whether you are a true technocrat who updates yearly or a savvy Cbusinessperson who makes the most use of your computer, below are some pointers that will benefit any consumer.
Computer Tips and Strategies most out of your technology investment, Creating Form E-mails so make the time and pony up the tuition. Whether creating a firm newsletter or e-mail- Do as Mom Says—Clean Your Computer! Each staff member needs a minimum of six ing instructions to a client, having an e-mail Over time, computers become sluggish to 12 hours per year just to keep up with forms library can save time. To do so, go to: due to routine use, unnecessary junk left software changes and enhancements. n The completed Outlook e-mail, click on on computers, and other reasons. Take time File; now to clean-up your computer safely to Take the Belarc Advice n Copy to Folder; and bring back some zip and speed. The Belarc Advisor is a free PC inventory n Save it to the Drafts folder or create one n First, uninstall any applications you no- utility that analyzes computer contents. In called “Forms.” longer use—don’t just delete the icon, run just a few seconds, it will create a complete By saving the e-mail repeatedly, you can the uninstall feature that comes with just list of all one’s hardware and software, in- create slight variations to the greeting or about every software application. cluding the motherboard, chipset speed, subject line, or whatever you need. n Next, run “Disk Clean-up” and “Disk operating system, software version num- Defragmenter” from your built-in Win- bers, etc.—everything you need to know Search Engine Is Your Friend dows XP System Tools (In Windows XP, about your computer. Keep Belarc’s web- Find anything on your computer using a go to Start/Programs/Accessories/Sys- site handy, www.belarc.com, for when your desktop search engine. These handy appli- tem Tools Programs). IT staff or tech support desk needs help in cations index your computer hard drive and n If you want a more aggressive, but safe, solving a content problem. help locate documents, e-mail, photos, Ex- disk clean-up tool, get CCleaner—a free- cel files, and much more. Several free prod- ware utility cleaner at www.ccleaner.com. Compare Tools ucts are available, such as Google Desktop Search, Copernic Desktop Search, or Yahoo Paste Special Function System Restore Desktop Search; however, X-1 from www. Want to add text from a website or other Arguably the best utility ever released by X1.com and O-yA from www.oyaifodit.com source to an e-mail or Word or WordPer- Microsoft is the System Restore in Win- also have good reviews. fect document and not deal with formatting dows XP. The utility creates “restore points” issues? Use the Paste Special function. High- at periodic intervals that allow a user to re- Security Issues and Strategies light the text, copy it, then place the cursor store the computer in the event of a failure Your practice is an easy target for today’s at the point you want to add the text to your such as a hijacking, virus, or other malware virtual criminals. They are getting savvier at document. But instead of clicking the “Paste” invasion. In Windows XP, go to Start/Pro- bypassing firewalls and obtaining sensitive icon, go to “Edit” on your toolbar and click grams/Accessories/System Tools/System information. Furthermore, computer crash- “Paste Special”, then select the “Unformat- Restore for more information. es and missing Word documents can happen ted” option. The text will adopt the format of anytime. Reduce these risks by taking the the receiving document and not the format URL Short Cuts time to secure your computer network. of the webpage or other originating source. Are you tired of trying to copy and insert long web addresses (URL) into an e-mail Back-Up Double Duty Training Investment message, only to have it break and not There is nothing more important in your Do not skimp on training yourself and work? Enter, Tinyurl.com. This free web- office procedures than the regular back-up your staff to use new and/or existing soft- based service turns www.dcbar.org/for_law- information stored on your computer. Back- ware applications—it is penny-wise and yers/washington_lawyer/september_2005/ up means to copy your important computer pound-foolish. Training helps you get the ethics.cfm into http://tinyurl.com/eymwy. files (such as client documents, software ap-
38 Immigration Law Today July/August 2007 Before you donate or throw away a computer, you must protect the client information or law firm data from public disclosure. Simple but powerful utilities are available to wipe the data from the hard drive using U.S. Department of Defense standards.
ISTOCK plications, time and billing data, and e-mail) opening these e-mails can confirm a “good” n Internet Acceptable Use Policies to another computer or media that can be ac- address to spammers. Never reply to spam to (www.getadvanced.net); and cessed to restore data if your computer crash- be removed from their list—spammers will n SANS Institute Model Forms es, the file is corrupted, or your office is de- do just the opposite! (www.sans.org). stroyed. There are different methods to do this Be sure to check your spam filter daily. through a variety of storage options (CD-RW, Even the best software programs can mis- Websites tape drive, zip drive, mirrored hard drive) and identify proper messages, so do not run the Computer manufacturers have websites that software, such as Norton Ghost (www.syman risk of missing an important message from a assist consumers with any technical support. tec.com), Second Copy 2000 (www.secondcopy. client, court, or opposing counsel. Put it on Reputable government agencies also have com), Backup MyPC (www.stompsoft.com), your daily list of tasks on your calendar. made their websites easily accessible. Below and Retrospect Backup (www.emcinsignia. are two examples of websites that can benefit com), Whichever method you choose, your of- Data Wipeout any immigration practitioner. fice computer should be backed up daily. Also, Before you donate or throw away a computer, do a periodic test to restore a file to make sure you must protect the client information or Microsoft Office Marketplace your backup system is working. law firm data from public disclosure. Simple This is a great place to add new tools, fonts, but powerful utilities are available to wipe the stationary, templates, or other handy add- Mirra, Mirra on the Wall data from the hard drive using U.S. Depart- ins to your MS Office suite of applications. The Seagate Mirra Personal Server is a valu- ment of Defense standards. Consider using The top 25 most popular Marketplace ser- able combination of real-time automatic Darik’s Boot and Nuke (http://dban.source vices are located at http://office.microsoft.com/ back-up system and extranet that allows for forge.net), Stompsoft’s DriveWasher, or SDe- en-us/FX010982801033.aspx. secure remote access to documents and files lete from www.sysinternals.com. without compromising your network secu- Utilize Elaws rity. This is a great tool for small and home Develop Internet/Technology Use Policy Elaws is a new service from the Department offices for about $400 from www.mirra.com. If you don’t have one, get one! If you have of Labor, providing interactive information one, review it often, update it regularly, and about federal employment laws for workers Reduce Spam most importantly, enforce it. A well-crafted and small business at www.dol.gov/elaws. This Obtain a reliable spam filter software—not and implemented technology-use policy can site includes items such as printable posters all are created equal. Do not allow your e- provide protection from external threats and that must be posted in the workplace. mail address to be “harvested” from your internal risks. It also can improve employee website. Create a graphic of your address text productivity and help preserve technology Gadgets and Tools and place it on your website. Instead of using resources for legitimate business purposes Nowadays, any person can purchase the lat- your first name@yourlaw, use other charac- and needs. As you develop your policy, the est innovative gadgets, as these supplies are ters with a higher degree of difficulty. Also, following resources may be helpful: made more affordable by increasing public use Yahoo, Gmail, or Hotmail for jokes and demands. Inspector Gadget is not the only personal e-mails instead of your business n Ten Steps to a Successful Security Policy one running to the nearest store for these address. Do not read spam messages—even (http://tinyurl.com/4eclf); products. ➝
July/August 2007 Immigration Law Today 39 Tech Notes Tried and Tested Computer Life-Saver Tips and Tricks
iPod Double Duty Vonage (www.vonage.com), or VoicePulse where to look before going online, and utilize Any Apple iPod with a dock connector al- (www.voicepulse.com). Some cable provid- this time to the best of your advantage. ready includes software to record voice re- ers, such as Comcast, also offer VoIP to cordings. All you need is a recorder: Enter, their customers. Winning Case Strategy Griffin Technology’s $40 iTalk. Just slightly Search the Internet for facts to help you win smaller than a pack of gum, it plugs into Picasa Art cases. Factual research is not the same as the headphone jack and sits on top of the Picasa is another great tool from the folks legal research. Search Usenet groups and iPod. It’s color-coordinated with the iPod at Google. Find, organize, edit, print, and Internet search engines (portals) for infor- so it looks cool, not geeky. Now, if I use it share all the pictures on your PC. Pictures mation, resources, and experts to increase for work, is it tax deductible …? of clients and their family members, etc., your knowledge to better serve your cli- can be easily organized to simplify your ents. A great book is the Lawyer’s Guide to VoIP is Here to Stay work with this free software! Fact Finding on the Internet from the ABA An Internet phone’s (VoIP) low cost and (www.ababooks.org). portability are two great reasons to sub- Mid-range Scanners Are a Desktop Hit scribe to this service. But is it right for you? Low-end scanners can cause headaches Looking for Someone? You cannot access the information num- for many small firms seeking to go digital, Zabasearch (www.zabasearch.com) is a very ber using VoIP, nor does it work during and high-end scanners are just too expen- simple website but a most incredible tool. a power outage unless you have a battery sive. Several companies are releasing new Find just about anyone. Incredible, but back-up. But if you choose to subscribe to scanners that provide the quality, speed, scary. VoIP, your best options are AT&T’s Call- and durability at an affordable price. The Vantage (www.usa.att.com/callvantage), Fujitsu ScanSnap and the Visioneer 9750 Work Hard, Play Often PDF provide automatic document feeding All work and no play makes for a dull law- and automatic scanning to PDF documents yer. Take a mental health break once a day. and other valuable features. Know exactly Relax, look out the window, call a friend, or how you want to use these products before check out a totally useless website such as you buy them; otherwise, all you have is an http://svt.se/hogafflahage/hogafflaHage_site/ expensive paperweight. Kor/hestekor.swf (click on/off each horse), waste a few minutes at www.njagyouth.org/ Remote Access liberty.htm or www.widro.com/throwpaper. Accessing your computer from any remote html, or play some classic games at games. location is now much easier with a web- yahoo.com. Two favorite quick diversions based service called GoToMyPC (www.go are the 30-Second Bunny Theater (www. tomypc.com). Just download the software angryalien.com) and JibJab political videos and create an account with the company. (www.jibjab.com). Have a few laughs, then When you need to check your e-mail or ac- get back to work. cess a document, you just use a web browser from any Internet-enabled computer. The Practice Makes Perfect service is approximately $140 per year. Be These tips are commonsensical, yet, it is sure to clear this with your firm’s network easy to lose track of them amid the daily administrator. Other alternatives include a hustle and bustle of running a hectic law software solution using MS Remote Desk- practice. Now they are in a concise and top preinstalled in Windows XP Pro, Sy- comprehensive list within your fingertips. mantec’s PCAnywhere, or Netopia’s Tim- These tips are yours to lose or use, and go- buktu Pro ($150 one-time purchase). Each ing one way or another may be the thin line of these must be installed on the host and between a great save and a tragic office di- client computers. saster. ILT
Research Tips and Strategies American Immigration Lawyers Association The Internet is a bottomless virtual pit that Practice & Professionalism Center Director can easily consume an otherwise productive Reid F. Trautz provides management and ethics information and guidance to employee’s time and energy. However, it also members. contains some very useful information. Know
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A Nation by Design: Portrait of Immigration Policy in the Fashioning of America
eldom is there a book about U.S. immigration history that thoroughly covers congressional decisions from colonial times to the present push for immigration reforms, a book that explores the broad themes and intricate details Sof this country’s treatment of aliens and forms a wonderful backdrop for understanding this year’s roller-coaster ride— otherwise known as comprehensive immigration reform (CIR). One book dares to accomplish such a feat, and paints a colorful and very detailed portrait of the varying immigration legislation that came, went, and withstood the passage of time.
Congressional Case Study back to Africa. During the Civil War, the Professor Aristide Zolberg’s A Nation by federal government used the Union Army Design: Immigration Policy in the Fashion- as a place to send free blacks rather than ing of America (Harvard University Press; encourage them to settle in the North. $39.95, hardcover) is 450 pages of text Many U.S. history books teach that (with an additional 150 pages of footnotes) open space and religious freedom in co- that probably will become a class-adopted lonial times drew immigrants who were book for courses studying immigration easily received and integrated, but the re- issues. The book is geared toward a more ality was often harsher. While the Spanish academic audience, and is not easy to read were bringing slaves to plantations in the after a hard day in court. The sentences are Caribbean and South America, the United verbose with words containing multiple Kingdom used “transportation” as an alter- syllables. The sometimes-dense style makes native penalty to capital punishment. Zol- this book a bit of a challenge to read straight berg documents the English government’s through. However, the words are used pre- efforts to send Irish prisoners to the United cisely and not simply for effect. States, with the secondary goal of wiping Despite the highly literary writing style, out Catholicism in Ireland. this book is still worth reading. Each chap- Thus, even in the earliest days, migration ter paints a portrait of an era in immigration was managed by special interests (employ- history with carefully researched details. ers in the South, the British government, The most compelling parts were the early etc.). In one interesting twist, Puritans were 1800s—a time usually left out of broad sur- by limiting migration from Europe, while sent from England for the dual purpose of veys of immigration history—and in 1986, purposefully sending convicts, paupers, getting rid of troublemakers and creating a where the months of to-and-fro debate on and slaves to degrade American society. strong anti-Catholic base against the French immigration foreshadowed the current The King’s efforts led early settlers to sup- in the New World. complicated and fragile attempts at CIR. port generally loose immigration policies, with specific state-by-state restrictions on Colonial Immigrants Special Interest Connection certain “undesirables.” Migration slowed during the early 1700s Zolberg does a wonderful job of identify- Zolberg also firmly addresses slavery—a due to the high natural rate of reproduc- ing the special interests involved with each topic often left out of immigration history. tion in the colonies. The white population new immigration law. For example, before Slaves were not considered more than tem- of the future United States grew tenfold— 1776, immigration restrictions were driven porary labor and, therefore, did not benefit from 223,100 in 1700 to 2,205,000 in 1780. by conflict with England. He begins the sec- from efforts to enfranchise other groups Only about 300,000 of that growth came ond chapter by quoting Thomas Jefferson, of new immigrants. In fact, in the first half from migration from Europe. Immigrants who complained that King George was of the 1850s, even groups working to free from the British isle peaked at 378,000 from trying to starve the new colonies of labor slaves also collected money to send them 1630 to 1700. However, this number ➝
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AILA Publications—Written...Edited...Published by Immigration Lawyers AILA Publications—Written ... Edited ... Published ... by Immigration Lawyers Reader’s Corner A Nation by Design
Zolberg describes the 20th century as starting with an “open door,” then shifting dramatically to a “closed door” in the 1920s, finally transforming into a “main gate” in the 1960s.
dwindled to less than one-third by the start By 1800, the Federalist party had ad- Civil War, Abraham Lincoln’s Republicans of the 18th century due to death, lack of fe- opted Franklin’s anti-immigrant stance. called for a “system of encouragement of males, and reverse migration of indentured Thomas Jefferson—leading the opposition labor” from Europe. By the late 1800s, servants after completing their services. The Republicans—used this to his advantage. the labor shortage was so severe that in vast majority settled in the South, where States controlled by Republicans shortened California, seven out of eight agricultural plantations required cheap labor. There waiting times for citizenship and signed up workers were Chinese. This foreshadowed was a somewhat wealthier, more educated new voters from immigrant communities, the tremendous need for unskilled work- population in the North where most settlers particularly the Irish in New York. These ers from Latin America today. The Immi- worked on smaller family farms. voters led Jefferson and the Republicans to gration Service was able to regulate—to Thus, immigration was more driven victory. Unlike some later politicians, Jef- some extent—the flow of Chinese because by British “pushes” than “pulls” from the ferson lived up to his promises regarding they came by boat. There were set ports colonies during the 1700s. Indentured immigration. His first message to Congress of entry, and the Chinese Exclusion Act servants and convicts made up the ma- called for lowering the number of years for of 1882 effectively stopped immigration jority of settlers. Britain formally legal- citizenship on a national level from 14 to from China. Closing the door on Chi- ized the “transportation” of immigrants five (lower than anywhere in Europe at nese immigration in 1882 led, in part, to in 1718, and it became a very profitable the time). Jefferson wanted the country to the wave of illegal migrants from Latin business. To many British, sending inden- “live up to its vocation as an asylum for op- America throughout the 20th century. tured servants to the colonies seemed the pressed humanity.” This wave started as early as 1900, with a perfect solution to crime, as the rugged The end of the most brutal phase of few hundred Mexicans crossing the border wilderness of the new settlements might the French Revolution and the suppres- annually for work in the fields. help rehabilitate convicts. sion of Irish independence by the British reduced fears of violence and anarchy National Origin Restrictions Misguided Prejudice coming across the ocean with new im- What began with the blatantly racist Chi- The common misconception that “im- migrants. New Americans were expected nese Exclusion Act of 1882 resulted in the migrants are criminals and unable to rise to shed their native cultures and tongues. 1920 general national origin restrictions. above poverty” may come, in part, from John Quincy Adams expressed the follow- Zolberg’s general thesis is that immigra- early history. As early as 1751, Benjamin ing thoughts in 1817: tion policy was planned by special interests Franklin railed against transportation of [T]he Atlantic is always open to them, for their own purposes. Thus, by 1920, the convicts: to return to the land of their nativity business lobby no longer needed a continu- Thou art called our Mother Coun- and their fathers … They must cast off ous flow of migration from Europe to sup- try, but what good Mother ever sent their European skin, never to resume port industry in the United States since the thieves and villains to accompany her it … they must be sure that whatever great internal migration from the South and children; to corrupt some with their their own feelings may be, those of elsewhere began to supply needed workers. infectious vices and murder the rest? their children will cling to the preju- The process was sealed by the aftermath of The same indolence of temper and dices of this country. World War I, which shut many Americans habits of idleness that make people off from the outside world. poor and tempt them to steal in Eng- Demographic Transformation National origins quotas lasted three land, continue with them when they Cities were always a focus of immigration decades but began to crack during World are sent to America, and must have policy because of the high concentration of War II. Japanese propaganda portrayed the same effects. newcomers. By 1855, New York City housed the United States discriminating against The fear of new immigrants being dif- 51 percent foreign-born residents! As a re- the Chinese (a U.S. ally during the war) ferent from native-born Americans also sult, immigrants were usually blamed for through the Chinese Exclusion Act. As a dates back to colonial days. In 1753, Frank- urban problems. By the mid-19th century, result, Chinese-Americans won back the lin wrote that those who “come hither are Americans started to see in the cities what right to naturalize, and 100 Chinese a year generally of the most ignorant stupid sort the future would hold—continuing waves were allowed to immigrate. This was a very of their own nation.” He concluded that of radical demographic transformation if small amount, albeit symbolically impor- immigration was unnecessary since the la- immigration continued. tant, because it marked the decline of the bor shortage “will soon be filled by natural Benjamin Franklin’s “natural genera- policy of choosing immigrants based on Generation.” tion” forecast did not happen, and after the their country of birth.
44 Immigration Law Today July/August 2007 Immigration Law Today the 1960s. The main gate was more nuanced passed the 1965 act. At that time, Congress The ancestor of modern immigration law and more heavily regulated, with a “side wanted to follow in the spirit of the Civil was the Immigration and Nationality Act entrance” for family, and a “back door” for Rights Act by eliminating the discrimina- of 1952 (Pub. L. No. 82-414, 66 Stat. 163), illegal migration from Latin America. The tory parts of previous immigration laws. as national origin quotas gave way to re- resulting multi-faceted system surprised its gional quotas. The final stroke eliminating supporters as it led to a new colossal wave Elusive Quest for Coherence regional preferences was the Immigra- of immigrants from 1970 to the present. Anyone who is trying to predict the out- tion and Nationality Act Amendment of Immigrants from the developing world in- come of this year’s CIR debate should Oct. 3, 1965 (Pub. L. No. 29-236, 79 Stat. creased in that time period from 42 percent read Chapter 10—“The Elusive Quest for 911), which President Lyndon Johnson to 75 percent of the total number entering Coherence”—that chronicles the devel- proclaimed would lead to choosing new the United States, and rivaled the other great opment of the Immigration Reform and Americans based on who they are, not wave of immigration from 1890–1920. Control Act of 1986 (IRCA) (Pub. L. No. where they come from. This was the start 99–603, 100 Stat. 3359). Allegiances, opin- of the preference categories—with priority Mass Immigration Categories ion polls, and amendments changed almost given to those with job skills or relatives in The employment-based categories pro- daily—with the final bill emerging at the the United States. vided a foothold for new immigrants from 11th hour from a closed-door conference third world countries, and the family-based committee session. Whatever will happen Revolving Immigration Door categories led to large scale “chain migra- this year, it is inevitable that the exact word- Zolberg describes the 20th century as start- tion.” Zolberg clearly documents what most ing of any new law will be debated until the ing with an “open door,” then shifting dra- people today do not realize—that Congress last second, and that the final bill will reflect matically to a “closed door” in the 1920s, never anticipated mass immigration from a complicated mix of interests. finally transforming into a “main gate” in Latin America, Asia, and Africa when it While IRCA is an excellent case ➝ PLACEMENT SERVICES USA 12304 Santa Monica Blvd. #300 Los Angeles CA 90025 • Tel: 310-820-7469 • Fax: 310-820-7648 • E-mail: [email protected] We PlacementCan Assist you with your ServicesPERM Recruitment. USA We provide an Easy and Affordable solution to the additional requirements mandated under the PERM regulations. We are a fully qualified Placement/Employment Agency that will provide an employment short term recruitment job market test for your professionalpu clients. • We provide a test of the job market for any professional position in any field. • The employer or agent will pay a one time flat fee pageand we will recruit for the employer45 as part of our normal placement agency services. • The employer can select to have all collected resumes if any from a particular position posting forwarded directly to the employer or agent. • We will provide both a signed letter and hard copy print out from our job listings website to confirm the recruitment efforts for your files. • There is no obligation or additional fee involved if the employer does not hire a Placement Services USA Candidate. • We can have your recruitment needs fulfilled in an easy, expeditious and courteous manner. • The Position can be added to our recruitment campaign and website in a matter of hours. Please Contact us to get started today. E-mail: [email protected] or call 310-820-7469
July/August 2007 Immigration Law Today 45 Reader’s Corner A Nation by Design
study of congressional response to the same country illegally.” In his victory speech at Post-9/11 Effect problems that practitioners face today, the the Republican primary, Bush declared that Zolberg points out what many are coming landscape is different. For one, 75 percent “legal immigration is not a national weak- to realize—that a good part of the post-9/11 of people polled in 1986 said immigration ness; it is a sign of national success.” security was a quixotic effort to look for a should not be increased, while nearly half Furthermore, foreign-born voters cannot needle in the haystack. For example, this said it should be reduced. By 1995, 65 percent be discounted in the political arena. Even author’s firm has a Lebanese businessman favored cuts in legal immigration. Moreover, noncitizen aliens count in determining over- client who waited in line for 12 hours in a stable majority believed that immigrants all population for census and congressional Boston to comply with required special reg- generally tend to end up on welfare. Twenty redistricting purposes, and the numbers of istration in 2002. Such efforts drain tremen- years ago, the restrictionists had broad public foreign-born in the United States right now dous resources and, as a practical matter, support but little political infrastructure. are staggering. For example, immigrants ac- are extremely unlikely to catch terrorists. To This contrasts with today, where after counted heavily for California’s net popula- completely protect the United States, Zol- decades of experience with illegal immi- tion growth from 1990 to 2000. berg explains that border inspectors would grants, the majority of Americans believe Serious debate about the broken immi- have to make 1.3 billion correct decisions immigration reform is necessary, yet the gration system began in late 2001, includ- each year about entering people and cargo. anti-immigration lobby is extremely orga- ing a bipartisan proposal by Senator Peter Therefore, it is essential to balance this na- nized and powerful. Many Americans have Wilson (R-CA) for a guest worker program. tion’s open society with a realistic approach come to believe that, as President George Unfortunately, the much-needed debate to border security. W. Bush stated in the 2000 campaign, “[I]t stopped abruptly after the 9/11 tragedy and So how do Americans best protect is far more compassionate to turn away did not resume in earnest until last year. themselves while keeping legal immigra- people at the border than to attempt to find From that point, security concerns domi- tion working? Zolberg ends the book by and arrest them once they are living in our nated the discussion. suggesting two strategies:
46 Immigration Law Today July/August 2007 ■ Increase the use of consular officers to Overall, while A Nation by Design screen intending immigrants and nonim- can make one feel like he or she is back migrants. Former INS Commissioner Doris in school preparing for a history exam, Meissner once said, “Consular work ... does Zolberg includes facts and data that have not enjoy the high standing in the hierarchy not been discussed in other immigration of responsibilities for U.S. diplomats. Expert books. Nowhere is the saying “you have senior officers are in short supply and spread to look back to where you came from to too thin. This model is not tolerable in the know where you are going” more appropri- face of terrorism. Instead, visa work must be ate than in today’s immigration legal field. treated as a career specialty.” Therefore, there is no time like the present Just as shipping companies in the 1800s for practitioners to examine a complete and airlines in the 1900s were given special portrait of this nation’s immigration policy responsibilities for screening passengers to have a better understanding and appre- before they enter the United States, the ciation of CIR, and the courage to make a consular officer’s role should continue to proactive impact in the pursuit of much- grow as gatekeepers. needed change in immigration law. ILT
■ Treat foreign-born people in the Dan H. Berger is a named partner at Curran United States with respect. This sounds & Berger in Northampton, MA, and chair simple, but Zolberg argues that “immi- of the American Immigration Lawyers grants who feel welcome rarely set out to Association Board of Publications. destroy their new home.” Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association.
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AILA Publications—Written...Edited...Published by Immigration Lawyers
July/August 2007 Immigration Law Today 47 practice POINTERS / by William A. Stock
A Labor Certification Survivor Guide
mmigration law practitioners continue to hack their way through tion is required, but to make sure the actual the thickets of the ETA-9089 form, focusing only on how to complete the form, requirements are adequately documented. Ihow to avoid triggering the traps for the careless, and even when to use “magic Step 2—Draw the Map language.” Small wonder, then, that practitioners may no longer recognize the ter- In the wilderness, a good map of one’s route is rain around them or, worse, may begin to feel that their skills are not adequate to essential before beginning any hike to stay on navigate them back to where they are confident in leading their clients. Surviving course and to avoid or be prepared for haz- ards. Similarly, the attorney must assess the the constantly changing world of labor certifications, however, requires recogni- (Need graphic) entire case from start to finish before begin- tion of the fundamental fact: the attorney’s goal in the process is to communicate ning the labor certification, to anticipate the to the Department of Labor (DOL) the unavailability of U.S. workers using the problems that will arise at later stages of the employer’s actual requirements. Thus, below are definite steps for practitioners to application process, and to develop a plan to address those problems. Attorneys must re- get their labor certification practice back on the right path. member that clients are really not interested in whether a labor certification (standing Step 1—Maintain Control “aggressive” position that actually crosses alone) is possible, but in having a labor certi- When lost in the woods, survival experts the line over what is allowable. The most fication that they can use for the employee to agree: the first step is to sit down and think, frequent example of when the attorney’s immigrate and work for the employer. to get control of the situation, and avoid leadership will be challenged is the determi- An example of drawing the map includes floundering further in the wrong direction nation of whether the employer’s require- evaluating the I-140 issues as part of the (or over a cliff). Similarly, when initiating a ments include a relevant master’s degree. preparation of the labor certification. On the labor certification, the first step for the im- With the long backlogs that have developed employer side, this evaluation should include migration practitioner is to maintain control in the third-preference immigrant category, reviewing the employer’s financial state- over his or her relationship with the client many employees would prefer the position ments or tax returns and assessing whether and the client’s relationship with the labor requirements in their labor certification in- they show the employer’s ability to pay the certification process. “Maintaining control” clude a bachelor’s degree plus five years of offered wage as of the filing date of the labor means that the attorney can never let the experience, or a master’s degree. Note: In certification. On the employee side, the at- client’s desire for a particular outcome dic- order for an immigrant petition to qualify torney should review whether the employee tate how the application is processed. The for the second employment preference, with can document the education, training, and temptation to “bend” or “exaggerate” the em- its generally shorter waiting time than the experience required on the labor certifica- ployer’s requirements is always out there, and third employment preference, the labor cer- tion, in the way they are expressed. the seemingly arbitrary nature of the limits tification supporting that immigrant petition Note: Behind most of the I-140 denials in the labor certification process can lead a must “demonstrate that the job requires a that are in federal court are poorly drafted well-meaning attorney to justify to him- or professional holding an advanced degree or labor certifications. See Grace Korean United herself that a greater good is accomplished the equivalent.” See 8 CFR §204.5(k)(4)(i). It Methodist Church v. Chertoff , No. CV-04- by violating the rules of the labor certification is the attorney who must point out that it is 1849-PK (D. Or. 2005), AILA InfoNet Doc. process. For a good discussion of the ethical not sufficient (or even necessarily relevant) No. 05111563. In that case, the employer had traps of the labor certification process, read that the employee have a master’s degree for to argue that “the NSC director improperly D. Boyle, “Labor Certification Pitfalls,” 9–22 it to be included in the labor certification ap- interpreted the phrase ‘B.A. or equivalent’ Bender’s Immigr. Bull. 3 (Nov. 15, 2004). plication. Rather, it is the employer’s actual to mean ‘B.A. or equivalent foreign degree’ The need for self-policing is particularly minimum requirements that matter, and it is rather than ‘B.A. or the equivalent of a B.A.’” acute under the PERM system. Because of the attorney’s responsibility in this situation Id., slip op. at 3. If the employer had clearly the audit-based nature of the system, an at- not to take at face value the employer or em- stated that it considered a combination torney may think it is less risky to take an ployee’s assertion that a particular qualifica- of education and experience to be ➝
48 Immigration Law Today July/August 2007 House INL Handbook new page 49
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AILA Publications—Written...Edited...Published by Immigration Lawyers Practice Pointers A Labor Certification Survivor Guide
“equivalent” to the required degree, the liti- ments the employer needs that are not gation would not have been necessary. available in the U.S. labor market. Since the Consistently drawing the map from be- ultimate issue in the labor certification pro- ginning to end will go a long way toward cess is whether there is a U.S. worker with Connect making one a more successful labor certifica- a particular skill set, attorneys should focus tion attorney, since a problem down the road employers on that skill set and eliminate re- with cannot be avoided if it is not anticipated. quirements that are superfluous when con- sidered against the pool of applicants. New Clients! Step 3—Remember the Forest One good way to focus on essentials is to To get back on the trail if one is lost, it is help- review the list of requirements for redundan- The bilingual English/Spanish ful to make one’s way to an overlook of clear cies: requirements that are inherent in other Immigration Lawyer Search website terrain from which a broad area is visible. In requirements for the position. For example, will aid thousands of potential labor certification practice, once the poten- obtaining a clinical laboratory scientist li- clients—individuals & employers— tial problems are anticipated, the attorney, cense in California requires a person to have in locating an AILA lawyer. employer, and employee must stay focused worked for at least one year as a laboratory on the two “big picture” issues that make a technician. If the position for which labor successful labor certification, even while certification is sought requires a clinical down in the thickets of the details of the em- laboratory scientist license, there is no need How Immigration ployer’s requirements for the position and the to say that the position also requires a year Lawyer Search Works employee’s qualifications. The two “big pic- of experience as a laboratory technician—no ture” issues the attorney must not lose sight one can meet the first requirement without Easy Searching of are the application’s overall credibility and also having met the second requirement. Potential clients, employers, and other its most important requirement—commu- attorneys looking for an immigration lawyer nicating to DOL the specific job skills that Step 4—Know All the Trees can search for a participating AILA lawyer employers are not finding among the pool of When lost, it is very helpful to notice the de- by state, city, zip code, practice areas, and applicants in the U.S. labor market. tails of the woods around you, and to know languages spoken. The application’s overall credibility is which plants are useful and which must be Potential clients also can call our 800 number or something that the attorney should begin avoided. As discussed above in Step 3, the e-mail AILA and get personalized service from evaluating at the initial intake, and continu- overall credibility of the application is key the AILA staff. ally re-evaluate as the application progress- to a successful labor certification, and the es. A simple example might be assessing a key to communicating credibility is to com- Results, Results, Results possible labor certification on behalf of an municate details of the employer’s business The powerful search engine matches potential employee of a trucking company who has operations from which the employer’s ac- clients with participating AILA lawyers. been working as a truck driver (an “other tual minimum requirements are derived. Making Contact worker” position), but whom the company The attorney must understand why each Once a potential client has narrowed the would like to sponsor as a diesel mechanic requirement is necessary to perform a job search, he or she can read detailed information (a “skilled worker” position). On its face, one duty, and why each job duty is necessary to might question whether the company actu- the employer’s business. The more complicat- about the attorney and contact the attorney ally needs a full-time mechanic and would ed the requirement and the more it excludes directly. employ the sponsored employee as such. potential candidates, the more the attorney Having raised the question, the attorney must know about why the requirement is in may still opt to proceed, but only after but- place. A software company may require a tressing the application’s overall credibility by master’s degree for a particular software en- gathering—and retaining in the audit file— gineering position, or two years of experience Join AILA’s Immigration Lawyer Search for the low annual fee of $250. Additional qualified AILA lawyers from documentation of why the employer needs a in programming a certain type of software. the same firm may be added for only $150 per lawyer. full-time mechanic (for example, the compa- The attorney must understand the details Attorneys must meet minimum qualification requirements. ny may have paid enough money for repairs of the employer’s decision to impose such a To view the requirements and to download the ILS that it would be cost-effective to in-source requirement. One should start by asking the application form, please visit InfoNet at: www.aila.com/ILS. the repair work). If the need for an employee following questions: Since an experienced Have additional questions about the service? Please with the particular skill set does not make software engineer can learn a new program- e-mail [email protected] or call 202.216.2400. sense in the employer’s business plan, it will ming language and use it reasonably fluently not likely make sense to DOL either. within six months, why is two years of ex- The second, and more important, ele- perience necessary? Are there other ways to Visit www.ailalawyer.com ment of keeping sight of the forest is keep- objectively state the employer’s requirement to preview AILA’s ➝ Immigration Lawyer Search. ing one’s eyes on the prize: those require- (e.g., “must have completed at least two
50 Immigration Law Today July/August 2007 Practice Pointers A Labor Certification Survivor Guide
Ad Name page 51 Practice Pointers ALabor Certification Survivor Guide
full software development cycles”)? If the at- Step 5—Communicate, the inevitable problems arise in the pro- torney cannot clearly articulate why each Communicate, and, Oh Yeah, cessing of particular cases. and every requirement is necessary for the Communicate! position, the attorney is not ready to draft the A means of communication—as complex Step 6—Every Case application and advertising. as a satellite phone or as simple as a smoky Is Your First Case A good attorney knows the client’s in- fire—is a key tool if one is lost in the wil- Even experienced hikers may be overconfi- dustry and hiring practices in detail, or derness. Likewise, the employer, employee, dent in their ability to get out of a bad situ- takes the time to learn those details in the and attorney must freely be able to trade ation, so they learn to take every situation preparation of a labor certification. While information in order for the labor certifi- carefully. Similarly, even the most experi- such detailed exploration of the client’s cation process to be successful. Frequent enced practitioners know the rush and feel- operations and the time to draft an ex- and in-depth communication regarding ing of pressure to get everything right that is planation of those operations may seem possible problems or delays in the process inherent in preparing a labor certification for unnecessary, that exercise is not a futile will avoid an unhappy employee and an a brand-new client, such as a company from one. By drafting a detailed, written expla- unhappy employer in the future. Realistic which the attorney hopes to receive multiple nation of how the position fits within the estimates of processing times will allow future assignments. With those cases, the employer’s business operations and how both the employer and employee to an- attorney makes a special point of thinking the employer’s requirements are essential ticipate when future steps in the process through the application from the beginning, to the normal operation of the employer’s will take place. Communication of this anticipating problems, and taking time to un- business as part of ensuring that the attor- processing information with the employer derstand the employer’s business and the role ney has correctly understood what the job and employee will build their confidence of the employee within that business. While and its requirements are, the attorney has in how the matter is being handled by the familiarity and multiple, similar applications prepared the “business necessity” docu- attorney and provide a reserve of goodwill for a client may not breed contempt in the mentation for the application.1 from which the attorney can draw when attorney, it does offer a path of least resistance
52 Immigration Law Today July/August 2007 that may subtly lure the attorney into shortcuts and assumptions Save the date for these about the case that may not be well-founded. The attorney cannot simply “cut and paste” a new employee into an old labor certification without going through all the steps of ensuring that the old job de- Can’t Miss Events! scription is accurate and the new employee meets all of the require- ments as they are stated. Labor certification can be one of the most complicated and frustrating parts of an immigration attorney’s practice and will 2 often be avoided through any means possible. Where the labor 2007 AILA Fall CLE Conference certification process is necessary to ensure an employee’s perma- September 28, 2007 nent immigration, taking these steps will improve the quality of the attorney’s submission and increase the client’s level of satisfac- Harrah’s Lake Tahoe tion with the process. ILT Lake Tahoe, NV www.aila.org/fall William A. Stock is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP, an immigration law firm with offices in Philadelphia and New York. Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association. 2007 AILA Fall Fundamentals Notes of Immigration Law Conference October 29–30, 2007 1 20 CFR §656.17(h)(1). See also Matter of Information Industries, 1988-INA-82 (BALCA 1989) (en banc). Seaport Hotel 2 See S. Borene, “50 Ways to Leave Your Labor … Cert,” II Immigration and Na- Boston, MA tionality Law Handbook 399 (AILA 1994–95 Ed.). www.aila.org/fundamentals
20th Annual AILA California Chapters Conference November 8–10, 2007 Omni San Diego Hotel San Diego, CA www.aila.org/ca
10th Annual AILA New York Chapter Immigration Law Symposium December 13, 2007 New York Marriott Marquis Hotel New York, NY www.aila.org/ny
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54 Immigration Law Today July/August 2007 AILA’s Online Career Center See for yourself the advantages of searching the online AILA Career Center for industry jobs and for qualified candidates to fill them. Employers: Target your recruiting to reach qualified professionals nationwide. With an active job listing, you can search the résumé database to contact candidates, and get automatic e-mail notification whenever a candidate matches your criteria. Job Seekers: Whether you’re looking for a new job, or are ready to take the next step in your career, find the opportunity that you’ve been looking for. Post your résumé at no charge!
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July/August 2007 Immigration Law Today 55
Ad 1 11/13/03, 4:10 PM statuscheck✓ s Honors and Appointments ■ Mayor Michael Wildes of Englewood, Patriotic Immigration Commission of NJ, was appointed chairman of the Immi- the Alabama Legislature. ■ Nancy Morawetz received the gration Task Force recently established Daniel Levy Memorial Award for her by the New Jersey League of Municipali- Announcements role as a leading immigrants’ rights cam- ties to study the immigration effects on municipalities. paigner and her scholarship in the field of ■ Michelle L. Lazerow served as a immigration law, which was presented at panelist at the World Jurist Associa- ■ Daniel L. Weiss the AILA Annual Conference in Orlando was re-appointed to a tion Conference in Los Angeles on on June 13, 2007. two-year term on the New Jersey State Bar “Worldwide Immigration/Migration Is- Board of Trustees Association’s . sues & the Rule of Law.” ■ Miriam Bustamante-Riedmiller has ■ been appointed to serve as a member of the Kristina K. Rost has received the ■ Elizabeth Blandon obtained a grant board on the Professional Responsibil- “Outstanding Immigration Lawyer” award of withholding for unaccompanied Guate- ity Hearing Committee by the District from the Massachusetts Brazilian Im- malan minor siblings who were orphaned of Columbia Bar Association. migrant Center for her outstanding legal when Hurricane Stan destroyed their service to the Brazilian community. small Mayan village in 2005. ■ Alice Yardum-Hunter was awarded ■ the “Super Lawyer” designation by Law Boyd Campbell has been appointed ■ Cowan Miller & Lederman has and Politics and the Los Angeles Magazine by Alabama Speaker of the House Seth moved offices to 1000 2nd Ave., Ste. 1620, for the fourth consecutive year. Hammett to serve on the Joint Interim Seattle, WA.
■ Victoria L. Block has relocated of- On the Move fices to 1425 S. Glenburnie Rd., Ste. 9, n The Law Office of Philip M. on Hague Convention and inter- New Bern, NC. Levin is pleased to announce the country adoptions. return of Don L. Pangilinan to ■ Joseph Reina and Brian K. Bates the firm, who has spent the past n Peter Williamson has joined the are pleased to announce the opening of several years working in various firm of Chamberlain, Hrdlicka, Reina & Bates Immigration Law in-house positions. White, Williams and Martin in its Group, with offices in Houston, Dallas, Houston office. Austin, and Chicago. n Ann Bradley, formerly of DLA Piper, has joined Duane Morris as a n The Reina & Bates Immigra- ■ Irwin J. Berowitz, formerly a partner partner in the Employment and Immi- tion Law Group is pleased to at Bretz & Coven, LLP, and Ruchi Thak- gration Practice Group in San Diego. welcome Robert D. Kershaw as a er, formerly of the Law Office of Ruchi partner in their Austin location. Thaker, P.C., are pleased to announce the n Avantika Rao is the new Immi- opening of Thaker Berowitz LLP, in n Badmus Immigration Law gration Program attorney at La Raza New York. Centro Legal, Inc., a nonprofit Firm, PC in Dallas welcomes community law center based in North- Michelle Richart as an associate ern California’s Bay Area. attorney. New Parents
n Steffas & Associates, P.C., n Leslie Abella Dahan has been Andrea Olivos-Kah and husband, Phil- formerly The Law Offices of Irene elected shareholder of Littler Men- ip Kah, welcomed a healthy baby boy, Steffas, P.C., is pleased to welcome delson, P.C. in Phoenix. Leslie Felipe Andrés, on June 8, 2007. Carine L. Rosalia-Marion as an works in the firm’s Corporate Migra- Trina Realmuto and husband, Kevin associate. Carine will join in the tion Practice Group and specializes Smith, recently adopted two children firm’s specialty in immigration and in high-volume and complex corpo- from Kazakhstan—5-year-old Masha adoption law, with special emphasis rate immigration issues. and 3-year-old Yegor.
Please send your “Status Checks” to [email protected].
56 Immigration Law Today July/August 2007 American Life Inc. page c3 LawLogix new page c4