SISKIND'S IMMIGRATION BULLETIN June 1, 2001 ... - Siskind, Susser

SISKIND'S IMMIGRATION BULLETIN June 1, 2001 ... - Siskind, Susser


June 1, 2001

E-mail subscribers as of 29 March 2001 – 29,246 persons (50 states/144


Published by Greg Siskind, partner at the Immigration Law Offices of

Siskind, Susser, Haas & Devine, Attorneys at Law; telephone: 800-748-

3819, 901-737-3194 or 615-345-0225; facsimile: 800-684-1267, email:, WWW home page: SSHD

serves immigration clients throughout the world from its offices in the US,

Canada and the People's Republic of China. To schedule a telephone or inperson

consultation with the firm, go to Writers: Amy Ballentine and Greg


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YEAR 2001














Dear Readers:

This week, the INS began processing cases using the new $1000 premium

processing fee. Applicants willing to pay an extra $1000 are now

guaranteed that there cases will be approved within 15 days. So far, the INS

is only using the premium processing fee for the following non-immigrant

visa categories: E-1, E-2, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, and

Q-1. Beginning July 1, 2001, H-1B, R-1 and TN visas will be added.

Immigrant visa petitions will probably one day make the list, but nothing is

yet scheduled.

The INS expects to earn $80 million in extra fees from this program and

claims this money can be used to improve processing for all of the

applicants who cannot afford the fee. Nevertheless, the fee is perceived by

many as un-American. Is it unfair that money can buy better treatment from

the government? Or is this really the American way? After all, the country

prides itself on having the most open market of western industrialized

countries along with the lowest taxes. For 225 years, people have flocked

to a country where the streets are “paved with gold.” And our immigration

system has long favored wealthier applicants who have money. The EB-5

green card is available to applicants willing to invest substantial money in

the US. People from developing countries trying to get a visitor visa to the

US typically have to show substantial financial resources in order to

convince consular officers to issue a visa.

My take on the situation is somewhat different. I am pessimistic that

Congress will ever adequately fund INS visa application processing. That

means that under the current setup, the only way customers can hope to

receive decent service is if they pay a lot more money. The premium fee is

one way to achieve this. What I suspect will happen is that most applicants

will start paying this fee because the costs associated with waiting several

months for a visa will usually be much more than $1000. In the long run,

this might be healthy. If applicants’ fees fund most of the program,

dependence on a fickle Congress will decline. Of course, this assumes that

the INS will actually use the money for what they promise. If the money is

really spent on enforcement instead of benefits, then we all have a right to

be angry.

In other news this week, we report on the issuance of regulations to handle

late amnesty cases. Several hundred thousand participants in the late

amnesty lawsuits will hopefully benefit from this section of the new LIFE


This week we have many of our regular features include Ask,

Legislative Update, Border News, News Bytes and Government Processing

Times. We also have a guest column from Gary Endelman.

In firm news, last week I delivered a talk to the corporate section of the

Memphis Bar Association about spotting immigration traps in mergers and

acquisitions. If you are a corporate lawyer or a human resources

professional and believe you could benefit from the course materials from

this speech, drop me an e-mail at and I will send them

to you. We also wanted to remind readers that our monthly telephone

seminar is coming up on Monday. We will be discussing E-1 and E-2 visas.

To sign up for the program, go to

And finally, as always, we remind readers that this newsletter is published

by Siskind, Susser, Haas & Devine, a law firm that represents clients

throughout North America. If you are interested in scheduling a telephone

consultation to discuss immigration questions you may have or to discuss

the possibility of Siskind, Susser, Haas & Devine handling your

immigration case, please go to In most

cases, we are able to schedule a consultation within two days and we can

often accommodate evening and weekend appointments.

Thanks again for your continued loyalty.

Greg Siskind



H.R. 1918, the Student Adjustment Act of 2001, introduced by Rep. Chris

Cannon (R-UT) would amend the Immigration and Nationality Act to allow

states to determine whether a foreign national is a resident of the state for

in-state tuition purposes. It would also allow children under 21 who are in

US schools to apply for adjustment of status.

H.R. 1984, the English Language Unity Act of 2001, introduced by Rep. Bob

Barr (R-GA), would make English the official language of the US.

H.R. 1996, the Civil Rights for International Travelers Act, introduced by

Rep. John Lewis (D-GA), would forbid US Customs officers from engaging

in racial profiling in determining which people seeking entry to the US to


H.R. 2030, introduced by Ileana Ros-Lehtinen, would prohibit the issuance

of a visa to physicians from the People’s Republic of China who are

seeking entry to the US to study organ and tissue transplantation.


S. 939, introduced by Sen. Kay Bailey Hutchison (R-TX), would amend the

Immigration and Nationality Act to confer automatic citizenship on adopted

children of US citizens serving in the military overseas.


The Texas state legislature recently approved two bills, one that would

allow undocumented residents of the state to obtain driver’s licenses and

one that would allow undocumented students to attend state universities at

in-state tuition rates. Both bills passed by unexpectedly large margins.

Gov. Rick Perry is expected to sign them.




This week the INS released regulations to implement the changes to the

Nicaraguan Adjustment and Central American Relief Act (NACARA) and the

Haitian Refugee Immigration Fairness Act of 1998 (HRIFA) created in the

Legal Immigration Family Equity Act (LIFE Act). The LIFE Act amended

these two laws to allow nationals of Cuba, Haiti and Nicaragua to apply for

adjustment of status without being subject to certain barriers to admission.

The LIFE Act ended the practice of reinstating removal orders against

NACARA and HRIFA beneficiaries. Reinstatement occurs when a person

who was under a deportation order leaves the US voluntarily and then

reenters. Upon their reentry, the previous deportation order goes into

effect again. After the LIFE Act, this is no longer the case with NACARA

and HRIFA applicants. This is important because people subject to

reinstatement of a removal order are not eligible for any immigration


Also, the LIFE Act made two grounds of inadmissibility inapplicable to

NACARA and HRIFA applicants. These are being present in the US within

five years of being deported and status violations totaling more than one

year. This provision allows people who have been deported to apply for

NACARA or HRIFA benefits without requiring them to go through the full

process of seeking a waiver of inadmissibility.

People whose applications were previously denied but are now eligible

because of the LIFE Act can reapply for NACARA and HRIFA benefits may

file a motion to reopen their cases. They must not be currently in

deportation proceedings. People who are subject to a final deportation

order may also reopen their cases, but must file the motion to reopen by

June 19, 2001.




On June 1, 2001, the INS began accepting applications for legalization

under the Legal Immigration Family Equity Act (LIFE Act). This program

should, at long last, bring an end to the 1986 amnesty.

In 1986, then President Reagan signed the Immigration Reform and Control

Act. This law allowed many people in the US without INS authorization to

make an application to legalize their status. Those eligible had to have

entered the US before January 1, 1982, and have been unlawfully in the US

since then. A number of applications were rejected by the INS, leading to a

number of lawsuits, three of which were particularly important. Through

these lawsuits, Catholic Social Services v. Meese, League of United Latin

American Citizens v. INS, and Zambrano v. INS, the INS was found to have

misapplied a key provision of the 1986 law, resulting in thousands of

improper denials.

The LIFE Act includes a provision by which people who applied for class

membership in any of the three cases can now apply for adjustment of

status. To be eligible for adjustment of status, the applicant must meet the

following requirements:

• Have applied for class membership in one of the three cases

before October 1, 2000;

• Have entered the US before January 1, 1982, and have been

unlawfully present in the US from that date until May 4, 1988;

• Have been continuously physically present in the US from

November 6, 1986 to May 4, 1988;

• Be admissible as an immigrant

• Have not been convicted of a felony of three or more


• Have never been engaged in the persecution of a person based

on race, religion, nationality, membership in a particular social

group or political opinion; and

• Either be able to demonstrate basic citizenship skills (i.e.,

knowledge of English and US government) or be pursuing a

course to achieve these skills.

Even if a person was rejected as an applicant for class membership, they

can still apply under the LIFE Act.

There will be a one-year period for filing adjustment applications under the

LIFE Act, beginning on June 1, 2001, and ending on May 31, 2002. The

filing fee for the basic adjustment application is $330 instead of the

standard $220 for most applications. This is because more work is needed

to process the LIFE adjustment applications. All applications will be filed

with a single office in Chicago, IL.

Upon filing, the application will first be reviewed to ensure that the

applicant meets the most important eligibility requirement, that they sought

membership in one of the class action lawsuits. If the evidence of this is

insufficient, the INS will issue a request for additional evidence. If the case

is accepted, after the background check, the file will be transferred to the

district office for further review and an interview with the applicant.

While the application is pending, the applicant can receive work and travel

authorization if they desire. These applications should be filed with the

primary adjustment application.

LIFE adjustment applications can be filed from abroad. They are filed with

the same office in Chicago, and the applicant will be interviews at a district

office. The current regulations do not provide information about how

people who apply from abroad will be admitted into the US, but does make

clear that there is currently no authorization for people in this position to

enter the US.

The LIFE Act also included amendments to the Family Unity program,

which allows spouses and unmarried children of legalization applicants to

remain in the US. To qualify for family unity benefits under the LIFE Act,

the family member of the LIFE legalization applicant must:

• Currently be the spouse or unmarried child of a person eligible for

LIFE legalization;

• Have entered the US before December 1, 1988, and have resided in

the US since then, and

• Be in the US currently.

While the LIFE Act does provide family unity benefits to people no longer in

the US, the current regulations do not provide a way to deal with these

cases. A future rule should address procedures in these cases. The family

unity application is filed with the same Chicago office. If it is determined

that the applicant is eligible for family unity benefits, they will receive one

year of work authorization, and will be protected from deportation based on

a number of grounds.

Detailed instructions on filing for adjustment of status under the

legalization provision of the LIFE Act are available on the INS website at




One of the survivors of a deadly border crossing last week has been

arrested and charged with smuggling. Fourteen people died after being

abandoned in the Arizona desert without adequate water. Officials believe

two other people were involved in the smuggling, but have not identified

any suspects. The person arrested faces the possibility of the death

penalty if convicted.

In the wake of the tragedy, a number of human rights groups have become

more vocal in their calls for changes to US border policy. The California

Rural Legal Assistance Foundation held a demonstration at a paupers’

cemetery in Southern California where hundreds of unidentified border

crossers are buried each year. Along with the American Civil Liberties

Union, the California Rural Legal Assistance Foundation has filed a request

with the Inter-American Commission on Human Rights that it urge a

change in US border enforcement strategies. Other advocacy

organizations are contemplating similar action.

The deaths have focused new attention on the development of US border

strategy since 1995, when Operation Gatekeeper in San Diego and

Operation Hold the Line in El Paso were launched. They were followed by

similar crackdowns in other urban areas on the border. Whether the

crackdowns are contributing to a decrease in the number of migrants is

debatable, but it is clear that they are causing migrants to attempt to cross

the border in remote areas where they face more risks.

Responding to these risks, which stem primarily from the heat and lack of

water in the desert, a number of organizations have started campaigns to

place water stations in the region. One group in Arizona and another in

Mexico have begun creating such stations. It is impossible for migrants to

carry all the water they need during the desert trek, and advocates hope

that the water stations could help prevent deaths from dehydration. The

Arizona group, Humane Borders, says that it had asked the US government

for permission to erect stations on public land in Arizona, a request that

was denied. The group’s president, Rev. Robin Hoover, says that had they

been allowed to place the stations where they asked, they would have been

accessible to the group that died last week.





Gary Endelman practices immigration law at BP Amoco Corporation. The

opinions expressed in this column are purely personal and do not

represent the views or beliefs of BP Amoco Corporation in any way. This

article is copyrighted by ILW.COM and is reprinted with permission. You

can read other articles by Mr. Endelman, and subscribe to future articles at

What's going on here? Four local groups in Pittsburgh are awarded

$800,000 in foundation grants this past month to entice new immigrants to

come, persuade international students to stay after graduation and educate

the community on the virtues of diversity. Philadelphia is planning to

create an "Office of New Philadelphians" patterned after similar

experiments in Boston and the Big Apple. Philly Councilman James

Kenney hunts for foundation dollars to promote the City of Brotherly Love

in US consulates abroad and open up more gates at the airport for flights

to and from Asia and Latin America. In Louisville, Kentucky, a freshly

minted "Office of International and Cultural Affairs" will post a roster of

interpreters on its web site by the end of next month. Last December, the

Albuquerque City Council declared their home town to be "immigrant

friendly" and set aside $50,000 to fund a resource service for immigrants.

The State of Iowa is actively looking for folks from far away to become part

of the Hawkeye family.

Only a few years ago, if my aging memory serves, these same city officials

were loudly calling for the gates to be shut against further migration that

could only compete for jobs, go on welfare, and cause the cost of social

services to skyrocket. What happened? The 90s did. As the middle class

hightailed it to the suburbs in their SUVs, and the labor shortage was

aggravated by an unprecedented national economic boom, young

immigrants with large families repopulated urban America and provided the

workers to do the jobs that suddenly could not be filled. Far from fighting

to keep immigrants out, America's cities now fall all over themselves to

ing them in. This is especially true in those urban areas that were losing

population, often leaving behind those who could not relocate, the elderly

and the poor. Pittsburgh said good bye to 9.5% of its population in the

1990s; 4% of Philadelphia left; 5% of Louisville went somewhere else. By

contrast, during this same decade, Miami and New York welcomed 337,174

and 974,599 immigrants respectively according to the 2000 Census. By the

end of the century, the foreign-born made up 15.5 % of Miami and 11.2% of

New York City.

What does all of this mean? It means that, for the first time in American

history, immigration is a national not a regional or local phenomenon.

Places that never knew or cared about immigration now realize that it can

reverse population decline, replenish fading neighborhoods, restore ethnic

balance, and promote new business creation. No longer is immigration

limited to traditional enclaves such as Texas, New York, Florida and

California. Immigration has visited the US, and the country as a whole will

never be the same. The consequences of immigration going national

cannot be overlooked. The paradigm of employment-based immigration

must begin to shift away from one based on responding to the specific

needs of individual employers towards the larger requirements of local,

state and regional economies. The only reason employment-based

immigration exists at all is to benefit the United States. It is more important

to help Iowa or Pittsburgh or the depressed mill towns of New England

than to assist any one company. This does not mean that the current model

of employer sponsorship must be torn up root and branch to be cast aside

onto the dustbin of history. It does mean that an alternative, though still

experimental model, should be given a trial run. Abolish the Diversity

Lottery for which there is no sustaining rationale. Give out these same

55,000 numbers as credits to the states much as is now done with carbon

credits for emissions control. Allow the states to trade or exchange these

credits between themselves since no one knows what the different

economies of America need more than the people who live and work there.

Immigration can and should be used as a practical incentive to revive those

parts of the nation that have been left behind. The means is there to do it if

we have but the will to employ the magic bullet that demography has given




YEAR 2001

The INS recently provided statistics on its asylum workload for the first six

months of fiscal year 2001 (October 2000 through March 2001).

Nationality Pending Cases Cases Cases Pending

10/01/2000 Filed Granted Denied 03/31/2001

TOTAL 325,900 27,827 9,465 827 328,259

Afghanistan 152 131 107 0 148

Albania 251 704 161 24 415

Armenia 535 1,058 488 49 603

Azerbaijan 159 251 132 6 221

Bangladesh 256 53 27 3 285

Brazil 391 75 13 4 405

Bulgaria 370 70 32 5 377

Burma 342 1,058 217 9 1,076

Byelarus 37 58 27 1 34

Cambodia 55 45 7 3 76

Cameroon 168 250 166 10 155

China 3,978 3,748 1,552 61 4,626

Colombia 1,234 3,329 1,311 61 2,395

Congo 109 237 93 3 169

Cuba 2,389 78 30 5 2,395

Dem. Rep. 101 106 73 5 76


Egypt 202 270 160 13 186

El Salvador 172,609 821 51 82 167,593

Eritrea 72 112 71 5 73

Ethiopia 788 735 473 23 854

Fiji 680 304 91 31 737

Georgia 78 112 71 5 73

Guatemala 98,547 490 60 17 97,331

Guinea 156 209 45 8 212

Haiti 15,354 2,461 511 20 16,218

India 1,939 904 415 21 2,096

Indonesia 305 526 208 64 362

Iran 603 472 315 15 625

Iraq 199 204 153 6 200

Kenya 65 57 29 0 78

Liberia 861 644 274 73 1,029

Mauritania 584 489 39 4 795

Mexico 1,042 3,309 20 8 1,795

Pakistan 467 191 99 9 483

Peru 308 92 35 4 308

Philippines 787 65 1 12 784

Romania 1,030 73 30 2 1,022

Russia 876 391 186 24 875

Rwanda 37 45 23 0 45

Sierra Leone 252 480 119 10 367

Somalia 977 949 577 4 1,046

Sri Lanka 73 57 39 0 70

Stateless 105 59 41 5 75

Sudan 213 300 198 20 232

Togo 58 82 35 3 82

Turkey 52 47 24 0 61

Uganda 125 128 62 2 135

Ukraine 287 120 38 12 291

Unknown 41 50 1 0 32

Uzbekistan 61 98 39 0 76

Venezuela 21 43 20 1 22

Yemen 76 43 12 2 85

Yugoslavia 551 305 156 8 529

Other 17,892 859 331 66 17,928



In an unusual decision, last week the Board of Immigration Appeals

reversed an order deporting a man to Haiti. Peterson Polidor had been

ordered deported because of a burglary conviction. Polidor had

widespread community support in his effort to avoid deportation to a

country where he had not lived since age 11, and where he no longer had

any family.


This week in Los Angeles, police discovered 74 undocumented immigrants

being held in a drop house. Police say the immigrants were being held by

smugglers waiting for family members to pay a ransom, in addition to the

fee they already obtained to smuggle the people into the US, as much as




Reyes-Gaona v. North Carolina Growers Association, Inc., Fourth Circuit

In this case, the court ruled that the Age Discrimination in Employment Act

does not cover foreign nationals seeking a US job from abroad.

Luis Reyes-Gaona, a Mexican national, sued the North Carolina Growers

Association (NCGA) for violating the Age Discrimination in Employment

Act (ADEA). Reyes-Gaona was told that the NCGA would not hire him

because he was over 40.

Under the ADEA, the plaintiff must prove that they were qualified for the job

sought. Based on this, and the fact that Reyes-Gaona was in Mexico and

not authorized to work in the US, the district court dismissed the case.

Reyes-Gaona appealed.

The Fourth Circuit began it’s examination of the case by noting the

longstanding notion that US laws are meant to apply only in the US, unless

Congress specifies otherwise. It then examined the discrimination

prohibitions in the ADEA, which forbid an employer from making an

employment decision based on a person’s age. It clearly applies to US

citizens working abroad for US companies. Because Congress made

explicit statements about the territorial application of the law, and did not

state that it was to cover applicants for US jobs who were outside the US,

the court found the ADEA was not intended to apply to cases like Reyes-

Gaona. Therefore, it upheld the dismissal of the case.

The opinion is available online at,0523-Reyes.pdf.


Valioukevitch v. INS, Eighth Circuit

In this case, the court upheld the denial of asylum.

Viktor Valioukevitch, a citizen of Belarus, entered the US as a visitor in

1994. He overstayed his visa and in 1997 was placed in deportation

proceedings. Valioukevitch sought asylum, saying that he would be

subject to religious persecution in Belarus. The application was rejected

by the Immigration Judge, who found that any hardship he had suffered

was not because of his religious beliefs, was not inflicted by the

government, and that it did not rise to the level of persecution. The Board

of Immigration Appeals affirmed and Valioukevitch appealed.

The court found that the Immigration Judge and Board of Immigration

Appeals had ruled correctly. Not only was Valioukevitch not harassed by

the government, government officials had punished those who did. Citing

State Department reports about conditions in Belarus, the court found that

Valioukevitch did not face a well-founded fear of persecution.

The opinion is available online at,0529-Valioukevitch.pdf.



California Service Center Processing Times

Jurisdiction: Arizona, California, Hawaii and Nevada.

(Just In Time Report)


Petition Type Case Date Data Entry

I-90 01-123 03/07/01

I-102 00-121 03/20/00

I-129 L 01-171 04/30/01

I-129 H1B COS/CN 01-145 03/30/01

I-129 H1 EOS 01-144 03/29/01

I-129 H2/H3 01-173 05/02/01

I-129 E 01-153 04/09/01

I-129 O/P/Q 01-181 05/11/01

I-129 R 01-099 02/08/01

I-129 F Vacant Vacant

I-130 (IR) Spouse 01-171 04/30/01

I-130 (IR) M/C 01-156 04/12/01

I-130 (IR) Other 01-015 10/24/00

I-130 Pref. Spouse 98-078 01/23/98****

I-130 Pref. M/C 99-068 01/07/99****

I-130 Pref. Other 98-060 12/26/97****

I-131 01-150 04/05/01

I-140 A& B, E-1 – E-2 01-138 03/28/01

I-140 C E1-3 01-109 02/20/01

I-140 D E2-1 01-109 02/20/01

I-140 E E-3 01-117 02/28/01

I-140 G EW – 3 Vacant Vacant

I-360 FPL/Widows/Widowers Vacant Vacant

I-360 BPL/Religious 01-132 03/16/01

I-526 01-117 02/28/01

I-539 00-246 08/25/00

I-485 Ready to Adjudicate 98-066 01/01/98***

I-751 00-196 04/13/00

I-765 30 day 01-169 04/28/01**

I-765 90 day 01-162 04/19/01**

I-817 (initial) 00-155 05/02/00

I-817 (extensions) 99-117 03/19/99

I-824 DIVI Vacant Vacant

I-824 DIVII Vacant Vacant

I-824 DIVIII 98-250 09/23/98

I-829 99-092 12/28/98

"Case date" means the fiscal year and the number of the day

of the year (e.g. 001 = January 1st)

"Data entry" means the receipt date of the last case taken from

the shelf assigned to the officer as of the date of the JIT

Report. It does not mean that the case is adjudicated on that


"Work days" exclude Saturday, Sunday and holidays.

Source: American Immigration Lawyers Association



On June 1, 2001, the INS began its premium processing program. Under

this program, for a $1,000 fee, applicants for E, H, L, O, P, and Q visas will

be guaranteed a decision or a request for additional evidence within 15

calendar days of submission.


INS officials have decided to allow Meriam Al-Khalifa to remain in the US.

In November 1999, the member of the royal family of Bahrain became

international news when she snuck into the US with the assistance of her

husband, a former US Marine who she met in Bahrain. The INS originally

sought to deport her on the basis that she used fraudulent documents to

enter the US. Government attorneys later concluded that the evidence of

this was not substantial, and decided against pursuing deportation. The

INS decision to drop the deportation effort means that Al-Khalifa will not

need to present an asylum claim, which would have been based on the

treatment of Muslim women who marry non-Muslim men.


Last week President Bush rejected Secretary of State Colin Powell’s choice

to head the Population, Refugees and Migration Bureau within the State

Department. Powell has selected Alan Kreczko, a career civil servant who

is currently an assistant administrator in the Bureau. Instead, the White

House has nominated John M. Klink, a dual citizen of the US and Ireland,

who is currently a member of the Vatican’s delegation to the United

Nations. Klink is opposed to abortion rights, a matter that concerns

refugee advocates. Klink is known to oppose family planning and the use

of condoms in preventing the spread of AIDS. Klink’s nomination must be

approved by the Senate


Last week, in a disturbing incident, Rep. David Wu (D-OR), the only

Chinese-American in Congress, was stopped by security guards and

repeatedly questioned as to his identity. Wu, who was born in Taiwan, is a

US citizen, and presented his congressional identification card to the

guards. Wu has written a letter to the Secretary of Energy, former Chair of

the Senate Immigration Subcommittee, Spencer Abraham. The Department

of Energy had invited Wu to speak about the progress of Asian Americans

in the US, something Wu calls “the ultimate irony.” Abraham apologized,

and said security measures would be reviewed. It is Department of Energy

policy to question people about their citizenship. Wu expressed concern

that this policy could be enforced in a racially selective way. The

Department of Energy has come under fire for alleged racial profiling,

especially in the wake of the almost complete exoneration of Wen Ho Lee, a

Taiwanese born researcher who was accused of spying for China.


The Tonhono O’odham tribe, whose lands cover the US-Mexico border in

Arizona, are requesting the federal government to recognize all members of

the tribe as US citizens. They say that they are often accosted by Border

Patrol agents and treated as undocumented immigrants. The tribe’s land

was divided between the US and Mexico after the Mexican-American War.

Most Tonhono O’odham remained in the US, but about 1,500 of the 24,000

current members live in Mexico. Because they are not recognized as US

citizens, travel to the US can be risky.


In a recent memorandum, the Department of State issued a notice that it

will begin advising visa recipients of the health risks, both physical and

mental, of female genital mutilation, as well as the criminal penalties for

performing such actions in the US. The advisory includes a description of

the practice and the health risks that can result.


This week the Iowa Advisory Committee to the US Commission on Civil

Rights issued a report on the treatment of immigrants in the state.

According to the report, recent immigrants are struggling to secure access

to social services and legal protections. The report does not make many

recommendations, noting that more fact-finding is required to do that. It

does suggest that more minority policy officers be hired to reflect the

increasing diversity of the state. The report is available on line at


Last weekend in East Boston, police shot and killed Jose Pineda, an

immigrant from El Salvador. While on his way home from work, he came

upon two undercover police officers questioning two other men. Pineda

ran away, and was chased by the police. They identified themselves as

police, but Pineda did not understand English. Pineda stabbed one of the

policemen, and the police then shot him six times. The police are

investigating whether excessive force was used, but all sides say the event

is an indication of the need for increased outreach to Hispanic

communities, and increased efforts to ensure that the police all able to

communicate with non-English speakers.


According to a poll conducted by the Tomas Rivera Policy Institute in

California and the University of Tamaulipas in Mexico, residents on both

sides of the border share basic views about the border. There is

widespread agreement that there should be freer movement of workers,

more investment, and increased environmental protections. Ninety percent

of Mexicans polled and sixty percent of Americans believe that the North

American Free Trade Agreement should be amended to permit easier

movement of workers.


At its annual conference this week, NAFSA: Association of International

Educators came out in firm opposition to the INS plan to track foreign

students in the US. The tracking program was enacted as part of the 1996

immigration law, and was spurred on by the fact that some of those

involved in the 1993 World Trade Center bombing had entered the US on

student visas. The tracking program has not yet been implemented, in part

because of debate about who will collect the $100 fee from the students.

The INS and the State Department want schools to collect it, and the

schools are reluctant to do so. The program is expected to begin on

September 30 of this year.




Previously we discussed the residency and physical presence

requirements that naturalization applicants must meet. This week we

discuss the remaining requirements.

Naturalization applicants must be able to read, write and speak ordinary

English. There is no specific test for this, and the applicant’s ability with

regard to English is determined in the course of the naturalization

interview. A few limited groups of applicants are exempt from this

requirement. Those exempt are people who, because of a physical

disability are unable to learn English, those with a mental handicap that

makes it impossible to learn English, people over age fifty who have lived

in the US as permanent residents for at least twenty years, and people over

age fifty-five who have been permanent residents for at least fifteen years.

In the past few years, the INS has adopted definitions of physical and

mental disabilities that are similar to the definitions used by federal

agencies that run disability programs. The impairment must be “medically

determinable,” which means that it must be based on an anatomical,

physiological or psychological condition that can be shown by accepted

medical techniques to render the person unable to learn English. If

reasonable steps could be taken to learn English, for example, a blind

person using Braille, or a deaf person using sign language, the disability

waiver is not available. Even if the disability waiver is granted, most

applicants must still demonstrate that they understand and agree with the

oath of allegiance. Under a law passed late last year, however, a waiver of

the oath is provided for people who cannot understand it because of a


Naturalization applicants must also demonstrate a knowledge and

understanding of the history and government of the US. This is done by

asking the applicant a number of questions from a standard list of 100

questions. Generally, people who are exempt from the English language

requirement are not exempt from this requirement. They can use an

interpreter during the examination. Those exempt from the civics

requirement include those who are physically or mentally unable to

comply. Also, applicants who are over age sixty-five and have been

permanent residents for at least 20 years are given an easier test, having to

answer only six questions correctly from a list of 25.

Naturalization applicants must also demonstrate good moral character.

The five years immediately preceding the application are closely examined,

and certain criminal offenses during this period will automatically preclude

a finding of good moral character. The applicant’s entire life can also be




My boyfriend will be coming to the U.S. to work for a German-owned

company on an E visa. If we should later decide to get married (I am a US

citizen by birth), is there any law that says he cannot stay in the U.S. and

travel internationally for work while we file an adjustment of status? Will he

still have work authorization? If so, under what visa status will his work

authorization be?

After filing for adjustment of status, he can continue to work in the U.S. on

his E visa or he can file for an employment authorization document (EAD).

Before traveling abroad, he will have to apply for advance parole to avoid

the termination of his pending application for adjustment. Note, however,

that this requirement does not apply to aliens who have applied to adjust to

permanent resident status and who maintain H-1 or L-1 status, or their


Is there a limit on how many H-1B visas an employer can sponsor? If there

is no limit, can a company have 100% of its employees working under H-1B


While there is no statutory limit on the number of H-1B visas an employer

can sponsor, the INS does scrutinize the financial history of the H-1B

sponsoring employer to make sure the employer has the financial

resources to pay each H-1B employee the wages set forth in the labor

condition application (LCA) filed with the Department of Labor. Likewise,

there is no prohibition against an employer having 100% of its workforce

on H-1B visas. However, in this scenario, the employer would be

considered to be "H-1B dependant," a statutory categorization that

subjects the employer to additional regulatory requirements when

participating in the H-1B program.

I got a green card through consular processing last month. How long do I

have to work for the employer who sponsored my green card before

leaving for another employer?

The entire green card process is based on the intent of the employer to hire

the worker when the green card is approved, as well as the intent of the

employee to work with the employer after approval. If you leave the

sponsoring employer shortly after receiving your green card, the INS could

conceivably determine that you never intended to work for the sponsoring

employer, and thus revoke your green card. Most immigration attorneys

generally advise that employees should remain with their sponsoring

employer for at least six months to one year, with one year being the more

conservative recommendation.




The Alaska Supreme Court recently issued a decision that will have a

significant impact on foreign nationals living in the state. In the case, State

v. Andrade (available online at,

the court ruled that certain non-citizens lawfully in the US are eligible for

Permanent Fund Dividends (money the state has received from oil and gas

revenues and distributes to residents of the state).

In a previous case, the Alaska Supreme Court had ruled that

undocumented immigrants were not eligible for PFDs, but left open the

issue of whether others might be eligible. Four members of a family

sought the dividends. There were two US citizen children, a permanent

resident mother, and a father who had applied for asylum. The state denied

the funds, and the family filed suit. The children were found ineligible

because of the parents’ status.

Alaska law requires a person to be “lawfully admitted for permanent

residence in the US” to be eligible for PFDs. The court found that the most

important issue involved in interpreting the meaning of this requirement is

the intent of the foreign national. The plaintiffs, represented by Alaska

immigration lawyer Margaret Stock, argued that because the statutory

language mirrored language in the Immigration and Nationality Act, it

should be given the same effect, and that because a number of people who

would be considered “lawfully admitted for permanent residence in the US”

under federal law were excluded from PFD eligibility, the state’s rules were

unconstitutional. The court disagreed, finding that while the language was

similar, the state statute was not to be interpreted the same as the federal

one. The court found that the state statute should be interpreted to mean

lawfully in the state and intending to remain indefinitely.

The state argued that immigrants not admitted for permanent residence

could not form the intent to remain in the state, and therefore were not

eligible for PFDs. The court disagreed, noting that while in most cases

someone who is not a permanent resident cannot intend to remain in the

US permanently, there are some cases where this is allowed. For example,

certain nonimmigrant visas, including Hs and Ls are known as dual intent

visas, meaning that the person holding them is not required to demonstrate

their intent to depart the US after their period of authorized admission.

Because of this, clearly some people who are not permanent residents can

nonetheless have the intent to remain in the US permanently. These

people, the court found, are eligible for PFDs.

Hundreds of people are expected to benefit from this ruling, including

people with pending applications for adjustment of status and asylum.



The Department of State recently issued a memorandum dealing with the

issuance of B-1 (business visitor) visas to people who enter the US and

perform building and construction work, which generally is not allowed on

a tourist visa. In some cases, however, such employment is permissible

while on a tourist visa. The purpose of the memo is to clarify when such

employment is allowed.

Under the Foreign Affairs Manual, which is used by State Department

consular officers in issuing visas, business is defined to not include

localized employment or labor for hire. It also provides that building and

construction work is local employment. There is an exception, however,

that states that if what is being done is supervision and training of others

engaged in building and construction work is not local employment,

assuming that the visa applicant is otherwise eligible for a B-1 visa. Also,

people who are going to be performing after sales services may perform

such work on a B-1 visa.

After reviewing these guidelines, the State Department memo states

unequivocally that a B-1 visa may not be granted to someone performing

building or construction work, except if the person will not be performing

that work themselves, and will be acting as a supervisor or trainer.

Furthermore, simply because the project that will be worked on is unique,

for example a religious structure, or because the applicant has specialized

skills is not the basis for issuing a B-1 visa.

In order to ensure uniformity among US consulates, the State Department

instructs consular officers with questionable B-1 applications to request an

advisory opinion.


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