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  1. Bloggings by Roger Algase: Immigrants as scapegoats

    According to the media, public anger and resentment against public employee union members are growing as more and more people come to believe right wing propaganda that public employee benefits are exorbitant and responsible for budget deficits in many states. The public employees are in good company. Immigrants have been the target of this kind of invective for a long time. In each case, the most vulnerable and least powerful people in our society are being made the scapegoats for problems which were created by the people who have the most wealth and power.
    As income inequality grows in America and the living conditions of those who are not at the top of the pyramid become even more precarious, we can look for even harsher anti-immigration measures at all levels of government. Therefore, the current focus on Arizona and other states which are trying to usurp federal power over immigration may be misplaced. We can expect to see more draconian immigration enforcement activity and restrictive policies at the federal level, as the Obama administration tries even harder to curry favor with the large number of Americans who have been brainwashed into thinking that immigrants are the root of all evil in this country.
  2. 9th Circuit upholds preliminary injunction against enforcement of Arizona's immigration law. Comments by Roger Algase, Esq.

    On April 11,  2011, in a 2-1 decision, a three judge panel of the US Court of Appeals for the 9th Circuit upheld the District Court's grant of a preliminary injunction against enforcement of Arizona's draconian immigration law, S.B. 1070. The majority opinion, by Judge Richard A. Paez, held: "By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government's authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DSH agents. As a result, Section 2B interferes with Congress' delegation of discretion to the Executive branch in enforcing the INA."
    Nothing could be clearer than this on the subject of Arizona's attempt to usurp federal power over immigration enforcement. However, the dissent, by Judge Carlos T. Bea, tried to get around the federal pre-emption doctrine by giving an expanded and distorted meaning to the single word, "cooperate", in INA Section 1357(g)(10). This section, unlike Section 1357 (g) (1)-(9), does not require an agreement by state officers with the "Attorney General" [DHS] in order for state officers to participate in immigration enforcement. Instead, it gives state officers the power "to cooperate with the Attorney General" in certain aspects of immigration law enforcement, even absent an agreement with the federal government.
    Despite Judge Bea's attempt to twist the meaning of the word "cooperate" by using a very broad dictionary definintion, completely disregarding the context of the above statutory provisions, that would let Arizona do almost anything it wants under the pretext that is "cooperating" with the federal government,  it is clear that nothing in the INA gives the states the power to determine their own immigration enforcement policies or priorities.
    However, Judge Bea's opinion may pave the way for a possible attempt by the radical right bloc in the US Supreme Court to overturn federal pre-emption in immigration enforcement entirely and to give the states free rein in passing whatever punitive anti-immigrant measures they want. One single misinterpreted word or phrase can make a great deal of difference. Take, for example, the phrase "bear arms" in the recent Supreme Court decision invalidating gun control legislation in the District of Columbia. In that decision, the Court found that " bear arms" means the power of individuals to keep weapons in their homes for their own private purposes.
    This extremely broad definition, which is now the law of the land, would have no doubt surprised Julius Caesar, one of the greatest military commanders of all time.  In Caesar's Gallic War he writes that in the camp of his enemies, the Helvetii, there were records of the number of men who were "able to bear arms" ("qui arma ferre possent"). The obvious meaning was to bear arms for the purpose of joining an army or militia, not for private purposes. 
     Another verbal distortion by right wing ideologues which we have certainly not heard the last of, and one which may touch off a tsunami in America's immigration landscape, is the meaning of the phrase "subject to the jurisdiction" in the 14th Amendment's grant of birthright US citizenship. Anti-immigrant advocates who want to narrow the Constitutional protection of birthright citizenship for US born children to the vanishing point are trying to equate the term "jurisdiction" with "allegiance" to the US, a completely different concept.
    But "jurisdiction" comes from the Latin juris , the genetive case of ius, "law" and dictio, from the infinitive dicere, "to state". In other words, jusrisdiction simply means the power to say what the law is. In ancient Rome, this power was exercised by magistrates and other legal officers over both Roman citizens and non-citizens alike. "Jurisdiction" has nothing to do with allegiance.  By confusing jurisdiction of the United States with questions of their parents' citizenship, immigration status and allegiance, immigration opponents are hoping to render millions of American-born children of foreign born parents stateless or illegal from the moment of birth.
    For the moment, the 9th Circuit dissenting judge's attempt to overturn established law, namely federal pre-emption over immigration enforcement, by distorting the meaning of an isolated word or phrase has not succeeded. But we need to be on guard for more such attempts as Arizona's immigration law moves toward its inevitable rendez-vous with the US Supreme Court.
  3. E2 Visa Investors - What you need to know about Trademarks!

    As the economy rebounds we get more and more investors calling, emailing and writing to us about their new Business Ideas.  We are working on social media projects, crazy food business ideas, fitness and matchmaking projects. They all have catchy names and great logos. In additon to the solid E2 Visa advice we hope to offer, a bit of Trademark law could be useful as well.
    "Can I trademark this?" is a common question. The answer is generally, "Yes," but not for the reasons you may think. In the United States, you must create a trademark yourself. A patent does not exist before it is granted by the government. This is not true for trademarks. Rather like an automobile, you must have a trademark before you can register it. To have a trademark, you must create it.
    A trademark is a designation that distinguishes the source of goods or services, usually a brand name or a model name. A trademark is uniquely associated with one source. For example, FRISBEE brand flying discs come only from one company. Most people may not know that this company is Wham-O, Inc. of Emeryville, California. However, they do know that FRISBEE brand comes only from one company. The trademark gives products or services immediate recognition of the reputation and quality associated with the source of products or services.
    In the United States, "common law" rights are recognized in trademarks that are used in commerce. Israel, too, is a "use" country. Registration is important, but not mandatory. In "civil law" countries, e.g., in continental Europe, trademark rights are established by registration.
    In "use" countries, a trademark is established by adoption and use. Adoption is the selection of a trademark. Use comprises marking the trademark on the goods or on containers or on labels attached to the goods, depending on the physical form of the goods, and moving the goods in commerce. Placing the brand name on a web page or in an advertisement is rarely considered to be use. Company names and domain names have a complex interrelationship with trademarks that cannot be addressed in a brief article. However, you should not depend on those items to establish use. The surest way to establish use is by traditional marking.
    Once the trademark is adopted, it should be marked with the "TM" symbol when it is placed on labels or in advertising. Placing "TM" next to the mark does not require any formal action, e.g., filing an application. It is a notice to the world that you are claiming rights in a common law trademark. It should virtually always be done.
    Be sure that the trademark acts as a brand name and not as a description of the goods. If a designation describes the goods, it is no longer identified with the source, and it loses its trademark significance. Aspirin, escalator, and thermos were once trademarks in the United States. Now they are dictionary words.
    Conflict of one trademark with another depends on whether there is a likelihood of confusion in the marketplace as to the source of goods or services. Therefore, trademarks of others may be relevant, even if they are not the same and even if the goods or services are not the same. A likelihood of confusion may exist where the goods and services are related.
    For example, a company making Vera brand scarves sued a company selling Vera brand cologne. The court noted that the makers of Halston cologne also made Halston scarves, and that both products were sold on the same floor of a department store. A likelihood of confusion was established since a customer could reasonably believe that Vera cologne would have the same source as Vera scarves. Therefore, the Vera cologne makers had to "cease and desist." In contrast, in an old but classic case, Cadillac division of General Motors sued the makers of Cadillac dog food. The court did not believe that people would think that dog food would come from a motor vehicle manufacturer.
    It is a good idea to research the rights of others before introducing a trademark into the marketplace. Having to change a trademark can be very expensive in terms of replacing products and advertising and also in terms of having to reestablish a new brand name. Getting the proper professional services will reduce the level of risk associated with a new trademark.
    Registration is often sought because registered trademarks provide stronger rights and are easier to enforce. A number of different forms of registration are available, each with different costs and benefits. Individual states provide state trademark registrations.
    The United States Patent and Trademark Office administers the well-known federal trademark registration denoted by the symbol. United States trademark owners may file international trademark registration applications based on their United States applications. We always recommend to discuss your trademark case with a competent trademark Attorney in your state.
  4. Bloggings: Immigration and diversity - some international comparisons, by Roger Algase, Esq.

    America is not the only English-speaking country that is wrestling with questions of immigration and diversity. UK Prime Minister David Cameron recently announced that multiculturalism in his country was "bankrupt". This not only delighted the British right wing, but put him in the uncomfortable position of being praised by none other than the daughter and political successor of Jean-Marie Le Pen, the notorious French far right nationalist, who has often been accused of anti-Semitism and bigotry toward all minorities.
    In 2004, a British journalist, David Goodhart, published an article in The Guardian called "Discomfort of Strangers", in which he made clear that certain types of "strangers", namely Asian, African and Muslim immigrants, made him feel quite uncomfortable indeed.  Not content with attacking immigrants in Britain, Goodhart's article also took some gratuitous shots at Hispanics and African-Americans in the US. This past week,  he repeated some of thse same sentiments (minus the comments about America) in the Financial Times ("A cap on immigrants will fit business nicely", March 28).
    Goodhart's basic premise is that there is a distinction between societies based on "solidarity", (which in the case of Britain means the white population) and "diversity", which, of course, means a society that includes everyone else. For various reasons, he argued that a society based on "solidarity" functions better.
    This type of anti-immigration rhetoric based on ethnicity, or as some like to call it euphemistically, "culture", is hardly unknown in the US.  In the 1990's, Peter Brimelow, another Briton, but one based in the US, wrote essentially the same thing in his book "Alien Nation".  In 2003, Samuel Huntington, better known for his book "Clash of Civilizations",  published an anti-immigrant polemic: "Who Are We"? That book argued that "We" are essentially white and Protestant, and emphatically not Hispanic. Former third party presidential candidate Patrick J. Buchanan has been writing something similar (except for being more friendly to white Catholics) for many years.
    When a country adopts this kind of xenophobic (and I am trying to be polite here) ideology as its official immigration policy, this is not without its consequences. Recently, the UK has reduced its cap on permanent immigration and has also adopted procedures for immigrant  visa applications that have discouraged many non-Europeans, including both skilled professional workers and affluent visitors, from China and other countries, from coming to or trying to remain in the UK.
    This has brought a furious backlash from some of the people which any country in its collective right mind would regard as among its most desirable immigrants. For example, a young Chinese chemical engineer who studied in the UK,  has been working there (with authorization) and has paid substantial amounts in UK taxes, posted a furious comment on the Financial Times website claiming that her fellow Chinese professional workers were being treated like "pigs" by the British immigration authorities. One can only imagine what the effect will be on attitudes toward British businesses, products and individuals seeking to develop trade or contacts with the next generation of educated and influential leaders in China.
    In contrast, Canada has now gained such a reputation for acceptance of diversity, that, according to another Financial Times article, politicians in all political parties are campaigning heavily in ethnic neighborhoods ("Canada's parties target big ethnic vote", April 1).  The article also points out that attitudes toward immigration have hardened south of the border.
    The choice ahead for America is clear. Will we, in violation of all of America's ideals and traditions, move in the direction of Britain and become a country heading toward narrowness, exclusion and isolation, or will we follow the example of Canada and reach out to the diverse world around us with the spirit of welcome and acceptance for the most qualified immigrants, wherever they may come from?
    There is no doubt about which direction the Obama administration is taking us in now. We need to change course if we wish to recover not only what is best in America, but is in our best interests in the globalized world of the 21st Century.
  5. Options for Canadians to apply for the TN Visa at the Mexican Border Crossing

    As many of our readers know, Chapter 16 of NAFTA (Temporary Entry of Business Persons) provides for the simplified and expeditious temporary entry of businesspersons who are citizens of one country to go into the territory of another. It contains the reciprocal commitments of the United States, Mexico, and Canada to facilitate the temporary entry of businesspersons from one of the three countries. It grants temporary entry to four categories of businesspersons: (1) business visitors (admitted as B-1s); (2) traders and investors (admitted as E-1s and E-2s); (3) intracompany transferees (admitted as L-1s); and (4) professionals (admitted as TNs).
    It is important to note that although businesspersons who are citizens of Mexico are entitled to the benefits of NAFTA, they do not have the ease of access to the United States as do citizens of Canada. Canadians can apply for the TN work visa directly at the port of entry from Canada to the USA. Many Canadians are not aware that they can apply for the TN visa on at any Mexican-American port of entry as well.
    So how does it work, key requirements?
    Canadian Citizenship
    Present evidence of Canadian citizenship: birth certificate or passport. Even an expired passport is sufficient to establish citizenship, but an admission stamp will not be placed in an expired passport. Note that Canadian citizens are visa-exempt (with the exception of E-l/E-2) and are likewise passport-exempt for the time being.
    The Applicant Must Not Be Otherwise Inadmissible
    It is essential to ascertain in advance that you are not subject to any grounds of inadmissibility. It should be emphasized that Canadian pardons do not relieve Canadians of the U.S. immigration consequences of Canadian criminal convictions. Advance prep work regarding any prior criminal history is imperative to avoid embarrassment at the time of application and to allow time to submit a nonimmigrant waiver application (Form I-192) when required.
    Past arrest and criminal court records are much more accessible these days. We have encountered many Canadian professionals who have been left stunned at the border after being questioned about a conviction that may have occurred more than 20 years ago and has never come up in the applications process before. In addition to any criminal issues, it is also imperative to determine whether you have previously violated U.S. immigration laws. For example, unlawful presence or past fraudulent behavior may trigger a bar to admissibility.
    The Correct Filing Fee
    The fee for a Trade NAFTA (TN) visa at the POE is $50, There is no formal filing fee for dependents, but there is a $6 fee for each I-94 issued at a POE/PFI.
    Who Will Adjudicate your at the Border?
    At one time, POE/PFIs had designated free trade officers (FTOs) to exclusively adjudicate free trade applications. However, since 1999, immigration inspectors have had the authority to adjudicate applications.
    It is key, especially in complicated cases, to check in advance with the FTO or the most experienced inspector to find out his or her schedule. FTOs are generally more knowledgeable about category requirements and the acceptable evidence for each category than a non-specialist inspector. Your lawyer can sometimes call the POE/PFI in advance for this information. Many immigration inspectors will speak to your lawyer over the phone to provide helpful information that applies to your case. While the inspectors will never provide advance adjudication, it never hurts to check with them to help identify issues that may raise concerns or problems before presenting the application.
    Example from the San Ysidro port of Entry, Tijuana Border Crossing
    Take Highway 5 South to San Ysidro. San Ysidro is a community in the city of San Diego, California. It is located in the southernmost part of San Diego County, California, immediately north of the Border Crossing. Make sure you exit the Freeway at the last U.S.A. stop!!! Then make a left turn, and then a right turn to find parking.
    It is best to park near the Trolley Stop, at the parking lot just North of the "Jack In the Box". Next, Walk across the Border. Once you arrive on the mexican side in Mexico, near the taxis, you need to go across the bridge to your left. Get in line to cross back through the gates, which is the U.S. side.
    You must show your Canadian passport and other I.D. (like H1b) to cross back to the U.S.side. Once inside go to the building on the right which is for Permits. You need to wait in line there before being allowed to enter the building. Once inside the building you need to check in at the counter with the immigration officer. Then you will be asked to wait, until they have time to review the TN documents. Next they will go over the paper work with you.
    Once your TN is approved, you will go to the cashier window, pay $50 for the TN and $6 for the I-94. Keep your receipt!
    After departing the permit building, get into the line on your right heading back into the U.S. Once, you get to the front of the line, you will be asked by an immigration officer to show your entry documents (passport and TN), and your receipt that you paid.
    Lastly, proceed to the outside (any bags, or backpacks, purses, need to go through the x-ray machine). After, you are outside, proceed to your car, and take highway 5 north."
    Do you need an attorney with you?
    Attorney presence at the port of entry with you is very important. No attorney at application process can lead to dire consequences, especially when a less experienced officer is involved. The attorney can find out when the FTO or most experienced officers are on duty and, if there is a denial assist in the withdrawal or refiling process promptly. We have established a very successful interview escort process for our clients and feel that this service has become a important factor in case approval for Canadians applying at the Mexican Border. Email me for further info.
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