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  1. Immigrant of the Day: Dirk Nowitzki - NBA Champ

    by , 06-14-2011 at 05:35 AM (Greg Siskind on Immigration Law and Policy)

    Congrats to German-born Dirk Nowitzki and the Dallas Mavericks for their great season and NBA championship. Wish my Grizzlies could have been there, but, alas, this was not their year. Nowitzki is in his 13th season and has been with the Mavs for his whole career, something that is not so typical anymore. He has also led his team to the playoffs every year since 2000 with the culmination this year in Dallas' first championship.
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  2. Letters of the Week: June 13- June 17



    Please email your letters to editor@ilw.com or post them directly as "Comment" below.
     

  3. July Visa Bulletin Relased

    by , 06-13-2011 at 07:31 AM (Greg Siskind on Immigration Law and Policy)
    Many thanks to reader Legal and Still Waiting for the as always excellent summary.
    Family 1st - ROW, China and India are unchanged at 01 May 04; 1 week advance for Mexico to 08 Mar 93. 7 week movement for Philippines to 15 Apr 1996.

    Family 2A - ROW, China, India and Philippines have jumped to 22 March 08; Mexico advanced to 15 Feb 2008.
    Family 2B - ROW, China and India move to 01 July 03; Mexico advances 1 month to 22 Sept 92 and Philippines advances to 22 Sept 2000.
    Family 3rd - ROW, China and India advance 6 weeks to 15 July 2001; Mexico stalled at 15 November 1992; Philippines advances 2 weeks to 22 March 92.
    Family 4th - ROW, China and India stalled at 08 March 2000; Mexico moves two weeks to 01 March 1996; Philippines advances 2 weeks to 15 May 1988.
    Employment 1st - still current in all categories
    Employment 2nd - ROW, Mexico and Philippines still current; China and India jump to 08 Mar 2007.
    Employment 3rd - three weeks advance for ROW to 08 Oct 2005; 6 week advance for China to 01 July2004; one week advance for India to 01 May 2002;  Mexico jumps 6 months to 01 July 2005; 3 weeks advance for Philippines to 08 Oct 2005.
    Employment 3rd Other Workers - ROW jumped 1 year to 22 Nov 2004; China still stalled to 22 April 2003; India advances one week to 01 May 2002; Mexico and Philippines jump 1 year to 22 Nov 2004.
    Employment 4th - still current in all categories
    Employment 5th - still current in all categories  
    This writer still expects rapid advances for EB-2 India and China in the next 2 months as the 4th quarter spillover of unused visas from EB1, EB2-ROW, EB4 and EB5 fall up, down and across. Anecdotal information of EB2-India folks with PDs in the Apr-June 2008 date range, who have elected Consular Processing receiving fee notices from NVC has lent strength to this expectation. Stay tuned!

  4. Time to Replace Put-up-and-Shut-up Immigration Policies with Real Customer Service

    by , 06-13-2011 at 06:45 AM (Angelo Paparelli on Dysfunctional Government)
    I'm no fan of the U.S. Department of State's policies and actions in the immigration space.  State's approach, as manifested by the behavior of U.S. consular officers and the apparatchiks within the Visa Office at the Bureau of Consular Affairs, too often comes off as a mix of treacly haughtiness and callous indifference.
    These Ugly American attributes are the foreseeable consequence of the grant of unbridled power. Straight-s******* call this power "consular absolutism" while the decorous dub it "consular nonreviewability." First established as a temporary, war-time measure in 1918 and then incorporated into current law by a McCarthy-era Congress that overrode President Truman's veto in 1952, the power of a single consular officer to determine the facts and refuse a U.S. visa cannot be overruled; not by the courts, the Attorney General, the Secretary of State or the President.
    To be sure, sometimes State does the right thing.  Kudos to Hillary Clinton for using the immigration law to promote U.S. foreign policy objectives, as she did recently in allowing consuls to grant Iranian students multiple-entry two year visas, thereby supporting the Iranian people over their goverment. At other times, however, State stumbles and the hopes of countless innocent folks crash. Consider, for example, State's recent flubbing of the visa lottery selection process. Other pratfalls happen all too often, none more noticeably than missteps advertised in a much-watched State online resource, the Visa Bulletin.  Obscure to most Americans, the Bulletin tells watchfully waiting immigrants and their sponsors (American families and firms) how much or little, if at all, the "cut-off date" on the immigrant visa (green card) quota will move forward in the next month. 
    The movement of the immigrant visa quota is less a math formula than a guesstimate.  A well-intentioned and competent State Department official analyzes reports of immigrant visa usage by consular officers (this is the easy, mathematical part), then grapples with the hard part -- the unpredictable flows of green-card issuance data from U.S. Citizenship and Immigration Services (USCIS) -- and then tries to estimate the rate and volume of future USCIS grants of green cards (adjustments of status, or AOS).  The problem is that AOS grants are approved at several locations (the USCIS regional service centers and field offices and the courtrooms of the DOJ's Immigration Judges). 
    Although Congress contemplates a FIFO (first-in, first-out) quota system under Immigration and Nationality Act §203(e), seasoned observers have reason to believe that what really happens behind the scenes at USCIS is much more of a catch-as-catch-can system. AOS files are housed and distributed helter-skelter in a USCIS salt-mine storage facility in the midwest, regional service centers, ICE attorney file cabinets or shopping carts wheeled between immigration courtrooms, and USCIS field offices.  Although a recent lawsuit and motion for preliminary injunction in Seattle federal court challenging the immigrant visa (IV) quota allocation system failed, apparently for reasons urged by the government, this has not stopped ever-louder public complaints.
    In recent years, the quotas dramatically and unexpectedly moved backward (retrogressed) twice  -- in 2007 under the employment-based immigrant visa categories, and in January this year under the family categories -- thus adding years more to the wait.  Although this might please the anti-immigration crowd that crows about the supposed honor of doing things legally by "waiting in line" (while silently celebrating that law-abiding immigrants are kept out), it hurts American interests.  American families are needlessly separated and the ability of U.S.businesses to compete on the global stage is hamstrung, while immigrant innovations that might have been are needlessly delayed or never happen.
    Much of this harm could be avoided or lessened by President Obama, and virtually all of it could be eliminated by a willing, America-first Congress.
    The President could take a lesson from Disneyland and the airlines -- businesses that know something about people waiting in lines.  These businesses know that opportunities for profit and reduction of complaints can arise even while customers wait (see Disney's techniques here and here; see airlines' approaches here).

    For intending immigrants waiting abroad, President Obama could remind State and its consular corps that wannabe green card holders, despite their desire to immigrate, are still eligible under law for all manner of nonimmigrant visas, and should be granted such status liberally in deserving cases.  I'm not talking about the misnomer that many immigration agencies and uninformed immigration lawyers call "dual intent" visas, as they refer to the H-1B and L-1 temporary categories (which are more accurately described as intent-irrelevant classifications).  No I'm referring to the true dual-intent categories, such as business visitors, tourists, students, exchange visitors and trainees).  The courts and immigration precedent decisions have long ago recognized that a visa applicant or nonimmigrant entrant can have a short-term intention to enter the U.S. presently, yet harbor the desire and intent to attain green card status when and if the law and the factual circumstances so permit, as long as the individual's overriding intention is to be law-abiding.  If the person, by prior conduct in compliance with immigration law and compelling ties abroad, has an intention to immigration in the future but no intention to break the law by overstaying the period of admission or violating immigration status, then s/he has legitimate dual intent (see cases cited, FN 51).
    The President could also tighten the reigns on the State Department by instructing the Secretary of Homeland Security to exert the superior authority granted her over immigration matters abroad under the Homeland Security Act, thereby cabining any rogue behavior by State's consular officers. 
    For law-abiding nonimmigrants in the U.S., he could -- as I noted in my last post -- take executive actions that would allow early filing (but not accelerated approval) of green card applications by persons with approved immigrant visa petitions (which would allow international travel and continuing employment permission) and administratively freeze the age of minor children as of the date AOS is filed. 

    Our feckless Congress -- if they truly cared about American jobs, competitiveness and deficit reduction more than political posturing and electioneering -- could also make worthy changes in our national interests:

    Congress could also accomplish legislatively all of the outcomes noted above that concurrently fall within the authority of the President.
    Congress could set an example to other countries by putting reasonable procedural due process constraints on consular officers and allowing at least meaningful administrative review and a clear right to in-person legal counsel at visa interviews and administrative hearings.
    Congress could reap significant revenue by allowing quota line-jumping for a hefty premium fee. You may say this would be unAmerican, but we already allow premium processing at USCIS and provide wealthy investors with faster access to green cards (EB-5 visas) and nonimmigrant visas (E-2 and L-1A) by tendering legal tender.  We live in a capitalist state where theatres, sports teams and concert venues sell premium seats, airlines have first class cabins, and as Ernest Hemingway astutely observed in a misquote of an F. Scott Fitzgerald line: (Fitzgerald: "The rich are different than you and me." Hemingway: "Yes, they have more money.")

    If you doubt the wisdom of better customer service for immigrants, consider the following excerpt from an unsolicited email I received from a foreign citizen (whose identity will not be revealed) in response to a three-part teleconference series I'm moderating next week (Illuminating the Dark Ages: Disturbing Trends and Pleasing Solutions in Employment Based Immigration):
    I tried to get some help from 11 lawyers. Not a single one accepted. One told me that being in the US was a "privilege" and not a "right". Another one warned me about any action that could irritate the immigration service. The others just answered - when they answered - by one sentence: you have no possibility because there is still two years before your priority date.
    As of today, I am still struggling. Why? Because:
    - I want to get back to my career
    - I want to achieve a degree at the University
    - I want to open a business
    - I want to buy my apartment
    - I have hired 15 American citizens since I am a manager in my company and I think I am not a charge for anybody in the U.S.
    But as you guess, I am the only one to believe that I will succeed.
    I will conclude my message here, I thought that this story could be an illustration of the precarity of people like me, and I want to mention than I had never felt such a climate of rejection, suspicion and even in some cases, hostility, until this past few months. I had always felt very happy to live in the U.S. Today, the situation has created a daily anxiety, fear for the future and feeling that I am not welcome anymore.
    Thank you for your reading.
  5. Bloggings: A few thoughts about Angelo Paparelli's comment: "Face off: Foreign Entrepreneurs vs. the Immigration Alligators - with Obama as referee" by Roger Algase

    Angelo Paparelli's June 10 Blogging lists some of the most important of the many ways that President Obama could make the legal immigration system more equitable and realistic for the skilled, educated, foreign specialty workers and  entrepreneurs  who have the most to contribute to America'a economy and society. To add just one of many other possible items to Mr. Paparelli's list, the president could easily arrange to withdraw Donald Neufeld's memo barring offsite professional workers, mainly Indian computer specialists, from obtaining H-1B status.
    As every immigration lawyer knows, this memo was issued without any legal authority other than an egregious distortion of the relevant INA provisions, and with total disregard of the requirements of the Administrative Procedure Act. All it would take to consign the Neufeld memo to the dustbin of immigration history would be one or two phone calls by the president (perhaps with a request for a couple of resignations in order to keep the alligators out of the H-1B program).
    Of course, there is no chance that any reasonable or sensible action such as the above, or those that Mr. Paparelli so wisely recommends, will take place in this administration.  This brings me to the only question I would like to raise about Mr. Paparelli's choice of words. Why call Obama a "referee" when the president is so obviously on the side of the immigration alligators, if not the person who put them into the moat in the first place?
    Mr. Paparelli is absolutely right to blame politics for Obama's refusal to lift a finger (or a pen) to fix the system. But where do we go from here? Obama, as Mr. Paparelli also points out, is no fool. The president obviously thinks that, to borrow an old expression from the Vietnam war period, he can continue to hold on to the hearts and minds of America's immigrant communities because he also has them somewhere else.
    The only alternative to Obama and his immigration alligators (as the president sees it) is the Republicans with their nuclear option - five years in prison for each day that someone overstays a visa. (This is not my idea - it was in the immigration bill, H.R. 3447, that the House passed in 2005, the last time the Republicans controlled that chamber before last year's corporate money driven election debacle.) In the cynical, hypocritical calculus that passes for immigration policy in today's White House, immigrants and immigrant advocates can be thrown under the bus (or into the moat, in order not to mix metaphors) because they have no place else to go. Better the party of the immigration alligators than the party of total immigration nuclear extinction.
    But what if Obama's political calculus is just as flawed as his alligator dependent immigration policies and his prevarications about how helpless he supposedly is to call off the alligators without "bipartisan" Congressional support, which is as likely to come as the alligators are to turn into butterflies? What if America's immigrants, and their US citizen family members, employers, advocates, and all Americans of good will take to the streets, peacefully, day after day, demonstration after demonstration, rally after rally, and if need be, strike after strike,  to show Obama and his shortsighted, cynical immigration "enforcers" that they can no longer take America's Latinos, Asians and other minorities, the very people without whose votes Obama never could have been elected, for granted?
    What if there is a serious third party - a Tequila Party - whose rise could cost Obama the election? True, this could lead to a monumental game of chicken, where Obama tries to scare minorities about the (very real) horrors awaiting them if a Tea Party bigot or some other Republican (is there any such other Republican?) takes over the White House, while immigrant advocates try to scare Obama into thinking that he might lose next year's election without minority votes.
    Admittedly, it is hard to tell where this might lead. But there is a real possibility that a good effect might come out of this. Obama might realize that America's immigrant communities and their supporters have him exactly where he thinks he has them. Then we might, just possibly, see officials such as Donald Neufeld and the enforcement-only addicted DHS Secretary, Janet Napolitano, embark on their long overdue return to private life, as the alligators start to leave the immigration moat.
     
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