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  1. Don't Ask, Can't Tell: Immigration Inequality for Same-Sex Families

    by , 05-28-2009 at 08:50 PM (Angelo Paparelli on Dysfunctional Government)
    Family reunification, at least as far back as the Quota Law of 1921, has been and remains today a cornerstone of America's immigration laws. Yet, one growing segment of family immigration is disfavored by operation of law. These are the families of same-sex life partners who must live under a legal system that imposes family-separation rather than unity.
    Section 3 of the Defense of Marriage Act (DOMA) provides:

    In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.
    DOMA prevents America's immigration officials from recognizing marriages and civil unions that are legal in the state or nation where a same-sex couple is wed or the civil union is registered. As a result, a U.S. citizen may not petition the immigration authorities to grant a green card to a foreign life partner of the same sex, no matter the length of the relationship or the couple's level of commitment to each other.
    This puts the United States out of synch with the 19 nations that recognize same-sex life partnerships for immigration purposes: Australia, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Switzerland, and the United Kingdom.
    Inexplicably, while America prohibits same-sex family unity for green-card purposes, it allows committed life partners to come to this country, and remain for sometimes prolonged periods, as visitors, if the foreign life partner can prove that s/he won't stay permanently.
    Don't ask (me to explain), because I can't tell (why).
    Well fortunately, for the first time ever, the Senate Judiciary Committee, at the direction of its chair, Sen. Patrick Leahy, will convene a June 3 hearing on a bill that would end this injustice, the Uniting American Families Act of 2009 (UAFA).
    UAFA provides the same benefits under the Immigration and Nationality Act (INA)as are granted to opposite-sex spouses. It grants these benefits to the permanent partner of a U.S. citizen, defining the phrase to mean "an individual 18 years of age or older who (A) is in a committed, intimate relationship with another individual 18 years of age or older in which both parties intend a lifelong commitment; (B) is financially interdependent with that other individual; (C) is not married to or in a permanent partnership with anyone other than that other individual; (D) is unable to contract with that other individual a marriage [recognized as valid under the INA]; and (E) is not a first, second, or third degree blood relation of that other individual."
    Sometimes the ground beneath our feet shifts and we can't be sure why. This time it may just be that the stunning tectonic movement is caused by the marching feet of the supporters of civil rights for binational gay and lesbian couples.
    Don't ask, don't tell; just call your federal legislators and urge them to enact UAFA.
    Blogger's note:
    In June, I'll be attending the annual conferences of the American Immigration Lawyers Association (AILA) in Las Vegas and the American Council for International Personnel (ACIP) in Arlington, Virginia. If you plan on being at either event, please share with me your personal pet peeves about America's dysfunctional immigration system and offer your best ideas on how to fix things. I'm all ears.
    Angelo Paparelli
  2. Velarde Memo Issues New Guidance To Adjudicators On Requirements for H-1B Beneficiaries Seeking To Practice In Certain Health Care Occupations

    by , 05-28-2009 at 10:02 AM (The H-1B Visa Blog by Siliato and Malyk)
    The May 20, 2009 Memo from Barbara Velarde, Chief of USCIS Service Center Operations, ("Velarde Memo" or "Memo") provides some important guidance  to adjudicators on the requirements for H-1B beneficiaries seeking to practice in certain health care occupations, which is of significant import to occupational therapists ("OTs") and physical therapists ("PTs"). The crux of this guidance is as follows: advanced degrees are not required for health care professionals enumerated under 8 CFR 212.15(c) (including OT and PT candidates) applying for the H-1B nonimmigrant visa classification--thereby reversing a recent trend of USICS in denying H-1Bs for OTs and PTs who do not possess an advanced degree.
    More specifically, the Velarde Memo instructs that if the petitioner (employer) provides documentary evidence that the beneficiary has a valid license to practice in the state in which the beneficiary seeks to be employed, the adjudicator should not look beyond that license. Such beneficiary will be deemed to meet the qualifications to perform services in a specialty occupation as outlined in 8 C.F.R. 214.2(h)(4)(iii)(C)(3).  Importantly, the Memo specifies that this guidance "applies regardless of whether the beneficiary is in possession of a bachelor's degree, master's degree or doctoral degree in the health care occupation."
    The Velarde Memo further instructs that if the beneficiary is in possession of an unrestricted license, and the petition is otherwise approvable, an adjudicator should approve the petition for the full H-1B period requested - up to three years - but may not approve the petition beyond the validity of the labor condition application ("LCA").  Of note, the renewal date of an unrestricted license should not be considered when determining the validity period of the H-1B approval. 
    If, however, the beneficiary is in possession of a restricted license, (e.g. a license approved except for mandatory supervised practice), and the petition is otherwise approvable, the Velarde Memo instructs the adjudicator to approve the petition for a period of one year, or the duration of the restricted license, whichever is longer. 
    To the extent the beneficiary does not have a license from the state in which he/she will be working (e.g. beneficiary cannot obtain a license due to a state statute mandating the possession of a social security card or a valid immigration document as evidence of employment authorization) the Velarde Memo instructs the adjudicator to ascertain the requirements for that particular licensure (including educational degree requirements) in the health care occupation in that state to determine whether the beneficiary is qualified to perform the specialty occupation as outlined in 8 CFR 214.2(h)(4)(iii)(C). If, after conducting such research, the adjudicator is unable to determine the state's requirements for licensure, he/she may send the petitioner a request for evidence ("RFE") asking the petitioner to provide documentary evidence of the state's requirements.
    In such a situation, the petitioner is instructed to, among other things, provide evidence that the beneficiary has (i) filed an application for a license in accordance with state or local rules and procedures; and (ii) cannot obtain a full unrestricted license in the state in which he/she will practice due to the requirement for possession of a social security card, etc.
    Assuming the petition is otherwise approvable under the above-listed standards, the validity period for such a petition will be one year.
    For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.
    Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

    by , 05-28-2009 at 09:19 AM (Greg Siskind on Immigration Law and Policy)

    Powered by

    As promised, here is the audio link to this week's teleconference. Hope you find it helpful. Soon we'll try and jazz it up with some theme music, etc.
  4. H-1Bs for Health Care Workers: Advanced Degree Not Required
    All too often, it seems that some examiners at USCIS Service Centers are just looking for a way to deny petitions.

    Long-standing policies are ignored and new theories are advanced to deny perfectly-qualified applicants for immigration benefits.

    A few months ago, a few examiners decided on their own that M.B.B.S. degrees which are issued to physicians from British Commonwealth countries were not equivalent to M.D. degrees issued by medical schools in the U.S. As a result, many petitions and applications were denied on this basis. After much protest from the medical community, the USCIS in Washington got involved, and the situation was rectified in favor of the foreign-born physicians and their U.S. employers.

    The latest government boondoggle involves state-licensed physical and occupational therapists. Though these professionals have always been held to be eligible for H-1B status, some examiner(s) noticed that the latest edition of the Labor Department's Occupational Outlook Handbook (OOH) now says that M.S. degrees are preferred.

    Accepting this statement in the OOH as Gospel, the USCIS started to deny immigration benefits to PTs and OTs with B.S. degrees even though they were in possession of state licenses.

    The response to this sudden change in USCIS policy was swift and negative. Under USCIS regulations, there are three agencies designated to determine whether the credentials of foreign-born health care workers are equivalent to those of the U.S.-born counterparts: the FCCPT, the CGFNS and the NBCOT.

    On February 19, the Foreign Credentialing Commission on Physical Therapy (FCCPT) weighed in on USCIS' "confusion" about this matter. Then, on March 19, the National Board for Certification in Occupational Therapy (NBCOT) wrote to the USCIS that "immigration officials are misinterpreting the academic/educational requirements for an occupational therapist". Finally, on March 26, CGFNS International wrote to the USCIS and explained why the OOH's statement that a Master's degree was a precondition for a foreign PT to be admitted to the U.S. was "incorrect".

    The hope was that the USCIS headquarters in Washington, D.C. would correct this erroneous interpretation of the law and regulations prior to start of the H-1B filing season on April 1st.

    Unfortunately, USCIS did not issue a policy memorandum until May 20. However, since almost 20,000 H-1B numbers are still available, and "cap-subject" workers cannot change their status to H-1B until October 1, 2009, no harm, no foul.

    In its memorandum, the USCIS recognizes that H-1B health care workers must possess an "unrestricted (state) license", and it is irrelevant whether they possess a B.S. degree rather than an M.S. or Ph.D. degree. We link to the USCIS memo from our "Allied Health Professionals" page at

    We hope that, in the future, USCIS will adhere to policies which are consistent with the law and the regulations, and will provide an avenue for practitioners and employers to bring clearly erroneous decisions to the attention of Headquarters before they develop into trends. Given the 15-month wait at the agency's Administrative Appeals Office to issue a decision on the appeal of an H-1B petition denial, this is not an adequate remedy.

    It would also be helpful if the USCIS were to clarify that the May 20th memorandum applies to I-140s as well as to H-1B status, and to all persons in possession of unrestricted state licenses, not only health care professionals.

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 04:49 PM by CShusterman

  5. May 28 - From Sotomayor To June 8

    -----------------IMMIGRATION DAILY FROM ILW.COM------------------
    May 28, 2009,0528.shtm
    1.  Comment: From Sotomayor To June 8
    2.  Focus: Today Is The Deadline For Employer Sanctions For
    3.  Articles:
        (a) Consular Corner: May 2009 by Liam Schwartz
        (b) Competition What And When by W.A. Paton for the
        Foundation For Economic Education
        (c) Bloggings On Immigration Law And Policy by Greg Siskind
    4.  News:
        (a) USCIS Updates H-1B Cap Count
    5.  Classifieds:
        (a) Expert Witness Services
        (b) Immigration Law Certificate
        (c) Website Services
    6.  Headlines:
        (a) Court Pick Could Buy Time On Immigration
        (b) Deal Wants Change To Citizenship Rules
        (c) Hampton Bays Woman Founds New Pro-immigration
        (d) 12 Charged In Massive Labor Trafficking Scheme Based In
        Kansas City
    7.  ComingsNGoings:
        (a) New Appointment
    8.  Letters From:
        (a) David D. Murray, Esq.
        (b) Muhamadou Jallow
        (c) Danny Andrade,0528.shtm
    Books On Immigration Law:
    Immigration Law Seminars:
    1.  COMMENT
    From Sotomayor To June 8
    President Obama's nomination of Sonia Sotomayor for the Supreme
    Court is yet another in a series of politically astute moves by
    the White House, in this case seeking to cement Latinos into the
    Democratic coalition. The nomination raises the question as to
    whether this is a down payment for CIR or a substitute for it.
    Some in the anti camp
    suggest that "Sotomayor was guaranteed to get the nod -- as a
    consolation prize for Hispanic pressure groups, since there isn't
    going to be an amnesty." However, the pro-immigration America's
    argues that the SCOTUS nomination has nothing to do with CIR, and
    that "Obama has renewed his campaign pledge to move reform
    forward in year 1. Again, and again, and again."
    The President's savvy political staff realizes that the honeymoon
    period is of limited duration and that the President cannot
    postpone action on immigration indefinitely--if immigration is to
    be a priority at all, it must be a priority early. The Sotomayor
    nomination puts the June 8 White House bipartisan summit on
    immigration with legislative leaders in the spotlight, since the
    Administration's plans will likely be clarified at that meeting.
    Mark your calendars, and stay tuned to Immigration Daily for the
    We welcome readers to share their opinion and ideas with us by
    writing to
    2.  FOCUS
    Today Is The Deadline For Employer Sanctions For Beginners
    The curriculum for our new 3-part telephone seminar series
    "Employer Sanctions For Beginners" is as follows:
    FIRST Phone Session on May 28: I-9s
    ++Overview of IRCA's employer compliance provisions
    ++Review of I-9 requirements
    ++Changes on the new I-9
    ++I-9 compliance tips
    ++Electronic I-9s - Time to switch?
    SECOND Phone Session on June 18: E-Verify
    ++Overview of E-Verify
    ++Benefits of signing on
    ++Risks associated with signing on
    ++E-Verify Federal Contractor rule
    THIRD Phone Session on July 23: State Laws/No-Match
    ++Business license laws
    ++E-Verify mandates
    ++Other state laws
    ++Update on the no-match regulation
    Wednesday, May 27th is the deadline to sign up. For more info,
    including speaker bios, detailed curriculum, and
    registration information, please see: Online:
    Fax form:
    Don't delay, sign up today.
    3.  ARTICLES
    (a) Consular Corner: May 2009
    Liam Schwartz writes "I've heard consular officers deny they
    profile visa applicants; then, when they describe exactly how
    they adjudicate, you're left with the impression that profiling
    is exactly what they're doing.",0528-schwartz.shtm
    (b) Competition What And When
    W.A. Paton for the Foundation For Economic Education write "The
    individual worker is in competition, in a sense, with his fellow
    workers, and thus may well be in favor of a low birth rate and
    restricted immigration, while at the same time supporting the
    view that capital should command as high a return as the forces
    of a free, competitive market will afford.",0528-paton.shtm
    (c) Bloggings On Immigration Law And Policy
    Greg Siskind writes "There are basically two big camps in the
    immigration reform debate and each has subsidiary interests that
    diverge in important respects from the bigger group.",0528-siskind.shtm
    To submit an Article for consideration, write to
    4.  NEWS
    (a) USCIS Updates H-1B Cap Count
    USCIS announced that as of May 22, 2009, approximately 45,700
    H-1B cap-subject petitions and approximately 20,000 petitions
    qualifying for the advanced degree cap exemption had been filed.,0528-h1b.shtm
    (a) Expert Witness Services
    Muslim World Expert
    Dr. Shaul M. Gabbay is pleased to offer expert testimony on
    immigrants from Muslim countries/societies, including the former
    Soviet Union (USSR). I have testified in 150+ Immigration Court
    cases nationwide (asylum, cancellation of removal) and to USCIS
    (asylum interviews, hardship waivers) with very high success
    rates. For more info, including detailed biography + testimonials
    from lawyers who have worked with me in the past, see:
    Please contact me with any additional questions: Dr. Shaul M.
    Gabbay, Muslim World Expert, Josef Korbel School of
    International Studies, University of Denver, Denver, Colorado,, (303) 871-2560. For countries outside of
    my expertise, I may be able to recommend an expert in that area.
    (b) Immigration Law Certificate
    Master the complex and ever changing maze of immigration policies
    and regulations with the Immigration Law Studies Certificate
    Program offered by CUNY's School of Professional Studies. This
    graduate-level certificate program, consisting of (3) three-
    credit classes, offers students who complete it a comprehensive
    understanding of the laws, regulations, and processes surrounding
    the status of immigrants in the US, including family and
    employment-based immigration and deportation defense. It is
    designed for individuals working in law firms, companies,
    government agencies and nonprofit organizations where they
    interact with immigrants and immigrant legal concerns on a
    regular basis and would therefore benefit from greater knowledge
    of the laws and regulations surrounding immigration. Beginning
    this spring, the program is also being offered online. For more
    information on class schedules, tuition and fees, course
    applications and to register, see here.

    (c) Website Services
    Gain the competitive edge with your new website from INSZoom, the
    world's largest immigration software company. Choose from a range
    of template websites, complete with customized logos and images,
    60-70 pps. of professionally written immigration law content
    including news articles, processing dates, and priority times
    posted directly on your site. Our search engine optimization
    tools will increase your web traffic and prioritize your site in
    the major search engines. Our content management tool lets you
    update your site in real time. Customized intake sheets let you
    integrate your case management software directly into your site.
    Biweekly newsletters and email blast tools enable you to stay in
    constant touch with current clients and strengthen your potential
    client base. Build leads and maintain a professional presence at
    a reasonable cost with websites from INSZoom. Learn more online
    or contact a sales representative at (925) 244-0600 to start the
    process of launching your new website today.
    6.  Headlines
    (a) Court Pick Could Buy Time On Immigration
    President Obama's decision to nominate federal appeals court
    Judge Sonia Sotomayor to the Supreme Court may help him delay a
    thornier challenge: what to do with millions of illegal
    immigrants living in the United States.
    (b) Deal Wants Change To Citizenship Rules
    A Georgia congressman is behind a plan to change a long standing
    federal law that gives citizenship to any baby born on US soil.
    (c) Hampton Bays Woman Founds New Pro-immigration Organization
    Sylvia Baruch has witnessed firsthand the struggles of immigrants
    living on Long Island while volunteering with the Norfolk Spanish
    Apostolate, a Riverhead group that serves Latino families in need
    of assistance.
    (d) 12 Charged In Massive Labor Trafficking Scheme Based In
    Kansas City
    Federal officials have accused 12 people and three companies of
    illegally luring foreign workers to the United States to work for
    low pay and live in substandard conditions, prosecutors announced
    today in Kansas City.
    For links to the above stories see here:,0528.shtm#Headlines
    7.  ComingsNGoings
    Readers can share professional announcements (up to 100-words at
    no charge), email: To announce your event,
    see here
    (a) New Appointment
    Juan Osuna has been appointed to be Deputy Assistant Attorney
    General for the Office of Immigration Litigation. For more info
    8.  LETTERS
    Readers can share comments, email:  (up to
    300-words). Past correspondence is available in our archives
    (a) Dear Editor:
    Regarding Robert Yang'[s letter (05/27/09 ID). As one old enough
    to remember the rude refusal of president Eisenhower to meet with
    Fidel Castro when he came to Washington as Cuba's new leader, I
    understand that long ago Cuba/US relations were decided by
    Castro, not the US. After Eishenhower's rebuke, Castro envisioned
    Soviet support. But the Soviets minimalized cooperation after JFK
    forced them to remove their missles from Cuba in 1962. Castro
    failed, but to this day refuses to admit it. The Cuban-Americans
    in Miami who fled to form a successful city state in the US will
    not tollerate normalization with the Castro regime - nor does
    Fidel desire this. At least until Fidel dies, things will remain
    the same.  Haiti's economy is of no benefit to the US; they speak
    French patois and cannot offer the US the time of day, much less
    mutually beneficial trade. We have enough bananas. Haiti's plight
    is sad, but not a US problem and their people have no US legacy,
    as do Cubans. China/US trade relations are imperative to the
    success of both nations. The US can thank China for continuing to
    purchase Treasury Bonds, rather than selling, which would throw
    the US into instant depression. Of course, the Chinese
    government's policies have one ultimate goal - their own long-
    term financial success in the world marketplace. Although we call
    it "Communist," China is really a party-run semi-totalitarian,
    semi-capitalist, semi-free enterprise state. Finally, Mr. Yang's
    letter recognizes, "we can't afford them (immigrants) to come
    here in hordes." I am happy to see that at long last his letter
    finally admits this and appears to understand that foreign trade
    does not mean trade in people, and globalization does not mean
    "all for one and one for all".
    David D. Murray, Esq.                 Newport Beach, CA
    (b) Dear Editor:
    That's true immigrants cant vote, but you know what? Immigrants
    have sons and daughters who can vote and maybe a family members
    who is already voting now, so I think is a big mistake for
    politician to ignore that. So I think they will try and do the
    right thing for all Americans.
    Muhamadou Jallow
    (c) Dear Editor:
    Regarding ID article "A Sunny Day at a Dreary Place" (05/19/09
    ID): I attended that meeting and felt this article was a little
    one-sided.     Speaking as someone who is a user of the CSC's
    services, I thank the CSC for sending out their email in advance
    to help manage people's expectations.  Like it or hate it, they
    did manage everyone's expectations.  Those who did show up were
    explained what the process would be: (hand out written answers,
    any follow-up questions could be submitted via a 3x5 card, they
    would be vetted and distributed to the appropriate ACD and an
    answer would be given if appropriate) and that is the process
    that was followed.   I love how everyone was insulted with the
    CSC's, and I quote, "appalling vague and unresponsive" written
    answers.  I didn't hear anyone say they were insulted and I
    definitely didn't hear anyone mention how insulted they were
    regarding the person or firm who chose to use informal discussion
    in litigation.  Isn't that what we owe all of this too?  Any of
    us in the private sector (even service sectors) would be required
    to change the way we do business if something like what happened
    to the CSC happened to our business.  Although it wasn't the most
    insightful CSC meeting I have attended, I can understand the
    reasoning behind it, and I see both sides of the fence.  I would
    not only bash the CSC when it was the CSC who was forced into
    this hand by those who point fingers at the CSC.  I agree that
    the relationship will be rocky for quite some time and we owe all
    of that thanks to the person or firm who decided to use
    discussions from these settings as an argument in litigation.
    Danny Andrade
    The first daily in the field of immigration. Forward this to a
    Publisher: Sam Udani   Legal Editor: Michele Kim   ISSN:1930-062X
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