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    by , 08-21-2008 at 09:55 PM (Greg Siskind on Immigration Law and Policy)
    Congrats to Immigrant of the Day Phil Dalhausser who dominated in the third set in tonight's gold medal match against the Brazilian team of Fabio and Marcio (I love the spunk of the Brazilian Olympic team athletes who play under just their first names).
  2. Immigration Law is Too Complex and Important for Johnny or Jane One-Notes

    by , 08-20-2008 at 11:58 AM (Angelo Paparelli on Dysfunctional Government)
    I am sure this post will be controversial, and I welcome comments.

    I've long believed that the practice of immigration law, which has become dramatically more challenging since 9/11, is not for the dabbler (of course) but also poses a risk for attorneys who choose to specialize only in business immigration. The linked article, "A 3-Point Immigration Manifesto for Chief Legal Officers and Outside Counsel," published this month by The International WhosWho of Corporate Immigration Lawyers, elaborates on my views.

    Ever since 1996 and the passage of the Illegal Immigration Reform and Immigrant Responsibility Act with its unlawful-presence penalties, the notion of a fixed line of demarcation between business or family-based immigration on one hand and litigation and removal defense on the other has been revealed as fiction.  Business immigration opponents of IIRAIRA succeeded in persuading Congress to "split the bill" and deal later with a set of harsh restrictions on employment-based immigration. As the ensuing years have demonstrated, that victory was phyrric indeed.

    Only now do we see that the government agencies charged with the enforcement and administration of the immigration law, especially the conferral of immigration benefits, have taken an approach to interpretation of the INA that in too many instances is mean-spirited and inconsistent with legislative intent.  After all, bureaucrats need to justify their budgets.  It's hard to catch terrorists, especially when the agencies rely on immigration forms that require truthful disclosure of illegal terrorist actions.  As 9/11 has taught, anyone willing to commit suicide would not be dissuaded from fibbing on a goverment form.

    So instead the agencies have taken to auditing the corporate clients of law firms for the sin of talking to their lawyers (DOL), radically reinterpreting L-1B specialized knowledge by using specious reasoning to jettison 18 years of post-IMMACT90 liberalization of this visa category (USCIS), appointing inexperienced immigration judges and members of the Board of Immigration Appeals for partisan or ideological reasons (EOIR) and eliminating administrative appellate rights of citizens to contest a claimed loss of nationality (State Dept.).

    My hero in immigration law, the late Sam Williamson, as quoted in Faith and the Professions (at pp. 184-186), was mostly right when he said: "[The practice of immigration law is] a competent, involved, technical job in which, if you're successful, you can see the consequences of your actions.  Also, I don't like the government."   

    Unlike Sam, I like the government when it honors the Constitution and follows faithfully the statutes that Congress enacts.  I don't like it when it crosses the line.  Immigration lawyers cannot be mere paper shufflers and online preparers of immigration forms.  They must be lawyers first and foremost.  It's time to resist government encroachments that deprive our individual and business of clients procedural and substantive due process.  It's okay to specialize, but don't overlook that competent representation requires a broad array of substantive knowledge in the many nooks and crannies of U.S. immigration law and regulations.  As was correctly stated, for once, by a legacy INS spokesperson, "Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold."  -- INS Spokeswoman Karen Kraushaar (quoted in The Washington Post, April 24, 2001, in an article entitled "Md. [Maryland] Family Ensnared in Immigration Maze - After Changes in Law, Couple Faces Deportation").

    by , 08-19-2008 at 09:27 PM (Greg Siskind on Immigration Law and Policy)
    A hearty congratulations to Chinese-born Liang Chow who coached American Shawn Johnson on to Olympic Gold on the balance beam. This has been a homecoming as well. Chow has not been home in 14 years and he had not seen his grandparents in all that time.

    Chow was the captain of the Chinese gymnastics team in the 80s and now runs a gym in Des Moines, Iowa. The cheerful coach (and did anyone see that jerk of a pole vault coach who was caught on tape dressing down his student who had just won silver?) has not only helped his student develop the skills needed for gold, but he also has helped her develop the confidence to execute perfect routines.

    Chow overcame adversity in the year leading up to the games when his gym became a victim of the Iowa floods that made world headlines. He was forced to relocate his business at one of the most critical and high pressure points in his career.

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    by , 08-19-2008 at 02:46 PM (Greg Siskind on Immigration Law and Policy)
    The surliness just drips from this narrative by Emily Feder, a US citizen, who was detained for hours at JFK Airport in NY. Denying people access to the bathroom, food, water? Collectively punishing people? Is this airport inspection or a warzone? The lack of professionalism exhibited by the officers in this story is, unfortunately, quite common. CBP does way more damage to our country than they help when they treat people this way. Here are a few choice passages.There was one British tourist in the group. Paul (also not his real
    name) was traveling with three friends who had passed through customs
    soon after their plane landed and were waiting for him on the other
    side of the metal barrier; he suspected he had been detained because of
    his dark skin. When he asked if he could go to the bathroom, one of the
    guards said, "I wouldn't." "What if someone has to?" I asked. "They
    will just have to hold it," the guard responded with a smile. Paul
    began to cry. I watched as he, over the course of four hours, went from
    feeling exuberant about his trip to New York to despising the entire
    country. "I speak the Queen's English," he said to me. "I'm
    third-generation British. I came to America because I've always wanted
    to come here, and now they've got me so scared that all I want to do is
    go home. We're paying for your stupid war anyway."

    To be
    powerless and mocked at the same time makes one feel ashamed, which
    leads quickly to rage. Within a few hours of my arrival, I saw at least
    10 people denied the right to use the bathroom or buy food and water. I
    watched my traveling companion duck under a barrier, run to the
    bathroom and slip back into the holding section -- which, of course,
    someone of another ethnicity in a state of panic would be very
    reluctant to do. The United States is good at naming enemies, but
    apparently we are even better at making them, especially of
    individuals. I don't know if it's worse for national security -- and
    more embarrassing for Americans -- that this is the first experience
    tourists have of our country, or that some U.S. citizens get treated
    this way upon entering their own country.


    The guards processed me then, ignoring the order of arrivals, if there
    ever had been one. They refused to distribute more complaint forms or
    call the supervisor back down at the request of Arab families. One
    officer threatened, "I'm talking politely to you now. If you don't sit
    down, I won't be talking politely to you anymore." One announced that
    because "the American girl" had gotten angry, the families would have
    to wait a few more hours. "The supervisor is not coming back."


    In the past five years I have worked for human rights and refugee
    advocacy organizations in Serbia, Russia and Croatia, including the
    International Rescue Committee and USAID. I have traveled to many
    different places, some supposedly repressive, and have never seen
    people treated with the kind of animosity that Homeland Security showed
    that night. In Syria, border control officers were stern but polite. At
    other borders there have been bureaucracies to contend with --
    excruciating for both Americans and other foreign nationals. I've met
    Russian officials with dead, suspicious looks in their eyes and arms
    tired from stamping so many visas, but in America, the Homeland
    Security officials I encountered were very much alive -- like vultures
    waiting to eat.Thanks to reader lacrossegc for the link.


    by , 08-19-2008 at 12:24 PM (Greg Siskind on Immigration Law and Policy)
    The US Ninth Circuit Court of Appeals, one notch below the Supreme Court, has ruled that the mere receipt of a no match letter by an employer does not equate to the employer having constructive knowledge that a worker is unauthorized to work.

    For those of you not familiar with no match letters, these are letters the SSA sends employers when they determine that a worker's social security number and their names don't match. Billions of dollars sit in an account at SSA for people whose names and numbers don't match. Some of those folks are very likely illegally in the US. And many of the estimated 17,000,000 people with data problems are probably US citizens.

    This is a key decision because for several years employers have not had clear guidance on how to handle the letters. Some immigration lawyers have advised clients that receiving an SSA no match letter puts the employer on notice that a worker is probably illegally present in the country.

    The case centers around Aramark, a massive company that runs concessions at arenas around the US. The case involved workers at the Staples Center in Los Angeles, home to the Lakers, Clippers and Kings. Aramark received no match letters and told 30+ employees that they had three days to prove they had new social security cards on order or they were fired. Most workers didn't respond and instead turned to Service Employees International Union which entered in to arbitration with Aramark over the issue.

    The arbitrator found no evidence to prove the workers were illegal and ordered Aramark to pay back wages. The district court reversed the finding on public policy grounds. The 9th Circuit held that the arbitrator's fact finding must be honored and ruled against Aramark.In addition to misuse by undocumented workers, SSN mismatches
    could generate a no-match letter for many reasons,
    including typographical errors, name changes, compound last
    names prevalent in immigrant communities, and inaccurate or
    incomplete employer records. By SSA's own estimates,
    approximately 17.8 million of the 430 million entries in its
    database (called "NUMIDENT") contain errors, including
    about 3.3 million entries that mis-classify foreign-born U.S.
    citizens as aliens. Congressional Response Report: Accuracy
    of the Social Security Administration's NUMIDENT File
    (Dec. 2006), available at
    ADOBEPDF/auditt xt/A-08-06-26100.htm (last visited June
    9, 2008).

    [5] As a result, an SSN discrepancy does not automatically
    mean that an employee is undocumented or lacks proper work
    authorization. In fact, the SSA tells employers that the information
    it provides them "does not make any statement about
    . . . immigration status" and "is not a basis, in and of itself,
    to take any adverse action against the employee." Social
    Security Number Verification Service Handbook, available at (last visited
    June 9, 2008).


    In sum, the letters Aramark received are not intended by
    the SSA to contain "positive information" of immigration status,
    and could be triggered by numerous reasons other than
    fraudulent documents, including various errors in the SSA's
    NUMIDENT database. Indeed, the letters do not indicate that
    the government suspects the workers of using fraudulent documents.
    Rather, they merely indicate that the worker's earnings
    were not being properly credited, one explanation of
    which is fraudulent SSNs.


    One final point. Aramark has introduced no evidence concerning
    the fired employees' actual employment status other
    than that they were named in the no-match letters and did not
    quickly respond to the request for further verification of their
    social security status. In addition to creating no "constructive
    notice," this evidence simply does not demonstrate that any of
    the workers actually were unauthorized to work, particularly
    because a social security card is only one way to prove work
    authorization.Incidentally, the Court notes the no match rule from DHS that is being held up in the courts. The court would expand when employers are deemed to have constructive knowledge when they receive no match letters and also provides a "safe harbor" procedure for employers to terminate workers when they do get these letters.

    Here's the text of the decision.

    9th Circuit Aramark case - Get more Legal Forms
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