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Jan 20 - Farewell Mr Bush

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-----------------IMMIGRATION DAILY FROM ILW.COM------------------

January 20, 2009

1.* Comment: Farewell Mr Bush
2.* Focus: The H-1B Book Shipping Now
3.* Articles:
*** (a) Is My Client In A Period Of Stay Authorized By The
*** Attorney General? It Depends On Who You Ask by Danielle Rizzo
*** (b) Fixing Border Security And Immigration: A Memo To
*** President-Elect Obama by Jena Baker McNeill and James Jay
*** Carafano
*** (c) Bloggings On PERM Labor Certification by Joel Stewart
4.* News:
*** (a) DHS Publishes Correction To H-2B Final Rule
*** (b) DHS Publishes Correction On Acceptable Identity Documents
*** For Employment Eligibility Verification
*** (c) DHS Publishes Correction To US VISIT Final Rule
5.* Classifieds:
*** (a) Help Wanted: Immigration Paralegal
*** (b) Help Wanted: Immigration Paralegal
*** (c) Credential Evaluation And Translation
*** (d) Case Management Technology
6.* Headlines:
*** (a) Immigration Officials End RI Detention Contract
*** (b) Feds Plan to Take DNA Samples of Anyone Arrested for
*** Immigration Violations
*** (c) Immigration Issue Hurts GOP
*** (d) Napolitano Outlines Immigration Policy
7.* ComingsNGoings:
*** (a) Immigration Event - New York, NY
8.* Letters From:
*** (a) Sid Lachter, Esq.
*** (b) Roger Algase, Esq.
*** (c)
*** (d) Sergi Sheplov,0120.shtm

Books On Immigration Law:
Immigration Law Seminars:
Immigration Law Workshops:
To Get Clients:

Farewell Mr Bush

America bids farewell to President Bush on Tuesday, and welcomes
Mr. Obama to the Presidency. We pause at this moment to briefly
consider Mr. Bush's immigration record, as it will likely appear
in the long view of history. We realize that history will judge
Mr. Bush on the larger issues of keeping the country safe after
9/11, the wisdom or lack thereof of the Iraq war, the fate of
civil liberties during the Bush years, and many others. We make
no comment on any of those, our purpose is simply to take the big
picture on immigration.

As far as the executive branch is concerned, there's a lot of
well-deserved criticism to hand out. One thing stands out as
particularly bad. Immigration enforcement towards the last few
years of Mr. Bush's presidency was heavy-handed to the point of
being inhumane. Especially inhumane was the treatment of families
with young children where unweaned infants were separated from
their mothers, and parents were often arrested without provision
being made for young children in their care. Also especially
inhumane was the treatment of detained women who were often
chained to a hospital bed even when in labor. The general
treatment of immigration detainees bordered on the abusive, at
least insofaras the mentality of the custodians and their high
level supervisors is concerned. Mr. Obama would do well to
quickly and forcefully undo this deplorable chapter of our
immigration history.

The record is quite the opposite when looking at Mr. Bush's
prodigious efforts on the legislative front. In our opinion, no
President in American history has worked quite as hard and at so
high a cost as Mr. Bush, to secure immigration benefits
legislation from Congress. Despite suffering vicious attacks from
racists within the Republican party, Mr. Bush tried valiantly
several times (including with McCain-Kennedy and with Kennedy-
Kyl) to get Congress to move on immigration. Mr. Bush will
deserve some share of the credit when Congress ultimately gets
around to CIR, in the sense of being the pioneer who paved the
way, and has the arrows in his back to show for it. On this
issue, Mr. Obama would do well to follow in Mr. Bush's footsteps
and urge Congress to delay CIR not a moment longer.

We welcome readers to share their opinion and ideas with us by
writing to

The H-1B Book Shipping Now

THE H-1B BOOK 2008-2009 Edition, Editor Karen Weinstock, is
shipping now. The Table of Contents is as follows:

++Chapter One:** Interview The Client

++Qualifying the Position as a Specialty Occupation
++Qualifying The Employee
++Meeting Wage Requirements
++Lawyer's H-1B Consultation Questionnaire Form
++Lawyer's H-1B Task Checklist

++Chapter Two: Send The Client Intake Forms And Related

++Intakes Summary
++H-1B Employer Intake/Questionnaire Form
++H-1B Worker Intake/Questionnaire Form
++The Complete H-1B Process: Company Flowchart
++The H-1B Process: Company's Step-By-Step Explanation
++Explanation and instructions for spouses and children

++Chapter Three: Credentials: Verify That The Worker Has A US
Bachelor's Degree Or Equivalent

++Credentials Summary
++If the worker has a U.S. degree - no evaluation is necessary
++If the worker has a foreign degree - order credentials
++If the H-1B petition is based on work experience or combination
- order a work experience evaluation
++List of credentials evaluation firms, web sites and phone

++Chapter Four: Determine The Prevailing Wage ++Understanding the
Prevailing Wage

++Determining the Prevailing Wage
+++O*NET, SOC, Wage Levels, Job Zone and SVP
+++SESA or SWA Wage Determination
+++FLC Data Center Wage Determination
+++Wage Determination Through Other Wage Surveys
++Practice Examples in Determination of the Prevailing Wage

++Chapter Five: Prepare And File The Labor Condition Application

++Introduction to the Labor Condition Application (LCA)
++Preparing and filing the Labor Condition Application (LCA)
+++Online LCA filing
+++Complete Online LCA and Receive LCA Approval Online
+++Completing the LCA: Step by Step
+++H-1B Dependent Employers Worksheet for the LCA
++ Detailed Description of Form ETA-9035E and its Obligations
++Sample of completed LCA (form ETA-9035E)
++Copy of form ETA9035CP (LCA cover pages)

++Chapter Six: Prepare The I-129, Related Forms And
Petition Letter

++Form I-129
++H supplement to Form I-129
++Form I-129 H-1B Data Collection Supplement
++Form G-28
++Form I-907 if premium processing is applicable

If the H-1B worker has a spouse and/or children:
++Form I-539
++Form I-539 Supplement 1 (if necessary for other family members)

++Chapter Seven: Send All The Forms And Petition Letter To The
t For Review & Signature

++Sample letter to client
++LCA posting notice
++Sample Letter to Employer Regarding Public Access File
++Memorandum to employers on Labor Condition Application
++Public Access File sample

Chapter Eight: Assemble The H-1B Petition And Send To The USCIS
Service Center

++General Filing Instructions (including list of service centers
and filing addresses)
++Sample Cover Letter
++H-1B Petition document checklist
++Sample list of exhibits

++Chapter Nine: Troubleshooting

++Request for Additional Evidence
++Dealing with the dreaded request for evidence
+++Sample Response to Request for Additional Evidence
+++Second Example of Response to Request for Additional Evidence
++I-9 Compliance, Social Security Numbers and Driver's Licenses
++Changes in H-1B Employment and Amendments
++How Mergers, Acquisitions and other corporate Transactions
the H-1B

++Chapter Ten: Post-Approval Case Management

++Summary of Post-Approval Issues
++ Sample H-1B Approval Letter to Employees that are in the U.S.
++ Sample H-1B Approval Letter to Company - Employee(s) Abroad
++ Sample H-1B Approval Letter to Employees Abroad
++ Non- Immigrant Visa Consular Processing Information Sheet

For more information about the book and to order, see here.
For the fax form, see here.

(a) Is My Client In A Period Of Stay Authorized By The Attorney
General? It Depends On Who You Ask

Danielle Rizzo writes "But there is a large gray area for those
who have pending applications for adjustment of status but no
nonimmigrant status; and for those who have timely filed
applications for extension or change of status pending and whose
prior status has expired.",0120-rizzo.shtm

(b) Fixing Border Security And Immigration: A Memo To President-
Elect Obama

Jena Baker McNeill and James Jay Carafano write "President-elect
Obama, we applaud your commitment to secure our nation's borders,
but securing our borders is simply one step toward protecting
America and fixing our broken immigration system.",0120-mcneill.shtm

(c) Bloggings On PERM Labor Certification

Joel Stewart shares the latest entries as of January 16, 2009 on
his PERM Labor Certification blog.,0120-stewart.shtm

To submit an Article for consideration, write to
4.* NEWS

(a) DHS Publishes Correction To H-2B Final Rule

The Department of Homeland Security published notice of a
correction to the H-2B final rule.,0120-H2B.shtm

(b) DHS Publishes Correction On Acceptable Identity Documents For
Employment Eligibility Verification

The Department of Homeland Security amended its regulations
governing the types of acceptable identity and employment
authorization documents and receipts that employees may present
to their employers for completion of the Form I-9, Employment
Eligibility Verification.,0120-employer.shtm

(c) DHS Publishes Correction To US VISIT Final Rule

The Department of Homeland Security published corrections to the
final rule which was published in the Federal Register on
December 19, 2008. The pertinent regulations relate to the
collection of biometric identifiers during the inspection of
aliens at US ports of entry.,0120-USVISIT.shtm

(a) Help Wanted: Immigration Paralegal
St. Louis, MO - Stinson Morrison Hecker LLP
seeks an experienced paralegal to assist in case management and
preparation of a wide range of employment-based immigrant and
non-immigrant petitions, PERM applications and Adjustment of
Status applications. Stinson Morrison Hecker LLP is one of the
nation's largest law firms, with 335 attorneys in eight offices
with experience in more than 45 practice areas, and represents
clients in a full range of corporate, transaction and litigation
matters. Please send resume with salary requirement to Lisa K
Lange at:

(b) Help Wanted: Immigration Paralegal
Downtown Washington, DC firm
seeks mature and responsible senior business immigration
paralegal with 4+ years experience in business immigration cases,
including NIV (H-1B, E, L, J, and O) and IV (including EB-1 and
EB-2) and PERM.* Must be capable of independent work, including
legal research, intensive client contact and drafting responses
to complex RFEs and NOIDs.* Bilingual Spanish/English speaker
preferred.* Must have bachelor's degree and excellent native-
level English writing skills.* We are a boutique immigration firm
with a fast-paced yet collegial atmosphere and no billable hours
requirements.* Salary commensurate with experience.* Please email
resume, references and writing sample to* No calls please.

(c) Credential Evaluation And Translation
As the nation's leader in foreign credential evaluations and
translations, American Evaluation and Translation Service, Inc.
(AETS) provides the most competitive rates in the industry - $50
educational evaluations, as well as $200 'expert opinion' work
experience and position evaluations completed by PhD university
professors who have the "authority to grant college level credit
for work experience and/or training." AETS offers a variety of
turn-around times, including same-day service for educational,
work experience, and position evaluations. For list of rates and
times, see:
AETS also provides certified translations in 100+ languages,
with translators that are specialists in 80+ fields.* For a copy
of the Application for Credential Evaluation and Translation
Services, please contact AETS at (786) 276-8190, visit, or email:

(d) Case Management Technology
Offering enterprise-level software and unparalleled US-based
support, ImmigrationTracker
is the most flexible and dependable immigration management
solution on the market today. Designed by immigration attorneys
and paralegals, ImmigrationTracker is often praised for its ease
of use, intuitive features, and built-in immigration knowledge.
As one of our customers noted, "If we had two years and unlimited
funds to design our ideal immigration management system, Tracker
would be it."* Phil Curtis, Chin & Curtis.* Find out for yourself
why Tracker is the choice of: 83% of practicing Past Presidents
of the AILA (American Immigration Lawyers Association, through
June 2007); 86% of the 25 largest immigration law firms (IndUS
Business Journal 2006); 75% of the AmLaw 200 (largest US law
firms, American Lawyer Media, 2006); 3x as many globally ranked
immigration attorneys as compared with other software vendors
(Chambers Global and the International Who's Who of Business
Immigration Lawyers, 2007). Schedule your private demo: Call
1-888-466-8757 ext. 278 or email
6.* Headlines

(a) Immigration Officials End RI Detention Contract

Federal immigration officials have terminated their contract
with a detention facility following an investigation into the
death of an inmate, and several members of the local board that
oversees the jail have been replaced.

(b) Feds Plan to Take DNA Samples of Anyone Arrested for
Immigration Violations

Had the new DOJ policy been in place, federal officials say many
victims could have been spared.

(c) Immigration Issue Hurts GOP

President Bush on Sunday underscored what may be the single most
destructive force at work in the Republican Party: its hostility
on the issue of immigration.

(d) Napolitano Outlines Immigration Policy

Arizona Gov. Janet Napolitano, the nominee to be Homeland
Security secretary, pledged Thursday to get tougher with
employers who hire illegal workers.

For links to the above stories see here:,0120.shtm#Headlines
7.* ComingsNGoings

Readers can share their professional announcements (100-words or
fewer at no charge), email: Readers
interested in learning about featuring your event or conference
in Immigration Daily, see here To feature your
newsletter in Immigration Daily, see here

(a) Immigration Event - New York, NY
'National Concern, Local Action: Immigrant Integration in New
York', 9:00 a.m., Thursday, February 5, 2009* The Great Hall at
Shepard Hall,City College of New York, 139th and Amsterdam Ave.,
New York, N.Y. 10031. Admittance to the conference is free,
however attendees must register in advance and registration for
the luncheon will close on January 23rd.

Readers are welcome to share their comments, email:* (300-words or fewer preferred).
Many letters to the Editor refer to past correspondence,
available in our archives.

(a) Dear Editor:
1.* Obama publicly produced exactly what Hawaii issues to
everyone who orders a birth certificate.* If it is not, in fact,
a birth certificate, neither is anyone else's and Hawaii needs
Mr. Apuzzo's help to straighten out the mess.* 2.* Homeland
security is under federal, not Hawaiian, jurisdiction.* 3.* Mr.
Apuzzo's letter states that because John McCain's and Roger
Calero's citizenship was challenged, they and their parties would
not challenge Obama's.* What about the Democratic presidential
primary candidates other than Obama?* All of them are
unquestionably natural born citizens, and none of them said a
word about Obama's citizenship.* Please, enlighten us on why.
There must be an obvious answer that the overwhelming majority of
us are not perceptive enough to think of on our own.
Sid Lachter, Esq.

(b) Dear Editor:
Jim Roberts' 1/16/09 letter has finally come up with a seemingly
serious Constitutional argument against holding that Barack Obama
is a "natural born" US citizen, even if it is conceded that he
was born in the US. Unfortunately for those who agree with Mr.
Roberts' and Mr. Apuzzo's letters, the US Supreme Court carefully
considered this argument and explicitly rejected it more than 100
years ago, in US v. Wong Kim Ark (1898). Also unfortunately for
those who claim that racism has nothing to do with this issue,
the dissent in that case specifically relied on a overtly racist
argument to support its contrary position. Wong Kim Ark was born
in the US to parents who were both Chinese citizens, and
therefore racially ineligible to become US citizens because of
the Chinese exclusion laws. The US immigration authorities argued
that, because Mr. Wong's parents concededly owed allegiance to a
foreign power, he was not "subject to the jurisdiction of the
US", and therefore not a US citizen under the 14th Amendment,
even though born in the US. This is the same argument, as I
understand it, that Mr. Roberts' letter makes about President-
elect Obama. But the Supreme Court disagreed, holding that the
intention of the 14th Amendment was to adopt the broad view of
citizenship by birth of the English common law, which had long
held that anyone born in England was a "natural born" citizen of
England unless his parents were ambassadors or soldiers of a
foreign country. The Supreme Court expressly rejected the
contrary view of citizenship, held by some the US states before
passage of the 14th Amendment, that made the parents' citizenship
rather than the child's place of birth controlling. What would be
the point of trying to reopen this issue now, which was so
clearly settled 110 years ago?
Roger Algase, Esq.* New York, NY

(c) Dear Editor:
Regarding the ID Letters of Jan.16th, S. Sheplov eloquently
defends the importance of marriage in society with which few
could disagree, certainly not myself. But Jesus taught many
things including: "Render therefore unto Ceasar the things that
are Ceasar's" (Matt. 22:21) thus acknowledging the state and it's
sovereignty in secular matters. Ideally, the state is charged
with looking after it's citizens interests including limited and
controlled entry. The state does not preclude families from
returning to their native lands to be together. Thus it is the
individual that makes the final decision to remove him/her self
from family in such situtions as the state has to draw the line
somewhere regarding entry numbers. Everyone wants a free pass. If
the letters of R. Algase sets forth uninformed, illogical,
racially biased opinions, why should his letters be exempt from
being called on it?* Responding to D. Murray's letter, I would
say that my comments (1/15/09 ID) did refer to the RA
letters/opinions as is ID protocol and accurately described my
opinion regarding them. Readers can make their own assessments.
Truth has always been a defense against defamation and always
serves a "useful purpose". No letters have engaged in more "name-
calling" and baseless charges of racism than the letters of RA
who admits to being: "highly critical of Mario Apuzzo's letters
because of their stubborn and irrational refusal to follow" RA's
opinion and interpretation, flawed as they are. There is no
humble search for truth in this revealing comment, only the
dogmatic, intolerant labelling of other views as deficient. These
are facts, not personal attacks. If the blind are allowed to
lead, all "shall fall into the ditch" (Matt. 15:14).
Jim Roberts

(d) Dear Editor:
Apparently ID knows a Sergi Sheplov who is also an attorney.
However, the letter to the Editor that was written and appeared
in the 1/16/09 ID issue was written by me. I wanted to clarify I
am not an attorney nor do I play one on TV.
Sergi Sheplov
The first daily in the field of immigration. Forward this to a

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  1. Ted's Avatar


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  2. Mario Apuzzo, Esq. 's Avatar
    Was Obama born in the U.S. is the issue raised by Sid Lachter Esq.'s letter of 1/16/09. What Obama posted on his web site is a Certification of Live Birth (COLB), not a Certificate of Birth (BC). The former is a computer-generated summary of the original. It contains neither the hospital where the child was born nor the doctor who delivered the baby, which information does appear on the BC. In 1961 (when Obama was born), Hawaii allowed a family member to register a foreign birth in Hawaii and obtain a COLB. This is the reason that Hawaii Home Land (not our federal Homeland) requires that a candidate produce a BC to prove he/she is a "native" Hawaiian, not a COLB. Obama to date has refused to publicly produce his BC. I can only speculate that if any candidate did not challenge Obama, it was because of ignorance, apathy, fear, or self-ambition.

    What is an Article II "natural born Citizen" is the issue raised by Roger Algase Esq.'s letter of 1/16/09. Article II states "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution shall be eligible to the Office of President . . ." If one was not a "natural born Citizen," and only a "Citizen of the United States" at the time the Constitution was adopted, one could be President only under the grandfather clause. But all children born after 1789 have had to be "natural born Citizen," and not only "Citizens of the United States" to be eligible to be President. "The natives, or natural-born citizens, are those born in the country, of parents who are citizens." The Law of Nations (1758). Pursuant to the law of nations to which the Framers prescribed, this means that both natural elements, (1) born on U.S. soil (2) to two parents who are U.S. citizens, are needed to be a "natural born Citizen." The reason for also requiring the connection to the parents is because, while the child inherits his/her allegiance from the place of birth, he/she inherits that condition to a much greater degree from his/her parents. Id. The Wong Kim Ark decision did not deal with the issue of what is an Article II "natural born Citizen" but rather only with ordinary U.S. citizenship under the 14th Amendment. These citizens would be part of the same group making up the original citizens who were grandfathered by Article II but no longer eligible to be President if born after 1789 unless also they were also "natural born Citizen[s.]" The understanding of what is a "natural born Citizen" can be further gleaned from the father of the 14th Amendment, Rep. John Bingham of Ohio, who confirmed the construction the Framers used regarding birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866: " ... I find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents [plural, meaning two] not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen..." Additionally, the 14th Amendment in no way amended the requirements of a "natural born Citizen" under Article II, for it was passed to secure the citizenship rights of former slaves who may have been born on U.S. soil and to keep the Supreme Court from declaring the Civil Rights Act of 1866 to be unconstitutional for lack of Congressional authority to pass such a law or a future Congress from altering it by a bare majority vote. Further, the 14th Amendment also makes naturalized individuals "Citizens." But we know that even though they are "Citizens," they are not eligible to be President. Hence, there are different types of U.S. citizens.

    If Obama was born in the U.S., he is a "Citizen" of the U.S. under the 14th Amendment. But even if Obama was born in the U.S., he is not a Presidential Article II "natural born Citizen" because his father was not a U.S. citizen at the time Obama was born. Hence, he is not eligible to be President. Such a requirement is not about being discriminatory, xenophobic, racist, un-democratic, archaic, or bigoted, but rather about complying with the Constitution and providing for the security of the United States of America in an uncertain and dangerous world in all times.

    Mario Apuzzo, Esq.
    Jamesburg, New Jersey
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