November 2008

News and Commentary written and edited by
Boyd F. Campbell, Attorney and Civil Law Notary

Published exclusively via the World Wide Web since 1994
© 2008 Boyd F. Campbell, All Rights Reserved

Immigration in the News (scroll to bottom for full text)

  Feds investigating leak about Obama's aunt 
  EU considers new immigration policy
  Business groups sue over immigration law
  Immigration raid costs taxpayers $6.1 million

    Make Your Voice Heard:  Your call today to support safe, sane, and secure immigration policy could make the difference. You may call the Senate switchboard to be directed to your U.S. senator -- (202) 224-3121 -- or to your representative in the House -- 202-225-3121.

LEAD STORY

What does supplemental final rule on Social Security 'no-match' letters do?

    On October 23, 2008, the U.S. Department of Homeland Security (DHS) issued a supplemental final rule regarding what employers should do in order to benefit from a “safe harbor” protection when they receive a letter from the Social Security Administration (SSA) stating that the information submitted for an employee does not match SSA records, otherwise known as an SSA “no-match” letter. This supplemental final rule, which expands upon a March 2008 proposed rule, included additional legal analysis and a Final Regulatory Flexibility Analysis, but ultimately re-issued the August 2007 no-match final rule “without substantive change.” The August 2007 final rule stated that if an employer follows the “safe harbor” procedures set forth in the rule, DHS will not use the no-match letter as evidence that the employer has “constructive knowledge” that it hired undocumented workers. The August 2007 rule was scheduled to go into effect on September 14, 2007, but on October 10, 2007, it was preliminarily enjoined by the U.S. District Court for the
Northern District of California. The preliminary injunction remains in effect.
    In granting the preliminary injunction, the court found that the DHS rule would result in the termination of lawfully employed workers and that if the DHS rule were “allowed to proceed, the mailing of no-match letters, accompanied by DHS’s guidance letter, would result in irreparable harm to innocent workers and employers.” The granting of the preliminary injunction prohibited DHS from implementing the final no-match rule until the court makes a final ruling, after trial, on whether or not the rule is legal. This means that the DHS rule still is not in effect. The court order applies to the entire country, not just to northern California. The rule is blocked indefinitely until the court issues a final decision on the rule.
    The preliminary injunction remains in place unless and until the court decides to dissolve it. With the issuance of the supplemental final rule, DHS has said it plans to go back to the court to ask the court to dissolve the injunction. But the rule remains blocked until the court either decides to dissolve the injunction or decides whether or not the rule is legal.
    Although SSA technically could send no-match letters to employers without referring to the DHS rule, this year SSA has not sent any no-match letters to employers, and SSA stated that it will not send any such letters
until the federal lawsuit is settled. While SSA will continue its longstanding practice of sending no-match letters to individual workers at their homes, unlike in years past, if SSA knows that the home address it has for an individual worker is not correct, it will not send the worker’s letter to his or her employer.
    The DHS rule has caused lots of confusion and panic among workers and employers alike. It is likely that publication of the final rule may prompt many employers to implement it, even though no no-match letters were sent out in 2008.

Changes coming in Visa Waiver Program with ePassports

The Electronic System for Travel Authorization (ESTA) is a new fully automated, electronic system for screening passengers before they begin travel to the United States under the Visa Waiver Program. Voluntary ESTA applications may be submitted at any time prior to travel to the United States, and Visa Waiver Program travelers are encouraged to apply for authorization as soon as they begin to plan a trip to the United States.
It is anticipated that ESTA will become mandatory for Visa Waiver Program travelers on January 12, 2009.
Review the Interim Final Rule.
As of October 26, 2006, any passport issued on or after this date by a Visa Waiver Program (VWP) country must be an e-Passport for VWP travelers to be eligible to enter the United States without a visa.
Outlined below are important changes in passport and e-Passport requirements for travelers from VWP countries applying for admission to the United States. Please check with the passport issuing agency in your country if you have specific questions.

Passports issued on or after October 26, 2006: e-Passports

New passports issued by Visa Waiver Program countries must be e-Passports, which include an integrated
computer chip capable of storing biographic information from the data page, as well as other biometric
information, such as the required digital photograph of the holder. You can identify an e-Passport a symbol, which looks like a rectangle with a bullet hole in it.

If your passport does not have this feature, you can still travel without a visa if it is a valid passport issued:
       Before October 26, 2005, and includes a machine-readable zone, or
       Between October 26, 2005, and October 25, 2006, and includes a digital photograph.
If you were issued a passport on or after October 26, 2006, and it is not an e-Passport, you will need to obtain a visa.

USCIS ombudsman makes recommendations on EAD delays

    The USCIS Ombudsman recommends that USCIS: (1) adhere to regulations that state USCIS shall issue Employment Authorization Documents (EADs) within 90 days, or issue interim EADs, to prevent unnecessary loss of employment; (2) expeditiously provide information to the public stating the cause of EAD processing delays and how the delays will be addressed; (3) provide consistent guidance to the public regarding EADs pending more than 90 days via the National Customer Service Center toll-free number and local offices; and, (4) reconsider Ombudsman recommendation FR2006-25 to issue multi-year EADs. Additionally, the Ombudsman suggests that (5) USCIS consider the following operational procedures to issue interim EADs when applications are pending over 90 days; (6) modify USCIS I-797 Receipt Notices for Form I-765 (Application for Employment Authorization) to provide for continued employment authorization; and, (7) affix fraud proof stickers to expired EADs upon determination of an applicant's eligibility for an extension.

Requirements for naturalization abroad by spouses of members of the U.S. armed forces

    On January 28, 2008, President Bush signed the National Defense Authorization Act for Fiscal Year 2008 (H.R.4986 / Public Law 110-181) into law. Part of that law is a new section 319(e) of the Immigration and Nationality Act (INA) which allows certain eligible spouses of members of the U.S. armed forces to naturalize abroad without traveling to the United States for any part of the naturalization process.
To be eligible for naturalization abroad, lawful permanent resident spouses of members of the U.S. armed forces, who live abroad on official military orders, must meet the requirements of either section 316(a) or 319(a) of the INA at the time of filing.
    • Section 319(a) applies to individuals who have been lawful permanent residents for three years as the current spouse of a U.S. citizen, and continue to be married that U.S. citizen spouse.
    • Section 316(a) applies to spouses who have been lawful permanent residents for five years.
    For naturalization purposes, the time eligible spouses have spent abroad on official military orders may count for both continuous residency and physical presence in the United States.
Individuals applying for naturalization abroad as the spouse of a member of the armed forces must live in marital union with that member of the armed forces. However, involuntary separations due to circumstances beyond their control, such as military deployments, do not prevent naturalization.
    A spouse of a member of the armed forces must have official military orders authorizing them to accompany their spouse abroad, and must accompany or live with that member of the armed forces as provided in those orders.
    Note that only those eligible spouses who prefer naturalization abroad should apply for that option. Those who prefer to apply for naturalization in the United States may still elect to do so. Eligible spouses who live abroad and want to naturalize abroad should follow these instructions:
    Submit a completed and signed Application for Naturalization (Form N-400) - In Part 2 (Information About Your Eligibility), please note whether the eligibility is under INA Section 316(a) or 319(a) and mark Section D (Other). Write in: "319(e) Overseas Naturalization.” Include the following information:
    Cover Letter - USCIS encourages applicants to place a brief cover letter on top of the application package with the heading “319(e): Deliver to Military N-400 Point of Contact” explaining their desire to naturalize abroad. The cover letter should include the applicant’s current address of residence abroad and indicate whether they qualify for naturalization under either Section 316(a) or 319(a) of the INA. Applicants should print their name and overseas address (both local and APO/FPO) and include the location of the USCIS office overseas most convenient to conduct the interview (for example, “the U.S. Consulate in Frankfurt”).
AILA InfoNet Doc. No. 08100364. (Posted 10/01/08)
    Form DD-1278 - Include a signed and completed Form DD-1278, "Certificate of Overseas Assignment to Support Application to File Petition for Naturalization" from the military official certifying the applicant has “concurrent travel orders” and is authorized to join their spouse military service member abroad.
    Fingerprint Cards - Include two completed fingerprint cards (FD-258). Those applying overseas must have their fingerprints taken at a U.S. military base, an overseas USCIS field office, or an American Embassy/Consulate. Individuals applying in the United States must have their fingerprints taken at a USCIS Application Support Center.
    Marriage Certificate - Provide proof of the current marriage and, if applicable, the legal end of all prior marriages for both the applicant and the spouse (photocopies of marriage or death/divorce certificates).
    Proof of U.S. Citizenship - The applicant must show proof the military spouse is a U.S. citizen if applying under INA Section 319(a). Acceptable forms of evidence include copies of a valid U.S. passport, a U.S. birth certificate, certificate of naturalization, certificate of citizenship (A or AA), or the Registration of Birth Abroad, (Form FS-240).
    Photos - Two identical passport-style photos (See instruction sheet).
    Proof of LPR Status - Submit a photocopy of the applicant’s Permanent Resident Card (both front and back) or I-551 stamp to show proof the applicant is a Lawful Permanent Resident of the U.S.
    Evidence of Marital Relationship - This includes, but is not limited to: birth certificates for children born to you and your spouse, joint bank accounts, joint tax returns, etc.
    Fees - Include the correct fee. The amount depends on from where the application is filed:
    • Applicants who file from outside the United States and had their fingerprints taken overseas (see above), should submit a check or money order for $595(USD) with the application.
    • Applicants filing from within the United States should submit a single check or money order of $675(USD) with the application (the N-400 fee of $595 and biometrics fee of $80 combined).
    • Make the check or money order payable to the "Department of Homeland Security" or "U.S. Citizenship and Immigration Services." Note: for payment overseas, please check local payment procedures.
    Mailing Address - USCIS recommends that applicants submit all 319(e) naturalization applications to the USCIS overseas office having jurisdiction over the spouse’s overseas residence, or to USCIS at the following address:

    Processing Time - Once the USCIS Nebraska Service Center receives the application, it will generally take between 120 to 180 days to complete its processing, provided all of the required background checks have been completed and the applicant has submitted all required documentation. Applicants should save all receipts and notices of action, and always refer to the “A” number or N-400 receipt number when contacting USCIS or when checking the status of their application at www.uscis.gov.

Campbell named general counsel of Alabama Regional Center

    For the past two years, I have been working almost fulltime in the new offices of the Alabama Center for Foreign Investment, L.L.C. (ACFI), Alabama's federally designated, statewide Regional Center.  The offices are located in the RSA Union, 100 North Union Street, in downtown Montgomery.
    I have leased a nearby office in the RSA Union for my private law practice.
    On November 30, 2007, I sold my law offices in the historic Cottage Hill section of downtown Montgomery, and encountered some delays in providing legal services to my clients.  I made every effort to make sure the transition went smoothly so my clients do not suffer inconvenience because of my move.  However, I changed telephone carriers, so my office telephone number had to "migrate" to the new carrier, a process that should have taken a few days.  Instead it took a few weeks!  I learned a few things about moving a law office along the way.
    This new work with the so-called "EB-5" immigrant investor and job-creation visa program is both exciting and challenging.  ACFI has already identified many qualifying investment projects scattered around Alabama that would be suitable vehicles for foreign investors interested in Immigrant Investor Pilot Program.  ACFI is a member in good standing of Invest in the USA , a trade association made up of Regional Centers and others interested in foreign investors.
    My partner, Ron Drinkard -- a former economic development banker for AmSouth, Southtrust, and Wachovia -- and I are working now to prepare our first Regional Center project, which is a manufacturing plant that constructs prefabricated, hurricane-resistant steel homes with hardy plank siding.
    I have notified my clients that I will continue to work hard on their cases, and I will continue to represent my corporate clients, some of whom I have represented for more than 15 years.  I will continue to take select cases, but after more than 19 years of practicing law, I know my limitations.  Please do not be disappointed if I cannot immediately respond to your needs or take your case.  I will be making some referrals of new prospective clients to members of the American Immigration Lawyers Association whom I know and trust.
    I apologize for taking up so much space in the Immigration Law Update for this personal announcement, but there is so little immigration- or visa-related news right now that this seemed a good time to do it.

Immigration in the News

Feds investigating leak about Obama's aunt

WASHINGTON -- The government is investigating whether any laws were broken in the disclosure that Barack Obama's aunt was living in the country illegally.
    Obama's half aunt, who is from Kenya, was ordered to leave the United States years ago after an immigration judge denied her request for asylum, a person familiar with the matter told The Associated Press late Friday. This person spoke on condition of anonymity because no one was authorized to discuss the case.
    The woman, Zeituni Onyango (zay-TUHN on-YANG-oh), is living in public housing in Boston and is the half-sister of Obama's late father.
    The Immigration and Customs Enforcement asked its inspector general and the Office of Professional Responsibility on Saturday to investigate whether any policies were violated when information about Onyango's case was publicly disclosed, ICE spokeswoman Kelly Nantel said. The Homeland Security Department, which oversees ICE, cannot disclose details about an individual's immigration status.
    Information about Onyango's case was disclosed and confirmed by two separate sources, one a federal law enforcement official. The information they made available is known to officials in the federal government, but the AP could not establish whether anyone at a political level in the Bush administration or in the McCain campaign had been involved in its release, just five days before the presidential election. Obama's campaign strategist David Axelrod said people are suspicious about stories that surface so close to an election.
    In an interview with CBS News' Katie Couric on Sunday, Obama said: "If she is violating laws those laws have to be obeyed. We're a nation of laws. Obviously that doesn't lessen my concern for her, I haven't been able to be in touch with her. But I'm a strong believer you have to obey the law."
    The campaign said it was returning $260 that Onyango had contributed in small increments to Obama's presidential bid over several months. Federal election law prohibits foreigners from making political donations. Onyango listed her employer as the Boston Housing Authority and last gave $5 on Sept. 19.
    Onyango, 56, is part of Obama's large paternal family, with many related to him by blood whom he never knew growing up. Obama's father, Barack Obama Sr., left the future presidential nominee when the boy was 2, and they reunited only once — for a monthlong visit when Obama was 10. The elder Obama lived most of his life in Kenya, where he fathered seven other children with three other wives. He died in a car crash in 1982.
    Obama was raised for the most part by his mother and her parents in Hawaii. He first met his father's side of the family when he traveled to Africa 20 years ago. He referred to Onyango as "Auntie Zeituni" when describing the trip in his memoir, saying she was "a proud woman."
    Onyango's refusal to leave the country would represent an administrative, noncriminal violation of immigration law, meaning such cases are handled outside the criminal court system. Estimates vary, but many experts believe there are more than 10 million such immigrants in the U.S.  -- Excerpt from an article published on November 2 by The Associated Press.

EU considers new immigration policy

    BRUSSELS, Oct. 15 (UPI) -- EU leaders were preparing to approve new uniform policies affecting both legal and illegal immigration to the continent, observers said.
    Leaders of the 27-nation bloc met in Brussels to take up the proposed European Pact on Immigration and Asylum, which would coordinate EU nations' political commitments in regular and irregular immigration, control of borders, asylum and dealing with countries of origin and of transit, The EU Observer reported.
    The pact is meant to strike a balance between the concerns that illegal immigration and asylum-seekers are overwhelming the capacity of some nations to accept them while at the same time keeping open the flow of valuable highly skilled foreign workers to Europe, the publication said.
    Some, however, say the pact concentrates too much by security concerns. Among them is the European Council on Refugees and Exiles, a network of 63 immigrant-rights organizations.
    "The pact may be tipping the balance further toward the security approach -- which to date has not provided solutions to Europe's migration challenges -- and away from the necessary actions to ensure human rights safeguards," ECRE Secretary-General Bjarte Vandvik said in a news release.

Business groups sue over immigration law

    OKLAHOMA CITY, Oct. 15 (UPI) -- A coalition of business groups is asking a U.S. appeals court to prevent an Oklahoma anti-illegal immigration law from being enforced.
    The U.S. Chamber of Commerce, the Oklahoma Restaurant Association, and the Oklahoma Hotel and Lodging Association, among others, say immigration enforcement should be left to the federal government, not the states, Legal Newsline reported Wednesday.
    The groups say the Oklahoma law, which requires employers to verify the immigration status of employees and contractors or subcontractors, forces them to use the voluntary federal online verification system to determine workers' legal status.
    The law, which isn't being enforced, also requires that businesses with state contracts to withhold income taxes of contractors and subcontractors if they don't use the federal verification system.
    "Federal regulation of the employment of aliens leaves no room for state interference," Robin Conrad, executive vice president of the National Chamber Litigation Center, told Legal Newsline. "Federal law broadly pre-empts the field of employment verification and any attempt by states to meddle in this domain is unconstitutional."
    She said states shouldn't take an independent approach to immigration policy.
    "A patchwork of conflicting and inconsistent state laws is not the answer," Conrad was quoted by Legal Newsline as saying.

Immigration raid costs taxpayers $6.1 million

    CEDAR RAPIDS, Iowa (Oct. 15) -- The immigration raid at Agriprocessors Inc. in Postville that resulted in more than 300 criminal convictions carried a hefty price tag for taxpayers of more than $6.1 million.
    That total is in records of financial expenses The Gazette obtained from Immigration and Customs Enforcement, the Executive Office for United States Attorneys, the U.S. Marshals Service and U.S. District Court of Northern Iowa. The records, obtained with Freedom of Information requests, included expenses of the raid and the aftermath.
    ICE had the biggest tab with $5,211,092 and rising as of Aug. 21. U.S. Marshals came in second with $497,416, slightly ahead of the U.S. District Court's $406,394.
    The raid was the largest work site operation in the United States. Federal authorities arrested more than 389 workers at the kosher meatpacking plant. The prisoners were detained in various jails in Iowa and the U.S. District Court of Northern Iowa set up temporary courts at the National Cattle Congress in Waterloo.
    The illegal immigrants were charged, pleaded and sentenced within two weeks of the raid. The process has been criticized and scrutinized for the speedy court proceedings, with critics claiming the accused didn't fully understand the charges while being railroaded into pleading guilty.
    As of September, more than 300 had been convicted and sentenced on various charges related to identity theft. Many sentenced to probation have been deported, 50 are going through removal proceedings with an immigration judge and some of the 273 individuals who just finished their five-month prison sentences have started deportation, ICE spokesman Tim Counts said last week.
    Counts said he didn't know how many will be deported or how long it might take. The process started Saturday, but that doesn't mean individuals were deported on that day.
    ICE's bills could increase because its investigation is ongoing. The agency didn't provide a breakdown of its expenses. Counts said Tuesday renting the 110-acre National Cattle Congress was included in ICE's expenses, but he didn't know the amount paid.
    In May, Wally Mochal, board president of the Waterloo site, wouldn't reveal how much the General Services Administration paid. He also said the agency misled him when saying the month lease would cover Homeland Security training.
    U.S. Marshals Service expenses were broken down into several categories -- travel, processing team, National Immigration Czar, prisoner team, judges detail, courtroom security, post operation and criminal clerk support.
    The federal court is exempt from the Freedom of Information Act request but Clerk of Court Robert Phelps said the courts try to honor the spirit of the request and provided expenses it incurred as of September. Expenses there were split in four categories: $208,246 for interpreting services; $48,252 in travel for judges and clerks and probation staffs; $35,052 in supplies and equipment; and $114,842 for defense counsel.
    Phelps said the bulk of the supplies and equipment continues to be used in routine court operations.
    U.S. attorneys' expenses were the least among federal agencies, at $26,123. Most were for travel and supplies. Travel included rental cars, mock operation training and hotels for attorneys and staff.
    Officials from the U.S. attorneys' office didn't return a phone message Tuesday.
    The state also incurred costs for the raid. Department of Public Safety expenses included $18,176.88 for 26 Iowa state troopers' salary, overtime, per diem and fuel costs, spokeswoman Jessica Lown said. Another $735 was for a Division of Criminal Investigation officer's overtime.
    Troy Price, press secretary for Gov. Chet Culver, said the Iowa National Guard had an ICE contract to provide 700 cots and sets of linens, blankets, pillows and towels for $7,700.
    The state was compensated for the items and ICE deposited the money into the Camp Dodge Facility Maintenance Fund. Price said no other state agencies incurred costs in the raid.

    HERE IS OUR WARNING AGAIN:  Your friends, relatives, and co-workers are good sources of bad information about immigration and nationality law and federal administrative procedures.  If you really want to know what to do about an immigration or visa situation, please consult a qualified immigration lawyer.  If you don't know one, please call the American Immigration Lawyers Association (AILA) Lawyer Referral Service in Washington, D.C., toll-free, at 1-800-954-0254.  AILA's Lawyer Referral Service cannot assure you that you will get the best immigration lawyer, but you should be able to get competent legal help and guidance.  Remember:  CIS considers every petition or application filed as a legal case for adjudication under the federal Administrative Procedures Act and federal regulations.  When people help themselves or others by filling out forms and filing them with CIS, they are filing a legal case before an administrative agency of the federal government for adjudication.  If the case runs into trouble or is denied, the alien and his family members rarely know what to do next or how to get the legal matter resolved.  Some visa applicants have monthly telephone bills that are larger than any fee they will ever pay to a qualified immigration lawyer.  For information about how to hire and work with an immigration lawyer, click on the following link: Why Hire an Immigration Lawyer?   Also, don't forget to check out our web links to other helpful (and FREE) information: CLICK HERE

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