March 2010

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

Published exclusively via the World Wide Web since 1994
© 2010 Boyd F. Campbell, All Rights Reserved

    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

ICE goes on the warpath in southeastern U.S.

     Immigration and Customs Enforcement (ICE) issued 180 audit notices to businesses in five states this month, an extraordinary move in the Deep South.  ICE served the "Notice(s) of Inspection" to the businesses in Alabama, Arkansas, Louisiana, Mississippi, and Tennessee.  According a press release from ICE, this initiative is part of ICE's increased focus on holding employers accountable for their hiring practices and to insure a legal workforce.

325 EB-5 immigrant visas issued in 2009

    Incredibly, the Department of State has issued only 325 fifth preference immigrant visas for alien investors.  And this at a time when the U.S. economy is hemmorhaging jobs in the millions upon millions.  This figure does not represent the immediate relatives of these 325, so the total could go over 1,000 for the first time in the history of the EB-5 Program.  Still, it's a shame.

Homeland Security rule extends REAL ID compliance for states

    The REAL ID Act prohibits federal agencies from accepting driver’s licenses or personal identification cards for any official purpose unless the issuing state is meeting the requirements set forth in the Act.  ‘‘Official purpose’’ is defined in both the Act and in the regulations to include boarding federally-regulated commercial aircraft.  On December 28, 2009, DHA issued a final rule staying implementation of and compliance with the REAL ID Act.

    If the vast majority of states are unable to meet the January 1, 2010 material compliance deadline, in the absence of an extension, federal agencies, including Transportation Secuity Agency (TSA) screeners, would not be able to accept state-issued driver’s licenses or identification cards from residents of these states for an official purpose, including for use in boarding commercial aircraft. Travelers would have to use alternative, non-state-issued documents to demonstrate identity to pass through security at airports. All U.S. residents traveling by commercial aircraft would experience very significant travel delays; in fact, commercial aviation would be severely disrupted.

    State compliance with the REAL ID act was stayed until further notice.  With almost all state governments facing huge budget cuts as legislatures go into session, this rule was a wise move, totally out of character for the federal government.  Makes you wonder who is in charge.

USCIS describes types of site visits

     At a November 19, 2009, program put on by the Department of Homeland Security, titled "2009 Government and Employers: Working Together to Ensure a Legal Workforce," Ronald Atkinson, Chief of Staff of USCIS' Fraud Detection and National Security (FDNS) office, explained the three types of site visits that are currently being conducted:

    1. Risk Assessment Program fraud study. Applicable to any type of benefit program, including family and employment-based, this study is part of a joint program between USCIS and ICE. Applications and petitions are chosen at random, usually on a post-approval basis, for visits to help in designing profiles of potential fraud.

     2. Targeted site visits. These visits take place where fraud is suspected, and consist of a visit to ask questions. Advance notice, including notice to counsel, is supposed to be provided.

     3. Administrative site visits. These relate to religious worker and H-1B petitions. They generally are conducted by contractors who know nothing of immigration law. Religious worker visits are performed under the regulations for that category. For H-1B site visits, the contractors have been equipped with a set of specific questions, and all employers/beneficiaries should be asked pretty much the same questions, primarily reaching the issues of whether there's really an employer there, whether the employer knows it filed the petition, and whether the beneficiary is doing the work and receiving the wage indicated on the petition. H-1B visits are done on a post-adjudication basis, and are randomly selected. Each employer should receive only one such visit, but may receive different visits for different sites. -- AILA Infonet, www.aila.org

DHS announces Global Entry program

     The Department of Homeland Security has announced the publication of a new proposed rule that would establish the Global Entry program, designed to streamline travel for trusted travelers through biometric identification, as a permanent program.  Global Entry - currently available as a pilot program at 20 U.S. international airports - allows pre-approved members a streamlined, automated alternative to regular passport processing lines. The program currently reduces average wait times by more than 70 percent, with more than 75 percent of travelers using Global Entry processed in under five minutes.

Employment-based visas not available until October 1

    The U.S. Department of State advises there are no employment-based immigrant visas available until October 1.  That date begins a new federal fiscal year, so some "unavailable" categories of employment-based immigrant visas may become available.  Still, there is tremendous pressure on the employment-based immigrant visa categories, and not much chance -- in our opinion -- that Congress will deal with the problem this year or next.

Homeland Security to search private electronic media at the borders

    The Department of Homeland Security (DHS) has announced new directives to address circumstances under which U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) can conduct border searches of electronic media-consistent with the Department’s Constitutional authority to search other sensitive non-electronic materials, such as briefcases, backpacks and notebooks, at U.S. borders.
    The directives will enhance transparency, accountability and oversight of electronic media searches at U.S. ports of entry and includes new administrative procedures designed to reflect broad considerations of civil liberties and privacy protections-measures designed to ensure that officers and agents understand their responsibilities to protect individual private information and that individuals understand their rights.
    Searches of electronic media, permitted by law and carried out at borders and ports of entry, are vital to detecting information that poses serious harm to the United States, including terrorist plans, or constitutes criminal activity-such as possession of child pornography and trademark or copyright infringement.
    The DHS Privacy Office also released a Privacy Impact Assessment, available at www.dhs.gov/privacy, in connection with the new directives to enhance public understanding of the authorities, policies, procedures and controls employed by DHS during border searches of electronic data to protect individuals’ privacy. The DHS Office for Civil Rights and Civil Liberties (CRCL) will also conduct a civil liberties impact assessment within 120 days.

Business interests lose fight on E-Verify

    On August 25, 2009, The United States District Court for the District of Maryland, Southern Division, granted Defendants' cross motion for summary judgment in Chamber of Commerce of the USA v. Napolitano, a case challenging the mandatory E-Verify rule for federal contractors. Chamber of Commerce of The U.S.A. v. Napolitano, (S.D. Maryland, 08/25/09).  This means that business interests lost and the Department of Homeland Security won.  What follows will not be pretty as the "unintended consequences" of U.S. employment eligibility verification policy spills over into a nightmare policy of denial of employment to millions of Americans.

Consulates updated on changes

    U.S. consulates have received cables on updated medical examination forms, a revised J-1 visa exchange visitor skills list, and ending the E-Passport emergency exemption.  The Department of State (DOS) advised consular posts on the availability of Forms DS-2053 and -2054 for refugees, DS-3024 and -3030 for chest X-ray classification sheets, and DS-3026 (Medical History of Physical Examination Worksheet) and DS-3025 (Vaccination Documentation Worksheet).

Support the Iranian people

    I want to express my support for the Iranian people.  I have had the privilege of representing a number of Iranian clients over the past 20-plus years, and I have always been impressed with my clients' education, training, judgment, and knowledge about their home country.  Something is happening.  Perhaps we do not know precisely what at this time, but there are marches, there are protestors dying or being executed by the Iranian government, and there is history being made.  I support the Iranian people.  Let us hope they get the government they deserve. 

    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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