November 2007

Dear Readers:
Sometimes humorists have a way of getting to the heart of a political issue more effectively than the any political pundit. And immigration is a popular target these days since the issue has been in the limelight more lately. This evening, I caught two popular shows taking on the issue.
The Simpsons, the animated cartoon that is now the longest running situation comedy in American television history, had a simple one line joke that certainly was appropriate for this week. If you watch the show, you know that every episode begins with Bart at the chalkboard writing lines as an after school punishment. And each week, the sentence he’s writing is something funny. Tonight it was “The Pilgrims were not illegal aliens.” That should get some of the anti-immigrants out there going.
Another animated series, the raunchy and very funny Family Guy, also on Fox, had a pretty funny send up of the immigration issue. The episode description from the show sums it up pretty well:
Peter starts an anti-immigration group after being caught up in the pro-American sentiment at a Veterans’ Day parade, but his tune quickly changes when he finds out he was born in Mexico . Unable to prove his citizenship, pass the naturalization test or convince investigators that his marriage to Lois is for real, he ends up working as a groundskeeper on his father-in-law’s estate and leading the fight for immigrant rights.
Comedy Central also took on immigration on the extremely politically incorrect Sarah Siverman Program. The show is warped and hilarious and there’s no point trying to describe the plot except that the self-absorbed, irresponsible manages to get her maid deported based on a mistaken accusation of thievery and then tries to help smuggle her back from Mexicowhen her life slips into filthy disarray.
Okay, maybe the humor can be lowbrow. But with the rhetoric being ratcheted up so much in recent months and emotions running so high, humor really hits the spot.
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In firm news, I’m back from a marathon week of public speaking. On Tuesday of last week I presented at American Lawyer Media’s Chief Operating Officer/Chief Marketing Officer annual meeting in New York . On Wednesday, I spoke on “no match letters” in a national teleconference for B21 Publishing. Thursday was the highlight of the week – indeed one of the highlights of my career – when I testified before the House Immigration Subcommittee inWashington . My testimony is included later on this week’s newsletter. And on Friday, I spoke on two panels at the ABA Law Practice Management Section’s annual marketing conference in DC.
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This week is Thanksgiving, a holiday that is uniquely American (the Canadian Thanksgiving shares some culinary similarities and the same name, but the meaning behind the holiday is completely different). While the Simpsons episode noted above was aiming for a laugh, the writers were on target when they connected the holiday to immigration. The Pilgrims were the country’s first political asylees and the concept of America as a refuge for those seeking freedom or fleeing poverty is a part of the national psyche. The holiday also celebrates the reconciliation between the native population and the newcomers. The Native Americans welcomed the newcomers and the holiday’s meal is, in some respects, a reenactment of the harvest celebration where the Wampanoag people joined the British settlers in a feast. When xenophobia sweeps the country, it never lasts because it is so contrary to what it means to be American.
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Finally, as always, if you are interested in becoming a Siskind Susser Bland client, please feel welcome to email me at gsiskind@visalaw.com or contact us at 800-748-3819 to arrange for a telephone or in person consultation with one of our lawyers.
Regards,
Greg Siskind

The H-2A temporary agricultural visa is a nonimmigrant visa which allows foreign nationals to enter the U.S. to carry out temporary or seasonal agricultural labor or services. Given estimates that more than half of America’s agricultural workers are undocumented immigrants, the use of the H-2A visa is becoming more and more important. What are employers required to do to obtain workers on H-2A visas? Generally, employers must satisfy two criteria to hire nonimmigrant workers when filing an application with the USCIS:

1. The employer must show that able, willing, and qualified US workers are not available at the time and place needed
2. The employer must show that an adverse effect on wages or working conditions of similarly employed US workers will not result from the employment of foreign workers

Who may file an application for an H-2A visa?

• An agricultural company or employer who expect a shortage of U.S.workers needed to perform temporary or seasonal agricultural labor or services
• An authorized agent filing on behalf of an agricultural employer

The employer may be an individual proprietorship, a partnership or a corporation. A collective of agricultural producers may file as either a sole employer, a joint employer with its members, or act as an agent on behalf of its members.
What steps must employers follow to do to obtain workers via the H-2A process? First, two copies of the ETA-750 are filed, of which one should be sent to the appropriate Department of Labor (“DOL”) region, and the other to the respective state workforce agency (“SWA”) for the state in which the work is sought. This application has to be submitted at least 45 days before the H-2A temporary workers are needed and it also has to be approved by the DOL before the starting work date. The application fees, which must be paid by the employer, include $100 base fee plus $10 for each position certified, up to a maximum of $1000.
Second, recruitment efforts follow, which are directed by the SWA for H-2A positions in one of three ways: the SWA refers candidates to the employer (with the employer using the state’s electronic data bank), the employer conducts independent recruitment, or the recruitment is conducted after the SWA certifies the applications. Generally, referrals come from the state agencies. Employers are required to hire US workers who apply for work until half of the contract period is over.
The DOL no longer requires employers to use recruitment ads (either through print or broadcast) outside the employer’s geographical area of intended employment. In circumstances where the employer has one or more worksite locations in different states, the employer should file a single H-2A application concurrently with the SWA in the state where the work will begin.
Third, following the recruitment period, a decision is made regarding certification. The SWA subtracts the number of US workers successfully referred from the total number of workers requested by employers to calculate and certify the remaining job openings.
Once certification is granted, the application is then filed with the DOL national processing center, which it may be filed for multiple unnamed workers. As they become available, however, the DOL must be provided with names. Finally, following DOL approval, the workers can then apply for visas at the appropriate consulate office. What might be some reasons for which the DOL might not issue certification? One pitfall preventing certification is if the DOL determines that US workers have filled all the job openings, or for example, if the DOL determines that H-2A candidates have been offered better working conditions than their US counterparts. Another reason preventing certification could be if a strike or a lockout results, or if the employer is in significant violation of the H-2A program with the previous two years. Yet another block could be if the employer fails to show that H-2A workers will be covered by workers compensation, or if the employer fails to comply with the recruitment efforts. How long are the H-2A visas valid? Generally, the H-2A visas are valid for a one year maximum. Extensions of up to one year, however, are possible but with a maximum of three years. After the alien has spent three years in the US under the H-2A status, then the alien must leave for six months before continuing H-2A employment. Subsequent to this time, however, the alien can reenter the US in any status not based on the performance of agricultural work. How do employers calculate workers’ earnings? Usually farm workers receive either an hourly wage or are paid by the piece. Under the H-2A program, however, workers have to be offered a wage equal to that of US workers. In the past, this has been interpreted to mean the higher payout of the following:

• The prevailing industrial wage in the relevant labor market
• The state or federal minimum wage
• The “adverse effect wage rate” (“AEWR”)

For workers earning money by the piece, an employer must pay any difference between worker earnings and the AEWR. Additionally, on or before each day the H-2A worker is paid, the employer must provide the worker with an earnings statement listing total earnings, hours of work offered versus actually worked, and whether the worker is paid hourly or by the piece.
What benefits are employers required to provide the workers?

• Transportation to and from the workers’ temporary home to the workplace
• When the contract period is up, transportation home or to their next workplace
• Housing to all workers who do not commute, which must be inspected by the Department of Labor as well as meet minimum federal standards for temporary labor camps
• Either three meals a day or facilities in which the workers can prepare food
• Any tools and supplies necessary to perform the work
• Workers compensation insurance where required by state law; if state law does not require it, the employer must provide equivalent insurance.

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.
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Q – My parents are US citizens living in Florida . They applied for my immigration in 2002 as unmarried child. At the time of filling my petition, they made a serious and unintentional mistake. They applied for me as unmarried child, while I was married and became father of a son in January 2002.
I have just received a notice from the National Visa Center that my case is proceeding. Can this case be saved?
A – If your parents were US citizens at the time the original petition was filed, it should not be void because US citizens can file for married children. However, the category in which your petition falls will be the Family 3rd preference rather than the Family 1st. If the State Department is currently sending you forms to start the process, it is because they anticipate your priority date in the 1st preference is going to be current soon. You should notify the NVC that you are married and that you will be immigrating with your family at such time as a visa becomes available.
Here is a link to the Visa Bulletin.http://travel.state.gov/visa/frvi/bulletin/bulletin_3258.html. It is published monthly and controls when visa numbers are given out. The date your petition was filed (Jan. ’02) is your priority date and you will use the Visa Bulletin to figure out when you can move to the next state of processing. As you can see, in the 1st preference they are working on July ’01 cases but in the 3rd preference they are only working on July ’99 so it will be a while before you and your family can actually process your “green cards” and immigrate.
If by chance your parents were not US citizens at the time the petition was filed, then the petition is void because there is no category for married children of permanent residents. In this case, they will have to file a new petition.
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Q – I am on an H-1B and am gearing to lodge a green card application via my employer’s attorneys. How do I know that they would not unnecessarily delay the process by not providing required documents to the lawyer on time? Are there any safeguards I can have such as having another lawyer to represent me etc?
A – It is not typical for an employee to have separate counsel, but it is an option (and I actually think this makes a lot of sense). This might be a way for you to stay more involved in the process and avoid the kinds of problems you describe. But note that the employer ultimately controls the petition since they sign off on it and it’s the employer’s call whether they would accept such an arrangement. They are certainly not required to do so.
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Q – Can one work full-time for two different employers on two H-1B visas? Is there any limitation on the number of hours that one can work each week? If one is working full time for company A and gets a job offer from company B, can one start working full time for company B and continue working for company A, but part time?
A – There are no limits on the number of employers or the number of hours as long as each employer complies with the H-1B rules. It is possible to work full time for one H-1B employer and part time for another employer that files a concurrent H-1B petition. If the hours with one employer change, the petition for that employer may need to be amended. Your immigration lawyer can advise on the necessity of this.
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Q – I am an undergraduate student who recently got married. My husband is a citizen and although he has not yet filed, he is in the process of doing so over the next few months. I will be graduating from college next year. Can I apply for graduate school even though I am not yet a permanent resident? Will they consider my application despite my status?
A – Getting admitted should not be an issue at most schools, but qualifying for in state tuition rates may very well depend on your immigration status. You would need to check with the institution on that.
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Q – I am currently residing in US with an H-1B visa. I intend to visit Puerto Rico for 3 to 4 days and re-enter the US . Do I need to carry my passport or is it like traveling within the US and just need to carry a form of identification (e.g. a driver’s license)?
A – It’s a bit of a hybrid. You don’t need an unexpired visa to enter, but you’ll want to be able to demonstrate you’re in valid status in the US . You should bring your passport, I-94, recent pay stubs and perhaps a letter from the employer verifying continued maintenance of your immigration status.
Border and Enforcement News According to The Washington Post, Texan mayors on the border with Mexicoare threatening to take the U.S. government to court to block construction of the fence designed to keep out undocumented immigrants. Six mayors fear the planned fence will hurt trade for closely knit Mexican-Texan communities, endanger wildlife, and cut off Texan ranchers’ access to the Rio Grande , the main source of fresh water in the region.
Eagle Pass Mayor Chad Foster said he had received hate e-mails from Americans outside Texas who accuse him of being soft on security. But the mayors argue there are better ways to stop undocumented immigration and drug traffickers. “The perception in some parts of the United States is that you build a fence and then migration stops. The reality is that it will slow down migrants by three to four minutes,” he said.
As an alternative, the mayors advocate deepening and widening the Rio Grande to curb undocumented immigration and drug trafficking, as well as increasing the number of Border patrol agents and cutting back the Carrizo cane reeds growing on the river banks that allow people to hide. They complain those ideas are being ignored. ” Washington is imposing this without consulting us, when we are the border communities,” said Monica Weisberg-Stewart, a leader of the Texas Border Coalition that represents the mayors, judges, business leaders and citizens against the fence.
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Immigration and Customs Enforcement announced that it has moved a number of detainees out of its immigration center on Terminal Island in southernCalifornia so the aging facility can be renovated, The Los Angeles Timesreports. USCIS would not say how many people were transferred or where they were sent, but attorneys with the American Civil Liberties Union said they were told that over 100 detainees were moved to centers around the nation, and that the transfers would continue. Attorneys representing the immigrants initially were not informed of the transfers ahead of time and did not know where their clients are being housed.
ACLU Attorney Ahilan Arulanantham said he called Terminal City and was told that the client he was trying to reach was among many detainees who were moved. “It’s a serious injustice by the government to transfer detainees far away without notifying their attorneys, especially when they have hearings upcoming, and now they are going to have to wait months more in detention before they get their day in court,” he said. Arulanantham added he has dozens of clients at the center and that now he does not know if they are still there. “I don’t know where they are,” he said. “I have to hope that they will call sometime. It’s a nightmare.”
More than a week later, ICE posted on its web site a phone number to inform family members where detainees were now located.
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Immigration and Customs Enforcement has contracted a $775,000, three-year deal with Rosetta Stone, a language-learning software provider, The Washington Post reports. ICE plans to supply 15,000 agency employees around the country with software discs and online programs offering instructions in 30 languages, with Spanish and Arabic being the agency’s most pressing language needs to carry out missions of immigration and customs investigations, intelligence and federal protective services.
The company, which also has a $4.2 million contract with the US Army, says ICE purchased their software instead of hiring language instructors at its various offices because the computer program give employees flexibility to study at home, and is a much cheaper alternative to hiring a real teacher. News from the Courts The 5^th Circuit Court of Appeals recently heard Hyder v. Keisler, which sought to determine if the actions by Hyder, the petitioner, constituted a misuse of a social security number obtained by fraud, a violation of 42 USC §408(a)(7)(A).
In 1999, Hyder was issued a social security card following a family member’s submission of an application in Hyder’s name, which falsely stated that he was lawfully present in the U.S. on a student visa. Although Hyder himself did not complete the application, the family member acted with Hyder’s knowledge. In 2000, Hyder used the social security card to obtain a Texas driver’s license and identification card. In June 2003, Hyder pleaded guilty to misuse of a social security number obtained by fraud in violation of 42 USC §408(a)(7)(A). Hyder was placed in removal proceedings and applied for cancellation of removal under INA §240A(b). The immigration judge concluded that Hyder’s conviction constituted a crime involving moral turpitude which rendered him ineligible for relief. The BIA affirmed.
On review, the court considered whether the BIA properly classified misuse of a social security number under 42 USC §408(a)(7)(A) as a crime involving moral turpitude. A person may be convicted under 42 USC §408(a)(7)(A), if he or she “willfully, knowingly, and with intent to deceive,” used a social security number that had been assigned on the basis of false information. As “moral turpitude” is not defined by the INA, the court previously adopted the BIA’s definition, which refers to conduct that “shocks the public conscience,” is “inherently base, vile, or depraved,” and is “contrary to the accepted rules of morality and the duties owed between persons or to society in general.”Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996). The court noted that it has also “repeatedly emphasized that crimes whose essential elements involve fraud or deception tend to be [crimes involving moral turpitude].” See Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir. 2002) (“[c]rimes including dishonesty or lying as an essential element involve moral turpitude”); Fuentes-Cruz v. Gonzales, 489 F.3d 724 (5th Cir. 2007); Balogun v. Ashcroft, 270 F.3d 274 (5th Cir. 2001); Okabe v. INS, 671 F.2d 863 (5th Cir. 1982).
The court rejected Hyder’s argument that the circumstances surrounding his conviction, along with his lack of a “vicious motive” or “corrupt mind” were inconsistent with a finding of moral turpitude. The court explained that in determining whether an offense involves moral turpitude, “[w]e concentrate on the ‘inherent nature of the crime as defined in the statute concerned, rather than the circumstances surrounding the particular transgression.'”Omagah, 288 F.3d at 260 (quoting Okoro v. INS, 125 F.3d 920, 926 (5th Cir. 1982). The court explained that the statute of conviction requires that Hyder act “willfully, knowingly, and with intent to deceive,” and as its “precedents make clear, such a crime falls well within [it’s] understanding” of the definition of crimes involving moral turpitude.
In Beltran-Tirado v. INS, 213 F.3d 1179, 1183 (9th Cir. 2000), the Ninth Circuit held that falsely representing a social security number in violation of 42 USC §408(g)(2) (later recodified at 42 USC §408(a)(7)(B)), where the petitioner, a registry applicant, used the card to work and establish credit in the U.S., was not a crime involving moral turpitude. In so holding, the Ninth Circuit relied heavily on the legislative history of 42 USC §408(d) (now §408(e)), which provided that persons who have been granted permanent resident status under amnesty or registry statutes are exempt from prosecution for certain acts involving misuse of false social security numbers. Id. The court declined to follow Beltran-Tirado in exempting misuse of a social security number from moral turpitude status, noting that it is not binding precedent in the Fifth Circuit. The court also opined that in applying the exemption to a registryapplicant (as opposed to persons granted permanent resident status through registry), the Ninth Circuit appeared to have “expanded the exemption beyond what Congress intended.” Moreover, the petitioner in the present case does not fall within the class of persons described in 42 USC §408(e), as he is not himself a lawful permanent resident. The petition for review was denied.

These are the latest processing times for the following service centers:
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News Bytes Via press release, the U.S. Citizenship and Immigration Services (UCSIS) has announced the termination of the Temporary Protected Status (TPS) for nationals of Burundi . The termination of status will take affect May 2, 2009. After reviewing country conditions, USCIS determined that conditions inBurundi no longer support the TPS designation and are therefore terminating the designation.
To allow sufficient time for eligible persons to re-register for the final 18 months of TPS for Burundi , the current Employment Authorization Documents (EADs) held by individuals who have been granted TPS are automatically extended through May 2, 2008. For Burundi nationals to re-register for for TPS benefits, the 60-day re-registration period began on October 29, 2007, and will end on December 28, 2007. Re-registration is limited to persons who have registered for TPS under the designation of Burundi and whose applications were granted or remain pending.
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An expert panel appointed by the National Research Council published a report this month stressing the need for the federal government to create a commission to promote the free flow of scientific knowledge and research from other countries while balancing the threat from our enemies, The New York Times reports. The report suggests the first step is for U.S. colleges to continue to bring in foreign science and engineering students. “For more than 50 years,” the report says, ” U.S. research universities have welcomed and fostered the talents of both foreign-born and U.S. students in the service of national and economic security.” The panel warned that with fewer American students choosing careers in science and engineering, the American research effort cannot be sustained without a significant and steady infusion of foreign participants.
However, the panel says that safeguards are needed to ensure that important research does not fall into the wrong hands. It recommended the creation of a federal commission “to address ongoing shared concerns of the security and academic research communities,” including export and visa policies and participation of foreigners in research. Jacques Gansler of the University ofMaryland , a former Pentagon official who is co-chairman of the committee, said research institutions have taken steps since the attacks of Sept. 11, 2001, to address security concerns. “Both the security and scientific communities agree that losing our leading edge in science and technology is one of the greatest threats to national security,” Dr. Gansler said.
More information on the pane’s report is available from the National Research Council at http://sites.nationalacademies.org/nrc/index.htm.
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The Bradenton Herald of Florida reports that immigration advocates descended upon the New College of Florida last week to protest an appearance by CNN’s Lou Dobbs, who visited the campus as part of a promotional tour for his new book. Dobbs has become an outspoken opponent of legal and illegal immigration.
Activists say his reporting is biased and incorrect when it comes to undocumented immigrants living in the United States . “Lou Dobbs has been one of the instrumental factors in the propagation of hate and lies agains immigrants,” said Jose Manuel Godinez Samperio, a protest organizer andNew College student. “We don’t want him in the community.”
“The things he says are pretty representative of the anti-immigration movement,” Samperio said. “The law isn’t that you have to be scared all the time and people have to oppress you.”
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Last week, Greg Siskind told a House Judiciary subcommittee that a board to review immigration visa applications denied at overseas U.S. consulates is “long overdue” and should be created.
The proposed board is part of the Save America Comprehensive Immigration Act that includes a path to citizenship for the 9 million to 20 million undocumented immigrants now in the country. It is one of several immigration-reform proposals pending in Congress.
Siskind was one of seven witnesses testifying about the bill introduced by Rep. Sheila Jackson-Lee, D-Texas.
He said the board, first recommended by Sen. Edward Kennedy, D-Mass., in 1970, would bring fairness and oversight to the overseas visa application process and improve the image of the United States .
Because many consulates bar lawyers from representing their clients before State Department officials, a prospective immigrant may be asked legal questions that can lead to a denial, Siskind said. Currently, the ruling of a consular official denying a visa cannot be appealed.
The full text of Greg’s testimony can be found here.
International Roundup The British Columbia Civil Liberties Association yesterday urged the province’s solicitor general to take Tasers away from police until training on the device is increased and more checks are implemented for its use, Canada ’s CanWest News Service reports. The call comes fewer than two weeks after Polish immigrant Robert Dziekanski died at Vancouver International Airport after being shocked with a Taser by police.
‘Policing will not grind to a halt without the Taser. It is only one among a wide array of intermediate force options available to police,’ association president Jason Gratl said in a news release.
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According to The Associated Press, the lower chamber of the Czech parliament voted last week to tighten rules for immigrants seeking permanent residency in this European Union country. The vote passed 84-2, with 70 deputies abstaining. The bill still must be approved by the parliament’s upper chamber and by President Vaclav Klaus.
The Interior Ministry, which proposed the amendment, said it was necessary as the country was set join the EU borderless travel zone in December together with eight other new EU members. Critics argued the measure would worsen living conditions for couples.
Among the most notable changes, a citizen from a non-EU country who marries a Czech national would have to wait two years before receiving a residency permit, rather than receiving it immediately as is now the case. Foreigners also would need to prove ability to speak Czech. The measure does not apply to citizens of other EU countries.
The ministry said the number of fake weddings had increased significantly in recent years, but gave no details.

Greg Siskind’s Blog on ILW.com

• Spitzer’s Immigration Surrender
• Fool’s Gold
• Immigrant of the Day: Derek Walcott – Playwright and Poet
• See Lou Run
• Target, Whole Foods Sued for I-9 Document Abuse
• H-2B Technical Fix Latest Sign of Immigration Paralysis
• Dilemma of the Moment: Detaining New Mothers
• Number of Students Visas Issued Reaches Record Numbers

The Visalaw.com Blog

• A Busy Week
• Greg Siskind Speaks at AmLaw COO/CMO Conference in New York
• What Makes Lawyers Successful
• Greg Siskind’s ABA Internet Marketing Book Out in 3^rd Edition

Visalaw Health Blog

• More Links to Las Vegas Sun J-1 Physician Abuse Stories
• Nurse Immigration Measure Included in Senate Budget Bill

Visalaw International Blog

• SSB Attorneys Present at IBA Annual Meeting in Singapore
• US: Greg Siskind Testifies on Consular Processing in Congress
• Canada Plans Credential Accreditation Services in India and China
• Canada Lifts Visa Requirement on Czech Republic and Latvia
• Canada : Passport Office Delays Getting Worse, Apply Early!

Tech Notes – The Immigration Lawyer Blog

• AmLaw Technology Marketing Slides
• Gliffy Offers Online Flowchart Software
• Files Anywhere – New Web 2.0 File Management System
• Microsoft Offers Online Document Sharing and Storage

Visalaw Fashion, Sports, & Entertainment

• Finland ’s Top Musician Tells of Border Entry Ordeal
• US and UK Sports Firms Team up to Promote Athletes in Both Regions
• US Visa Policies Blocking Admission of Artists

Long-shot presidential nominee Rep. Tom Tancredo announced last week that he will not seek re-election to his House seat next year, even if he doesn’t win the bid for the Republican presidential nomination. The Coloradocongressman, one of Washington ’s staunchest opponents of immigration said that the issue has gained other champions to take his place, and that his work is complete.
“I just figure, how many more signs do I need that I’ve done what I set out to do,” he said in a telephone interview from Iowa , where he is campaigning.
Tancredo made his mark by pressing for strict reform on immigration long before the September 11, 2001, terrorist attacks brought the issue to the political forefront. While it’s since become common, Rep. Tancredo was one of the first conservative Republicans to break publicly with the Bush administration, telling The Washington Times in 2002 that the president was the leading obstacle to national security.
Immigrants-rights advocates said Tancredo has done serious harm to his party. “He’s become the leading spokesman in his party demonizing immigrants and demagoguing the immigration issue,” said Frank Sharry, executive director of the National Immigration Forum. “It’s gotten him lots of press attention but the long-term cost to his party will be devastating. You don’t beat up and bully the fastest-growing group of voters in the nation without paying a price.”
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US Senator and Republican presidential candidate John McCain said his support of legislation to give undocumented immigrants a way to gain legal status has hurt his campaign. The Arizonan senator was a major supporter of immigration legislation that died in the Senate in June because of Republican opposition. He said he is now committed to making sure the borders are secure before implementing broader changes to US immigration law.
Testimony of Greg Siskind: US House Hearing on the Save America Comprehensive Immigration Act of 2007

Testimony of Gregory Siskind, Attorney
Siskind Susser Bland, P.C. – Immigration Lawyers
Memphis, Tennessee
Before the US House of Representatives Committee on the Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law

Hearing on the Save America Comprehensive Immigration Act of 2007

November 8, 2007

Thank you for this opportunity to testify before the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law to share my views on the Save America Comprehensive Immigration Act of 2007, which I will refer to as the SAVE Act. The SAVE Act was introduced by Representative Sheila Jackson-Lee.
I am Greg Siskind and I have practiced immigration law for the past seventeen years and am the author of a number of books, book chapters and articles on US immigration law. They include The J-1 Visa Guidebook, published annually by Lexis-Nexis, Siskind’s Immigration Bulletin, a weekly newsletter with more than 40,000 readers, as well as chapters in the American Immigration Lawyers Association books Immigration Options for Physicians, Immigration Options for Religious Workers and Immigration Options for Health Care Workers and a chapter on immigration law in the book The Biggest Mistakes Physicians Make, published by SEAK. Visalaw.com, the web site I created in 1994, has more than a thousand articles on various immigration topics and was the first web site in the world devoted to the subject of immigration law.
While I will largely focus my remarks on Title II of the SAVE Act regarding the creation of a Board of Visa Appeals, I would first like to make some general comments about the bill. The SAVE Act does not seek to solve every immigration problem in the current system. Rather, Congresswoman Jackson-Lee, the former Ranking Member of the Immigration Subcommittee, has identified a number of the most pressing problems in immigration and has offered solutions that are both straightforward and workable. This includes items that, while important, have not been covered in comprehensive immigration reform proposals introduced in the House or the Senate. SAVE is a “good ideas” bill that will hopefully pass on its own or be largely incorporated in to other legislation that may move through Congress.
A few sections of SAVE that are not covered in pending comprehensive immigration reform proposals are worth special mention:
– provisions making applicants less vulnerable to administrative delays such as one allowing for the sponsorship of adopted children when adoption proceedings begin prior to the beneficiary turning sixteen (as opposed to the current law requiring completion of the adoption by that age);
– a provision allowing spouses of permanent residents to file for K visas allowing for entrance to the US more quickly once a visa number is available;
– a section providing grandparents, aunts and uncles with the ability to sponsor a grandchild, niece or nephew when an applicant’s parents died before the age of eighteen;
– a provision making it a violation of federal law for an employer to threaten an employee with deportation or other immigration consequences if the purpose is to intimidate or coerce;
– expanding the right to counsel for immigrants in bond, custody and detention hearings;
– a sensible, fair waiver availability for persons with minor controlled substance offenses;
– the granting of refugee and asylees benefits to handicapped adult children of asylees and refugees if they are unable to care for themselves or when needed to preserve family unity;
– allowing long-term temporary protected status beneficiaries to seek permanent residency.
All of these ideas as well as many others in the bill are worth consideration and would represent substantial improvements to the immigration system.
As I previously noted, I focus my remarks today on Title II of the bill on the establishment of a board of visa appeals for immigrant visa petitions denied at US consulates abroad. The idea for a board of visa appeals is not new. In fact, Senator Edward Kennedy wrote about the need for such a board back in 1970 in an article he wrote on needed reforms to the US immigration system.^[1] While nearly four decades have passed since Senator Kennedy introduced the concept, the need for such a board remains.
Generally speaking, there are two procedures available for people eligible for permanent residency to process their applications. If the aliens are in theUnited States , after processing an I-130, I-140 or other immigrant visa classification petition with US Citizenship and Immigration Services (USCIS), which indicates that they are eligible for the status being sought, they typically are able to complete their applications domestically by filing an adjustment of status petition with US Citizenship and Immigration Services.
Applicants outside the US processing green card applications based on the very same USCIS-approved immigrant visa classification petitions must instead process their immigrant visa petitions at US consulates overseas.
One of the most serious mistakes a would be immigrant or the individual’s lawyer can make in a permanent residency case is assuming that the approval of an I-130 or I-140 immigrant petition by US Citizenship and Immigration Services guarantees the applicant will be able to obtain permanent residency. For instance, the applicant must also be “admissible” to the United States and the rules regarding inadmissibility are extremely complex. Applying the facts to those laws is often quite challenging.
An application can be denied based on a variety of admissibility grounds. One common example is triggering a reentry bar by overstaying an authorized period of stay. The facts in these cases are not always clear cut. For example, an engineer at a well-known company in my home state of Tennesseerecently came to me to deal with the problem of being misled by the one of the company’s human resource officials regarding the timely filing of an extension of the employee’s H-1B application. The company informed the employee that the extension was filed when, in fact, no application had ever been filed. After more than six months of asking, the truth was revealed. Unfortunately, this did not happen soon enough to stop a three year reentry bar from being triggered even though the engineer believed he was complying with US laws.
Sometimes the denial may be based on questions of eligibility for the visa such as the application of the Child Status Protection Act, rules regarding the legitimating of a child who is the child of a US citizen parent not married to the child’s other non-citizen parent, issues regarding the legality of a marriage under the laws of the country where the marriage took place, or a broad variety of other legal questions that arise in immigrant visa cases.
For applicants adjusting status in the United States , a denial can be challenged in administrative tribunals (immigration court and the Board of Immigration Appeals (BIA)) and in the federal courts.
However, denial of an immigrant visa at a consular post is almost impossible to have overturned. Section 104(a) of the Immigration and Nationality Act provides: The Secretary of State shall be charged with the administration and enforcement of the provisions of this Act .… relating to .… the powers, duties and functions of diplomatic and consular officers of the United States except those powers, duties and functions conferred upon the consular officers relating to the granting or refusal of visas. Various court decisions over the past century have held up the principle that a consular officer’s decision is not subject to administrative or judicial review.^[2] The opportunity to challenge visa denials by consular officers is minimal. The appeal would have to be made to the officer’s superiors at the office and they would not be required to respond to an applicant’s challenge to the consulate officer’s decision. As a matter of discretion, a case may be referred to the State Department in Washington for an advisory opinion on a pure question of law. Applicants are not permitted to see the advisory opinion and applicants are only notified that the decision has been issued. And the State Department’s Visa Office view that an Advisory Opinion Division determination only offers “guidance” to consular officers has been upheld in Federal Court.^[3] The Save Act’s Board of Visa Appeals proposal Title II of the Save America Comprehensive Immigration Act of 2007 will create a Board of Visa Appeals (BVA) within the State Department to review family-based visa appeals. The board would have five members appointed by the Secretary of State, two of whom may be consular officers. The BVA would have the authority to review any discretion decision of a consular officer on a family-based immigrant visa petition. Unlike the current system where the only aspect of a decision that may be reviewed is a consular officer’s interpretation of the law, the BVA would be able to review the entire decision of the consular officer and the board itself shall have the authority to override the consular officer when the preponderance of the evidence is contrary to the officer’s decision.
Applicants denied immigrant visas will be provided a notice of the availability of the BVA and that a request for review shall be made within 60 days of the denial of the case. Once a request for a review is made, the BVA shall have thirty days to notify the consular officer to provide the Board with a written record of the proceedings in order to review all of the facts of the case. The consular office shall then have up to 30 days to provide the requested documentation.
Applicants will be advised when the Board hearing will occur and shall be permitted to be represented by counsel. The legislative language does not require the State Department to allow for an in-person hearing and presumably the agency will use its discretion to establish a written appeals process in order to operate efficiently. Finally, the State Department shall charge a fee for an appeal sufficient to cover the State Department’s cost for the proceedings.
There are a number of reasons supporting the creation of a Board of Visa Appeals.
Fairness First, there is the basic question of why two persons with the same type of immigrant visa petition and the same set of facts should be entitled to different rights and protections based strictly on where they are physically located?
Arguably, many individuals who are consular processing actually have astronger case for having the option to appeal than applicants in the US who are adjusting status. Adjustment applicants are often in a non-immigrant work status and can continue living in the US while they re-apply (assuming they can present evidence to overcome the basis for the denial). An individuals consular processing is likely going to have to wait several additional years.
Many individuals in the US with immigration status violations are able to process under provisions like Section 245(k) or Section 245(i). Consular applicants generally have no status violations and have been waiting patiently – often for many years – for their cases to be heard. During the comprehensive immigration reform debate this past summer, many opponents of that legislation argued that people who play by the rules should not be treated worse than those don’t. Presumably, the lack of an appeals process for consular-processed immigrant visa petitions should cause similar concerns.
Another issue of fairness in the consular process versus the adjustment of status process involves the role of the attorney.
Interviews are waived in many easily approvable adjustment of status cases. In those cases where interviews are mandatory or where a USCIS examiner determines that an interview is appropriate, an applicant is entitled to be represented by counsel. The presence of counsel, of course, can be critical in the determination of a case.
The State Department notes the importance of counsel in the visa process: In the sometimes-complex world of visas, a good attorney can prepare a case properly; weed out “bad” cases; and alert applicants to the risks of falsifying information. The attorney can help the consular officers by organizing a case in a logical manner, by clarifying issues of concern, by avoiding duplication of effort and by providing the applicant with the necessary understanding of the intricacies of the visa process.^[4] But despite this acknowledgement of the importance of counsel, many consulates around the world bar attorneys from participating in the interview process. The State Department allows consulates and individual consular officers to determine the circumstances if and when an attorney can represent a client. Many consulates have decided to bar attorneys not just from the interview, but even from entering the consulate at all. Communication by an applicant or the applicant’s attorney with a consular officer in person or by any means of communication such as telephone or email is often impossible or severely limited.
The interview itself often takes place at a window and lasts just a few minutes with only a few questions being asked and no opportunity for the applicant to address questions relating to the eligibility for the visa. The applicant may have waited many years – as long as twenty years in some cases – for an interview and have his or her entire future hanging in the balance. The burden is on the individual to prove their eligibility; however, they only get one chance to do this. Individuals from foreign nations often lack a highly sophisticated understanding of our nation’s laws and are likely to be confused about how best to present their case before a U.S. consular officer.
While an appeals board would not affect the role of the attorney in a consular interview or otherwise alter the interview process, applicants would benefit from representation of counsel in front of an appeals board.
Oversight While the vast majority of consular officers try to be objective and to make sure that they have a sufficient understanding of the facts and the law to issue a fair decision, the fact is that the consular officer acts as judge, jury and prosecutor, and they do it during an interview that typically only lasts a few minutes. And in smaller posts, a consular office may be inexperienced and have very little supervision.
Consular officers are required to provide a timely, written notice to applicants explaining the reason for a visa denial. In practice, however, the notice may contain virtually no information useful in determining the actual basis for denial of the application and may simply list a section of the statute with no analysis explaining the basis for a negative decision.
A consular appeals board could help in ensuring that consular officers who deny cases are more careful in documenting the reasons surrounding the decision and that the alien will be able to understand the reasons for the denial. And the State Department would get a better sense of problems in adjudications at posts when they have the ability to review the entire records of decisions. If the board is able to determine that certain posts or individual officers are making poor decisions, training can be offered or officers can be assigned to other duties.
The Image of America As Geoff Freeman, executive director of the Discover America Partnership, noted in testimony before the Subcommittee on International Organizations, Human Rights and Oversight Committee on Foreign Affairs this past March, treatment of visa applicants at US consulates is having serious consequences when it comes to shaping the image American has around the world.^[5] As noted in Mr. Freeman’s testimony:

• Travelers rate America ’s entry process as the “world’s worst” by greater than a 2:1 margin over the next-worst destination area.

• The U.S. ranks with Africa and the Middle East when it comes to traveler-friendly paperwork and officials.

• 54 percent of international travelers say that immigration officials are “rude.”

• Travelers to the U.S. are more afraid of U.S. government officials (70%) than the threat of terrorism or crime (54%).

While a consular appeals board would only apply to green card cases and not the large number of visitor visa denials that occur every day, these are the denials that prevent Americans from bringing family members to the US . The fact that at least some cases will be reviewable will send out a signal that theUS is trying to be fair. Sending out the message that our consular officers are arbitrary and capricious does nothing to advance America ’s public diplomacy efforts.
Conclusion A Board of Visa Appeals is long overdue and would ensure that applicants processing immigrant visas at US consulates are now worse off than those processing in the US . The costs would be borne by the applicants, not by US taxpayers, and the quality of adjudications at consulates overseas are likely to improve with the additional oversight.
There are some changes to the proposal that might be worth considering. For example, the current version only covers family-based green cards. Similar problems arise in cases involving employment-based immigrant visas and those cases could also be covered. While I recognize that including non-immigrant visas across the board would dramatically expand the work of an appeals board, Congress might also look at including certain types of non-immigrant visa categories that are relatively small in number and that involve complex legal questions. Those might include, for example, E-2 and E-1 treaty investor and trader cases as well as O-1 extraordinary ability petitions.
Finally, it is important to remember that in most family immigrant cases, the petitioner is a US citizen seeking to be reunited, for example, with a wife, a husband, or a child. They are also being protected by this proposal and they deserve assurance that if they play by the rules, there is a fair system available to their families.
I appreciate the invitation to testify today and am happy to answer any questions.

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[1] “Immigration Law: Some Refinements and New Reform,” by Edward M. Kennedy, International Migration Review, Vol. 4, No. 3 (Summer 1970), pp. 4-10.
[2] In the case of Burrafato v. United States Department of State, 523 F.2d 554 (2d Cir. 1975), the doctrine of Consular Non-reviewability barred a review of the denial of a wife’s petition on behalf of her husband even where the consular officer failed to provide the specific reasons for the denial despite the fact that this was what was required under the applicable law.
Even where an applicant has sought review of a denial on the grounds that a consular officer has acted on erroneous information, the court has been unable to assist. A father of three U.S. citizen children sought review of his denial on the grounds that the visa was denied due to erroneous information. He argued that if this information were not corrected he would never be able to legalize his entry or residence. Loza-Bedova v. Immigration and Naturalization Serv., 410 F.2d 343 (9th Cir. 1969).
Courts have refused to review the denial of a visa based on what a consular officer determined to be an invalid marriage. DeGomez v. Kissinger, 534 F.2d 518 (2d Cir. 1976). In this particular case, the court refused to review the denial of a visa denied on the grounds that the consular officer believed the marriage between the husband and his permanent resident wife was a sham. Due to the doctrine of consular non-reviewability the court also refused to interview the wife despite her request that they do so.
The court refused to review the decision of a consular officer to deny the husband of a permanent resident a visa even where he sought to prove that the only grounds for his denial was his former political affiliation that he claimed he held only as a result of the turbulent political state in his home country, and further that if he were forced to return to that country, that this would be a threat to his personal safety. Ben-Issa v. Reagan, 645 F. Supp 1556 (W.D.Mi.1986).
The court was barred from reviewing the denial of a husband’s visa petition on behalf of his alien wife where he sought to prove that she had not been charged with the crimes of “moral turpitude” that her visa denial was based upon. States ex rel. Ulrich v. Kellogg, 30 F.2d 984 (D.C. Cir. 1929).
Despite allegations that the consular officer disregarded the Attorney General’s controlling interpretation of the law, the court was unable to review the denial of an immigrant visa petition of an unmarried adult daughter of a permanent resident. Garcia v. Baker, 765 F.Supp. 426 (N.D. Ill. 1990).
The doctrine of consular non-reviewability barred a father seeking relief when he alleged that a consular officer denied his petition based on the false belief that his permanent resident son was not legitimate. Grullon v. Kissinger, 417 F.Supp. 337 (E.D.N.Y. 1976).
[3] Garcia v. Baker, 765 F. Suppl. 426 (N.D. Ill. 1990); United States ex rel. Ulrich v. Kellogg, 30 F.2d 984 (D.C. Cir. 1929).
[4] 9 FAM 40.4 N12.
[5] http://www.poweroftravel.org/freeman_testimony_3_20_07.pdf Guest Article: Statement by Rep. Sheila Jackson Lee to US House on Save America Comprehensive Immigration Act of 2007

Statement
Congresswoman Sheila Jackson Lee
Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law
Hearing on H.R. 750, “Save America
Comprehensive Immigration Act of 2007”
November 8, 2007

I want to begin by thanking the Chair of this Subcommittee, Zoe Lofgren, for holding a hearing on my Save America Comprehensive Immigration Act of 2007, H.R. 750 (Save America Act).

Immigrants come to the United States today for the same reason so many millions came before them, in this century and last, from this continent and from every other. They come for the same reasons that many of our ancestors left the cotton fields of Mississippi and Alabama for the factories ofDetroit and Cleveland , the packing houses and office buildings of Chicago , and shipyards of Philadelphia and Los Angeles and New York .
They come for the same reason families have always come to America: to be free of fear and hunger, to better their economic opportunities, to begin their world anew, and to give their children a chance for a better life. Like previous waves of immigrants, they too will wage all and risk all to reach the sidewalks of cities such as my home of Houston . Or Los Angeles . OrPhoenix . Or Chicago . Or Atlanta . Or Denver . Or Detroit .
As we did on the back roads of Georgia and Tennessee and Alabama , they will risk death in the desert; they will brave the elements, they will risk capture and crime, they will endure separation from loved ones.
And if they make it to the Promised Land of America, no job will be beneath them. They will cook our food, clean our houses, cut our grass, and care for our kids. They will be cheated by some and exploited by others. They work in sunlight but live in twilight, between the shadows; not fully welcome as new Americans but wanted as low-wage workers. Somewhere near the borders tonight, a family will cross over into the New World , willed by the enduring power of the American Dream.
First, I believe that an integral component of any comprehensive immigration reform is a component that ensures that at least some of the immigration fees be used for education and job training of Americans. That is why Title VII of my legislation requires a portion of the filing fees for temporary visas for guestworker visas and for the process of earned legalization should be set aside to establish a job training and job development fund. The fund would be used to establish employee training programs for American workers.
The training programs would afford a wealth of job opportunities for African American males and other underemployed populations. The fund also should provide job training for the middle-aged American workers who have been or are in danger of being replaced by foreign workers. The job development fund could also be utilized to encourage job development in low employment areas.
I would also like to address the misperception that immigrants are taking jobs away from American workers. This possibility is greatly exaggerated by those who would wish to gain our support with their anti-immigrant objectives. Among other things, the American economy does not have a fixed number of jobs. Economists describe the notion that the number of jobs is fixed as the “lump of labor” fallacy. Job opportunities expand with a rising population. Since immigrants are workers and consumers, their spending on food, clothing, housing, and other items creates new job opportunities. I expect this to become more evident when we finally get around to fixing our broken immigration system and the over 12 million undocumented immigrants in the United States no longer have to live in the shadows of society.
Everyone agrees that we need to reform our broken immigration system. The only disagreement is over how to do it. The most controversial question is whether we should provide access to legalization for the 12 million undocumented immigrants who are living in the shadows of our society.
In addition to the fact that many of them have earned access to legalization, it is not in the best interests of the country to let them remain in the shadows. Among other things, it is a security problem to have such a large population of immigrants in our country that we do not know anything about. I also know that immigrants cannot be equated with terrorists. Reducing the population of undocumented immigrants who are here to work would make it easier to find the people who are here to do us harm.
Opponents of immigration reform advocate an enforcement-first approach to dealing with our immigration problems. That approach would not work. Immigrants who want to work in the United States to make a better life for themselves and their families must have a legal way to do it, just as employers who need foreign employees must have a way to bring them to theUnited States . Otherwise, illegal immigration will continue to be problem.
The only effective solution is comprehensive immigration reform. I have introduced a bill that would provide such reform, the Save America Comprehensive Immigration Act of 2007. Let me note briefly a few of its provisions. It requires the Secretary of Homeland Security to impose a 10% surcharge on fees collected for employment-based visa petitions. These funds would be used to establish much needed employment training programs for our rural and urban areas.
It has three legalization programs. It would require the Secretary of Labor to conduct a national study of American workplaces on the exploitation of undocumented alien workers by their employers. It also provides the Border Patrol with the personnel, resources, and equipment that it needs to secure the border. Our borders will continue to be out of control until we have immigration reform that provides more opportunities for immigrants to come to this country legally.
In summary, the Save America Act covers a broad range of issues, many of which are not addressed by other bills. This has been recognized already by some leading Members of Congress. For instance, Senator John Kerry added the “Rapid Response Measures,” in Subtitle A of the Save America Act, to the Senate’s Comprehensive Immigration Reform Act of 2006, S. 2611.
The Rapid Response Measures would permit the Secretary of the Department of Homeland Security to deploy up to 1,000 additional border patrol agents to a crisis area along the border if the governor of the border state has declared an international border security emergency, and the governor has requested the additional agents.
The Rapid Response Measures also would provide border patrol agents with 100 additional helicopters, 250 additional power boats, control of border patrol assets, one police-type vehicle for every three border patrol agents, portable computers for vehicles, effective radio communication, hand-held global positioning system devices, night vision equipment, body armor, and the weapons the border patrol need when they encounter heavily armed men guarding drug caravans.
These provisions are also included as “Rapid Response Measures” in Subtitle F of the Security Through Regularized Immigration and a Vibrant Economy Act of 2007, H.R. 1645 (the STRIVE Act).
Although I am pleased that my Rapid Response Measures are being used in other immigration reform bills, I believe that it is inadequate to incorporate them in only a piecemeal fashion which neglects other important provisions of this important legislation. The origin of those provisions was my Rapid Response Border Protection Act of 2005, H.R. 4044, and the rest of the provisions in H.R. 4044 are also necessary, such as the personnel provisions for addressing recruitment and retention issues at CBP. I included all of these important provisions in the Save America Act.
T.J. Bonner, the President of the National Border Patrol Council, provided invaluable information on the needs of Border Patrol agents when the Rapid Response Border Protection Act was being written. His testimony today will include an explanation of why the rest of the provisions from that bill are necessary.
Furthermore, the Save America Act has provisions to establish a Fraudulent Documents Task Force which could strengthen the fraud provisions in the STRIVE Act. The task force would collect information from United States and foreign law enforcement agencies on the production, sale, and distribution of fraudulent documents. In addition to distributing this information on an ongoing basis to where it is needed, it would maintain a database that would be available to the law enforcement community both here and abroad.
Although the STRIVE Act has good detention provisions to reduce the number of aliens who are detained in penal institutions, such as the T. Don Hutto Residential Center in Taylor, Texas, the Save America Act addresses the plight of detained aliens in a much more comprehensive fashion. The Save America Act would establish a Secure Alternatives to Detention Program under which children and other vulnerable populations would be released to the custody of suitable individuals or organizational sponsors who would supervise them, prevent them from absconding, and ensure required appearances. The program would be developed in consultation with non-governmental experts in the immigration and the criminal justice fields, with consideration given to the program developed by the Vera Institute and the DHS Intensive Supervision Appearance Program.
Chris Nugent, who will be testifying today, is an expert on detention facilities for families and other vulnerable populations. He provided valuable information when the Secure Alternatives Program was being drafted. He will testify about the program and explain how it would strengthen the detention provisions in the STRIVE Act.
Moreover, I do not think that an immigration reform bill can fix our broken immigration system without addressing the problems created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Among other things, IIRIRA established a deportation ground based on aggravated felony convictions, redefined “aggravated felony” without regard to the seriousness of the criminal offenses being classified as “aggravated felonies,” and made these changes retroactive.
Lawful permanent residents have been deported as aggravated felons for minor offenses that did not result in incarceration and were not deportation grounds when they were committed.
Charles H. Kuck, the National President-Elect of the American Immigration Lawyers Association (AILA), will testify about the need for IIRIRA fixes. He is an immigration law expert who has had extensive experience representing aliens who are victims of IIRIRA’s harsh provisions.
Lastly, the Save America Act has provisions that would make it difficult for Americans who are on the National Sex Offender Registry to use our immigration laws to bring victims of sexual abuse into the country. These provisions would authorize the denial of a family-based visa petition for a spouse or child if (A) the petitioner is on the Sex Offender Registry for a conviction that resulted in incarceration for more than a year; (B) the petitioner has been given at least 90 days to establish that he is not on the registry or that he was not incarcerated for more than a year for the offense and has failed to do so; and (C) a finding has been made that granting the petition would put a spouse or child beneficiary in grave danger of being sexually abused.
Why is this necessary? I asked the General Accountability Office (GAO) to find out how many Americans on the national sex offender registry filed family-based visa petitions in FY2005. They found records of 398 American petitioners who filed family-based visa petitions were on the National Sex Offender Registry.
GAO was only able to ascertain the nature of the offenses for 194 of the 398 petitioners. These offenses included 119 convictions for sexual assault, 35 for child fondling, nine for strong arm rape, nine for carnal abuse combined with a sexual assault, seven for statutory rape, four for crimes against persons, three for indecent exposure, two for kidnapping, two for obscene material possession, one for exploitation of a minor with photographs, one for incest with a minor, one for sodomizing a boy, and one for restricting movement.
The Immigration and Nationality Act did not permit a denial of any of those visa petitions on the ground that approval could endanger the woman or child being brought to the United States . Since then, statutory provisions in criminal legislation have made it possible to deny visa petitions if the American sponsor has been convicted of any of a substantial list of criminal offenses. Aside from the absence of due process in challenging such denials, the provisions are not comprehensive enough with respect to sex offenders.
In addition, as the Chair of the Congressional Black Caucus Immigration Task Force, let me briefly describe what the Congressional Black Caucus thinks should be done.
The Congressional Black Caucus (CBC) recognizes the need for a comprehensive approach to immigration reform that includes increased security, protection against illegal immigration, immigration policies that have articulated objectives and fair administration of our immigration system. To that end, the CBC has adopted four principles to guide its deliberation regarding immigration reform. BORDER SECURITY: The federal government has the responsibility to protect, through border security and other means, against immigrants illegally entering the country and/or overstaying their authorized periods of admission. The CBC, therefore, supports funding for border security equipment, border patrol agents, enforcement and other resources as reasonably necessary to accomplish those objectives. ECONOMIC OPPORTUNITY AND FAIR WAGES FOR LEGAL WORKERS: All citizens and legal workers in the United States should be assured education and job training, non-discriminatory employment opportunity and a livable wage. The CBC, therefore, supports increased funding for education and job training utilizing fees generated from new immigration provisions and other resources and supports increased funding for enforcement of laws against employment discrimination, wage and hour violations, unfair labor practices and illegal hiring. The CBC also supports holding employers accountable for the legal status of their employees. DIVERSITY AND EQUAL TREATMENT: The CBC supports immigration criteria that will increase the diversity of immigration from countries that have historically been underrepresented, such as countries in the Caribbean and Africa, or treated unequally, such asHaiti .
It is important to keep in mind which groups bear the brunt of the bad policy proposals in the immigration debate. They are primarily people attempting to migrate from Africa, Haiti and the Caribbean, Latin America,China , and other regions. While African Americans did not cross the borders to the United States voluntarily, historically as now, people of color (immigrants of color) are scapegoats for the economic ills of the United States and subjected to exclusionary laws that African Americans have fought since slavery.
Equally important, we must not forget who benefits from current immigration crisis. It is neither immigrants nor native citizens, but corporations and businesses that thrive on a tilted economic system that exploits low wage workers, divides people who have common interests with ‘us versus them’ wedge politics, and hinders racial justice advocates from winning policies that promote living wages, economic mobility and equal opportunity for all members of our society. EARNED ACCESS TO CITIZENSHIP: Finally, the CBC supports earned access to lawful permanent resident status for persons currently in the United States that takes the following factors into account:
• Unification of immigrant families, which would include uniting immigrants with spouses, children or other close family members who are citizens or lawful permanent residents of the United States ;
• Proven employment records through temporary and guest worker programs or other temporary residence programs; and
• Such reform of earned access to citizenship should also include a path to permanency for the undocumented already here.
We can and should distinguish between those who have come here out of their love for the United States and what it represents and the opportunities it affords for a better life from those who come because they hate Americaand wish to kill or injure Americans.
Surely, it makes more sense to concentrate our resources on the latter and persuade the former to come out from the shadows. We will not persuade them to come into the light if all we offer is an armed escort back to the place of economic or political hopelessness they fled. To paraphrase Edmund Burke, the original English conservative, we will not encourage undocumented workers to come out from the shadows if everywhere they look “they see nothing but the gallows.”
Why not, instead, say to those undocumented workers who are working jobs most Americans will not take: come out from the shadows and earn the chance to apply for citizenship in this country? You broke the law to come here, and you must acknowledge that you did by going to the back of the line, paying a substantial fine, staying employed, learning our language, paying taxes, obeying our laws, waiting your turn, and earning the right to become an American.
I know that many Americans of goodwill have a different view of the problem and advocate different solutions to the immigration challenge facingAmerica . That does not make them bad people. It simply means we must redouble our efforts to get our message out. It means we need to work harder at rebutting the disinformation that is spread by pundits, commentators, and politicians. As President John Kennedy famously noted:
“The great enemy of the truth is very often not the lie — deliberate, contrived and dishonest, but the myth, persistent, persuasive, and unrealistic. Belief in myths allows the comfort of opinion without the discomfort of thought.”
I think we should welcome and embrace the opportunity to debate comprehensive immigration reform. Truth and right is on our side. We will win the debate if we stand up for what we believe and engage in meaningful dialogue. After all, that it what it is going to take to find the common ground necessary to solve the immigration problem and move America forward.
I thank Chairwoman Lofgren for convening this important hearing on my legislation and offering me an opportunity to summarize the unique and comprehensive approach to our immigration crisis offered by H.R. 750, the Save America Comprehensive Immigration Act of 2007.
Reforming the nation’s immigration system so that it secures the borders, does not lower American living standards, reflects American values, and ensures that our country remains a beacon of hope and opportunity forever is a daunting challenge. I know this is hard and tiring work. But remember, as the Rev. Dr. Martin Luther King often said:
“We shall overcome because the moral arc of the universe is long but it bends toward justice. We shall overcome because Carlyle is right — no lie can live forever. We shall overcome because William Cullen Bryant is right — truth crushed to earth will rise again.”
I also ask that proponents of comprehensive immigration not to be discouraged by the legislative challenges we face because the Scriptures tell us that “weeping lasteth for a night, but joy cometh in the morning.” Let us march on till victory is won. Thank you very much, and I yield back the remainder of my time.

The U.S. Citizenship and Immigration Services (USCIS) announced last week that the I-9 Employment Eligibility Verification Form has been revised and is now available for use. All employers are required to complete a Form I-9 for each employee hired in the United States . According to the USCIS press release, the revision seeks to “achieve full compliance with the document reduction requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 which reduced the number of documents employers may accept from newly hired employees during the employment eligibility verification process.”
The most significant change of the revision is the removal of five documents for proof of identity and employment eligibility. They include:

• Certificate of US Citizenship (Form N-560 or N-570);
• Certificate of Naturalization (Form N-550 or N-570);
• Alien Registration Receipt Card (Form I-151);
• an unexpired Reentry Permit (Form I-327);
• an unexpired Refugee Travel Document (Form I-571)

These forms were removed due to lack of features to help deter counterfeiting and fraud.
The revision also saw a single addition to the list of acceptable documents: the most recent version of the Employment Authorization Document (Form I-766). The revised list still includes:

• a U.S. passport (expired or unexpired);
• a Permanent Resident Card (Form I-551);
• an unexpired foreign passport with a temporary I-551 stamp;
• an unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, or I-688B);
• an unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for nonimmigrant aliens authorized to work with a specific employer

USCIS advises employers to start using the revised Form I-9 immediately. Both the revised form and the “Handbook for Employers, Instructions for Completing the Form I-9” are available online at www.uscis.gov.

VISA BULLETIN FOR DECEMBER 2007

A. STATUTORY NUMBERS 1. This bulletin summarizes the availability of immigrant numbers duringDecember. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by November 13th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.
Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.
2.Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants calculated under INA 201 is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows: FAMILY-SPONSORED PREFERENCES First : Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.
Second : Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:
A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.
Third : Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.
Fourth : Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences. EMPLOYMENT-BASED PREFERENCES First : Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second : Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third : Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.
Fourth : Certain Special Immigrants: 7.1% of the worldwide level.
Fifth : Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.
4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA , MEXICO , and PHILIPPINES.
5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Family	All Charge- ability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
1st	08JAN02	08JAN02	08JAN02	01JUL92	22SEP92
2A	15JAN03	15JAN03	15JAN03	01MAY02	15JAN03
2B	15OCT98	15OCT98	15OCT98	15MAR92	01JAN97
3rd	08APR00	08APR00	08APR00	08JUL92	01APR91
4th	22JUN97	08OCT96	15AUG96	22SEP94	08NOV85

*NOTE: For November, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01MAY02. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01MAY02 and earlier than 15MAY03. (All 2A numbers provided forMEXICO are exempt from the per-country limit; there are no 2A numbers forMEXICO subject to per-country limit.)

	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
Employment -Based
1st	C	C	C	C	C
2nd	C	01JAN03	01JAN02	C	C
3rd	01SEP02	15OCT01	O1MAY01	22APR01	01SEP02
Other Workers	01OCT01	01OCT01	01OCT01	01OCT01	01OCT01
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th	C	C	C	C	C
Targeted Employment Areas/ Regional Centers	C	C	C	C	C

The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.
Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105 – 139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002. B. DIVERSITY IMMIGRANT (DV) CATEGORY Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States . The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2008 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.
For December, immigrant numbers in the DV category are available to qualified DV-2007 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	11,000	Except: Egypt : 8,400 Ethiopia 6,950 Nigeria 6,900
ASIA	4,750
EUROPE	11,100
NORTH AMERICA ( BAHAMAS )	3
OCEANIA	675
SOUTH AMERICA, and theCARIBBEAN	900

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2008 program ends as of September 30, 2008. DV visas may not be issued to DV-2008 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2008 principals are only entitled to derivative DV status until September 30, 2008. DV visa availability through the very end of FY-2008 cannot be taken for granted. Numbers could be exhausted prior to September 30. C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN JANUARY For November, immigrant numbers in the DV category are available to qualified DV-2008 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	13,100	Except: Egypt : 11,000 Ethiopia 8,600 Nigeria 7,200
ASIA	6,100
EUROPE	13,600
NORTH AMERICA ( BAHAMAS )	3
OCEANIA	775
SOUTH AMERICA, and theCARIBBEAN	1,075

D. CHINA MAINLAND-BORN AND INDIA EMPLOYMENT SECOND PREFERENCE CUT-OFF DATES RETROGRESSION FOR DECEMBER It has been necessary to retrogress both the China-mainland born and India Employment Second preference cut-off dates. This is a direct result of extraordinarily heavy applicant demand for numbers, primarily by Citizenship and Immigration Services offices for adjustment of status cases. Additionalretrogressions cannot be ruled out during the second quarter of the fiscal year.
E. IMMIGRANT VISA AVAILABILITY IN THE COMING MONTHS The following projections are based on the demand patterns which are currently being experienced. Fluctuations in demand could alter such projections at any time. Therefore, they should only be used as a guideline of what might occur. Under no circumstances should they be used as a basis for making any formal plans prior to the announcement of the monthly cut-off dates. Family Preferences – Worldwide: Movement consistent with that of recent months can be expected for the foreseeable future. Employment Preferences – Worldwide and Philippines :
First: Will remain “Current”
Second: Will remain “Current”
Third: Slow forward movement should be possible while demand patterns are established.
Third “Other Workers” (All Countries): Little if any forward movement is expected at this time. Should the current demand pattern continue, it may be necessary to retrogress the cut-off date at some point later in the fiscal year. CHINA-mainland born and INDIA :
Employment Preferences:
First: Continued heavy demand may require the establishment of a cut-off date at some point during the fiscal year.
Second: Demand during October and the first week of November has already used over 38 percent of the annual limit. It is hoped that the December retrogressions will return monthly number use within the targetrange. If not, further retrogressions cannot be ruled out. F. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State’s Bureau of Consular Affairs offers the monthly “Visa Bulletin” on the INTERNET’S WORLDWIDE WEB. The INTERNET Web address to access the Bulletin is:

http://travel.state.gov

From the home page, select the VISA section which contains the Visa Bulletin.
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and in the message body type: Subscribe Visa-Bulletin First name/Last name (example: Subscribe Visa-Bulletin Sally Doe) To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address :

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and in the message body type: Signoff Visa-Bulletin The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (area code 202) 663-1541. The recording is normally updated by the middle of each month with information on cut-off dates for the following month.
Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address: VISABULLETIN@STATE.GOV (This address cannot be used to subscribe to the Visa Bulletin.)