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IMMIGRATION
& TRADE NEWS
The
national elections have placed the Republicans firmly in control of all three
branches of government and 2003 promises to be a year with dramatic changes both
in immigration law and those agencies charged with enforcing that law. This week
we give a brief recap of some legislation that might result. Equally important
may be those individuals selected - - or unselected if, as now appears probable,
there is to be no civil service security for the employees of the Homeland Security
Department - - to run the agencies with responsibility for the enforcement of
America’s immigration laws. Once the reorganization is legislated, there
are the practical consequences of the merger itself – how will it all work?
Thinking about the magnitude of the task makes many familiar with the system shudder.
There is, after all, much that can go wrong. We prefer to see a silver lining
- - the fact that so much of the system is to be rethought may result in some
comprehensive treatment to issues long neglected - - such as the need for unskilled
workers to enter the United States on some simple form of imited “work visa”
- - such as used in some of the EU countries. These are interesting times to be
practicing immigration law, but we suspect they will not be easy for anyone -
- not the government agencies charged with the monumental task of operating the
system, not for the immigration lawyers trying to adapt to the new system and
certainly not for the aliens affected by it.
PRESIDENT
BUSH STATES HAITIANS SHOULD BE TREATED LIKE OTEHR REFUGEES
President Bush commented that Haitian Refugees should be treated like all other
refugees at a news conference that has sparked the hope for many Haitians that
those who have a credible fear of persecution in Haiti will not be returned and
will not, in the interim, be forced to stay in detention. One article on point
appeared in the New York Times.
INS
MOVING FORWARD WITH SPECIAL REGISTRATION PROGRAM
Issued on November 6, 2002, the INS Notice requires certain nonimmigrant aliens
(male born on or before November 15, 1986) to appear, register, and provide requested
information to the INS on or before December 16, 2002. The requirement applies
to certain nonimmigrant aliens who are nationals or citizens of Iran, Iraq, Libya,
Sudan, or Syria, and who were inspected and last admitted to the United States
on or before September 10, 2002. This Notice is applicable to any alien who is
a national or citizen of a designated country, notwithstanding any dual nationality
or citizenship. However, the requirements of this Notice do not apply to any alien
who: (1) presently holds A or G nonimmigrant status; or (2) is lawfully admitted
to the United States for permanent residence; or (3) has applied for asylum on
or before November 6, 2002, or has been granted asylum, under section 208 of the
Act, 8 U.S.C. 1158.
VSC ADVICE ON CONCURRENTLY FILED I-140S
The following e-mail was circulated by the American Immigration Lawyers Association
having received the same from an official of the Vermont Service Center:
"I am writing to inform you of some very recent changes VSC is making concerning
the processing of concurrently filed I-485/I-140's. These changes are different
than those set forth during [the New York AILA chapter's] visit one week ago.
We will now be performing the prima facie review of all concurrently filed I-140's.
Due to resource constraints and an increased level of concurrent filing receipts,
we can no longer adjudicate concurrently filed I-140's within the limited
time frames. Thus, we will perform an I-140 prima facie review prior to adjudication
of the I-765/I-131 and, if prima facie eligible, EAD/AP document(s) will be issued
and the I-140/I-485 will be returned to the I-140 backlog to be worked in date
receipt order."
HOUSE
AND SENATE PASS DEPARTMENT OF JUSTICE AUTHORIZATION BILL
The final version of The 21st Century Department of Justice Appropriations Authorization
Act (H.R. 2215), which was the subject of much negotiation, would permit H-1B
visa holders who have long pending labor certification applications to extend
their status beyond the 6th year limitation normally imposed on H1-B professionals;
expand and extend the Conrad J-1 program for medical doctors; and address certain
EB-5 issues. Here are the highlights:
Provisions in H.R. 2215, were designed to counterbalance the Department of Labor’s
lengthy labor certification processing times. These delays have precluded some
H-1B visa holders from being eligible to apply for their 7th year H-1B extension.
The provision, introduced by Representative Lamar Smith (R-TX) during conference
and expanded by Senator Patrick Leahy (D-VT), would permit aliens with labor certification
applications caught in lengthy agency backlogs to extend status beyond the 6th
year limitation as long as 365 days have elapsed since the filing of a labor certification
application (that is filed on behalf of or used by the foreign national) or an
immigrant visa petition. This extended status applies even if the foreign national
has since changed status or left the country. However, if an application for a
labor certification, adjustment of status, or a petition for an immigrant visa
petition is denied, the extended H-1B status ends at that point.
Under current law, H-1B visa holders who have reached their maximum six-year time
allotment can extend their status for one year if they have a petition for permanent
employment pending for at least one year since the filing of the original labor
certification.
Waiver of Foreign Country Residence Requirement with Respect to International
Medical Graduates: H.R. 2215 would extend until 2004 a program that authorizes
visas for foreign medical graduates wishing to serve in the United States in medically
underserved areas of the country. The bill would also raise the number of visas
available per state under this program from 20 to 30. Proponents advocated in
support of making the program permanent, but could not overcome the objections
of House Republicans.
EB-5 Amendments: Congress established the EB-5 immigrant investor visa category
in 1990 to promote investment and job growth in the United States. To qualify,
a foreign national must invest at least one million dollars (or $500,000 in targeted
areas of low employment or rural areas) and show that the investment generates
at least ten jobs. When investors first make their investment, they get a “conditional”
green card good for two years. At the end of that time they must prove that they
have satisfied the requirements of the law before the Immigration and Naturalization
Service (INS) will remove the condition and make them regular green card holders.
In 1998, the INS significantly restricted eligibility for EB-5 status and applied
the new restrictions retroactively. The INS restrictions adversely affected several
hundred immigrant investors who had made their investments in good faith based
on the rules in effect before the 1998 decisions.
The EB-5 provisions in the legislation would create new procedures for the investors
caught by the retroactive applications of the INS’ changes and would give
them an opportunity to re-establish EB-5 eligibility. Those deemed to have met
those requirements would be granted unconditional permanent resident status. Those
who have not yet met these requirements would have two more years to complete
their investments and to demonstrate the requisite job creation/saving, receiving
credit for amounts invested and jobs created or saved to date.
The legislation also makes some modest changes to the general EB-5 program. Most
importantly, it would eliminate the “establishment” requirement for
EB-5 investors. Instead of having to prove that they have “established”
a commercial enterprise themselves, investors would need only show that they have
“invested” in a commercial enterprise. This change would make it easier
for foreign nationals to qualify under the program.
HOMELAND SECURITY
The President’s inclusion of our nation’s immigration functions within
the proposed Department of Homeland Security would dramatically impact every aspect
of immigration, from the adjudication of visas, the enforcement of immigration
law, and the implementation of regulations that affect employers and the daily
lives of foreign national workers. The loss of the Democratic majority in the
Senate ensures that there will be little need for the president to accept anyting
other than wanted he wanted in this proposed law which is now all but inevitable.
The Administration is proposing to place the immigration function within the Border
and Transportation Security (BTS) division. Such a structure is reflected in the
bill (S. 2794) introduced by Senator Phil Gramm (R-TX). This placement would bury
our immigration functions within this large division, and stands in contrast to
the effective structure proposed in S. 2452 proposed by Senator Lieberman.
LEGISLATION FOR MORE UNSKILLED AND SEMISKILLED WORKERS?
Employers have long known that many of our immigration laws are out of sync with
our nation’s need for unskilled or semi-skilled workers. These include food
processing workers, restaurant workers, retail clerks, construction workers, manufacturing
line workers, hotel service workers, landscape workers, and health care aides.
Department of Labor statistics indicate that the demand for these workers is increasing
and will rise to new levels during the next ten years, with the number of native-born
workers insufficient to meet the need. Furthermore, because the median age of
the native-born workforce is rising and native-born workers are becoming increasingly
more educated, the typical U.S. worker is uninterested in filling lower-skilled,
lesser-paid positions. These positions, not surprisingly, are now filled by undocumented
aliens who are employed either with the employer’s knowledge or by use of
false documents. Presently, there are few visas available to unskilled workers
and most of these are concentrated in agriculture. Many employers report that
they find out that many of their vitally needed workers are undocumented and that
there is no avenue to make them legal. Furthermore, under the current immigration
system, there is no legal means by which lesser skilled foreign nationals can
come here to work on a year round temporary basis. The temporary visa program
currently available for individuals at this skill level is only useful for employers
who can establish that their need for foreign workers is seasonal, a one-time
occurrence, or a peak load or intermittent need. Conversely, the green card process
for essential workers is extremely limited. Only 5,000 visas are available annually
and the backlog of cases is over ten years.
The need for immigration reform that would “match willing workers with willing
employers” was central to the discussions President Bush and Mexican President
Vicente Fox held before the September 11 attacks. The comprehensive immigration
reform that was under discussion at that time included an earned legalization
program, an expanded permanent visa program, an enhanced temporary visa program,
border control cooperation and economic development in Mexican sending regions.
These talks stalled after the terrorist attacks, with the Bush Administration
focused on security. While “legalization” of existing undocumented
workers has been the approach in the past that Congress has sought to solve the
essential worker problem, other suggestions have included expanding the existing
seasonal temporary visas for these workers to enter the United States to work
in specified industries such as food processing and restaurants. This has been
a contentious issue in the past and it is possible that now that the Republicans
are firmly in control of the government, some solution will be proposed and enacted
to address this festering problem.
The
Supreme Court, in a per curiam opinion, reversed the Ninth Circuit Court of Appeals
in a matter in which the Court of Appeals found that an alien from Guatamala had
established a right to asylum in the United States and without a remand to the
Immigration Court determined that the Government’s case that the country
had undergone a change of circumstances that enabled him to return. The Supreme
Court in a terse opinion reversed the Court of Appeals and remanded the case for
a factual finding on the merits of that argument. INS v. Ventura , 537 U.S.____,
THE
UNITED NATIONS REPORTS POOR COUNTRIES ARE BEARING THE BRUNT OF HOUSING REFUGEES
The United Nations issued its annual yearbook on refugees noting that the number
of persons of concern to UNHCR has dropped by 24 percent in the last decade –
down to 19.8 million in 2001 – but the majority of them are concentrated
in developing countries. The developing world produced 86 percent of the world's
refugees in last 10 years, but also provided asylum to 72 percent of them.
HUMAN RIGHTS WATCH ISSUES STATEMENT ON WAR WITH IRAQ
Human Rights Watch issued a statement on America’s proposed war with Iraq
that concludes:
“Human Rights Watch thus does not support or oppose the threatened war with
Iraq. We do not opine on whether the dangers to civilians in Iraq and neighboring
countries of launching a war are greater or lesser than the dangers to U.S. or
allied civilians - or, ultimately, the Iraqi people - of not launching one. We
make no comment on the intense debate surrounding the legality of President George
Bush's proposed doctrine of "pre-emptive self-defense" or the need for U.N.
Security Council approval of a war.
The sole exception that Human Rights Watch has made to its neutrality on the decision
whether to go to war is in the case of humanitarian intervention - the military
invasion of a country to protect its people. We have advocated military intervention
in limited circumstances when the people of a country are facing genocide or comparable
mass slaughter. Horrific as Saddam Hussein's human rights record is, it does
not today appear to meet this high threshold - in contrast, for example, with
his behavior during the 1988 Anfal genocide against the Iraqi Kurds. “ Should
war be, however, Human Rights Watch will monitor all belligerents and insist on
compliance with international humanitarian laws.
HUMAN RIGHTS WATCH CONDEMNS IRANIAN DEATH PENALTY FOR APOSTACY
Human Rights Watch condemned the death sentence handed down this week for apostasy
against Prof. Hashem Aghajari as a blatant attempt to quash legitimate, non-violent
criticism of Iran's clerical rulers.
NTERNATIONAL PRESSURE CAUSING NIGERIA TO ABANDON DEATH PENALTY FOR ADULTERY
The Associated Press reported this past week that Nigeria will block Islamic courts
from carrying out stonings of women sentenced to death for sex outside marriage.
WITCHES SURVIVE LYNCHING IN UGANDA
Now here is a story that you don’t read everyday. It also reflects the depth
of the cultural gap between rural Uganda and the Occidental World. Uganda’s
state owned newspaper, The New Vision, reported on November 9, 2002, that “Witchcraft
Suspects Survive Lynching.” The story noted that six people narrowly survived
lynching after residents of Northern Uganda in the Soroti Municipality, said they
were responsible through witchcraft for the death of six other residents within
less than a year. While the article reported that the police intervened to protect
the alleged witches from mob violence. There was no indication in the article
of the absurdity of the charges themselves.
SWAZILAND'S KING DEFENDS FORCED MARRIAGE
The Associated Press has reported that Swaziland's king, Mswati III, has defended
a custom that allows him to take as many brides as he likes and said a woman who
asked the courts to prevent him from marrying her daughter had been badly advised.
King Mswati apparently sought an 18 year old to be his 10th wife over her mother’s
objections.
AMNESTY INTERNATIONAL CONDEMNS AMERICAN YEMEN ATTACK
Amnesty International has written to President George Bush, expressing its deep
concern at reports that six men blown up in a car in Yemen on 3 November were
killed allegedly by a missile launched by a CIA-controlled Predator drone aircraft.
The organization has also written to the President of Yemen, asking whether there
had been attempts by the Yemeni authorities to arrest these persons, and urging
them to provide clarification about the cooperation and possible knowledge of
the Yemeni government in this incident. "If this was the deliberate killing of
suspects in lieu of arrest, in circumstances in which they did not pose an immediate
threat, the killings would be extra-judicial executions in violation of international
human rights law," Amnesty International stated.
AMNESTY INTERNATIONAL REPORTS ON SLAVERY IN MAURITANIA
Amnesty International has reported that despite the legal abolition of slavery
in Mauritania twenty years ago, the government is yet to take practical steps
ensure its abolition in practice. The report, published on the eve of the 21st
anniversary of the decree which officially abolished slavery, shows that human
rights abuses related to slavery persist in Mauritania, although the government
denies their existence. The issue of slavery in 21st century Mauritania is contentious.
In 1981 slavery was legally abolished following widespread public protests against
the public sale of a woman. A period of optimism and relative openness towards
dealing with the problem followed. Hopes that this signaled an imminent end to
slavery proved unfounded, largely because of government inaction.
(As an aside, we note that this office has seen and interviewed individuals with
credible claims of being enslaved in Mauritania.)
AMNESTY INTERNATIONAL, THE ASSOCIATION FOR THE PREVENTION OF TORTURE,
HUMAN RIGHTS WATCH AND THE INTERNATIONAL COMMISSION OF JURISTS ISSUED A JOINT
PRESS RELEASE APPLAUDING THE ADOPTION OF A NEW TREATY TO PREVENT TORTURE
Amnesty International, the Association for the Prevention of Torture, the International
Commission of Jurists and Human Rights Watch, applauded the adoption of a new
treaty designed to prevent torture. This followed ten (10) years of difficult
negotiations. An overwhelming majority of States at the UN General Assembly voted
to take practical and concrete steps to eradicate this appalling violation of
human rights. The United States and Japan had earlier proposed an alternative
considered inadequate to the task as it relied on each member state to pay for
enforcement of the violations within their own borders. The Optional Protocol
to the UN Convention against Torture will help prevent acts of torture before
they can occur by establishing a system of regular visits to places of detention
by an international body of experts, complemented by sustained regular visits
conducted by national visiting bodies. Visits by independent experts, enabled
to make concrete recommendations, have proven to be one of the most effective
means to prevent torture.
The vast majority of States from Africa, Asia, Europe and Latin America, gave
their support to the Optional Protocol. The Optional Protocol was adopted by 104
votes in favour and only 8 against. How did the United States vote, see
CONGOLESE FORCED TO LEAVE CAR
The Associated Press has reported that U.N. workers ferried more than 1,000 Congo
refugees to their native lands across central Africa's Oubangui River to save
them from mob reprisals for looting and rape by Congo rebel fighters imported
to defend the Central African Republic president from a coup attempt.
C-TPAT Opens Enrollment
C-TPAT, a joint initiative between government and business designed to protect
the security of cargo entering the United States while improving the flow of trade.
C-TPAT requires importers to take steps to assess, evolve and communicate new
practices that ensure tighter security of cargo and enhanced security throughout
the entire supply chain. In return, their goods and conveyances will receive expedited
processing into the United States. Besides giving their cargo faster processing
at the border, Customs offers additional potential benefits to C-TPAT members,
including:
· Dedicated commercial lanes where infrastructure permits
· Assigned Customs point of contact (account manager)
· Eligibility for account-based processes (bimonthly/monthly payments)
· Reduced inspections
The U.S. Customs Service is accepting applications from importers, carriers (air,
rail, sea), air freight consolidators/ocean transportation intermediaries, brokers,
non-vessel operating common carriers (NVOCCs) in the United States and now U.S./Canada
border highway carriers interested in participating in C-TPAT, Customs-Trade Partnership
Against Terrorism.
Canada Customs and Revenue Agency (CCRA) and the U.S. Customs Service (USCS) encourage
all U.S./Canada border highway carriers to register in the FAST program, a Smart
Border Declaration 30-Point Action Plan, which is designed to enhance the border
security between Canada and the USA. Details on application procedures and supplemental
information about the C-TPAT and FAST initiatives are available.
Italy Signs Declaration of Principles to Join U.S. Customs Container Security
Initiative
La Spezia and Genoa Ports to Pre-Screen U.S.-Bound Cargo Containers
U.S. Customs Commissioner Robert C. Bonner and Mario Andrea Guaiana, Director,
Italian Customs Agency, announced on November 7, 2002, that the government of
Italy has agreed to participate in the U.S. Customs Container Security Initiative
(CSI). Launched in January 2002, CSI is a U.S. Customs initiative designed to
prevent the smuggling of terrorists or terrorist weapons in ocean-going cargo
containers. Under terms of the declaration announced today, U.S. Customs officers
will be stationed at the Italian ports of La Spezia and Genoa. Other countries
which have already signed Declaration of Principles to join CSI include Canada,
China and Hong Kong, Germany, France, Belgium, Netherlands, Japan, and Singapore.
U.S. Requests WTO Dispute Settlement
Consultations with Venezuela on Restrictive Import Licensing Practices
On November 8, 2002, the United States requested dispute settlement consultations
with Venezuela at the World Trade Organization (WTO) to discuss its import licensing
practices that restrict annual imports of a wide range of U.S. agricultural goods
including corn, dairy products, fruits, poultry and beef to approximately $200
million. Venezuela has failed to establish an open and predictable system for
issuing import licenses, and has severely restricted trade in U.S. agricultural
goods. The import practices also appear to be inconsistent with numerous World
Trade Organization obligations.
No “Material Injury” from Certain Cold-Rolled Steel Products
Imported from Argentina, Belgium, Brazil, China, France, Germany, Korea, The Netherlands,
New Zealand, Russia, South Africa, Spain, Taiwan, Turkey, and Venezuela
The United States International Trade Commission in its determination issued November
5, 2002, found that that “an industry in the United States is not materially
injured or threatened with material injury, and the establishment of an industry
in the United States is not materially retarded, by reasons of imports from the
named countries of certain cold-rolled steel products some of which had been found
by the Department of Commerce to be subsidized and some to be sold in the United
States at less than fair value (LTFV). These investigations were instituted September
2001 following receipt of petitions filed with the Commission and Department of
Commerce by certain US manufacturers. The final phase of the investigations was
scheduled by the Commission following notification of preliminary determinations
by Commerce that imports of certain cold-rolled steel products from Argentina,
Belgium, Brazil, China, France, Germany, Korea, The Netherlands, New Zealand,
Russia, South Africa, Spain, Taiwan, Turkey, and Venezuela were being sold at
less than fair value at LTFV within the meaning of Section 733(b) of the Tariff
Act of 1930, and certain products from Brazil, France, and Korea were being subsidized
within the meaning of Section 703(b) of the Act.
The views of the Commission are contained in USITC Publication 3551 (November
2002), entitled Certain Cold-Rolled Steel Products from Argentina, Belgium, Brazil,
China, France, Germany, Korea, The Netherlands, New Zealand, Russia, South Africa,
Spain, Taiwan, Turkey, and Venezuela: Investigations Nos. 701-TA-423-425 (Final)
and 731-TA-964, 966-970, 973-978, and 982-983 (Final).
ITC WILL CONDUCT FULL "SUNSET" REVIEW CONCERNING CRAWFISH TAIL MEAT FROM
CHINA
On November 4, 2002, the U.S. International Trade Commission (ITC) voted to conduct
a full five-year ("sunset") review concerning the antidumping duty order on crawfish
tail meat from China (Inv. No. 731-TA- 752 (Review)). As a result of the vote,
the Commission will conduct a full review to determine whether revocation of the
order concerning this product would be likely to lead to continuation or recurrence
of material injury within a reasonably foreseeable time.
The Uruguay Round Agreements Act requires the Department of Commerce to revoke
an antidumping or countervailing duty order, or terminate a suspension agreement,
after five years unless the Department of Commerce and the ITC determine that
revoking the order or terminating the suspension agreement would be likely to
lead to continuation or recurrence of dumping or subsidies (Commerce) and of material
injury (ITC) within a reasonably foreseeable time.
Andean Trade Promotion and Drug Eradication Act Implementation Instructions
for Non-Textile Products
In his November 7, 2002, Memorandum to Directors of Field Operations, the Executive
Director, Trade Compliance and Facilitation Office of Field Operations outlined
the preferential tariff treatment available for the non-textile goods if they
qualify as an ATPDEA originating goods and are imported directly into the United
States from an ATPDEA beneficiary country. The Memo contains information on the
goods, ATPDEA Origin Rules, Certification, and Importer Requirements.
Signed into law on August 6, 2002, the ATPDEA immediately restored duty free treatment
to articles that had been eligible for ATPA benefits prior to the program’s
expiration on December 4, 2001. The expanded benefits require a Presidential determination
concerning the eligibility of products and countries. Presidential Proclamation
7616 determined that Bolivia, Colombia, Ecuador, and Peru are eligible countries
for the purposes of receiving ATPDEA benefits. In addition, the proclamation determined
that products from those countries that are properly classified under the attached
Harmonized Tariff Schedule of the United States (HTS) item numbers are eligible
for duty-free treatment. The Proclamation was signed on October 31, 2002, and
was published in the Federal Register on November 5, 2002 (67 FR 67283). The Proclamation
took effect upon signature.
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