Immigration News & Analysis, Maggio & Kattar’s electronic immigration newsletter, offers up-to-date information and insightful commentary on U.S. immigration law and policy. Immigration News & Analysis is published monthly in an electronic format and is available via e-mail. Subscribe to Immigration News & Analysis.
Maggio & Kattar Client on Front Page of Washington Post.
Breaking News • March 24, 2008
Maggio & Kattar client, Saman Kareem Ahmad, was featured on the front page of the Washington Post on March 23, 2008. Mr. Ahmad, an Iraqi national who worked closely with the U.S. Marine Corps in Iraq, recently had his application for permanent residence denied by the Citizenship & Immigration Services for his involvement in a Kurdish political party, the Kurdish Democratic Party (KDP), that sought to overthrow Saddam Hussein after the first Gulf War. Read on…
SIGNIFICANT INCREASES IN EMPLOYERS SANCTIONS FINES EFFECTIVE MARCH 27, 2008
The Department of Justice announced that civil fines will increase by as much as $5,000 against employers who violate certain immigration laws pertaining to their employees. In final rules published on February 26, 2008, that take effect on March 27, 2008, civil penalties for (1) knowingly employing unauthorized aliens (including failure to comply with the requirements relating to employment eligibility verification (I-9) forms), (2) immigration-related document fraud, and (3) wrongful discrimination against job applicants or employees on the basis of nationality or citizenship will increase by an average of 25 percent. The rule specifies that the new penalties are all prospective. Thus, for offenses committed prior to March 27, 2008, the old fines apply.
Under these new rules, new fines for repeated violations of knowingly employing an unauthorized alien are the most significant. Fines for three or more offenses are stiff, and can be increased as much as $5,000, from $11,000 to $16,000 for each unauthorized employee. Otherwise, the minimum penalty for knowingly employing an unauthorized alien increase by $100, from $275 to $375, and the maximum penalties increase to not more than $3,200, up $1,000. Other fines - for document fraud and wrongful discrimination - increase generally $25 to $1,000. As in the past, an administrative law judge (ALJ) will set the amount of the penalty.
Why can the government raise these fines without amending the Immigration and Nationality Act (INA) and providing public input? While the 1986 Immigration Reform and Control Act codified employer sanctions fines in the INA, a 1990 law, later amended in 1996, permitted the federal government to adjust civil monetary penalties to ensure that they continue to maintain their deterrent effect. Under these laws, federal agencies are obligated to adopt, by regulation, revised civil penalties in order to account for inflation. Accordingly, the laws permit adjustments without public notice and comment, and permit the change by regulation, rather than by statute.
The increase of employer sanctions is yet another example of proposals announced in August 2007 by the federal government to increase worksite enforcement. We can expect to see other enforcement initiatives, especially now that comprehensive immigration reform (CIR) is off the legislation agenda until after the Presidential election. CIR would address both sides of the immigration debate: the fate of some 12 million undocumented foreign nationals living and residing in the United States and the need to take better control of our borders.
FINAL PREPARATION UNDERWAY FOR APRIL H-1B PETITIONS
With less than a month left for preparation of
H-1B cap-subject
petitions, employers are urged to immediately identify, if they have not done so already, those new hires that will require first-time H-1B sponsorship and begin petition preparation. The unprecedented interest in hiring H-1B employees makes it essential that employers file petitions immediately on April 1, 2008 in order to secure H-1B status for new employees who seek to commence new employment on October 1, 2008.
As most know, April 1st will mark one year since employers were last able to file for the vast majority of new H-1B visas for employment beginning on October 1st. Given the extraordinary demand for such visas, it is expected that the full available allotment of visas will be exhausted again on the first filing date available, April 1st, both for beneficiaries who do not possess a U.S. advanced degree as well as for advanced degree holders. Filing on April 1st is not, however, a guarantee that the case will be accepted for adjudication. It is expected that USCIS will again apply a computer-generated "random selection" lottery to all petitions received on the first (and possibly second) day since 200,000 petitions are expected for some 85,000 visas. Pent up demand coupled with immigrant visa backlogs, make the H-1B classification the mostly highly sought after for professionals.
Not all H-1B applicants, however, are subject to the cap and to the April 1 filing deadline. Those currently holding H-1B status are not affected by the cap, nor are most H-1B employees who transfer from one company to another or those who seek extensions and amendments of H-1B status. Furthermore, H-1B petitions filed by institutions of higher education or related or affiliated non-profit entities, nonprofit research organizations, and governmental research organizations are exempt from the cap. Finally, new H-1B visas for nationals of Chile and Singapore are not likely to be exhausted at any point during the fiscal year. In an effort to streamline the adjudication of H-1B petitions given the deluge expected, USCIS advised that all cap-exempt H-1B petitions are now being adjudicated at a special unit at the USCIS California Service Center.
NEW USCIS POLICY ON NAME CHECKS
The U.S. Citizenship and Immigration Services (USCIS) backed down on its interpretation of the necessary background checks that need to be completed before certain applications, such as adjustment of status, may be approved. In a memorandum dated February 4, 2008, USCIS announced that it would no longer delay approval of adjustment applications that were awaiting the results of the FBI name check if more than 180 days has passed since the name check had been initiated. Although USCIS runs several background checks, the FBI name check was the most common source of delay in adjustment adjudications. The USCIS memo states that, where all other checks are complete and an FBI name check has had no response after 180 days, USCIS will adjudicate an application for adjustment of status. This change in policy should bring relief to the many people whose adjustment of status cases have been delayed indefinitely due to the FBI name check. The change, however, does not affect naturalization cases. It also does not affect individuals whose names have triggered a "hit" in the FBI name check database. In these instances, USCIS will not adjudicate the application, and the applicant must wait for the hit to be resolved. In addition, if the delay is due to background checks other than the FBI name check, adjudication will not proceed until those checks are completed. It will take some time for USCIS to work its way through the thousands of delayed cases before approving them, but we are hopeful that approvals of these long-pending cases will begin promptly. However, it may be necessary that when USCIS reviews name check delayed cases, they will discover other dated evidence that needs to be updated before approval, such as fingerprint clearances (which are different from name checks, and still must be resolved before adjudication), a job letter, or certain medical examination results.
USCIS's concession that this check was not mandated by law vindicates the many immigrant advocates who have argued before the courts that the delay was due to USCIS policy and not required by statute. In fact, for individuals in removal proceedings, Immigration and Customs Enforcement (ICE) deemed background checks completed without the results of the FBI name check.
USCIS service centers are now conducting "sweeps" to find adjustment cases that can be reviewed for adjudication under the new policy, and expects to have identified those cases that can move forward by April 30, 2008.
EAD RENEWALS CANNOT BE FILED MORE THAN 120 DAYS PRIOR TO EXPIRATION
USCIS has advised that any EAD renewal application received on or after January 29, 2008 that was filed more than 120 days in advance of the current document's expiration would be "denied" for filing too early. It remains unclear if the applications will be formally "rejected" in order to avoid losing the filing fee. (Rejected applications are merely returned with the filing fee intact whereas in the case of denials, the fee is accepted by USCIS and not returned.)
MARCH VISA BULLETIN
The March Visa Bulletin reveals some good news for some employment-based categories, with significant advances in priority dates for employment-based third preference (skilled workers, professionals and other workers) individuals other than those from India and Mexico. While not as significant as other advances, China saw a 12-month advance in this category. Visas for Indian nationals in the employment-based second preference (EB-2) (members of the professions with advanced degrees and individuals of exceptional ability), however, remain unavailable although it is expected that this category will become available in April with a priority date of December 1, 2003. China-mainland born EB-2 advanced by about a year.
In the family-based immigrant visa categories, there was only slight forward movement generally.
MAGGIO & KATTAR IN THE NEWS
A little girl from Sierra Leone was given a very special gift by a Maryland doctor: the gift of sight. Jarai Bah desperately needed a costly corneal transplant but couldn't get the surgery in her homeland. Her cause came to the attention of Dr. Stephen Ginsberg, a corneal transplant specialist in Maryland, and lawyers at Maggio & Kattar. Ginsberg agreed to do the surgery if she could get a visa to enter the United States. "It seems like a no-brainer to me, do it!", Michael Maggio said when Senior Attorney Thomas Ragland presented this potentially very time-consuming pro bono case after meeting with Jarai's cousin, Henry Slowe, almost a year ago. Working with congressional staff at Senator Kennedy's office, Thomas and Associate Attorney Melissa Frisk prepared a humanitarian parole application, which was approved in March 2007. In May 2007, Dr. Ginsberg completed the first of two surgeries. The case was featured on Fox 5 news and at Gazette.net.Maggio & Kattar managing partner, Jim Alexander, is currently conducting a number of workshops on immigration law with human resource personnel in Sydney and Melbourne, Australia from February 25, 2008 to March 6, 2008.
On March 3, Senior Attorney Andres Benach participates on a panel discussing the difficulty foreign scholars confront when visiting the U.S. at the 2008 National Humanities Alliance annual meeting held at George Washington University.
On March 7, 2008 Associate Melissa Frisk will participate as a faculty member at the Maryland Immigrant Rights Coalition's day long pro bono asylum training. The training focuses on immigration court procedures generally and on presenting an asylum case. Melissa will present on issue spotting, evidentiary matters, and the effects of criminal convictions on asylum applications. The program includes Baltimore Immigration Judge Kessler and an ICE representative.
On March 6, Senior Attorney Thomas Ragland will participate in the AILA Washington, DC Chapter's Annual Spring Conference on Immigration Law. Thomas will be presenting on "Hitting a Homerun: How to Litigate Security Check Issues, Mandamus, and 1447(b) Actions in Federal Court."
SOME REMEMBRANCES OF MICHAEL MAGGIO, 1947-2008
Michael Maggio, the founder and chairman of our law firm, Maggio & Kattar, P.C., died on February 10, 2008, at the age of 60 after a courageous 10-month battle with non-Hodgkin's lymphoma. Michael was our beloved colleague, mentor, teacher, and friend. His funeral was held on February 14th in Philadelphia. A memorial celebration of his life will be held in Washington, DC on March 8th.
Justice, the rule of law, and human rights - these core principles were the foundation of Michael's legal philosophy. Michael fought for fairness and equal protection under the law. He profoundly affected the legal landscape of immigration law and beyond, and did so with tremendous wit, skill, and bravado. "He was a brilliant legal mind who not only interpreted the law without peer, but he recognized also that justice could only be served by changing it. His life embodied that commitment to change," said friend and colleague José Pertierra. Moreover, Michael loved what he did, enjoyed the challenge, and made it fun, even after thirty years.
Michael founded what is now Maggio & Kattar, P.C. in 1978 in the Adams Morgan neighborhood, located in the heart of Washington, DC's Latino community. A Spanish speaker who was active in Latin American politics, Michael's legal career jump started just months after he graduated law school.
Michael took on what arguably is the most significant human rights case in American history and his most influential, Filartiga v. Peña-Irala. The case is seminal not only for what it held - that torture by a government official anywhere in the world violates universal human rights and that a foreign official may be held accountable in U.S. court - but also for what it triggered - the fusing of international legal rights with domestic judicial remedies.
The background of the Filartiga case is tragic and heroic, but at the same time it exemplifies Michael's career and impact on human rights. We take a moment to remember it and one period in the life of Michael Maggio.
In March 1976, a prominent doctor in Asuncion, Paraguay, Dr. Joel Filartiga, confronted the unthinkable: Joelito, his 17-year old son, was kidnapped while sleeping, tortured, and killed by Paraguayan police allegedly in retaliation for his father's political activities against the brutality of Paraguay's Stroessner regime. Dolly Filartiga, Joelito's older sister, was notified in the middle of the night that she needed to retrieve her brother's battered body from the home of Americo Peña-Irala, a neighbor and former inspector general of the Asuncion police. Instead of quickly burying him as the family was warned to do, they photographed and publicized what happened to him.
Shortly after Joelito's death, the family made several attempts to bring Peña-Irala to justice in Paraguay, but to no avail. Dolly became despondent and unable to resume her normal life. She was harassed as were other family members. Upon learning in 1978 that Peña-Irala was living in New York, Dolly Filartiga came to the United States looking for her brother's alleged perpetrator. She contacted Michael Maggio, apparently an acquaintance of the Filartiga family, and discussed filing an asylum application. After Michael learned of her circumstances, he contacted the Center for Constitutional Rights in New York to explore initiating civil proceedings again Peña-Irala. Together they filed suit, working throughout the night to draft the complaint so that it could be filed in federal district court and served before Peña-Irala left the country. The case was dismissed but appealed to the U.S. Court of Appeals for the Second Circuit.
In 1980, two years later, Judge Irving Kaufman declared in his landmark decision that, "[t]he torturer has become - like the pirate and slave trade before him - an enemy of all mankind". He concluded that torture constituted an actionable "tort in violation of the law of nations," relying on an obscure federal law enacted in 1789, the Alien Tort Claims Act. The appeal was sustained. Peña-Irala, however, was returned to Paraguay, and the $10.4 million judgment against him was never paid to the Filartiga family. What the Filartigas did win, however, was a legal strategy that left a lasting legacy for the human rights movement. This judicial precedent spawned more than a quarter century of human rights litigation and turned many human rights activists, including Michael Maggio, into life-long human rights and immigration lawyers.
It was this kind of commitment to justice, legal activism, collaboration, and passion that provided the foundation for Michael Maggio's thirty-year legal practice. He provided a voice for the disenfranchised, and an opportunity for redress for those who were wronged. The case of Alex Konanykhin, a young Russian banker and entrepreneur, is another that evoked international intrigue, tenacity, and righting governmental impunity. Its eleven-year history included two arrests; misconduct by the INS; and an asylum denial that was set aside, granted, reversed on appeal, reopened, reheard, and then finally granted again in September 2007. At one point in its tortured history, Mr. Konanykhin and his wife faced immediate deportation to Russia. Michael was on the tarmac as Konanykhin and his wife were waiting at JFK airport to be boarded on a flight to Moscow. With a court order in Michael's hand, Konanykhin's deportation was halted. Alex Konanykhin's immigration saga was finally over in October 2007: DHS decided not to appeal, and his asylum grant became final. Michael was there to congratulate him.
While Michael was at the heart of many high-profile cases during his long legal career, he equally loved representing everyday people who just needed a good immigration lawyer. It was from representing these people that he sustained his drive and commitment to furthering justice for those seeking a better life. "Immigrants are the best thing about this country" he often said, "they are the risk takers, the essence of capitalism and free enterprise."
Those who knew Michael, recognized how he served his clients with finely honed legal skill and reassuring confidence. By mastering the twists and turns of immigration law, he not only solved foreign nationals' immigration problems, but also profoundly touched their lives. And, he became their friend for life.
Throughout his career, Michael received countless professional awards and was honored for his extraordinary legal representation, astute strategizing, unwavering commitment to the highest ethical standards, and his deep passion for justice and upholding the rule of law. Most recently, the American-Arab Anti-Discrimination Committee, the American Immigration Lawyers Association, and the National Immigration Project of the National Lawyers Guild honored Michael "for his courageous and visionary work in defending immigrant rights and, in so doing, strengthening the constitutional rights of all U.S. residents and citizens." The Tahirih Justice Center, which focuses on gender-based violence, and the National Coalition to Protect Political Freedom, also honored his work.
Integrity, respect, legal excellence - these are the characteristics that embodied Michael Maggio's legal practice and his life.
Under the leadership of managing partners Jim Alexander and John Nahajzer, and through the efforts and support of shareholders and staff members, Maggio & Kattar is committed to remembering Michael's lessons and carrying out his legacy.