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Archive for February, 2009

By CHRISTOPHER SHERMAN – Associated Press

ALAMO, Texas (AP) — The citizenship of hundreds, possibly thousands, of people who insist they are Americans is being called into question because they were delivered by midwives near the U.S.-Mexico border. The federal government’s doubts have arisen as many people in the border region try to meet a June 1 deadline to obtain U.S. passports so they can freely cross from one country to the other.

The people delivered by midwives have documents such as birth certificates and medical records. But the agency that grants passports is challenging the credibility of those papers, citing a history of some midwives fraudulently registering Mexican-born babies as American.

The passport applications being questioned include those of children of Mexican women who crossed the border to give birth in the United States, and even employees of the U.S. Customs and Border Protection agency who were born on the border and now work to protect it.

The government has “effectively reduced to second-class citizenship status an entire swath of passport applicants based solely on their being of Mexican or Latino descent and having been delivered by midwives in nonhospital settings in Southwestern border states,” according to a federal lawsuit against the State Department filed last year in the border town of McAllen, about 120 miles south of Corpus Christi.

Immigration attorneys and the American Civil Liberties Union hope to have the case certified as a class action because they believe thousands of people could be affected, with most still living near the border.

Since 1960, 75 Texas midwives have been convicted of fraudulently registering Mexican-born babies as American. At one point, the government assembled a list of nearly 250 “suspicious” midwives but never explained what made them suspicious.

State Department spokesman Andy Laine declined to comment because of the litigation. The agency also declined to release statistics on passport application refusals.

After June 1, anyone re-entering the United States from Mexico or Canada will have to show a passport, not just a driver’s license and birth certificate, which are the only current requirements.

For families who have lived in the area for generations, the border is just a river in the middle of one community. Many people live on one side of the border and work on the other.

“Going back and forth is as natural for them … as going across town is for the rest of us,” said Lisa Graybill, legal director for the ACLU in Texas.

If the lawsuit is not resolved before June 1, families “will have to choose if you’re going to live in Mexico or you’re going to live in the U.S. You won’t be able to cross,” said Lisa Brodyaga, the immigration attorney who filed the lawsuit against the State Department.

Anna Karen Ramirez had to sue the State Department to get her passport, even though she had a birth certificate, medical records and receipts from her 1989 birth at a clinic in Hidalgo, just south of McAllen. She also had signatures of two police officers who witnessed the event.

Ramirez’s parents lived in Mexico and raised their daughter there. But they decided to have their child in the United States.

With the deadline looming, and the State Department suspicious of her citizenship, the family met several times with U.S. consular officials to obtain a passport, but their request was refused.

Ramirez’s father, Narciso, drives a taxi back and forth across the border every day. He said he was warned that the family’s dogged pursuit of the matter could threaten the visa that allowed him to operate his cab.

Anna Ramirez sued, and while waiting, voted unchallenged in the U.S. presidential election. A month later, she received her passport but never got a clear statement of citizenship.

“Every 10 years she’s going to have to prove she’s a U.S. citizen” to renew her passport, said her attorney, Naomi Jiyoung Bang.

The State Department practices are “a holdover from an older, less-regulated world,” said Mark Krikorian, executive director of the Center for Immigration Studies, which advocates for more restrictive immigration laws. “It’s what happens when modern standards collide with old country practices.”

Krikorian said the government cannot just believe everyone, nor can it turn down everyone delivered by a midwife.

Because Ramirez is young, her parents were able to find documents the government requested. The midwife who delivered her was still alive and able to testify. They could also afford to hire an attorney to help.

David Hernandez had a harder time locating evidence.

He was born in San Benito, Texas, in 1964, to a Mexican mother who was visiting friends when she went into labor. Hernandez was delivered by a midwife who appeared on the suspicious midwife list, though without a conviction. He returned to Mexico with his mother.

The two moved back to the U.S. a few years later. He attended schools in Texas and served in the Army.

In response to government requests, he collected mounds of documentation including papers from his military service, immunization and baptismal records, and witness affidavits. When he requested his school records, he was told that his elementary school papers no longer existed.

In April 2008, the government refused his passport application.

“I was born here,” he said last fall when the ACLU took on the case. “I’ve lived and worked here and served in the Army. I feel betrayed, like my country is stabbing me in the back just because my mother didn’t have the luxury of having me in a hospital.”

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Some states, cities and counties that plunged into the immigration debate are having second thoughts.

In Texas, Alabama and elsewhere, lawmakers have repealed or modified measures that cracked down on illegal immigrants or made English the official language. In Iowa and Utah, legislators are proposing similar reversals.

They cite various reasons, including the time and expense of fighting legal challenges, the cost of implementing the measures while tightening their budgets and the barrage of publicity and accusations of racism that come with such laws.

“For us to spend our time pitting neighbor against neighbor was a sacrilege,” says Judith Camp, a city councilwoman in Oak Point, Texas, about 35 miles north of Dallas, who voted to kill the city’s English-only resolution in December. The measure, adopted in 2007 on a 3-2 vote, was rescinded on a 3-2 vote. “We’re just a tiny little city and we were getting a lot of negative publicity.”

Muzaffar Chishti of the Migration Policy Institute, which analyzes immigration trends and policies, says some states and communities are “taking a more skeptical view” of immigration laws because of the legal costs and attention.

Most state and local laws that passed as federal reform failed remain in place, and some communities have mounted expensive campaigns to keep them. Farmers Branch, Texas, has steadfastly defended its ordinances despite legal challenges and public protests.

Chishti nonetheless expects more lawmakers to reconsider.”The cost of enforcing and defending these ordinances is enormous,” he says. “The appetite for these things is going down.”

Rob Toonkel, spokesman for U.S. English, a group that wants to make English the official language of the USA, counters that English-only proposals remain popular. Thirty states have such laws, he says, and there are far more states and communities proposing new laws than attempting to repeal them.

“The momentum is still on the side of assimilation,” he says.

In Iowa, Democratic state Rep. Bruce Hunter wants to repeal a law that makes English the state’s official language and requires most government documents to be in English. “It’s really sent out the wrong message about the state of Iowa,” he says.

The Madison County (Ala.) Commission last August toned down a policy that requires businesses bidding for contracts to sign a pledge saying they don’t knowingly employ illegal immigrants. The change was part of a settlement with a company that was late in submitting the pledge and did not win the contract.

The new pledge no longer says county officials can inspect contractors’ personnel records.

“I would prefer it to be much stronger,” says Commissioner Mo Brooks, author of the original policy. After studying legal opinions and federal law, though, the commission had no other choice, he says.

In Utah, two legislators, one from each party, have proposed delaying implementation of a law set to take effect in July. The bill’s provisions include a requirement that government agencies check the legal status of new hires against a federal database.

Republican state Rep. Stephen Clark, author of one proposal, wants to delay the bill for a year to study the economic impact of illegal immigrants on the state.

Gov. Jon Huntsman Jr., a Republican, supports a delay, says spokeswoman Lisa Roskelley.

“We are in the process of making major cuts all across the board in government, including public education,” says Clark, who puts the cost of implementing the immigration law at $1.7 million. “We believe now is not the time to invest that money into this issue, especially when we don’t know whether illegal immigration is a financial plus or minus to the state.”

In Farmers Branch, legal bills haven’t kept the city from sticking with its immigration law. Farmers Branch has spent $1.6 million so far to fight lawsuits challenging its effort to prevent illegal immigrants from renting apartments and houses, says finance director Charles Cox. In one case, it will have to pay up to $900,000 in plaintiffs’ legal fees.

The $1.6 million represents 1.5% to 2% of the city’s budget, but residents approved one of its ordinances with more than two-thirds of the vote and want lawmakers to fight, Cox says.

“We can certainly find other uses for the money,” he says. “By the same token, the residents have made their voices heard that this is a priority.”

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According to the Immigration Customs Agency, ICE, “A woman from the Bay Area community of Walnut Creek, Calif., faces up to 50 years in prison after being indicted by a grand jury on a variety of charges stemming from an investigation by U.S. Immigration and Customs Enforcement (ICE) into allegations she abused a female domestic servant she held against her will in her home, threatening her, failing to pay her wages and rationing her food.

Last week, a federal grand jury returned a five-count superseding indictment charging Mabelle de la Rosa Dann, 45, with criminal violations of forced labor, unlawful conduct regarding documents in furtherance of servitude, visa fraud, conspiracy to commit visa fraud, and harboring an illegal alien for private financial gain. The indictment states the victim worked for Dann from July 2006 through April 2008.

According to court documents, Dann conspired to commit visa fraud to obtain a visa for the victim so she could enter the United States and work as a domestic servant for Dann. The indictment alleges Dann confiscated the victim’s visa, passport and other identification documents so she could maintain control over her. Moreover, the court document claims the defendant allegedly threatened to harm the victim if she failed to continue working for her.” ICE, Feb. 9, 2009.

Bay Area woman suspected of abusing her domestic servant faces forced labor and servitude charges

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In the case of Rodriguez v. Rutter, Rodriguez’s complaint alleged that, by instructing him to remove his “Ciudado” sign and citing him for a misdemeanor offense, the deputies violated his right to freedom of speech and caused him to be maliciously prosecuted for the display of an unauthorized sign.” Rodriguez v. Rutter, Feb. 9, 2009.

The Fifth Circuit ruled, “We conclude that Rodriguez’s complaint, liberally construed and with all reasonable inferences drawn in his favor, states claims upon which relief may be granted.

Fifth Circuit on First Amendment

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“U.S. Citizenship and Immigration Services (USCIS) today clarified that it continues to be unable to approve any Form I-600, Petition to Classify Orphan as an Immediate Relative, filed for a child to be adopted from Cambodia.

Also, the Department of State (DOS) has advised USCIS that DOS has determined that Cambodia is not currently meeting its obligations under The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention).

As a result, DOS consular officers cannot issue the required Hague Adoption Certificate or Hague Custody Declaration. Therefore USCIS is unable to approve any Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, filed for a child to be adopted from Cambodia at this time.” USCIS, Feb. 11, 2009.

STATUS OF CAMBODIAN ADOPTIONS

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“EXPIRATION OF TWO EMPLOYMENT VISA CATEGORIES – Effective March 7, 2009

Employment Fourth Preference Certain Religious Workers: Pursuant to Section 2(a) of the Special Immigrant Nonminister Religious Worker Program Act (Pub. L. No. 110-391), the nonminister special immigrant program expires on March 6, 2009. No SR-1, SR-2, or SR-3 visas may be issued overseas on or after March 6, 2009.

Visas issued prior to this date may only be issued with a validity date of March 5, 2009, and all individuals seeking admission as a nonminister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight March 5, 2009. *

Employment Fifth Preference Pilot Categories(I5, R5): Pursuant to Section 144 of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (Public Law 110-329), the immigrant investor pilot program will expire on March 6, 2009. No I5-1, I5-2, I5-3, R5-1, R5-2 or R5-3 visas may be issued after March 6, 2009.

The initial cut-off dates for the categories mentioned above have been listed as “current” for March. If these categories have not been extended based on legislative action those cut-off dates will become “unavailable” effective March 7, 2009.”

VISA BULLETIN FOR MARCH 2009

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By Attorney Nikiki Bogle

The entertainment industry inevitably intersects with U.S. immigration law in several instances.  The composition of the entertainment category is extensive and includes but not limited to:  singers, songwriters, performing artists, actors and musicians. 

For artists, entertainers, singers or musicians, the visa options for their profession include the following: O and P Work Visas.  Both visa types are explored in depth as to the immigration requirements and documentation to support the O and P visas.

O WORK VISA: 

Extraordinary Ability in the Field of Arts

 

“EXTRAORDINARY ABILITY IN THE FIELD OF ARTS” is defined
differently for artists than it is for those in the fields of science,
education, business, and athletics.

“Extraordinary ability” for artists is defined as distinction.

Distinction means a “high level of achievement in the field of arts
evidenced by a degree of skill and recognition substantially above
the ordinary encountered to the extent that person described as
prominent is renowned, leading, or well-known in the field of arts.”
8 C.F.R. section 214.2(0)(3) (ii).O-1 visa artists must be recognized as being prominent in his or
her field demonstrated by:A.  Has been nominated for, or has received significant national
or international awards or prices such as an Academy Award, an
Emmy, a Grammy, or a Director’s Guild Award; OR B.  Artist must show at least three of the following forms of
evidence.  You must show that you:

1.     Have or will perform as a lead or starring participant
       in productions or events which have a distinguished
       reputation (as evidenced by critical reviews,
       advertisements, publicity releases, publications
       contracts, or endorsements);
or
       other recognized experts in the field
in which artist
       is engaged (such testimonials must clearly indicate the
       author’s authority, expertise, and knowledge of the
       alien’s achievements);

 

C.  Consultation Requirement

Consultation with an appropriate peer group, labor and/or
management organization regarding the nature of the
proposed work and the beneficiary’s qualifications is
mandatory before an O petition can be approved. “Peer
group” means a group or organization comprised of
practitioners of the beneficiary’s occupation. This
requirement may be especially important in the arts,
entertainment fields or athletics. Advisory consultations are
labor consultations, unless no appropriate union exists. In
the latter situation, employers may submit an advisory
opinion from an individual expert in the field, a peer group,
or management organization that describes the
beneficiary’s ability and achievements, the nature of the
duties to be performed, and whether the services require
someone of extraordinary ability.

2.     Have achieved national or international recognition
       for achievements (as evidenced by critical reviews
or
       other published materials by or about the individual in
       major newspapers, trade journals, magazines, or
       other publications);

3.     Have performed, and will perform, in a lead, starring
       or critical role for organizations and establishments
       that have a distinguished reputation (evidenced by
       articles in newspapers, trade journals, publications or
       testimonials);

4.     Have a record of major commercial or critically
       acclaimed successes (as evidenced by such indicators
       as title, rating, standing in the field, box office
       receipts, motion picture or television ratings, and
       other occupational achievements reported in trade
       journals, major newspapers or other publications);

5.     Have received significant recognition for achievements
       from organizations, critics, government agencies,

6.     Have commanded or now commands a high salary or
       other substantial remuneration for services in relation
       to others in the field (as evidenced by contracts or
       other reliable evidence);

7.     Other comparable evidence of prominence (this would
       be very strong letters from other well-known artists or
       professionals in your field).

 P WORK VISA:  Artists, Musicians, Entertainers

 The P visa category covers athletes and entertainers who do not
qualify under the “extraordinary ability” standards of the O visa.  
The only other category under which athletes or entertainers may
be admitted to the U.S. is the H-2B visa, which requires the more
lengthy process of obtaining a labor certification.

 

P VISA CATEGORY

P-1 visas are available to internationally recognized athletes,
athletic teams, and entertainment groups.  P-2 visas are available
to artists or entertainers, either individually or as a group, who
perform under a reciprocal exchange program between the U.S.
and another country.  P-3 visas are available to artists or
entertainers who come to the U.S. either individually or as a group
to develop, perform, teach or coach in a culturally unique event.  
P-4 visas are available to accompanying relatives of P-1, P-2 and
P-3 visa holders.

P Visa Privileges:
• Visas can be issued quickly.
• You may travel freely in and out of the U.S. for the term of
 the visa.
• Visas are available to essential support personnel of all P
 visa holders.
• Visas may be issued to accompanying relatives, but they
 may not work or study.
• You do not have to prove that you intend to return to your
 home country residence when your business in the U.S. is
 completed.
• You may apply for permanent residence while in P status.

Prerequisites and Restrictions:  P-1, P-2 and P-3 Visa


• You must be coming to the U.S. to participate in a
particular event, tour or season.

• Individual entertainers are not eligible for P-1 visas.

• P-1 visa holders must have international reputations.
(Inapplicable to circus groups; waivers are available for
certain entertainment groups with national reputations.)

• P-1 entertainment groups must be “outstanding” for a
“sustained and substantial period of time”.

• Seventy five percent of P-1 entertainment group members
must be part of the group for at least one year.
(Inapplicable to all P-1 support personnel and circus
performers; waivers available, e.g., in case of illness or
unanticipated circumstances, or a new critical member of
the group.)

• Specific and detailed evidentiary requirements must be
met regarding international or national reputation (P-1);
reciprocal exchange programs (P-2), and culturally unique
groups (P-3).

• Letters of no objection or advisory opinions must normally
be obtained from U.S. peer groups, labor organizations, or
management organizations to obtain principal and support
P visas.

• You are restricted to working for the employer who acted
as your sponsor.

 

P3 WORK VISA: 

Artists, Musicians, Entertainers of “Culturally Unique Groups”

 

The most appropriate visa for a person who performs as an artist
or entertainer, in an individual capacity or as part of a group
where such a person is an integral part of the performance and is
planning to enter the United States temporarily and solely to
perform, teach or coach in a program that is culturally unique
is referred to as the “P-3″ visa.

P-3 Visa

The P-3 visa is filed by a sponsoring organization or U.S.
employer for foreign persons who wish to perform, teach or coach
in a commercial or noncommercial program that is “culturally
unique.” A culturally unique program is one which the:


(1) artist or entertainer has achieved excellence in developing,
interpreting, representing, coaching or teaching a unique or
traditional ethnic, folk, cultural, musical, theatrical or artistic
performance; and

(2) the artist or entertainer is coming to the U.S. to promote and
facilitate that art form.

TWO MAJOR REQUIREMENTS:

 

First, it must be demonstrated that the persons have achieved
excellence in their field; AND

Second, the artist’s trip is for the sole purpose of promoting and
facilitating the art form.

 

(1). The person/s have been involved in a culturally unique
program for a substantial period.

(2). The person or group has achieved national or
international recognition or acclaim.

(3). The person/s or group/s skills are authentic and
excellent as attested through letters, expert opinions or
testimonials.

(4). The majority of the performances will be culturally
unique events.

It is also necessary to note that if there exists more than one
geographic area in which the Beneficiary will perform, there must
be a submission of the itinerary. If the agent of the group is the
Petitioner, there must be submission of the itinerary and the
contract.

 

The P-3 visa is not as common in comparison to the many
employment based / nonimmigrant visas in the United States.
There is a burden to prove that the performers are highly
respected and well-known in their field of art. It is also necessary
to prove that the artist or troupe will be working within the context
of a culturally unique program.

These requirements seem fairly straightforward. However, there is
documentation that is required to substantiate the claims that the
person is acting in the context of a culturally unique program. The
necessary documents must establish the following:

 

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