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On July 30, 2008, President Bush signed into law the U.S. Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization Act (H.R.5501). While this legislation rids the statute of unfair discrimination against foreign nationals with HIV, it does not repeal the ground of inadmissibility for those that are HIV positive.

The bill includes a provision that repeals the HIV travel/immigration ban by amending the current health-related ground of inadmissibility in the Immigration and Nationality Act to exclude any reference to HIV. This provision returns the authority to the Department of Health and Human Services to determine whether individuals with HIV should be permitted to travel to the U.S.

While this legislation rids the statute of unfair discrimination against foreign nationals with HIV, it does not repeal the ground of inadmissibility for those that are HIV positive. INA section 212(a)(1)(A)(i) renders inadmissible any individual “who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance.” Until HIV is taken off the list by the Department of Health and Human Services, HIV continues to be listed as a communicable disease of public health significance under 42 C.F.R. Section 34.2(b)(4) and HIV positive foreign nationals continue to remain inadmissible to the U.S. This legislation has not changed the requirements for the waiver of inadmissibility.

Businessweek reports on a new research by economist Gianmarco Ottaviano of the University of Bologna and Giovanni Peri of the University of California at Davis. They say immigrants compete for jobs with broader swath of native workers, diluting their impact on the least skilled segment of the local workforce. They also say that employers can’t substitute an immigrant for an American that easily. They find that immigration’s effect on local worker’s wages is almost too small to measure.

This latest research contradicts the popular paper by Harvard University Economist Mr. Borjas, who found that immigration suppresses the wages of the least skilled workers. I tend to to agree with Mr. Ottaviano and Peri, immigrants do not hurt native workers wages, they only boost our economy.

I received so many emails following our most recent I-601 waiver posting about waiver success. Readers were encouraged by our clients success and learned how to plan a successful waiver. But what to do when the waiver is denied. Are there any options? I have provided below an extract from Laurel Scott’s excellent article on waivers. Laurel like myself, is one of a few immigration lawyers specializing in this complex area of law.

So what to do when your I-601 waiver is denied?

An appeal following an administrative denial to an Application for Waiver of Grounds of Inadmissibility must be made to the Administrative Appeals Office (AAO). It must be filed within 30 days of the date of the denial. Note that it is possible to fee-in-amend-alter with the appeal. In such a case it is necessary to submit the I-290B and filing fee within 30 days of the denial (33 if mailed), but on the form there’s a box that can be checked indicating that the representing attorney will send the brief directly to the Administrative Appeals Office within 30 days. As the waiver decision is discretionary, it is very difficult to win an appeal. AAO does not like to overturn the discretionary decision on I-601 waivers. AAO discourages new arguments being presented on appeal that were not in the original I-601 packet, but new or ‘updated’ evidence is generally acceptable.

Once an appeal is filed, and forwarded to the AAO in Washington, DC, it is out of the hands of the USCIS office that denied the case. The OIC does not have more access to information about the appeal than the attorney. Direct inquiries to the AAO, not the office that denied the case.

Due to the lengthy processing time for appeals (can be 22 months or more) and low chance of success, consider refilling a de novo (new) I-601 packet instead, especially if the client attempted the first I-601 by himself and it is clear that a better packet can be compiled. The law is unclear on whether it is possible to file a de novo I-601 based on the same immigrant visa or K visa case. Some consulates will allow simply re-filing, but most will require starting over with a new visa petition. Most of the consulates within the jurisdictional area of the Vienna USCIS office will allow a re-filing of the I-601 without a new petition. Even starting over with a new immigrant visa petition may get a decision faster than an appeal. Also, having to start over with a new visa petition allows time to put together a better waiver packet. The process will allow for several months, rather than the 30-60 days given for preparing an appeal.

For an in-country I-601 denial, the appeal will probably not stop the client from being placed into proceedings as the I-485 would also be denied. There is nothing to lose by attempting to get Deferred Action following the I-601 denial. Other tactics for how to handle immigration proceedings following I-601 denial are beyond the scope of this advisory.

The I-290B is normally filed with the consulate, but in a few parts of the world it is filed with the CIS office. Be sure to review the instructions on the denial notice.

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Due to the large number of visa refusals (mostly non immigrant) in many Consulates around the world, we can not stress to clients to be honest about past visa refusals.

For more than 25 years, consular officers have been noting visa refusals by stamping the back of an applicant’s passport with “application received.” Modern technology makes this step no longer necessary. The refusals are being tracked by the DOS, DHS and other federal agencies, just in a more modern manner than the ink stamp in a passport.

When filing for a nonimmigrant visa application, Form DS-156 of the DOS asks in question 31 whether the visa applicant has ever been refused a visa. If the answer is yes, it is important to provide information as to when, where, and the type of visa that was denied or refused. Not providing accurate or truthful information could result in further refusal based on fraud or material misrepresentation. Potentially, such findings could permanently prevent an individual from obtaining a visa and entering the United States. Even though certain waivers are allowed, obtaining an approval of a waiver for a nonimmigrant or immigrant visa is discretionary and not routine. So be honest and you will be in a better position.

This week I am attending the National American Immigration Lawyers Association Conference in Vancouver,BC. The setting is perfect as 11,000 immigration lawyers gather to discuss the most pressing issues in immigration law today.

I attended the open forum where by Government Officials from Immigration and Department of Labor share views and answer questions from the lawyers. Gov Officials said that the U.S. Department of State Visa Bulletin for July 2008 stated that all employment-based, third preference (EB3) visa numbers will be used by the end of June 2008. There are several causes of this development according to the panel experts today, including joint efforts by DOS and the USCIS to utilize all available visa numbers by the end of fiscal year (FY) 2008.

One important change that appears to be contributing to the usage of visa numbers is the February 2008 Michael Aytes (he was there today acting very cheerful and willing to answer many questions) memorandum allowing for approval of Application for Adjustment of Status (I-485) cases awaiting clearance through the Federal Bureau of Investigation (FBI)’s National Name Check Program (NNCP).

The Supreme Court’s decision in Dada v. Mukasey, No. 06-1181, 554 U.S. ___ (June 16,

2008), addresses the interplay between the voluntary departure provision, INA § 240B,

and the motion to reopen provision, INA § 240(c)(7).

The EB-5 program allocates 10,000 visas per year for aliens and family members whose qualifying investments result in the creation or preservation of at least ten (10) full-time jobs for U.S. workers. 3,000 of these immigrant visas are set-aside for aliens who invest in designated regional centers, areas of high unemployment or other qualifying rural areas.

The EB-5 visa category started in 1991. Regional Centers started in 1993. The program was due to expire this year. The House of Representatives passed HR 5569, a bill extending the EB-5 Regional Center program for another five years.

A recent, Memo from Donald Neufeld, Acting Associate Director, Domestic Operations, USCIS, provides supplemental guidance on the processing of I-140s and H-1Bs under AC21.

Some of the Key changes in this Memo are the following:

Post 6th year H1B extensions wll not be available if the workers’ Labor certification or PERM application has been revoked, or if the visa petition is not submitted within 180 days following the PERM approval occured on or after July 16, 2007. If you recall this was the extended deadline following the visa Bulletin changes in July of 2007.

According to the American Immigration Lawyers Association, it appears that sometime in early 2008, CBP received approximately one million I-94 Arrival-Departure cards that were misprinted such that they were missing a digit. An I-94 card should have eleven digits, comprised of nine digits, a space, and then two more digits. For example, an I-94 card might have the number 055167890 11 (eleven digits), but the misprinted cards had numbers such as 55157890 11 (with ten digits).

The misprint has resulted in problems such as the Social Security Administration refusing to issue, or delaying the issuance of, a Social Security number to a person otherwise eligible for enumeration who has an I-94 card with a number short by digit.

CBP reported that the defective I-94 cards have been recalled and replaced. It is unknown how many defective cards have been issued. Calgary Airport in Canada is one port known to have issued some of the defective cards, but there might be others.

Practicing Immigration Law in San Diego, just 20 minutes from the largest International crossing border in the world can be very exciting. The stories I hear from clients and our Government workers are amazing. Stories of government employees corruption are not new, and from time to time we hear of a big fish getting caught in the system. A recent New York Times article covers the San Diego and other cities immigration corruption situation.

If you can get a corrupt inspector, you have the keys to the kingdom,” said Andrew P. Black, an F.B.I. agent who supervises a multiagency task force focused on corruption on the San Diego border.

The smugglers use any ruse available to lure border workers but seem to favor deploying attractive women as bait. They flirt and charm and beg the officers, often middle-aged men, to “just this once” let an unauthorized relative or friend through. And then another and another.