Saturday, January 12, 2008

Mark Sanford on Barack Obama

Here's what the South Carolina governor has to say about the senator from Illinois:

"In the Obama candidacy, there is a potentially history-making quality that we should reflect on. It is one that is especially relevant on the sensitive topic of race — because South Carolina and the South as a whole bear a heavier historical burden than the rest of our country on that front.

"What is happening in the initial success of his candidacy should not escape us. Within many of our own lifetimes, a man who looked like Barack Obama had a difficult time even using the public restrooms in our state.

“What is happening may well say a lot about America, and I do think as an early primary state we should earnestly shoulder our responsibility in determining how this part of history is ultimately written.”

Thursday, January 10, 2008

Fred Thompson Bodyslams Mike Huckabee During South Carolina Debate


Fred Thompson - Kill The Terrorists & Punch The Hippies


On Federalism By Fred Thompson


Friday, July 27, 2007

The Framers drew their design for our Constitution from a basic understanding of human nature. From the wisdom of the ages and from fresh experience, they understood the better angels of our nature, and the less admirable qualities of human beings entrusted with power.

The Framers believed in free markets, rights of property and the rule of law, and they set these principles firmly in the Constitution. Above all, the Framers enshrined in our founding documents, and left to our care, the principle that rights come from our Creator and not from our government.

We developed institutions that allowed these principles to take root and flourish: a government of limited powers derived from, and assigned to, first the people, then the states, and finally the national government. A government strong enough to protect us and do its job competently, but modest and humane enough to let the people govern themselves. Centralized government is not the solution to all of our problems and – with too much power – such centralization has a way of compounding our problems. This was among the great insights of 1787, and it is just as vital in 2007.

The federalist construct of strong states and limited federal government put in place by our Founders was intended to give states the freedom to experiment and innovate. It envisions states as laboratories in competition with each other to develop ideas and programs to benefit their people, to see what works and what does not.

This ingenious means of governing a large and diverse nation prevailed for more than a century. But today our Constitution and the limited, federalist government it established, are considered by many to be quaint or out of touch with the world we live in, to be swept aside by political expediency.

The Supreme Court sometimes ignores the written Constitution to reflect its view of the times. So does Congress, which routinely forgets that our checks and balances, the separation of powers and our system of federalism are designed to diffuse power and protect the liberties of our people. Before anything else, folks in Washington ought to be asking first and foremost, “Should government be doing this? And if so, then at what level of government?” But they don’t.

The result has been decades of growth in the size, scope and function of national government. Today’s governance of mandates, pre-emptions, regulations, and federal programs bears little resemblance to the balanced system the Framers intended.

This in no way diminishes the important role played by the national government, including ensuring our national security, and regulating interstate commerce to promote free markets. Indeed, a commitment to federalism would help the federal government do a better job in addressing national emergencies and emerging threats, because it could focus on these issues rather than on everything else it is trying to do. A proper regard for constitutional boundaries would also go a long way in avoiding the arguments that follow when Washington acts by decree, disregarding the elected representatives of the fifty states.

You know better than anyone how involvement from Washington affects nearly every policy, program, and aspect of your jobs. But beyond the nuisance of duplicative state and federal requirements, one might wonder if a division of responsibility between the federal government and the states is still important. The answer must be a resounding yes.

Federalism is not an 18th century notion. Or a 19th century notion. It retains its force as a basic principle in the 21st century, because when federalism is ignored, accountability, innovation, and public confidence in government at all levels suffer.

It is as true today as it ever was: the closer a government is to its people, the more responsive it is to the felt needs of its constituencies. Too often, however, state and local leaders have to answer to federal bureaucrats first and their constituents second. When the federal government mandates a program that states and localities are forced to implement, or when a federal grant program is created to fund a specific state or community need, it blurs the lines of accountability.

Who answers to the people if a program fails? The federal government will point to state authorities carrying out the program; the states will point to the federal government, which came up with the program in the first place. And in the end no one is more confused than the people the program is supposed to be serving, who can’t even say for sure who is responsible for what. This does not argue against all federal programs but it does require the recognition that there, indeed, are trade-offs.

Back in my days in the Senate, I found myself on the short end of a couple of 99 to 1 votes. They involved issues that had been under the purview of states for over 200 years. I asked why we should federalize what rightly were state and local issues.

I’ve been saying it for years, and it bears repeating: what works in Tennessee may not work in Nebraska and may be different from what succeeds in Oregon. That’s why President Ronald Reagan compared federalism to letting a thousand sparks of genius in the states and communities around this country catch fire. It’s not a perfect system, but it works a lot better than the alternative of central planning.

We need to allow local authorities to apply their own good ideas and use their own good judgment. Each state can find its own way, learning from the successes and failures of the others. There is a wealth of creativity and initiative out there in the states, and often the best ideas in Washington started out as state initiatives.

A good example of this early in my Senate service was welfare reform. We were warned that terrible things would happen if we went forward with a bill – a fundamental commitment would be abandoned and, among state governments, a “race to the bottom” would begin.

But key to our approach were elements of welfare reform that had proved successful in various states, such as Colorado, Michigan and Wisconsin. The result was a law that allowed us to better meet our commitments to our fellow citizens. It was one of the great political successes of the 1990’s, because Washington – for once – had the good sense to learn from state and local authorities and empower them in return.

When you hold firm to the principles of federalism, there’s another advantage: our federal government can better carry out its own defining responsibilities – above all else, the security of our nation and the safety of our citizens. Sometimes I think that our leaders in Washington try to do so many things, in so many areas, that they lose sight of their basic responsibilities.

We saw some improvement in the post-1994, "Contract with America" takeover of Congress – strings to federal programs were cut, more federal programs were being turned over to states, historic legislation to reduce unfunded mandates became law, and we rolled back the Clinton anti-federalism executive order. But in recent years we’ve seen backsliding.

The recent immigration bill was a case in point. That bill failed, and it failed for good reason. The federal government simply had no credibility on the issue.

The promises of the 1986 immigration bill have not been fulfilled. Current laws have not been enforced. The federal government has been failing in its fundamental responsibility to control the borders. Worse, when state officials have tried to act with reforms of their own, federal authorities have gotten in the way. In the end, many in both parties in Congress have learned a lesson: promises about immigration reform aren’t worth much unless you have credibility. And in this case there’s only one way that credibility can be regained. Federal leaders must do their job and secure the borders of the United States.

Law enforcement in general is a matter on which Congress has been very active in recent years, not always to good effect and usually at the expense of state authority. When I served as a federal prosecutor, there were not all that many federal crimes, and most of those involved federal interests. Since the 1980’s, however, Congress has aggressively federalized all sorts of crimes that the states have traditionally prosecuted and punished. While these federal laws allow Members of Congress to tell the voters how tough they are on crime, there are few good reasons why most of them are necessary.

For example, it is a specific federal crime to use the symbol of 4-H Clubs with the intent to defraud. And don’t even think about using the Swiss Confederation’s coat of arms for commercial purposes. That’s a federal offense, too.

Groups as diverse as the American Bar Association and the Heritage Foundation have reported that there are more than three thousand, five hundred distinct federal crimes and more than 10,000 administrative regulations scattered over 50 section of the U.S. code that runs at more than 27,000 pages. More than 40 percent of these regulatory criminal laws have been enacted since 1973.

I held hearings on the over-federalization of criminal law when I was in the Senate. You hear that the states are not doing a good job at prosecuting certain crimes, that their sentencing laws are not tough enough, that it’s too easy to make bail in state court. If these are true, why allow those responsible in the states to shirk that responsibility by having the federal government make up for the shortcomings in state law? Accountability gets displaced.

Now, there are plenty of areas in criminal law where a federal role is appropriate. More and more crime occurs across state and national boundaries; the Internet is increasingly a haven for illegal activity. A federal role is appropriate in these and other instances. But today the Federal Bureau of Prisons has quadrupled in size in little more than 20 years.

Perhaps the clearest example of federal over-involvement in state and local responsibilities is public education. It’s the classic case of how the federal government buys authority over state and local matters with tax-payer money and ends up squandering both the authority and the money while imposing additional burdens on states.

Between 1970 and 2005, federal spending on education increased nearly 150 percent without results to match. The No Child Left Behind law itself increased federal funding by some 26 percent, while creating 50 new educational programs nationally, imposing almost 7 million hours and more than 140 million dollars in compliance time and costs. The classrooms of America, where the learning actually takes place, receive but 61 cents out of every tax-payer dollar appropriated.

A little more federalist confidence in the wisdom of state and local governments might go a long way toward improving America’s public schools. The most encouraging reforms in education are occurring at the local level, with options like charter schools. And often the best thing Washington can do is let the states, school districts, teachers and parents set their own policies and run their own schools.

It is appropriate for the federal government to provide funding and set goals for the state to meet in exchange for that funding. However, it is not a good idea for the federal government to specifically set forth the means to be used in order to reach those goals. Adherence to this principle would make for fewer bureaucracies, fewer regulations, and less expense, while promoting educational achievement. There are bills pending in Congress that would move us in this direction, and I hope Congress gives them the attention they deserve.

Beyond specific policies, what’s needed are some basic rules to restrain the federal rule-makers.

A good first step would be to codify the Executive Order on Federalism first signed by President Ronald Reagan. That Executive Order, first revoked by President Clinton, then modified to the point of uselessness, required agencies to respect the principle of the Tenth Amendment when formulating policies and implementing the laws passed by Congress. It preserved the division of responsibilities between the states and the federal government envisioned by the Framers of the Constitution. It was a fine idea that should never have been revoked. The next president should put it right back in effect, and see to it that the rightful authority of state and local governments is respected.

It is not enough to say that we are "for" federalism, because in today’s world it is not always clear what that means. What we are "for" is liberty for our citizens. Federalism divides power between the states and government in Washington. It is a tool to promote freedom. How we draw the line between federal and state roles in this century, and how we stay true to the principles of federalism for the purpose of protecting economic and individual freedom are questions we must answer. Our challenge – meaning the federal government, the states, our communities and constituents – is to answer these questions together.

Goodbye INS--and Advice for Its Replacement by Federation for American Immigration Reform


Source: Immigration Report

The notoriously inept and inefficient Immigration and Naturalization Service (INS) ceased to exist on January 25.   After public outrage over highly publicized foul-ups and deadly incompetence, last year Congress abolished the agency and voted to roll its functions into the new Department of Homeland Security (DHS).

While this is a major victory for homeland security and sensible immigration enforcement, the test now will be whether the new DHS can succeed where its predecessor failed.   INS long ago lost sight of its primary mission: to stop illegal immigration and enforce America’s immigration laws.   Here’s how DHS can avoid repeating those mistakes.

1. Don’t ignore illegal aliens. INS is famous for “prioritizing” enforcement out of existence.   As a general rule, when local police arrest illegal aliens and try to turn them over to INS, INS habitually refused to pick them up.   As a result, most illegal aliens know they can safely ignore U.S. immigration laws.

2. Treat the American public as your customer. Starting with former Commissioner Doris Meissner, INS has embraced a customer service attitude toward prospective immigrants—rather than toward the American people.   Treating immigrants and applicants for benefits as the customer has led to slipshod procedures, a rubber-stamp culture, and serious breaches of national security.   INS’s replacement should realize that it’s the American people who are the government’s customers, and that for safety’s sake, these customers want processing to be more secure and thorough, not merely faster.

3. Convenience shouldn’t trump security.   INS dropped the foreign student tracking system when it was first proposed because colleges found it inconvenient.   INS stopped requiring aliens to register their addresses annually because it was inconvenient.   INS encouraged hundreds of thousands of illegal aliens to use the Section 245(i) loophole to become legal because it was more convenient.   Enforcing immigration law may not be “convenient,” but it’s essential to homeland security and a credible immigration system.

4. Work with local authorities.   INS complained that it couldn’t handle illegal immigration by itself—and then refused to let anyone help.   Since 1996, INS has had the ability to deputize local police officers to help enforce immigration laws (after proper training).   Several state and local governments have tried to get such an arrangement out of INS, which consistently stonewalled them.   With fewer than 2,000 agents to monitor the entire interior of the United States, it’s critical that federal immigration authorities enlist the assistance of tens of thousands of local police departments who are in the best position to spot illegal or suspicious behavior in their own communities.

5. Treat any means for illegal immigration as a means for terrorism.  DC sniper John Malvo was an illegal alien whom INS chose not to deport when they had him in custody.   New York City subway bomber Gazi Abu Mezer was an illegal alien whom the INS trusted to leave the country just because he had been asked to.   Ramzi Yousef, of the first World Trade Center attack, was another illegal alien released due to lack of detention space.   Yes, the vast majority of illegal aliens are not terrorists.   But any time we stop enforcing the laws against illegal immigration, we give terrorists yet another golden opportunity to operate under the radar.

6. Don’t deceive Congress and the American public.  In 1995, INS officials in Miami released criminal aliens and illegal aliens in order to clear detention space and present a more orderly facility to a visiting Congressional task force.   In 1996, INS Commissioner Meissner misled Congress by testifying that immigration numbers were dropping, when in fact they were not; this resulted in legislators dropping a bill to reform legal immigration.   Although INS was called on the carpet later in congressional hearings, the damage was done.   Whatever the truth is, Congress and the public are entitled to know.

7. Make sure the leaders are as committed as the employees are. Most rank and file INS staff are committed to keeping America safe and upholding immigration law, but INS higher-ups have often had other priorities.   In the 1990s, INS launched “the Phoenix Plan” for enforcing employer sanctions; if the agency finds illegal aliens on a payroll, it tells the employer so the aliens can be fired before the INS shows up.   The business stays clean, but the illegal aliens get away.   In 1994, Commissioner Meissner thought she’d save time and money by simply not forwarding applicants’ fingerprints to the FBI to check for criminal records (a policy later reversed when it was made public).   When local Border Patrol Chief (and now congressman) Silvestre Reyes lined up his officers along the border to deter illegal immigration, he had to do so without headquarters’ blessing.   Only after the public wildly supported the initiative was INS pressured into supporting Reyes and duplicating his idea elsewhere.

8. Don’t farm your job out to others.  One of the biggest disasters in recent INS history was the “Citizenship USA” program, a rush-job naturalization effort in 1995-96 mostly farmed out to private contractors.   The public later learned that cheating was rampant and security nonexistent.   Before it was stopped, the program naturalized around 50,000 criminal aliens.   More recently, two of the September 11 hijackers received visa approvals from the contractor INS used to process applications—six months after they had died attacking the World Trade Center.   We don’t delegate military defense to private militias; let’s stop delegating immigration law to private companies.

9. Fix the computers, already.  The INS is rife with notorious computer failures.   Its many systems don’t interface, they don’t work or are out of date, or they simply aren’t used.   U.S. visas are now electronically scannable, but most ports of entry don’t have the scanners, or, for that matter, the computers to check INS’s existing databases.   As a result, a recent INS study found that it intercepts no more than 16 percent of travelers attempting illegal entry at the ports of entry, letting in between 2.95 and 5.45 million illegal immigrants annually. In 2001, a Department of Justice Inspector General audit found that INS completely wasted $31 million in setting up just one new system that didn’t work.

10. Demand an immigration system that is controllable. INS sat back passively as immigration went from a manageable 400,000 in the 1970s to over one million in 2001.   Applications are backlogged, security checks are given short shrift, deportable criminal aliens are released into society, naturalization is slowed down.   The INS has, in effect, broken down under the weight of an unmanageable number of immigrants.   A final word of advice to its replacement:  Don’t just ask for more resources, which hasn’t worked anyway.  Ask Congress to give us a more reasonable immigration system that can be managed effectively.


Tuesday, January 08, 2008

Illegal Alien Crisis: Backdoor Amnesty With A Wink & Nod

Adjustment of Status under Section 245(i) in Context of the Legal Immigration Family Equity (LIFE) Act Amendments (enacted 12/21/00)



Adjustment of Status

The Immigration and Nationality Act (INA)1 permits change of an alien's immigration status in the United States (US) from nonimmigrant or parolee (temporary) to immigrant (permanent) if the alien was properly admitted or paroled into the US. The term for a change from temporary to permanent status is adjustment of status. The term change of status refers to a change from one temporary classification to another.

For most aliens other than Canadian visitors or visitors with Border Crossing Cards, admission or parole is reflected on the Form I-94 Arrival-Departure Record issued by an INS inspector to every alien who enters the US. The INA lists2 classes of aliens who are not eligible for adjustment of status, including those who entered the US illegally, have worked in the US without authorization (or with expired authorization), and/or have failed to continuously maintain lawful status since entry.

There are generally two alternative methods to obtain immigrant status for those who have been deemed eligible for permanent residence in the US -- via adjustment of status if the alien is already in the US and wants to remain in the US during the processing period or via consular processing if the alien will obtain the immigrant visa at a US consulate. Without Section 245(i), consular processing abroad is the only option for certain aliens who are ineligible for adjustment of status in the US.

History of Section 245(i)

In 1994, Congress enacted INA Section 245(i), permitting certain aliens who were otherwise ineligible for adjustment to pay a penalty fee for the convenience of adjusting status without leaving the US. Prior to enactment of the LIFE Act Amendments, the window for preserving adjustment eligibility under 245(i) closed on January 14, 19983, after which only "grandfathered" aliens (beneficiaries4 of labor certifications or immigrant visa petitions filed5 on or before that date) were eligible to adjust status under Section 245(i).

Section 245(i) grandfathers aliens themselves as well as the applications or petitions filed for them. That is, the basis of a grandfathered alien's eventual adjustment is not restricted to the application or petition filed to preserve adjustment eligibility. The grandfathered alien's application for adjustment of status may be based on any adjustment provision available to the alien at the time of adjustment.6

Relationship of 3- and 10-year bars to admissibility on Section 245(i)

The Illegal Immigration and Reform and Immigrant Responsibility Act (IIRIRA) enacted in September 1996 provided that an alien who accumulates between 6 months and 1 year of unlawful presence in the US after April 1, 1997, becomes inadmissible for 3 years if (s)he subsequently leaves the US. Even if an alien who had become subject to a bar were to obtain a visa at a consulate7, (s)he would not be admitted into the US upon arrival. Similarly, an alien who accumulates one year or longer of unlawful presence becomes inadmissible for 10 years.

IIRIRA's bars to admission were critical to the permanent residence process for the following reason. Following the January 1998 expiration of 245(i), it became increasingly difficult, if not impossible, for an alien to adjust status in the US if (s)he was unlawfully present (e.g. due to overstay past the Form I-94 expiration date or to breach of terms and conditions of status). Moreover, the same alien was also ineligible for consular processing if (s)he had accumulated sufficient unlawful presence for the 3 or 10 year bar to apply (i.e. for duration of the applicable bar).

If an applicant is subject to the 3- or 10-year bar, adjustment of status will not be approved unless (s)he obtains a waiver. Even if an alien overstays, however, a bar will not apply unless (s)he leaves the US and re-enters. An alien who succeeds in re-entering the US in spite of an applicable bar needs a waiver in order to adjust status. On the other hand, an alien who would be subject to a bar if (s)he were to travel outside the US will not be subject to the bar if (s)he never leaves the US. Note that the bars continue to apply if applicant travels while adjustment is pending, even if the alien obtains advance parole. A grant of permanent residence terminates applicability of a 3 or 10 year bar.

LIFE Act and 245(i)

The Legal Immigration Family Equity (LIFE) Act Amendments, enacted on December 21, 2000, temporarily restored eligibility under Section 245(i) by replacing the previous cut-off date (January 14, 1998) with a new date (April 30, 2001). Accordingly, a beneficiary of a labor certification application or immigrant visa petition filed8 on or before April 30, 2001, preserves eligibility to adjust status under INA §245(i). Payment of a $1,000 surcharge will be required with the adjustment application, regardless of the timing or basis of the eventual adjustment. The $1000 penalty fee is payable at the time of adjustment rather than at the time the grandfathering petition or application is filed.

The LIFE Act added a significant requirement to Section 245(i). If the qualifying petition or labor certification was filed after the previous cut-off date (January 14, 1998), the alien must have been physically present9 in the US on the date of enactment (December 21, 2000) in order to qualify for Section 245(i) benefits under LIFE.10 It is uncertain at this time what evidence will be required or accepted to satisfy the physical presence requirement.

Qualifying filings

Labor certifications or visa petitions filed in order to preserve an alien's adjustment eligibility under 245(i) must be both properly filed and approvable (meritorious in fact and non-frivolous) when filed. To meet this test, at a minimum, the filing must be timely and meet all applicable substantive requirements. Deficiencies such as lack of fee or original signature disqualify the submissions.

Petitions that have been denied or withdrawn, or for which approval has been revoked by INS, may still serve to grandfather the alien beneficiary, depending on the reasons for the final action. The determinative issue is whether a visa petition is approvable when filed. To remain eligible, the changed circumstances must relate to factors beyond the alien's control rather than to the merits of the petition at the time of filing.

In the event that an employer applicant for a labor certification or petitioner for employment-based permanent residence dies, goes out of business, or otherwise chooses to withdraw or becomes ineligible to maintain the application or petition, or the family member who filed the petition dies or is divorced from the beneficiary, the alien beneficiary does not necessarily lose grandfathered11 status.

What and how to file12

If approvable under the circumstances, any of the following may be filed on or before April 30, 2001, to preserve the beneficiary's adjustment eligibility:

Family-based permanent residence:

Form I-130 may be filed by a qualifying family member of the alien who is a citizen or lawful permanent resident of the US. This form may be ordered toll-free at 800-870-3676 or downloaded from INS' Website.

Employment-based permanent residence:

Form I-140 may be filed by a US employer who has offered the alien beneficiary permanent employment in the US. Most petitions for permanent residence based on a job offer require labor certification in order to be approvable (this refers to the actual certification by US Department of Labor - USDOL -- rather than to mere filing of Form ETA-750). Certain less common filings also qualify.13 The forms may be ordered toll-free at 800-870-3676 or downloaded from INS' Website.

Labor Certification:

To obtain labor certification, an employer and alien employee together submit a completed application Form ETA-750 (typically available from state departments of employment services or from the USDOL Website together with documentary evidence to the state DOL14. For more information about labor certification, see below.

Confusion of LIFE provisions with "Amnesty"

Many persons mistakenly believe that 245(i) constitutes amnesty, i.e. forgiveness of unlawful presence or breaches of status. On the contrary, unlawful presence continues to accrue until application for adjustment of status is filed (which stops accrual of unlawful presence). Section 245(i) does not protect an alien from deportation. That is, an alien who continues to work without authorization may remain eligible to adjust status if and when permanent residence is approved and an immigrant visa is available, but may be removed from the US if discovered in the meantime. Furthermore, a US employer who files Form ETA-750 or Form I-140, naming an unauthorized alien as beneficiary, will be subject to sanctions if discovered to be knowingly employing that alien prior to eligibility for adjustment (when alien can obtain an EAD). Once application for adjustment is made, the alien becomes eligible for work authorization. It may take months or years, however, from the time that the qualifying 245(i) application for labor certification or petition is filed, for the alien to become eligible to file for adjustment.

Impact on dependents of grandfathered aliens

A dependent spouse or child who is accompanying or following to join a grandfathered alien is also considered grandfathered by the qualifying petition or labor certification if the relationship existed or comes to exist before the principal alien eventually adjusts status. Only the principal beneficiary of a visa petition or application for labor certification filed after January 14 1998, and on or before April 30, 2001, needs to demonstrate physical presence in the US on December 21, 2000.



  • A US citizen or permanent resident relative files USCIS Form I-130, naming a qualifying relative (such as a spouse, parent, child or sibling) as beneficiary and providing the required proof of the relationship. The form contains specific instructions for filing.

  • An I-130 may be filed at an applicable Service Center. In some circumstances, an I-130 may be filed in conjunction with an I-485 in a district office having jurisdiction over the petitioner's place of residence.15

  • Family-based beneficiaries are typically issued employment authorization documents by the INS offices where their adjustment applications are pending.16 The processing period may vary according to caseload and from one INS office to another. The family-based beneficiary is not authorized to work in the US until the employment authorization document is received.

  • When the I-485 application for adjustment is adjudicated, which could take up to a few years but varies case by case, the applicant may be called into the INS field office for an interview. A decision will be subsequently communicated to him or her.

  • If adjustment of status is approved, an appointment is made to have an "I-551 stamp" placed in the alien's passport. The I-551 stamp is meant to establish proof of the alien's permanent residence and unrestricted employment eligibility until the actual Permanent Resident Card (Form I-551) is processed (approximately one year).

  • Aliens approved for permanent residence on the basis of marriage are granted conditional residence for two years, after which an interview takes place for determination of whether the marriage is bona fide. If a positive determination is made, the conditions on permanent residence are removed and the alien obtains unrestricted permanent residence and a Permanent Resident Card valid for ten years.

Further information on family-based immigration can be found on the USCIS Website.


  • Form I-140 is filed at the USCIS Service Center with geographic jurisdiction over the place of employment. All employment-based forms (including Forms I-360 and I-526) contain complete instructions.

  • In some cases, employment-based permanent residence does not require labor certification.17 However, the majority of cases require that the Form I-140 be filed with a labor certification approved by the US Department of Labor. In such cases, the Form I-140 is not complete and/or approvable unless the labor certification is filed with it. The Form ETA-750 must be certified by USDOL. A copy of the application to USDOL is insufficient. Labor certifications may take two years or longer to process, particularly in backlogged areas such as New York, Illinois, and California.

  • Once the I-140 is approved, the alien beneficiary becomes eligible to file for adjustment of status provided that an immigrant visa is available. If it is not, application for adjustment cannot be filed.

  • Once the immigrant petition is approved and an immigrant visa is available, Form I-485 application for adjustment may be filed, along with Form I-765 application for employment authorization (for one year at a time for the duration of the adjustment process) and Form I-131 application for advance parole to permit travel abroad during the adjustment process.

  • Form I-765 applications for employment-based applicants are filed at USCIS Service Centers and take 90 days or longer to process. The alien may not work in the US until the employment authorization document is received.

Processing of I-130 and I-140 petitions:

  • A Form I-130 or I-140, filed at an USCIS Service Center, typically takes up to six months to process, on a case by case basis, depending upon backlogs at the Service Center where it is filed as well as the completeness of the petition and supporting documentation.

  • Where deficiencies are found by Service Center adjudicators, requests for evidence (RFEs) are issued and typically result in processing delay.

LABOR CERTIFICATION (for employment-based permanent residence)

Labor certification is a statement from the US Department of Labor (USDOL) that a particular position at a particular company is "open" because no US workers who satisfy the minimum requirements for the job are available. An alien seeking to immigrate to the US on the basis of employment must obtain an offer of permanent full-time employment from an employer in the US. Such alien cannot be admitted as a permanent resident unless, among other things, the employer obtains a labor certification from USDOL that qualified US workers are not available for the employment offered to the alien, and that the wages and working conditions offered will not adversely affect those of similarly employed US workers.

The labor certification process requires the employer to recruit US workers at prevailing wages and working conditions through the State Employment Service, by advertising, posting notice of the job opportunity, and other appropriate means. A USDOL regional certifying officer makes a decision to grant or deny the labor certification based on the results of the employer's recruitment efforts and compliance with USDOL regulations. Most employers of unskilled workers, skilled workers, and professional workers need to obtain labor certification before petitioning INS for permanent residence for those workers based on employment. Exceptions exist for aliens in shortage occupations (registered nurses, physical therapists, sheep herders and those demonstrating "exceptional ability" in business, science, or arts), aliens demonstrating to INS that they possess extraordinary ability, aliens who are multinational executives or managers, aliens whose work is deemed in the "national interest," and aliens who are outstanding university level teachers and researchers in tenure-track jobs. Petitions naming beneficiaries who hold such positions, which are considered unique and do not displace American workers, do not require labor certification.

To obtain labor certification, an employer and alien employee together submit application Form ETA-750 (This form is available from state departments of employment services or downloadable from USDOL's Website.) together with documentary evidence to the state DOL. The state DOL confirms that the wage offered for the position is the "prevailing wage" and reports whether the salary must be increased to satisfy prevailing wage requirements. The state DOL then approves an advertising strategy and sends the application to the local DOL. At the local DOL office, the job is listed as "open" in the state computerized job bank and the employer is instructed to place an ad in a specified journal or newspaper. The ad will ask applicants for the position to apply directly to the local DOL. The local DOL screens applicants and refers seemingly qualified applicants to the employer. The employer must promptly interview all seemingly qualified applicants. The employer must also consider and interview if necessary any other applicants who, through the job bank listing or pure chance, apply for the position. The employer then files a recruitment report with the local DOL explaining why the ad placement was appropriate, the names of persons who applied for the job (if any), and why such applicants were not qualified.

  • Section 245(a)

  • §245(a) and (c)

  • The sunset date of Section 245(i), as originally enacted, was October 1, 1997; various legislative acts extended Section 245(i) temporarily until November 26, 1997. Thereafter, President Clinton signed into law a provision that changed the nature of 245(i), so as to grandfather those aliens in the US for whom an immigrant visa or application for labor certification was filed on or before January 14, 1998.

  • The beneficiary is the alien named in the application or petition

  • All qualifying submissions were required to be both properly filed and approvable at the time of filing.

  • Example: A qualifying Form ETA-750 filed on or before January 14, 1998 preserved the beneficiary's eligibility to adjust status after that date. However, the filed ETA-750 did/does not commit that alien to adjustment on the basis of an employment-based petition. If, after January 14, 1998, the alien was named as beneficiary in a family-based petition or won an immigrant visa in the diversity lottery, (s)he was/is permitted to adjust status on the new basis (note that the an immigrant visa won in the diversity lottery will not grandfather an alien, but may be used as a basis of adjustment by an alien who is already grandfathered under Section 245(i).

  • A visa is a travel document that permits the alien to whom is was issued to travel to the US and apply for admission under the classification indicated on the visa. It has no purpose inside the US.

  • See footnote 3.

  • One document may not suffice to prove physical presence on December 21, 2000. An alien may need to provide a number of documents for this purpose. USCIS anticipates that it will accept governmental and/or non-governmental documentation.

  • Note: Some 245(i) applicants grandfathered before January 14, 1998, have still not filed for adjustment, yet remain eligible until their permanent residence petitions are approved and immigrant visas are available. These aliens are not required to satisfy LIFE's December 21, 2000, physical presence requirement.

  • Provided that the qualifying submissions were approvable when filed, timely, and meritorious in fact.

  • In each case below, an adjustment application must eventually be filed. When it is time to file for adjustment, Form I-485 supplement A should be filed with Form I-485 and $1000 fee. If Form I-485 was filed without supplement, applicants should attach a copy of the filing receipt when filing the supplement and fee.

  • Form I-360 for Amerasian, Widow(er), or Special Immigrant (including religious workers), filed on behalf of a beneficiary or as a self-petition under Sections 204(a)(1)(A)(iii) or (a)(1)(A)(iv) if filed by an eligible alien, as well as a Form I-526, Immigrant Petition by Alien Entrepreneur, also meet this requirement.

  • It is the filing of Form ETA-750, rather than approval or certification by USDOL that preserves adjustment eligibility under Section 245(.i). It is important to realize, however, that filing is the first step in a potentially very lengthy process, during which alien beneficiaries taking advantage of 245(.i) benefits remain in unlawful status. Obtaining a labor certification takes from several months to two years, depending on the location of the job (New York, California and Illinois are particularly backlogged).

  • For example, petitions for alien spouses of US citizens are typically filed with Form I-485 (adjustment of status), Form I-765 (employment authorization), Form I-864 (affidavit of support) and Form I-131 (advance parole).

  • Local offices issue the Form I-688B version of the Employment Authorization Document and Service Centers issue Form I-766.

  • For more information, request Office of Business Liaison Employer Bulletin 99-14.



    Under an agreement finalized this week, the US Senate and the House of Representatives have decided to repeal Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  Section 110, whose effective date was repeatedly postponed because of implementation problems, would have mandated a strictly controlled entry-exit system at American border posts and points of entry.  Many believe it would have brought cross-border traffic to a standstill, and would have had a severe negative impact on international business.

    Now the Chairman of the Senate Immigration Subcommittee, Spencer Abraham (R-MI) and the Chairman of the House Immigration Subcommittee, Lamar Smith (R-TX), along with Rep. Fred Upton (R-MI), have reached an agreement that will replace Section 110 with a more reasonable law.  Under the compromise agreement, the INS will be required to integrate existing data collected by the INS, the Customs Service and the Border Patrol to develop a record of those entering and leaving the US. 

    The bill mikes clear that only information that is currently collected would be collected under the new law and that no new documents would be required for US entry. Air and sea ports would be required to comply with the new law by December 31, 2003. Most land ports would have until the end of 2005 to comply, although the 50 busiest would have to compliant by the end of 2004.

    The agreement was introduced as H.R. 4489, the Immigration and Naturalization Service Data Management Improvement Act of 2000 by Representative Smith.