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Comment on OMB Control Number 1615-0078 (form N-300)IntroductionDHSThe Immigration and Nationality Act (INA) is administer...
(3) immigration-related document fraud in violation of INA § 274C; and       (4) failure to comply with the information di...
Protected IndividualsIRCA’s employment related provisions provide that an employer may decline tohire an LPR who has inord...
 five (5) years from either the date of commission or conviction date for a     minor (less than permanently disqualifyin...
INA § 332 [8 USC § 1443] Administration[Prior to 1990, this section read, in pertinent part:](a) Rules and regulations gov...
lead to ubiquitous instantaneous communication via e-mail, text messaging, cellphones, instant chat, conference calls, inc...
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Comment on N-300 11-25-2011

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Comment on N-300 11-25-2011

  1. 1. Comment on OMB Control Number 1615-0078 (form N-300)IntroductionDHSThe Immigration and Nationality Act (INA) is administered primarily by theDepartment of Homeland Security (DHS). The primary immigration agencieswithin DHS are: U.S. Customs and Border Protection (CBP), U.S. Immigrationand Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services(USCIS). DHS is not the only Department responsible for administering the INAand indeed, even the three primary DHS agencies are not the only DHS agencieswith INA responsibilities but they are the best known, most responsible, andenough for this discussion.DOJThe Department of Justice (DOJ) under the authority of the Attorney General (AG)is the home of the Executive Office of Immigration Review (EOIR). EOIR is thehome of the Immigration Courts wherein Immigration Judges1 (IJs) preside overRemoval Proceedings and other related matters such as deciding on Motions ordetermining bonds and some custody matters. IJ decisions are appealable to theBoard of Immigration Appeals (BIA or Board). The BIA ostensibly wields theauthority of the AG, however, the AG retains the power to further review, modify,affirm, or reverse a BIA Decision whether a Precedent or not.The EOIR is also the home of the Office of the Chief Administrative HearingOfficer (OCAHO). The Administrative Law Judges (ALJs) within OCAHOprimarily decide matters pertaining to employment provisions of the INA: (1) knowingly hiring, recruiting, or referring for a fee or the continued employment of unauthorized aliens, and failure to comply with employment verification requirements in violation of INA § 274A (employer sanctions); (2) immigration-related unfair employment practices in violation of INA § 274B;1 Statutorily defined in INA § 101(b)(4) added by § 371 of IIRIRA , effective on date ofenactment of IIRIRA. Also now defined in 8 CFR § 1001.1 (l) but previously and originally defined by a delegation of authority in a DOJ regulation in 8 CFR § 3.1 in 1983. The formalregulatory “definition” of an Immigration Judge came later in 1987 which was used in the 1996 Act and perhaps slightly altered. Page 1 of 6
  2. 2. (3) immigration-related document fraud in violation of INA § 274C; and (4) failure to comply with the information dissemination provisions for international match making organizations in violation of 8 U.S.C. § 1375a: (IMBRA information dissemination failures/violations—this is still new and has no regulations yet. IMBRA is not in the INA but alongside it in 8 USC).Complaints are brought before OCAHO by the DHS (primarily ICE althoughUSCIS’ E-Verify Program has an existing working relationship and MOA2), theOffice of Special Counsel for Immigration-Related Unfair Employment Practices(OSC) in DOJ, or private individuals as prescribed by statute. USCIS might jointhe fray more deeply in the future in relation to IMBRA. OCAHO was created byIRCA 1986, along with the employer sanctions and related provisions in INA §§274A, B, & C.Discussion Southwest MarineAn early ruling by OCAHO of importance to a potential use of USCIS Form N-300 is United States v. Southwest Marine Corp., 2 OCAHO 400 (June 9, 1989)3 ,hereafter Southwest Marine.Southwest Marine addressed a situation where an LPR, Jose S. Miranda (Miranda)was not recalled from a layoff solely because he had not naturalized yet.Miranda immigrated in 1970, first became eligible to file for naturalization in1975, eventually filed for naturalization in 1985, and failed to naturalize the firsttime around. Miranda had trouble passing English requirements and withdrew hisN-400 upon the advice of the INS Examiner and Naturalization Supervisor in orderto avoid a denial and a required waiting period before he could re-apply. (This casearose under an older and now defunct petitioning scheme that did not require anN-300 but had a waiting period before re-filing an N-400. Former INA § 332(a)[8 USC § 1443(a)] was broader and gave the A.G. and INS greater regulatoryauthority to set rules for filing a petition for naturalization.)4 Miranda tookaffirmative steps to speed up the re-petitioning process in the near future and alsotook English lessons. He was not recalled to work during a period when he wasactively pursuing the required skills to pass the examination required fornaturalization, i.e. “becoming eligible.”2 See: http://www.justice.gov/crt/about/osc/pdf/CRT_USCIS1.pdf3 See: Matter of United States v. Southwest Marine Corp., 2 OCAHO 400 (June 9, 1989) at:http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Hardbound/Volume2/400.pdf4 See text of former INA § 332(a) below. Page 2 of 6
  3. 3. Protected IndividualsIRCA’s employment related provisions provide that an employer may decline tohire an LPR who has inordinately delayed naturalization. Instead, such provisionsonly protect statutorily defined protected individuals, and that definition is carriedover in the implementing regulations. See 28 CFR § 44.101(c) and INA § Sec.274B [8 USC5 § 1324b](a)(3)(a). However, there is, as anyone well acquaintedwith the INA will not be surprised to learn, an exception to the exception made viathat exclusionary language. Miranda was just such an exception and was theprototype for understanding, and the first within, this class. Still “Becoming Eligible”and “Actively Pursuing Naturalization” Beyond Five (5) and Six (6) Months as an LPR:The question then remains as to how to determine what is meant by “becomingeligible”. Since the statute contains the parenthetical proviso: “by virtue of periodof lawful permanent residence”, it is likely that Congress intended to base thatgeneral provision on the basic eligibility requirements found in INA § 316(a). Thevast majority of naturalization applicants do apply under INA § 316(a) whichgenerally requires five (5) years of lawful permanent resident status upon the filingdate of the form N-400, Application for Naturalization. Although, “otherwiseeligible” LPRs may file up to three (3) months early per INA § 334(a), that is anoptional privilege and not a requirement and should not be used to determine thecut-off date for exclusion purposes in hiring preference. In addition, no other non-standard section of the INA that affords an earlier filing date than the base section6for establishing general naturalization eligibility should be used to construe theexclusionary language in INA § 274B even if such section could apply to an LPR. Additional Eligibility Factors Beyond Mere Length of Time in LPR Status:There are numerous other prerequisites, including:  three (3) months residence in a State (or USIS Office jurisdiction);  thirty (30) months (at least half of the time as an LPR and before filing the N-400) of physical presence in the five (5) year statutory period;  maintaining “continuous residence” within the United States; and  good moral character for the statutorily required period of time.An otherwise eligible LPR may be prevented from filing for naturalization for alimited period of time such as:5 The INA is codified as Title 8 of the United States Code (8 USC).6 INA § 316 [8 USC § 1427] is entitled “Requirements of Naturalization” and (a) addresses “residence”. Page 3 of 6
  4. 4.  five (5) years from either the date of commission or conviction date for a minor (less than permanently disqualifying) crime (i.e., single non- deportable CIMT, non-felony domestic violence, juvenile delinquency, other minor offense, or minor controlled substance violation);  re-establishing “continuous residence” by waiting four (4) years and one (1) day after a disruptive break in residence [8 CFR § 316.5(c)(1)(i) and (ii)]; or  waiting ten (10) years since quitting the Communist party when that membership does not qualify for an exception.  Lastly, one might not be barred from filing an N-400 yet still be ineligible for Oath administration until the successful end of probation. Recognizing and Respecting Context and HistoryAll benefit applications are ultimately determined by an individualized case-by-case analysis of the specific facts to the controlling laws. Those laws arehierarchical. In descending order those laws include: Statutes passed by Congress under authority found in the Constitution and as o Interpreted by the Executive through its duly promulgated Implementing Regulations and as further shaped by:  Judicial and Administrative Precedents and/or  Cognizable Executive Intent (is found worthy of Deference) via:  agency policy memos, and  procedural memos and manuals, and/or  other publicly available official interpretations of: o agency counsel/legal department, and even from the o Federal Register published information collections and the Departmental or agency-specific APA notice- and-comment rulemaking’s:  supplementary and/or explanatory information, and  public comments and the agency’s responses to them.One is almost always best-served by keeping something within its proper contextand in an historical perspective rather than, losing lessons learned, or treating anymatter in a void unto itself. Page 4 of 6
  5. 5. INA § 332 [8 USC § 1443] Administration[Prior to 1990, this section read, in pertinent part:](a) Rules and regulations governing examination of applicants The Attorney General shall make such rules and regulations as may be necessary to carry into effect the provisions of this part and is authorized to prescribe the scope and nature of the examination of applicants for naturalization as to their admissibility to citizenship for the purpose of making appropriate recommendations to the naturalization courts. Such examination, in the discretion of the Attorney General, and under such rules and regulations as may be prescribed by him, may be conducted before or after the applicant has filed his petition for naturalization. Such examination shall be limited to inquiry concerning the applicants residence, physical presence in the United States, good moral character, understanding of, and attachment to the fundamental principles of the Constitution of the United States, ability to read, write, and speak English, and other qualifications to become a naturalized citizen as required by law, and shall be uniform throughout the United States. [Emphasized portion was stricken by the 1990 amendment. The INS previously had broader discretionary regulations and procedures in accordance with that stricken language.] Coordination Is CrucialThe interplay between the various governmental authorities should not beoverlooked. Integration of the various missions, responsibilities, and authorities iseasier in today’s world than at any time in our history. As stated above, the roles tobe played in investigating and charging violations; setting and imposing fines;implementing any other punishments such as: administrative debarment and/orsanctions up to and including criminal prosecutions under IMBRA are not yetdefined or regulated. Communication Is KeyBack when the Department of Defense research scientists created the precursor tothe internet7 who could have seen just how much that would change the world.ARPANET and numerous other advances spurred by it and other influences have7 Defense Advanced Research Projects Agency (DARPA) created the Advanced Research ProjectsAgency Network (ARPANET), was the worlds first operational packet switching network and the corenetwork of a set that came to compose the global Internet. Page 5 of 6
  6. 6. lead to ubiquitous instantaneous communication via e-mail, text messaging, cellphones, instant chat, conference calls, including videoconferencing and webinars,and whatever new thing lies waiting just around the corner. USCIS and all partieswith applicable responsibilities need to get on the same page. This small effortrelating to the N-300 can be a proving ground for some of the mechanisms that willmake possible, and facilitate future collaborations on even more important andlarge endeavors.ConclusionIn the current unfriendly social and political climate that fans the flames of anti-immigrant rhetoric and its ugly sentiments, the N-300 may have an additionalpractical use and a plain utilitarian function. It may serve to build confidence.Employers and lawfully work-authorized aliens may rest easier with an approvedDeclaration of Intention in hand and on record. The N-300, in its most recentincarnation is insufficient to that proposed task. The weak and non-committalDeclaration on the form could use some additional statements to make itsubstantive, worthwhile, and more meaningful. Specific suggested language haspreviously been submitted and need not be repeated here. The substance of thiscurrent comment as it pertains to the use of the N-300 as a confidence building toolfor certain LPRs who are still “Becoming Eligible” and/or “Actively PursuingNaturalization” beyond five (5) and six (6) months as an LPR is submitted as areminder. This point and suggested expanded use of the N-300 was previouslymade and was in a comment submitted in response to the March 28, 20118,information collection which also requested comments. I ask USCIS to re-reviewthe earlier comment for this current information collection. However, I will behappy to supply it again as I have it readily available.Than k you for the opportunity to express this opinion and offer these suggestions.Joseph P. Whalene-mail: joseph.whalen@gmail.com November 25, 20118 Prior comment converted to a different format that I cannot open, is buried on the lesser known websiteat: http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201106-1615-008 Page 6 of 6

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