Nation of Immigrants

Our Blog Has a New Address

2009-10-14T16:16:00.000-07:00

Our blog, Nation of Immigrants, has moved to a new address:

http://shusterman.typepad.com

If you are currently a follower of our blog, you need to go to the new address, and sign up to a follower again.

Sorry for the inconvenience!

Carl Shusterman

How to Select an Immigration Attorney

2009-10-11T12:22:00.000-07:00

Last Friday was a depressing day for me. A businessman and his daughter visited me in my office. When I asked how they had learned about our law firm, they said a lot of flattering things about how "famous" we were and about our "great" website.

However, when I analyzed their case, it quickly became apparent to me that nothing could be done to help them. It was too late. The man's I-140 (EB1-3) which was submitted in April 2001 had been denied, and his former attorney had advised them not to appeal, but to have the employer file a new I-140. The new I-140 was also denied as were their I-485s. Since the man's L-1 status had long since expired, his whole family had been placed under removal proceedings.

His present lawyer had advised him to have his employer submit a 3rd I-140 on his behalf and for him and his family to file new I-485s on the basis that he was eligible for adjustment of status under section 245(i).

Suddenly, I became the bearer of bad news: "Sir, you are ineligible for benefits under section 245(i). Your initial I-140 was denied because the INS concluded that you were not an executive or manager, that the foreign and domestic companies were unrelated and that you were not being paid at the proferred wage. Furthermore, your employer did not appeal the I-140 denial. So, what is your argument that the I-140 meets the 'approvable when filed' standard for section 245(i) eligibility?"

Yet, both his previous and present attorneys were in agreement that he was covered under section 245(i). I told him that I disagreed, and therefore, could not take his case. He and his daughter left my office disappointed.

Every potential client that I saw on Friday had a similar story, and it was too late to repair any of their damaged cases. In my opinion, each of them will have their cases denied by an Immigration Judge. What's more, they will pay other attorneys many thousands of dollars only to lose their cases, appeal them to the BIA, and then lose again. Eventually, these unfortunate people will be ordered to either leave the United States "voluntarily" or face deportation.

COULD THESE RESULTS HAVE BEEN AVOIDED?

Absolutely!

Section 245(i) has been on the books for over 15 years. All immigration attorneys should be able to properly analyze the facts of a case, and advise a client whether his I-140 complies with the "approvable when filed" standard under section 245(i).

But how is a person supposed to know whether an immigration attorney is giving him good advice? In fact, how does a person go about selecting a good immigration attorney to represent him?

There are over 11,000 members of the American Immigration Lawyers Association (AILA). Some are excellent attorneys, others are so-so, and more than a few are absolutely terrible. All immigration attorneys are not created equal. How is an immigrant, untrained in the intricacies of the law, supposed to select a competent attorney?

I have prepared a free video entitled "Ten Rules for Selecting an Immigration Attorney". Take a few minutes and watch this video at

http://shusterman.com/ytimmatty.html

CERTIFIED SPECIALISTS IN IMMIGRATION LAW

Immigrants frequently choose attorneys just because speak their language or are from the same country as they are. Many Chinese choose Chinese attorneys; Filipinos tend to select Filipino attorneys, etc.

Some immigration attorneys have built huge followings by blanketing ethnic newspapers with ads touting their successes. Other attorneys, including Yours Truly, are known largely through their websites.

However, speaking a particular language, running big ads or having a popular website is no guarantee of quality. Expertise and experience are far more important than "self-advertised or paid" prominence.

In my video, I stress one important criterion that is nowhere mentioned in the section of the USCIS website entitled "Finding Legal Advice" or in the ads or websites of most immigration attorneys.

A number of states put attorneys through a rigorous system where they must pass a difficult examination regarding the intricacies of immigration law, require that they have a certain amount of experience in various facets of immigration law (employment-based, family-based, asylum, deportation defense, etc.) and obtain recommendations from their colleagues. A committee checks to make sure that the attorney is in good-standing with the bar association. Only then can an attorney be deemed to be a Certified Specialist in Immigration Law.

Several years ago, I had the privilege of serving on the committee which writes and grades the examination for California attorneys seeking Certified Specialist status in Immigration Law. I can state, without hesitation, that the examination was extremely difficult to pass, and that every attorney who our committee recommended to be a Certified Specialist was both experienced and a true expert in the field.

In my opinion, persons seeking legal advice from immigration attorneys could do no better than to restrict their search to pre-screened Certified Specialists in Immigration Law.

LOCATION, LOCATION, LOCATION ?

This mantra is a good rule of thumb when you are looking to buy a house. It is less helpful when you are seeking immigration legal advice. Immigration law is federal. Therefore, an immigration lawyer in Texas or California can represent corporate and individual clients in all 50 states.

For example, during the past few weeks, attorneys in our law firm flew to New York City, Reno, Dallas and Philadelphia to represent clients. In a typical case, however, the petitions and applications are simply mailed to the USCIS, and no interview is required. The location of the attorney is irrelevant, while the skill of the attorney is paramount.

The USCIS promised to link to lists of Certified Specialists in Immigration Law as a service to the public. See

http://shusterman.com/pdf/certsp1106.pdf

However, they seem to have reneged on their promise.

Don't despair. Below, we link to the web addresses of all Certified Specialists in Immigration Law around the United States.

HOW TO FIND A CERTIFIED SPECIALIST IN IMMIGRATION LAW

Four states currently certify attorneys as specialists in immigration law. If enough savvy consumers of legal services use certified specialists, we predict their will be a clamor in all states to certify legal specialists in the future.

* CALIFORNIA

http://members.calbar.ca.gov/search/ls_search.aspx

* FLORIDA

http://www.floridabar.org/names.nsf/CERTA?openview&RestrictToCategory=IM&count=20

* NORTH CAROLINA

http://www.nclawspecialists.org/results.asp?SpecialtyID=1108

* TEXAS

http://www.tbls.org/Directory/Attorney.aspx

WHAT CAN A CERTIFIED SPECIALIST DO FOR YOU?

Why should you hire a Certified Specialist in Immigration Law?

Take a look at the brochure written by the California State Bar at

http://www.shusterman.com/certsp105.html

If you are a savvy consumer, you will hire a Certified Specialist in Immigration Law to assist you in your immigration case.

This way, you can obtain top-notch legal advice and avoid the unfortunate dilemma faced by the businessman and his daughter discussed at the beginning of this article.

We Give the New USCIS Website a "B-"

2009-10-02T20:39:00.000-07:00

The newly revamped USCIS website went online on September 22.

It is definitely an improvement over the prior website.

For example, it is geared to the person who needs information about immigration. On the left side of the screen appear the words "Where to Start". This allows you to click the arrow next to the words "I am..." and provides you with 21 choices ranging from "U.S. citizen" and ending with "Educator or Volunteer". Below are the words "I want to..." Depending on which of the 21 categories you choose under "I am...", the choices under "I want to..." will vary accordingly.

If you choose "I am a visitor/nonimmigrant", you will be given seven choices in the "I want to..." category. Some of these categories allow you to learn more about becoming a permanent resident through investment, employment, the lottery or as a religious worker, but nothing about becoming a permanent resident through a family member. This is obviously an oversight which we hope will be quickly corrected.

Suppose you choose "I want to find out about becoming a permanent resident (green card holder) through employment". You must click the green button which states "Get Results". This brings you to a page entitled "Green Card Through a Job". A short article about employment-based immigration appears in the middle of the page. Over to the left, there are links to web pages on the following topics: "Green Card Through a Job Offer", "Green Card Through Investment", "Green Card Through Self-Petition" and "Green Card Through Special Categories of Jobs" as well as links to other ways to obtain a green card and green card processes and procedures.

The right side of the screen contains a column entitled "More Information" with the following subtopics: "Forms", "Tools - Before I File", "Tools - After I File", "Other Cases Services", "Other USCIS Links" and "External Links".

All in all, the new USCIS website appears to contain more information than did the old website. Further, it is arranged in a fashion that is much more user-friendly. We link to the new website from our "USCIS" page at

http://shusterman.com/ins.html#1
Another significant improvement to the new website is that there is a Spanish-language version of the site. It is plain to see, however, that many pages which are available in English are not available in Spanish. For example, the Spanish "Soy..." option only contains four possibilities as opposed to the 21 choices for the English "I am...". Hopefully, this will change over time. We link to the Spanish version of the website from

http://shusterman.com/cis_espanol.html

The website allows users to get e-mail updates, text messages on their smart phones regarding the status of their cases, has an RSS feed and multimedia. I watched a video entitled "Becoming a U.S. Citizen: An Overview of the Naturalization Process". As a former INS Citizenship Attorney (1976-82), I was impressed by the quality of the information presented.

We link to the page which allows persons to create an account in order to check their case status and to learn the current processing times from our "USCIS" page at

http://shusterman.com/ins.html#2

Not everyone is impressed with the new website. When I requested a short evaluation of the site from a member of my staff, I received the following:

"The main change to the USCIS website is the layout. The contrast in colors is pleasing to the eye and adds the illusion that the site is that much more organized. What is much more organized is the homepage. The topics that seem to be of main interest to visitors are nicely laid out. However once you click on the topic, you are connected to a page with basic information and on each side there are links that might confuse the visitor at first. After touring around the redesigned site, the visitor realizes that the same links practically exist on every page with minimal change. I don’t think USCIS is providing its visitors with more information, it’s just that the same information has moved!"

I don't know that my evaluation of the new website is as harsh. However, I do have some problems with the new website.

On August 15, a few weeks before the new website went online, we wrote "USCIS' Redesigned Website: Our Suggestions". See

http://carlshusterman.blogspot.com/2009/08/uscis-redesigned-website-our-suggetions.html
Did the new website adopt any of our suggestions? Read on.

* Suggestion # 1 - Please do Something to Improve the Search Engine

As a trial, we typed in the words "L status" into the search engine and got ten results. However, none of the results led us to a page discussing what L status is and how to obtain it. Is there such a page on the USCIS website? Perhaps the search engine still needs some work. Until USCIS improves its website and search engine, feel free to go to our "Intracompany Transferees L-1 Status" page at

http://shusterman.com/l-vsa.html

* Suggestion # 2 - Make the Website Easier to Navigate

Failing to find any information about L status by clicking "Resources" near the top of the new website, we typed "Nonimmigrant Categories" in the search engine, and with a bit more effort, found the following 162-page PDF file about nonimmigrant status:

http://www.uscis.gov/files/nativedocuments/Nonimmigrant_Services.pdf

Was this information available on the old website? We don't know. However, why not simply add an easy-to-locate "Nonimmigrant" section on the new website?

* Suggestion # 3 - Make the New Website as Good as the 1999 Website

Here, we searched for the four Nationality Charts. The term "Nationality Charts" yields no results in the search engine. Similarly, opening "Citizenship & Naturalization Based Resources" on the left side of the screen fails to reveal any information regarding obtaining U.S. citizenship through one's parents, through derivation or acquisition. However, a google search revealed that the Nationality Charts are still on the USCIS website located in the Adjudicators' Field Manual. But why torture yourself? We link to all four Nationality Charts on our "Citizenship" page at

http://shusterman.com/toc-usc.html#6

* Suggestion # 4 - What's with the Long URLs?

On the new website, the URL for "Information for Employers and Employees" is

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=838e2f8b69583210VgnVCM100000082ca60aRCRD&vgnextchannel=838e2f8b69583210VgnVCM100000082ca60aRCRD

Need we say more?

* Suggestion # 5 - Help Immigrants and Their Employers Find Good Legal Advice

Under the heading "Humanitarian Benefits Based Resources" on the left side of the screen is the listing "Finding Legal Advice". The new website, like the old, still links to the EOIR "List of Free (sic) Legal Service Providers". As we explained in our blog, this is both misleading and untrue.

Does the new website link to the list of "Certified Specialists in Immigration and Nationality Law" as they promised me in 2006? See

http://shusterman.com/pdf/certsp1106.pdf
Of course not!

All in all, the new USCIS website is an improvement over the old website, but much more remains to be done.

We give the new USCIS website a "B-"

Hopefully, the new website is a work-in-progress. Send your comments to

uscis.webmaster@dhs.gov

USCIS' Redesigned Website: Our Suggestions

2009-08-15T18:33:00.000-07:00

The USCIS announced that, on September 22, the agency "will launch a vastly improved public Web site to help customers navigate the immigration system and remain up-to-date regarding their case status." See the USCIS Fact Sheet dated August 11 at

http://www.shusterman.com/pdf/redesign.pdf

Almost 10 years ago, the INS redesigned its website. We were very critical. See our review entitled "INS's New Website Emphasizes Content Over Form(s)" at

http://shusterman.com/sep99.html#6

We pointed out that after spending millions of dollars and employing a great many experts, the INS website did not even allow readers to access as many INS forms as our website. The INS Webmaster responded to our review on September 20, 1999. See

http://www.shusterman.com/beyer.html

Subsequently, the INS established the best U.S. immigration website on the Internet.

However, several years later, the INS again redesigned its website, and in the process, eliminated many of the most helpful features of the site.

Since the USCIS is once again redesigning it's website, we wish to make a few suggestions:

1. Please do something to improve the search engine.

Our website has more links to the USCIS website (several hundred) than any other site on the web. So we empathize with readers who tell us that it is extremely difficult to find information on the USCIS website. For example, take a look at the first link above, the USCIS Fact Sheet dated August 11. We could not find this on the USCIS website, so we scanned in the Fact Sheet and posted it on our website.

Example: What if someone is interested in L status? Whether they type in "L", "L status", "L visa petition" into the USCIS search engine, they get the following answer: "404 - Requested Page Not Found on Site".

The USCIS search engine, even when it is working, leaves a lot to be desired.

2. Make the website easier to navigate.

Your fact sheet lists the following customer comments about the present USCIS website. It is "hard to navigate", "overwhelming" and "frustrating". That's because the layout of the website is illogical. For example, let's say someone is searching for information about L status. How do they find this information at www.uscis.gov?

The website has the following buttons near the top of the page:

* Services & Benefits
* Immigration Forms
* Laws & Regulations
* About USCIS
* Education & Resources
* Press Room

Where would one find information about L status? Probably under "Services & Benefits". Clicking this button leads one to a four-paragraph general introduction which ends with the following guidance: "For information about a particular immigration benefit or service, please select the appropriate button on the menu to your left."

The menu on the left contains a total of 17 different items, none of them clearly relating to L status or temporary visa categories. So we decided to click the "How do I Customer Guides". This page lists six different categories of guides, one of them being "Nonimmigrants". Fine for an attorney, but does the average immigrant realize that the word "Nonimmigrants" relates to temporary visa categories like the L category? Probably not.

However, let's assume that the reader clicks on "Nonimmigrants". This leads to a page which contains three links, the most appropriate being "How do I Change to Another Nonimmigrant Status?" Click on this link, and you are transported to a three-page PDF file. The file lists some of the 40 types of nonimmigrant categories, but provides precious little information about any of these categories. For instance, with reference to the L category, the document states "L-1A or L-1B Intracompany Transfer". Not very helpful, is it?

By this time, the person has probably given up on the USCIS website and found all the information that they need to know about L status on our website at

http://shusterman.com/toc-temp.html#3m

And where did we get all this great information about L status? Confession: We copied and pasted it from the old INS website! (which leads us to our next suggestion...)

3. Bring Back the Old INS Website

Or at least make the new USCIS website as useful as the old INS website was. For example, the USCIS used to include four charts which relate to derivative citizenship. And we linked to all four nationality charts. For example, we linked to the chart for "Acquisition of U.S. Citizenship for Children Born Abroad in Wedlock" at

http://www.uscis.gov/propub/ProPubVAP.jsp dockey=6f3ca27ff6c196d35e87dae2221deee9

Every few weeks, the URL would change and we would have to repair the link. We wrote to the USCIS webmaster about this problem, but we never received a reply. Now, it seems that the USCIS has removed all four nationality charts from their website. Why? We have no idea.

We could write to the USCIS webmaster, but what's the use?

4. What's With the Long URLs?

Check out the following web page:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=4f719c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextchannel=4f719c7755cb9010VgnVCM10000045f3d6a1RCRD

What's this, you may ask? It's USCIS' page regarding "Lawful Permanent Residence (Green Card)". Why is the web address (aka, the URL) so long? Maybe there is a reason for the long URLs on the USCIS website, but we don't know what it is.

5. Help Immigrants and Their Employers Find Good Legal Advice

The USCIS website wisely advises persons not to use the services of notarios or "immigration consultants".

However, it does little to advise immigrants where to find knowledgeable and experienced immigration attorneys. USCIS' "Finding Legal Advice" page contains eight links: To the websites of the American Bar Association and the National Organization of Bar Counsel and even to EOIR's list of "Free Legal Service Providers". However, when one clicks on this last link, the list indicates that the services of these attorneys are not necessarily free, and what's more, this list is for persons in removal proceedings who cannot afford an attorney. Not exactly the list that an employer who wants to submit a PERM application or a permanent resident who wants to apply for naturalization needs.

A long time ago, we suggested to the USCIS that since four states (California, Florida, Texas and North Carolina) certify certain attorneys as Specialists in Immigration Law, why not link to the lists of these specialists. On November 6, 2006, Alfonso Aguilar, the Chief of USCIS' Office of Citizenship told us that he would do so. See

http://shusterman.com/pdf/certsp1106.pdf

We have been waiting for this to occur for nearly three years. Please surprise us, and add this to the new USCIS website!

CSPA for Married Couples

2009-08-12T11:32:00.000-07:00

When she and her husband called me, she thought that she qualified for benefits under CSPA.

Initially, I was skeptical. In every seminar regarding the Child Status Protection Act (CSPA) that I have presented on behalf of the American Immigration Lawyers Association (AILA), my mantra has always been, if you marry, you lose whatever benefits you gained under CSPA.

Still I listened to what she had to say, and in the end, I agreed with her.

She and her husband were both physicians, born in India and trained in the U.S. They both would have qualified for permanent residence in the United States years ago except for the long waiting times in the EB-2 category for persons born in India.

Her mother's sister, a citizen of the U.S., petitioned for their family over 20 years ago when she was a child. By the time that their priority date became current in 1999, she had "aged-out" by reaching the age of 21.

A few years later, her mother became a naturalized U.S. citizen, and more recently, the daughter married and had a child.

Is she entitled to benefit under CSPA, or does she have to continue to renew her H-1B status, and wait for her EB-2 priority date to become current?

The first step in resolving this question is to examine the language of the law, specifically section 203(h)(3) of the Immigration and Nationality Act which was added to the law by CSPA:

"If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition."

It is clear that the daughter was 21 years of age when her parents qualified for permanent residence through her aunt's petition. Therefore, her petition was "automatically...converted" to the 2B category since she was the unmarried adult daughter of a permanent resident. And she was entitled to "retain the original priority date issued upon receipt of the original petition", which was submitted in 1986.

Yes, I am very aware of the recent decision issued by the Board of Immigration Appeals in Matter of Wang, 25 I&N Dec. 28 (BIA 2009) which disagrees with the above analysis. However, as I explained in a previous blog entry, I believe that the decision in Matter of Wang is clearly erroneous and not entitled to deference by the Federal Courts. See

http://carlshusterman.blogspot.com/2009/07/bias-cspa-decision-not-entitled-to.html

Therefore, let's assume that the Federal Courts will invalidate the holding in Matter of Wang and continue with our analysis.

When the physician's mother naturalized, the "appropriate category" under section 203(h)(3) changed from the 2B category to the family-based 1st preference category (unmarried adult sons and daughters of U.S. citizens) and the priority date remains the same. Why?

Because the USCIS' regulations at 8 C.F.R. 204.2 provide, in pertinent part, that upon the "petitioner's naturalization...a currently valid petition according preference status under section 203(a)(2) of the Act for the unmarried son or daughter over twenty-one years of age shall be regarded as having been approved under section 203(a)(1) of the Act."

Yet, the question remains, what happens to the priority date when the daughter married?

Again, 8 C.F.R. 204.2 which concerns the "automatic conversion of preference classifications" provides, in pertinent part, that "A currently valid petition previously approved to classify the beneficiary as the unmarried son or daughter of a United States citizen under section 203(a)(1) of the Act shall be regarded as having been approved for preference status under section 203(a)(3) of the Act as of the date the beneficiary marries".

Therefore, the daughter is entitled to her original 1986 priority date and her category "automatically converts" from the 4th preference category to the 2B category (when her parents obtained permanent residence), then to the 1st preference category (when her mother naturalized) to the 3rd preference category (when the daughter married).

If we are retained, we will prepare applications for adjustment of status for both the daughter and her husband. We realize that the USCIS is bound by the holding in Matter of Wang to deny these applications.

However, when this occurs, we will ask a Federal Judge not to defer to Matter of Wang, but to apply the clear language of the law to this matter, and to order the USCIS to grant adjustment of status to our client and her husband.

A Day in the Life of an Immigration Attorney

2009-08-05T19:48:00.000-07:00

None of my friends from UCLA Law School, class of 1973, went into immigration law.

Corporate law, personal injury law and real estate law were all far more lucrative. If you are looking for a multi-million dollar settlement, immigration law is not for you.

So why do we immigration lawyers do what we do?

Having spent over half of my life practicing immigration law, I can tell you that I consider myself to be very fortunate. The satisfaction that I get from meeting and helping immigrants from around the world makes it worthwhile.

Let me explain myself by telling you about a recent day at the office:

The first thing in the morning, I interviewed an RN who had arrived in the U.S. as a visitor a few years ago. She appeared to be hopelessly out-of-status. Although her father, a lawful permanent resident of the U.S., had submitted a visa petition on her behalf over 15 years ago, he had died soon thereafter. A nursing home had submitted a visa petition on her behalf in 2007. However, as I explained to her, this would not allow her to apply for adjustment of status for another four to five years.

Then, I learned that her grandfather had been born in the U.S. and had traveled to her country during the Spanish-American War in 1898. He married her grandmother, and her father was born in 1916. Therefore, under the laws which existed on the date of her father's birth, he acquired U.S. citizenship at birth. Further, since her country was a U.S. possession until 1946, she acquired U.S. citizenship through her father.

We are currently preparing an application for derivative citizenship on her behalf. We expect her to receive a Citizenship Certificate before the end of 2009.

At the beginning of the appointment, my client thought that she was illegally present in the U.S. Thirty minutes later, she learned that she was a U.S. citizen. What a relief! See

http://shusterman.com/toc-usc.html#6
I saw my next appointment just before lunch. She was the wife of a U.S. citizen. Not just a U.S. citizen, but a sergeant in the U.S. Air Force who has been twice deployed in Iraq.

She had been petitioned by her U.S. citizen step-father before her 21st birthday. During her interview, she was asked whether she was under 21 years of age, and whether she had ever been married. She answered truthfully. It took the INS two years to grant her permanent resident status and mail her a green card. By that time, she had married, and was pregnant with her first child.

Five years later, she applied for U.S. citizenship. Her application was denied because, as the Immigration Examiner explained, she was granted a green card as an "immediate relative", not as a married daughter. Since she been granted a green card by mistake, he could not approve her application for naturalization. Furthermore, he informed her that she would be scheduled for a removal hearing before an Immigration Judge.

Both she and her husband were stunned. What had she done wrong? As a former INS General Attorney (Nationality), I was a bit stunned as well.

I called the Officer-in-Charge of her local INS office, and explained the situation to him. We are hopeful that she will not be placed in removal proceedings, and that her application for naturalization will be granted since the mistake was clearly the government's, not hers. See

http://shusterman.com/toc-dpt.html#5
My final appointment of the day also involved a woman who had an application for naturalization which was denied. She is married, and is the mother of two children. She has lived in the U.S. for over 30 years, since she was a child. However, the USCIS concluded, based on an investigation which occurred over a decade ago, that her prior marriage was fraudulent. When the INS investigator asked her husband where they had lived when they were married, he could not remember the address.

As a former INS Trial Attorney, this made me very suspicious as well. I grilled her regarding the details of her first marriage. After giving her the "third degree" for over 30 minutes, her answers were both detailed and credible. Then I asked her how it was that her former husband did not even know that address where she claimed that they had resided for over one year. She replied that they lived with her parents, and that her husband was a businessman who owned a restaurant closeby. She knew exactly where their restaurant was located, the workers at the restaurant and many other details. But did she know the address of the restaurant? Absolutely not. Her husband knew exactly where their house was located, the marriage had been approved of by her parents and his prior to the marriage, and her parents were prepared to testify at her hearing. But did he know the address of the house? The answer was no.

Given my background, I fully understood why the investigator had concluded that the marriage was fraudulent, but after spending considerable time questioning the wife, I concluded that he was mistaken.

We will appeal the decision denying her citizenship. If necessary, we will defend her in removal proceedings. Will she ultimately be allowed to remain in the U.S. with her family? I have no doubt that she will. See

http://shusterman.com/toc-usc.html#2

Driving home on the freeway, I reflected on the circumstances of my three new clients, and how they had entrusted their futures to me and my associates. There is no way that we will let any of them down.

My wife and I went out to dinner with an old friend from law school that evening. He is a corporate lawyer, and is extremely successful. He confessed that he was getting tired of the "rat race" and plans to retire at the end of 2009.

He asked me when I planned to retire. "Retire?" I replied, "I have too many clients who depend on me. Besides, I am having way too much fun!"

How to Use Your H-1B to Qualify Under Section 245K

2009-07-30T22:38:00.000-07:00

For the past few months, there have been no green cards available for persons in the employment-based third preference category (EB-3) and long backlogs in the EB-2 category for persons born in India and China.

So, with few green cards to grant, why has the USCIS been scheduling interviews for persons in these categories?

The short answer is that just because the USCIS cannot grant most EB-3 and EB-2 applicants green cards, the agency can take advantage of the lull in applications for adjustment of status to deny persons with pending applications.

How can they do that? Easy!

Let's say that a person was out-of-status for more than 180 days since their most recent admission to the U.S. Denied! Not qualified for adjustment of status under section 245K of the immigration law.

The irony is that section 245K was added to the law by Congress in order to make the requirements for adjustment of status less onerous for employment-based applicants. It allows persons to adjust their status to permanent residence as long as they were not engaged in unauthorized employment or were out-of-status for 180 days or more since their most recent admission to the U.S.

By way of contrast, persons in the family-based preference categories (who are not immediate relatives of U.S. citizens) can not adjust their status if they have engaged in unauthorized employment or been out-of-status AT ANY TIME.

Let's say that one time during the many years that you were in H-1B status, you lost your job and were out of work for over 180 days. Adjustment of status denied!

Or maybe you moonlighted at another job without INS's (This was in 2003!) permission. Adjustment of status denied!

There are endless variations to this sad scenario. But not only will your application for adjustment of status be denied, but the USCIS will be only too eager to issue a notice for you to appear before an Immigration Judge in removal proceedings!

All those years of working in the U.S. and paying your taxes, all for naught?

Not so fast!

If you are still qualified for an H-1B or an L-1 status, there is a solution. Simply leave the U.S. and return using your visa or obtain a new visa Poof! Upon returning to the U.S., you are once again qualified to adjust status under section 245K.

Why?

Because the time that you were out-of-status or engaged in unauthorized employment occurred before your last admission to the U.S., so this does not bar you from immediately re-applying for adjustment of status under section 245K.

Not bad, am I right?

A couple of weeks ago, one of our physician clients was denied adjustment of status because he had moonlighted without authorization many years ago, and had never informed us. At the beginning of July, he approached us with apologies and tears in his eyes. Was the future that he had planned in the United States suddenly over?

Not at all.

Two weeks later, we obtained an approved H-1B petition for him. He was granted a visa in his country last week, and returned to the U.S. yesterday. Next week, we will resubmit an application for adjustment of status for him under section 245K.

No harm, no foul.

Read USCIS' memorandum regarding adjustment of status under section 245K from our "Adjustment of Status" page at

http://shusterman.com/aos.html

BIA's CSPA Decision Not Entitled to Deference

2009-07-27T06:52:00.000-07:00

At least six federal lawsuits are pending which challenge the USCIS' interpretation of the "automatic conversion" clause of the Child Status Protection Act (CSPA) of 2002. In one of these lawsuits, Costelo v. Chertoff, a Federal Judge has certified a nationwide class of family-based derivative beneficiaries.

We link to each of the cases referred to in this article from our "CSPA" page at

http://shusterman.com/cspa.html
The question addressed by this article is how much, if any, deference, should the Federal Courts give the BIA's recent decision interpreting CSPA's automatic conversion clause. Matter of Wang, 25 I&N 28 (BIA 2009).

The automatic conversion clause of CSPA is section 203(h)(3) of the Immigration and Nationality Act as amended. In order to understand the meaning of this clause, it is important to read and understand the meaning of section 203(h) of the Act:

203(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN -

(1) IN GENERAL.-- For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using--

(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien's parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by

(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.

(2) PETITIONS DESCRIBED- The petition described in this paragraph is—

(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or

(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien's parent under subsection (a), (b), or (c).

(3) RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

(4) APPLICATION TO SELF-PETITIONS- Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.

Since section 203(h)(3) refers to "subsections (a)(2)(A) and (d)" of section 203, it is also necesssary to read and understand both of these sections of law.

Section 203(a)(2)(A) provides as follows:

(a) Preference Allocation for Family-Sponsored Immigrants. - Aliens subject to the worldwide level specified in section 201(c) for family-sponsored immigrants shall be allotted visas as follows:

(2) Spouses and unmarried sons and unmarried daughters of permanent resident aliens. - Qualified immigrants -

(A) who are the spouses or children of an alien lawfully admitted for permanent residence.

In simple English, this section of law refers to spouses and children of permanent residents who are petitioned under the family-based 2A category.

Section 203(d) provides as follows:

Treatment of family members

A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

In simple English, section 203(d) states that spouses and children of principal beneficiaries of visa petitions are entitled to permanent residence in the same category as the principal. In other words, if a U.S. citizen brother petitions his sister for a green card, not only does the sister obtain permanent residence in the family-based fourth preference category, but her husband and children also qualify under the same category. Or if a person qualifies for a green card through employment or through the visa lottery, his spouse and children also qualify under the same category as the principal.

Section 101(b)(1) defines "child" for purposes of immigrating to the U.S. In general, a child is defined as a person who is under 21 years of age and who is unmarried.

Spouses and children under section 203(d) who are accompanying or following to join the principal beneficiary of a visa petition or the winner of the visa lottery are commonly referred to as "derivative beneficiaries".

In Matter of Garcia (2006), an unpublished decision of the Board of Immigration Appeals (BIA), the Board considered the case of Maria Garcia, a "derivative beneficiary" who was born in Mexico. On January 13, 1983, Maria's mother was petitioned as the sister of a U.S. citizen. At that time, Maria was only nine years old.

Under section 203(d), Maria was a derivative beneficiary who would have been eligible to become a permanent resident along with her mother as long as she remained a "child", that is, unmarried and under 21 years of age. However, by the time that visa numbers became available to Maria and her mother in 1996, Maria was 22years of age. In common parlance, she had "aged-out". By 1996, the only relief that was available to Maria was for her permanent resident mother to submit a visa petition on Maria's behalf under the 2B category for unmarried adult sons and daughters of lawful permanent residents. Maria's mother did just that in 1997.

However, Maria was placed in deportation proceedings, and by the time her case was decided by the BIA on June 16, 2006, visa numbers were available in the Mexican 2B category only to persons whose lawful permanent resident parent(s) had petitioned for them before October 22, 1991, a 15-year wait.

Under the law as it existed prior to CSPA, Maria would have had to wait in line for a green card twice. First, she waited from 1983 to 1996, a period of 13 years for a family-based 4th preference visa number to be current. However, she was no longer a child under section 101(b)(1) because she had reached the age of 21 before her visa number became current in 1996. Therefore, she lost her place in line for a green card. When her mother petitioned for her in the 2B category in 1997, she would have had to go to the back of a 15-year line and be separated from her mother until 2012. Furthermore, if Maria married prior to immigrating in 2012, the visa petition would automatically terminate. By then, she would be 38-years-old.

The unanimous BIA panel which decided her case in 2006 held that CSPA's automatic conversion clause applied to Maria Garcia. The Board held that Maria was no longer a "child" for purposes of section 203(h)(1) since she was 22 years of age when her visa number under the family-based fourth preference category became current, and since the visa petition was approved the same day that it was submitted, no time could be subtracted from Maria's age under CSPA.

Because she was still a "derivative beneficiary" under section 203(d) except that her age was more than 21 years old, the Board held that she qualified for automatic conversion of her visa petition under section 203(h)(3). They then addressed the question of what was the "appropriate category" that the visa petition should be "converted" to. The Board held as follows:

"The respondent was (and remains) her mother's unmarried daughter, and therefore, the 'appropriate category' to which her petition was converted is the second preference category of family-based immigrants, i.e., the unmarried sons and daughters of lawful permanent residents. Furthermore, the respondent is entitled to retain the January 13, 1983, priority date that applied to the original fourth-preference petition, and therefore a visa number under the second-preference category is immediately available to the respondent.

The Board, in Matter of Garcia, did not find the statutory language of section 203(h)(3) ambiguous. Since this section of law specifically applies to derivative beneficiaries as defined by section 203(d), the Board found that Maria Garcia was entitled to benefit from the automatic conversion clause. They remanded the case to the Immigration Judge to consider her application for adjustment of status.

Three years later, in Matter of Wang, the Board refused to follow the reasoning of Matter of Garcia, held that the language of section 203(h)(3) was ambiguous and ruled that CSPA's automatic conversion clause did not apply to derivative beneficiaries.

This ruling is puzzling to say the least. How can section 203(h)(3) not apply to derivative beneficiaries when it specifically references section 203(d), the section of law which concerns derivative beneficiaries? Matter of Wang essentially deletes this reference to section 203(d) from the statute.

Further, the Board fails to discuss what it finds "ambiguous" in the language of section 203(h)(3). It simply goes on to discuss the legislative history of this section of law when no such legislative history exists.

The starting point of all statutory interpretation is the intent of Congress, and “‘[d]eference to the (agency's) interpretation...is only appropriate if Congress' intent is unclear.’" Padash v. INS, 358 F.3d 1161, 1168 (9th Cir. 2004). Where traditional tools of statutory construction reveal Congress’ intent, “deference is not required at all.”

CSPA Update

2009-07-22T14:54:00.000-07:00

A Federal Judge has certified a nationwide class in a challenge to the USCIS's restrictive interpretation of the "automatic conversion" clause in the Child Status Protection Act (CSPA) of 2002. This opens the way for children who have "aged-out" to be reunited with their parents.

The USCIS has resisted implementing this important section of law for the past seven years. Just a few weeks ago, the Board of Immigration Appeals (BIA), in Matter of Wang, adopted the government's restrictive interpretation of the automatic conversion clause.

On July 16, Federal Judge James Selna (Central District, California), over government objections, made his ruling in the case of Costelo v. Chertoff. The lawsuit, which challenges the government's restrictive reading of the automatic conversion clause, had been put on hold for over one year because the government had argued that the issue would soon be decided by the BIA. Our law firm joined in submitting a amicus brief written by Mary Kenney, Esq. on behalf of AILA and AILF supporting the class certification in which we argued that the Court should not give deference to Matter of Wang since the law is clear on its face.

What is the automatic conversion clause?

It consists of a single sentence in CSPA which provides as follows (references to the statute omitted):

"RETENTION OF PRIORITY DATE- If the age of an alien is determined...to be 21 years of age or older..., the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition."

What does this mean in practice?

For example, a U.S. citizen petitions his brother and his family including their 10-year-old son in the summer of 1998. By the time that the priority date becomes "current" in 2009, the son has reached his 21st birthday. Even after subtracting the time that the visa petition was pending, he has aged-out.

The government's position is that the father has to re-petition the son under the 2B category (unmarried, adult sons and daughters of lawful permanent residents). This means that despite the family having waited in line for 11 years to get their green cards, the parents would be forced to endure eight years of separation from their son. If the son marries during this eight-year period, the petition would automatically be terminated.

Under CSPA's automatic conversion clause, the son is entitled to the "original priority date" which was in 1998. His 4th preference petition would be "converted to the appropriate category" which, since he is the unmarried son of a permanent resident, is the 2B category. Most persons with a 1998 priority date in the 2B category would be able to immediately immigrate to the U.S.

In terms of complexity, this is far from rocket science.

I wrote an article about the automatic conversion clause shortly after CSPA was signed into law in 2002. Other immigration lawyers subsequently reached the same conclusion. The BIA, in Matter of Garcia (2006), reached the same conclusion. Unfortunately, the Board did not designate Matter of Garcia as a precedent. In terms of statutory analysis, it is very clear that the automatic conversion clause applies to derivative beneficiaries in the family-based, employment-based and diversity lottery categories.

However, despite the clear language of the law, the government stubbornly clings to the view that the automatic conversion clause simply codifies a regulation which applies only to derivative beneficiaries of 2A visa petitions. Surprisingly, a three-judge panel of the BIA was persuaded by this argument in Matter of Wang. The petitioner in Matter of Wang has recently filed a Motion for Reconsideration and Request for En Banc Hearing before the BIA and filed a lawsuit challenging the decision in a Federal Court in Ohio.

In the Costelo class action lawsuit, the petitioners are preparing a motion for summary judgment which will soon be filed with the Court. They will also request a preliminary injunction prohibiting the government from deporting persons who qualify for benefits under the automatic conversion clause.

We are confident that the Federal Courts will allow for this much maligned section of the law to take effect in the near future, thereby benefitting ten of thousands of immigrant families.

Given the irreparable harm suffered by immigrant families over the past seven years, we are very pleased that the matter will be decided by a Federal Judge in the near future. However, we are mindful of the fact that the Costelo class action will not resolve the matter of how the automatic conversion clause applies to derivative beneficiaries in employment-based cases.

This issue is pending before the Board in Matter of Patel. Unless the BIA backs away from its holding in Matter of Wang, another lawsuit may be necessary to resolve this matter.

We link to the class certification and briefs in Costelo from our "CSPA" page at

http://shusterman.com/cspa.html#4

We link to the Motion for Reconsideration and Request for En Banc Hearing in Matter of Wang from

http://shusterman.com/cspa.html#5

California Snake Oil

2009-07-15T11:11:00.000-07:00

Here in my home state, the budget is over $25 billion in the red. One group is trying to find someone to blame, but not the Governor nor the legislature who got us into this mess. It's far easier to pick on a group with little or no political power.

This group consists of "undocumented workers" or "illegal aliens", take your pick, or to be more precise, their U.S. citizen children.

The plan is to put a proposition on the California ballot which, if passed, would cut off welfare payments to these children. Will this solve the budget crisis? Hardly, since the cuts would be less than 4% of the budget deficit. Would such a move be challenged in court? Certainly. There is no getting around the fact that under the 14th amendment to the Constitution, these children are U.S. citizens and cannot have their legal rights abridged, no matter what the status of their parents. Will it make a lot of voters enraged against "Mexicans" and "wetbacks"? But of course...

History tends to repeat itself, and this is no exception. Back in 1994, a bunch of zealots put anti-immigrant Proposition 187 on the ballot. The proposition would have cut health, welfare and educational benefits for illegals and, in some cases, for their U.S. citizen children. Sound familiar?

I wrote an op-ed in the Los Angeles Times about Proposition 187, warning that the ballot initiative was clearly unconstitutional. The proponents of 187 dubbed it "SOS", short for "Save Our State". My article was entitled "Snake Oil Salesmen".

Proposition 187 was passed by an overwhelming majority of voters. Republican Governor Pete Wilson endorsed the proposition and went on to win the election.

Did Proposition 187 accomplish its stated goals? Hardly. The Courts declared the proposition unconstitutional. What's more, the campaign jolted the state's large Hispanic population into action. Millions of immigrants naturalized as American citizens and registered to vote. The Republican presence in the California State Legislature shrunk to about one-third.

Hopefully, the latest attempt to demonize immigrants from Mexico and their U.S. citizen children will fail at the ballot box. In any case, it will be a colossal waste of time and money since U.S. citizens cannot legally be deprived of benefits due to the immigration status of their parents.

One can only hope that the comprehensive immigration reform bill supported by the Obama Administration will pass Congress and be signed into law this fall. Let's get every worker in this country on the tax rolls, and handle this matter in an intelligent fashion.

We link to the latest legislative proposals from our "Immigration Legislation" page at

http://shusterman.com/toc-leg.html#3

Senate Bill Includes Immigration Measures

2009-07-11T10:24:00.000-07:00

On July 9, the Senate, by a vote of 84 to 6, passed a DHS funding bill which includes a variety of immigration enforcement and benefits measures. The measure now goes to a House-Senate Conference Committee which must reconcile this bill with a funding measure previously passed by the House of Representatives which contains none of the immigration amendments added by the Senate.

ENFORCEMENT PROVISIONS

The Senate adopted an amendment offered by Senator Jim DeMint (R-SC) to provide that the DHS must complete 700 miles of actual fencing along the U.S.- Mexican border by the end of fiscal year 2010. Despite being funded for several years, the DHS has only managed to erect a fraction of this amount.

The bill also includes an amendment by Senator David Vitter (R-LA) which is aimed at preventing the DHS from rescinding the "No-Match" rule. Secretary Napolitano had announced her intention to do so earlier this week. This rule would require employers to fire workers who are unable to resolve discrepancies in their Social Security Records.

The bill also includes an amendment by Senator Jeff Sessions (R-AL) which would effectively make the "E-Verify" program permanent for federal contractors. Not only would "E-Verify" be used to check the immigration status of new hirees, it would also apply to existing employees who are assigned to work under a federal contract. Before the Sessions' amendment passed, 10 Democrats joined most of the Republican Senators in voting for a procedural motion. The House bill would extend the "E-Verify" program, but only for a period two years.

However, both the mandatory "E-Verify" program for federal contractors and the implementation of the "No-Match" rule have both been enjoined by a Federal Court order since 2007. Therefore, it is not clear that either provision of the Senate bill would become effective even if they remain in the final bill after a House-Senate Conference Committee meeting, and are signed into law.

The Senate bill also contains an amendment by Senator Charles Grassley (R-IO) which allows employers, for the first time, to use the "E-Verify" program to screen existing employees as well as new hires.

DHS spokesman Matt Chandler criticized these amendments. He stated that they "are designed to prevent real progress on immigration enforcement and are a reflection of the old administration's strategy: all show, no substance."

BENEFITS PROVISIONS

The Senate also adopted two amendments offered by Senator Orin Hatch (R-UT). The first would eliminate the "widow's penalty". This would allow foreign-born widows and orphans to remain eligible for permanent residence even when the U.S. citizen spouse/parent dies before they achieve such status. The second would extend the "Conrad 30" J waiver program for physicians and the religious worker program for non-ministers until September 30, 2012. Currently, both programs are due to expire on September 30, 2009.

Finally, the Senate bill includes an amendment by Senator Patrick Leahy (D-VT) which would make the EB-5 Regional Center Investor program permanent. Currently, the program is due to expire on September 30, 2009.

COMMENTARY

What should we make of the Senate's sudden interest in adding far-reaching immigration amendments to an appropriations bill?

Joanne Lin, ACLU Legislative Counsel, states, with regard to the "No-Match" rule that "while the Senate might think it has taken a step to fix illegal immigration, it has actually set into motion a rule that will jeopardize the jobs of tens of thousands of U.S. citizens who could be unjustly fired under the rule due to SSA database errors."

Mary Giovagnoli of the Immigration Policy Center is not impressed by many of the Senate's actions. She states that "enforcement-only amendments win on the Senate floor — bad policy, but great political theater. Unfortunately, political theater is often hard for politicians to resist when they are dealing with complex issues that defy simple solutions."

We link to her analysis of the enforcement provisions of the Senate bill and to the ACLU's press release from our "Media" page at

http://shusterman.com/media.html#1
Since Senator Charles Schumer (D-NY) has promised to introduce a comprehensive immigration reform bill by Labor Day, we hope that the most controversial immigration amendments to the DHS appropriations bill will be stricken by the House-Senate Conference Committee. Perhaps it would be better if major changes in our immigration laws were made after legislative hearings and an opportunity for Members of Congress to examine the arguments for and against each measure.

I-9 Audits: 7 Tips for Employers

2009-07-06T16:30:00.000-07:00

Now that the Obama Administration has decided to zero in on employers with massive numbers of I-9 audits (652 in one day!), let me provide you with a few tips which I've gleaned from assisting employers survive such audits over the past 20 years:

Tip #1 - Make sure that each new hire completes Section 1 of the form on the first day of employment. If the employee's information is incomplete, it is you who pays the fine, so proofread this section very carefully.

Tip #2 - Complete Section 2 of the form by the employee's third day of employment. Show the employee the back of the form, and have him/her show you either one List A document (ID and Employment Authorization) or one List B document (ID) and one List C (Employment Authorization) document. Do not request specific documents or additional documents.

Tip #3 - Keep your I-9 forms separate from employee personnel files. Otherwise, you will have a lot of sorting to do if you receive a Notice of Inspection. The forms must be retained for three years after the employee is hired or one year after his employment ceases, whichever is later. Keep the forms of active employees separate from those of former employees. Purge the latter on a regular basis.

Tip #4 - Create a tickler system for employees who check the box in Section 1 which indicates that they possess only temporary employment authorization. Send them notices well in advance of the termination of their work permits advising them of the need to update their I-9 forms. Remember that certain types of work status are extended simply by submitting an application for an extension to the USCIS. Never update the forms of U.S. citzens or permanent residents, even though "green cards" all have expiration dates.

Tip #5 - Protect yourself from violating the "antidiscrimination" provisions of the law by treating employees who may look or sound "foreign" to you the same as employees who are U.S. citizens.

Tip #6 - Carefully read USCIS' "Handbook for Employers" which we link to from our "Employers' Immigration Guide" at

http://shusterman.com/toc-emp.html#9
Tip #7 - Have an attorney who has expertise in I-9 laws and procedures to review all of your I-9 forms at least once each year. The amount that you spend will be a tiny fraction of what you might be fined by the government if you are audited.

I-9 Audits: Catch-22 for Employers

2009-07-01T21:40:00.000-07:00

The U.S. Immigration and Customs Enforcement (ICE) announced today that it served Notices of Inspection upon 652 businesses around the country. Compare this with the 508 businesses which received Notices of Inspection in fiscal year 2008.

An ICE spokesman told the press: "Part of the strategy is to show businesses that we mean business."

The new Obama policy substituting audits for raids, and civil penalties on employers rather than criminal penalties on workers is a step in the right direction. It may even set the stage for comprehensive immigration reform by showing that the administration is serious about immigration enforcement.

We link to the ICE press release and the news story from our "Employers' Immigration Guide" at

http://shusterman.com/toc-emp.html#9
Notices of Inspection are served on employers to compel them to surrender their I-9 forms to the government. The I-9 form verifies the identity and the employment authorization of each employee hired by the company.

However, employers do not have the authority to question the legitimacy of the documents that are presented to them unless the documents are obviously false. An employer who attempts to do more risks great sums of money for violating the document abuse and/or anti-discrimination laws. Ask Jose Sanchez for more or different documents than Joe Smith, and you are asking for trouble, big trouble. See our article "INS vs. INC." at

http://shusterman.com/sanction.html
The truth is that most "undocumented" workers are ready, willing and able to produce the required documents when an employer presents them with an I-9 form.

So, in the next few weeks, when ICE inspects the I-9 forms of many thousands of employees who work for these 652 companies, the agency will learn (No big surprise.) that thousands of these documents are either false or belong to others.

The workers will lose their jobs, but if history is any guide, they will simply pick up and start looking for new jobs.

The employers can not be fined unless their I-9s were done improperly or not at all. In most cases, they will receive fines for being sloppy, not for being "unscrupulous". Of course, if an employer has actual knowledge that an employee is illegally present in the U.S., he could face criminal penalties, but rarely does ICE have enough evidence to press criminal charges.

Earlier today, I was interviewed regarding this subject by a newspaper reporter. As a former INS prosecutor, I have represented quite a few companies facing I-9 audits.

I spoke with one of my former clients today. His company underwent an I-9 audit when they applied for labor certification for three undocumented workers. I remember meeting with the INS investigator and handing him a pile of I-9 forms. The INS could have subjected the employer to many thousands of dollars in fines. Instead, we agreed to enroll the employer in what is now called the "E-Verify" program, and the government agreed to waive all fines.

However, the employer lost many of his most valuable employees, and it took years for the business to recover. How about the employees? They ended up working for his competitors.

Who came out ahead in the end? No one as far as I'm concerned.

Our broken immigration system will not be fixed by penalizing employers who are trying to abide by the law, and forcing many of their workers to find new jobs. If there was ever a time to amend our laws to conform with the laws of the free market, it is now.

President Obama and Immigration Reform

2009-06-27T15:12:00.000-07:00

On June 25, President Obama met with a bipartisan group of 30 key legislators beginning a dialogue that he hopes will lead to comprehensive immigration reform in 2009 or early in 2010.

Among the topics discussed were border security, family reunification and reform of the outdated quota system.

Following the meeting, the President stated, “but what I’m encouraged by is that after all the overheated rhetoric and the occasional demagoguery on all sides around this issue, we’ve got a responsible set of leaders sitting around the table who want to actively get something done and not put it off until a year, two years, three years, five years from now, but to start working on this thing right now.”

With regard to the USCIS, the President stated:

“Today I'm pleased to announce a new collaboration between my Chief Information Officer, my Chief Performance Officer, my Chief Technologies Officer and the U.S. Citizenship and Immigration Services Office to make the agency much more efficient, much more transparent, much more user-friendly than it has been in the past.

In the next 90 days, USCIS will launch a vastly improved Web site that will, for the first time ever, allow applicants to get updates on their status of their applications via e-mail and text message and online. And anybody who's dealt with families who are trying to deal with -- navigate the immigration system, this is going to save them huge amounts of time standing in line, waiting around, making phone calls, being put on hold. It's an example of some things that we can do administratively even as we're working through difficult issues surrounding comprehensive immigration.

And the idea is very simple here: We're going to leverage cutting-edge technology to reduce the unnecessary paperwork, backlogs, and the lack of transparency that's caused so many people so much heartache.”

President Obama also announced that DHS Secretary Janet Napolitano will chair a working group composed of Representatives and Senators to hash out some of thorniest issues. Among these issues are how to legalize 12 million undocumented persons, border security, cracking down on unscrupulous employers, creation of a “guest worker” program and whether a governmental commission should be established to decide the future immigration of temporary and permanent workers based on labor market needs.

Unions are opposed to a guest worker program and in favor of a commission while business groups would like to see a guest worker program but are opposed to a governmental commission.

Senator McCain (R-AZ), a key player stated that “we don’t need a commission” and called on the President to stand up to labor unions and support a guest worker program.

Several persons close to President Obama including his Press Secretary and his Chief of Staff have asserted that there are not enough votes in Congress to pass comprehensive immigration reform. And at least one strong proponent of immigration reform, Rep. Luis Gutierrez (D-IL), agrees. “If we had the votes, we wouldn’t be calling you”, Gutierrez told the Wall Street Journal.

However, in the Senate, both the Majority Leader Harry Reid (D-NV) and Immigration Subcommittee Chairman Charles Schumer (D-NY) believe that there are enough votes in their chamber to pass the legislation. The Senate passed the bipartisan Kennedy-McCain immigration bill in 2006. However, the House did not take up the measure.

“We’ve got one more chance to do this,” said Senator Lindsey Graham (R-SC). “If we fail this time around, no politician is going to take this up in a generation.”

President Obama stated, “It’s going to require some heavy lifting.”

We link to a video of President Obama’s remarks at the conclusion of the June 25th meeting as well as to the transcript of his remarks from our “Immigration Legislation” page at

http://shusterman.com/toc-leg.html#4

Premium Processing of I-140s - What It Means to You

2009-06-23T22:00:00.000-07:00

The USCIS has announced that most employment-based (EB) immigrant petitions (I-140s) will be eligible for premium processing starting June 29, 2009. We link to the USCIS Update from our "Premium Processing" page at

http://shusterman.com/toc-premium.html#2
Premium processing will be available for EB-1 Persons of Extraordinary Ability and Outstanding Professors and Researchers; EB-2 petitions which are not for National Interest Waivers; and EB-3 petitions for Professionals, Skilled and Unskilled Workers.

The only EB I-140s which are specifically excluded from the program are (1) visa petitions for Multinational Executives and Managers under the EB-1 category and (2) National Interest Waivers under the EB-2 category.

Premium processing is a program developed by the INS in 2001 which permits persons to request speedier processing of certain types of petitions and applications for immigration benefits in exchange for paying the agency an additional $1,000 in filing fees. If the agency fails to issue either an approval, a request for evidence (RFE), a notice of intent to deny or to open an investigation for fraud or misrepresentation within 15 calendar days of receiving the application, premium processing will continue although the USCIS will refund the $1,000 fee.

Given that many of the EB categories are either unavailable or significantly backlogged, why should employers or employees pay for premium processing?

We can think of four reasons for doing so.

(1) If an I-485 adjustment of status application has been pending for 180 days, the law permits an employee to change employers as long as the new job is in the same or a similar occupation. However, it is very unwise to change employers before the USCIS has approved the I-140 visa petition. If the employee changes employers before the I-140 is approved and the agency issues a request for evidence, what incentive does the former employer have to answer the RFE? If there is no response to the RFE, it is likely that the I-140 will be denied, and so will the I-485.

(2) Even if an I-485 has not been filed, the approval of an I-140 locks-in the priority date as of the date that the application for labor certification or PERM is received by the USCIS or the date that the I-140 is received if no labor certification or PERM is required.

If an employee with a temporary work visa changes employers, it is wise to wait until the I-140 is approved since this locks-in the priority date. Of course, the original priority date can only be utilized if the employee obtains the approval of a new I-140 (and a labor certification or PERM, if required) from the new employer.

In both of the above examples, premium processing of the I-140 is not beneficial to the initial employer. It is, however, advantageous to both the employee and to his subsequent employer.

(3) Whether or not an I-485 has been filed, the law provides that if a person in H-1B status is the beneficiary of an I-140 petition in either the EB-1, EB-2 or the EB-3 categories, and is eligible for permanent residence but for the per-country limitations, he or she may be granted H-1B extensions beyond the sixth year in three-year increments.

This is a benefit for many employers and employees alike since the mere filing of an application for labor certification, PERM or an I-140 more than one year ago only entitles the worker to apply for H-1B extensions in one-year increments.

(4) Where an I-485 is pending, USCIS regulations provide that the applicant may be eligible to extend his or her Employment Authorization Document (EAD) for two years, but only if an I-140 has been approved for the applicant.

In short, the reinstatement of premium processing for most I-140s is a distinct benefit for employees and employers alike.

Immigration Courts Severely Backlogged

2009-06-18T16:07:00.000-07:00

A new study by the Transactional Records Access Center (TRAC) finds that the nation's Immigration Courts are becoming increasingly backlogged.

Our country's 234 immigration judges received over 350,000 new cases last year, almost 1,500 cases per judge. Coupled with the government's onerous "case complete goals", this brings incredible pressure on overworked immigration judges to issue decisions.

As a result of the increasing backlog of cases, persons in detention may have to wait many months to challenge the legality of the charges against them or to have their asylum and other claims heard before a judge.

The Bush Administration had promised in 2006 to add 40 new judges to the system, a fairly minimal amount. However, only four additional judges have been added during the past two and one-half years.

As a direct result of the "judge shortage", the backlog has increased approximately 20 percent during the past three years.

We link to the new report from our "Immigration Courts" page at

http://shusterman.com/imcourts.html#1

"How can a system function properly when it is starved for the critical basic resources it needs", states Immigration Judge Dana Marks of San Francisco, President of the National Association of Immigration Judges.

According to the TRAC report, a typical immigration judge must conduct 69 hearings each week.

Judges are forced to hear testimony with little time to consider exhibits and legal briefs, and then to immediately issue oral decisions.

Legal research is increasingly delegated to law clerks who are themselves in short supply. As opposed the Federal District Court judges who each have their own law clerk, four immigration judges must share a single law clerk.

If the government insists on continuing its misguided "enforcement-only" approach to immigration, it is time to put its money where its mouth is.

Or maybe it's time to consider other approaches to our broken immigration system.

BIA Decision Would Separate Families

2009-06-16T22:42:00.000-07:00

Today, the Board of Immigration Appeals (BIA) issued a decision which eliminates one of the principal benefits of the Child Status Protection Act of 2002 (CSPA). We believe that this decision is fundamentally flawed and should be overturned.

In Matter of Wang, 25 I&N Dec. 28 (BIA 2009), the Board essentially voids the "automatic conversion" clause of CSPA. That clause deals with persons who age out despite the protections of CSPA. It states that they are entitled to the "original priority date" and should be placed in the "appropriate category".

Despite a plethora of agency memos interpreting CSPA, the government has remained strangely silent about the "automatic conversion" clause. However, an unpublished Board decision, Matter of Garcia (2006) interpreted the clause to mean that when a derivative beneficiary of a petition ages out, they are able to keep the priority date of the original petition filed on behalf of their parents, and that once their parents become permanent residents, the original petition is "automatically converted" to the family-based 2B category since they are unmarried adult sons and daughters of permanent residents. In many cases, this allows them to immediately immigrate to the United States.

In Matter of Wang, a U.S. citizen submitted an immigrant visa petition for her brother and his wife and daughter in China in 1992. However, by the time that the parents became permanent residents in 2005, the daughter had "aged-out" because she was 22 years old and no longer qualified as a child. In 2006, her father submitted a 2B visa petition on her behalf. Since the 2B category is backlogged 8 years, the daughter would be forced to remain separated from her parents until 2014, a total wait of 22 years since the original 1992 priority date. If she marries before she immigrates, she will lose her priority date altogether.

However, under the "automatic conversion" clause of CSPA as interpreted by the Board in Matter of Garcia, she would be able to retain the original 1992 priority date under the 2B category, meaning that she could reunite with her parents immediately.

Today, the Board gave short shrift to the reasoning in Matter of Garcia. The Board found that the statute was "ambiguous" and looked to the legislative history of CSPA.

However, there is no legislative history of the "automatic conversion" clause and the Board construed the law in a way which we believe directly contradicts the clear language of the statute.

While the original CSPA bill was introduced in the House of Representatives in 2001, the "automatic conversion" clause was added the next year in the Senate. The Board recognizes this, yet all of the language as to the purpose of the bill which is referenced in the Board's decision is taken from the 2001 House Report and from individual members of the House of Representatives. Since the original House bill was much less expansive than the final bill, these selective references to the legislative history are highly misleading.

When the Board's decision talks about the injustice of allowing Ms. Wang to "'jump' to the front of the line by retaining a 1992 priority date", we are puzzled. She waited in line from the age of 10 to her 21st birthday only to be separated from her parents for another 8 years. Wasn't this the reason that CSPA was enacted?

The Board also references various USCIS "automatic conversion" regulations and concludes that when Congress approved CSPA, they were aware that such conversions only operate as long as the petitioner remains the same. This is completely false.

Why did the Board ignore the USCIS’ automatic conversation regulation which allows persons to convert from one employment-based preference category to another, and from one petitioner to another, all the while retaining the original priority date?

Consider 8 C.F.R. 204.5(e) which, in pertinent part, states:

“Retention of section 203(b)(1) , (2) , or (3) priority date. -- A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date.”

This regulation permits an employer to petition a person in the EB-3 category. Once the I-140 is approved, if the person changes employment, another employer may sponsor the person in the EB-2 category. Once the second I-140 is approved, the person may immigrate/adjust under the EB-2 category while retaining the “original” EB-3 priority date.

Of course, Matter of Wang, unlike Matter of Patel, the CSPA automatic conversion case which the Board has yet to decide, involved only family-based petitions. Yet, surely Congress was aware of an immigration law which allows for the automatic conversion between family-based and employment-based petitions, between different petitioners and which allows beneficiaries to retain their original priority dates.

Consider the savings clause in the 1976 immigration law which allows persons to retain Western Hemisphere Priority Dates (WHPDs) even though the original petition may have been employment-based while the latter petition is family-based. Someone with an employment-based WHPD of 1971 may be the beneficiary of a Mexican family-based third-preference petition (submitted by a U.S. citizen father for a married daughter) submitted on June 1, 2009. Instead of waiting the usual 18 years for the priority date to become current, the daughter and her family are permitted to use the 1971 original priority date to immigrate immediately.

It is clear that USCIS regulations permit persons to change jobs, preference categories and petitioners, and use the original priority date to become permanent residents. Also, Congress has long permitted persons to change between the employment and family-based categories, use the original priority date, and immediately immigrate to the U.S. Thus, the “automatic conversion” clause in CSPA is neither unique nor novel.

In Matter of Wang, the Board adopts the USCIS' tenuous argument that the "automatic conversion" clause was added to CSPA simply to codify 8 C.F.R. 204.2(a)(4), a decades-old regulation which allows a child whose parent was petitioned by their spouse under the 2A preference category to retain the original priority date when the child turns 21 and the LPR parent submits a new visa petition under the 2B category. Does the legislative history of CSPA support this interpretation? Matter of Wang is silent on this issue.

The reason why Matter of Wang should be overturned is that it contradicts the clear language of CSPA. The "automatic conversion" clause states that it applies to aliens who are "21 years of age or older for purposes of subsections (a)(2)(A) and (d)" of 8 U.S.C. 1153. Subsection (d) refers to spouses and children who are accompanying or following to join spouses or parents under the family-based, employment-based or diversity lottery categories. Any interpretation which attempts to restrict the applicability of the "automatic conversion" clause to a narrow subset of the family-based preference categories, and ignores the other family-based categories, the employment-based categories and the diversity category is clearly at odds with the statute.

Currently, there are at least five lawsuits in Federal Court challenging the government's restrictive interpretation of the "automatic conversion" clause of CSPA. How they will be affected by Matter of Wang remains to be seen.

How much deference should the Federal Courts accord to the Board’s interpretation of CSPA’s “automatic conversion” clause in Matter of Wang?

This would not be the first time that the Federal Courts overturned an overly-restrictive interpretation of CSPA put forward by the government. The Board and the USCIS eventually acceded to the interpretation of another disputed section of CSPA following the holding of Padash v. INS (9th Cir. 2004), 358 F.3d 1161:

“Because the legislative history makes it clear that the Act was intended to address the often harsh and arbitrary effects of the age-out provisions under the previously existing statute, our interpretation of the term “final determination” also adheres to the general canon of construction that a rule intended to extend benefits should be “interpreted and applied in an ameliorative fashion.” Hernandez, 345 F.3d at 840. This rule of construction applies with additional force in the immigration context “where doubts are to be resolved in favor of the alien.”

To read the complete text of Matter of Wang as well as a host of other materials relating to CSPA and the continuing litigation, see
http://shusterman.com/cspa.html

DHS Suspends "Widow's Penalty"

2009-06-12T19:25:00.000-07:00

On June 9, DHS Secretary Janet Napolitano announced that the government would cease the prosecution and deportation of widows and orphans of U.S. citizens who died before the permanent residence process could be completed.

“Smart immigration policy balances strong enforcement practices with common-sense, practical solutions to complicated issues,” said Secretary Napolitano. “Granting deferred action to the widows and widowers of U.S. citizens who otherwise would have been denied the right to remain in the United States allows these individuals and their children an opportunity to stay in the country that has become their home while their legal status is resolved.”

ICE will no longer place qualifying widow(er)s and orphans in removal proceedings. If a person has already been ordered removed, ICE will not enforce the removal order. In addition, USCIS will favorably consider requests for “humanitarian reinstatement” of revoked immigrant visa petitions.

The new policy will apply regardless of whether the U.S. citizen submitted a visa petition on behalf of his or her spouse and children before their death.

We link to the DHS Press Release from our “Green Cards Through Family Members” page at

http://shusterman.com/family.html#2
Secretary Napolitano’s new policy is a stopgap measure which does not change the law, but allows time for Congress to step in and change the law before any deportations can take place.

And step in they did.

Just two days after Secretary Napolitano announced her new policy, Senators Menendez (D-NJ), Gillibrand (D-NY) and Leahy (D-VT) introduced the Orphans, Widows and Widowers Protection Act (S. 1427) which addresses the immigration-related hardships caused by the death of a sponsoring relative.

We link to this bill from our “Immigration Legislation” page at

http://shusterman.com/toc-leg.html#3
Currently, the issue is being litigated in courts all across the U.S. There are nearly 20 cases being fought in Federal Court. Three federal appeals courts have ruled that an immigrant does not cease being a spouse when the American partner dies during the processing of a residency application.

The television program “60 Minutes” will feature an update on the "Widow's Penalty" on Sunday, June 14th.

Grim Outlook for EB Visa Numbers

2009-06-10T14:15:00.000-07:00

Why do we punish people who play by the rules?

Charles Oppenheim, Guru of the Visa Office in the State Department, has confirmed what we warned employment-based (EB) immigrants about in our June 2009 newsletter.

Not only are EB-3 numbers unavailable for the rest of the fiscal year and EB-2 numbers for persons born in China and India oversubscribed, but the situation is going to get worse, much worse.

Mr. Oppenheim states that the EB-1, EB-4 and EB-5 categories are all experiencing greatly increased demand, so much so that the EB-4 category (religious workers and special immigrants) may retrogress this summer. This is very significant since unused visa numbers in these categories are typically given to those in the EB-2 and EB-3 categories. Without these extra numbers, the retrogression in the EB-2 and EB-3
categories will be that much worse.

How much worse, you ask?

Because the Labor Department has cleared its backlog of old cases, during the past year the USCIS processed many thousands of I-140 visa petitions with priority dates prior to 2005. Mr. Oppenheim states that because of this, the worldwide EB-3 cut-off date will be March 1, 2003 come October 1st. Things will be worse for those born in India where the EB-3 cut-off date will be November 1, 2001.

Expect EB-2 visa numbers for Indians to become unavailable either in August or September. What will happen to EB-2 India in the coming fiscal year? We wouldn't be surprised if the category retrogressed up to 10 years or more. Ditto for EB-2 China.

Just like the automakers, the immigration SUV is about to go over a cliff. With European countries and Canada making it easier for talented scientists, engineers, programmers and health care workers to immigrate, our restrictive immigration laws and policies are driving highly-educated immigrants away. We educate foreign students in our best universities, and then say "Happy Graduation, Now Go Home!" As a result of this short-sighted policy, our country's position as the world leader in science and technology is threatened.

Only if Congress acts to pass pending legislation like the Reuniting Families Act which would allow for the recapture of 400,000 lost visa numbers could disaster be averted.

We link to this bill and to a host of other pending bills which address our broken legal immigration system from our "Immigration Legislation" page at

http://shusterman.com/toc-leg.html#3

Immigration Officers in Need of a CAT

2009-06-02T23:00:00.000-07:00

What is a CAT? Not an animal, not a medical procedure, but a "Change of Attitude Transformation".

The old INS may have morphed into the USCIS, the CBP and ICE, but the attitudes toward immigrants have not changed much since I worked there 30 years ago.

As General Attorneys (Nationality) in the 1970s, our mantra was "when in doubt, send it out!" meaning that rather than recommend that a naturalization petition be granted, if we had the slightest degree of doubt, the safest course was to send the applicant's file to the investigations branch. Not to do so would risk being accused of "giving away the store". We were told that once we had granted a person citizenship, it would be too late for the INS to deport them, so we had to be very careful.

By the time that I became an INS Trial Attorney in the early 1980s, all Persian students were required to register with the government. The top priority for investigators was to round up students who were driving yellow cabs and ice cream trucks. Much to my dismay, they would routinely refer to them as "rag heads".

When I entered private pratice, one of my clients was a young woman born in China who immigrated to the U.S. as a toddler. She was a U.S. citizen and a UCLA grad whose English was better than mine. She married a British fellow and we were in the process of immigrating her husband's son from a prior marriage. I remember how difficult it was for me to explain to the government examiner that she was the citizen and he was the alien. The examiner didn't seem to comprehend. He kept repeating, "but she is the alien". How an Asian woman could be sponsoring a Caucasian teenager was totally beyond him.

I would like to think that these attitudes are a thing of the past, but unfortunately they seem to be ingrained in the thinking of all too many government immigration officers.

Currently, we are representing a young man from Mexico who was petitioned by his U.S. citizen father when he was just 20 in the late 1990s. Simultaneously, the son submitted an application for adjustment of status. The son worked legally in the U.S. using an EAD. Unfortunately, after his attorney was disbarred a few years ago, he stopped renewing his EAD.

Last week, he was stopped at an interior checkpoint, and asked for proof that he was legally present in the U.S. (I often wonder what I would present if I were asked the same question, but then, people who look like me are never stopped at checkpoints, are we?) He handed the officer his expired EAD with his alien number on it. The officer could not find his file "in the system". The son explained that his father was a U.S. citizen and had sponsored him over a decade ago. The officer called the father, but was unable to find his information "in the system". At this point, the son handed the officer my business card and asked him to call me, but the officer refused to do so. Had he called me, I could have faxed him a copy of the father's Certificate of Naturalization and a copy of the approval of the visa petition.

Instead, the officer informed my client that he was going to arrest him. If he wanted to see an Immigration Judge, the officer told him, he would be incarcerated for weeks. The better choice was to sign a "voluntary return" form, and he would be transported to Mexico and released from custody within a few hours. My client took the officer's advice and signed away his rights. I spoke to him in Mexico later that day.

The "system" had deprived my client of his rights. If he had been accused of a felony, he would be entitled to certain rights under the Constitution.

But to the officer, he was just another alien, and once he signed the form, he had no rights.

Until such officers have a Change of Attitude Transformation, not much will change in the way our immigration laws are administered.

H-1Bs for Health Care Workers: Advanced Degree Not Required

2009-05-27T22:19:00.000-07:00

All too often, it seems that some examiners at USCIS Service Centers are just looking for a way to deny petitions.

Long-standing policies are ignored and new theories are advanced to deny perfectly-qualified applicants for immigration benefits.

A few months ago, a few examiners decided on their own that M.B.B.S. degrees which are issued to physicians from British Commonwealth countries were not equivalent to M.D. degrees issued by medical schools in the U.S. As a result, many petitions and applications were denied on this basis. After much protest from the medical community, the USCIS in Washington got involved, and the situation was rectified in favor of the foreign-born physicians and their U.S. employers.

The latest government boondoggle involves state-licensed physical and occupational therapists. Though these professionals have always been held to be eligible for H-1B status, some examiner(s) noticed that the latest edition of the Labor Department’s Occupational Outlook Handbook (OOH) now says that M.S. degrees are preferred.

Accepting this statement in the OOH as Gospel, the USCIS started to deny immigration benefits to PTs and OTs with B.S. degrees even though they were in possession of state licenses.

The response to this sudden change in USCIS policy was swift and negative. Under USCIS regulations, there are three agencies designated to determine whether the credentials of foreign-born health care workers are equivalent to those of the U.S.-born counterparts: the FCCPT, the CGFNS and the NBCOT.

On February 19, the Foreign Credentialing Commission on Physical Therapy (FCCPT) weighed in on USCIS’ “confusion” about this matter. Then, on March 19, the National Board for Certification in Occupational Therapy (NBCOT) wrote to the USCIS that “immigration officials are misinterpreting the academic/educational requirements for an occupational therapist”. Finally, on March 26, CGFNS International wrote to the USCIS and explained why the OOH’s statement that a Master’s degree was a precondition for a foreign PT to be admitted to the U.S. was “incorrect”.

The hope was that the USCIS headquarters in Washington, D.C. would correct this erroneous interpretation of the law and regulations prior to start of the H-1B filing season on April 1st.

Unfortunately, USCIS did not issue a policy memorandum until May 20. However, since almost 20,000 H-1B numbers are still available, and “cap-subject” workers cannot change their status to H-1B until October 1, 2009, no harm, no foul.

In its memorandum, the USCIS recognizes that H-1B health care workers must possess an “unrestricted (state) license”, and it is irrelevant whether they possess a B.S. degree rather than an M.S. or Ph.D. degree. We link to the USCIS memo from our “Allied Health Professionals” page at

http://shusterman.com/toc-ahp.html#5
We hope that, in the future, USCIS will adhere to policies which are consistent with the law and the regulations, and will provide an avenue for practitioners and employers to bring clearly erroneous decisions to the attention of Headquarters before they develop into trends. Given the 15-month wait at the agency’s Administrative Appeals Office to issue a decision on the appeal of an H-1B petition denial, this is not an adequate remedy.

It would also be helpful if the USCIS were to clarify that the May 20th memorandum applies to I-140s as well as to H-1B status, and to all persons in possession of unrestricted state licenses, not only health care professionals.

H-1Bs: A Rare Opportunity for Students/Physicians to Apply

2009-05-23T12:05:00.000-07:00

The H-1B system is clearly out-of-sync with the real world.

Persons who qualify for “cap-subject” H-1Bs are allowed to apply starting April 1st each year, but can not start working until October 1st, six months later.

Since the number of applications usually far exceeds the number of available visas, this means that by the second week of April, it is too late to apply.

What about all of the foreign-born students who graduate from U.S. universities in June each year? Since U.S. employers can not apply for H-1B status for them until after they obtain their degrees, by June, it is already too late to do so. One prominent newspaper calls this the “Happy Graduation, Now Go Home!” policy. The U.S. educates and then loses a lot of talent each year.

However, this year is different. Because of the economic recession, there is hope for these students and their employers.

The students can use their one-year Optional Practical Training work permits to start their jobs following graduation. See our “Student” page at

http://shusterman.com/toc-student.html#2
Then, as soon as possible, their employers should seek to change their status to H-1B as of October 1, 2009. This is possible this year because there are almost 20,000 H-1Bs visas remaining.

The same scenario is true for foreign-born medical residents and fellows who received their training in the U.S. using “cap-exempt” H-1B visas.

These trainees complete their residencies and fellowships on June 30, at which time there are usually no “cap-subject” H-1B visas available. This year is different.

Since it is probable that there will still be H-1B numbers available after June 30, U.S. employers should submit H-1B petitions for these trainees as soon as possible.

Additional information is available on our “Immigration for Physicians” page at

http://shusterman.com/toc-phys.html

The Importance of Maintaining Your H-1B Status

2009-05-20T13:59:00.000-07:00

“You don’t need to extend your H-1B status, you’ve got an EAD!”

If I read such a statement on a message board, I might understand that since the author was not trained as an immigration attorney, this may seem logical to him. However, when someone who is seeking my advice tells me that his former attorney told him this, I cringe.

Why should someone with an Employment Authorization Document (EAD) not use it, but instead keep renewing their H-1B status?

Consider this real life example: Last week, an Indian professional had a legal consultation with me. He had been in H-1B status since December 2001. His employer had obtained the approval of a PERM application on his behalf. In July 2007, when all the EB visa numbers became current, his employer submitted an immigrant visa petition (I-140) on his behalf in the EB-3 category. Simultaneously, he, his wife and their two children submitted applications for adjustment of status (I-485).

The I-140 was approved, but due to the lack of visa numbers, the family’s I-485s remain pending. Although the USCIS can not approve their I-485s, they are not barred from denying them. His 18-year-old son received a Request for Evidence asking him to demonstrate that he had been in lawful status since he entered the U.S. as a B-2 visitor ten years before.

The problem was that the family had sent the son to live with his aunt and uncle in the U.S. when he was a young child. When his six-month stay in the U.S. expired, no one ever extended his B-2 stay in the U.S. or requested that his status be changed to F-1 student.

Their question was “How could their son respond to the RFE?” My answer was that since the son had resided in the U.S. unlawfully for over ten years, he was ineligible to adjust his status to permanent resident. However, if he departed the U.S. immediately to get an H-4 visa abroad, he would not be subject to the three or ten-year bars. Only when a child turns 18 can he accumulate “unlawful presence” in the U.S. which, in turn, subjects him to the bars when he departs the U.S. See

http://shusterman.com/toc-nwlw.html
Once the son obtained an H-4 visa abroad, he could return to the U.S. to complete his education, and eventually adjust his status using section 245(k) of the law which provides that one can adjust status under the EB-1, EB-2 and EB-3 categories as long as one has not been out-of-status for over 180 days since his most recent admission to the U.S.

Problem solved?

I asked the father when his H-1B status was due to expire. He replied that it had expired at the end of 2007. I asked him why he had let it expire, and he replied that his attorney had told him, “You have an EAD, why bother extending your H-1B status?”

Not a very thoughtful answer coming from someone practicing immigration law. As a result, his son will be separated from the rest of the family, perhaps for many years. This is tragic because it would have been so easy to avoid this outcome had the father simply extended his H-1B status.

Another reason to continue to renew one’s H-1B status is USCIS’ questionable interpretation of section 245(k). If a person’s application for adjustment of status is denied for any reason, the USCIS holds that the person may not renew their I-485 unless they have maintained their lawful “nonimmigrant” status while their application for adjustment of status is pending. In such cases, persons are often forced to leave the U.S. simply due to their failure to extend their H-1B status.

For these and many other reasons, it is always wise to maintain H-1B status until one’s application for adjustment of status is approved.

For more information regarding H-1B status, see our “H-1B Page” at

http://shusterman.com/toc-h1b.html

Way Cleared for Lawsuit to Keep Families Together

2009-05-14T22:54:00.000-07:00

Back in 2002, the President signed a law designed to keep immigrant families intact, the Child Status Protection Act (CSPA). The law includes a provision that states that if a child turns 21 years of age before obtaining a green card together with his parents, his petition would "automatically be converted to the appropriate category" and he would be entitled to the "original priority date".

What does this mean?

Consider the case of Melvin Cuellar de Osorio. His grandmother, a U.S. citizen, submitted a petition to sponsor his family for permanent residence in 1998. Because of long backlogs, Melvin's parents were not able to immigrate to the U.S. until 2006. Since Melvin reached the age of 21 before his parents could immigrate, he was forced to remain behind in his native country. When his mother petitioned for Melvin under the 2B category (unmarried adult sons and daughters of lawful permanent residents), she maintained that under CSPA, Melvin was entitled to the "original priority date" of 1998 which would have allowed him to immediately rejoin his family in the U.S.

The USCIS failed to respond to her request. Without CSPA, Melvin will not be able to rejoin his family in the U.S. until 2017 at which time he will be 33 years of age. If he marries, he will lose his ability to immigrate under the 2B category.

The USCIS does not seem to be in any rush to allow Melvin, and other persons in his position, to know what the words "appropriate category" or "original priority date" in CSPA mean. This August, it will be seven years since CSPA was signed into law. The agency has yet to issue regulations to implement the law. Although the USCIS has issued at least eight memos regarding CSPA, and the State Department another six, the government has avoided interpreting the portion of the law which would allow Melvin to reunite with his family.

On June 23, 2008, we brought a lawsuit in Federal Court on behalf of Melvin's mother and five other mothers who are separated from their sons and daughters despite the clear language of CSPA. The USCIS believes that to allow children like Melvin to use their original priority date would be tantamount to permitting them to cut in line. To the agency, CSPA does nothing to lessen Melvin's 19 year wait to become a permanent resident.

In September, the Government submitted a motion to dismiss our complaint. Since then, the government has requested that the Judge postpone deciding our case until the Board of Immigration Appeals (BIA) rules on similar cases which are pending before the Board. The BIA has already decided two cases which interpret the words "appropriate category" and "original priority date" exactly as we do. However, these cases are not binding precedents.

The Federal Judge ruled that if the BIA did rule on the cases by May 11th, he would not grant the government any further postponements in our lawsuit on the ground that the BIA was about to rule on the cases before them.

We have agreed with the government that both sides will file cross Motions for Summary Judgment in our lawsuit with tentative filing dates of June 26. The motions would be noticed for a hearing on July 20.

At long last, parents may no longer have to be separated from their sons and daughters for years when they immigrate to the United States.

More information regarding the "automatic conversion" portion of CSPA and the briefs in our lawsuit are available at

shusterman.com/cspa.html

Immigrant Family's Kafkaesque Ordeal

2009-05-06T22:38:00.000-07:00

In Franz Kafka's chilling story "The Metamorphosis", a man wakes up one morning to find that he has been transformed into a "gigantic insect".

Recently, a California family, all permanent residents for over 30 years, was suddenly informed by the government that they were all illegal aliens and must return to Thailand.

Mr. Promsiri entered the United States on a student visa. His wife and two young sons, aged 10 and 3 joined him in 1971.

In 1975, the parents obtained a divorce from a Thai Consulate in the U.S. The wife married an American citizen, and the couple honeymooned in Thailand. The U.S. Embassy in Bangkok examined their marriage certicate and the divorce degree before granting the wife permanent residence.

The couple then returned to the U.S. where the citizen stepfather sponsored his two stepsons. Another agency, the Immigration and Naturalization Service (INS) examined the paperwork and granted green cards to the boys.

Fast forward to 2009. The U.S. Citizenship and Immigration Services (USCIS), successor to the INS, recently ordered the mother and the boys to appear before an Immigration Judge and charged them with being illegally present in the U.S. Nearly
34 years after examining their paperwork and granting them green cards, the agency suddenly decided that they should never have been granted permanent residence in the first place!

Why?

Because the government maintains that a divorce granted by the Thai government in the U.S. rather than by a state court is invalid.

Why then did two U.S. government agencies approve the paperwork for the Promsiri family back in 1975? If they had found the divorce to be invalid then, the parents could have obtained a divorce in the Superior Court, and the mother could have remarried, and obtained a valid green card.

Did the agency ever get a chance to review the paperwork since 1975? Many times. In 1983, the older brother Andy applied for U.S. citizenship. The INS examiner approved his application, and he was scheduled for a swearing-in ceremony. However, the day before the ceremony, someone from the INS called Andy's mother, told her that there was a problem with her divorce and that Andy should not appear at the naturalization ceremony. The agency would let them know what they needed to do.

Despite the passage of 25 years, dozens of inquiries and many new naturalization applications, the family was kept in the dark until 2009 when they were suddenly placed in deportation proceedings.

During those years, time did not stand still. Andy and Kevin graduated from college. Both have prestigious jobs, one at a major university; the other at a bank. Both are homeowners and taxpayers and have no connection to the country of their birth. Their mother, now 71 years of age, has retired. Andy and Kevin support and care for her.

As soon as they received the notice from the Immigration Service, they came to see me. They were in a state of shock. After living almost their entire lives in the United States, they are American as American can be. All their lives, they had played by the rules. Why did the government want to send them back to Thailand?

We requested that the local director of the Immigration Service exercise prosecutorial discretion. To our great relief, he did so. He agreed to cancel the removal proceedings against the Promsiris.

The Promsiri family were all smiles when we told them the good news. See

http://shusterman.com/photo17.html
We hope that now the family can finally become U.S. citizens.

We also hope that other families will not be subjected to the Kafkaesque ordeal that the Promsiris have suffered.

H-1B Advice for Students and Their Employers

2009-04-29T21:44:00.000-07:00

USCIS statistics reveal that only 1,000 H-1B "cap-subject" petitions were submitted each week during the second, third and fourth weeks of April. See

http://shusterman.com/toc-h1b.html#1

At this rate, there will be H-1Bs available until sometime in September. However, I do not believe that this will be the case. Why not?

Because, there are hundreds of thousands of F-1 students in the U.S. Many of these students will graduate from U.S. universities this June, and seek to work in the U.S.

Regarding employment in the U.S., these students should consider the following:

1. They may apply for Optional Practical Training (OPT). This is a fancy term for a one-year work permit. Under certain circumstances, the term of OPT may be extended for an additional 17-months. See

http://shusterman.com/toc-student.html#3

2. If the student's job offer requires a university degree of the type that he/she possesses and if the employer pays them at the prevailing wage, the employer can petition them for H-1B status as soon as the student obtains the required degree. Savvy employers will hire the student initially on OPT and ask the USCIS to change the student's status to H-1B beginning on October 1, 2009.

Why should students seek H-1B status in 2009 if their OPT work permits are valid until 2010?

The principle reason is that this year there are almost 20,000 H-1B slots that are up for grabs. Last year, employers submitted so many H-1B petitions that an individual's chance of obtaining H-1B status was only about 50%. The same thing could happen in 2010 leaving many students high and dry.

I predict that the H-1B petition submissions will rise significantly in June. Therefore, F-1 students who wish to work in the U.S. need to plan ahead.

When is a good time for their future employers to seek the approval of labor condition applications and prepare H-1B petitions for submission to the USCIS?

A good time would be now.

Physicians To Benefit From H-1B Slowdown

2009-04-20T20:22:00.000-07:00

Do you have the mistaken assumption that H-1B visas are strictly the province of computer professionals? In reality, almost half of H-1B visas are utilized by health care and education professionals.

This year's minimal H-1B usage is a boon to physicians finishing their medical residencies and fellowships. Why? Because, unlike last year when the H-1B cap was reached in the first week of the program, this year only 42,000 H-1B petitions were submitted toward the 65,000 cap. What's more, employers submitted a mere 1,000 petitions in the second week and another 1,000 during the third week. At this rate, the 65,000 cap won't be reached until sometime in September.

So, how does this help foreign-born physicians?

A little historical perspective is helpful. Prior to 1991, the only temporary visa category available to physicians who wanted to pursue medical residencies and fellowships in the U.S. was the J-1 exchange visitor visa. That year, Congress passed the Miscellaneous and Technical Immigration and Naturalization Amendments which, for the first time, permitted physicians who had successfully completed all three parts of the United States Medical Licensing Examination (USMLE) to obtain H-1B visas to pursue their residencies and fellowships.

In general, most physicians prefer to do their training on H-1B rather than J-1 visas since the latter category comes at a steep price. J residents and fellows are compelled to return to their home countries for a minimum of two years before they can return to the U.S. on H-1B visas or as permanent residents. Alternately, they can obtain a "waiver" of this requirement, usually by being sponsored by a government agency and practicing for three years in a medically-underserved area.

H-1B residents and fellows have no such requirement. However, most residents and fellows complete their training for H-1B "cap-exempt" employers, usually universities or hospitals which are affiliated with universities. This subjects them to another requirement.

Although these physicians are not subject to the home residency requirement, they are restricted in the type of employers that they can work for after they complete their training. This is because their training usually ends on June 30th. Since "cap-subject" H-1Bs were not available beyond the first week of April for the past couple of years, these physicians have been restricted working at "cap-exempt" jobs. That is, they must practice medicine at a university, at an institution which is related or affiliated with a university, at a nonprofit research institute or at a government research institute. Such jobs are hard to come by.

However, this year is different. Since it is all but certain that the H-1B cap will not be reached by June 30, H-1B medical residents and fellows will be able to transition from "cap-exempt" training programs to "cap-subject" jobs which begin on October 1st.

A word to the wise. Physicians who accept jobs in affluent areas can qualify for H-1B status, but it is doubtful that they will qualify for permanent residency through employer sponsorship. Therefore, savvy physicians will look for jobs in areas where the number of physicians are few and where American physicians are reluctant to practice, mainly in inner city and remote rural areas. This way, they will be able to qualify for permanent residence either through PERM or National Interest Waivers.

For additional information about temporary visas and permanent residence for physicians, job opportunities and "how to" immigration videos, see our "Physicians" web page at

http://shusterman.com/toc-phys.html

H-1Bs: Let the Market Decide the Number of Working Visas

2009-04-14T21:28:00.000-07:00

Back in 1982, when I left the INS to enter private practice, the number of H-1 visas was unlimited. All professionals, including registered nurses, were eligible for H-1 visas. Also, there was no maximum duration for H-1s. U.S. employers could petition for H-1 workers all year long, yet the program did not generate the amount of controversy that it does today. It was a market-based system which allowed U.S. employers to fill jobs in a global economy, plain and simple.

The Immigration Act of 1990 ushered in the present era of government control of “H-1B” temporary visas. For the first time, a numerical cap (65,000) was imposed along with a maximum duration of stay (6 years). Registered nurses were banished from the category.

All of this has proven to be a nightmare. Every few years since 1990, Congress has had to step in to change the numerical cap (to 115,000, then to 195,000, then back to 65,000), to create exemptions to the cap, establish a “cap-dependent” category and to allow persons to exceed the six-year maximum under certain circumstances. The result is a crazy-quilt system that only a lawyer could love. Employers don’t understand the nuances of the law and the many memos interpreting it. Neither do the visa holders. Often, the agency itself misinterprets the law.

In my opinion, the complexity of the law serves to facilitate abuses by unscrupulous employers. Yet, there are those in Congress who seek to make the law even more complex!

Before Congress acts, it may be wise to examine what happened this year in an economy mired in recession. Employers submitted fewer than 42,000 regular cap petitions in the first week of availability compared with over 163,000 petitions submitted during the same period last year. This despite the fact that many students working using Optional Practical Training (OPT) who lost out in the “H-1B Lottery” last year were petitioned again this year. Also, new USCIS restrictions on “cap-exempt” petitions forced many employers to submit “cap-subject” petitions this year. See

http://shusterman.com/toc-h1b.html#1
The main lesson to be learned is that the market worked. Given the large number of jobs lost in the U.S. economy, employers submitted far less petitions than they did last year. Contrary to what critics of the program maintain, the cost of employing an H-1B worker exceeds that of hiring a U.S. worker given attorneys’ fees and government filing fees.

Further, according to Vivek Wadhwa of Harvard Law School, skilled immigrants have fueled our tech boom. Over half of Silicon Valley tech start-ups and a quarter of those nationwide were founded by immigrants from 1995 to 2005. In 2005 alone, these companies generated $52 billion in revenue and employed 450,000 workers — a number greater than the number of H-1B workers in the tech industries over the prior 10 years combined.

Congress should stop trying to micro-manage the program, and return to a simple market-based system. The plain truth is that the overwhelming majority of U.S. employers comply with the law. Those that abuse the law should be stripped of their ability to petition for H-1B workers.

At last, I fear that my advice may fall on deaf ears. Therefore, employers, H-1B workers and their attorneys, seeking to navigate the current complex system, can search our “H-1B Page” which contains almost 100 links to information about this most-complicated of all temporary working visas at

http://shusterman.com/toc-h1b.html