Learn how to benefit from United States immigration
laws and procedures from a former INS Attorney (1976-82) with over
30 years of experience.
SHUSTERMAN'S
IMMIGRATION UPDATE is must reading for potential
immigrants, employers, human resources managers,
immigration attorneys, reporters and policy makers.
Join over 55,000 persons in more than 150 countries
in subscribing to our FREE monthly e-mail newsletter.
SHUSTERMAN'S IMMIGRATION UPDATE is the Internet's most popular e-mail
newsletter regarding U.S. immigration laws and procedures with almost
52,000 subscribers located in more than 150 countries.
Published by the Law Offices of Carl Shusterman,
600 Wilshire Boulevard, Suite 1550, Los Angeles, California, 90017.
Phone: (213) 623-4592 x0
Disclaimer: This newsletter is not intended to establish an attorney-
client relationship. All information contained in this newsletter is
generalized. Any reliance on information contained herein is taken at
your own risk.
Conference on Immigration Law - One of my favorite activities each year
is attending the University of Texas Law School's Conference on
Immigration and Nationality Law. This year's conference is located in
San Antonio, Texas from October 17-19. Come and enjoy the fabulous
Riverwalk and listen to great speakers including Dan Kowalski of
Bender's Immigration Bulletin, former AILA Presidents Peter Williamson
and Ron Klasko, current AILA President Kathleen Walker and a host of
other immigration experts. Sign up now at
Direct Filing - On June 21, the USCIS issued instructions
for direct filing of forms I-129F, I-131, I-140, I-360, I-
485, I-765, and I-907. See our "Green Card" page at
Filing Fee Increases - Reminder: On July 30, the USCIS substantially
raised their filing fees for immigration petitions and applications.
On June 29, the USCIS reminded its customers of the fee increase. See
Letters - Periodically, we get letters from satisfied clients thanking
our attorneys and paralegals for assisting them in their immigration
cases. Below are two recent letters which we received, the first from a
Plant Manager of one of our corporate clients based in Alabama and the
second from a salesman in California:
Dear Gale,
I want to thank you for all the work and effort that was
provided for me to get my immigrant visa. Everything went
perfectly and faster than expected (I got my document package
from the US Embassy only 3 days after the interview).
I came back to the US yesterday and everything was fine. I am
going again to France in 2 weeks and this time will come back
with my wife and daughter. One more step and we will be done!
We appreciate your expertise and professionalism!
Best regards.
NT
Dear Alison and Gale,
I do not know if I told you folks this before. Maybe you want
to let Carl know.
I used to have a business partner that was 50% owner of my
company. He was an Immigration Attorney. After he died, I
remembered that there was an attorney that he on some
occasions called and had stated that it was well worth it to
pay Carl than it was to go to the Law Library, etc.
Anyway after he died I remembered this. Also I had his e-mail
forwarded to my address. When it came time to bring M over
to the US I could not remember Carl's name. I was in a hurry
and at the time was going to actually bring two persons over.
So I figured no big deal. I will just use the phone book and
find an attorney to work with. To make a long story not quite
so long I went through 13 attorneys. Most of them had
completely different stories about how to proceed and some of
them told me it could not be done. One of them took my
retainer and said he would get back to me and never did. Then
we got some idiot lawyer to do the job and he cost more than
you folks did. He screwed things up pretty good. In fact, he
was the one that was screwing up the case at the time one of
your newsletters came to my deceased partner's mail and was
forwarded to me. I then immediately remembered the name and
called you folks. Every thing went very smooth after that.
Everything you folks told us would most likely happen did in
fact happen. I had spent many thousands on idiots before I
found you folks.
I feel so badly for the folks who do NOT know about your
office. The average person has no idea so they go by what
some lame idiot tells them. And the horrible truth is most of
them do not know what they are doing. I think they stay in
business because they get paid in full regardless of the
outcome and I guess there must be enough folks calling
and asking for help that even if they mess the whole case up
the average person does not know that the case was screwed
up. I was only an exception because of my ex-partner pointing
out to me that some lawyers are pretty bad. I thought he was
just being arrogant but now understand he is absolutely
correct.
Anyway I wanted to say thank you again. If you ever need a
reference have them contact me. I am a salesman and I know
what other lawyers can do to screw up a case and it is just
not worth it.
Sincerely,
JD
Mandamus Victory - Shortly before this newsletter "went to press", we
won a mandamus case in Federal Court on behalf of a Pakistani physician
in Arizona. Our client has lived in the U.S. for many years, and is a
fine, upstanding person who practices in a medically-underserved area.
He retained our firm because his H-1B was about to expire and the FBI
name check had been going on for months. What was the hold-up? Was our
client a criminal or an Al-Qaeda wannabe? Hardly! We'll keep you
guessing until you read next month's success story. Suffice to say that
the process needs to be streamlined so that the government starts
focusing on going after the bad guys. Are you one of the 330,000
persons who have been in the FBI name check system for way too long? If
so, you may want to read our article entitled "Why Wait When You Can
Litigate?" at
Physicians - On July 20, the Associated Press ran a story
entitled "Shortage of Doctors Affects Rural U.S." which
stated that "The government estimates that more than 35
million Americans live in underserved areas, and it would
take 16,000 doctors to immediately fill that need, according
to the American Medical Association. And the gap is expected
to widen dramatically over the next several years, reaching
24,000 in 2020 by one government estimate. A 2005 study in
the journal Health Affairs said it could hit an astonishing
200,000 by then, based on a rising population and an aging
work force." We think that this argues for a huge expansion
of U.S medical schools and a liberalized J waiver program for
physicians. Read the complete text of the article from our
"Physicians" page at
Police Chief's Guide to Immigration Issues - "A Police Chief's Guide
To Immigration Issues provides law enforcement executives with an
overview of the issues surrounding immigration, both legal and illegal,
provides background information on the current resources available to
law enforcement, and examines the concerns and obstacles that currently
surround the debate about immigration enforcement by state, tribal, and
local law enforcement." See
Things have only gotten better since then! By the beginning of this
year, our subscribers more than doubled to 42,000. Since January 2007,
over 10,000 more immigrants and their attorneys have subscribed to
SHUSTERMAN'S IMMIGRATION UPDATE, bringing our total number of
subscribers to more than 52,000 people in over 150 different countries.
Our newsletter has become the most popular source of information
regarding U.S. immigration laws and procedures on the Internet.
We explain how to obtain temporary visas, permanent residence, and
citizenship and how to avoid deportation. We allow readers to download
and print hundreds of immigration forms and to access processing times
at all USCIS offices and service center as well as visa processing times
at all U.S. Embassies and Consulates worldwide. We have pages on our
website exclusively for employers, for computer professionals, for
physicians, for nurses, etc., etc. And we try our best to explain
complex immigration laws, regulations and procedures all in simple,
layman's English.
Contrary to appearances, we do not delegate the writing of the articles
on the website or newsletter to a huge staff. I write each article by
myself (My wife, who proofreads the newsletters, aptly refers to herself
as a "web widow".) although I sometimes delegate the tasks of writing
the Immigration Trivia Quiz and the Success Story to our excellent
attorneys and paralegals.
In addition to hundreds of pages that we compose, we link to thousands
of others. We also link to hundreds of audio files, video files and web
casts.
Our homepage and scrolling news ticker are updated regularly, often
several times per day. We try to be the first to bring you breaking
news.
Thousands of persons schedule telephonic consultations with me from the
comfort of their homes using our secure intake form at
Every year, we assist thousands of individuals and hundreds of employers
from all 50 states in securing immigration benefits and avoiding
liability. And like Amazon.com and E-Bay.com, we seldom meet any of our
clients face-to-face. Ah, the wonders of the Internet!
We take this opportunity to thank you for your trust and support.
USCIS Today - We link to the most recent issue of "USCIS Today", the
agency's monthly newsletter, from our "USCIS" page at
It all started when persons with priority dates in the "other workers"
(unskilled) category prior to October 1, 2001 were permitted to apply
for permanent residence according to the State Department's June Visa
Bulletin. However, on June 6th, although the Visa Bulletin remained
unchanged, the USCIS refused to accept additional applications for
adjustment of status stating that all available visa numbers for other
workers had been exhausted.
On June 21st, the American Immigration Lawyers Association (AILA)
disputed the USCIS' failure to follow the State Department's June Visa
Bulletin. See
All of this was a prelude to the July Visa Bulletin Debacle. The July
Bulletin was issued on June 12th. It stated that all of the employment-
based preference categories with the exception of unskilled workers
would be "current" (no backlogs) during July 2007.
During the final two weeks of June, tens of thousands of immigrants,
some of whom had been waiting many years to apply for adjustment of
status, prepared their applications to submit to the USCIS.
When we heard rumors that USCIS had authorized massive amounts of
overtime for its employees in an effort to approve as many applications
for adjustment of status during the month of June as possible, we called
the State Department to verify whether they expected visa numbers in the
EB categories would be available during the entire month of July.
As we reported in our July issue of our newsletter, the State Department
informed us that they intended to issue a revised Visa Bulletin during
the 2nd or 3rd week of July, and that employment-based numbers for
persons born in India, China and Mexico would retrogress.
As a result, we prepared and Fed Ex'd our I-485 packets to the USCIS in
June, and they arrived at the agency first thing on the morning of
Monday, July 2nd, the first workday of the month.
I woke up at 5:00am, Pacific Time on Monday morning to recheck the July
Visa bulletin online. Everything was A-OK. I rechecked the DOS website
at 8:00am just to double check. Still, no problem.
However, by the time I reached our office, the government's Doomsday
Machine had been set in motion. The State Department had issued a
revised July Visa Bulletin cutting off all EB-1, EB-2 and EB-3
adjustment filings based upon the following information: "the sudden
backlog reduction efforts by Citizenship and Immigration Services
Offices during the past month have resulted in the use of almost 60,000
Employment numbers." See
Our law firm was fortunate in that the USCIS approved a number of our
clients' pending I-485s on Sunday, July 1st, before the cut-off was
announced. See Topic #5 below. But if USCIS carried through on its
announcement, tens of thousands of I-485s would be returned to
applicants who had prepared and submitted their applications in reliance
on the State Department's July Visa Bulletin.
Were the government's actions legal? This is a matter for the Federal
Courts to decide. Did they unfairly raise people's expectations? No
doubt about it!
The immediate reaction was swift and angry. There was a huge outcry
from immigrants and their attorneys. Representative Lofgren (D-CA), the
Chairperson of the House Immigration Subcommittee immediately protested
the government's action, and later sent a letter to DHS Secretary
Chertoff demanding a full and detailed accounting of the government's
actions. See
A Chicago law firm sued the government. The American Immigration Law
Foundation (AILF) published a FAQ, a questionnaire and a client retainer
agreement in contemplation of a class action lawsuit. See
Why would the USCIS, which had approved less than 80,000 EB adjustment
applications in nine months, suddenly approve another 60,000 in just
three weeks? Was it true that many of the applications were approved
"subject to FBI name checks", which might take months, or even years, to
be approved? If so, there remained many available visa numbers in the
EB categories.
Abroad, the State Department was prepared to interview and grant
immigrant visas to applicants in the employment-based categories
applying all during the month of July. In a bizarre twist, the July
Visa Bulletin remained in place for those applying abroad with the State
Department, but not for those applying stateside with the USCIS.
Private organizations and individuals joined the fight.
ImmigrationVoice, a private organization composed mostly of Indian-born
IT workers organized peaceful protests in Silicon Valley and sent USCIS
Director Emilio Gonzalez bundles of flowers. Immigrants' List, a pro-immigration
political action committee, forwarded a petition signed by
over 10,000 persons to DHS Secretary Chertoff on the morning of July
17th.
That afternoon, the USCIS suddenly reversed their restrictive policy,
and announced that the July Visa Bulletin would be restored and that
eligible persons could submit I-485s from July 17th to August 17th. See
We predict that this revised policy will benefit approximately 100,000
intending immigrants, many of whom have been waiting in line for up to
six years.
The USCIS Update of July 17th brought welcome news, but left many
questions unanswered.
On July 23rd, the USCIS issued a 19-question FAQ explaining their filing
procedures under the July 2007 Visa Bulletin. On July 27th, the USCIS
issued a second FAQ containing a dozen additional questions and answers.
We explain the contents of both FAQs in the next topic.
When the State Department issued the July Visa Bulletin on June 12, all
employment-based categories were current except for unskilled workers.
On Monday, July 2, after receiving ten of thousands of I-485s, USCIS
announced that they had already granted all 140,000 EB immigrant visas
for the fiscal year, and that all I-485s that were received on July 2
and thereafter would be returned to the applicants.
In Topic #1, above, we described the storm of outrage that this
announcement caused, and how, USCIS on July 17, rescinded this policy
and announced that the agency would accept I-485s through August 17.
After August 17, all employment-based categories will become
unavailable, meaning that the USCIS will no longer accept any EB I-485s,
probably until October 1, at which time, the old backlogs of May and
June 2007 will return.
The million dollar question: "Who benefits and who does not under USCIS'
revised policy?" is answered in the USCIS FAQ dated July 23rd.
Persons with Approved PERM and Labor Certification Applications:
If your PERM/LC application is already approved, make sure to
file your I-140/I-485 packet so it is in USCIS hands on or
before August 17. If your PERM/LC is still pending, you may
want to get your I-140/I-485 packet ready to file before the
August 17 deadline, just in case the Labor Department sends you
an approval in the mail.
Priority Workers - If you are in the EB-1 category (person of
extraordinary ability, outstanding researcher or professor or
multinational executive and manager), you are exempt from the
PERM/LC requirement. You must file your I-140 by July 31 and
your I-485 packet by August 17.
National Interest Waivers (NIW) - If you are eligible for an
NIW, you are exempt from the PERM/LC requirement. You must have
filed your I-140 by July 31 and your I-485 packet by August 17.
This is particularly pertinent to physicians who work in
medically-underserved areas.
Special Immigrants - If you are in one of the special immigrant
categories listed in section 101(a)(27), INA (e.g., religious
workers), you are exempt from the PERM/LC requirement. If your
I-360 is approved with a priority date before August 1, 2007,
you must file your I-485 packet by August 17.
Investors - If you are an EB-5 investor, you are exempt from the
PERM/LC requirement. If your I-360 is approved with a priority
date before August 1, 2007, you must file your I-485 packet by
August 17.
Schedule A - If you are in a shortage occupation (e.g.,
registered nurses and physical therapists, etc.), you are exempt
from the PERM/LC requirement. If your I-140 was filed by July
31, 2007, you must file your I-485 packet by August 17.
Important Caveats:
For registered nurses and physical therapists who work for
unionized facilities, the DOL regulations provide that the
employer must give the bargaining representative a notice that
it intends to petition the RN or PT for permanent residence, and
then wait 30 days before submitting the I-140. The limited
filing period provided for in the USCIS Update does not allow
sufficient time for most unionized employers to follow this
procedure. Therefore, for the most part, it is RNs and PTs who
have an offer of employment from a non-union facility who may
take advantage of the July 17 USCIS Update. Even with a non-
unionized facility, the DOL regulations provide that the
employer post the job vacancy notice for 10 days (Monday through
Friday only according to USCIS' previous practice) and then wait
30 days before submitting the I-140. Savvy employers keep such
notices posted year round.
USCIS' July 23 FAQ recommends a rather iffy procedure for
getting the agency to match up your I-140s filed in July with
your I-485 packet filed in August. We opted instead to e-file
our I-140s. As the July 27 FAQ explains, e-filing also allows
the petitioner extra time to submit supporting documents.
The July 23 FAQ allows I-485s to be filed without medical
examinations. USCIS will send RFEs for the medical exams.
Thank you!
However, the July 23 FAQ is unforgiving when it comes to the
July 30 filing fee increase. All petitions submitted or
postmarked on or after July 30 will need to be accompanied by
the new fee ($475). If you simply follow the instructions on the
form and submitted your I-140 with a check for $195 (the pre-
July 30 filing fee), you are toast! USCIS will return your
petition, and unless you are PERM/LC exempt, you will not be
able to establish a priority date. Also, the July 17 Update
allows you to file your I-485 packet until August 17 using the
pre-July 30 filing fees. However, if you mail in your I-485
packet with the new, higher filing fees, USCIS will be laughing
all the way to the bank as they cash your check. They will
simply reject your application because you paid the government
too much money!
We posted the USCIS Update of July 17th on our web site at
With the demise of the Comprehensive Immigration Reform (CIR) bill in
the Senate in June, Congress has thrown in the towel on trying to secure
the borders, creating a guest worker program and legalizing the
immigration status of 10-12 million undocumented workers this year.
Perhaps, Congress will revisit these issues again, but probably not
until 2009.
There are a few immigration-related bills which may be enacted into law
in 2007. Among them is the AgJobs bill, the DREAM Act, recapturing
unused visas for shortage occupations like registered nurses and
physical therapists, visas for Iraqis aiding the U.S. and a remote
possibility that the quota for skilled workers will be increased.
We summarize each of these issues below:
AgJobs bill - We don't believe for a minute that the
unemployed in the U.S. are going to break their backs picking
strawberries and lettuce even if farmers raise the pay to $20
per hour and grant the pickers stock options. How can a bill
that enjoys broad bipartisan support and is endorsed by farmers,
unions and Latino organizations (70% of farm workers are
Latino.) not be enacted into law? Soon, if no action is taken
by Congress, crops will be rotting in the fields. The AgJobs
bill would be the most significant improvement in the lives of
those who put food on our tables in two decades. As Woody
Guthrie sang in the 1940s, "Is this the best way we can harvest
our orchards? Is this the best way we can harvest our crops?"
The answer was "no" then, and it is about time that a law was
passed to end exploitation of those who perform stoop labor to
put food on our tables. We link to the complete text and
explanation of the AgJobs Act from our "Immigration Legislation"
page at
DREAM Act - Children who are brought into the U.S. by their
parents and who succeed in mastering English, graduate from high
school and go on to excel in college deserve better than to be
hunted down and deported. I have a little experience with these
students, especially the "AB540" students at my alma mater,
UCLA. Think they are majoring in "ethnic studies"? Think
again. Many are straight "A" students in science, math,
engineering and business. Many were not told of their illegal
immigration status by their parents until they were ready to go
to college, and couldn't understand why they were denied
financial aid. They are as "All-American" as they come, and
they could make a huge contribution to our country if only we
give them a chance. The DREAM (Development, Relief, and
Education for Alien Minors) Act is co-sponsored by a bipartisan
coalition of over 60 senators and representatives. Expect it to
be introduced as an amendment to a piece of "must-pass"
legislation during the coming month. We link to the complete
text and explanation of the Dream Act from our "Immigration
Legislation" page at
Nurses and Physical Therapists - In March, Senator Hutchison (R-
TX) introduced legislation to "recapture" 61,000 lost green
cards and distribute them to qualified registered nurses,
physical therapists and their families. Our country is facing a
shortage of 1,000,000 registered nurses by 2020, and we can't
seem to find a way to properly fund nursing education in the
U.S. Senator Durbin (D-Ill) amended the Hutchison proposal to
charge U.S. employers $1,500 for each RN sponsored from abroad
to help fund U.S. nursing education. Now, Senator Schumer is
seeking to attach the Hutchison-Durbin Amendment to a piece of
"must pass" legislation in August. For more information about
the immigration of nurses and physical therapists, see our
"Nurse" page at
Iraqi Refugees - What happens to the Iraqis who have aided the
U.S. during the Iraq War after the U.S. begins withdrawing
troops from Iraq? Already on the books is a law which allows a
few hundred Iraqi and Afghani translators to immigrate to the
U.S. Since October 2006, the U.S. has admitted only 133 Iraqi
refugees to the U.S. despite Administration assurances that
7,000 refugees would be processed by September 30th. The Iraq
War has created not hundreds or thousands, but millions of
refugees. On July 9, our Ambassador to Iraq, Ryan Crocker,
requested that the Bush Administration grant immigrant visas to
all Iraqis employed by the U.S. government in Iraq: "Our [Iraqi
staff members] work under extremely difficult conditions, and
are targets for violence including murder and kidnapping. Unless
they know that there is some hope of an [immigrant visa] in the
future, many will continue to seek asylum, leaving our Mission
lacking in one of our most valuable assets." DHS Secretary
Chertoff has stated that he would like to see Iraqi refugees
processed "as quickly as we can, because I think we have a
responsibility there." Senator Kennedy has introduced a bill in
the Senate which would grant green cards to persons who worked
with the U.S. in Iraq. If there is a will, there is a way. In
1975, the U.S. admitted 140,000 Vietnamese refugees during an
eight-month period.
Highly-Skilled Workers - Congressional leaders have begun to
discuss a measure which would allow unused employment-based (EB)
immigrant visas to be "recaptured". Almost 500,000
professionals and skilled workers have been waiting in line for
up to six years for green cards. The measure being discussed
would raise the cap on EB green cards from 140,000 to 240,000 or
280,000 annually. For more information regarding this proposed
amendment, see our "Computer Professionals" page at
under "Skilled Workers May See Green-Card Surge (July 19)".
Of course, it is also easier to pass a bill "cracking down" on illegal
aliens than it is to solve thorny immigration issues. On July 26th, the
Senate voted 89-1 to add an immigration enforcement amendment to a
homeland security bill that President Bush had already threatened to
veto. The amendment would allocate an additional $3 billion to double
the size of the Border Patrol, build additional fencing on the U.S.-
Mexican border, increase detention beds to 45,000, increase the
reliability of the employment verification system and mandate the
deportation of people who have overstayed their visas. The sole
dissenter was George Voinovich (R-OH) who called this expenditure of
money "irresponsible and excessive". The House version of the homeland
security bill does not include this amendment. Therefore, whether this
amendment makes it into the final bill will be decided by a Senate-House
Conference Committee.
On July 30th, the same date that new USCIS filing fees increases went
into effect, the agency began its "direct filing" program.
Where, in the past, most USCIS petitions and related applications were
filed in accordance with the "bi-specialization" program, now such
applications/petitions are submitted directly to the service center
where they will be decided.
This applies initially to the following petitions/applications:
I-129F - Fiancée (or K-3 spouse) Petition
I-131 - Application for Travel Permit
I-140 - Application for Alien Worker
I-360 - Application for Amerasian, Widow(er) or Special Immigrant
I-485 - Application for Adjustment of Status
I-765 - Application for Employment Authorization
I-907 - Application for Premium Processing
Where you submit your petition or application depends upon where you
reside.
I-129F petitions must be submitted to the appropriate USCIS service
center in accordance with the following chart:
How anyone without Internet access is going to know about these new
procedures beats me.
Even for our subscribers, this seems a bit confusing. Fortunately, the
USCIS memo regarding direct filing provides as follows: "During the
first 30 days of "Direct Filing" (July 30 to August 28), USCIS will not
reject any form incorrectly filed at the prior filing location. However,
applicants must include the correct fee and must meet all other
requirements for a proper filing. Beginning on or after August 29, 2007,
USCIS will reject any of the forms listed above that are filed with the
incorrect filing location."
We link to the complete text of the USCIS Memo (dated June 21) from our
"Green Card" page at
Wouldn't it be nice if the USCIS forms reflected the proper filing fees
and filing locations BEFORE the fee increases and the direct filing
requirements became effective? In fact, shouldn't the law be amended to
require this? If applicants have to play by the rules, shouldn't USCIS
have to do the same? Just an idea...
Our advice: Apply early and be very careful when you file an
application/petition with the USCIS. Make sure that your attorney is
experienced, excellent and very detail-oriented.
Who said "Never on a Sunday"? Not the controversial USCIS
memo dated Monday, July 2nd which would return employment-
based I-485s received on or after that date. That memo was
rescinded 15 days later. See Topic #1 above.
Over a dozen of our clients became permanent residents on
Sunday, July 1, 2007, the day before the USCIS announced that
no more EB immigrant visas would be granted in July. Five of
these clients are members of the Hernandez family.
Cynthia and her family had already resided in the US for
nearly ten years; she came to the United States from the
Philippines in July of 1998 with her husband Ernesto and
their three children, Daniel, Christopher, and Andrew.
Cynthia began work at a local church on a religious worker
(R-1) visa. Cynthia, who attended nursing school in the
Philippines has since received her RN license in the US and
has been attending to patients as a full time RN at a local
hospital.
Cynthia has always worked hard to support her family. Since
arriving in the U.S., she has worked steadily to pay the
bills and take care of her husband and three boys. When the
boys were younger, Cynthia's husband Ernesto, lacking a work
visa, stayed home to take care of the kids while Cynthia put
in long hours at work. However, when the boys became older,
Ernesto, with his EAD, joined the workforce as well. It is
clear that their hard work has paid off. Daniel, Christopher,
and Andrew are extremely talented musicians, excellent
students and actively involved in their church.
All Cynthia Hernandez wanted was the opportunity for a
brighter future for her children in the United States.
Amidst an unprecedented restriction of employment-based green
cards which occurred on the following day, the Hernandez
family emerged as one of a handful of recipients of legal
permanent residence (LPR) status on Sunday, July 1st.
The Hernandez family filed their applications for permanent
residency in late 2005, and even though Cynthia was a
registered nurse already living and working within the US,
they still had to endure a challenging and prolonged process.
Through it all, Cynthia remained positive and focused on
ensuring her sons' futures in America. However, after many
interviews, examinations and appointments, the Hernandez',
like many other individuals and families hoping to reside
permanently in the U.S., were placed on a long waiting list,
only four years in May, down to two years in June. It was
not until the elimination of backlogs for employment-based
immigrant visas on July 1, 2007 that the Hernandez's dream of
becoming legal permanent residents became possible.
Cynthia's application had been delayed not only because of
long-waiting lists but also due to her initial failure to
qualify for a VisaScreen certificate. However, by early
June, she finally obtained her certificate. However, at that
time, her EB-3 visa number was still not current. In mid-
June, the State Department issued the July Visa Bulletin
which announced that all EB categories would be current as of
July 1st. In mid-June, one of our attorneys spoke to a
supervisor at the local USCIS office about Cynthia's case.
The USCIS had allocated thousands of hours of overtime to
approve as many applications for adjustment of status prior
to the first business day of July. Our attorney mentioned to
the supervisor that Cynthia and her family would all have
current priority dates starting on Sunday, July 1st, and that
their applications could be granted on that date. The
supervisor granted their applications on July 1st, one day
before the USCIS announced that all applications for
adjustment of status received on July 2nd or afterwards would
be returned to the applicants because all 140,000 EB
adjustment applications had been granted for the 2007 fiscal
year.
While it was extremely fortunate that the Hernandez family's
applications for permanent residency were approved on July
1st, there remain a huge number of families whose immigration
status remains uncertain.
To read more of our Immigration Success Stories, see
At least once a week, I meet with a married couple where one spouse is a
U.S. citizen and the other entered the U.S. unlawfully. The couple
usually has been married for years, has children and the undocumented
spouse has resided in the U.S. for years.
Even though, it allegedly is the purpose of our immigration laws to
prevent the separation of families, the undocumented spouse is usually
prohibited from adjusting his/her status in the U.S. because of the
original unlawful entry. There is a limited exception to this rule
called "section 245(i)". See our Section 245(i) FAQ on our "Green Card"
page at
If the undocumented spouse has resided in the U.S. for more than ten
years, he has at least two alternatives: (1) One involves going abroad
to apply for an immigrant visa at a U.S. Consulate in his home country;
(2) The other involves placing himself under removal proceedings and
applying for permanent residence via "cancellation of removal".
* Applying for an Immigrant Visa Abroad - In 1996, Congress amended
the immigration law to provide that someone who has one year or more of
"unlawful presence" in the U.S., and who exits the U.S., is barred from
obtaining permanent residence until the person remains outside the U.S.
for ten years. "Unlawful presence" is different than being illegal. We
link to a myriad of memos from the USCIS and the State Department
defining "unlawful presence" from our "Green Card" page at
However, a person may apply for a "waiver" of the ten-year bar using
form I-601 if their inability to return to the U.S. would cause their
U.S. citizen or permanent resident spouse or parent(s) "extreme
hardship". Extreme hardship must be more than the usual hardship that
spouses and parents and their sons and daughters would experience if
they were separated for ten years or if their spouse or parents had to
relocate with them to their home country.
Therefore, it is of the utmost importance that the I-601 be accompanied
by more evidence than simply that the U.S. citizen spouse would miss the
foreign-born spouse if he had to return to, let's say Mexico, for ten
years. While family separation is an important factor in demonstrating
extreme hardship, it is usually not sufficient in itself to result in
the waiver being granted by the USCIS. Consider financial factors: Is
the foreign-born spouse the family's breadwinner? Could the citizen
spouse continue to pay the mortgage, the rent, the car payments, etc.?
Although hardship to U.S. citizen children cannot be taken into account,
the number and age and circumstances of the children may dramatically
increase the level of hardship to the U.S. citizen spouse. If the
couple has young children, how can the citizen spouse be expected to
financially support and take care of the children all by herself? Do
the children attend public or private school? How are their grades? Do
they participate in extracurricular activities? How will they be
affected if they are raised by only one parent?
If the foreign-born spouse has parents in the U.S. who are citizens or
permanent residents, it is important to document whether the parents are
self-supporting or are financially dependent on their undocumented son
or daughter. How is their health? Do they drive? Do they live
together with the rest of the family? How close are they to their
grandchildren?
Our I-601 waiver applications are usually accompanied by 20-30 exhibits.
It is important to include photos and to paint a picture of the family
so that the USCIS examiner can properly gauge the level of hardship that
the ten-year bar would impose on the U.S. spouse and/or parents.
How long must foreign-born spouse remain abroad while his waiver
application is being decided by the USCIS? Since the State Department
decides the immigrant visa application and the USCIS decides the I-601
waiver, the entire procedure may sometimes take several months. The
U.S. Consulate and USCIS office in Ciudad Juarez, Mexico have, to their
credit, instituted a one-day procedure to decide waivers and immigrant
visas.
As a former INS Trial Attorney, I am intimately familiar with the
extreme hardship standard. While there are no guarantees regarding I-
601s, we would not send a client abroad with a waiver application in
hand unless we felt that he or she had an excellent chance to have his
or her I-601 approved.
* Cancellation of Removal - Nevertheless, some families are so
nervous about sending a spouse (or son or daughter) abroad that they
prefer to apply for a green card in the U.S. through an Immigration
Judge.
The conditions for achieving permanent residence through cancellation of
removal are as follows:
The person must be continuously physically present in the U.S.
for ten years or more;
The person must be of good moral character during the past ten
years; and
The person's departure from the U.S. must result in "exceptional
and extremely unusual hardship" to their U.S. citizen or permanent
resident spouse, parents and/or children.
See our article "Establishing Hardship to Qualify for Cancellation of
Removal" at
Also see two recent cases where our clients were able to meet the
extremely rigorous hardship standard for cancellation of removal:
"Rules of Engagement" at
What happens if the Immigration Judge (and/or the Board of Immigration
Appeals) does not grant your Application for Cancellation of Removal?
You still have the option of departing the U.S. voluntarily and applying
for an immigrant visa and an I-601 waiver abroad under the lesser
hardship standard.
Do you have immigration questions of general interest to our readers?
Send them to
Each month we will choose one question to answer in our newsletter. To
be considered, questions should be general in nature, and should be
short and to the point (no more than 20-30 words).
If your question is neither short nor general, please schedule a 30-
minute legal consultation with me at
The Immigration Service (USCIS) lists its processing times
for immigration petitions and applications on their web site.
Most immigration applications and petitions must be submitted
to one of the following USCIS Service Centers: (1) Laguna
Niguel, California; (2) Lincoln, Nebraska; (3) Mesquite,
Texas; and (4) St. Albans, Vermont and (5) the National
Benefits Center in Missouri.
These service centers periodically issue lists of their
processing times for various types of petitions and
applications. We link to the latest list issued by each
service center.
Warning: Processing times may appear faster on the official
lists than they are in reality.
To see how fast (or slow) your service center is processing a
particular type of petition or application, see our
Government Processing Times Page at
Administrative appeals of most types of petitions denied by
the USCIS are adjudicated by the agency's Administrative
Appeals Office (AAO) in Washington, DC.
The AAO's most recent published processing times (April 10,
2007) may be found at
The State Department web site contains a "Visa Wait List"
page which permits readers to choose a particular U.S.
consular post and learn how long it takes the post to process
temporary, nonimmigrant visas. See
Since 1999, we have served as the official immigration experts for
About.com. We have participated in dozens of free chats since then.
Our chats always focus on a particular subject.
Links to the transcripts of all of our chats are posted online on our
"Chat" page at
Are your eyes getting tired from reading all of our information about
immigration laws and procedures? Then sit back, close your eyes, and
listen to any (or all!) of the following immigration audios:
Below is the message that we received from the quiz winner:
Dear Mr. Shusterman,
Here are the answers to July's quiz from Left to Right:
Jascha Heifetz (Lithuania)
Isaac Stern (Ukraine)
Itzhak Perlman (Israel)
I have a keen interest in classical music. However, I still
did not recognize the faces, so had to think of famous
violinists to match the pictures after looking up their
images on-line. Jascha Heifetz was the most difficult to find
since his name didn't pop out at me. Luckily, perusing some
classical music-devoted websites helped.
I am an immigrant - I came to the country in 1995 at the age
of 10 with my family from Pakistan. We are in New Jersey
right now. I have a college degree (BA in Chemistry). I would
like to attend medical school but I am out of status - hence
I would really like Mr. Shusterman's help. I spoke to him
last month, but as the new law is not going to happen, a new
session certainly cannot hurt.
I really enjoy films and reading. I subscribed in June,
having only recently discovered this gem of a site.
Thanks,
SA
Dear SA,
You've won two quizzes in the row - one on movies and one on
classical music. I'm very impressed! I'll have to try a
little harder to stump you next month. I enjoyed speaking
with you in June, and look forward to our next talk. I met
with a medical student with no papers recently who is on a
full scholarship, so don't be disheartened.
Carl Shusterman
Certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Trial Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, California 90017
