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Published by the Law Offices of Carl Shusterman, 600 Wilshire Boulevard, Suite 1550, Los Angeles, California, 90017. Phone: (213)623-4592, Fax: (213) 623-3720, E-Mail: carl@shusterman.com, WWW Home Page: http://www.shusterman.com
To subscribe to SHUSTERMAN'S IMMIGRATION UPDATE, fill out the brief online form at http://www.shusterman.com/subscribe.html#subscribe or send an e-mail message to majordomo@ls.shusterman.com, with the words "subscribe visalaw" in the body of the message.
To unsubscribe, fill in your e-mail address at http://www.shusterman.com/subscribe.html#unsubscribe or send an e-mail message to majordomo@ls.shusterman.com, with the words "unsubscribe visalaw" in the body of the message.
For back issues of SHUSTERMAN'S IMMIGRATION UPDATE, see
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.
1. January 2002 State Department Visa Bulletin
2. Latest Governmental Processing Times
3. Legislation: Introducing Our September 11, 2001 Web Page
4. Waging War On Terrorism While Preserving Civil Liberties
5. Immigration Trivia Quiz: Keeping A Promise To Serve
6. Information On INS Fugitives To Be Listed In FBI Database
7. 180 Day Portability Rule: Clearing Up Common Misconceptions
8. Web Site: Social Security Online - An Immigration Guide
9. Chat Schedule, Transcripts, Audios & Videos
10. Answers To November's Immigration Trivia Quiz
The conference will bring together hundreds of immigrant, refugee, labor, business, ethnic, community and local government advocates to develop plans and strategize for the future. Speakers will include high-ranking Administration officials, Members of Congress, recognized legal and policy experts, business and labor leaders, reporters and pollsters, and community leaders.
For further information, please contact Rena Surana-Nirula at the National Immigration Forum at rsurana@immigrationforum.org or see
Fortunately, on November 20, the INS issued a memorandum which offers a solution to this common "chicken and egg" problem, at least in the H-1B context. See
and scroll down to "INS Restructuring Plan".
You will find it under the "General" topic.
and scroll down to "LCA Online System", to "LCA Online System: Frequently Asked Questions" and to the 34-page "User Guide".
and the new N-400 on our "Citizenship Forms" page at
Both of these new forms are "fillable" online.
For a few weeks, border posts in Mexico and Canada ceased accepting new Nonimmigrant Visa Applications for Third-Country Nationals (TCNs) in the United States. Now, TCN processing has been restored with one significant modification. Men between the ages of 16 and 45 who are citizens of the following countries are subject to a 20-day background check before a nonimmigrant visa may be issued: Afghanistan, Algeria, Bahrain, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates, and Yemen.
As usual, the family-based numbers showed either minimal or no forward movement. No category moved forward more than one month with the exception of the 3rd preference category (married sons and daughters of U.S. citizens) for persons born in the Philippines which advanced six weeks.
The Visa Bulletin creates false expectations. For example, a U.S. citizen parent of a single adult son or daughter is led to believe that his or her child will be able to immigrate in a little less than three years since the current priority date for the worldwide family-based 1st preference category is March 1, 1999. The unfortunate reality is that the there has been no forward movement in this category since November 2000. The parents and children should be informed of this fact, and advised either to seek other means to immigrate or to reconcile themselves to the fact that they will have to live their lives in different countries.
Unless Congress acts to reform the family-based system, the 3.5 million persons waiting to immigrate to the U.S. based on approved family-based petitions should consider other options for immigrating.
All of the employment-based numbers remain current for the seventh consecutive month. The time to apply for your labor certification or visa petition is now. We predict that sometime during the year 2002, visa numbers for persons born in India, China and possibly the Philippines will again begin to backlog.
Diversity lottery visas will be available in JANUARY for persons with numbers below those shown in the following list:
AFRICA: AF 6,650
ASIA: AS 5,400 except Bangladesh 2,275
EUROPE: EU 6,535
NORTH AMERICA (BAHAMAS): NA 8
OCEANIA: OC 250
SOUTH AMERICA and the CARIBBEAN: SA 600
Diversity lottery visas will be available in FEBRUARY for persons with numbers below those shown in the following list:
AFRICA: AF 8,000
ASIA: AS 6,825 except Bangladesh 2,675
EUROPE: EU 8,100
NORTH AMERICA (BAHAMAS): NA 8
OCEANIA: OC 290
SOUTH AMERICA and the CARIBBEAN: SA 690
The January 2002 Visa Numbers can be found at
For an explanation of what the categories, dates and symbols listed below mean, see
and
Check the State Department's official version to see complete information about the movement of family, employment and lottery numbers, at
Our web site contains the waiting times of each center and enumerates each state served by the center and any foreign offices within the center's jurisdiction.
The service centers periodically issue lists of their processing times for various types of applications. Our web site contains the latest list issued by each service center.
Warning: Processing times may appear faster on the official lists than they are in reality. These processing times are not recognized as official by the INS in Washington, D.C. and are not posted on the official INS web site.
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
Processing times at INS District Offices may be accessed at
To check the processing times of your Department of Labor Regional Office and your State Employment Service Agency (SESA), click on
and
The new anti-terrorism law, the USA Patriot Act, contains numerous immigration provisions. The Administration has stated that noncitizen terrorists will be tried before military tribunals rather than before Federal Courts. During the past three months, over 1,000 individuals who the government refuses to name have been held in custody, mostly for immigration status violations. Attorney-client conversations are being monitored by the federal government. The INS has authorized inputting the names of over 300,000 persons facing deportation in an FBI database. The INS has issued regulations which give INS attorneys the authority to stay custody decisions of Immigration Judges. More recently, Congress has begun to conduct governmental oversight hearings, and groups have begun to file lawsuits over what they see as mass violations of civil liberties. To read about the latest happening on Capitol Hill, see AILA's excellent "Washington Update" issued on November 30 at
In an effort to keep our readers current with all of these new laws, regulations, policies, etc., we have established a "September 11th" web page at
This web page is currently subdivided into the following four sections:
The Administration section allows readers to see important White House, State Department, Justice Department, FBI and INS regulations and memoranda regarding combating terrorism through immigration policy.
The USA Patriot Law section contains the complete text of the law, a summary of the immigration-related provisions of the law and Attorney General Ashcroft's statement vowing to implement the law immediately and completely.
The Congress section contains a link to all the legislation either proposed or enacted which is "related to the attack of September 11, 2001". It also links to congressional hearings concerning immigration law controls and terrorism.
Finally, we link to statements and observations regarding the balance between waging war on terrorism and preserving civil liberties by such private organizations as the American Bar Association, the American Civil Liberties Union, the American Immigration Lawyers Association and the National Immigration Forum.
Currently, the September 11th page contains over 20 entries and links. The page will continue to be updated on a regular basis.
On December 6, the Senate Judiciary Committee held an oversight hearing entitled "Preserving Our Freedoms While Defending Against Terrorism" in which Attorney General John Ashcroft was the sole witness. The Senators and the Attorney General focused on such weighty matters as the legality of military tribunals without an explicit declaration of war and the continued detention of hundreds of detainees who the Justice Department refuses to name. We link to the hearing on our "September 11th" page at
Freedoms can be lost, little by little, by the implementation of regulations and policies which may seem fairly innocuous, but upon closer inspection, impinge upon liberty in a way which is antithetical to our system of justice.
A good example is the custody regulations which were published by the Department of Justice on October 31, 2001. See
As long as I can remember, when the INS sets a bond on a person in custody, the person has a right to request that the bond be "redetermined" by a neutral Immigration Judge.
A Special Agent who has worked up a case for a considerable length of time may have developed such strong feelings about the case that he persuades his superior to hold the detainee without bond or to set a very high bond which is impossible for the detainee to post.
The Immigration Judge may lower, or raise, the bond depending on whether the person is likely to abscond or is a danger to the community. If either the INS or the detainee is unhappy with the Judge's decision, they may submit an appeal to the Board of Immigration Appeals (BIA). However, in the meantime, the Judge's decision prevails.
The new regulation stands the system on its head. If the INS decides that the person should be held without bond, or sets a bond of $10,000 or more, the INS has only to submit a Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43) within one business day after the issuance of the order (and a Notice of Appeal within 10 days of the Judge's order), and the Judge's order is held in abeyance pending the BIA's decision on the appeal. Similarly, if the INS Commissioner certifies the BIA's order to the Attorney General within five business days, the BIA's custody order is stayed pending the decision of the Attorney General.
What is wrong with the new regulation? In a war against terrorism, why should some "super-liberal" Judge be given the authority to release an Al Qaeda member or sympathizer on his own recognizance?
Here are a few things that bother us about the interim regulation:
However, in its own small way, it undermines the liberties that our country is based upon, and allows an administrative agency to exercise unchecked authority over individuals.
This month's quiz concerns soldiers and baggage handlers. Be the first person to correctly answer the questions posed at
and e-mail them to me at carl.shusterman@gte.net
The winner gets a free legal consultation with me during the month of December.
If so, be advised that the INS is taking steps to make it easier for you to be apprehended and deported. The agency announced, on December 5, that it is sending your name to the National Crime Information Center, a database maintained by the FBI and used by local police agencies.
The next time a police officer pulls you over for a routine traffic stop, you could be taken into custody, handed over to the INS, and shipped back to your country.
As a former INS Trial Attorney, I can certainly understand why the agency would want to enter the names of each of these persons into the FBI database. The INS lacks the resources to apprehend these persons. Once all 314,000 names and identifying information have been entered into the database, a process which could take one year or more, the INS is counting on local police forces to apprehend up to 10% of these persons annually.
My 20 years in private practice have taught me at least a couple of good reasons why entering these names into the FBI database may not be such a good idea:
Although the rule is only two sentences long and is stated in simple English, employers and employees alike remain confused as to its meaning.
The law states that both labor certifications and employment-based visa petitions remain valid with respect to a "new job" where the INS fails to adjudicate an application for adjustment of status within 180 days "if the new job is in the same or a similar occupation as the job for which the "petition was approved" or the "(labor) certification was issued".
This seems simple, doesn't it? Of course, since there are currently no INS regulations interpreting the statute, reasonable minds may disagree about what the phrase "same or similar occupation" means. What if a software engineer becomes a senior software engineer? Not much of a stretch. However, if she becomes the VP for Software Operations, her attorney may have to do battle with the government to get her adjustment application approved.
A lot of people get confused when there is a change of
Others are confused about whether the rule applies where the applicant changes jobs before the 180-day period has elapsed. Again, the operation of the new rule is not affected by such changes. If an applicant for adjustment of status changes jobs 60 days into the 180-day period, she is home free as long as the INS takes over 180 days to decide the application.
The statute provides that the job offer is prospective only. However, case law imposes an "intent" requirement: An applicant must, at the time that an application for adjustment of status is submitted, have the intent to work for the petitioning employer indefinitely. If the applicant quits to work at a higher-paying job two days after the adjustment application is filed, the INS may seek to deny the application arguing that the applicant lacked the requisite intent at the time that the application was submitted. However, some people think that the rule requires the applicant to work for the petitioning employer for 180 days after the I-485 is submitted. It clearly does not.
INS's Policy Memorandum regarding AC-21, dated June 19, 2001, provides, on page eight, that "adjudicators shall not deny applications for adjustment of status on the basis that the alien has changed jobs. Under present practices, it is expected that an I-485 applicant notify the Service when they no longer intend to enter into employment with the employer who sponsored them on the I-140 petition. The Service should continue to expect the applicant to submit a letter to the INS of this change of intent... The Service should request a letter of employment from the new employer..."
In practice, an applicant who changes jobs after the I-485 has been submitted should send both letters to the INS by certified mail.
The Social Security Administration (SSA) has established a web site to answer questions about social security and immigration from employers, workers, student, refugees and asylees.
The site covers a large number of topics including how to obtain a social security card, what to do when you need a social security card for tax purposes, how to get a social security number for a driver's license, how to verify names and social security numbers for employees, how to report earnings for household workers, advice for self-employed persons, etc.
The site contains a number of useful features, one of which is the "Multi-Language Gateway" which provides social security information in the following languages: Arabic, Armenian, Chinese, Farsi, Greek, Haitian-Creole, Italian, Korean, Polish, Portuguese, Russian, Spanish, Tagalog and Vietnamese.
The site also contains a handy chart listing categories of nonimmigrants that are permitted to work in the U.S. Caveat: This chart needs to be updated to include K-3, K-4 and V status.
We link to Social Security Online on our "Government Links" page at
In May 1999, we pioneered the concept of free online chats on various immigration topics. Our chats are always focused on a particular subject. Together with About.com's Immigration Guides, Jennifer and Peter Wipf, we have conducted over two dozen chats on a wide variety of subjects, all related to immigration laws and procedures.
We do not have chats planned for the holiday season, but will begin a new series of chats starting in January.
To read the complete text of our chats, see our Chat Page at
Immigration Audios
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:
See my testimony before the Senate Subcommittee On Immigration on May 22, 2001 regarding "Immigration Policy: Urban And Rural Health Care Needs" at
or read the complete transcript of my testimony at
Remember, you will need to download a free copy of RealPlayer 8.0 which you can find at
in order to hear the audios or to view the video.
The INS web site contains a "History, Genealogy and Education" section which consists of the following subsections:
This month's winner is shy, and has requested that his name be kept confidential. We will honor his request, but starting in 2002, no more Mr. Nice Guy - no name and personal information, no free consultation!
Happy Holidays to all our subscribers,
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
Those who would trade freedom for security do not deserve either."
December 10, 2001