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Volume Eleven, Number Eleven

SHUSTERMAN'S IMMIGRATION UPDATE is the most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 45,000 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

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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.

TABLE OF CONTENTS:

NEWS FLASHES:

• 9^th Circuit Immigration Outline Updated - On November 20, the U.S. Court of Appeals for the Ninth Circuit updated its excellent outline of immigration decisions decided by the Court. We link to this outline from the "Federal Courts" section of our "Deportation" page at
  http://shusterman.com/toc-dpt.html#11

• BIA - In November, BIA member Juan Osuna and Jean King published an excellent update on precedent decisions published by the Board of Immigration Appeals during fiscal year 2006. We link to their 11-page guide from the "Board of Immigration Appeals" section of our "Deportation" page at
  http://shusterman.com/toc-dpt.html#6

• CIS on Case Management Timelines - An October 27 memorandum from Michael Aytes, Associate Director, Domestic Operations, USCIS, provides guidance on timeframes related to case processing. The memo covers the rescheduling of interviews and naturalization testing, the effect of an RFE on the processing clock, NOID extensions, and Post-RFE/NOID processing. See
  http://shusterman.com/pdf/aytes102706.pdf

• Green Card Lottery - The State Department deadline for submitting applications for the DV-2008 green card lottery is on December 3. Apply online from our "Lottery" page at
  http://shusterman.com/toc-lottery.html

• Immigration Tracker - Our law firm uses Immigration Tracker as a database system, to complete immigration paperwork and to allow our clients to access their files 24/7. The latest Tracker newsletter is online at
  http://www.immigrationtracker.net/Misc/Newsletter003November2006/tabid/94/Default.aspx

• Letters - We are always happy to receive letters from our readers (although we receive too many to answer them all personally). Here is one that we received last week:

  Dear Mr. Shusterman:

  I am a solo practitioner, and I handle U.S. Immigration cases only. I wish to inform you that your web site has been extremely helpful even to attorneys like me who could not afford to employ individuals who could do research for us. I believe that your service to the public in general, including small or solo practitioners like me, must be lauded, recognized, and praised as I am doing that here in my own small way.

  Sincerely.

  
  H. D. TINGSON JR.
  Attorney at Law
  Member - California State Bar

• Naturalization - On November 30, the CIS announced that, starting in January 2007, it will introduce a pilot naturalization exam in 10 cities with a revised civics and English test. The agency also released a list of 144 questions and answers for the new civics test. We link to this information from the "Naturalization" portion of our "Citizenship" page at
  http://shusterman.com/toc-usc.html#2

• Premium Processing - Starting on November 13, the CIS once again expanded its Premium Processing Service, this time to include I-140s submitted on behalf of persons of extraordinary ability. See the CIS Press Release and general information about Premium Processing on our "Premium Processing" page at
  http://shusterman.com/toc-premium.html
  On November 28, the CIS suspended premium processing for R-1 religious workers for the next six months. See the above page for details.

• Students - For the past three years, the number of international students (on F-1, J-1 and M-1 status) studying in U.S. universities fell. Finally, this year, the number of new foreign students increased according to a report released on November 13 by the Institute of International Education. The total number of international students is over half a million, and the biggest sending countries are India with over 76,000 students and China with more than 62,000. We link to a press release regarding the new report at
  http://opendoors.iienetwork.org/?p=89251

• USCIS Today - We link to the most recent issue of "USCIS Today", the CIS newsletter, from our "CIS" page at
  http://shusterman.com/ins.html#2A

• Visa Bulletin - To view the December 2006 Visa Bulletin, see our "Visa Bulletin" page at
  http://shusterman.com/vb.html

• Western Hemisphere Travel Initiative - On November 24, a DHS/DOS final rule was published which provides that, with limited exceptions, beginning on January 23, 2007, all U.S. citizens and nonimmigrants from Canada, Bermuda, and Mexico who enter or depart the U.S. from within the Western Hemisphere at air ports-of-entry will be required to present a valid passport. See
  http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-9402.pdf

CONTENTS:

1. Immigration Legislation: The "Lame Duck" and Beyond

From the opposite side of the political spectrum, New York Times columnist Frank Rich stated that "nationwide, the Republican share of the Hispanic vote fell from 44 percent in 2004 to 29 percent this year (2006). Hispanics aren't buying Mr. Bush's broken-Spanish shtick anymore; they saw that the president, despite his nuanced take on immigration, never stood up forcefully to the nativists in his own camp when it counted most, in an election year."

Anti-immigrant actions and rhetoric did not resonate with voters in the November election. A case in point: The Chairman of the House Immigration Subcommittee, a veteran Republican in a conservative district in Indiana lost his seat by double-digit margin. Even in Arizona, the Democratic governor, attacked as soft on illegal immigration, was reelected while a longtime Republican congressman who made attacking illegal immigration his battle cry lost his seat. Also unsuccessful was a member of the "Minutemen" who sought to use his opposition to illegal immigration to propel himself into the House of Representatives.

Is it any wonder that Senator Mel Martinez (R-FL) was named as the first Hispanic to head the Republican National Committee immediately after the election?

The new Congress will feature Chairmen of the Senate and House Judiciary Committees who are strongly on record in favor of comprehensive immigration reform, Senator Patrick Leahy (D-VT) and Congressman John Conyers (D-Mich).

Most importantly, a vote in the House of Representatives on comprehensive immigration reform will finally take place, and it is clear the majority of House members are in favor of such a plan. The old Republican House leadership had refused to allow a vote on such a proposal or even to convene a conference committee with the Senate to hammer out a compromise bill.

We link to a press release from the National Immigration Forum entitled "The Surprise Winner in This Year's Election is...Comprehensive Immigration Reform" at

There is some speculation that Congress may pass legislation benefiting highly-skilled workers before adjourning. On November 13, the day that the lame duck session convened, two letters signed by over 1,000 employers, research institutions and industry trade groups requesting more H-1B and EB visas were sent to each member of Congress. We link to these letters at

President Bush has met with leaders of both parties in the House and Senate about comprehensive immigration reform, and is optimistic about cooperating with the Democratic majority on this issue.

Senator Kennedy (D-MASS), the incoming Chairman of the Senate Subcommittee on Immigration declared earlier this week that "the dynamics are right. With a new Congress, we have an opportunity to pass our plan to secure our borders, uphold our laws, and strengthen our economy."

The bottom line? The operative word regarding comprehensive immigration reform has now changed from "if" to "when".

2. A Better Alternative to the New CIS Web Site

We were, therefore, surprised when, on November 1, the CIS announced that the agency had launched its "new and improved" web site. See

For example, from our "Premium Processing" page at

The problem is that none of the internal CIS links actually work!

What's more is that the design of the new web site only allows users to view a maximum of two or three inches of material on their screen at one time. The "headers" and the "footers" on the new site take up most of the room on your computer screen. This was not true on the old site. The CIS webmaster should consider modifying the design of the new site to make it more user-friendly.

We are grateful that CIS has preserved their "old web site" online at

Since the old CIS site may be gone by the time that you read this, how do you find the immigration information that you need?

All during November, we explored the new CIS web site, and by using the Search Engine and the Site Map, we were able to locate the most useful information on the government's site. Most of the information you seek is there. It's just hard to find.

In order to assist you, we created over 500 links to the new CIS site. Since our web site is neatly divided into categories such as "Temporary Visas", "Green Cards", "U.S. Citizenship", "Deportation", "Immigration Legislation", etc., it is relatively simple to navigate. Instead of searching for hours to locate what you need on the new CIS site, we recommend that you quickly locate the general category on our site, and then click the appropriate link to the CIS web site to find the information that you require.

Try it. You'll be glad that you did!

Want to provide feedback regarding the new CIS web site? E-mail your comments to uscis.webmaster@dhs.gov and, if you wish, cc: us at opinto@shusterman.com

3. CIS Web Site to Link to Certified Immigration Specialists

With over 10,000 attorney members of the American Immigration Lawyer Association (AILA), you certainly have a lot of choices. Remember, however, that any attorney who pays his membership dues can join AILA. AILA membership is not a guarantee of quality.

Fortunately, most immigration attorneys have web sites, and you can read about their accomplishments and successes. However, don't expect attorneys to advertise their failures on their web sites!

Nevertheless, you can use attorney web sites to find the following information:

• How many years have they been practicing immigration law?

• Do they primarily specialize in cases involving employment-based visas, or do they mainly concentrate on deportation defense, asylum and family-based cases?

• Have they ever worked for the Immigration Service?

• Have they achieved any significant distinctions? An "AV" ("A" for the highest in competence and "V" for very high ethics) rating on www.Lawyers.com is very impressive. Have they been voted by their colleagues as "SuperLawyers" or are they listed in "Best Lawyers in America"?

• Finally, be aware that the State Bar Associations of California, Texas, Florida and North Carolina all have a rigorous system of determining which lawyers qualify as "Certified Specialists in Immigration and Nationality Law".

Now, we are pleased to announce that the CIS has decided to follow our suggestion and include links to the web sites of the pages which certify immigration specialists. See the letter, dated November 6, from Alfonso Aguilar, CIS' Chief of the Office of Citizenship to me at

• California:
  http://calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=11584

• Florida:
  http://www.flabar.org/tfb/TFBMember.nsf/ED6E4BCB92A8FE1B852567090069F3C2/531C6693366E680985256B2F006C6A60?OpenDocument

• North Carolina:
  http://www.nclawspecialists.org/

• Texas:
  http://www.tbls.org/

Here is what the State Bar of California says: "The more complicated your situation, the more reason to consider hiring an attorney who specializes in Immigration and Nationality Law and who is committed through certification to keeping up her or his proficiency through continual practice and continuing education." See

4. Success Story: Persistence and Patience Pay Off

Initially the poorly-trained, ill-supplied, and badly-led conscripts of the Russian army proved incapable of suppressing determined Chechen opposition, both in the capital and in the countryside. Although both sides entered into a peace treaty in 1996, it came at a cost of hundreds of thousands of casualties combined to both the Russians and Chechens.

Our client, Ms. A is originally from Chechnya. She entered the United States during the first Chechen war, after receiving a scholarship to attend courses at a U.S. University. She later returned home to visit her parents and re-entered the U.S. on an F-1 student visa. She earned a university degree.

By the time Ms. A had completed her education, the second Chechen war was beginning. Russian forces and Chechen militia were again engaging in brutal conflicts. More civilians lost their lives, and her home city of Grozny was decimated. Her parents, along with many other Chechen families, fled the country and sought refugee status in Europe.

With no home to return to in Chechnya, Ms. A applied for asylum in the United States with the assistance of an attorney. Her application was referred to the Immigration Court and where it was denied by an Immigration Judge. She filed an appeal of this decision with the Board of Immigration Appeals. During this time, Ms. A was lawfully employed at a large U.S. company, where she met her husband, a U.S. citizen. After their marriage, the couple retained a new attorney to assist them with her immigration case. This attorney succeeded in obtaining a remand from the Board of Immigration Appeals so that she could apply for adjustment of status based on her marriage.

Unfortunately, an important detail was overlooked by Ms. A's previous attorneys. When she first came to the United States, she entered with a J-1 visa. Frequently, J-1 visa holders are subject to the so-called two-year home residence requirement. This requirement mandates the J-1 visa holder to return to his or her home country for a period of two years before he or she can adjust status. Ms. A was never notified by her attorneys that this requirement applied to her, and that it would prevent her from adjusting her status. It came as quite a surprise when the Judge, at Ms. A's next hearing, stated that she was ineligible to adjust status, and must either satisfy the two-year requirement, or obtain a waiver from the USCIS.

Distraught, Ms. A and her husband came to our office seeking assistance and fearing that she would be deported. Our office immediately prepared an application for a waiver of the two-year home residence requirement based on exceptional hardship to Ms. A's husband and their newly-born son. Given the warlike conditions prevailing in Chechnya, we were hopeful that this application would be treated favorably. We were mistaken in our assumption that the U.S. government would not force a person to return to a home that was decimated by aerial attacks. USCIS took little time to deny her application, stating that Ms. A's husband and son would not experience exceptional hardship if she was forced to return to "Russia" for two years. Obviously, the officer who denied the case had no clue that a war was going on.

We filed an appeal to the Administrative Appeals Office (AAO), and emphasized the USCIS' erroneous conclusion that Ms. A could simply relocate to any region in the Russian Republic. It is clear that a J-1 visa holder must return to his or her last country of residence in order to fulfill the requirement. Contrary to the USCIS's assumption, strict residence limitations in Russia would force Ms. A to return to Chechnya, this time as the wife of an American. To further exacerbate the hardship, Ms. A is Muslim and her husband is Catholic. The on-going ethnic and religious violence in the republic would be a source of grave concern to her husband, who would rightfully fear for her life, and if he joined her, for his life and that of their infant son. Numerous other compelling factors were highlighted to the AAO in our lengthy appeal.

While her waiver appeal was pending at the AAO, the Immigration Judge refused to allow a further continuance of her case, and again ordered Ms. A. removed from the U.S. For the second time, she appealed the Judge's removal order to the Board of Immigration Appeals.

Nearly a year after we appealed the waiver denial, the AAO ruled in Ms. A's favor. The decision explicitly recognized that the conditions in her native Chechnya were sufficient to support the granting of Ms. A's exceptional hardship waiver. Several more months passed before the Department of State issued their favorable recommendation on her application. Ms. A's persistence and determination allowed us to celebrate with her on the day she finally received an approval notice from USCIS.

Her saga was not yet over as her removal case was still on appeal with the Board of Immigration Appeals. Our office filed a request to have her case remanded in light of the recent approval of her waiver. The Board granted our motion and sent her case back to the Immigration Judge for the second time.

This time Ms. A was equipped with a waiver approval when she appeared in Immigration Court to seek adjustment of status. The government received several continuances to allow for the completion of the necessary background checks. Nearly three years after she retained our law firm to represent her, and almost a decade after her immigration saga began, the judge granted lawful permanent resident status to Ms. A.

At long last, her patience with our immigration system finally paid off.

To read more of our Immigration Success Stories, see

5. Immigration Trivia Quiz: Polynesian Power

It concerns a new documentary film chronicling the rise of Polynesians in the National Football League. Things have come a long way since "Lava-Lava Lenny" from the "Doonesbury" cartoon strip, broke into professional football in the 1970s.

I had some pleasant interactions with persons from American Samoa when I worked for the INS. I learned to enjoy eating taro, a Samoan staple, and to communicate with the Samoan "talking chiefs".

Much to my dismay, I also learned U.S. immigration laws have divided many Samoan families some members of which were born in American Samoa, a possession of the U.S., and others who were born in Western Samoa, an independent country.

Try your hand at this month's immigration trivia quiz. You could win a free legal consultation. See

6. Ask Mr. Shusterman: Extending Your H-1B Status Past 6 Years

So, beginning in this month's newsletter, we will select one question which is general in nature and whose answer will help hundreds of our subscribers.

This month's question is as follows:

Question: How can I extend my H-1B status for more than 6 years?

Answer: You may extend your H-1B status for more than 6 years under the following circumstances -

1. If you left the U.S. during the 6-year period, you may apply for an extension of H-1B status, and ask the CIS for permission to "recapture" any time that you were outside the U.S. for any reason. For example, if you took a two-week vacation to your country, your job sent you abroad for a total of two months, and you honeymooned outside the U.S. for one week, then you have been outside the U.S. for a total of approximately 11 weeks. None of this time is counted against your 6 years. As long as you can document this, you can request that the CIS extend your H-1B status for 11 additional weeks.

2. The American Competitiveness in the 21st Act of 2000 (AC-21) provides that in the case of long-delayed applications, principally labor certifications and immigrant visa petitions, which have been pending for one year or more, the beneficiary can extend his H-1B status on a yearly basis until such time as his green card application is decided.

3. Another section of AC-21 provides that if a person has an approved immigration visa petition, but cannot have his application for adjustment of status decided because there are no available visa numbers (think "retrogression"), the person may apply for H-1B extensions in 3 year increments.

   Do you have immigration questions? Send them to my assistant, Sonya Canton at

   scanton@shusterman.com
   Each month we will choose one question to answer in our newsletter. 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, you may wish to schedule a 30-minute legal consultation with me at

7. Official Immigration Government Processing Times