The worldwide EB-2 category remains current (no backlog), but while EB-2 PRC advances 8 weeks, EB-2 India does not move at all.

The Senate CIR bill would eliminate all per-country EB quotas. Write your Senators and Representatives now, and ask them to support this important modification to our broken immigration system!

The worldwide family-based preference 2A category moves forward almost 4 months while the F4 sibling category which remains at May 1, 2001. Other worldwide family-based categories advance between 3 and 7 weeks. Family categories for the Philippines advance somewhat faster especially the F1 category which sprints ahead 7 months. Family-based waiting times for Mexico barely advance at all.

The charts below tell the story in more detail:

FAMILY CATEGORIES

EMPLOYMENT CATEGORIES

See the entire visa bulletin including information about the movement of the green card lottery numbers.

The post June 2013 Visa Bulletin appeared first on Shusterman.com.

Below are the eligibility guidelines (in abbreviated form) for persons wishing to legalize their status, and then to apply for permanent residence and for U.S. citizenship.

Eligibility for Registered Provisional Immigrant (RPI) Status:

1. Must be unlawfully present in the U.S. either because of an illegal entry to the U.S. or because of a visa overstay
2. Must have been present in the U.S. on December 31, 2011
3. Continuous physical presence in the U.S. since that time
4. Pass background check
5. No convictions for felonies or for 3 or more misdemeanors
6. Waivers available for certain criminal convictions
7. Expunged offenses are not considered convictions
8. Pay back taxes
9. Pay filing fees and $500 fine
10. Unlawful presence bars do not apply

Registered Provisional Immigrant (RPI):

1. Initially, status is valid for 6 years
2. Includes person’s spouse and children
3. Work and international travel authorization
4. Cannot be absent from the U.S. for over 180 days unless there are extenuating circumstances

Renewal of RPI:

1. New background check
2. Regularly employed
3. Must be continuously employed or must have resources equal to 125% of poverty guidelines unless RPI is a full-time student.  Limited exceptions based on age and disabilities
4. Pass English examination
5. Pay filing fees and $500 fine
6. Unlawful presence bars do not apply

RPI to Green Card:

1. After 10 years as RPI, may apply for adjustment of status
2. Heightened income requirement
3. Employment & family backlogs eliminated
4. Border security triggers are met
5. Pay filing fees and $1,000 fine
6. Unlawful presence bars do not apply

U.S. Citizenship

1. May apply 3 years after obtaining green card

DREAMer’s – Special Benefits

1. Came to U.S. prior to 16^th birthday
2. Completed high school in U.S.
3. No maximum age
4. May apply for RPI under DREAM Act
5. May apply for green card after 5 years (includes persons granted DACA)
6. May apply for U.S. citizenship immediately after green card

Agricultural Workers – Special Benefits

1. Must make substantial commitment to agricultural work
2. May apply for Agricultural Card
3. May be Eligible for Adjustment of Status
   1. Fulfill Agricultural Card work requirements
   2. May apply for green card after 5 years
   3. Pay taxes
   4. No serious criminal record
   5. Pay filing fees and $400 fine

The post Pathway to US Citizenship appeared first on Shusterman.com.

The number of family-based preference green cards would fall from 226,000 to 161,000 annually. However, by expanding the immediate relative category, the bill would increase family-based immigration.  In addition, all unused family-based numbers from fiscal years 1992 to 2013 would be added to the fiscal year 2015 quota which starts on October 1, 2014.

The worldwide level for family-based immigrant visas would be allocated as follows:

1)  Unmarried sons or daughters of U.S. citizens  –  35%

2)  Married sons or daughters of USCs under 31 years of age at the time of filing – 25%

3)   Unmarried sons and daughters of LPRs – 40%

Persons in the 2A preference category (spouses and children of lawful permanent residents) would be added to immediate relative category (joining parents, spouses and children of U.S. citizens) and would not be subject to numerical restrictions.  If they entered the U.S. lawfully, they would be permitted to apply for adjustment of status even if they overstayed their temporary status or worked without authorization.

The bill would allow the derivative beneficiaries of immediate relatives to obtain permanent residence along with the principals.  Example: Currently, if an adult U.S. citizen sponsors his parents and his 10-year-old sister for green cards, only the parents are considered immediate relatives and may immigrate without numerical limitations.  The sister must be petitioned under the 4^th preference category and is subject to the numerical restrictions. She will be separated from her parents and will have to wait many years to qualify for a green card.  Under the bill, the sister would be considered a derivative beneficiary of her parents and would be able immigrate together with them.

The per-country cap would be raised from 7% to 15%.  This would greatly benefit persons born in the Philippines and Mexico who currently are subject to the longest family-based waiting times.

The bill would restrict the filing of new petitions under the 3^rd preference category (married sons and daughters of U.S. citizens) so that parents would be limited to sponsoring only their married sons and daughters who are 30 years old or younger on the date that the petition is filed with the USCIS.

The bill would completely eliminate the filing of new petitions under the 4^th preference category (brothers and sisters of U.S. citizens).

Since these changes only apply to future petitions, if you are a U.S. citizen, the time to sponsor your married sons and daughters and your brothers and sisters is now before the bill becomes law.

Currently, stepchildren are allowed to be sponsored only if the marriage creating the stepparent relationship occurred before the child’s 18^th birthday.  The bill would change this to the child’s 21^st birthday.  Also, the age requirement for an adopted child is raised from 16 to 18.

Children who age-out of derivative beneficiary status after performing the calculation specified in the Child Status Protection Act would retain the priority date of the original petition and would automatically convert to the 2B category as soon as their parents are admitted as permanent residents.

In addition, the bill would allow the following beneficiaries of approved family-based petitions to obtain “V” visas to live and work in the U.S. while waiting for their priority dates to become current:

1)  Unmarried adult sons and daughters of U.S. citizens and permanent residents; and

2)  Married sons and daughters of U.S. citizens who were 30 years old or less when the petition was submitted.

The post CIR Bill Would Create New Family-Based Immigration System appeared first on Shusterman.com.

Added to the current 140,000 annual cap on EB numbers would be a recapture of unused numbers from fiscal years 1992-2013 starting in fiscal year 2015 (which begins on October 1, 2014).  In the future, unused EB numbers would roll over into the next year’s quota.

Gone would be the 7% per-country quotas which have placed highly-educated professionals from India and China in seemingly never-ending lines for green cards.

Significantly, the following groups of individuals would no longer be subject to quotas:

1)    Spouses and children of EB immigrants

2)    EB-1A persons of extraordinary ability

3)    EB-1B outstanding professors and researchers

4)    EB-1C multinational executives and managers

5)    Persons holding a doctorate degree in any field

6)    Physicians

• Who have completed their 2-year home residency requirement
• Who have received an Interest Government Agency J waiver
• Included are MDs who completed their service requirement before the enactment of this law

7)    Persons with an advanced STEM degree from a U.S. university

• Who have an offer of employment in the U.S. in a related field; and
• If they earned their degree within 5 years of the petition filing

8)    The 10,000 cap on unskilled workers in the EB-3 category is abolished

In addition, a person with an advanced STEM degree (from any university) would be eligible for a National Interest Waiver, and would not have to undergo the PERM process.

The Department of Labor would charge a $500 fee for all new PERM applications.

Here is how the EB immigrant visas would be allocated:

EB-2:  40% (56,000 + recaptured visas) plus any unused EB-5 numbers

EB-3:  40% (56,000 + recaptured visas) plus any unused EB-2 numbers

EB-4:  10% (14,000 + recaptured visas) plus any unused EB-3 numbers

EB-5:  10% (14,000 + recaptured visas) plus any unused EB-4 numbers

Premium processing would be available for all EB petitions and appeals from denials of EB petitions.

Children who age-out of derivative beneficiary status after performing the calculation specified in the Child Status Protection Action would retain the priority date of the original petition and would automatically convert to the 2B category as soon as their parents are admitted as permanent residents.

The Diversity Visa Lottery would be abolished after the 2014 fiscal year. A merit-based point system would be created for 120,000 to 250,000 EB immigrants annually for the first four years after the bill is enacted into law.  We will discuss this program, as well as other proposed changes in the employment-based system, in future articles.

The post CIR Bill Would Create New Employment-Based System appeared first on Shusterman.com.

The worldwide EB-2 category remains current (no backlog), but while EB-2 PRC advances 6 weeks, EB-2 India moves not at all.

Hopefully, Congress will eliminate all per-country quotas for EB workers this year. After all, talent is talent!

The worldwide family-based preference categories move forward between 2 and 10 weeks except for the F4 sibling category which remains stuck in time at May 1, 2001. Family categories for the Philippines advance from 3 to 14 weeks while those for Mexico move ahead between 1 and 9 weeks.

The charts below tell the story in more detail:

FAMILY CATEGORIES

EMPLOYMENT CATEGORIES

See the entire visa bulletin including information about the movement of the green card lottery numbers.

The post May 2013 Visa Bulletin Rocks (for Some) appeared first on Shusterman.com.

On March 8, the USCIS published the 7th edition of a two-page Employment Eligibility (I-9) form. The passage of the Immigration Reform and Control Act of 1986 made the form mandatory for all new hires.  The new form may be used by employers now and becomes mandatory on May 8, 2013.

Until now, the I-9 has always been a one-page form.  However, it is probably the most complex and misunderstood one-page form ever issued by the Federal Government.

Employers should take care to avoid mistakes when completing the form since even simple paperwork fines can range from $110 to $1,100 per violation and several companies have had to pay multimillion dollar fines.  Some employers have been subject to criminal penalties including jail time for knowingly hiring undocumented workers and keeping them on the payroll.

The aim of the new I-9 form is laudable, to clear up many of the ambiguities that have existed in the past:  How should persons with temporary visas complete Section One?  What should employers do in Section Two if they are presented with a receipt instead of a listed document?  How does one perform the reverification process in Section Three?

Besides, its new two-page format (three including a page entitled “Lists of Acceptable Documents”), the instructions are now 5-6 pages in length.  In addition, the USCIS has updated its Handbook for Employers.  The new Handbook is 70 pages long.

Changes in the Form

On the new form, page one must be completed by the new hire while page two is solely the employer’s responsibility.

Section One now gives new hires the option of providing their telephone numbers and e-mail addresses. The Department of Homeland Security (DHS) plans to use this information to contact an employee whose information on the I-9 does not match DHS or Social Security records.   If workers choose not to complete these fields, they should write “N/A”.

Certain foreign nationals who are not lawful permanent residents of the U.S. may be required to list the country of issuance of their passports and their passport numbers on the I-9.  The rules regarding this subject are complicated, and employers will want to read both the instructions and the handbook carefully, and consult with their attorneys where necessary.  In general, the passport information is required if the person’s I-94 Arrival-Departure document was issued by the Customs and Border Protection (CBP) agency when they arrived in the U.S.  However, if they extended or changed their status or their employer and their I-94 was issued by the USCIS, they should write “N/A” in these fields.

It’s Complicated

Since these are new requirements, it is not yet clear how the government will classify errors.  Errors which are classified as “procedural” means the government will not impose fines on the employer.  The government will, however, fine the employer if they classify the error as “substantive”.

When completing I-9 forms, both the old and the new, employers are faced with a formidable task.  Many of the fields on the forms are far more complex than they appear.  Below are a few examples:

In Section One, how many employers or new hires know what a “noncitizen national” is?  Almost zero.  The instructions to the new form define this term as follows: “Noncitizen nationals of the United States are persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands and certain children of noncitizen nationals born abroad.”  Unlike the old instructions, the USCIS has, at last, defined the term.  However, this definition is about as clear as mud.  The use of the words “certain” and “former” make this definition ambiguous.  Are new hires and employers expected to know the definition of “former Trust Territory or the Pacific Islands”?  They can always look this up on Wikipedia and learn about “Chuuk, Yap, Kosrae and Pohnpei”.  Seriously!

Few employers know that new hires need not list their Social Security numbers in Section One.  Unless, of course, the employer is part of the E-Verify system, in which case the listing of the Social Security number is mandatory.  The new instructions make this clear.

Because the penalties for noncompliance are so severe, many employers lean over backwards in attempting to comply with these complex rules.  Ironically, these efforts are often to the employer’s detriment.   The Justice Department’s Office of Special Counsel has fined numerous employers, some over $100,000, for demanding too many documents from new hires and for discrimination.

In the world of I-9s, things that may seem obvious often are not.  For example, if a new hire is a Conditional Permanent Resident, his permanent residence expires after two years.  Shouldn’t the employer reverify his employment authorization before it expires?   Simple logic says “yes”, but the instructions say “no”.   If the employer does so, it is violating the law.

And once the discussion shifts to temporary working status, there is little in the law or the regulations to guide employers.  So, in its “Handbook for Employers: Guidance for Completing Form I-9”, the USCIS must simply resort to making things up.

Virtually every time the agency issues new policy guidance regarding employment authorization, it is forced to invent a method for employers to incorporate this guidance into their I-9 compliance procedures.  For example, consider the “cap-gap”.  F-1 students, upon graduation, can apply to work using “Optional Practical Training” (OPT), usually for one year.  However, students typically graduate and obtain their OPT in June.  If an employer wants to sponsor them for an H-1B temporary professional working visas, this must be done in April, yet their H-1B employment authorization does not begin until October 1^st.  So, what are students supposed to do between the time that their OPT expires in June and when their H-1B starts in October?  Quit their jobs and return to their country?  This is impractical both for the student and for the employer.  So a few years back, the government issued a “cap-gap” memo that permits students employed using OPT to continue to work throughout the summer as long as their employers had submitted H-1B petitions and applications for a change of status on their behalf, and they were either pending or approved.  Great idea on the USCIS’ part, but how is an employer supposed update a student’s I-9 in such circumstances?  Obviously, the employer cannot rely on either the law or the regulations as a guide since the “cap-gap” rule is solely a creature of an agency memo.   So, as usual, the USCIS simply made something up, and employers can find the answer on page 21 of the Handbook.

This is so true with regard to some programs which provide work permits like Temporary Protected Status (TPS). The USCIS often waits until the last minute and simply publishes an item in the Federal Register, automatically extending TPS and work permits.  I often wonder how many Human Resource Directors start each day with a cup of coffee and a copy of the Federal Register with its wide array of new and fascinating Federal regulations.  Virtually zero, I suppose. Yet, when it comes to sponsoring employees for work visas and green cards, the Federal Government is very exacting in requiring employers to place advertisements in newspapers “of general circulation” and posting job notices for a certain number of business days in specified locations.  When comparing how immigration rules impact Federal agencies and private employers, what is good for the goose is not necessarily good for the gander.

Conclusion

If you are an employer with hundreds or thousands of employees, you probably have an experienced Human Resources Manager.  You send him or her to I-9 seminars and make sure that he/she carefully reads the new I-9 form, instructions, the USCIS Handbook, etc.  Also, you probably have an attorney who is well-versed in I-9 issues, and you consult him/her on a regular basis.  You perform regular internal audits to make sure that you are fully compliant with I-9 rules.

It is also a good idea to bookmark USCIS’ I-9 Central and our Employer Compliance Guide, both of which are free online resources.

However, if you are a small business and you have neither the time nor the personnel to do any of this, it’s probably time for you to say a little prayer or sign up for E-Verify, or perhaps, both.

Carl Shusterman

The post Employers Beware: The I-9 Dragon Grows a Second Head! appeared first on Shusterman.com.

Over four years after our law firm sued the USCIS and the State Department in DeOsorio v. Mayorkas to preserve the “automatic conversion” clause in the Child Status Protection Act (CSPA), on September 26, 2012, an en banc (11 judges) panel of the U.S. Court of Appeals for the 9th Circuit, ruled in our favor.

The Court held that CSPA protects the rights of children who age-out during the process of waiting for their priority dates to become current before their parents immigrate under the family-based 3rd (sponsorship by a U.S. citizen parent) and 4th (sponsorship by a U.S. citizen sibling) preference category. The Court held that CSPA clearly allows aged-out sons and daughters to keep the priority date of the 3rd or 4th preference petition, and to immigrate under the family-based 2B (unmarried adult son or daughter of a permanent resident parent) category.

Since this victory, our office has been deluged with questions and requests from immigrants, their children and their attorneys. “Dear Mr. Shusterman, I live in the 9th Circuit, can you handle my case? I am attaching an article by attorney so-and-so that says that I should apply immediately.”

The truth is that it would be reckless for most persons who benefit from the Court’s decision to apply immediately. Why? Because the government has 90 days (until the day after Christmas) to ask request that the Supreme Court of the United States review the decision in DeOsorio.

Let’s take the worse case scenario: You apply for adjustment of status now. In December, the government asks the Supreme Court to review the decision of the lower Court. Then, sometime in 2013, the Supreme Court accepts the case, and then (Let’s hope not!) reverses the 9th Circuit. Should this occur, the USCIS will deny your application and you may find yourself under deportation proceedings.

Meanwhile, you have paid several thousand dollars in attorney and government filing fees. Is it worth it? I think not.

I recommend that you hold off applying for CSPA benefits at least until the day after Christmas. If the government does not request Supreme Court review, then we can all pop open the champagne, and I will be pleased to prepare your application for adjustment of status.

What if you are legally present in the U.S. or are residing abroad?

You will not be risking deportation if your application is ultimately denied, but you will be wasting a lot of money. Again, my advice is to wait and see what the government does. The administration is supposedly pro-immigrant, so I would hope that they would simply abide by the present decision which keeps nuclear families united.

Back in 2006 when our law firm won a case in the 9th Circuit Court of Appeal, Schneider v. Chertoff, which benefits foreign-born physicians who seek green cards through national interest waivers, the government simply implemented the decision without going to the Supreme Court. Let’s hope that the Obama Administration will do the same in DeOsorio.

Is there anyone who should seek to benefit from the DeOsorio decision immediately? I can think of one class of persons who should: Those who are already in deportation proceedings, and who have nothing to lose.

In the meantime, I will do my best to keep you informed about when it is safe for you to apply for benefits under CSPA, and who benefits from our victory in DeOsorio.

Carl Shusterman

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Since we originally challenged the government’s failure to implement the “automatic conversation” clause of the Child Status Protection Act in 2008, it looks like this litigation may drag on for yet another year.

What follows is an article which explains the “automatic conversion” clause, and summarizes the federal litigation in this matter:

1.       What is the automatic conversion clause?

It was written into the law by Congress in 2002, but has never been implemented.  In fact, until almost a year after multiple lawsuits were filed in Federal District Court, the government never even attempted to explain what the clause meant and what its benefits were.

It is codified as section 203(h)(3) of the Immigration and Nationality Act, and reads as follows:

“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.”

2.       What does the automatic clause mean in simple English?

Here one example is worth 1,000 words.

Maria Garcia was born in Mexico.  In 1983, her U.S. citizen aunt submitted I-130 visa petition for her mother under the family-based 4^th preference category.  The petition was approved on the same day that it was filed.  At that time, Maria was 9 years and was entitled to benefit under this petition as a “derivative beneficiary”, that is, as her mother’s child.

However, by the time that a visa number became current in 1996, Maria had “aged-out”.  That is, she was over 21-years-old and under the pre-CSPA law, was no longer eligible to adjust her status to permanent resident along with her mother.  Her mother filed a 2B visa petition for Maria in 1997.

Maria applied for adjustment of status under section 245i in 1997.  The INS/USCIS held on to her application until 2004, two years after the enactment of CSPA, when it denied her application and placed her under removal proceedings.

In 2005, Maria, still unmarried and 32 years of age, renewed her application to adjust status in Court.  The Immigration Judge ruled that she was no longer her mother’s “child” and denied her application.  He held that CSPA did not apply to visa petitions filed prior to the day of the law’s enactment on August 6, 2002.  

Maria appealed the Judge’s decision to the Board of Immigration Appeals (BIA) which ruled unanimously in her favor.  The BIA ruled that CSPA, by its very words, applies to applications for adjustment of status which were pending on the date that the law was enacted.

With regard to the automatic conversion clause, the panel held that Maria was entitled to “retain” the original 1983 priority date and as the unmarried, adult daughter of a lawful permanent resident, her mother’s petition for her  was “automatically converted” to 2B category, and she was permitted to adjust her status.

This case was published by the BIA as a nonprecedential case, Matter of Garcia.

3.       Why were we forced to sue the USCIS in 2008? 

We had filed a number of I-130 petitions under the 2B category on behalf of children who “aged-out” after waiting for many years in line with their parents under the family-based 3^rd (married sons and daughters of U.S. citizens) and 4^th (brothers and sisters of U.S. citizens) preference categories.

In each case, we requested that the government apply the automatic conversion clause of CSPA, and accord these sons and daughters the priority date of the original 3^rd or 4^th preference petitions.  However, the government refused to do so, and did not promulgate regulations under CSPA or even issue a memo explaining their interpretation of the automatic conversion clause.

Again, an example illustrates the problem:  Elizabeth Magpantay, a Filipina, was petitioned by her father, a U.S. citizen, in 1991.  At that time, she and her husband had 4 small children.  However, by the time her priority date became current in 2005, 3 of her children had aged-out and she was forced to leave them behind when she immigrated to the U.S.   Although, she has petitioned for them to join the rest of their family under the 2B category, the USCIS has refused to follow CSPA and accord her children the 1991 priority date.  Unless the government does so, her children will not be able to join the family in the U.S. for over 20 years.  It would be even worse if the family were from Mexico since the wait for Mexicans exceeds 100 years!

On June 2008, Reeves & Associates filed a class action lawsuit against the USCIS for not granting benefits under the automatic conversion clause.  The same month, our law firm filed a similar lawsuit.  Later, both lawsuits were consolidated.

4.       What happened in the Federal District Court?

After we both filed our complaints, the government moved to dismiss both lawsuits.  The government also requested, in the alternative, that the Judge hold the cases “in abeyance” because they had knowledge that the BIA was about to issue a precedent decision regarding CSPA’s automatic conversion clause.  The Judge postponed the cases for many months during which the BIA failed to issue a decision.  Finally, just after the Judge placed the cases back on his calendar, the BIA issued its decision in Matter of Wang which failed to follow the Board’s earlier non-precedent decision in Matter of Garcia and which greatly restricted the operation of the automatic conversion clause.  The Federal Judge deferred to Matter of Wang, and dismissed both lawsuits as well as several other similar lawsuits.  We appealed the Judge’s decision to the U.S. Court of Appeals for the 9^th Circuit.

5.       What happened in the Court of Appeals?

Initially, a three-judge panel dismissed the consolidated lawsuit in 2011 and deferred to the Board’s decision in Matter of Wang.  However, less than a week after this ruling, the U.S. Court of Appeals for the 5^th Circuit in Texas, in Khalid v. Holder, ruled for the immigrant in an automatic conversion case, creating a circuit split.

We then submitted a Petition for a Rehearing En Banc to the 9^th Circuit (The government did the same in the 5^th Circuit, but their motion was denied.) which was granted.  We participated in Oral Arguments in June 2012 and on September 26^th, the Court ruled in our favor.

However, on January 25, 2013, the U.S. Department of Justice submitted a Petition for a Writ of Certiorari with the Supreme Court of the United States.

6.       What is the government’s argument to the Supreme Court?

The government argues that the language of the statute is unclear despite the fact that all three U.S. Courts of Appeals that have ruled on this issue have held that the language is clear and unambiguous.  Two of the three circuits, the 5^th and the 9^th Circuit, ruled for the immigrants, while the 2^nd Circuit, in Li v. Renaud, ruled for the government.

It is well-established that the existence of a Circuit split does not necessary render the words of a statute ambiguous.  Per the 9^th Circuit opinion in DeOsorio v. Mayorkas:

“The existence of a circuit split does not itself establish ambiguity in the text of the CSPA. See, e.g., Roberts v. Sea-Land Servs., Inc., 132 S. Ct. 1350 (2012) (holding that § 906(c) of the Longshore and Harbor Workers’ Compensation Act is unambiguous notwithstanding disagreement between the Fifth, Ninth, and Eleventh Circuits about its meaning); Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012) (holding that the term “individual” as used in the Torture Victim Protection Act unambiguously encompasses only natural persons despite disagreement among several Circuits); see also Reno v. Koray, 515 U.S. 50, 64-65 (1995) (“A statute is not ‘ambiguous for purposes of lenity merely because’ there is ‘a division of judicial authority’ over its proper construction.” (quoting Moskal v. United States, 498 U.S. 103, 108 (1990)).”

However, assuming the government were able to convince the Justices that the language of section 203(h)(3) is ambiguous, they would then urge the Court to defer to the BIA’s decision in Matter of Wang.

This would also be a hard sell since none of the three Courts of Appeals which considered this issue deferred to Matter of Wang.  The holding in Wang is deficient in many respects.  The two-step Chevron test which the Federal Courts apply when an administrative agency has ruled on an issue is as follows:

Step #1 – “First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress.”

Step #2  – “ [I]f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency’s answer is based on a permissible construction of the statute.”

In my opinion, applying the Chevron analysis spells big trouble for the government.  First, because the so-called ambiguity in the statute according to the BIA was that it did not specify what petitions section 203(h)(3) of the INA applies to.  However, the 9^th Circuit and the 5^th Circuit clearly demonstrated that section 203(h), when read as a whole, applies to all family-based and employment-based visa petitions.

Second, even if government persuades the Justices to reach Chevron, Step #2, there is no reason to expect the Court to defer to a decision as deeply flawed as Matter of Wang.

Both Wang, and the Justice Department, misstate the intent of Congress in passing CSPA.   CSPA is not designed merely to rectify “administrative delays”, but also to grant benefits to those who experience delays in waiting for their priority dates to become current.  Both the BIA and the DOJ selectively quote from the legislative history of CSPA.   They neglect to mention that Senator Feinstein, in introducing CSPA in the Senate, specifically referred to “growing immigration backlogs” in addition to administrative delays as the rationale behind CSPA. They also ignore section 6 of CSPA which allows sons and daughters to “opt-out” of the 1^st preference category if the 2B line would be shorter even though their parents have naturalized.  This certainly has nothing to do with “administrative delays”.

Also, both Wang and DOJ, despite the obvious anti-immigrant implications of their interpretation of the law, claim that their purpose is rather to protect those persons waiting patiently in the 2B line for their green cards.  This, of course, is a policy argument entrusted to the legislature rather than to the judicial branch of government.

As stated above, the opt-out provision of CSPA allows persons in the 1^st preference line to immigrate under the 2B category.   This undercuts Wang’s conclusion that to apply the automatic conversion to all family-based visa petitions would unlawfully allow certain sons and daughters of permanent residents to cut in line.  Congress has the authority to allow persons to change categories and be given credit for the time that they stood in another line.  In fact, the various regulations cited by BIA in Wang and by the DOJ in their petition allow persons to convert from one category to another and be given credit for the time that they already stood in line.  This not only includes 8 C.F.R. 204.2(i) and (a)(4), but is also required by a host of immigration laws citied in our legal briefs:  the Western Hemisphere Savings Clause, the Patriot Act, the Immigration Nursing Relief Act and the Violence Against Women Act.

Finally, we have spent much of the past 4 ½ years arguing with the government over the meaning of “automatic conversion” and “retention”.  We won’t do so here. Suffice to say that the both the BIA in Wang and the DOJ would regard both as magic words with fixed and unchanging meanings based on a particular regulation.  Congress, in their view, has no authority to innovate.  We believe no such thing, and using the usual rules of statutory construction, both the 9^th and the 5^th Circuits agree.

One can only wonder why an Administration which recently promulgated the new Provisional Waiver policy in order to minimize the separation of immigrant families would continue to fight for restrictive interpretations of pro-immigrant family laws in the Federal Courts?

This is anyone’s guess, but perhaps the final few pages of the DOJ’s petition provide a clue.  The petition pleads with the Supreme Court to reverse the 9^th Circuit’s ruling.  The ruling would “place a tremendous administrative burden on the responsible agencies”.  Ah, ha!  Unless the Supreme Court intervenes, the immigration agencies will be forced to do their job under the law.

Carl Shusterman

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When I was three years old, I was brought to California undocumented by my parents in pursuit of a better life, the American Dream. I attended school in California from preschool all the way through college. During high school I met Ryan, the man who is now my husband.

Early in our relationship I told Ryan about my immigration status because I felt like we had something good going and I wanted to be honest with him. His response to that news was “I love you and that’s not going to change over something like that.” We continued dating, and four years later when he asked me to marry him I said “Yes!”  We decided to try to change my legal status in the country because Ryan was constantly worried about me with all the deportations that were taking place.

One of Ryan’s co-workers had married an undocumented immigrant as well, and they recommended us to the notario who had helped his wife with her paperwork. Neither Ryan nor I had any clue on how to go about the process, so we decided to contact the notario and let her take care of the paperwork that needed to be done. We were confident that everything was going to be okay as I was brought to the U.S. as a child, had lived in California for 20 years, was a good student, a blood donor and did community service. We never even imagined the nightmare that was approaching.

Everything seemed to be going just fine up until the date of my interview in Ciudad Juarez, Mexico. When I was called up to the window, I was asked about how I met my husband, what kind of job he had and so forth. The last question I was asked was if I had ever left the U.S., and I answered, “Yes, when my uncle died and we took his body to Mexico for burial.” I was not sure of the exact date, but they asked me to estimate, so I said when I was about ten. As it turns out, I was actually nine, which made all the difference on whether I got to come back home or not.

My interview was over then and there, and I was handed a sheet informing me that I was given a ten-year ban from reentering the U.S. without the option to submit a waiver. I was so confused! My interview took only about five minutes, and in those five minutes, my whole life had turned upside down. I left the premises and called the notario. When I told her what had happened and tried to get some sort of explanation, she said she would call me back. I never heard from her again.

When I told Ryan, he was devastated and just as confused as I was. We didn’t know what was going on, as we had been told by the notario that everything was going to be okay and I was going to be back home in no time. The following days were kind of a blur, as we didn’t know what to do or who to talk to. Ryan came back to California to look for help while I stayed at an aunt’s house in Mexico (who I hadn’t seen in many years) trying to find help on the internet.

A few days after being in Mexico, I found out I was pregnant and could not believe it. I had had a miscarriage a year before and now I was pregnant again and in such a tragic situation. I was so happy and devastated at the same time, knowing that I was finally going to be a mom but that I was away from my husband, family, friends, and home.

Ryan talked to numerous lawyers trying to find help to get me back home but ALL of the lawyers turned him down, saying there was no way my situation could be fixed. They told Ryan that I had to stay in Mexico for ten years before I could apply for a visa again, and that even then it was not one hundred percent certain that the visa would be granted. This went on for two months, during which time I was on the internet day and night trying to find out what had triggered the ten year ban without the opportunity to file a waiver.  I had not gotten any explanation from the person who interviewed me. I read and read, trying to find something that could help me come back home.

That is when I came across Law Offices of Carl Shusterman. I found on his website countless useful information as well as details about the law that I was unaware of that would later bring me back home. This law stated that any illegal entrance to the country prior to 1997 did not count when applying for the change of status. Therefore, since my parents brought me undocumented to the U.S. when I was three, I did qualify for the ten year ban waiver.

Although I had that information and all the evidence (my uncle’s death certificate, etc.) I needed to prove that I had made a mistake during my interview when I was asked the date of my departure from the U.S., I still could not find a lawyer who would take my case as they all said I was misinterpreting the law and didn’t qualify.

I decided to contact the Law Offices of Carl Shusterman in a last attempt to try to find help. I wrote down the laws I thought would help me and how, and explained the mistake I had made in my answer at the U.S. Consulate interview that triggered the ten-year ban without the right to a waiver. I scheduled a phone consultation and both Carl and Attorney Amy Prokop, who would then be taking care of my case. They said that the laws I found would in fact help my case but that I needed to have evidence to back up that I made a mistake during my interview for them to be able to help me. I told them I did, and from then on they worked so hard to get me home and every hurdle that was placed in our way they found a way to overcome.

I gave birth to my son in Mexico and he is now almost eight months old. I could go on and on about all of the hardship my family and I when through, but I know that everyone can imagine the nightmare I lived through for 16 months. Imagine how hard it was for me, being away from my family and home while expecting my first child all the while living in a country that, although my birth country, was completely new to me.

I received my green card last week on my 25th birthday, and returned to the United States.

I am forever thankful to have found Carl Shusterman and Amy Prokop, and am now glad that no other lawyer took my case because I know no one would have worked as hard to get me back home. Yes, it is their job, but they also have the heart and good intentions that all immigration lawyers need to honestly help their clients and not just pursue financial benefits. Because of them I am reunited with my husband, and my son has a home with both his mom and dad. Thanks to them I can walk around without fear and pursue all my dreams and goals in the place I was raised and call home.

Carl Shusterman

The post Getting a Green Card in Ciudad Juarez appeared first on Shusterman.com.

The aim of this new program is to avoid having immediate relatives submit I-601 waivers abroad, and then be separated from their families for months or even years while their waivers are pending.

Instead, they will obtain their waivers before leaving the U.S., be interviewed abroad and return to their families in the U.S. within a few days.

The following set of Frequently Asked Questions (FAQ) explains many of the complications involved in the new provisional waiver process:

1. Who qualifies to submit a provisional waiver in the United States?

To qualify, a person must be at least 17 years old, and be the beneficiary of an approved I-130 visa petition as an “immediate relative” of a U.S. citizen.

Immediate relatives are spouses, parents and children of U.S. citizens. To be considered a “parent”, the sponsoring son or daughter must be at least 21 years of age. To be considered a “child”, the person must be under 21 years of age, although many persons over 21 years of age may still be classified as children under the Child Status Protection Act (CSPA).

The law requires that in order to obtain an waiver, the applicant must demonstrate “extreme hardship” to a qualifying relative.  Qualifying relatives must be spouses or parents who are U.S. citizens or lawful permanent residents (LPRs). However, a person with only an LPR spouse or parent, while eligible to apply for a regular I-601 waiver abroad, is ineligible to qualify for an I-601A provisional waiver in the U.S.

Persons who are in the numerically-limited family or employment-based preference categories do not qualify for provisional waivers, although the USCIS indicates that the program could be expanded at some point in the future.

2. What grounds of inadmissibility does the waiver apply to?

The waiver applies solely to inadmissibility based on “unlawful presence” in the U.S. Applicants must be subject to either the 3-year or the 10-year bar once they leave the U.S.  Persons subject to the “permanent bar” can not submit a waiver application until they have remained outside the U.S. for 10 years.  Hence, they are ineligible for provisional waivers.

Persons who are inadmissible under another section of the law (e.g.fraud, criminal convictions, etc.) are also ineligible for provisional waivers.

3. What if a person is already outside the U.S. or is scheduled for an immigrant visa interview outside the U.S.?

Such persons are ineligible to submit provisional waivers.

4. What if a person is currently in removal proceedings or is subject to a final order of removal?

Such a person may participate in the provisional waiver program only if his removal proceedings have been “administratively closed” and have not been recalendared as of the time that the waiver is submitted to the USCIS.

Persons in removal proceedings who have applied for Deferred Action (DACA) may apply for provisional waivers after USCIS grants their DACA  applications, but only if they meet all the requirements for filing a provisional waiver and their removal proceedings have been administratively closed.

If the USCIS approves a provisional waiver for a person in removal proceedings, the person must seek termination or dismissal of the removal proceedings by the Executive Office for Immigration Review (EOIR), and this must be granted before the person departs the U.S. for their immigrant visa interview abroad.  Failure to do so could prevent the person from obtaining an immigrant visa and returning to the U.S.

Persons under final orders of removal are ineligible to participate in the provisional waiver program.

5. Can a person who had a previously scheduled immigrant visa interview (scheduled by the State Department prior to January 3, 2013) abroad that he did not attend submit a provisional waiver?

The answer is usually no.  However, there are exceptions.

Here we quote the DHS:

“An alien who is ineligible to apply for a provisional unlawful presence waiver because of a previously scheduled immigrant visa interview may still qualify for a provisional unlawful presence waiver if he or she has a new DOS immigrant visa case because 1) DOS terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or 2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner.”

“DOS” in the above paragraph stands for the “U.S. Department of State”.

6. Is it possible to waive the fees for an I-601A provisional waiver ($585) or for the biometrics ($85)?

No.

7. Is premium processing available for an I-601A waiver?

No, but applicants can request expedited adjudication of a provisional waiver in accordance with current USCIS expedite guidance.

Generally, the USCIS takes about 4-6 months to approve an I-601 waiver.  With an expected influx of many thousands of I-601A provisional waivers, expect waiting times to increase, perhaps dramatically, since the USCIS has no plans to boost the number of officers who will be adjudicating hardship waivers.

8. If a person’s I-601A waiver is denied, is it possible to appeal?

No.

However, although it is not possible to appeal an I-601A denial or submit a Motion to Reopen (The USCIS reserves the right to reopen or reconsider an I-601A denial on its own motion.), it is possible to refile a waiver after a denial.

Again, we quote the DHS:

“If an individual’s provisional unlawful presence waiver request is denied or withdrawn, the individual may file a new Form I-601A, in accordance with the form instructions and the required fees. The applicant’s case must still be pending with DOS, and the applicant must notify DOS that he or she intends to file a new Form I-601A. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already undertaken steps to adjudicate the case.”

“Alternatively, an individual who withdraws his or her Form I-601A filing or whose Form I-601A is denied can reapply for a Form I-601 Application for Waiver of Grounds of Inadmissibility,with the USCIS Lockbox,after he or she attends the immigrant visa interview and after DOS conclusively determines that the individual is inadmissible. If the ground(s) of inadmissibility identified by the DOS consular officer can be waived, the individual can file a Form I-601 along with any supporting documentation or evidence needed to demonstrate eligibility for the waiver and ultimately the immigrant visa…”

“Applicants and their attorneys or accredited representatives also are reminded that they may address or correct mistakes by supplementing a pending Form I-601A waiver request with additional evidence or correcting the request before USCIS makes a final decision in the case. USCIS will take into consideration any evidence received when making the decision.”

9. Can a person who submits an I-601A waiver be placed in removal proceedings?

Although the USCIS states that it “does not envision initiating removal proceedings against aliens whose Form I-601As are denied or withdrawn prior to final adjudication”, it reserves the right to do so if the person is considered to be a “DHS enforcement priority – that is, if the individual has a criminal history, has committed fraud, or otherwise poses a threat to national security or public safety.”

“DHS reminds the public that the filing or approval of a provisional unlawful presence waiver application will not: (1) confer any legal status; (2) protect against the accrual of additional unlawful presence; (3) authorize an alien to enter the United States without securing a visa or other appropriate entry document; (4) convey any interim benefits (e.g., employment authorization, advance parole, or eligibility to be paroled based solely on a pending or approved Form I-601A); or (5) protect an alien from being placed in removal proceedings or removed from the United States, in accordance with current DHS policies governing initiation of removal proceedings and use of prosecutorial discretion.”

10. What are the chances that your I-601A waiver will be granted?

This, of course, depends on the facts of your case, and how well your I-601A waiver is documented to demonstrate “extreme hardship” to your qualifying relatives. Do not submit 5 or 6 exhibits and expect to receive an approval.  Here, it is absolutely essential that your attorney know the legal basis for establishing “extreme hardship”, and that he or she has prepared many successful I-601 waiver applications.

Extreme hardship can be emotional, financial, medical, etc. and hopefully a combination of these and many other factors.

Last year, the USCIS denied 34%, or a little more than one out of every three, I-601 waivers.

Persons who have recently married are usually well-advised not to submit waivers. However, their chances of approval rise markedly after they have children and a house, especially if the breadwinner would be forced to remain at home to care for the child(ren).

Also, many of those denied by the USCIS prepared their applications on their own or used the services of a notario or an immigration “consultant”.  This is not a wise course of action.

Hire an experienced immigration attorney.

But how do you choose the right attorney to prepare your I-601A waiver? A good place to start is by watching the following video.

The post I-601A Provisional Waiver FAQ appeared first on Shusterman.com.