Law Offices of Carl Shusterman - US Immigration Law Offices of Carl Shusterman - US Immigration
SHUSTERMAN'S IMMIGRATION UPDATE
(July 2006)

Law Offices of Carl Shusterman
600 Wilshire Boulevard, Suite 1550, Los Angeles, CA 90017
(213) 623-4592 x0
Representing Clients in All 50 States
30 Years of Immigration Law Experience
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Learn how to benefit from United States immigration laws and procedures from a former INS Attorney (1976-82) with over 30 years of experience.

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Volume Eleven, Number Six

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 120 countries.

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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:

1. Comprehensive Immigration Reform: On Life Support?
2. Videos Explain Immigration for Doctors and Nurses
3. Physicians: VICTORY for MDs in Federal Appeals Court
4. Success Story: Upgrading Your Applications at DOL & CIS
5. Immigration Trivia Quiz: The End of an Era (1954)
6. Official Immigration Government Processing Times
7. My First Visit to India: Experiencing India's Capital
8. Schedule of Upcoming Immigration Law Seminars
9. Chat Schedule, Transcripts, Audios & Videos
10. Winner of the June 2006 Immigration Trivia Quiz

NEWS FLASHES:

CONTENTS:

1. Comprehensive Immigration Reform: On Life Support?

Senators who passed a comprehensive immigration reform bill in May, and Representatives who passed an enforcement-only immigration bill last December, continue to talk, not so much to each other, but past each other.

House and Senate Committees will contact a "road show" of public hearings in July and August, not so much to try to reach a compromise, but to win public support for their respective positions in advance of the November election.

The hearings kick off on July 5 at the U.S. Border Patrol Station in Imperial Beach, California where the House Subcommittee on International Terrorism and Nonproliferation will examine "Border Vulnerabilities and International Terrorism". The venue will change to Laredo, Texas on July 7 though the topic will remain the same. For more information, see

http://wwwc.house.gov/international_relations/itnhear.htm

Also on July 5, at Independence Hall in Philadelphia, Pennsylvania, the Senate Judiciary Committee will conduct a field hearing entitled "Comprehensive Immigration Reform: Examining the Need for a Guest Worker Program." For details and a list of witnesses, see

http://judiciary.senate.gov/hearing.cfm?id=1983

Polls show that most Republican voters would like to see an immigration bill enacted this year. In a conservative district in Utah last week, Representative Chris Cannon (R-UT), a strong proponent of comprehensive immigration reform easily beat back a challenge from a well-financed proponent of the House's enforcement-only approach to immigration.

Some House Republicans have tried to fashion immigration plans which they hope might bridge the gap between the House and the Senate bills. Congressman Mike Pence (R-IND) introduced the "Border Integrity and Immigration Reform Act" which combines increases immigration enforcement with a guest worker program, but which completely rejects the legalization provisions of the Senate bill. See

http://mikepence.house.gov/News/DocumentQuery.aspx?CatagoryID=2146

Recently, Republicans in the Senate have signaled their House counterparts regarding their desire to reach a compromise solution. Several senators indicated that they could accept a bill which puts enforcement ahead of the implementation of the legalization and guest worker programs. Minority Leader Harry Reid (D-NV) agreed with Majority Leader Bill Frist (R-TN) to drop taxation amendments from the Senate bill, and accept those in the House bill instead.

On June 29, nine House Republicans introduced "The Securing Knowledge, Innovation, and Leadership (SKIL) Act" (H.R.5744) which would raise the H-1B cap from 65,000 to 115,000 and the EB cap from 140,000 to 290,000. Both categories would benefit from numerous exemptions to the cap.

The chief House sponsor of the SKIL bill, Representative John Shadegg (R-AZ) stated that "Unfortunately, we are not graduating the number of Americans with advanced degrees in math and sciences that our high tech and medical industries need to compete. Until we can fix the problem of not having enough highly skilled American graduates, we need to pass the SKIL Bill...We stand to potentially lose the next technological giants like Yahoo! or Google if we do not keep America's workforce competitive. We must maintain our edge by providing opportunities to highly educated and skilled individuals interested in staying here in the U.S."

We link to a two-page summary of the SKIL bill at

http://shusterman.com/pdf/skil506.pdf

The SKIL bill was introduced in the Senate in May by Senator John Cornyn (R- TX) and was subsequently incorporated into the Comprehensive Immigration Act of 2006. We discussed its effects on the H-1B and EB categories in the June 2006 issue of SHUSTERMAN'S IMMIGRATION UPDATE. See

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

Although the legalization and guest worker provisions of the Senate bill have been written off by many pundits, we believe that there is an excellent chance that some version of the SKIL bill will be enacted into law before the end of 2006.

2. Videos Explain Immigration for Doctors and Nurses

Kaplan, the test preparation leaders, asked me recently if I would be willing to film videos to help their foreign-born students studying to take their U.S. exams in medicine and nursing learn more about the U.S. immigration laws.

The result is a 42-minute video entitled "Immigration and IMGs" and a 30- minute video entitled "Immigration and Nurses". Not only did Kaplan distribute DVDs of both videos to their 500+ centers around the world, but they allowed us to feature both videos online.

3. Physicians: VICTORY for MDs in Federal Appeals Court

On June 7, the U.S. Court of Appeals for the Ninth Circuit, in Schneider v. Chertoff, overturned the decision of a Federal District Court, and ruled in favor of our plaintiff physicians, voiding significant parts of the restrictive National Interest Waiver (NIW) regulations issued by the INS in 2000.

First, the Court held that the language of the law which requires most physicians to practice in underserved areas for "an aggregate of five years" was clear, and that the INS could not establish artificial "start dates" depending on the type of nonimmigrant status of the physician. For example, one of our plaintiff physicians had worked in an AIDS Clinic in an underserved area on an O-1 ("person of extraordinary ability") visa for over 4 years before we obtained a J waiver on his behalf. The INS regulations would have forced him to work for another 5 years in the area, for a total of 9 years before obtaining permanent residence. The Court ruled that the law requires the INS to count time worked in the underserved area in O-1 status prior to being granted a J waiver.

Similarly, two of our plaintiff physicians had completed their medical residencies in H-1B status. They had worked in underserved areas for many years before NIWs were filed on their behalf. The INS rule stated that no time worked in underserved areas could be counted toward the 5-year requirement until after the NIW petitions were approved by the agency. Again, the Court ruled that all work performed in the underserved areas, both before and after the NIW petitions were approved must be counted toward the 5 year requirement.

Second, the court ruled that the clear language of the law requires the agency to grant permanent residence to physicians whose NIW petitions were filed on or before November 1, 1998 and who practiced in underserved areas for 3 years. The court voided the portion of the INS regulation which required such petitions to be pending on the date that the law was enacted, on November 12, 1999.

Third, the Court found no basis in the law for the INS rule that physicians had to complete their 5-year service requirement in 6 years, or their 3-year service requirement in 4 years.

The Court upheld the portion of the regulations which requires physicians to establish that they are complying with the law at two separate stages, although with the voiding of the 4 and 6 year limitations, it is questionable what value this "double compliance" system would provide.

Finally, the Court declined to rule on whether specialists who agree to work in underserved areas are eligible to obtain permanent residence through NIWs. Our one plaintiff specialist and his attorney failed to respond to a request for evidence causing the agency to deny his NIW petition due to abandonment.

If necessary, we intend to file another lawsuit in order to resolve this last issue. If you are a specialist who would like to obtain permanent residence through a National Interest Waiver, we would be happy to represent you. You may schedule a legal consultation at

http://shusterman.com/intake.html

I would like to thank my associate Elif Keles, Esq. for writing and re-writing all of our legal briefs in this case until I deemed them "perfect", and to Trina Realmuto, Esq. of AILF for writing an excellent amicus curiae ("friend of the court") brief to the 9th Circuit and to the Director of the Legal Action Center of the American Immigration Lawyers Foundation (AILF), Nadine Wettstein, for her invaluable assistance. See AILF's web site at

http://www.ailf.org

All papers filed in this case as well as the oral arguments and the final decision of the Appeals Court may be accessed online at

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

4. Success Story: Upgrading Your Applications at DOL & CIS

The following three stories exemplify the success that our office has had with the Department of Labor's PERM system and with qualifying our clients under the EB-2 category. In fact, in all three cases, we received approval of the PERM application within one week of filing(!), and used the EB-2 category to avoid the current five-year backlog in the EB-3 category.

* Marketing Manager

Consider the predicament of Mr. W, a joint national of Venezuela and Israel who served as the Marketing Manager for a media design solutions company. Mr. W's immigration strategy was initially quite simple: Since his EB-3 wife was employed by a very large and respected toy manufacturer in H-1B status, he hoped to obtain his green card by piggybacking on her case. Her employer's law firm, however, had been dithering for years as to whether to file a Labor Certification on her behalf or wait until the new PERM system was in place. When they finally decided to act in March 2005 (only a short time before the new PERM system began) they filed a regular (non-RIR) Labor Certification on her behalf, condemning Mr. and Mrs. W to a wait of several years before the Labor Certification would be adjudicated!

Demoralized after almost a year of no movement on his wife's application, Mr. W requested our help. We immediately filed a PERM application for him, structuring it so that he would qualify under the EB-2 category based upon the high level of skill required to assume his Marketing Managerial position (Mr. W held a Master's degree in a marketing-related field.). Within one week of filing, Mr. W's PERM application was approved, which enabled him and his wife to use combined processing and avoid both the labor certification and EB-3 backlogs.

* Business Development Manager

Mr. K is an Armenian national with a Master's degree who had been hired as a Business Development Manager for a non-profit charitable organization. Filed by prior counsel, Mr. K's H-1B visa application had been denied and appealed, forcing him to wait up to 11 months for final adjudication by the Immigration Service. Discouraged, Mr. K was forced to return to Armenia while we filed a new H-1B application with a start date of October 1. While Mr. K waited, we encouraged his employer to begin advertising for Mr. K's EB-2 category position under the PERM regulations, and filed his application as soon as he returned to the U.S. Thanks to a quick PERM approval, Mr. K has applied for his green card in EB-2 category.

* Senior Software Developer

Mr. A is a Senior Software Developer for a groundbreaking technology firm whose Labor Certification application had been pending in the EB-3 category since 2001. While his RIR Labor Certification lingered in limbo, his position was becoming more and more precarious - his original employer had already been purchased by a new company, which was itself about to be purchased. Mr. A was in the process of extending his H-1B visa for a ninth year! Because his position and credentials clearly qualified him for the EB-2 immigrant visa category (He holds a Master's degree and performs highly technical work duties.) we felt Mr. A was an ideal candidate for the new PERM system. Mr. A's PERM case was approved in one week and he has applied for adjustment of status.

In all three examples, we took advantage of the Department of Labor's newfound efficiency in the PERM process, also qualifying our clients to apply for permanent residence under the EB-2 immigrant visa category in order to avoid lengthy backlogs in the EB-3 category.

To read more of our Immigration Success Stories, see

http://shusterman.com/success.html

5. Immigration Trivia Quiz: The End of an Era (1954)

This month's Immigration Trivia Quiz is entitled "The End of an Era". See

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

The first person to provide the correct answers as well as the required biographical information about themselves is entitled to a free legal consultation with me before the end of July 2006.

6. Official Immigration Government Processing Times

* Citizenship and Immigration Services (CIS)

The Immigration Service (CIS) 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

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

Processing times at CIS local offices may be accessed at

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

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 (May 26, 2006) may be found at

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

* Department of State

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

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

7. My First Visit to India: Experiencing India's Capital

After finishing close to half of Mr. Naipul's book about India at the airport in Goa, our Spice Air plane (which had been delayed by the fog in New Delhi for several hours) transported us northwest to New Delhi, the capital of India.

Unlike Mumbai and Goa, New Delhi was quite cool and we immediately put on light jackets. We stayed at a small hotel an hour's taxi ride from the airport.

New Delhi is a "tiny" city compared with Mumbai with a population of "only" 10 million people. Having attended university in Scotland, it was obvious to me that the city was constructed by the British with its wide streets and "roundabouts". Although we had been warned that it was possible to look directly at the sun in New Delhi since the air is so polluted, this admonition proved to be inaccurate. In fact, the air pollution was less than it is in some parts of Los Angeles. This was probably due to the initials "C.N.G." that we saw on thousands of cars and buses. C.N.G. stands for Compressed Natural Gas, and if more cars and buses ran on C.N.G. in Mumbai and Los Angeles, people would be able to breathe a lot easier.

In New Delhi, we visited the Gandhi National Museum. A plaque quotes Gandhi: "Non-violence is the pitting of one's whole soul against the will of the tyrant...it is then possible for a single individual to defy the might of an unjust empire."

We visited Jami Masjid, India's largest mosque, constructed by Shah Jahan, the astronomical instruments in Jantar Mantar, Humayun's Tomb and the Qutb Minar.

We viewed various government buildings. Unfortunately, none of them were open to the public. We saw, behind closed gates, the Rashtrapati Bhavan which was originally build as the British Viceroy's Palace, and which is now the official residence of the President of India. We also walked around a massive red sandstone arch which is called the "Gate of India" which commemorates the Indian and British soldiers who died during World War I and in numerous other wars.

We also walked through the Lahore Gate into the "Red Fort" which was constructed by Shah Jahan (who also built the Taj Mahal) and which was the seat of Mughal power until the last emperor was exiled in the mid-19th century.

One of the most spectacular buildings that we visited was the Baha'i House of Worship, a comparatively new building constructed in the 1980s. It is shaped like a 27-petalled white lotus flower, and is surrounded by fountains and park land. We removed our shoes, and ascended to the silent tranquility of the Lotus Temple. See

http://shusterman.com/images/lotustemple.jpg

The "real India", however, seemed to be located in the streets of Old Delhi. We took an exciting ride on the back of a bicycle-driven "rickshaw" through the narrow streets of Old Delhi, clearing the vendors and their stalls by a matter of inches. It was thrilling as we jetted into another world in our rickshaw-like time machine.

I would be remiss if I did not mention the newspapers in India. At breakfast, we browsed through the Times of India, the Delhi Times and the Indian Express. The titles of their front page articles say it all: "There's No Place for Love" ("Away from the prying eyes of cops and the censorious stares of passers-by, should lovers be given a place of their own in the city?"); "A Perfect 10? Duh!" ("Spare a thought for the real figure that real women want."); "Politicians Shouldn't Accept Bribes Below Rs 1 Lakh" and an article about the Delhi Airport entitled "Rush Hour, No Numbers, One Cop: To Grab Cab, Flex Muscles, Jump Queue." To understand this last headline, it helps to view a photo of our arrival at the New Delhi Airport. See

http://shusterman.com/images/ndairport.jpg

After a few days in Delhi, we were ready to leave the big city, and board the "Palace on Wheels" for an 8-day adventure in Rajasthan.

*** TO BE CONTINUED ***

8. Schedule of Upcoming Immigration Law Seminars

  1. July 8                         Pacifica Radio
    1:00pm

    Topic: Immigration Prospects for Highly-Skilled Professionals

    Listen at

    KPFK in Los Angeles (90.7 FM)
    KPFK in Santa Barbara (98.7 FM)
    KPFA in Berkeley (94.1 FM)
    KPFT in Houston (90.1 FM)
    WBAI in New York City (99.5 FM)
    WPFW in Washington, D.C. (89.1 FM)

  2. September 20                         San Diego, California
    4:00 - 5:15pm

    Healthcare Staffing Summit

    Topic: "Keys to Success in International Recruiting"

    For conference information, see

    http://www.staffingindustry.com/healthstaff_summit/hc06_program.html

  3. September 22                         San Antonio, Texas
    2:45pm

    Topic: Unlocking the Power of the Internet for Immigration Practice, Research, and Marketing

    University of Texas Law School, 30th Annual Conference

    For more information, see

    http://conferences.utcle.org/law/cle/conferences/fall2006/default.php

  4. October 9                         Los Angeles, California
    9:45 - 11:15am

    National Business Institute

    My Topics:

    1. Nonimmigrant Visas
    2. Immigrant Visas

    Immigration and Employment: Legal Aspect of Hiring Foreign Workers

  5. October 15-17                         Nashville, Tennessee

    American Society for Healthcare Human Resources Administration (ASHHRA)
    - 42th Annual Conference and Exposition

    For registration information, see

    http://www.ashhra.org/ashhra/conference/welcome.html

9. Chat Schedule, Transcripts, Audios & Videos

Chats

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

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

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:

National Public Radio (NPR) Audio Programs

We link to selected audio programs regarding immigration produced by National Public Radio at

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

Immigration Videos

See our videos and accompanying power point presentations:

10. Winner of our June 2006 Immigration Trivia Quiz

Our June 2006 Immigration Trivia Quiz was entitled "The Wide, Wide World of Sports". See

http://shusterman.com/athletequiz.html

The following is the winning answer:
Dear Mr. Shusterman,
The athletes pictured are:

Martina Navratilova
a former World No. 1 woman tennis player. Originally from Czechoslovakia, she defected to the United States in 1975 and became a U.S. citizen in 1981. During her career she won 18 Grand Slam singles titles and 40 Grand Slam doubles titles (31 women's doubles and 9 mixed doubles). She won the women's singles title at Wimbledon a record 9 times. She is considered one of the greatest players of all time.

http://en.wikipedia.org/wiki/Martina_Navratilova

Albert Pujols
(born January 16, 1980 in Santo Domingo, Dominican Republic) Pujols became the first player in Major League history to hit 30 or more home runs in each of his first five seasons. On August 31st of that year, he became the first Major League player since Ted Williams to reach the 100 RBI mark in each of his first five seasons.

http://en.wikipedia.org/wiki/Albert_Pujols

Hakeem Olajuwon
(born Akeem Abdul Olajuwon on January 21, 1963 in Lagos, Nigeria) Olajuwon was arguably one of the best centers to ever play.

http://en.wikipedia.org/wiki/Hakeem_Olajuwon

I came to the US in 1998 on a student visa from India and currently am on an H1b visa. I read your web site and update regularly and thank you for it.

Thank you,
Raghu

Congratulations, Raghu!

July 2, 2006

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

"The disagreement is whether the Republican Party is going to be some kind of new, xenophobic, anti-foreigner party, or whether we're going to be the party of a country that is thrilled at the growth, where businesses grow, where businesses create new jobs."

-Congressman Chris Cannon (R-UT)

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