Presently, there are five EB preference categories: (1) Priority workers; (2) Professionals Holding Advanced Degrees and Persons of Exceptional Ability; (3) Skilled Workers, Professionals and Other Workers; (4) Special Immigrants; and (5) Investors.

Each of the first three categories is allocated 28.6% of the worldwide total of 140,000 visas annually while both the 4th and 5th preference categories are allotted 7.1% of the worldwide total. In addition, unused numbers from certain categories are available to other categories when the demand exceeds the supply of numbers.

Unlike the H-1B petition cap, spouses and children are counted toward the EB numerical caps.

In May 2005, a law was enacted which "recaptured" 50,000 immigrant visas to be used by those in Schedule A occupations (Registered Nurses, Physical Therapists and Persons of Exceptional Ability). The State Department estimates that these 50,000 visas will be completely expended between October and December of this year.

For an overview of the changes to the EB categories made by the Senate bill, see our article entitled "Reform of the Employment-Based Preference System" in the April 2006 issue of SHUSTERMANS' IMMIGRATION UPDATE at

The EB quota would be increased from 140,000 to 450,000 until 2017, at which time, it would fall to 290,000.

A last-minute amendment by Senator Bingaman (R-NM), approved by a vote of 51-47, introduced a wild card into the system. This amendment would impose a "hard cap" of 650,000 on the number of workers/persons who could immigrate in a single fiscal year under the EB system. It is still unclear whether spouses, children and other cap-exempt workers would be included under the hard cap. If so, the amount of backlog reduction in the bill would be significantly reduced. This is because 200,000 of the EB visas are reserved for H-2C guest workers and their families.

We believe that the Senate bill would significantly reduce current EB backlogs. However, if the Bingaman amendment remains in the final bill, the granting of many of the 348,000 applications for labor certification pending in the Backlog Elimination Centers could again result in backlogs developing in the EB categories.

Since 2000, certain persons in H-1B status have been permitted to extend their nonimmigrant status beyond 6 years if (1) their applications for labor certification or their immigrant visa petitions were pending for one year or more, or if (2) their immigrant visa petitions were approved, but their priority dates were not current.

The Senate bill provides that persons in L status would also be able to extend their nonimmigrant status, in one-year increments, beyond the maximum duration currently permitted by current law (5 years for L-1Bs and 7 years for L-1As), but only if they have pending applications for adjustment of status. This is important for section 245(k) purposes since, under USCIS' interpretation of this statute, only a person in nonimmigrant status (or one who has been in such status within 180 days of his most recent admission to the U.S.) qualifies to apply for permanent residence under this section of law. If you are working using an EAD or have been paroled into the U.S., and your application for adjustment of status is denied, even for reasons beyond your control, you may be forced to depart the U.S., and may not be able to return to the U.S. in L status for one year. Therefore, should this provision be enacted into law, we advise persons to extend their L status until their applications for adjustment of status are approved.

Another important provision in the Senate bill would allow certain large employers to be "pre-certified" so that they would not be forced to submit certain documentation about themselves with each and every petition.

The Senate bill would authorize the USCIS to permit premium processing for immigrant EB petitions.

Senator Specter's Manager's Amendment to the bill would change the immigration system in a number of important ways too numerous to list here. For example, in EB adjustment of status applications, work permits (EADs) and travel permits (APs) would be issued in 3-year increments.

Among the many important changes mandated by the Manager's Amendment are those which apply to the Department of Labor (DOL). Prevailing wage determinations would be required to be to be issued by DOL (not the SWAs) within 20 days, pending applications for labor certification would be decided within 180 days (beginning 90 days after the law's enactment) and BALCA appeals of denied labor certificates within 60 days.

We have posted the Manager's Amendment online at

One of the most important changes would allow persons with approved EB immigrant petitions to submit applications for adjustment of status (along with a $500 fee) even if their priority dates are NOT CURRENT. This change would benefit all EB applicants, whatever their nonimmigrant status, as well as persons who are out-of-status, but who would eventually become eligible to submit applications for adjustment of status under section 245(i).

All of the most recent amendments to the Senate bill (S.2611) will soon be incorporated into the government's online version of the bill which we link to from our "Immigration Legislation" page at

3. Proposed Changes to the H-1B Category in the Senate Bill

Presently, there is a numerical limit for H-1B (professional) workers of 65,000 per fiscal year (October 1 - September 30). Employers are permitted to submit H-1B petitions 6 months in advance, or by April 1 each year. During the past two months, well over 50,000 H-1B petitions subject to the cap were received by the USCIS. This means that the 65,000 cap will be reached sometime within the next few days, thereby rendering U.S. employers incapable of sponsoring additional H-1B visa holders until October 1, 2007.

There is also a 20,000 per year H-1B cap reserved for persons who hold advanced degrees in the U.S. As of today, this cap is only 30% used up, meaning that these H-1Bs will probably be available until the beginning of the next fiscal year.

The USCIS posts a chart on its web site regarding the number of H-1B petitions which are received subject to the 65,000 and 20,000 caps. This chart is updated twice each week. We link to this chart from

Also exempt from the H-1B caps are persons employed by universities, by nonprofit entities which are university-affiliated or related, and those employed by governmental or nonprofit, research organizations.

If you are maintaining valid nonimmigrant status, you may change your status to H-1B without having to leave the U.S. However, if you must travel abroad, you will not be able to re-enter the U.S. unless you apply for an H-1B visa at a U.S. Embassy or Consulate in your home country, although it is sometimes possible to obtain H-1B visas in Canada or Mexico.

The Senate bill would raise the 65,000 H-1B numerical cap to 115,000. If the numerical cap is reached, the following year's cap would automatically increase by 20%.

The Senate bill would also make major changes in the 20,000 H-1B cap. The 20,000 cap would apply to persons holding advanced degrees from foreign institutions of higher learning while persons holding advanced degrees from U.S. institutions would be exempt from the cap. This change would result in more than doubling the number of advanced degree holders who are able to obtain H-1B status annually. In addition, those persons who have been awarded "medical specialty certification based on post-doctoral training and experience in the United States" would also be exempt from the H-1B cap. This change would allow physicians who have completed residencies and/or fellowships in the U.S., and who have become board-certified, to obtain H-1B status without regard to the numerical caps.

The Senate bill would restore the ability of H-1B visa holders (and holders of certain other types of nonimmigrant visas - E, I, L, O and P) to renew - or "revalidate" - their visas by mail in Washington, D.C. rather than having to leave the U.S. to do so.

The exemption from the H-1B caps for employees of non-profit research organizations would be expanded to include employees of all non-profit organizations, whether or not these organizations engage in research.

The sum total of these changes would make H-1B status a much more useful category, and would enhance our workforce by allowing U.S. employers to hire more of the best and brightest professional workers.

We hope that the Congress will approve such changes for employers and employees who "play by the rules" without the extended debate that we expect to ensue regarding the legalization and guest workers provisions of the Senate bill.

Follow our "Immigration News Ticker" and "U.S. Immigration News" at

Also, follow our "Immigration Legislation" page at

4. Success Story: U.S. Citizenship Based on Your Ancestors

Upon further investigation, it turned out that Ms. S's father had become a naturalized U.S. citizen before he returned to India in the 1960's. He passed away in 1985. This probably ended the possibility that this could help her immigrate to the U.S., she told us.

Not true, we replied. Under a complex set of laws pertaining to the "acquisition" of U.S. citizenship to children born abroad to U.S. citizen parents, Ms. S could claim U.S. citizenship at birth even though her father passed away over twenty years ago. See

To prove her eligibility to the Consulate, Mrs. S provided the following documents - her birth certificate, proof of her parent' marriage, her father's Naturalization Certificate and U.S. Passport; and proof of his physical presence in the U.S. for ten years, at least five of which were after the age of fourteen, but before her birth. Based on these documents, Ms. S. was quickly issued a U.S. Passport. She didn't even need to take an English or Civics exam!

The next step was for her to sponsor her children for green cards (a five-year process), right? Wrong!

The Child Citizenship Act of 2000 provides that Ms. S' father's physical presence in the U.S. not only enabled her to obtain U.S. citizenship, but assisted her children in doing so as well.

This law permits the naturalization of children whose U.S. citizen parent never resided in the U.S. As long as their U.S. citizen grandparent resided in the U.S. for five years or more prior to their birth, at least two of which were after the age of fourteen, they may come to the U.S. and be naturalized.

With her U.S. passport, Mrs. S. could enter the United States without a problem, but her children needed valid U.S. visas in order to attend their interviews. Fortunately, the Department of State's Foreign Affairs Manual allows for Consulates to issue "call-in notices," permitting persons to obtain visitor visas to enter the U.S. to attend their naturalization interviews.

After submitting their applications to the local CIS office in December 2005, both children were scheduled for their interviews in the U.S. on April 26, 2006. They obtained visitor visas and arrived a week before their interviews. On the day of their interviews both of their N-600K applications were approved. They owe their U.S. citizenship to the grandfather who they never met! To read more of our Immigration Success Stories, see

5. Immigration Trivia Quiz: Wide, Wide World of Sports

6. SHUSTERMAN'S IMMIGRATION UPDATE Turns 10 Years Old

We are able to offer our readers many more options than we were in the past because there has been a huge growth in immigration information available on the web, and because the rapid growth in broadband connections has allowed us to feature numerous audios and videos.

In honor of the 10th Anniversary of our newsletter, we decided to highlight some of our favorite sources of immigration information on the web:

1) USCIS.gov - Without a doubt, the most comprehensive immigration page on the web is that of the Citizenship and Immigration Service (USCIS). The USCIS site regularly posts and updates the latest processing times for all Service Centers and District Offices. We link to these processing times from

Lately, we have noticed that the USCIS web site is not as useful as it used to be. The "Check Case Status" section is often out of date, and so are some of the other sections. The site's "Guide to New Immigrants" contains a section entitled "Finding Legal Assistance". Unfortunately, this section is so inadequate that does not even refer potential immigrants and citizens to lists of attorneys who have been designated as "Certified Immigration Specialists" by their State Bar Associations. We hope these problems will be corrected soon.

We also link to the web sites of the State Department, the Labor Department, the Justice Department, the Executive Office for Immigration Review, the Department of Homeland Security, CBP, ICE and a host of other governmental agencies.

2) http://immigration.knowitallmall.com - Webmasters Jennifer and Peter Wipf have done a superlative job of creating an informative and useful site for the layman. Their site provides many of the most important essentials including: "How can I live in the U.S?"; "U.S. immigration policies and legislation"; "Status of my immigration case?"; "Get a Visa: Immigration or Temporary"; "Glossary: Understand Immigration Terms".

This site helps you find good legal assistance. See

7. PERM: When is it Unwise to Refile Your LC under PERM?

• Applications that have been grandfathered under INA 245i, where the loss of a priority date could be disastrous and where the individual is currently working for the employer without authorization;

• Cases where an individual is relying on a priority date that is subject to retrogression, such as EB-3 worldwide. Under these circumstances, it is often better to stay in the queue than risk the loss of a priority date through a PERM denial;

• Applications where the individual is dependent upon an RIR that has been pending with the Department of Labor for more than 365 days, making the individual eligible for more than 6 years of H-1B status;

• Any application that might potentially trigger an audit, such as when the ETA-9089 requires an unusual combination of duties, a foreign language or is based on a business necessity;

• Situations where a beneficiary has worked for the same employer and has used that experience to qualify him or her for a labor certification;

• Applications where the beneficiary is related to the owner or the corporation is closely-held.

• Has the company experienced layoffs in like or similar positions within the last six months?

• Are there now more likely to be qualified workers for a particular skill set than there were previously?

• Is there now an oversupply of U.S. workers in that particular field as determined by the Department of Labor, thus prompting a possible audit?

For more information regarding PERM and Labor Certification, see our "Department of Labor: Immigration Resources" page at

8. Schedule of Upcoming Immigration Law Seminars

1. June 6                        Pasadena, California
   7:00pm

   Kaplan Medical, 271 So. Lake Avenue
   Topic: Immigration for Physicians and Nurses

2. June 7                        Fullerton, California
   10:00 - 11:00am        St. Jude Hospital

   Pacific Coast Association of Health Care Recruiters

   Topic: "Immigration of Nurses and Allied Health Care Professionals" For more information, see

   http://www.pcahcr.com/calendar.aspx (Link is no longer operational.)

3. June 21                        San Antonio, Texas
   6:30 - 8:30pm              Henry B. Gonzalez Convention Center

   American Immigration Lawyers Association

   Topic: "Doctors and Healthcare Workers"

   For more information, see

   http://shusterman.com/pdf/aila2006.pdf

4. 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

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

   National Business Institute

   My Topics:
   A) Nonimmigrant Visas
   B) Immigrant Visas

   Immigration and Employment: Legal Aspect of Hiring Foreign Workers

6. 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

Links to the transcripts of all of our chats are posted online on our "Chat" page at

Immigration Audios

• Welcome To Our Web Site!
  http://shusterman.com/audio/welcome.ram

• Understanding the H-1B Cap Law: AC-21
  http://shusterman.com/audio/h1bcapla.ram

• Temporary Visas to Visit, Study or Work in the U.S.
  http://shusterman.com/audio/temp.ram

• Obtaining A Green Card To Live and Work in the U.S.
  http://shusterman.com/audio/gc.ram

• How to Become a Citizen of the U.S.
  http://shusterman.com/audio/usc.ram

• IMG's and Canadian Physicians
  http://shusterman.com/audio/md.ram

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

Immigration Videos

• Physicians: J Waivers, H-1B and O-1 Visas
  http://shusterman.com/video/img100302_p1.ram

• Physicians: Obtaining Permanent Residence
  http://shusterman.com/video/img100302_p2.ram

• Physicians: Questions and Answers
  http://shusterman.com/video/img100302_qa.ram

10. Winner of our May 2006 Immigration Trivia Quiz

Hi Mr. Shusterman,

The group is called the "H1Bees".

They created a album name "H1Bees" which talk about immigration story and feeling, the songs in this album portray many sentiments every immigrant goes through at different stages in life, homesick, and about the journey of chasing dreams in America while their families are in another country.

You can hear some of their music with the link below:

http://indianmusic.libsyn.com/index.php?post_id=34383

My name is Kok Hoong Chan and I am Chinese from Malaysia. I am currently working and living in San Jose, California. I had been here for about 6-7 years and my H-1B limit is going to expire in August 2006. Currently, my I-140 is pending and has just transferred to TSC.

I had been a subscriber for a couple of months now. It is always fun to read your newsletter since it not only contains a lot of information but is also fun, especially the quiz :-).

I hope that I am the first one who answers and that I get a chance to win a free consultation with you.

Thanks for the great newsletter.

Regards,

Kok Hoong Chan

June 1, 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 U.S. Border Patrol's budget had doubled from roughly $800 million in 1998 to almost $1.6 billion today. Over the same period, the number of illegal immigrants in the U.S. has tripled, from some 4 million to an estimated 12 million."

In a speech delivered on May 29, 2006, the head of the union representing the nation's Border Patrol agents, said that Congress needs to focus on the reason that people are crossing the border, for jobs. He stated that "the solution isn't more Border Patrol agents, National Guard troops, technology or walls on the U.S.-Mexico border."

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