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Published by the Law Offices of Carl Shusterman, 600 Wilshire Boulevard, Suite 1550, Los Angeles, California, 90017. Phone: (213)623-4592, Fax: (213) 623-3720, E-Mail: carl@shusterman.com, WWW Home Page: http://www.shusterman.com
To subscribe to SHUSTERMAN'S IMMIGRATION UPDATE, fill out the brief online form at http://www.shusterman.com/subscribe.html#subscribe or send an e-mail message to majordomo@ls.shusterman.com, with the words "subscribe visalaw" in the body of the message.
To unsubscribe, fill in your e-mail address at http://www.shusterman.com/subscribe.html#unsubscribe or send an e-mail message to majordomo@ls.shusterman.com, with the words "unsubscribe visalaw" in the body of the message.
For back issues of SHUSTERMAN'S IMMIGRATION UPDATE, see
Disclaimer: This newsletter is not intended to establish an attorney-client relationship. All information contained in this newsletter is generalized. Any reliance on information contained herein is taken at your own risk.
1. April 2002 State Department Visa Bulletin
2. Latest Governmental Processing Times
3. Physicians: USDA Terminates J Waiver Program For IMGs
4. INS Acts Quickly To Implement New E/L Law
5. Immigration Trivia Quiz: He's So Shy!
6. Board Of Immigration Appeal Clarifies Notice Requirement
7. Do Immigrants Want To Learn English? $1,500 Says They Do!
8. Proposed BIA Regulations Would Make Mockery Of Due Process
9. Chat Schedule, Transcripts, Audios & Videos
10. Justice Department's Absconder Apprehension Initiative
We link to the complete text of H.R. 1892 on our "Immigration Legislation" page at
under "Legislative Developments in 2001 and 2002".
under "Late Amnesty" and "Update on Late Amnesty Cases (February 2002)".
scroll down to "State Department" and click on "2001 State Department Country Reports on Human Rights Practices (March 2002)". We also have links to the 2000, 1999, 1998 and 1997 reports.
under "Late Amnesty and the LIFE Amendments".
Before visiting your congressional representatives, it is wise to bone up on the rules for private immigration bills. The Subcommittee on Immigration and Claims of the House of Representatives recently updated its "Rules of Procedure and Statement of Policy for Private Immigration Bills". We link to this important document on our "Immigration Legislation" page at
After the attacks of September 11, the government ceased processing refugees. Bernadette Passade Cisse of the U.S. Catholic Conference stated that "the refugee program was the only program stopped, while tourists and students were allowed to keep entering the United States". Strange, since none of the terrorists were refugees. All were tourists and students.
Refugee advocates are afraid that if the State Department has its way, the number of refugees admitted to the U.S. would be reduced to 50,000 or less annually. Before the hearing, Senators Leahy (D-VT), Kennedy (D-MA) and Brownback wrote to INS Commissioner Ziglar and Secretary of State Powell and ask them to make the necessary efforts to process all 70,000 refugees this year.
At the legislative hearing, the INS and the State Department promised to do just that.
The witness testimony from the subcommittee hearing is available on our "Immigration Legislation" page at
As usual, the family-based numbers showed either minimal or no forward movement. India and Philippine 4th moved one month and 1 and ½ months respectively. Philippine 3rd preference category (married sons and daughters of U.S. citizens) advanced eight weeks.
Mexico F2B category is unavailable for April and will remain unavailable for the remainder of the fiscal year 2002.
The Visa Bulletin creates false expectations. For example, a U.S. citizen parent of a single adult son or daughter is led to believe that his or her child will be able to immigrate in a little less than three years since the current priority date for the worldwide family-based 1st preference category is March 1, 1999. The unfortunate reality is that the there has been no forward movement in this category since November 2000. The parents and children should be informed of this fact, and advised either to seek other means to immigrate or to reconcile themselves to the fact that they will have to live their lives in different countries.
Unless Congress acts to reform the family-based system, the 3.5 million persons waiting to immigrate to the U.S. based on approved family-based petitions should consider other options for immigrating.
All of the employment-based numbers remain current. The time to apply for your labor certification or visa petition is now. We predict that sometime this year, visa numbers for persons born in India, China and possibly the Philippines will again begin to backlog.
The April 2002 Visa Numbers can be found at
For an explanation of what the categories, dates and symbols listed below mean, see
and
Check the State Department's official version to see complete information about the movement of family, employment and lottery numbers, at
Our web site contains the waiting times of each center and enumerates each state served by the center and any foreign offices within the center's jurisdiction.
The service centers periodically issue lists of their processing times for various types of applications. Our web site contains the latest list issued by each service center.
Warning: Processing times may appear faster on the official lists than they are in reality. These processing times are not recognized as official by the INS in Washington, D.C. and are not posted on the official INS web site.
To see how fast (or slow) your service center is processing a particular type of petition or application, see our Government Processing Times Page at
Processing times at INS District Offices may be accessed at
To check the Official Processing Times of your Department of Labor Regional Office and your State Employment Service Agency (SESA), click on
and scroll down to "Labor Certification and LCA Processing Times".
"As a result of its program review, USDA has come to the conclusion that while the program served valid and important purposes, the benefits of USDA's involvement are clearly outweighed by potential problems and risks. Therefore, effective February 27, 2002, USDA will no longer act as an interested government agency on behalf of those desiring recommendation of a J-1 visa waiver. Pending waiver requests will be returned to the sender."
Suddenly, a program that had assisted thousands of rural communities across the U.S. in obtaining the services of primary care physicians had ended.
Why? We can only speculate. Apparently, all USDA international programs were suspended after the terrorist attacks of September 11. Although many of these programs have been restored, the J waiver program for physicians was not. The USDA was apparently frustrated about having to maintain a program that was not funded by Congress. Also, for reasons that have more to do with history than logic, the program was located within the Agricultural Research Service rather than in the Rural Development program. The latter program has offices around the U.S., and would be in a better position to monitor compliance.
Whatever the reasons, the program's termination leaves rural America in the lurch. As we stated in Topic #3 of the August 2001 issue of SHUSTERMAN'S IMMIGRATION UPDATE ("Physicians: If There Were Fewer IMGs, Who Would Replace Them?"):
"Over 30% of rural counties in the United States are designated as medically underserved areas by the Federal Government. Fortunately, over 2,000 U.S.-trained physicians who were born abroad are serving the medical needs of Americans who live in these counties."
According to the federally-funded report by the Shep's Center at the University of North Carolina, the J waiver program for International Medical Graduates who complete their training in the U.S. is indispensable to providing primary medical care to persons who reside in rural America. See
The USDA operated the most significant program to supply primary medical care to rural America. Unless the USDA can be persuaded to restart their program, the only viable alternative on the horizon is for Congress to pass the bipartisan "Rural and Urban Healthcare Act of 2001" (S.1257). See
Section 5 of this bill would double the number of J waivers for physicians which each state could sponsor from 20 to 40 per year. In light of the sudden demise of the USDA's J waiver program (which had no numerical limitation), it might be wise to amend S.1259 to allow states to sponsor more than 40 physicians per year.
As stated in our Special Alert of March 3
health care providers should immediately contact their Members of Congress listed at
and request that they support S.1259.
On March 4, Senator Sam Brownback (R-KS), the Ranking Member of the Senate Subcommittee on Immigration wrote a strongly-worded letter protesting the USDA's decision to terminate the program. See this letter at
We promise to keep you updated as the situation develops.
As predicted, these bills were signed into law by President Bush on January 16, 2002.
The INS acted quickly to implement these laws by issuing a memorandum on February 22, 2002. See
We have written a simple FAQ to help guide employers, employees and spouses who benefit from the laws. See
On March 18, we will conduct a free, online chat regarding the new laws.
and be the first person to answer a few simple questions and e-mail them to me at carl.shusterman@gte.net
The winner gets a free legal consultation with me during the month of March.
Why is this important? Because while many of the approximately 314,000 persons who the INS estimates are present in the U.S. despite being under final orders of deportation may have simply chosen not to leave the country, there are ten of thousands of persons, perhaps over a hundred thousand persons, who were ordered deported in absentia, and never even received notice of their deportation hearings. These persons can, and in most cases should, move to reopen their deportation proceedings.
The BIA decision, entitled "In re G-Y-R-", 23 I & N Dec. 181 (BIA 2001) involves a woman from El Salvador who entered the U.S. in March 1982 and applied for asylum two months later. In 1991, she updated her address with the INS. In 1997, the INS sent her an interview notice by regular mail. Although it is unknown whether the woman ever received the notice, she did not appear for her interview. Five days after the interview, the INS, by certified mail, sent the woman a Notice to Appear (NTA) for a removal hearing. The NTA was returned to the INS by the Post Office. The Immigration Judge rejected the INS's argument that the woman had received proper notice of the hearing, and terminated removal proceedings. The INS appealed. The Judge's Order was returned to the Court by the Post Office with the notation "Moved, Left No Address".
The BIA, in an en banc decision, voted 17-2 to dismiss the INS's appeal. In a lengthy decision in which the notice portion of the statute is analyzed in detail, the Board held as follows:
"Accordingly, we find that an address can be a section 239(a)(1)(F) address only if the alien has first been informed of the particular statutory address obligations associated with the removal proceedings and of the consequences of failing to provide a current address. Because that information is first communicated in the Notice to Appear, the alien must receive the Notice to Appear before he or she can "provide" an address in accordance with section 239(a)(1)(F) of the Act."
and
"In short, the notice requirement leading to an in absentia order cannot be satisfied by mailing the Notice to Appear to the last known address of the alien when the alien does not receive the mailing."
Since this BIA decision was issued on October 19, 2001, the validity of many in absentia orders of deportation issued prior to that date is now open to question.
INS regulations, at 8 CFR 3.23(b)(4)(iii)(A)(2), provide that a person may submit a Motion to Reopen a removal/deportation order entered in absentia "at any time if the alien demonstrates that he or she did not receive notice ..."
In light of "In re G-Y-R-", and the increased attention being devoted to persons present in the U.S. under final orders of removal/deportation, this is an excellent time for eligible persons to submit Motions to Reopen. Otherwise, these same persons may find themselves submitting hurried motions after they have been arrested and incarcerated by the INS. The complete text of "In re G-Y-R-" is available online at
"And now they are coming to our country in great numbers. Few of their children know English. They bring in much of their own reading from their homeland and print newspapers in their own language. In some parts of our state, ads, street signs, and even some legal documents are in their own language and allowed in courts... Unless the stream of these people can be turned away from our country to other countries, they will soon outnumber us so that we will not be able to save our language or our government."
Who said this? Congressman Lamar Smith? Pat Buchanan? Read on...
One of the old saws that the anti-immigration lobby likes to repeat about immigrants, particularly Hispanic immigrants, is that they do not want to learn English and that if we don't drastically decrease immigration before it is too late, the United States will go the way of Canada, and become a bilingual society.
How does this fear square with reality? We recently read an article about "Ingles Sin Barreras" (English Without Borders), a 12-part course of audio cassettes, booklets and videos which is popular among Hispanic immigrants to the United States. How popular? Over the past 14 years, it has become the most popular brand name on Spanish language television, ahead of Coca Cola and McDonalds! Despite its $1,500 price tag, 30,000 sets of the product were purchased last year. And the Ingles Sin Barreras is, no surprise, the brainchild of an immigrant.
English as a Second Language (ESL) courses have long been offered in public schools, community colleges, churches and other nonprofit organizations. However, the demand for ESL classes has long outstripped the supply.
The private sector has stepped in to fill the demand. John Bennett, the chief of the North American operations of Berlitz International, Inc. states that ESL is the "fastest-growing market in the U.S."
Ingles Sin Barreras is the most popular private ESL course, but it is not the only one. Among it's competitors, besides Berlitz, are Ingles Ahora (English Now) and Ingles Total.
With all this demand for English classes among Hispanic immigrants, we don't think that there is any reason to worry about the future of the English language in the United States.
So whose quote was featured at the beginning of this topic? The speaker was Benjamin Franklin in the 18th century. And who was he referring to? German immigrants!
Sadly, nativism is as much a part of our history as the Statue of Liberty. See "Cycles of Nativism in U.S. History (National Immigration Forum)" on our "Immigration History and Genealogy" page at
So finally, the Justice Department has realized that the increase of thousands of new Border Patrol officers during the past decade has done little or nothing to reduce the number of persons residing illegally in the United States? Hardly! Rather than reducing the number of agents, the President's fiscal year 2003 budget calls for the addition of 570 new positions, an increase of 5,000 officers since 1996.
The quote above is actually a slight reworking of a paragraph in the Justice Department's proposed regulations of February 19 to revamp the Board of Immigration Appeals (BIA) which seeks to justify reducing the number of BIA members from 23 down to 11.
Here's the Justice Department's logic: During the past few years, the number of backlogged appeals has increased from a few thousand to over 56,000. During the same period of time, the number of Board members has increased from five to 23. Yet the backlog continues to grow. Conclusion - the BIA is inefficient. The answer is, therefore, to introduce a number of measures to improve efficiency, and, at the same time, reduce the number of Board members by over 50%.
One problem with this logic is at the same time that the Justice Department is proposing to cut the number of BIA members in half, it is increasing the number of Immigration Judges (IJs). The more Judges, the more appeals. Back in the Dark Ages (1980-82) when I was an INS Trial Attorney, there were a mere six IJs in Los Angeles. Today, there are over 25 IJs in LA, plus a few more working in nearby detention centers. The number of IJs nationwide is well over 200, up from less than 70 in 1990. The number of matters handled by IJs has more than doubled from 1984 to 2001, from 127,000 to 284,000. Given the large increase in the number of removal hearings, it is obvious why the number of cases appealed to the BIA has skyrocketed during the past decade. In 1984, the BIA received less than 3,000 cases. By 1992, that amount had grown to almost 13,000, and by 2001, the number had increased to 28,000, almost a ten-fold increase since 1984.
How did the BIA perform? The BIA (with 23 members authorized - currently, there are four vacancies) issued decisions on more than 32,000 matters in 2001, over 10 times more than the five-member BIA did in 1984, enabling the Board to slightly decrease the backlog. It is clear that the number of undecided cases has risen over the years in proportion to the avalanche of new appeals and motions. The problem with the BIA is not mainly inefficiency, although a few Immigration Judges who we spoke to have some great ideas for increasing efficiency at the Board, but too much work.
And just as the Justice Department continues to increase the size of the Border Patrol, its own internal logic should dictate that the size of the BIA should also be increased.
Why then does the Justice Department treat the BIA differently than the Border Patrol? We think that the answer lies in the fact that both the Justice Department and the Border Patrol are primarily law enforcement agencies, while the BIA is a tiny judicially-oriented segment of the Department. Efficiency is a major goal of law enforcement agencies. However, where the judiciary is concerned, considerations of efficiency must be tempered by concerns about fairness. Such concerns have made the BIA as irritating to the DOJ as a grain of sand in the eye of Attorney General Ashcroft.
Hence, the "solutions" proposed in the February 19th regulation are geared to greater speed and "efficiency", and come at the expense of quintessence of what the judicial function is all about, "due process of law".
For example, under the proposed regulations:
For an excellent critique of the Justice Department's proposals, see the written testimony of AILA member Professor Stephen Yale-Loehr before the House Subcommittee for Immigration and Claims at
Also troubling is the attitude of the Justice Department in ignoring a letter signed by over 50 immigration advocacy organizations to seeking a 60-day comment period given the seriousness of the consequences of the proposed regulation.
No one disputes the need to reduce the backlog of appeals. The question is how best to do so without compromising the independence of the Board of Immigration Appeals. For many persons with pending appeals, it is simply too costly to assert their rights in Federal Court. Over one-third of all appeals are submitted by persons who are not represented by attorneys. Often, the BIA is their Court of Last Resort.
We agree with the proposal submitted by the National Association of Immigration Judges to establish an independent agency in the Executive Branch, separate from the Department of Justice, to house both the Immigration Courts and the BIA. See Topic #6 in the February 2002 issue of SHUSTERMAN'S IMMIGRATION UPDATE.
We link to the Justice Department's proposed regulation to revamp the BIA on our "Deportation" page at
Please submit your written comments regarding these regulations to Charles K. Adkins-Blanch, General Counsel, Executive Office for Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church, VA 22041 before March 21, 2002.
Our latest chat, which was conducted on February 18, is entitled "The H-1B Portability Rule: How To Change Employers". A transcript of the chat will be online soon.
Our next chat will occur on March 18. It is entitled "New Laws Provide Benefits For E & L Visaholders (And Their Spouses)". You may wish to read our FAQ on the new E/L law before entering the Chat Room. See
To read the complete text of our chats, see our Chat Page at
Immigration Audios Are your eyes getting tired from reading all of our information about immigration laws and procedures? Then sit back, close your eyes, and listen to any (or all!) of the following immigration audios:
See my testimony before the Senate Subcommittee On Immigration on May 22, 2001 regarding "Immigration Policy: Urban And Rural Health Care Needs" at
or read the complete transcript of my testimony at
Remember, you will need to download a free copy of RealPlayer 8.0 which you can find at
in order to hear the audios or to view the video.
The "absconders" which the government seeks to apprehend are an estimated 314,000 persons present in the U.S. who are under final orders of deportation.
The memo states that "while the INS will undertake to deport all 314,000 from the United States, there are several thousand among that group who come from countries in which there has been Al Qaeda terrorist presence or activity. We want to focus our initial efforts on these priority absconders, as we believe that some of them have information that could assist our campaign against terrorism."
The memo then goes on to explain, in some detail, the process for apprehending and interviewing and prosecuting/deporting "priority absconders".
Reading the memo, I was struck by the huge amount of paperwork and manpower required to implement the initiative. I wonder what evidence the Justice Department possesses, if any, that there are a significant number of persons under final orders of deportation (which is what identifies one as an "absconder") who have knowledge of Al Qaeda activities.
For example, we know that of the 19 terrorists who hijacked the four airliners on September 11, all but one entered the United States using valid tourist visas. One used a student visa. None of the terrorists had applied for asylum or was under deportation proceedings. None one was an absconder, priority or otherwise. Why then would one focus on the ranks of persons under final orders of deportation in an attempt to locate Al Qaeda members and sympathizers? In fact, wouldn't it be more likely that they, like the 19 terrorists, would do everything possible not to call attention to them? Wouldn't it be safer for them to be present in the U.S. legally than illegally? They could be U.S. citizens, permanent residents, students or tourists. However, if any of them are under a final order of deportation, this would leave a paper trail a mile long. Not very smart for a person who wants to remain anonymous and unnoticed until it is time to hijack a plane, explode a bomb or commit some other terrible crime.
In seeking to enforce INS deportation orders against "absconders", most of who are citizens of Mexico and various Central American countries, and in trying to apprehend Middle Eastern terrorists, isn't the government mixing apples and oranges?
The Justice Department memo can be accessed at
(P.S. - No one won the February 2002 Immigration Trivia Quiz. The persons pictured were all honored at the American Immigration Law Foundation's Immigrant Achievement Awards on March 8. See http://www.ailf.org)
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
"In a free society, diversity is not disorder. Debate is not strife. And
dissent is not revolution."
March 8, 2002