SHUSTERMAN'S IMMIGRATION UPDATE
(December 2004)

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

The AAO's most recent published processing times (September 7, 2004) may be found at

To check the Official Processing Times of your Department of Labor Regional Office and your State Workforce Agency (SWA), see

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

3. President Revives "Guest Worker" Program - An Amnesty?

On November 21, the President met with Mexican President Vicente Fox at a multinational conference in Santiago, Chile. While President Bush reiterated his support for a guest worker program, he was vague about the details of the program. See

Is the President's plan simply a "guest worker" program, or will it include an opportunity for the guest workers to obtain permanent residence in the U.S.?

The President's January 7, 2004 speech clearly indicated that he was proposing that Congress allocate an unspecified number of immigrant visas which could be used by the guest workers to obtain green cards. During the last Congress, no less than seven immigration bills were introduced which included an amnesty component. One was introduced by Senator John McCain (R-AZ) who the President met with following the election in order to discuss immigration issues.

The problem for the President is any guest worker program which provides for temporary visas without opening a path to permanent residence would be viewed as a sham, and would not be used by many illegal workers out of fear that they would be deported when the program ended. On the other hand, the President has been careful not to utter the dreaded "A" word - amnesty.

Why is this when amnesty, or as the Democrats like to say "earned legalization", is so central to his program?

The simple fact is that most of the opposition to such a program is expected to come from the President's own party. Representative Tom Tancredo (R-COLO), the leader of the Congressional (Anti-) Immigration Reform Caucus doesn't mince words in criticizing the President's proposals: "An amnesty by any other name is still an amnesty, regardless of what the White House wants to call it." Tancredo uses strong language to criticize President Bush's plans: "Their amnesty plan was dead on arrival when they sent it to the Congress in January, and if they send the same pig with lipstick back to Congress next January, it will suffer the same fate."

We link to an audio program aired on November 25 by National Public Radio entitled "Bush's 'Guest Worker' Plans Face GOP Dissent" from our "NPR" page at

In the final analysis, however, President Bush will have to reach across the aisle to secure Democratic votes for his proposal. Forget about the Red states and the Blue states. This is what real Presidential leadership is all about.

4. EB Numbers Will Backlog in January - Strategic Planning

Last time that the EB-3 numbers were backlogged was in June 2001. Mainland China was backlogged for 10 months and India for 2 1/2 years. We predict that the new backlogs will date back to 2001 or 2002.

What will the new backlogs mean for you?

First, the regressions will only affect you if you were born in one of the "Axis of Anxiety" countries (mainland China, India or the Philippines) and you qualify to obtain permanent residence in the employment-based third preference (EB-3) category (professionals and skilled workers).

Here are some possible scenarios:

Assume that the EB-3 numbers will backlog for two to three years. In many states, it takes 2-3 years to obtain the approval of an RIR labor certification (e.g., California, 2+ years; New York, 3+ years). Since the filing of your labor certification establishes your priority date, by the time that the labor certification is approved, your priority date may be current, and you can proceed to file your application for adjustment of status (I-485) concurrently with your employer's visa petition (I-140).

However, if your job is located in a state where RIR labor certifications are processed more rapidly (e.g., Illinois, Minnesota, Ohio, Kansas, Missouri, Nebraska - all in a little over one year), your current advantage over people who work in California and New York will disappear since even after your labor certification is approved, you may have to wait another year or two to apply for adjustment of status.

What if PERM is finally enacted, and you are granted a certificate by the Labor Department within a few months?

Time to pop open the champagne? Not if you were born in one of the "Axis of Anxiety" countries (For those of you who haven't been following this discussion closely, that would be mainland China, India or the Philippines). You would have to wait another two to three years in order to apply for adjustment of status.

Since it may take two or three years for you to adjust your status, by the time the government is ready to make a decision on your application, your EB-3 visa number may be current. However, if the CIS speeds up its adjustment of status processing times, you would have to wait much longer for your I-485 to be approved than you would if you were born another country (e.g., Monaco or Canada). You would still be able to change jobs after your I-485 had been pending 180 days assuming that your I-140 was approved.

Persons with pending applications for adjustment of status are entitled to Employment Authorization Documents (EADs), and may be able to keep working in the same or a similar occupation as that which was listed on their labor certifications until they are approved for permanent residence.

Here's where the big trouble starts. Even if PERM is implemented, and the CIS reduces I-485 processing times to 90 days (or to 90 minutes!), it's still going to take you up to three years to immigrate to the U.S. because of the EB-3 backlogs. Frankly, how are you going to find an employer who is willing to wait that long to employ you unless your favorite uncle has a job opening at his company?

Our sincere regrets! You could be in VERY bad shape.

See the article "Visa Caps Seen Adding to RN Staffing Woes" which links to the American Hospital Association News issued on November 29. This article quotes me and several other attorneys. We have posted this article on our "Nurse" page at

Physical therapists may work in the U.S. by obtaining H-1B status although since the H-1B numerical cap has been reached for this fiscal year, this may be no easy task. However, most RNs are ineligible for H-1B visas since the average nursing job does not require that a nurse have a four-year university degree in order to practice her profession in the U.S.

The American Hospital Association took a survey a couple of years ago, and found that there were 126,000 RN vacancies in hospitals alone. This doesn't include RN vacancies in skilled nursing facilities, convalescent homes and the like. Now, a new study predicts that because of the demand for nursing services caused by the aging baby boomer population, the number of job vacancies for RNs may reach 600,000 by 2020. For articles and studies about the growing shortage of nurses in the U.S., see our "Registered Nurse" page at

Even if you are an RN who has a pending application for adjustment of status, you may be forced to wait much longer to adjust your status to permanent resident. Where the California Service Center adjusts the status of many RNs in a little over one year, this period of time could double or even triple depending on the length of the backlogs. Meanwhile, you may continue to work while your application is pending using your EAD.

But what if you are an RN who has recently arrived in the U.S. on a tourist visa? Are you visiting Disneyland or the Grand Canyon? Perhaps, but my guess is that you have also registered to take a state licensing examination (NCLEX- RN). If you apply in a state like California, it will take you over six months to sit for the examination. By this time, your six-month tourist visa will be about to expire and you will probably request an extension for an additional six months. However, when the EB-3 backlogs hit the California coast like a tsunami on January 1st, what good will the extra six months do?

The cruel reality is that most RNs will be forced to return to their home countries for two to four years and then immigrate from abroad. Failure to return home in a timely manner could subject you to the 3/10 years bars to returning to the U.S. Despite the severity of the national shortage of nurses in the U.S., we will begin to develop a backlog of RNs who are licensed in the U.S. and have job offers here, but must remain abroad until Congress rewrites our immigration laws.

One more time, why are the EB-3 numbers going to backlog in January?

The simple answer is that the Immigration Service approved too few applications for adjustment of status in the last few fiscal years. Over 100,000 immigrant visa numbers were lost because of bureaucratic inertia. Now that the government is approving hundreds of thousands of applications in order to decrease backlogs, the quotas imposed by the law force the State Department to establish backlogs in the EB-3 category in order that the number of green cards granted this fiscal year do not exceed legal limits.

Of course, Congress could easily amend the law in order to allow the Immigration Service to "recapture" visa numbers lost in prior years. This would be identical to what was done in the "American Competitiveness in the 21st Century Act of 2000" when Silicon Valley was hard-up for computer programmers and analysts. Also, given the growing need for registered nurses, Congress would be wise to re-establish a temporary category for RNs. Such a category existed and worked well between 1952 and 1995 when congressional inaction allowed the category to wither and die. I testified before the Senate back in 2001 that re-instituting a temporary visa program for nurses would be a good idea, and I haven't changed my mind on this issue one iota. See a video of my testimony at

We will post the January 2005 Visa Bulletin online as soon as it is issued by the DOS. This will probably occur within a week or two. Check our "Visa Bulletin" page at

5. Immigration Trivia Quiz: Green Cards through Investment

Generally, to qualify for permanent residence, the immigrant must invest $1 million in the new business. However, the law provides that if the investment occurs in a rural area, a "targeted" area or an area of high unemployment, the immigrant need only invest $500,000 in the business.

How does an investor locate such areas? Usually, with the help of an immigration attorney who specializes in investor visas. Some states post this information on the web. For example, California does so at

Remember, speed is not essential to winning this month's quiz. The person with the most correct URLs wins.

Send your answers, along with some biographical information about yourself (Are you an immigrant? If so, where are you from? Where do you live? What is your occupation? Special interests?), tell how you solved the quiz, how long you have been a subscriber to our newsletter and what you use our newsletter/website for, to:

The first person to send in the correct answer will receive a free consultation for the month of December 2004.

6. Deportation: Courts Issue Two Important Decisions

On November 9, in a unanimous decision, Leocal v. Ashcroft, the U.S. Supreme Court, in a decision authored by Chief Justice Rehnquist, held that a conviction for driving under the influence of alcohol, where serious bodily harm results is not a "crime of violence" under 18 U.S.C. 16. This prevents the Immigration Service from deporting long-time immigrants as "aggravated felons" which effectively deprives them of applying for relief from removal despite that the fact that many such persons have spouses, parents and children in the U.S. who are U.S. citizens.

We link to the Court's decision from our "Deportation" page at

On November 18, the 9th Circuit Court of Appeals stuck down government regulations which allowed an Immigration Officer to deport a person who had previously been removed from the U.S. and had re-entered illegally. The Court ruled that only Immigration Judges have the right to order a person to be removed from the U.S. unless the law provides otherwise. The person accused has the right to a hearing before a Judge, may be represented by an attorney and may present evidence on his behalf.

The U.S. Court of Appeals for the Ninth Circuit ruled in Morales-Izquierdo v. Ashcroft on November 18, that the government must go back to the drawing board and craft a new regulation which allows re-instatement of removal orders only by Immigration Judges.

We link to this important decision from our "Deportation" page at

7. Employment and Family-Based Immigration: Success Stories

In the early 1990s, Ms. H committed the very serious error by entering the United States with a fake passport. Although her transgression was not initially discovered, it eventually came to light during her green card interview, as she had in the meantime married a U.S. citizen and was requesting permanent residency.

Ms. H had only one option to avoid the denial of her permanent residency application: the filing of an application for a waiver of inadmissibility (form I-601). The Immigration Service may grant such a waiver if extreme hardship would result to a spouse or parent who is a U.S. citizen or lawful permanent resident. Without this waiver, Ms. H would not be able to obtain her green card. Ms. H's request for a waiver was quickly denied by the Immigration Service. She was given 30 days to appeal this decision.

Two days before her appeal deadline, Ms. H approached our office. A review of her prior waiver application and the denial revealed how little consideration the Immigration Service had actually given Ms. H's case. In fact, the denial did not mention any of the favorable factors that she had presented. Instead, it merely discussed the legal standard and judicial decisions regarding extreme hardship waivers, and summarily concluded that she was not eligible for such relief. We promptly filed an appeal requesting that the Immigration Service address each specific issue of Ms. H's case. We stressed that a denial of this application would most certainly lead to extreme hardship for Ms. H's family: Her husband suffers from a chronic and debilitating back condition which requires on-going therapy. As a nurse, Ms. H is able to provide much-needed assistance to her husband on a daily basis. Her stepdaughter has been diagnosed with a severe hearing impairment, in addition to developmental delays. Ms. H is a hard-working person who contributes positively to her community. She also has a close relationship with her numerous sisters, brothers, nieces and nephews who live close by. In our appeal, we reminded the Immigration Service of their obligation to consider all of these factors together in making their determination.

Three months later, Ms. H's waiver had been granted on appeal. She is now a lawful permanent resident of the United States.

Obtaining approvals of petitions and applications submitted to the Immigration Service is more an art than a science. Even the strongest case may encounter unexpected resistance as a result of the personal quirks of an individual officer. Take, for example, Mr. P, who had been hired as Online Managing Editor for a popular extreme sports magazine. We filed a request to classify Mr. P as a Multinational Manager/Executive. Mr. P's qualifications were undeniable. However, the government demanded additional evidence to prove that his employer, an affiliate of a prominent publishing conglomerate, was a bona-fide corporate entity.

We submitted payroll documentation, corporate balance sheets, copies of the employer's lease agreement, photocopies of the various magazines published by Mr. P's employer and even photocopies of the business premises, but to no avail: the officer still doubted the legitimacy of the company!

This sort of back-and-forth with the Immigration Service culminated in a Notice of Intent to Deny, where the officer required that we submit numerous corporate documents relating to the parent company, most of which were either redundant with documentation we had already submitted or in no way relevant to the issue at hand. Nonetheless, we waded through stacks of documents and spent many hours on the phone and at the fax machine negotiating and organizing the transfer of all the documents requested by the Immigration Service. In the end, our perseverance paid off, and Mr. P's green card was approved.

8. Direct Mail Submissions of I-485s, I-765s and I-131s

According to the CIS Press Release, this will enable the agency "to more efficiently process applications, deposit fees and provide enhanced customer service."

These forms must be mailed to one of the following two addresses:

* U.S. Citizenship and Immigration Services
P.O. Box 885807
Chicago, Illinois 60680-4120

Or

* For non-U.S. Postal Service (USPS) deliveries (e.g.,private couriers) to

U.S. Citizenship and Immigration Services
427 S. La Salle - 3rd Floor
Chicago, Illinois 60605-1098

The direct mail program will be implemented in the following two phases:

PHASE ONE: Will begin on December 1, and will affect certain aliens filing I- 485s/765s/131s who live in any of the following states: Alabama, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia, Wisconsin, Wyoming, as well as the District of Columbia, Guam, Puerto Rico, and the Virgin Islands of the United States.

PHASE TWO: Will begin on April 1, 2005, and will affect certain aliens filing I-485s/765s/131s who live in any of the following states: Alaska, California, Idaho, Iowa, Kansas, Maryland, Missouri, Montana, Nebraska, New Mexico, Oklahoma, Oregon, Texas, and Washington.

The Direct Mail program applies to a wide variety of applications filed under the family-based categories, the DV lottery and various other non-employment- based categories.

Caveat: It may be some time before the addresses of the Chicago Lockbox are included on forms I-485, I-765 and I-131.

During the first 30 days, other USCIS offices will forward to the Chicago Lockbox address any filings of Form I-485, Form I-765, and Form I-131 they receive that are covered by the new procedures. Applications forwarded from the other USCIS offices will be considered properly filed when receipted at the Lockbox.

After the 30-day transition period, any application-type included in the new procedures, received at a location other than the Lockbox address will be returned with an explanation directing the applicant to mail the application directly to the Chicago Lockbox address for processing. We link to the USCIS Press Release and to the Federal Register notices from our "Green Card" page at

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

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:

• 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 November 2004 Immigration Trivia Quiz

Dear Mr. Shusterman,

Here are the answers I hope:

1) Shampoo	Hindi
2) Checkmate	Farsi
3) Ketchup	Chinese
4) Schlep	Yiddish
5) Boondocks	Tagalog
6) Molasses	Portuguese
7) Tycoon	Japanese
8) Coach	Hungarian
9) Democracy	Greek
10) Dollar	German

My name is Stephanie, I am an American citizen married to a Salvadoran who has been unable to adjust his status through me.

I hope we are the first ones this time.

Thanks,

Stephanie Fidel

Although over 60 subscribers submitted answers during the first 24 hours after we e-mailed the quiz, you were indeed the first to do so. Congratulations - I look forward to speaking with you!

December 1, 2004

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

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