SHUSTERMAN'S IMMIGRATION UPDATE
Volume Eighteen, Number Two
SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 30 years of experience practicing immigration law.
Published by the Law Offices of Carl Shusterman, 600 Wilshire Blvd, Suite 1550, Los Angeles, California, 90017. Phone: (213) 623-4592 x 0.
“Very professional law firm. We had a difficult issue and Mr. Shusterman’s office got right onto the case and resolved the issue with USCIS. Because of their efforts, me and my family were able to get our Legal Permanent Residency card. My suggestion to those trying to obtain employment based card. Don’t look for money saving attorney. They will cost you lot more in long run. Go to a law firm which is professional and knowledgeable. It pays in the long term.” (More client reviews…)
TABLE OF CONTENTS:
1. Comprehensive Immigration Reform in 2013?
2. New I-601A Provisional Waiver: Frequently Asked Questions
3. Shusterman’s Immigration Law Seminars
4. The Battle over CSPA Heads to the Supreme Court
5. Success Story: Getting a Green Card in Juarez (The Hard Way)
6. Immigration Trivia Quiz: Immigrant Nobel Prize Winners
7. State Department Visa Bulletin for February 2013
8. Immigration Government Processing Times
9. Ask Mr. Shusterman: Immigration Legal Consultations via Skype
10. Winner of Our January 2013 Trivia Quiz!
Skype Consultations Available!
- Asylum Denial Rate Falls – The number of asylum cases denied in Immigration Court fell to an all-time low last year reports the Transactional Records Access Clearinghouse (TRAC). Twenty years ago, Immigration Judges denied 76% of all Requests for Asylum. However, in FY 2012, the percentage of denials fell to 44.5%
- Cancellation of Removal – Think that having your application for Cancellation of Removal denied by the BIA is the end of the line? Well, it ain’t necessarily so as the recent decision by the U.S. Court of Appeals for the 9th Circuit in Arteaga-De Alvarez v. Holder demonstrates. Don’t give up hope!
- Cost of Immigration Enforcement – According to a 182-page report entitled Immigration Enforcement in the United States issued by the nonpartisan Migration Policy Institute, our country spends more money on immigration enforcement – $16 billion in fiscal year 2012 – than the combined budgets of the FBI, Drug Enforcement Agency, Secret Service, U.S. Marshal Service and the Bureau of Alcohol, Tobacco, Firearms and Explosives. There must be a better, less expensive, way to administer our immigration laws!
- Court Interprets “Lawful Status” Under 245(k) – In a recent case of Asim Chaudhry V. Eric Holder, the 7th Circuit court has held that a pending adjustment of status (AOS) application does not provide the applicant “lawful status” for AOS purposes under section 245(k) where the Petitioner’s underlying nonimmigrant status had expired.
- DACA Recipients Have Lawful Presence in US – On January 18, the DHS announced that undocumented youth granted Deferred Action for Childhood Arrivals (DACA) are authorized to be in the U.S. and thus considered to be lawfully present in the US, making it difficult for states like Arizona, Iowa, and Michigan to deny their driver’s licenses.
- HHS Poverty Guidelines 2013 – The 2013 Poverty Guidelines were released by the Department of Health and Human Services (HHS) in the Federal Register on January 24. These guidelines help account for last year’s increase in prices as measured by the Consumer Price Index.
- Immigration “How-To” Videos – Our 35+ “How-To” Immigration Videos have been viewed well over 360,000 times. Subjects include how to obtain a green card, become a U.S. citizen, win your case in immigration court and select an immigration attorney. Our video Green Cards through Marriage has been viewed over 145,000 times. We encourage you to take advantage of this free resource.
- Online PERM and LCA Registry – There are reports that the Department of Labor plans to launch an online registry of PERM and labor condition applications (LCAs) on July 1, 2013 on the iCERT visa portal system. The registry will include PERMs and LCAs certified since April 15, 2009 and new PERMs and LCAs will be included within two business days of certification.
- Online Visa Status Check – The State Department has introduced its new online Visa Status Check to allow both immigrant and nonimmigrant applicants to check the status of their cases at the Consular Electronic Application Center.
- Reminder: New Immigrant Fee Takes Effect February 1 – In a January 28 blog post, the USCIS reminds those who receive an immigrant visa package from a US embassy or consulate abroad that beginning February 1 they will have to pay a new immigrant fee of $165 in addition to the State Department application fee.
- Revised Forms I-90 and I-601 – USCIS has published its revised Form I-90, Application to Replace Permanent Residence Card, and revised Form I-601, Application for Waiver of Grounds of Inadmissibility. Previous editions of these forms will only be accepted until April 16, 2013.
- Senators Seek H-1B Cap Increase – A bipartisan group of senators is planning to introduce the Immigration Innovation Act of 2013 to not only increase the H-1B cap to 115,000 visas per year, but to allow the cap to automatically rise with demand up to a maximum of 300,000 visas annually.
- TPS Extended and Redesignated for Sudan and South Sudan – On January 9, DHS announced the extension and redesignation of Temporary Protected Status (TPS) for Sudan and South Sudan, effective May 3, 2013 through November 4, 2014. This allows eligible individuals to retain and additional eligible individuals to apply for TPS.
- USCIS Expands Online Case Tools – USCIS has made available new options for applicants who wish to check the status of their applications online by expanding its “e-Request” and “My Case Status” tools and expanding its call center hours.
- USCIS Policy Manual – On January 7, USCIS began its transition toward an online, centralized immigration policy manual. There will be 12 volumes in total, and the first volume released was on Citizenship and Naturalization.
- USCIS Releases DACA Updates – As of January 17, almost 400,000 DACA applications have been accepted, over 370,000 biometrics appointments scheduled, and nearly 155,000 requests approved. USCIS has also clarified that DACA recipients are considered by the DHS to be lawfully present in the U.S. while their deferred action is in effect.
- VAWA Reauthorization Bill to Hit Senate Floor – Senate Bill 47, introduced by Senators Leahy and Crapo reauthorizing the Violence Against Women Act (VAWA), is expected to hit the Senate floor in early February.
1. Comprehensive Immigration Reform in 2013?
This week, a bipartisan group of Senators and President Obama outlined plans for what could very well be a major immigration reform law in 2013.
On Monday, January 28, 8 Senators (4 Democrats and 4 Republicans) laid out a plan for comprehensive immigration reform. The plan is based upon the following 4 pillars:
1. Create a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required;
2. Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families;
3. Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers; and,
4. Establish an improved process for admitting future workers to serve our nation’s workforce needs, while simultaneously protecting all workers.
With regard to legalization, the Senators state that although undocumented immigrants will, after satisfying certain requirements such as paying fines and back taxes, be able to obtain “probationary legal status” and be able to secure work permits. Those with serious criminal records will not be eligible for such status and will be subject to deportation. Persons who are able to qualify for work permits under this new system will not be able to become permanent residents ahead of the 4 ½ million persons currently waiting for green cards. Of course, from our experience, many of these people are one and the same. The Senators indicate that those who came to the U.S. as children will fare better than those who did not. Agricultural workers will also be entitled to special preference.
The Senators recognize the necessity of fixing the “broken” legal immigration system. They recognize that the waiting times are far too long. In addition, persons who have earned Ph.D. or M.S. degrees from American universities will receive special treatment in qualifying for green cards.
Employers can expect that the bill will include a mandatory E-Verify system, and harsh penalties for those who knowingly hire undocumented workers. However, the plan would create a system making it easier for employers to hire immigrants if they are able to demonstrate that doing so will not displace U.S. workers. This will be particularly true for farm workers.
With regard to enforcement, the proposal would put in place a system for tracking whether persons on temporary visa leave the U.S. in a timely fashion. The Border Patrol will be provided with additional resources, training and technology.
The next day, President Obama delivered a major speech on immigration reform.
The President stated: “It won’t be a quick process, but it will be a fair process, and it will lift these individuals out of the shadows and give them a chance to earn their way to a green card and, eventually, to citizenship.”
Further, President Obama stated that he expects Congress to act to pass a Comprehensive Immigration Reform bill in a timely fashion, and if they did not do so, he pledged to bring his own proposal before Congress and force lawmakers to vote on it quickly.
He repeated his long-standing opposition to making legalization contingent on a more “secure border”. However, he pledged to increase the processing of foreign visitors, continue his administration’s strong deportation policies against criminals and focus on cracking down on criminal smuggling networks.
The White House posted a fact sheet entitled Fixing our Broken Immigration System So Everyone Plays by the Rules online.
Two weeks from now, a bipartisan group of members of the House of Representatives is scheduled to present their legislative immigration reform proposals to the American people.
In addition, on January 29, another bipartisan group of Senators introduced the “Immigration Innovation Act of 2013” in the Senate. There is a possibility that this legislation may be incorporated into the broader immigration reform act.
This proposal, popularly dubbed “The I-Squared Act of 2013” would make a number of positive changes in highly-skilled temporary worker categories and make it easier for highly-skilled workers to immigrate to the U.S.
Chiefly, the bill would:
- Dramatically increase the H-1B cap;
- Make the F-1 visa “dual intent”;
- Exempt certain categories of EB workers from numerical caps;
- Allow for the recapture of unused EB immigrant numbers;
- Allow for revalidation in the U.S. of persons with E, H, L, O and P visas; and
- Permit H-4 spouses to obtain work permits.
We have created an “Immigration Reform” page on our red menu near the top of our website. We link to the bipartisan Senate proposal, the President’s speech, the text of legislative proposals and media stories and videos. Please stay with us as we follow this important immigration debate and participate by joining on our Facebook page and our “Immigration Forum” on Google Plus.
2. New I-601A Provisional Waiver FAQ
On January 3, 2013, the DHS published a regulation which will, as of March 4, 2013, allow persons who entered the U.S. without inspection (or who are otherwise ineligible to adjust their status in the U.S.) to apply for “form I-601A provisional waivers” to excuse their unlawful presence in the U.S. Once their waivers are approved by the USCIS, they will be eligible to attend their appointments for immigrant visas (“green cards”) abroad.
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 a 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” cannot 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)?
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?
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.
3. Shusterman’s Upcoming Immigration Law Seminars
- Federal Bar Association
Immigration Law Seminar
University of Memphis Law School
May 17-18, 2013
Topic 1: “The Child Status Protection Act”
Topic 2: “Immigration for Physicians”
For more information, please see the conference brochure.
- American Immigration Lawyers Association (AILA)
Hilton San Francisco Union Square
San Francisco, California
June 29, 2013
Topic: “Informational Marketing Techniques to Start and Grow Your Practice”
4. The Battle over CSPA Heads to the Supreme Court
On January 25, the U.S. Department of Justice submitted a 150-page Petition for a Writ of Certiorari to the Supreme Court requesting the Court to review our victory in DeOsorio v. Mayorkas in the U.S. Court of Appeals for the 9th Circuit.
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 4th 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 3rd (married sons and daughters of U.S. citizens) and 4th (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 3rd or 4th 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 9th 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 5th 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 9th Circuit (The government did the same in the 5th Circuit, but their motion was denied.) which was granted. We participated in Oral Arguments in June 2012 and on September 26th, 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 5th and the 9th Circuit, ruled for the immigrants, while the 2nd 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 9th 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 9th Circuit and the 5th 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 1st 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 1st 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 9th and the 5th 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 9th 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.
5. Success Story: Getting a Green Card in Juarez (The Hard Way)
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 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 went 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 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.
6. Immigration Trivia Quiz: Immigrant Nobel Prize Winners
This month’s Immigration Trivia Quiz is entitled:
7. Visa Bulletin for February 2013
The Visa Bulletin for February 2013 showed no major advances.
Each of the worldwide family-based categories moved forward between 1 and 5 weeks while the worldwide EB-3 employment category edged ahead only 2 weeks. China’s EB-2 category advanced 5 weeks and its EB-3 category 7 weeks. India’s horror story continues with the EB-3 category advancing only a week and the EB-2 category not at all. Clearly, legislative action is required.
The charts below tell the story in more detail:
See the entire visa bulletin including information about the movement of the green card lottery numbers.
8. Immigration Government Processing Times
* Citizenship and Immigration Services (USCIS)
The Immigration Service (USCIS) lists its processing times for immigration petitions and applications on their website. 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 or local USCIS office is processing a particular type of petition or application, see Government Processing Times Page.
Administrative appeals of most types of petitions and waivers denied by the USCIS are adjudicated by the agency’s Administrative Appeals Office (AAO) in Washington, DC.
We link to the AAO’s most recent published processing times.
* Department of Labor
The Labor Department’s website contains a tab entitled “PERM Processing Times”. This enables you to see how long it is taking the Labor Department to complete its final review of standard PERM applications, audited cases, standard appeals and appeals where there are government errors.
* Department of State
The State Department’s website 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 various types of temporary, nonimmigrant visas.
9. Ask Mr. Shusterman: Immigration Legal Consultations via Skype
Since my website has been online for almost 18 years now, a lot of younger immigration attorneys think my parents named me Carl Shusterman.com.
Alas, if only that were true!
In reality, I am an Internet Idiot. From 1995 until 2010, my son constantly told me that unless I made my website a lot more attractive, no corporation would ever hire me once they looked at my website. Old curmudgeon that I am, I assured him that businesses were a lot more impressed when a site was content-rich than that because it was attractive. But three years ago, when I hired a web designer to pretty-up the site, I started to retain new corporate clients right and left. Who knew?
And since then, my 22-year-old assistants have convinced me to create a Spanish-language version of our site. And social media. We blog, Facebook, Twitter, Linked-In, YouTube, Google+, etc., etc. It’s all very educational, and very popular. Can you believe that over 350,000 people have watched videos of an old guy in a gray suit talking about such exciting stuff as temporary visas, green cards, citizenship, deportation defense and I-9 audits? Eat your heart out, Lady Gaga!
So, have I finally arrived in the 21st century? Well, sort of.
Traditionally, most of my clients schedule telephonic consultations with me. It’s not unusual for me to talk to people on 2 or 3 different continents in a single day. And despite getting them work visas, green cards and then, years later, U.S. citizenship, we never meet face-to-face with most of our clients .
All that changed last month when my assistants, Sandy and Hilary, persuaded me to buy a camera and start doing Skype interviews.
It wasn’t that I had never used Skype before. I have two grandsons who I don’t get to see as often I wish. So, we’ve been video chatting for the last three years. But I thought, I have no control over the connection speed of the person that I am Skyping with, and is Skype really ready for prime time?
Sandy told me to get over my concerns, and at a bunch of Christmas parties, younger colleagues of mine were surprised that I had never used Skype for business, so I decided to take the leap!
And on the same day that the I-601A provisional waiver regulations were announced, I Skyped with a family in New York where the husband qualifies for a provisional waiver. I spoke face-to-face with him and with his wife, and then their little girls got in front of the camera and waved to me. By the end of the consultation, I felt that I was a personal friend of the family. I think that they felt the same way. They retained our law firm to prepare the waiver, and I left my office that day with a smile that refused to disappear from my face!
Since then, I have done Skype consultations with clients as far away as the United Arab Emirates and as close by as West Los Angeles.
These days, I wonder why anyone would want to schedule a phone consultation with me when we could Skype instead.
10. Winner of our January 2013 Immigration Trivia Quiz!
January’s Immigration Trivia Quiz was entitled: Making Music: Famous Immigrant Conductors. Below is the message that we received from the winner:
“Dear Mr. Shusterman,
Wish you a Happy New Year.
I enjoyed reading the bulletin. I originally come from Delhi, India. I graduated last year from UCSD for Computer Science and am currently employed with a startup in San Francisco; our company makes Apps for children’s stories. About my immigration status, I am on OPT following couple of years on F1. I look forward to eventually be able to get US PR with subsequent naturalization.
My Answers to Immigration Trivia Quiz:
- Zubin Mehta (of course), Born in British India. He is an Indian citizen but has US Permanent residency. I don’t think he has won any Grammy though.
- Gustavo Dudamel, Born in Venezuela and Not a US citizen. Won Grammy in February 2012
- Late Igor Stravinsky, Born in Russia, Naturalized as a US Citizen, Awarded Grammy posthumously.
I very well know about Mr. Mehta and his performances. I think I could recognize Dudamel as well. About Stravinsky, I had to read about a few composers. Regarding Grammy, I knew about some, but needed to search the Grammy database to be sure.
Certified Specialist in Immigration Law, State Bar of California
Former Immigration and Naturalization Service (INS) Attorney (1976-82)
Served as Member of AILA Board of Governors (1988-97)
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017, Phone: (213) 623-4592 x0, Fax: (213) 623-3720
“In one sense, we have a long way to go, bringing 11 million Hispanics out of the shadows and into the light of day… What’s different today is that the rest of the nation, the rest of America, recognizes it’s time. It’s your time.”
– Joe Biden
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February 1, 2013
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.