SHUSTERMAN'S IMMIGRATION UPDATE
(January 2005)

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 (December 20, 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. Legislation: President Signs M.D., H/L and 9/11 Bills

1. Physicians - On December 3, the President signed a law which both extended and expanded the J waiver programs for physicians. The law extends the Conrad 30 programs for another two years until 2006 and allows each Conrad state to sponsor up to five physicians who practice medicine outside of a HPSA/MUA but whose patients are primarily located in HPSAs and MUAs. The law also provides that physicians in H-1B status who have received J waivers are not subject to the H-1B numerical cap, and that federal agencies are now free to sponsor physicians who are specialists for J waivers. We link to the law (Public Law 108-441) from our "Immigration Legislation" page at
   http://shusterman.com/legislationusimmigration.html#6A
   and from our "Physicians" page at
   http://shusterman.com/physiciansusimmigration.html#5

2. H-1B and L Law - On December 8, President Bush signed the Omnibus Appropriations bill (H.R.4818) into law. This law contains many significant changes to both the H-1B and the L nonimmigrant categories. Most significantly, the new law will allow, as of March 8, 2005, U.S. employers to submit H-1B petitions for an additional 20,000 workers exempt from the general 65,000 numerical cap who are in possession of either masters or doctorate degrees from universities in the U.S. The changes in the L category are more modest, and become effective on June 8, 2005. An additional $1,500 filing fee for H-1B petitions became effective on December 8, 2004. In addition, the law imposes a $500 anti-fraud fee for both H-1B and L petitions (and some visas) that becomes effective on March 8, 2005.

   We link to a FAQ on the new law (Public Law 108-447) which includes links to both the complete text and summaries of the H-1B and L laws, and to CIS Press Releases on both laws from our "Immigration Legislation" page at

   http://shusterman.com/legislationusimmigration.html#6A
   and from our "H-1B Page" at
   http://shusterman.com/h1bvisasgeneralinformation.html#3

3. 9/11 Law - On December 17, President Bush signed the Intelligence Reform and Terrorism Prevention Act of 2004 (S.2845) into law. The law contains a number of significant immigration provisions. It authorizes the hiring of an additional 2,000 Border Patrol agents each year for the next five years, and would also increase the number of ICE agents by 800 per year and add 600 consular officers worldwide, an increase of nearly 60% over current levels. It imposes federal standards for state drivers' licenses and ID cards and for social security cards. It would implement the pre-inspection of persons boarding aircraft to the U.S. at 25 airports abroad. It would also accelerate the implementation of the U.S.-VISIT system and would formalize the suspension of the Transit Without Visas program.

   The new law also incorporates the "Homeland Security Civil Rights and Civil Liberties Protection Act of 2004" (S. 2536/H.R. 5182) which provides specific statutory support for the work of the Officer for Civil Rights and Civil Liberties, Privacy Officer, and Inspector General at DHS. Read more about this section of the law at

   http://www.immigrationforum.org/DesktopDefault.aspx?tabid=684
   We link to the new law (Public Law No. 108-458) and the Conference Report from our "Immigration Legislation" page at
   http://shusterman.com/legislationusimmigration.html#6A
   and from our "September 11th" page at
   http://shusterman.com/september11immigration.html#1

4. Some EB-3 Numbers Backlog: How Will This Affect You?

Three days later, on December 11, the Associated Press ran an article about how this development would adversely affect the immigration of nurses to the U.S. The article ran in over 100 newspapers in several different countries. You can read the article on the MSNBC web site at

Even though approximately one million people immigrate to the U.S. in a typical year, 60 percent of the total is "immediate relatives" of U.S. citizens, primarily their spouses, children and parents. Other persons immigrate through the visa lottery, as asylees and refugees and in a variety of categories. Most of the remaining persons immigrate through the numerically-limited "preference" system.

With some variation, the preference system allows 226,000 close family members of U.S. citizens and permanent residents to immigrate annually, and 140,000 persons including their families to immigrate through offers of employment and investments. Persons born in a particular country cannot comprise more than 7% of the family-based or the employment-based quotas.

Whenever there are more green card approvals for a particular category and country of chargeability (usually one's country of birth) than there are available green cards, the State Department adjusts the Visa Bulletin so that the annual numerical limitation for a category and a country cannot be exceeded during the fiscal year.

In the case of the EB-3 category, a priority date is usually established when the State Workforce Agency receives an Application for Alien Labor Certification. However, certain categories (e.g., Persons of Extraordinary Ability, Outstanding Researchers and Professors, etc.) and specific occupations (i.e., Registered Nurses and Physical Therapists) are exempt from the labor certification requirement. Their priority date is the date when their Immigrant Visa Petition (I-140) is received by the CIS.

In most states, it takes approximately two years for an application for a labor certification to be approved and another two years for an application for adjustment of status to be approved, a total of four years. Since EB-3 priority date for persons born in India, China and the Philippines is regressing "only" three years, anyone born in one of these countries who is in possession of an approved labor certification, and whose application for adjustment of status is pending, will not be affected by the coming backlogs. Why? Because the DOL and CIS processing times are slower than the new three-year backlog.

However, if the person's adjustment application has yet to be filed, starting on January 1, 2005, he will not be able to submit his I-485 unless his priority date is before January 1, 2002. He should continue to extend his temporary status, and once his labor certification is approved, have his employer submit an immigrant visa petition (I-140) on his behalf. The new backlogs may add a year or more to his total waiting time for a green card.

Persons born in one of the impacted countries in EB-3 jobs who have not yet started the labor certification process may also have to wait an extra year or so to obtain permanent residence. Will PERM help these people? Not really. Applicants will not be able to apply to adjust their status, or to obtain immigrant visas abroad, for three years no matter how rapidly their PERM applications are processed. This is because their priority dates must be current (no backlog) in order for them to apply for adjustment of status or for immigrant visas.

Registered nurses and physical therapists, being exempt from the labor certification requirement, will feel the effects of the backlogs much more than persons in other occupations. Why? Because they are exempt from the labor certification requirement.

Physical therapists are more fortunate than nurses. They can work in the U.S. in H-1B status (if they apply while there are H-1B numbers available - starting April 1, 2005). Their employers will file an I-140s on their behalf, and approximately three years later, they may apply for green cards.

Nurses are not usually eligible for temporary working status unless they have already applied for adjustment of status. If they have, they should not expect to obtain permanent residence in less than three years. If they have yet to apply for adjustment of status before the end of 2004, they should have their employers submit I-140s on their behalf, and return home for the next three years to await their immigrant visa interviews. Nurses who reside abroad and have already been petitioned by U.S. employers should not expect to be interviewed for green cards until their priority dates are, at least, three years old.

Imagine that you are an RN born in the Philippines, India or China whose I-485 is currently pending. The CIS sends you a letter asking for your VisaScreen certificate. The problem is that you failed to pass the English test and you still do not have a VisaScreen certificate. The CIS denies your application for adjustment of status. What do you do? Currently, you may simply re-file your adjustment application under section 245(k) of the law.

However, what if your denial occur until January? You will be ineligible to adjust your status under 245(k) because your priority date is not current. Unless you qualify under section 245(i), or you have a priority date before January 1, 2002 (very unlikely!), you better book a ticket back to Manila, Delhi or Shanghai. You will not be able to return to the USA until 2007 or 2008.

If you were not born in one of the three affected countries, stop worrying, the new backlogs do not apply to you.

Even if you were born in one of the three backlogged countries, if your spouse was not, you can use your spouse's country of birth to escape the consequences of the new backlogs.

Any solution depends on Congress passing a new law to assist U.S. employers who cannot obtain permanent residence for needed workers. Here are a few suggestions:

1. Recapture Lost Visas - Since the backlogs will occur only because the government processed so few employment-based green card applications during the past three years, Congress could allow for the "recapture" of 130,000 green cards lost to bureaucratic inertia during 2001, 2002 and 2003. Congress passed a similar recapture provision in 2000.

2. Remove Country Limitations from EB Categories - Why punish U.S. employers who have recruited people with job skills needed for the U.S. economy simply because they were born in the "wrong" countries? Why should a teacher born in China, a medical researcher born in India or a registered nurse born in Philippines have to wait longer for a green card than a similar worker born in Jordan, Jamaica or Monaco?

3. The simple reality is that our country can't graduate enough nurses simply to replace those who are retiring. U.S. nursing schools are actually closing their doors to new students. Perhaps the problem will eventually work itself out. However, one new study predicts that our current RN shortage will quadruple to 600,000 by 2020. Obviously, this is NOT the time to "Just say no" to foreign-born nurses. Congress would be wise to re-establish a temporary visa category for registered nurses like the one that brought hundreds of thousands of Filipina RNs to the U.S. between 1952 and 1995.

5. Immigration Trivia Quiz: America's Gatekeepers

Who headed these Cabinet departments in the first Bush Administration, and who are their designated replacements?

The first person to correctly answer this month's quiz and provide biographical information about him or herself will win a free legal consultation during the month of January.

This month's Immigration Trivia Quiz is located at

6. Protection Against "Aging-Out" Under the PATRIOT Act

CSPA prevents many children from aging-out and allows them to immigrate with their parents to the U.S. However, CSPA does not cure all ills. Generally, it is not retroactive. Also, despite the protections in CSPA, some children still age-out, sometimes by just a few days or weeks.

This is where Section 424 of the PATRIOT Act, which was passed in the wake of the September 11, 2001 terrorist attacks, sometimes comes to the rescue.

A simple example illustrates where the PATRIOT Act may save the day for you or your child.

Imagine that you immigrated through employment. Your labor certification was submitted in 2000. On September 1, 2001, a week after your labor certification was approved, your employer submitted an I-140 visa petition for you. The INS approved the I-140 on October 1, 2001. Later in October 2001, you, your spouse and your son all applied for adjustment of status. Although, the Immigration Service approved the adjustment applications of you and your spouse, on August 1, 2002, it denied your son's application stating that he had aged-out because he reached the age of 21 on July 22, 2002.

CSPA won't help your son in this scenario. Why not? Generally, CSPA is not retroactive. Since your son's application for adjustment of status was denied a few days before the effective date of CSPA, its benefits do not apply to him.

However, Section 424 of the PATRIOT Act will help. This section of the law provides that "in the case of an alien...(2) whose 21st birthday occurs after September 2001, and who is the beneficiary of a petition or application filed under such Act on or before September 11, 2001, the alien shall be considered to be a child for 45 days after the alien's 21st birthday for purposes of adjudicating such petition or application."

Here, your son's 21st birthday occurred on July 22, 2002, months after September 2001 and he is the beneficiary of an adjustment application submitted 10 days before September 11, 2001. Section 424 of the PATRIOT Act allows him to be considered a child for immigration purposes for 45 days after his 21st on July 22, 2002. Therefore, when the INS denied his application on August 1, 2002, he was still a child and entitled to adjust his status. The denial was in error.

Although the 30-day limit to submit a Motion to Reconsider this erroneous denial has long since passed, your son (or his attorney) should consider requesting the CIS to reconsider the denial on their own motion.

In other circumstances, the PATRIOT Act works in conjunction with CSPA in preventing children from aging out.

We link to the complete text of Section 424 of the PATRIOT Act as well as CSPA and government memos interpreting the aging-out provisions of both laws from our "Green Card" page at

7. Employment-Based Immigration: Success Stories

In December, we submitted over 100 applications for adjustment of status for registered nurses born in the Philippines, India and mainland-China. As we reported in our previous newsletter, these applications had to be received by the CIS by the end of December 2004 because as of January 1, 2005, the employment-based third category (professionals and skilled workers) for persons born in these three countries will regress three years to January 1, 2002.

An Associated Press article about the coming backlogs which quoted me, a nurse who we represent and the Vice President of a local hospital ran, on December 11, in over 100 newspapers around the world including the New York Times, the Boston Globe, the Miami Herald, the Guardian in London, the Manila Bulletin and several newspapers in India.

Among the 100 nurses whose cases we submitted, there were a lot of dramatic last-minute made-for-Christmas stories. One of the best, concerns a nurse who was not able to submit her application in December. She is a Filipina nurse who was scheduled to take the NCLEX during the final week of December. This meant that her results would not be available until January 2005, too late for her to qualify by the deadline. Several other law firms had rejected her case.

However, checking through her legal consultation form which she completed online at http://shusterman.com/intake.html , I noticed that although she was Filipino, she was actually born in Vietnam, and taken by her parents to the Philippines at an early age. Since, for purposes of country "chargeability", her country of birth, not her country of citizenship, controls, she is considered to be Vietnamese.

Since she was not chargeable to the Philippines, she is not subject to the regression in the EB-3 category, and we can safely submit her application, and that of her husband, despite his birth in the Philippines, in January 2005.

Her husband also qualifies under the Vietnamese quota using the "alternate chargeability" provisions of section 202(b)(2) of the Immigration and Nationality Act.

8. Schedule of Upcoming Immigration Law Seminars

1. January 13, 2005                 Pasadena, California

   Kaplan Learning Center (Kaplan, Inc., a wholly owned subsidiary of The Washington Post Company, is one of the nation's premier providers of educational and career services for individuals, schools and businesses.)

   My topic will be "Recent Changes in Immigration Laws and Procedures for Foreign-Born Physicians and Registered Nurses."

   The seminar is free, but space is limited. To reserve, call Kathy Brooks at (626) 584-0222.

   Kaplan is located at 251 So. Lake Avenue, 1st Floor, Pasadena, California.

2. March 4-5                Cambridge, Massachusetts

   National Asian Pacific American Conference on Law and Public Policy

   Harvard Law School

   I will be on an immigration panel with Bill Ong Hing, Esq. from San Francisco and Tracy Hong, Esq. from the American Immigration Law Foundation.

   Program and registration information will be posted online soon at

   http://www.apalsa.org

3. May 9-10, 2005                Las Vegas, Nevada

   Recruiting 2005 Conference and Expo - Las Vegas Hilton

   For program and registration information, please see

   http://www.recruiting2005.com/

9. Chat Schedule, Transcripts, Audios & Videos

Chats

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

Immigration Audios

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

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

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

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

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

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

National Public Radio (NPR) Audio Programs

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 December 2004 Immigration Trivia Quiz

I'm an ardent reader of your newsletter and a frequent visitor to your website. I've been trying your quizzes for quite some time. I had "won" on several occasions, but I guess I wasn't quick enough.

This month was tough!! I could only come up with one other link that provides a list of "targeted areas" for EB-5 investor visas.

http://www.state.nj.us/njbiz/y_cert_target.shtml (NJ)

A little research led me to learn that the individual states Department of Commerce decides on these areas. I started visiting all the states commerce departments and started plugging in keywords:

Target area of high unemployment
Investor visa, EB-5
Federal Investor Visa Program
Immigration and Nationality Act (INA) §203(b)(5)

TO NO AVAIL!! Except for NJ.

I live in IL and have been in the US some 14 years and would definitely like to meet Mr. Shusterman. Thank you.

~ Vic M.

Here we go, after a day and a half of intense research.

http://www.labor.state.ny.us/working_ny/finding_a_job/career/immigrat.htm (Link is no longer operational.)

I previously provide NJ (see below).

There is a very, very, very brief mention of Cleveland in this link, I don't know if it qualifies as an "answer".

http://www.city.cleveland.oh.us/government/departments/econdev/CIC_Task_force.html

Merry Christmas!!

Wanted to summarize my final entry;

1. http://www.state.nj.us/njbiz/y_cert_target.shtml (NJ)
2. http://www.labor.state.ny.us/working_ny/finding_a_job/career/immigrat.htm (NY)
3. http://www.edd.ca.gov/cbfederalvisaprog.pdf (Link is no longer operational.)
4. http://www.city.cleveland.oh.us/government/departments/econdev/CIC_Task_force.html

Alternatively, one could take the following route;

USCIS defines "Targeted employment area" defined. - In this paragraph, the term "targeted employment area" means, at the time of the investment, a rural area or an area which has experienced high unemployment (of at least 150 percent of the national average rate). "

http://uscis.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-21/slb-1261?f=templates&fn=document-frame.htm#slb-act203b5 (Link is no longer operational.)

"Targeted employment area" - means an area which, at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 per cent of the national average rate."

http://uscis.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-9974/slb-12541/slb-13615?f=templates&fn=document-frame.htm#slb-8c

The US Dept. of Labor at

http://www.bls.gov/lau/home.htm#tables

provides information on unemployment rates by state/region/county/city. The current nationwide unemployment rate is 5.4% (Nov. 2004); therefore, any town with 13.5% (Editor's Note: As one of our alert readers pointed out, 150% of the nationwide unemployment rate is 8.1%, not 13.5%.) or more unemployment, qualifies.

http://data.bls.gov/map/servlet/map.servlet.MapToolServlet?survey=la&map=state&seasonal=s

provides maps for research

December 26, 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

Family values do not stop at the Rio Grande River, is what I used to tell the people of my state. People are coming to put food on the table, they're doing jobs Americans will not do.

Quick Links:

Back Issues: http://shusterman.com/newsletterbackissuesusimmigration.html
Chats: http://shusterman.com/chatsusimmigration.html
Citizenship: http://shusterman.com/citizenship.html
Forms Download: http://shusterman.com/formsusimmigration.html
Job Search: http://shusterman.com/jobsusimmigration.html
Permanent Residence: http://shusterman.com/greencards.html
Processing Times: http://shusterman.com/waitingtimesusimmigration.html
Search Our Site: http://shusterman.com/search_tips.html
Temporary Visas: http://shusterman.com/temporaryvisas.html

Advertise in Our Newsletter: mailto:jacob.treger@verizon.net
Contact Us: http://shusterman.com/e-mail.html
Firm Biography: http://shusterman.com/ourimmigrationattorneys.html
Schedule a Consultation: http://shusterman.com/intake.html
Work for Us: http://shusterman.com/careers.html