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SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 40,000 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.

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Client Reviews

Newsletter US Immigration Update July 2011

TABLE OF CONTENTS:

1. Is CSPA Controversy Headed for the Supreme Court? 
2. State Department Visa Bulletin for August 2011
3. Schedule of Shusterman’s Upcoming Immigration Law Seminars
4.  Employer Obligations When Terminating the Employment of an H-1B Worker
5. Success Story: Representing Clients in Various Cities Across the U.S
6. Immigration Trivia Quiz: Immigrants in the NBA
7. Ask Mr. Shusterman: I-9 Audits Put Employers Between a Rock and a Hard Place
8. Immigration Government Processing Times
9. I Was Approved for a Green Card! Now What?
10. Winner of our June 2011 Immigration Trivia Quiz

NEWS FLASHES:

• • CSPA “Sought to Acquire” Decision –  Besides all of the activity in the Federal Courts regarding CSPA’s “automatic conversion” clause (See Topic #1 below.), the 11th Circuit of Appeals issued an important decision on CSPA’s “sought to acquire” clause. While USCIS had tried to restrictively redefine the phrase “sought to acquire” to mean that a person had to actually “file” an application during the qualifying period, the Federal Appeals Court unanimously disagreed in its holding in Medina Tovar v. U.S. Attorney General dated July 19th.

• • H-1B Cap Update – The USCIS started accepting H-1B petitions subject to the numerical caps starting on April 1. The number of petitions submitted  through July 15th was a bit less than last year, 33,300 compared to 35,400. We update the number of H-1B petitions received by the USCIS on a weekly basis.

• • Immigration “How-To” Videos – Our 30 “How-To” Immigration Videos have been seen over 200,000 times. Subjects include how to obtain a green card, how to become a U.S. citizen, how to win your case in immigration court and how to select an immigration attorney. Our video “Green Cards through Marriage” has been viewed almost 80,000 times. We encourage you to take advantage of this free resource.

• • Online Wage Library – The U.S. Department of Labor has updated its Online Wage Library with new Occupational Employment Statistics (OES) effective July 1, 2011 to June 30, 2012. OES supplies wage data for the following immigration programs: permanent labor certification as well as labor conditional applications for the H-1B, H-1B1 and E-3 temporary visa programs.

• • Requests for Evidence (RFEs) – On July 7, the USCIS released an Interim Policy Memoradumwhich would extend the time that petitioners and applicants for immigration benefits have to respond to Requests for Evidence (RFEs) from the government from 30 up to 84 days. Responses to RFEs on I-539s for extensions or change of status will remain at 30 days. Comments on the memo will be accepted by the USCIS until July 27.

• • State E-Verify Laws – Tennessee, North Carolina, Louisiana, Mississippi, South Carolina and Indiana have joined a growing number of states in enacting mandatory E-Verify laws.

• Visa Lottery: Take Two – For the first time since the Visa Lottery was established over 20 years ago, the State Department, due to a computer error, voided the results of the DV-2012 Diversity Lottery in May, and issued new results in July. If you applied for the Visa Lottery between October 5 and November 2, 2010, check online to see if you were selected as a lottery winner.

1. Is CSPA Controversy Headed for the Supreme Court?

Congress passed the Child Status Protection Act (CSPA) in 2002 to prevent children from becoming separated from their immigrant parents after waiting for many years for their papers to be processed and their priority dates to become current. Prior to CSPA, even if a child was an infant when his family was sponsored for green cards, if he turned 21 before his family could immigrate to the U.S., he and his parents faced the prospect of being separated for many years, sometimes forever. CSPA was enacted in order to promote family unity.

CSPA operates from the following simple premises: (1) When the priority date becomes current, the length of time that the immigrant visa petition (I-130, I-140, etc.) was pending is subtracted from the child’s age in order to assure family unity; and (2) If after doing this mathematical formula, the child’s age is still over 21, the child is entitled to the priority date of the original petition and the petition is automatically converted to the appropriate category.

For example, if a U.S. citizen aunt sponsored the family for green cards 15 years ago, and after applying the mathematical formula, the child would still be over 21 years of age, CSPA gives him credit for the time he stood in line and the petition is automatically converted from the 4th preference to the 2B category on the date that his parents receive their green cards. In most cases, this allows the son or daughter to immigrate together with the rest of the family.

Not exactly rocket science. However, the government tends to resist change and leans on old familiar ways.

Does CSPA’s “automatic conversion” clause apply to all derivative beneficiaries, or only to a select few? This would seem to be a “no-brainer”. The law is written broadly to cover all derivative beneficiaries. The Board of Immigration Appeals (BIA) in Matter of Garcia states that all derivative beneficiaries benefit from CSPA. This is in keeping with both the intent and the plain language of the law.

However, a few years later, the BIA disregarded their own decision, and issued an unfortunate precedent decision in Matter of Wang which all but abolishes the benefits of the law’s “automatic conversion” clause. Wang relies on flawed logic  which contradicts both the plain language of the law and the legislative intent of Congress in passing CSPA. Wang turns the respondent in Matter of Garcia into a line-jumper, and relies on an old INS/USCIS regulation to define how automatic conversion is supposed to work. In doing so, it ignores other regulations and various statutes.

A few weeks ago, when we published our June newsletter, the legal challenges to the BIA’s restrictive interpretation of the “automatic conversion” clause which were pending in the 2nd, 5th and 9th Circuit Courts of Appeals were unresolved. Now, one Circuit Court has issued a decision on this matter, and two others have held oral arguments which are available online.

The government attorneys are being extremely creative in raising multiple new arguments to justify the restrictive interpretation of CSPA first put forth in Matter of Wang. Unfortunately for the families involved, they are achieving considerable success in their efforts.

On June 30, the 2nd Circuit ruled, in Li & Cen v. Holder that contrary to the BIA’s decision in Matter of Wang, the language of the statute is clear and unambiguous. So far, so good. However, despite this, the Court held that the “automatic conversion” clause does not apply to derivative beneficiaries of all family-based petitions, the same conclusion reached by the BIA in Wang.

On July 15, the 9th Circuit had oral arguments in De Osorio v. Napolitano. After listening to the oral arguments, I believe that it is likely that the 9th Circuit will join the 2nd Circuit in attempting to restrict the benefits of CSPA.

The one bright spot is in the 5th Circuit. On April 28, the Court had oral arugments in Khalid v. Holder. All three judges agree that the statutory language is clear. However, in marked contrast to the 2nd Circuit, they believe that the automatic conversion clause applies to all derivative beneficiaries.

To use our previous example, if a U.S. citizen sponsors her sister and her family for green cards, and the sister’s oldest child turns 21 years of age while waiting for the priority date to become current, the statute provides that the child retains the original priority date (the date that the 4th preference petition was filed) and that his preference category automatically converts to the “appropriate category”, in this case 2B, since he is an unmarried, adult son of a permanent resident. This satisfies CSPA’s aim of insuring the unity of immigrant families.

Listen carefully to the oral arguments in the 5th Circuit. One has to wonder why the 5th Circuit judges all seem to “get it” while the judges in the 2nd and 9th Circuits do not. In my opinion, the government has done a masterful job in diverting the Courts’ attention from the statutory language. Since section 203(d) defines “derivative beneficiaries”, it seems clear that Congress intended that all family-based, employment-based and lottery-based derivative beneficiaries benefit from the “automatic conversion” clause.

However, in the 2nd and 9th Circuits, the questions posed by the judges during the oral arguments do not focus on why Congress uses the phrase “and (d)” in the statute if it is superfluous. Rather, the judges spend more time quizzing the plaintiffs’ attorneys as to how the “automatic conversion” clause would operate with the questionable assumption that the beneficiary must, at all times, be in a particular category. In my opinion, they are transforming the “automatic conversion” clause into an “instantaneous conversion” clause, an almost impossible standard to meet.

In any case, it seems likely that there will be a conflict between Circuits on this issue. If so, the matter will ultimately have to be resolved by the U.S. Supreme Court. In the meantime, thousands of immigrant families will have to remain separated.

Sad.

2. Visa Bulletin for June 2011

 

See the chart below:

FAMILY CATEGORIES

Categories	Worldwide	China (PRC)	Mexico	Philippines
1st	5-01-04	5-01-04	3-1-93	2-22-96
2A	8-22-08	8-22-07	6-22-07	8-22-07
2B	4-15-03	4-15-03	8-22-92	6-08-00
3rd	6-01-01	6-01-01	11-15-97	3-08-92
4th	3-08-00	3-08-00	2-15-96	5-01-88

 

See the chart below:

EMPLOYMENT CATEGORIES

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	Current	10-15-06	4-15-06	Current	Current
3rd	9-15-05	5-15-04	4-22-02	12-22-04	9-15-05
Unskilled	11-08-03	4-22-03	4-22-02	11-08-03	11-08-03
4th	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th	Current	Current	Current	Current	Current

 3. Schedule of Shusterman’s Upcoming Immigration Law Seminars

• • American Payroll Association
    Santa Barbara Area Chapter
    San Barbara, California
    August 25, 2011
    Topic: “Immigration and Employment Law”
  • University of Texas School of Law
    35th Annual Conference on Immigration and Nationality Law
    Austin, Texas
    October 19-21, 2011
    Topic: Finding What You Need: Practice Tips for Immigration Attorneys On How To Find Key Statutes, Forms, Regulations, Government Memoranda, Manuals, and More
  • Immigration Boot Camp
    Pincus International
    Los Angeles, California
    March 2012
  • FBA 8th Annual Immigration Law Seminar
    Federal Bar Association
    Memphis, Tennessee
    May 2012

4. Employer Obligations When Terminating the Employment of an H-1B Worker

We often receive calls from Human Resource Managers asking us what they need to do in order to legally employ a foreign national.  We advise them as to whether they can sponsor the foreign national for a temporary working visa. On the other hand we do not often receive calls from HR Managers asking us what they need to do after terminating the employment of a foreign national whom they sponsored for an employment visa, or after receiving a resignation notice from the foreign national.

This is very important question, and one that should be answered by an Immigration Attorney, preferably before the situation arises. The following is an overview of termination/resignation procedures when the employer has sponsored the employee for a visa. Since most companies petition a foreign national under the H-1B program, we will focus our discussion on the obligations of an H-1B employer after the termination of the H-1B worker.

When terminating an H-1B worker’s employment prior to the expiration of his or her status, the employer is required to cover the reasonable cost of transportation to the employee’s home country. The employer is not obligated to pay for the worker’s moving expenses beyond the return flight (or bus) fare. To fulfill this obligation, the employer could arrange to purchase the employee’s return ticket or provide the worker with an amount equivalent to the reasonable cost of the return ticket. If the employer chooses the second option, they should obtain for their records a written release from the employee confirming receipt of the amount.

However, the employer’s obligation to pay for the reasonable cost of return transportation seldom is required.  This is because most H-1B workers decide to remain in the United States. In such cases, the employer need not pay or reimburse for the return flight in the indefinite future.

Since a termination is considered a material change to the terms and conditions of the H-1B worker’s employment, the employer must also immediately notify the USCIS of the end of the worker’s employment. The notification should be sent in writing to the USCIS service center that approved the H-1B Petition.

Although the H-1B employer is under no obligation to withdraw the Labor Condition Application (LCA) associated with the employee’s H-1B Petition, it is in the employer’s best interest to submit a withdrawal of the LCA. This will protect the employer from wage liabilities.

To stay up-to-date of their obligations under the H-1B program, it is important that the employer inform their Immigration Attorney of any material changes to the terms and conditions of the worker’s employment, including of course, terminations, lay-offs, or resignations.

5. Success Story: Representing Clients in Various Cities Across the U.S.

Being an immigration attorney is not like being a dentist. It is not necessary that our clients live in the same city or state as we do in order for us to represent them. In fact, we never get to meet many of our clients in person because they live in other states and countries.

The following stories are about a few of our clients who live in other cities and states who we did get to meet:

Over the past year, our attorneys have traveled to over a dozen cities across the United States to represent clients at interviews for immigration benefits as well as at removal hearings before Immigration Judges. I am pleased to report that we have been successful in well over 90% of these matters.

A few weeks ago, I traveled to San Francisco where I represented a client from Mexico who had been living in the U.S. for almost 30 years, but who was still undocumented. Last year, I had gone to San Francisco to represent his wife at her naturalization interview. After she became a U.S. citizen, the couple asked me to submit an application for adjustment of status on behalf of the husband, and to appear with him at his adjustment interview. Although the Immigration Examiner was non-commital at the interview, a couple of weeks later, my client received his green card in the mail.

Earlier, this year, I appeared with an Indian IT worker and his wife at their adjustment of status interview in Chicago. With his former attorney, his case had dragged on for over a dozen years, his applications for adjustment of status were repeatedly denied, and he was placed in removal proceedings. We were able to get a PERM application approved on his behalf and recapture his earlier priority date once the I-140 was approved on his behalf.

At this point, we succesfully persuaded the Immigration Judge to terminate removal proceedings to give us an opportunity to submit adjustment of status applications before the USCIS. I appeared with my clients at their adjustment of status interview. Again, the Immigration Examiner was non-commital at the interview, but at few weeks later, both he and his wife received their green cards in the mail.

The same goes for corporate clients. For over 20 years, we have represented the biggest physician recruiting firm in the U.S. They are based in Texas. A couple of months ago, we were retained by two large corporate clients in Tennessee.

Recently, I was retained by a client who lives in South Carolina to represent him at his adjustment of status interview in Charlotte, North Carolina later this year.

I was also retained by a Chinese client in San Francisco who I had obtained asylum for some years ago. He wanted me to represent him at his naturalization interview. I explained to him that I thought that he really did not need to be represented by an attorney since I expected that his interview will be relatively straight forward. He responded: “But I want you to be with me at my interview. It is definitely worth it to me.” So, I will be sitting next to him at his interview.

As I tell all my clients: “I am the attorney, but you are the boss. It’s your decision.”

6. Immigration Trivia Quiz:

Quiz Removed.

7. Ask Mr. Shusterman: I-9 Audits Put Employers Between a Rock and a Hard Place

While I was attending the annual conference of the American Immigration Lawyers Association (AILA) in San Diego last month, ICE announced that they were conducting another 1,000+ I-9 audits. Our firm was contacted by a number of different employers to represent them.

The Obama Administration has exponentially increased the number of I-9 audits during the past three years. Many employers have not taken the time to learn how to complete and update I-9 forms in a fashion which complies with the law. It’s not that they are seeking to employ undocumented workers, it’s just that the system is very complex.

For example, many employers do not realize that many employees with temporary visas may continue to work while their applications for extensions are in process while other employees must be immediately terminated under the same circumstances. Often, employers are unclear as to when I-9s need to be updated or how long they must be kept.

But the saddest stories sometimes involve employers who are doing everything by the book, yet an I-9 audit results in a virtual shut-down of their businesses. Consider the case of a family-owned nursery in Visalia, California which recently appeared in the press. The employer followed the I-9 laws to a tee. He accepted what appeared to be legitimate forms submitted for I-9 purposes by prospective employees. Had he not accepted these forms, he could have been penalized by the Department of Justice for employment discrimination.

Yet, when he was audited by ICE, it turned out that over 25% of his work force was illegal, and he was forced to fire these employees. “[Firing] them was probably the worst day of my life,” he said. He found it difficult, if not impossible, to replace many of these workers. As a result of the I-9 audit, his business became far less profitable. Customer complaints skyrocketed. And what happened to the workers that he was forced to fire? Were they deported? Not at all.

Bottom line: The I-9 audit penalized an employer who broke no laws. Who benefits from such I-9 audits? No one except perhaps the employer’s competitors who hire the workers that he was forced to fire.

What can you do now to prepare yourself if your company is subjected to an I-9 audit in the future?

Watch our videos Employers: How to Survive an I-9 Audit.

8. Immigration Government Processing Times

We link to the most recent immigration waiting times for each of the four USCIS Service Centers, the National Benefits Center and the Administrative Appeals Office. We also link to the processing times of all of the 83 USCIS District Offices and Sub-offices. We link to the Labor Department’s page entitled “Processing dates for labor certification applications”. Finally, we link to the State Department’s “Visa Wait Times” page.

Read more…  

9. I Was Approved for a Green Card!  Now What?

You just received your I-485 approval notice in the mail. Congratulations! Your approval notice is evidence of your Legal Permanent Resident status. However, if you do not receive your physical green card in the mail within 30 days, request your attorney to follow up this important matter with the Immigration Service.

If you were granted an immigrant visa at the consulate or embassy, be sure to enter the U.S. before the visa expires. Upon your admission to the U.S., the immigration inspector will stamp your passport and make applicable notations which will serve as evidence that you have attained your permanent immigrant status.

Although there are some restrictions and limitations on what permanent residents can do, in most respects, these are rather limited.  For example, a permanent resident generally cannot vote, serve on a jury, or have a Federal Civil Service Job.  Commission of certain criminal acts and other designated acts may result in the loss of a person’s green card and render him deportable from the United States.  If there are any serious changes in your physical, mental or financial well being, or you are involved in any sort of criminal conduct, we urge you to contact your attorney immediately to determine its effect on your legal permanent residence.

You are eligible for citizenship five years after obtaining legal permanent residence. If you got your green card by marriage to a U.S. citizen, your wait is shorter:  three years from when you obtained legal permanent residence or the date of marriage, whichever is later. You are only eligible for this faster track to citizenship if you and your citizen spouse are still married and have been living together for that three year period, and if your spouse has been a U.S. citizen for at least three years.

Obtaining citizenship involves an application and a petition to be filed with the USCIS.  If you have served in the U.S. Armed Forces, your wait to become a U.S. citizen is shorter still. Of course, you do not have to become a citizen simply because you are able to. For a variety of reasons, some people choose to remain legal permanent residents.

As a Legal Permanent Resident, you have acquired many freedoms and privileges.   There are also a few important things to keep in mind as a green card holder, as there are additional responsibilities and “hoops” to jump through.

Any previously obtained nonimmigrant visa, Advance Parole or Employment Authorization Document (EAD), should no longer be applied, renewed, or extended. These will no longer apply to you as a green card holder. 

You should keep a photocopy of your green card in a safe place, and you should carry the card with you.  Should it ever be lost, damaged, or destroyed, you must apply for a replacement card (Form I-90), and you will need information from the photocopy. 

As a permanent resident, you are free to depart and reenter the United States without obtaining a visa at a United States Consulate.  If you travel overseas or across U.S. borders while waiting for the arrival of your green card, you must obtain an I-551 verification stamp in your passport. You may re-enter the U.S. during the validity period of the green card or the I-551 verification stamp, together with a valid passport.

If you plan to remain outside of the U. S. for longer than six months, we strongly suggest that you conside applying for a Reentry Permit (form I-131) before leaving the U.S., in order to provide evidence that your absense is not an abandonment of your permanent resident status.

Also, you should be aware that obtaining a reentry permit, although it assists you in maintaining your green card status, maintain your residence for naturalization purposes, i.e. the more time you spend outside the U.S., the more time it will take for you to become a U.S. Citizen.  Some permanent residents may be able to preserve their residence for naturalization purposes (form N-470).

Whenever you move or change your residence, you need to notify USCIS by submitting a form AR-11.

Presently, there is a compulsory military registration (referred to as “selective service”) in the U.S. for males between the ages of 18 and 26.  These individuals must register within 30 days of becoming 18 years old or of obtaining permanent residence, whichever is later.

With limited exceptions, you are barred from receiving public assistance within five years of entry.

As a permanent resident, the only relatives you are able to sponsor for immigration are your spouse and unmarried sons or daughters.  When you become a U.S. citizen, you may also sponsor your parents, brothers and sisters, and children regardless of age and marital status.  Before sponsoring any relatives, particularly because of the possibilities of changes in quota availability or the law itself, we strongly encourage readers to check with their immigration attorneys.

Enough reading.  Go out and enjoy your new status as a Legal Permanent Resident of the United States!

10. Winner of our June 2011 Immigration Trivia Quiz

Quiz Removed.

 

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California (1988-Present)
Former Immigration and Naturalization Service Trial Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (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

“I think our immigration policy which restricts severely the number of highly-trained skilled immigrants is a problem because bringing those kind of folks in helps our high-tech industries develop more competitively — become more competitive.”

– Ben Bernacke, Chairman of the Federal Reserve Board

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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.

July 25, 2011