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Free Subscription to SHUSTERMAN'S IMMIGRATION UPDATE
Back Issues of SHUSTERMAN'S IMMIGRATION UPDATE
Volume Fourteen, Number Six
Special Message: With increased privacy and security concerns around the inbox, mostly due to viruses and spam, delivering our monthly newsletter to your e-mail address presents many challenges. Sometimes you don't receive our newsletter. However, if you add our e-mail address to your address book or safe list, this should insure that our newsletter will not end up in your junk mail.
SHUSTERMAN'S IMMIGRATION UPDATE is the Web's most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 58,000 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 Boulevard, Suite 1550, Los Angeles, California, 90017. Phone: (213) 623-4592 x0
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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.
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NO CHARGE analysis of education RFE's, Denials, Noids for I-140 and H1b
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To read our blog, which deals with current immigration issues, or to receive a free subscription, see
For more information, see CBP's "3 Simple Steps for Land Border Entry" from our "Customs and Border Protection" page at
The Act would
In addition to this bill, in recent weeks, the following immigration legislation has been introduced in Congress:
These bills, combined with legislation to provide a pathway to legalize 10-12 million undocumented persons in the U.S. will be taken up, as a package, by Congress this summer.
For more information on each of these bills, see our "Immigration Legislation" page at
President Obama has scheduled a meeting with Congressional Leaders regarding immigration reform at the White House on June 8.
We will keep you posted!
Persons who qualify for "cap-subject" H-1Bs are allowed to apply starting April 1st each year, but can not start working until October 1st, six months later.
Since the number of applications usually far exceeds the number of available visas, this means that by the second week of April, it is too late to apply.
What about all of the foreign-born students who graduate from U.S. universities in June each year? Since U.S. employers can not apply for H-1B status for them until after they obtain their degrees, by June, it is already too late to do so. One prominent newspaper calls this the "Happy Graduation, Now Go Home!" policy. The U.S. educates and then loses a lot of talent each year.
However, this year is different. Because of the economic recession, there is hope for these students and their employers. As of today, the Immigration Service is still accepting H-1B petitions submitted by U.S. employers for foreign-born professionals. There are about 20,000 unused visa numbers.
Students can use their one-year Optional Practical Training work permits to start their jobs following graduation. See our "Student" page at
The same scenario is true for foreign-born medical residents and fellows who received their training in the U.S. using "cap-exempt" H-1B status.
These trainees complete their residencies and fellowships on June 30, at which time there are usually no "cap-subject" H- 1B visa numbers available.
This year is different. Since it is probable that there will still be H-1B numbers available on June 30, U.S. employers should submit H-1B petitions for these trainees as soon as possible.
Additional information is available on our "Immigration for Physicians" page at
Las Vegas, NV
American Immigration Lawyers
Association (AILA)
2009 AILA Annual Conference on Immigration Law
Topic: Law Practice Management
For more information see
Hospital Association of Southern California
Immigration Webinar
Information about the webinar is available at
Long-standing policies are ignored and new theories are advanced to deny perfectly-qualified applicants for immigration benefits.
A few months ago, a few examiners decided on their own that M.B.B.S. degrees which were issued to physicians from British Commonwealth countries are not equivalent to M.D. degrees issued by medical schools in the U.S. As a result, many petitions and applications were denied on this basis. After much protest from the medical community, the USCIS in Washington got involved, and the situation was rectified in favor of the foreign-born physicians and their U.S. employers.
The latest government boondoggle involves state-licensed physical and occupational therapists. Though these professionals have always been held to be eligible for H-1B status, some examiner(s) noticed that the latest edition of the Labor Department's Occupational Outlook Handbook (OOH) now says that M.S. degrees are preferred.
Accepting this statement in the OOH as Gospel, the USCIS started to deny immigration benefits to PTs and OTs with B.S. degrees even though they were in possession of state licenses.
The response to this sudden change in USCIS policy was swift and negative. Under USCIS regulations, there are three agencies designated to determine whether the credentials of foreign-born health care workers are equivalent to those of the U.S.-born counterparts: the FCCPT, the CGFNS and the NBCOT.
On February 19, the Foreign Credentialing Commission on Physical Therapy (FCCPT) weighed in on USCIS' "confusion" about this matter. Then, on March 19, the National Board for Certification in Occupational Therapy (NBCOT) wrote to the USCIS that "immigration officials are misinterpreting the academic/educational requirements for an occupational therapist". Finally, on March 26, CGFNS International wrote to the USCIS and explained why the OOH's statement that a Master's degree was a precondition for a foreign PT to be admitted to the U.S. was "incorrect".
The hope was that the USCIS headquarters in Washington, D.C. would correct this erroneous interpretation of the law and regulations prior to start of the H-1B filing season on April 1st.
Unfortunately, USCIS did not issue a policy memorandum until May 20. However, since almost 20,000 H-1B numbers are still available, and "cap-subject" workers cannot change their status to H-1B until October 1, 2009, no harm, no foul.
In its memorandum, the USCIS recognizes that H-1B health care workers must possess an "unrestricted (state) license", and it is irrelevant whether they possess a B.S. degree rather than an M.S. or Ph.D. degree. We link to the USCIS memo from our "Allied Health Professionals" page at
It would also be helpful if the USCIS were to clarify that the May 20th memorandum applies to I-140s as well as to H-1B status, and to all persons in possession of unrestricted state licenses, not only health care professionals.
First, let me share a little information about our client.
Some of the longest waiting times for green cards are experienced by citizens of the Philippines. Being born in a former colony of the U.S., Filipinos receive their education in the English language, and find it relatively easy to adapt to the American culture. (Disclaimer: My wife is a Filipina.)
Mr. S, a Filipino, had overstayed his visa in the U.S. Although he had applied for permanent residence, it would be many years before he could receive a green card. He missed his daughter in the Philippines who he had not seen in many years. She could not get a visa to visit him in the U.S., and he was advised by his attorney that if he visited her in the Philippines, he might never be able to return to the U.S.
So, in desperation, he listened to a "friend" who told him, that for a few hundred dollars, he could obtain a U.S. passport for him. The scheme involved a corrupt official inside the U.S. Passport Office. Foolishly he did so, and received a U.S. Passport. However, before he ever used the passport, the corrupt official was arrested.
Mr. S turned himself into the appropriate authorities, and cooperated with the U.S. government in testifying against the corrupt official. In return for his assistance, the government agreed to charge him only with a misdemeanor.
However, when he and his attorney appeared before an Immigration Judge, he was ordered deported.
At this point, he hired our law firm to appeal his deportation order and to obtain permanent residence on his behalf. He and his wife both worked for a very prominent Hollywood family.
We were able to obtain the approval of a labor certificate for him as well as an immigrant visa petition. However, the only person who could grant his application to adjust his status was the same Immigration Judge who had ordered him deported.
Although his appeal to the Board of Immigration Appeals (BIA) was denied, when his priority date became current, we submitted a motion to reopen his case in order for him to apply for adjustment of status.
Although the Board denied this motion, the Chairman issued a vigorous dissent, stating that the majority decision failed to consider all of the positive factors that we had mentioned in our motion.
We appealed the Board's holding to the U.S. Court of Appeals, and I appeared at the oral argument. One of the three judges was not at all impressed by my arguments. "Where, Mr. Shusterman", he asked, "does it state that this Court must consider every single factor mentioned in your motion?" I responded by quoting one of the court's precedent decisions which held that "all factors" must be considered. The Judge turned red and a spirited dialogue ensued.
I noticed that another of the judges was nodding her head as the first judge and I engaged in a heated exchange. So, I had one judge who agreed with my argument and one who did not. It was clear that the outcome of my client's case would be decided by the third judge.
I looked directly into the eyes of the third judge, and said, "Your honor, all I am asking for is a fair and impartial hearing. If this court directs the BIA to consider each of the factors raised in our motion, and the Board still rules against my client, I will not come back to this Court and ask them to overturn the decision of the Board. All I am asking for is due process of law."
Fortunately for my client, the Circuit Court ruled in our favor by a 2 to 1 margin. This time, the BIA, after considering all the factors raised in our motion, reopened the case and sent it back to the Judge to decide whether our client should be allowed to adjust his status.
When we appeared before the Judge, he looked at me and stated, "So, Mr. Shusterman, you persuaded the Board to overturn my earlier ruling on appeal?" "Not at all, your honor", I replied. "When my client became eligible to apply for adjustment of status, we tried to reopen his case before the Board, but they refused to do so. It was their ruling that we appealed, and which was overturned."
Our client expressed remorse for his actions in purchasing an American passport years before, and told the Judge about the religious conversion which had changed his life for the better. His employer, a prominent Hollywood actress, testified that he was a person of good character. Impressed, the Judge granted our client permanent residence in the U.S.
Our client was elated! To read more of our Immigration Success Stories, see
If I read such a statement on a message board, I would understand. However, when someone seeking my advice tells me that his former attorney told him this, I cringe.
Why should someone with an Employment Authorization Document (EAD) not use it, but instead keep renewing his H-1B status?
Consider this real life example: Last week, an Indian professional had a legal consultation with me. He had been in H-1B status since December 2001. His employer had obtained the approval of a PERM application on his behalf. In July 2007, when all the EB visa numbers became current, his employer submitted an immigrant visa petition (I-140) on his behalf in the EB-3 category. Simultaneously, he, his wife and their two children submitted applications for adjustment of status (I-485).
The I-140 was approved, but due to the lack of visa numbers, the family's I-485s remained pending. Although the USCIS could not approve their I-485s, they are not barred from denying them. His 18-year-old son received a Request for Evidence asking him to demonstrate that he had been in lawful status since he entered the U.S. as a B-2 visitor ten years before.
The problem was that the family had sent the son to live with his aunt and uncle in the U.S. when he was a young child. When his six-month stay in the U.S. expired, no one ever extended his B-2 stay in the U.S. or requested that his status be changed to F-1 student.
Their question was "How could their son respond to the RFE?" My answer was that since the son had resided in the U.S. unlawfully for over ten years, he was ineligible to adjust his status to permanent resident. However, if he departed the U.S. immediately to get an H-4 visa abroad, he would not be subject to the three or ten-year bars. Only when a child turns 18 can he accumulate "unlawful presence" in the U.S. which, in turn, subjects him to the bars when he departs the U.S. See
Problem solved? Not so fast.
I asked the father when his H-1B status was due to expire. He replied that it had already expired at the end of 2007. Stunned, I asked him why, and he replied that his attorney had told him, "You have an EAD, why bother extending your H- 1B status?"
Not a very thoughtful answer coming from an immigration attorney. There is a USCIS memo which would have permitted the father to obtain a new H-1B petition approval and visa even though he was no longer in H-1B status. However, he was not willing to return to India to apply for a new visa. As a result, his son will be separated from the rest of his family for many years. This is tragic since it would have been so easy to avoid this outcome had the father simply extended his H-1B status.
Another reason to continue to renew one's H-1B status is USCIS' questionable interpretation of section 245(k). If a person's application for adjustment of status is denied for any reason, the USCIS holds that the person may not renew their I-485 unless they have maintained their lawful "nonimmigrant" status while their application for adjustment of status is pending. In such cases, persons are often forced to leave the U.S. simply due to their failure to extend their H-1B status.
For these and many other reasons, it is always wise to maintain H-1B status until one's application for adjustment of status is approved.
For more information regarding H-1B status, see our "H-1B Page" at
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 is processing a particular type of petition or application, see our Government Processing Times Page at
The AAO's most recent published processing times (May 1, 2009) may be found at
The State Department 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. See
What does this mean?
Consider the case of Melvin Cuellar de Osorio. His grandmother, a U.S. citizen, submitted a petition to sponsor his family for permanent residence in 1998. Because of long backlogs, Melvin's parents were not able to immigrate to the U.S. until 2006. Since Melvin reached the age of 21 before his parents could immigrate, he was forced to remain behind in his native country. When his mother petitioned for Melvin under the 2B category (unmarried adult sons and daughters of lawful permanent residents), she maintained that under CSPA, Melvin was entitled to the "original priority date" of 1998 which would have allowed him to immediately rejoin his family in the U.S.
The USCIS failed to respond to her request. Without CSPA, Melvin will not be able to rejoin his family in the U.S. until 2017 at which time he will be 33 years of age. If he marries, he will lose his ability to immigrate under the 2B category altogether.
The USCIS does not seem to be in any rush to allow Melvin, and other persons in his position, to know what the words "appropriate category" or "original priority date" in CSPA mean. This August, it will be seven years since CSPA was signed into law. The agency has yet to issue regulations to implement the law. Although the USCIS has issued at least eight memos regarding CSPA, and the State Department another six, the government has avoided interpreting the portion of the law which would allow Melvin to reunite with his family.
On June 23, 2008, we brought a lawsuit in Federal Court on behalf of Melvin's mother and five other mothers who are separated from their sons and daughters despite the clear language of CSPA. The USCIS believes that to allow children like Melvin to use their original priority date would be tantamount to permitting them to cut in line. According to the agency, CSPA does nothing to lessen Melvin's 19 year wait to become a permanent resident.
In September, the Government submitted a motion to dismiss our complaint. Since then, the government has requested that the Judge postpone deciding our case until the Board of Immigration Appeals (BIA) rules on similar cases which are pending before the Board. The BIA has already decided two cases which interpret the words "appropriate category" and "original priority date" exactly as we state in our motion. However, these cases are not binding precedents.
The Federal Judge ruled that if the BIA did not rule on the cases by May 11th, he would not grant the government any further postponements requested by the government in our lawsuit on the ground that the BIA was about to rule on the cases before them.
We have agreed with the government that both sides will file cross Motions for Summary Judgment in our lawsuit with tentative filing dates of June 26. The motions would be noticed for a hearing on July 20.
At long last, parents may no longer have to be separated from their sons and daughters for years when they immigrate to the United States.
More information regarding the "automatic conversion" portion of CSPA and the briefs in our lawsuit are available at
Dear Mr. Shusterman,Thanks for all your helpful information for immigrants. I have the answers to this month's trivia quiz on chefs below:
Chef 1: Jean-Georges Vongerichten
Born: France
Dish: BChef 2: Lidia Bastianich
Born: Istria, which was then Italy, now Croatia
Dish: DChef 3: Michael Mina
Born: Egypt
Dish: AChef 4: Suvir Saran
Born: India
Dish: CThis quiz took quite a long time for me to solve. I'm not a real follower of many celebrity chefs (though I do like Rachael Ray and Nigella Lawson for, er, other reasons!). The first 2 I think I got through fairly simple Google image searches ("chef", "immigrant chef", etc.) and looking through a lot of pictures until I recognized someone. Eventually I found a reverse search engine, through which I found Suvir Saran. The link was actually dead, but "suvir" was in the name of the link I found, so I searched that and found him.
Michael Mina was nearly impossible, and I almost gave up. I searched using every term I could think of - he looked Indian or Middle Eastern to me, so I tried those in search terms, also searched for every variation of souffle, because by this time I knew which dish was his. I correctly guessed it was a savory souffle, but even that didn't get me any closer. I was doing searches on every name in celebrity chef lists with no luck. Eventually I did a search on George Morrone. It wasn't him, but the last image on the results page looked awfully familiar, and when I went to the link, I saw it was Michael Mina.
My name is Michael Rashed, and my wife and I are from Canada (me: Vancouver, my wife: Toronto originally), and have been in the U.S. since 2002. We've lived in 3 states so far, following my job around through mergers, promotions, etc., which also slowed down our immigration considerably. My wife is a nurse, and I'm a product manager with a biotech company, with an MBA I got while here in the U.S.
I'm on an H-1B, and my wife's on a TN. When we first got to the U.S. in upstate New York, we should have gone through her because her hospital would have sponsored her and Schedule A was still going on, but we got bad advice as to how much it would have cost, so we went with me.
I'm hoping my PERM will get approved soon, then we'll do a concurrent filing and include my wife. We've had 2 children since we moved to the U.S., one in Virginia and one here in Missouri. They keep us busy, but we enjoy making home improvements, and relaxing occasionally with the TV.
Michael Rashed
Congratulations on being our quiz winner, Michael! It was a pleasure speaking with you.
Carl Shusterman
Certified Specialist in Immigration Law, State Bar of California (1988 - present)
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
"Immigration is the sincerest form of flattery."
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June 1, 2009
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