Volume Twenty One, Number Six

Shusterman’s Newsletter US Immigration June 2016 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 40 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 x0.

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Client Reviews

Shusterman’s Immigration Update June 2016

TABLE OF CONTENTS:

1. USCIS Proposes 21% Increase in Filing Fees
2. State Department Visa Bulletin for June 2016
3. Immigration Government Processing Times
4. Success Story: Options for an Extraordinary Employee
5. Immigration Trivia Quiz: Famous Foreign Films
6. Immigration for Families of Filipino WWII Veterans
7. Ask Mr. Shusterman: Good News For Physicians Who Want Green Cards
8. Shusterman’s Upcoming Immigration Seminars
9. Jobs & Green Cards for RNs & MedTechs: Free Legal Help!
10. Winner of Our May 2016 Immigration Trivia Quiz!

NEWS FLASHES:

• • CRS Report on the EB-5 Immigrant Investor Visa Program – The Congressional Research Service has released a report regarding the EB-5 Immigrant Investor Program . The EB-5 program provides legal permanent residence to persons who invest $500,000 or $1 million dollars in a “new commercial enterprise”, thus creating an influx of jobs and revenue in the United States. This report gives an explanation of the program, lists the qualification requirements, discusses how the program affects the American Economy and refers to legislation and public policy issues in the 114th Congress.

• • Green Card Lottery Results for 2017 – USCIS has released a list of results for the 2017 Electronic Diversity Visa. This program allows 50,000 persons annually from countries which do not send a lot of immigrants to the United States to apply for permanent residence once they are chosen through a lottery. These persons must obtain their green cards between October 1, 2016 and September 30, 2017 either in the US or abroad.

• • Lawsuit Seeks Transparency in H-1B Lottery Process – The American Immigration Council and the American Immigration Lawyers Association (AILA) have brought a lawsuit against the U.S. Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) in order to create a system in which the H-1B lottery process is more transparent.

• • National Border Patrol Council Endorses Donald Trump for President – The National Border Patrol Council (NBPC) has endorsed Donald Trump for President of the United States even through the NBPC generally refrains from endorsing presidential candidates.

• • Nonimmigrants: Who Can Study in the US? – A chart released by the U.S. Immigration and Customs Enforcement (ICE) agency details which classes of nonimmigrants are eligible to attend school in the US.

• • Responding to a Request for Evidence – The American Immigration Council has published a step-by-step guide regarding how to respond to a Request for Evidence (RFE) for an employment-based petition.

• • Temporary Protected Status for Nicaragua and Honduras – Current TPS beneficiaries from Nicaragua and Honduras who want to extend their TPS must re-register during the 60-day re-registration period that runs from May 16, 2016 through July 15, 2016. USCIS encourages beneficiaries to re-register as soon as possible. Please see Temporary Protected Status (TPS) in the US.

• • Two Copies of I-589 Applications No Longer Required – The State Department no longer requires a copy of Form I-589, Application for Asylum. The USCIS has announced that they will now be the only agency which reviews the form for approval. Hence, applicants for asylum need only submit one I-589 form.

• • U.S. Uncovers $20M H-1B Fraud Scheme – A couple from Virginia has been indicted on account of running an H-1B visa-for-sale scheme. They created false companies with non-existent job vacancies where they hired workers on a contract basis and had them pay for their own H-1B petitions. They were able to collect around $20 million from this scheme.

• • USCIS Reaches H-2B Cap for Fiscal Year 2016 – The U.S. Citizenship and Immigration Services announced that the 2016 H-2B cap has been reached.

• Visa Bulletin Lawsuit Dismissed – A Federal Judge has dismissed a lawsuit challenging USCIS’ failure to accept the earlier filing dates posted on the monthly State Department Visa Bulletin starting in October 2016.

1. USCIS Proposes 21% Increase in Filing Fees

Unlike most other government agencies, the USCIS is 95% financed by filing fees. And because the agency cannot charge fees for asylum applications, applicants for other types of immigration benefits are subject to a surcharge to subsidize the asylum offices.

This is why, on May 4, the USCIS issued a proposed rule to increase filing fees by an average of 21%. The last time that the agency raised its filing fees, we made some suggestions on how Congress could revamp the filing fee system to make it more equitable.

If the proposed regulations are adopted as is, the filing fees in the EB-5 investor sector would rise precipitously. The fee for an I-924 for organizations seeking to be designated as regional centers would increase from $6,230 to $17,795. And so the existing 790 regional centers won’t feel left out, the USCIS has decided to impose a filing fee of $3,035 on I-924As which must be filed annually in order to maintain their status as regional centers. The fee for investors filing an I-526 would rise from $1,500 to $3,675.

Okay, so nobody feels sorry for multi-millionaires. How about employment-based immigration?

The fee for I-129 petitions for H-1B and L-1 workers would increase 42% from $325 to $460, and as we all know that is just a small fraction of the total filing fees for such petitions. Companies which file a lot of such petitions and whose workforce is mostly made up of foreign workers will have to pay $4,000 for an H-1B petition and $4,500 for an L-1 petition.

In order to sponsor a foreign-born worker for a green card, an employer must file an I-140 petition.

The fee for an I-140 would rise from $580 to $700.

How would fee increases affect applications filed on an everyday basis by ordinary folks?

The fee for an application for adjustment of status (I-485) would rise by 16%, 8% for an I-765 for an EAD work permit, a whopping 60% for an I-131 Advance Parole and a 28% increase for an application to extend or change status (I-539).

For applications for naturalization, the cost of which was $15 when I worked as an INS Citizenship Attorney in the late 1970s, the filing fee would rise from $595 to $640 (plus another $85 for fingerprinting). However, for the first time, certain low-income persons would only have to pay $320 (yes, plus $85 for fingerprinting).

So while I am pleased that the government is trying to ameliorate the costs of obtaining at least one important immigration benefit for low income immigrants, I believe much more can and should be done.

Extending the section 245i adjustment of status program would have many positive immigration impacts and would raise between $100 million and $200 million in additional filing fees annually. Of course, this would require Congressional action. Okay, forget it.

But how about imposing a surcharge on I-485s filed under section 245k? Wouldn’t bring in much money? USCIS could impose a surcharge on immediate relative adjustments where the beneficiary is out of status. And allow a parole-in-place (with a fee) for DACA beneficiaries who entered the US without inspection and would now like to adjust their status.

Do you have alternatives to the USCIS’s proposed filing fees?

Remember, you can submit comments on this proposed rule until July 5. You may email comments directly to USCIS at uscisfrcomment@dhs.gov. Include DHS Docket No. USCIS-2016-0001 in the subject line of yout message.

2. State Department Visa Bulletin for June 2016

EMPLOYMENT CATEGORIES

The Worldwide Employment-Based (EB) Visa Preference Categories all are current (no backlogs) in June except for EB-3 professionals, skilled and unskilled workers which remains fixed at February 15, 2016.

Due to a lack of available visas, China EB-2 retrogresses 20 months while China EB-3 for professionals retrogresses 3 years and 7 months. India EB-2 retrogresses over 4 years. One should not expect any forward movement in China EB-2 or EB-3 until the beginning of the new fiscal year in October 2016. India EB-2 may advance slowly during the summer.

There is a slight forward movement in India EB-3 (3 weeks), China EB-5 (1 week) and an 11-month advance in EB-3 Philippines.

The USCIS has announced that it will not accept any applications for adjustment of status in June unless the person’s priority date has been reached.

The following chart tells the story of the EB numbers in detail:

A. APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES– These dates are consistent with prior visa bulletin priority dates.

	World	China (PRC)	El Salvador, Guatemala, Honduras	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current	Current
2nd	Current	1-01-10	Current	10-1-04	Current	Current
3rd	2-15-16	10-01-10	2-15-16	9-22-04	2-15-16	11-01-08
Unskilled	2-15-16	4-22-07	2-15-16	9-22-04	2-15-16	11-01-08
4th	Current	Current	1-01-10	Current	Current	Current
Religious	Current	Current	1-01-10	Current	Current	Current
5th Non-Regional Center (C5 and T5)	Current	2-15-14	Current	Current	Current	Current
5th Regional Center (I5 and R5)	Current	2-15-14	Current	Current	Current	Current

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS– These dates indicate when immigrant applicants can send adjustment of status applications without having to wait for their priority dates to become current. The State Department failed to advance any of the filing dates in the June Visa Bulletin.

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	Current	6-01-13	7-01-09	Current	Current
3rd	Current	5-01-15	7-01-05	Current	1-01-10
Unskilled	Current	8-01-09	7-01-05	Current	1-01-10
4th	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th Non-Regional Center (C5 and T5)	Current	5-01-15	Current	Current	Current
5th Regional Center (I5 and R5)	Current	5-01-15	Current	Current	Current

FAMILY CATEGORIES

The Worldwide Family-Based (FB) Priority Dates advance between 1 and 7 weeks in June except for the F3 category (Married Sons and Daughters of US Citizens) which remains fixed at December 1, 2004.

FB for persons born in Mexico and the Philippines advance slowly in June except for Mexico FB-2B which fails to advance and Philippines FB-1 and FB-4 which advance 11 and 8 weeks, respectively.

The FB-4 numbers for brothers and sisters of U.S. citizens born in China and India retrogress 7 months and 2 1/2 years respectively indicating a lack of available visas this fiscal year.

The USCIS has announced that it will not accept any applications for adjustment of status in June unless the person’s priority date has been reached.

The chart below tells the story in detail:

A. APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES–

Categories	Worldwide	China (PRC)	Mexico	Philippines
1st	1-15-09	1-15-09	2-22-95	12-22-04
2A	11-08-14	11-08-14	9-01-14	11-08-14
2B	10-22-09	10-22-09	9-08-95	6-01-05
3rd	12-01-04	12-01-04	10-22-94	2-01-94
4th	8-08-03	1-01-03	4-15-97	12-01-92

B. DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS– These dates indicate when immigrant applicants can send adjustment of status applications without having to wait for their priority dates to become current. Like the employment-based categories, the State Department fails to advance any of the family-based filing dates in June.

Categories	Worldwide	China (PRC)	Mexico	Philippines
1st	10-01-09	10-01-09	4-01-95	9-01-05
2A	10-15-15	10-15-15	10-15-15	10-15-15
2B	12-15-10	12-15-10	5-15-96	1-01-06
3rd	8-01-05	8-01-05	5-01-95	8-01-95
4th	5-01-04	5-01-04	6-01-98	4-01-93

3. 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…

4. Success Story: Options for an Extraordinary Employee

Many immigration cases can be more complicated than they initially appear. For one fledgling digital entertainment venture, the path to bringing an essential foreign national employee to the United States was paved with unique immigration hurdles that required multiple creative solutions.

A prominent entertainment company in Los Angeles asked Immigration Attorney Nicole Black to help resolve a difficult problem: To keep up with the changing needs of content consumers, the company wanted to start a new-media production company to launch feature films, series, and entertainment shows on emerging digital platforms. A valuable Consultant located in the United Kingdom had been helping the company hone its ambitious strategy. Once the strategizing was complete, the company required the onsite services of its Consultant to ensure that the company’s ambitious new venture would be executed successfully.

Nicole first informed the company that although the Consultant was eligible for H-1B status, the application would be subject to the H-1B cap, and thus could not be filed until April 1. Moreover, even if the H-1B status was approved, the earliest date the Consultant could join the company would be the start of the new fiscal year, October 1. The company had no time to delay—the Consultant was needed immediately. That meant that H-1B was out.

Next, Nicole explained that another popular employment-based immigration option, L-1, required that the Consultant first work for at least one year for a company outside the United States with a qualifying corporate relationship (such as parent or subsidiary) to the U.S. prospective employer. The Consultant had never worked for such an entity; thus, L-1 was also out.

The company explained that the Consultant would remain an employee of his current employer outside the United States and would be paid by the foreign employer. The U.S. assignment would be temporary and would not last longer than 6 months—just enough time to make sure the new digital studio was established and running smoothly. The company asked Nicole, “Can’t we just have him visit the U.S. as a B-1/B-2 or ESTA visitor?”

But after a discussion of the company’s needs, it was clear that the Consultant’s activities would not be restricted to those permitted for business visitors, and that he would instead be actively engaging in productive work on U.S. soil. The company agreed that it was not worth the risk to the company or the Consultant to have him enter the U.S. as a visitor and engage in prohibited productive work.

With the traditional options exhausted, it was time to get really creative! Nicole explained that an immigration option known as “B-1 in lieu of H-1B” was available to a temporary worker who qualifies for H-1B status, but has a permanent job with a company outside the U.S. and will make a short visit to the U.S. to complete an assignment for the benefit of his foreign employer.

Even some immigration officers are unfamiliar with the unique B-1 in lieu of H-1B option, so a thoroughly prepared application package and detailed attorney guidance was essential to success. Just a few weeks later, the Consultant had a B-1 in lieu of H-1B visa in hand and was on his way to the United States.

At the conclusion of his assignment, the Consultant returned to his home and permanent employment in the United Kingdom. He had performed such valuable work during that assignment, however, that the U.S. company decided to offer the Consultant a position as an employee in the U.S. so that he could continue helping with the new venture—which meant his immigration saga would begin anew.

Since the company was already aware of the lengthy delay required for a cap-subject H-1B petition, the company asked Nicole if there was any way to get the potential employee back sooner. Realizing how valuable the Consultant had been to the company and how extraordinary his contributions would continue to be, Nicole suggested an O-1A petition, arguing that the Consultant was an Individual of Extraordinary Ability in Business. Generally, O-1A petitions on behalf of businesspersons can be an uphill battle, because proving “extraordinary ability” is a challenging standard to meet. (As one might expect!)

Nicole worked with the company and its prospective employee for weeks, gathering key documents and preparing stakeholders for the next steps in the process to avoid delays. That hard work paid off, as the distinguished reputation of the company and strong credentials of the Consultant won the day and the case was approved.

The results in this case underscore the importance of seeking advice from a qualified immigration attorney who understands the entire alphabet of immigration options available under U.S. immigration law. With creative strategy and thoughtful execution, even the most difficult case can become “extraordinary.”

(More Success Stories…)

5. Immigration Trivia Quiz

Quiz Removed

6. Immigration for Families of Filipino WWII Veterans

Starting June 8, 2016, and continuing for a minimum of 5 years, certain family members of Filipino World War II Veterans who are waiting for their family-based priority dates to be current will be permitted to apply to be paroled into the US.

Who is Eligible to Apply?

Persons who are beneficiaries of approved I-130 relative petitions in the family-based preference categories. The petitioner must be either the veteran or his spouse. Beneficiaries include unmarried sons and daughters (F1), married sons and daughters (F3) or brothers and sisters (F4). Spouses and minor, unmarried children of these beneficiaries would be permitted to accompany them to the US.
The veteran or the petitioning spouse must be living in the US, or if they are deceased, the petitioner must have been living in the US at the time of his or her death.

Who Qualifies as a Veteran?

1. Individuals who are listed on the final roster prepared by the recovered Personnel Division of the US Army of those who served honorably in active duty status in the Philippine Army during the World War II occupation and liberation of the Philippines;

2. Individuals who are listed on the final roster prepared by the Guerilla Affairs Division of the US Army of those who received recognition as having served honorably in an active duty status within a recognized guerilla unit during the World War II occupation and liberation or the Philippines; or

3. Individuals who served honorably in an active duty status within the Philippines Scouts or within any other component of the US Armed Forces in the Far East (other than a component described above) any time beginning September 1, 1939 and ending December 21, 1945.

How Can I Apply?

You must submit a completed Form I-131, Application for Travel Document and Form I-134, Affidavit of Support plus the required filing fees on behalf of each beneficiary who is requesting to be paroled into the US. Documentation of the veteran’s qualifying military service must be included with the application.

USCIS will evaluate these requests on a case-by-case basis, and there is no appeal from a denial.

Example: If you are coming to the US to care for the veteran or his surviving spouse, this increases the chances that your request for parole will be granted.
The USCIS estimates that 6,000 requests for parole under this policy will be granted over the next 5 years.

7. Ask Mr. Shusterman: Good News for Physicians That Want Green Cards

On March 9, 2016, the USCIS designated Matter of H-V-P, I.D. 16270 (AAO) as a precedent decision. It provides that the physicians who are specialists who practice in a medically-underserved area for a minimum of 5 years are entitled to permanent residence in the US through a National Interest Waiver (NIW).

Is this really news? No, but the Director of USCIS’s Texas Service Center had denied that the physician’s NIW, holding that only primary care physicians are entitled to such waivers, this despite the fact that the USCIS has approved thousands of such NIWs for specialists over the past decade.

Some recounting of history is required to explain this:

The Law (1999)

On November 12, 1999, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999 (“Nursing Relief Act”) was enacted to encourage foreign-born physicians to practice in medically underserved areas of the US.

The law allows “all alien physicians” who practice for at least 5 years in a medically-underserved area to qualify a green card.

The Regulation (2000)

On September 6, 2000, to implement the statute, the Immigration and Naturalization Service (“INS”) published a regulation which restricted the applicability of the law to primary care physicians. The regulation also contained a number of other restrictive provisions not found in the law.

The Lawsuit (2002-2006)

On December 9, 2002, one Grumpy Immigration Attorney (Yours Truly) filed a lawsuit in Federal District Court challenging the various restrictive clauses contained in the regulation which contradicted the generous terms of the law.

On my birthday in 2004, the Federal Judge dismissed our lawsuit. Happy Birthday, Carl!

We appealed this decision to the US Court of Appeals for the 9th Circuit, and on June 7, 2006, in Schneider v. Chertoff, the Appeals Court unanimously ruled in our favor.

However, the Court declined to rule on one of the most important restrictions, that which prohibited specialists from qualifying for NIWs. Among the many physicians across the US who volunteered to be plaintiffs in our lawsuit, only one was a specialist. We made sure that his attorney filed an I-140 NIW on his behalf.

The USCIS sent him a Request for Evidence (RFE) asking why he, as a specialist, was applying for an NIW since the regulations specifically prohibited this. Rather than respond to the RFE, his attorney simply failed to take action, and the I-140 was denied because of his failure to submit a timely response.

Hence, the Appeals Court declined to decide this issue on the ground that the specialist had no “standing” to challenge this section of the regulations since his NIW petition was denied for his failure to respond to an RFE, not because he was a specialist.

The Memo (2007)

Although I was thrilled to win the lawsuit, I was disappointed that the Court had not ruled on this important issue.

A couple of weeks later, I spoke at the Annual Conference of the American Immigration Lawyers Association (AILA) in Nashville, Tennessee.

It was there that I had a conversation with a top official of the USCIS. He was concerned that I was requesting attorney’s fees from the government for my 4 years of work in Schneider v. Chertoff under the Equal Access to Justice Act (EAJA). In turn, I expressed my concern about having to sue the government once again to resolve the issue of whether a specialist physician could qualify for an NIW.

We agreed that if I would drop my request for EAJA fees, he would include a clause in the upcoming USCIS memo stating that physicians who were specialists could qualify for green cards through NIWs.

On January 23, 2007, the USCIS issued a policy memo which declared that “though not mandated by the Schneider decision, USCIS is expanding the fields of medical specialty that may qualify physicians for NIWs by accepting petitions on behalf of physicians who provide specialty care.”

NIWs for Physician Specialists

Since 2007, our law firm has obtained green cards for thousands of physicians, many of them specialists, through the NIW process as well as through PERM, but apparently not all attorneys have been so fortunate. See below.

Matter of H-V-P (2016)

In Matter of H-V-P, the Director of the Texas Service Center denied an NIW petition on behalf of a Hematologist/Oncologist on the ground that he practiced in a HPSA/MUA, not in a Physician Shortage Area (PSA), and that only specialists who practiced in PSAs are eligible for NIWs.

The USCIS’s Administrative Appeals Office (AAO) rejected this argument citing the 2007 memo.

One month later, the USCIS designated Matter of H-V-P as a precedent decision, meaning that USCIS officers cannot deny NIWs to physicians simply because they are specialists.

Although this battle took almost 2 decades to resolve, I am very pleased to have fought the good fight, and to have forced the agency to follow the law.

8. Shusterman’s Upcoming Immigration Seminars

• Physician’s Guide to U.S. Immigration Law
  Kaplan
  Pasadena, CA
  June 16, 2016
  6:00 pm
• 2016 AILA Annual Conference on Immigration Law
  Las Vegas, NV
  June 22, 2016
  6:25pm
  Topic: Present Impact of Family Immigration History
• Global Mobility in the age of Terrorism
  Omni Hotel, Los Angeles, CA
  November 4, 2016
  Time TBD

9. Jobs & Green Cards for RNs & MedTechs
Free Legal Help!

Are you a Registered Nurse or a Medical Technologist who is looking for a job in the US?

What if you could find a job, a work visa and green cards for you and your family in the US? And what if the cost to you for all of this was zero?

Hard to believe? Let me explain:

Our law firm represents over 100 hospitals across the country. And the nurse shortage is coming back.

Our hospitals are in need of hundreds of RNs as well as Medical Technologists and other healthcare professionals. They are looking for both US and foreign-born RNs, and they will pay all of our attorneys’ fees, USCIS filing fees and more!

We have a video and a web page for those who are interested in applying for employment and sponsorship.

If you are a foreign nurse or a medical technologist and need a job in the US and the job requires a work visa and/or green card, please do the following:

Send an e-mail message to egarcia@shusterman.com

In your message, please provide the following information:

1. Have you passed the NCLEX exam?
2. Do you have a current RN license in the US? If so, from what state(s)?
3. Have you taken and passed the IELTS or TOEFL exam?
4. Do you have a valid VisaScreen certificate?
5. Do you have any immediate family members accompanying you to the United States (spouse and children)?
6. Have you ever been petitioned by any US sponsor and hold an old priority date? If so, what is your priority date?
7. If you are present in the US, what is your current immigration status?
8. What is your RN background (area of expertise)?
9. What is your country of birth?
10. What is your country of citizenship?
11. What is your phone number?

If you are a CLS, please amend the above questions accordingly.

We will forward your response to our hospitals, and if they are interested, they will contact you. Please do not contact our law firm until after you hear from one of our hospitals.

We look forward to helping you!

10. Winner of Our May 2016 Immigration Trivia Quiz!

Quiz Removed

Below is the message we received from the winner:

1. Liz Claiborne; Brussels, Belgium
2. Kooan Kosuke; Himeji, Hyōgo, Japan
3. Oscar De La Renta; Santo Domingo, Dominican Republic

About me:

Hello,

My name is Parag Devani and I work in the IT field in Phoenix, AZ.
I enjoy the trivia quiz and reading the new updates on your web site.
I had Google to help me find the answers.

Thanks & regards.

Parag

Congratulations, Parag!

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California
Immigration and Naturalization Service (INS) Attorney (1976-82)
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

“Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime.”

– Justice Kennedy in Arizona vs. United States (2012)

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May 30, 2016