Shusterman's Immigration Update
November 2008

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Volume Thirteen, Number Ten

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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 56,000 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.


TABLE OF CONTENTS:



NEWS FLASHES:



1. What Effect Will the November Elections Have on Immigration?


Did you notice that the issue of immigration did not come up in any of the Presidential debates this year?

Could it be because both Senator Obama and Senator McCain have very similar views of this important subject? After all, Senator McCain was the co-sponsor with Senator Kennedy of the comprehensive immigration reform bill which was approved by the Senate. Senator Obama cast his vote in favor of this bill.

Anti-immigration zealots are distressed that both candidates are strong advocates of immigration reform. “We’re going to have an incredibly bad White House, so we’re in for some tough defensive battles,” said Roy Beck, President of NumbersUSA, which favors reduced immigration. “We have to make sure we’ve got at least 41 senators so we can block any Obama or McCain amnesty.”

However, during the Republican primary campaign, Senator McCain was forced to back away from his strong support for immigration reform because Colorado Congressman Tom Tancredo entered the primaries primarily to force the other Republican candidates to take a tough stance against immigration, particularly that the 10-12 million persons working illegally in the U.S. should not be “rewarded” by being placed on a path to citizenship. During the Republican debates, even candidates like Rudy Giuliani and John McCain backpedaled on their strong support for immigration reform, and were forced to talk the talk of the anti-immigrant right wing of their party.

This has come back to haunt Senator McCain in the general election. The Hispanic vote is leaning heavily toward Senator Obama, mostly because of Senator McCain’s anti- immigration rhetoric in the primaries. Even Congressman Tancredo’s home state of Colorado which voted for President Bush in 2000 and 2004 seems ready to vote Democratic in 2008. Why? Primarily because Hispanic voters in Colorado view Senator McCain as being unreliable on the issue of immigration.

This should come as no surprise to the Republicans. Exhibit One is California, once a reliable state for the Republicans, which became a strong Democratic state after Republican Governor Pete Wilson rode to victory in 1994 on the back of anti-immigrant Proposition 187. See our “Wikipedia” page at

http://shusterman.com/wikipediaimmigration.html#9

The success of this proposition helped prompt more immigrants to naturalize and register as Democrats.

America is increasingly a multiracial society where politicians must appeal to voters of various races, religions and nationalities if they want to get elected.

Most polls and pundits are predicting not only that Senator Obama will be our next President, but that the Democrats will increase their majorities in both the Senate and the House of Representatives.

If this occurs, the anti-immigrant segment of House Republicans will no longer be able to block passage of the DREAM Act, the AgJobs bill, and ultimately, comprehensive immigration reform.


2. New Immigration Legislation Signed Into Law by President


On September 30 and during October, President Bush signed into law a variety of immigration bills. Unfortunately, most of these laws simply extend existing immigration programs through March 2009.

On September 30, the President signed a spending bill (H.R. 2638) which extended the life of both the “E-Verify” and the EB-5 Regional Center Pilot Programs. The programs were scheduled to end on November 1 and October 1, 2008, respectively.

The new law extends both programs until March 6, 2009.

The “E-Verify” program allows employees to verify with the USCIS and the Social Security Administration whether new hires are authorized to work in the U.S. and whether their names and social security numbers match. A few states, including Arizona and Mississippi require all employers to use the “E-Verify” program. As soon as regulations are issued, federal contractors will be required to use the “E- Verify” program. We link to “E-Verify” from our “Department of Homeland Security” page at

http://shusterman.com/departmentofhomelandsecurity.html#1

The EB-5 Regional Center Pilot Program permits persons to invest $500,000 in a federally-designated regional center in order to qualify for permanent residence. We link to a list of current active regional centers from our “Green Cards Through Investment” page at

http://shusterman.com/investorsusimmigration.html

On October 8, the President signed H.R. 5571 into law thereby extending the Conrad 30 program for physicians. The Conrad 30 program allows each state to sponsor up to 30 physicians per year for waivers of the two-year home residency requirement for foreign medical graduates who receive medical training (i.e., residencies and fellowships) in the U.S. as J-1 exchange visitors. In addition, the new law expands from 5 to 10, the number of physicians who need not practice in federally-designated medically-underserved areas in each state. We link to the Conrad 30 programs in most states from our “J Waivers for Physicians” page at

http://shusterman.com/jwaiversfordoctors.html#3

On October 9, the President signed the “Military Personnel Citizenship Processing Act of 2008″ (S. 2840) into law. The law requires that the USCIS process and issue a citizenship decision within six months of receiving an application from a current or former member of the armed forces, or their surviving dependents. If a decision is not made within that time frame, USCIS is required to explain the delay and provide a new decision target date.

The law also establishes an FBI liaison office inside USCIS and processing deadlines for other naturalization applications.

On October 10, the President signed into law a bill (S.3606) which extends the religious worker program to March 6, 2009.

We link to the complete text of each of the above laws from our “Immigration Legislation” page at

http://shusterman.com/legislationusimmigration.html#2

There remains a small possibility that other immigration legislation including a bill to recapture 500,000 immigrant visas and the Emergency Nursing Supply Relief Act may be approved by Congress and signed into law during the “lame duck” session of Congress which will begin following the November elections.


3. DHS Publishes “No Match” Supplemental Final Rule


On October 23, DHS Secretary Michael Chertoff announced the issuance of a revised No-Match Supplemental Final Rule in place of the regulation whose enforcement was enjoined in Federal Court.

The Secretary also outlined comprehensive efforts to secure the border, enforce national immigration laws, improve temporary worker programs, and legal migration. He noted: “We developed a comprehensive multi-year strategy for dealing with the issue of illegal migration, we have implemented that strategy, and today we are seeing positive results of our actions.”

We link to Secretary Chertoff’s remarks from

http://www.dhs.gov/xnews/speeches/sp_1224803933474.shtm

We link the complete text of the rule which was published in the Federal Register on October 28 from our “Employer Immigration Guide” at

http://shusterman.com/employersusimmigration.html#7a

We also link to the Office of Special Counsel’s Antidiscrimination Guidance for Employers Following the DHS Safe-Harbor Procedures from

http://www.usdoj.gov/crt/osc/htm/Nomatch032008.htm

Reaction to the regulation was swift. The U.S Chamber of Commerce, the AFL-CIO and the American Civil Liberties Union said the changes would do little to lessen the concerns that led to a lawsuit over the rule, which requires employers to terminate workers whose names and Social Security numbers fail to match.

John Sweeny, President of the AFL-CIO stated that “no matter how many times the administration repackages this rule, relying on the error-filled Social Security database is a recipe for disaster for both American workers and the economy.”

An economic analysis of the “no match” rule for the U.S. Chamber of Commerce found that 165,000 U.S. citizens could lose their jobs because of their inability to resolve discrepancies in the flawed database.

What does the new regulation say? Pretty much the same thing that the old regulation said. See “Employers: How to Avoid Penalties for SSA “No-Match” Letters” at

http://shusterman.com/newsletterusimmigrationseptember2007.html#2

The matter is still before the Federal Judge. A preliminary injunction is still in place, and the regulation cannot go into effect until it is lifted. Furthermore, the SSA has temporarily stopped sending “No-Match” letters to employers. A Status Conference on the Federal lawsuit is scheduled to take place on November 21st.

We promise to keep you updated on this important subject.


4. Schedule of Upcoming Immigration Law Seminars


November 7-8th

  1. Puerto Vallarta, Mexico
    American Immigration Lawyers
    Association (AILA)
    Texas Chapter Fall Conference

    Topic: “Child Status Protection Act”

    For more information, see

    http://www.aila.org/content/default.aspx?docid=25565 (Link no longer operational)

  2. November 13-15th

    San Francisco, California
    21st Annual AILA California
    Chapters Conference

    Topic: “Federal Court Litigation”

    For more information, see

    http://www.aila.org/content/default.aspx?docid=25430 (Link no longer operational)


5. Success Story: Green Cards through Humanitarian Reinstatement


The family-based immigration petition is one of the most widely used mechanisms for immigrants to permanently settle in the United States. The details of such petitions may be accessed from our “Green Cards Though Family Members” page at

http://shusterman.com/greencardsthroughrelatives.html

Dependent on the nationality of the person being sponsored and the relationship between the petitioner and the beneficiary, this can be a very long process.

Most immigrant visas are numerically limited by category and by country of chargeability (which is, in most cases, one’s country of birth) of the beneficiary.

There is no numerical limit for “immediate relatives” of U.S. citizens, which includes parents, spouses and children under the age of 21.

However, there are numerical limitations on the number of both married and unmarried (over 21 years of age) sons and daughters of U.S. citizens, brothers and sisters of U.S. citizens and even spouses and unmarried sons and daughters of lawful permanent residents. The waiting times for each category are listed on the Visa Bulletin issued by the Department of State every month.

They range from 5 to over 22 years!

We link to the current and past Visa Bulletins from our website at

http://shusterman.com/statedepartmentvisabulletin.html

One of the unfortunate consequences of such long waiting times is that the U.S. citizen or permanent resident petitioner might die before the beneficiary receives his or her green card. In such a scenario, the immigration petition is automatically revoked. Fortunately, there is a remedy in such a situation – “humanitarian reinstatement” of the original petition.

Consider a recent case where our attorneys requested humanitarian reinstatement to help one of our clients.

Ms. X, a citizen of the Philippines, came to our office looking for help. Her mother, a U.S. citizen, had filed an I- 130 petition for her in 1996 and the petition became “current” in 2008. After 12 years of waiting, she was finally eligible to adjust her status to that of a permanent resident under section 245(i). See our “Section 245(i) FAQ” at

http://shusterman.com/greencardsusing245i.html

Then disaster struck! Just prior to her adjustment of status interview, Ms. X’s mother passed away.

This meant that her approved petition was no longer valid under USCIS regulations at 8 CFR 205.1(a). After 12 years of waiting in line, Ms. X was facing deportation from the U.S. Her only chance of continuing to benefit from this petition was under another regulation, 8 CFR §205.1(a) (3) (i) (C), which allows the USCIS to reinstate the petition based on their discretion. In order to qualify to reinstate a petition, a person has to demonstrate to the USCIS that certain factors exist such as:Disruption of an established family unit;

  1. Hardship to US citizen or LPR;
  2. Beneficiary is elderly or in poor health;
  3. Beneficiary has had a lengthy residence in the US;
  4. Beneficiary has no home abroad to go to;
  5. Beneficiary has strong family ties in the United States.

Along with all of these requirements, the beneficiary also has to comply with the affidavit of support requirement, which means they need another qualified individual to execute an affidavit of support. Such qualified individuals are listed under section 213A (f) (5) of the immigration law. The list includes spouses, parents, siblings, in-laws, grandparents, and grandchildren who are either U.S. citizens or permanent residents.

Our attorney spent considerable amount of time in understanding the family situation of Ms. X. After speaking with her family members in the U.S., the attorney carefully crafted declarations, and documented that the beneficiary had satisfied the above requirements.

On the day of the interview, our attorney requested that the petition be reinstated. Fortunately, the attorney’s preparation paid off.

Ms. X left her interview with an approval of her immigrant status in hand!

To read more of our Immigration Success Stories, see

http://shusterman.com/successstoriesimmigration.html


6. Immigration Trivia Quiz: Meals of the World


This month’s Immigration Trivia Quiz is entitled “Melting Pot of Culture.” Food is an essential component that keeps international traditions alive and well. See if you can identify these worldly plates of delicious food at

http://shusterman.com/foodjo.html (Link no longer operational.)

The first person to correctly answer our quiz (and supply their biographical information) wins a free legal consultation with me before the end of November.


7. Ask Mr. Shusterman: Test Your Naturalization IQ


Having been employed by the INS in the late 1970s as a General Attorney (Nationality) and conducting thousands of naturalization interviews, I understand that there are many misconceptions about how this complex area of the law works.

After entering private practice in 1982, I encountered a large number of unusual circumstances and legal issues regarding the naturalization process. For example, see “Private Romero’s 50-Year Odyssey to U.S. Citizenship” from our “Photo Gallery” at

http://shusterman.com/privateromerobecomesuscitizen.html

Think that you understand how U.S. citizenship laws work?

Test your Immigration IQ on our Naturalization Quiz at

http://shusterman.com/naturalizationquiz.html (Link no longer operational.)




8. Official Immigration Government Processing Times



* Citizenship and Immigration Services (USCIS)

The Immigration Service (USCIS) 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; (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

http://shusterman.com/waitingtimesusimmigration.html#1

Processing times at USCIS local offices may be accessed at

http://shusterman.com/waitingtimesusimmigration.html#2

Administrative appeals of most types of petitions denied by the USCIS are adjudicated by the agency’s Administrative Appeals Office (AAO) in Washington, DC.

The AAO’s most recent published processing times (October 24, 2008) may be found at

http://shusterman.com/waitingtimesusimmigration.html#1


* Department of State

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

http://shusterman.com/waitingtimesusimmigration.html#4


9. Chat Transcripts, Audios, Videos and WebCasts Chats


Since 1999, we have participated in dozens of free online immigration chats. Our chats always focus on a particular subject.

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

http://shusterman.com/shustermanchatsusimmigration.html


Immigration Audios


Are your eyes getting tired from reading all of our information about immigration laws and procedures? Then sit back, close your eyes, and listen to any (or all!) of the following immigration audios:

  • Welcome To Our Web Site!

    http://shusterman.com/audio/welcome.ram (Link no longer operational)


  • Understanding the H-1B Cap Law: AC-21

    http://shusterman.com/audio/h1bcapla.ram (Link no longer operational)


  • Temporary Visas to Visit, Study or Work in the U.S.

    http://shusterman.com/audio/temp.ram (Link no longer operational)


  • Obtaining A Green Card To Live and Work in the U.S.

    http://shusterman.com/audio/gc.ram (Link no longer operational)


  • How to Become a Citizen of the U.S.

    http://shusterman.com/audio/usc.ram (Link no longer operational)



National Public Radio (NPR) Audio Programs


We link to selected audio programs regarding immigration produced by National Public Radio at

http://shusterman.com/nationalpublicradiousimmigration2010.html


Immigration Videos


See our videos and accompanying power point presentations:

  • Immigration and IMGs (Kaplan Medical) at

    http://shusterman.com/video/kaplan-img.ram (Link no longer operational)


  • Immigration and Nurses (Kaplan Medical) at

    http://shusterman.com/video/kaplan-nurses.ram (Link no longer operational)


See my testimony before the Senate Subcommittee On Immigration regarding “Immigration Policy: Urban And Rural Health Care Needs” at

http://shusterman.com/video/carlsenate.ram (Link no longer operational)

Read the complete transcript of my testimony at

http://shusterman.com/shustermantestimonysenate.html


10. Winner of the October 2008 Immigration Trivia Quiz


Our October 2008 Immigration Trivia Quiz was entitled “Redefining the American Landscapes: Immigrant Architects and Their Masterpieces.” See

http://shusterman.com/architectquizjh.html (Link no longer operational.)

We did not receive any correct responses to the quiz until we posted a “hint” on our news ticker several days after the release of the October newsletter.

Here is the letter that we received from our winner:

Dear Mr. Shusterman,

  1. Frances Howard Goldwyn Hollywood Regional Library, Frank Gehry, Canada
  2. IBM Building, Chicago, Ludwig Mies van der Rohe, Germany
  3. The San Remo, New York City, Emery Roth, Austria-Hungary (now Slovakia)
  4. Gateway Arch, St. Louis Missouri, Eero Saarinen, Finland

I have been visiting your wonderful website frequently for about 5 years now (and newsletter for about 2) to keep me updated on the latest immigration news. It has been particularly helpful for me personally as a foreign national who is immigrating to the US. So far, it has been a long and rocky road, but hopefully it (and maybe with the help of Mr. Shusterman) will come to a successful end soon. This is why I would love to win the trivia quiz and receive a free consultation.

Thanks,

Jeff

Congratulations on correctly answering our quiz, and winning a free legal consultation, Jeff!

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


“Immigration reform is central to getting our economy back on track. The elements of the most practical and effective plan combine ideas from both the left and the right: imposing tighter border security; creating a 21st-century worker identification card that will allow employers to verify the legality of a job applicant and allow the federal government to enforce the law; increasing lawful opportunity for those seeking the American Dream; and, following in the footsteps of President Reagan, allowing those who are here illegally the chance to earn the right to stay.”


- Michael Bloomberg, Mayor of New York City


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