SHUSTERMAN'S IMMIGRATION UPDATE
(October 2003)

The DHS will open offices early next year in U.S. Embassies and Consulates in Egypt, Indonesia, Morocco, Pakistan and the United Arab Emirates. In August 2003, the DHS established offices in Riyadh and Jeddah, Saudi Arabia.

"The Immigrant Workers Freedom Ride represents the demand for equality and justice for all, the end of racism and full civil rights for immigrant workers and their families," stated Rev. James Lawson, an organizer of the 1960's Freedom Rides and President of the Los Angeles-based Clergy and Laity United for Economic Justice.

Congressman John Lewis (D-GA), one of the original Freedom Riders, recalled how he was "left in a pool of blood in the Montgomery bus station" after the riders were attacked by a white mob. He said he supports the immigrants' campaign because "we all are in the same boat. We were all immigrants from some place, except the Native Americans."

We link to the web site of the Immigrant Workers Freedom Ride at

In early October, the Department of Homeland Security (DHS) entered into a Memorandum of Understanding (MOU) with the Department of State (DOS) as to the responsibilities of each Department in the visa-issuing process. We will discuss the details of this MOU in a future issue of SHUSTERMAN'S IMMIGRATION UPDATE.

One such citizen (my wife) has learned that Filipinos can become dual citizens by completing a form, paying a $25 fee and taking an oath of citizenship. You must present your birth certificate and proof of U.S. citizenship (either your U.S. passport or your Certificate of Naturalization).

We link to the official press release of the Republic of the Philippines at

CONTENTS:

1. November 2003 State Department Visa Bulletin

Unsettling was the lack of any forward movement in the family 2B category (unmarried adult sons and daughters of lawful permanent residents). All of the other worldwide family categories advanced between three and four weeks.

The Philippine family categories slowed to a crawl with only the 3rd preference category (married sons and daughter of U.S. citizens) moving significantly forward.

The India 4th preference category advanced only 3 weeks.

None of the Mexican family categories advanced more than 5 weeks.

The Visa Bulletin creates false expectations. As long as a category advances less than four weeks each month, the waiting period listed on the bulletin cannot be relied upon. Unless Congress acts to reform the family-based system, the 3.5 million persons waiting to immigrate to the U.S. based on approved family-based petitions should consider other options for immigrating.

All of the employment-based numbers remain current. The time to apply for your labor certification or visa petition is now.

The November 2003 Visa Numbers can be found at

2. Latest Government Processing Times

These service centers periodically issue lists of their processing times for various types of petitions and applications. Our web site contains the latest list issued by each service center.

Warning: Processing times may appear faster on the official lists than they are in reality. These processing times are not recognized as official by the CIS in Washington, D.C. and are not posted on the official CIS web site.

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

Administrative appeals of denials of most petitions denied by the CIS are adjudicated by CIS's Administrative Appeals Office (AAO) in Washington, DC.

The AAO's most recent published processing times (July 2003) may be found at

3. H-1B Cap Falls to 65,000: Advice for Employers/Employees

Hopefully, before all the numbers are expended, Congress will revisit this issue. In the meantime, what follows is some important advice for employers and employees:

1. If You Don't Fit the Bill, Just Chill

   Persons currently in H-1B status who need to file an extension of status or a change of employers are not affected by the drop in H-1B numbers. Also, persons seeking employment through institutions of higher education, nonprofit research organizations, and government research organizations will continue to be exempt from the H-1B cap.

2. Use Premium Processing

   Processing times for H-1B petitions at the four CIS Service Centers range up to six months and longer. Since there may not be any H-1B numbers left in six months, be cautious and use premium processing to assure a 15-day turnaround.

3. File Early and Often

   The $1,000 fee for employers has also sunsetted. If your H-1B petitions are submitted to the government before the fee is reimposed, you can use the $1,000 to pay for premium processing.

4. H-1B Dependent Employers

   Until Congress acts, the recruitment and displacement attestations required of H-1B dependent employers no longer apply. Also, the Department of Labor's authority to investigate such employers in the absence of a complaint has sunsetted.

5. Students on Optional Practical Training

   Thousands of foreign-born students graduated from U.S. universities at the beginning of this summer and received optional practical training. Their EADs will expire in June and July of 2004, by which time there may no longer be any H-1B numbers. These students should have their employers apply to change their status to H-1B now.

6. IMGs Seeking Medical Residencies

   There are hundreds, if not thousands of International Medical Graduates (IMGs) present in the U.S. studying to pass the United States Medical Licensing Examination (USMLE) and the Clinical Skills Assessment (CSA). By the time that the Match occurs in mid-March, it will probably be too late for your residency program to sponsor you for H-1B status (although medical residencies associated with universities are not subject to the H-1B cap). Think ahead, and obtain H-1B status now, possibly as a medical researcher. Then your residency program can apply for you to change employers. This way, you will not be subject to the H-1B cap in March 2004.

7. Physicians Seeking J Waivers

   Physicians who obtain J waivers are usually required to obtain H-1B status. If you are in your final year of your residency or fellowship, and need a J waiver, be aware that, depending on how you obtain such a waiver may determine whether your H-1B is subject to the numerical cap. In general, physicians who are sponsored under a Conrad 30 program are NOT subject to the cap, while other physicians who obtained J waivers are subject to the cap. Therefore, if you cannot obtain sponsorship under the Conrad program, be sure to extend your ECFMG exchange visitor status past October 1, 2004, at which time H-1B numbers will again be available. Many physicians can do so by taking their specialty boards or by starting a fellowship.

   In September 2003, the General Accounting Office (GAO) published a 52-page report entitled "H-1B Foreign Workers: Better Tracking Needed to Determine H-1B Program's Effect on U.S. Workforce". We link to this report as well as to a host of other information on the H-1B program from our "H-1B Page" at

   http://shusterman.com/h1bvisasgeneralinformation.html#5

4. Health Care Workers: New BCIS Memo Is Wrong Rx for RNs

The regulations apply the health care certificate requirement to nonimmigrant nurses, medical technologists and technicians, occupational and physical therapists, physicians' assistants, audiologists and speech language pathologists beginning on July 26, 2004.

For links to the complete text of the regulations and our FAQ, see our August 2003 newsletter at

However, Section E of the memo which is entitled "Effect of Final Rule on Immigrants" states as follows:

Immigrant health care workers are currently required to present certification to the Department of State at the time of immigrant visa issuance or to the DHS at the time of adjustment of status. If the alien is adjusting status, all eligibility requirements must be met at the time of filing the application for adjustment of status. 8 C.F.R. 203.2 (b)(12). Therefore, a healthcare worker in one of the affected occupations must submit evidence of certification at the time the adjustment of status is filed. (Emphasis added.)

Hopefully, this is simply a mistake, and the BCIS will issue a revised memorandum. If not, beleaguered hospitals will be deprived of the opportunity to hire thousands of licensed nurses and allied health care professionals, further adding to the national shortage of such workers.

The health care certificate process requires that written and spoken English examinations be scheduled and passed; that the results be transmitted to approved credentialing organization; that foreign licenses be certified as being unencumbered; and that the education and training received abroad be comparable to U.S. education and training. The process can take anywhere from six months to two years or more. Most health care workers will not be able to comply with this new requirement during the pendency of their nonimmigrant stays in the U.S., and will be forced to return to their home countries.

The effect of the new policy on the hiring of registered nurses will be particularly pronounced. Unlike most allied health care professionals, RNs are usually ineligible for H-1B status. Hospitals are suffering a shortage of over 126,000 RNs according to the American Hospital Association. The BCIS's new policy will be to eliminate one of the few means that health care providers have to hire foreign-born nurses in a matter of months, rather than years.

Furthermore, since the BCIS memo conflicts with the new regulations, which controls? Regulations are published in the Federal Register and have the force of law. Agency memoranda are not published in the Federal Register and do not have the force of law. It is likely the apparent conflict will be resolved when a health care worker not in possession of a certificate is denied adjustment of status for that reason and renews his or her application in removal proceedings before an Immigration Judge. Then Immigration Judges, the Board of Immigration Appeals and, ultimately, the Federal Courts will decide whether the regulations or Section E of the memo controls.

We link to the BCIS memo from both our "Registered Nurses" and our "Allied Health Professionals" pages at

5. Trivia Quiz: Say You'll Change the Constitution

This month's Immigration Trivia Quiz can be found at

6. Mandamus Actions: Make the Government Work for You!

The government processing times!

This is no surprise since it takes the government over two years to process an application for adjustment of status, and over six months to process a simple H-1B petition.

Recently, we were retained to represent a young woman who had obtained conditional permanent residence through her marriage to a U.S. citizen. The marriage failed to last two years beyond the date that she adjusted her status.

She submitted an application (I-751) to remove the two-year condition on her green card and to waive the joint petition requirement. She waited three years for the INS to process her application. Then she moved to Los Angeles, and was told that her application would go to the back of the line, and she would have to wait another three years!

She did not think this was fair, and neither did we. One of our attorneys made an inquiry on her behalf, and received the same answer: three more years.

We wrote two certified letters to the government requesting an immediate interview for our client. Then we went to the Federal Court and asked for a "Writ of Mandamus" to require the government to make a decision on her application.

After filing our law suit, we received a call from the U.S. Attorneys Office. The U.S. Attorneys represent the Department of Homeland Security and other federal agencies in court.

The Assistant U.S. Attorney informed us that we would be hearing from the Bureau of Citizenship and Immigration Services (CIS) shortly.

The very next day, we received an appointment letter from the CIS scheduling an interview for our client. We appeared with her at her interview, and the I-751 was approved on the same date. Our client is delighted and so are we. We are now applying for naturalization on her behalf.

What is a Writ of Mandamus? It compels the government to perform a duty owed to you. If you submitted an application for an immigration benefit, if it is beyond the normal processing time, if you have made written inquiries about your application, and the government has not responded, requesting a Writ of Mandamus in Federal Court will get their attention. Trust me.

Unfortunately, many immigrants are afraid that the Immigration Service will deny their applications in retribution if they ask for a Writ of Mandamus. All I can say is that after practicing immigration law for over 25 years, both for the INS and in private practice, I have never seen this happen.

Some attorneys are hesitant to go to Federal Court and sue the Immigration Service.

Fortunately, the American Immigration Law Foundation (AILF) has published an excellent Practice Advisory regarding how to file a mandamus action in Federal Court which cites the relevant statutes and case law.

We link to this and other AILF Practice Advisories at

7. Legislation, Backlog Reduction and Washington Update

On September 30, the day that the religious worker program sunsetted, the Congressional Research Service published a report entitled "Immigration of Religious Workers: Background and Legislation". This report is available online at

These issues, as well as recently-introduced legislation, legislative hearings, GAO reports, etc. are covered in more detail in the October 10, 2003 issue of "Washington Update" published by the American Immigration Lawyers Association (AILA) at

8. Schedule of Upcoming Immigration Law Seminars

1. October 16-17         San Antonio, Texas
   27th Annual Conference in Immigration and Nationality Law - University of Texas School of Law

   My presentation is entitled "Using the Web to Practice Immigration Law".

   For program and registration information, see

   http://conferences.utcle.org/law/cle/conferences/fall2003/IM03/index.html (Link is no longer operational.)

2. October 27         San Francisco, CA
   Practising Law Institute

   36th Annual Immigration & Naturalization Institute

   For more information, see

   http://www.pli.edu/product/upprog_prod_detail/product_overview.asp?wtype=1&ptid=3&stid=8&pid=EN00000000008997

3. November 6-7         Philadelphia, PA
   The American Organization of Nurse Executives (AONE)

   "Foreign Nurse Recruitment: Getting It Right"

   My topic is "Immigrating Foreign Nurses - Is the Door Opening?" I will also participate in a general Q & A with several presenters, including Barbara Nichols, the Chief Executive Officer of the CGFNS.

   See the agenda at

   http://www.hospitalconnect.com/aone/docs/foreign_schedule.doc
   For program and registration information, see
   http://www.hospitalconnect.com/aone/docs/foreign_brochure.pdf

9. Chat Schedule, Transcripts, Audios & Videos

Chats

Since 1999, we have served as the official immigration experts for About.com. We have participated in dozens of free chats since then. Our chats always focus on a particular subject.

Our latest chat, "Understanding the 180-Day Portability Rule: The New BCIS Memo" took place on August 25. The chat transcript and those of our previous chats are posted online on our "Chat" page at

Immigration Audios

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

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

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

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

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

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

Immigration Videos

• Physicians: J Waivers, H-1B and O-1 Visas
  http://shusterman.com/video/img100302_p1.ram

• Physicians: Obtaining Permanent Residence
  http://shusterman.com/video/img100302_p2.ram

• Physicians: Questions and Answers
  http://shusterman.com/video/img100302_qa.ram

10. Answer to the September 2003 Immigration Trivia Quiz

Hello,

1. Saul Bellow - born in Lachine, Quebec, Canada
2. Isaac Bashevis Singer - born in Warsaw, Poland
3. Czeslaw Milosz - immigrated from Poland, but actually was born in Lithuania.

Sincerely,
Pawel Zurek

Were we impressed! So we wrote back and asked Pawel about himself and how he was able to answer the quiz. Here is his response:

Yes, I'm an immigrant. I moved to the US from Poland in 1997 on the basis of an H-1B visa. Currently I've been waiting for the approval of the I-485 application (employment based) since October 2002. I have a M.Sc. degree in Computer Science. I live in Phoenix, Arizona and work as a software engineer.

I signed up for the newsletter the day before the recent issue was released. However I used to be a subscriber a few years earlier. I cancelled the subscription during the move (I used to live in Florida.) and didn't renew it until this month.

I frequently check the shusterman.com website and I find it extremely useful. I check the processing times quite often and I'm trying to be up to date with the changes to the immigration law. BTW, thank you for all your efforts!

The quiz was not too difficult for me, because being from Poland I have immediately recognized Milosz and was 90% sure about Singer (I have learned about them in school). After that it was just a matter of searching for another foreign-born American Nobel Prize winner (google.com is really useful).

I don't really have too many questions for Mr. Shusterman and because of my work schedule it would be quite difficult for me to make a call during the business hours. However, if it is possible, I would send a few questions in the email. Please advise if it is possible.

Thank you!

Sincerely,
Pawel Zurek

October 11, 2003
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

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