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Free Subscription to SHUSTERMAN'S IMMIGRATION UPDATE
Back Issues of SHUSTERMAN'S IMMIGRATION UPDATE
Volume Thirteen, Number Eight
SHUSTERMAN'S IMMIGRATION UPDATE is the Web's most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 55,000 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
To subscribe, type in your name and e-mail address at http://shusterman.com/subscribe.html#subscribe and click on "Subscribe".
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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.
Hacienda De Caballo, LPbefore it sunsets on September 30, 2008. |
"His appointment is extremely important and hopefully a symbol that the Justice Department recognizes it can't have credibility in the legal community if it does not have an impartial and neutral face," said Lory Rosenberg, a former BIA member who left the board in 2002. "I have immense respect for him. He is a very sharp, analytical thinker who knows immigration law inside and out."
Mr. Osuna, a native of Columbia, is the first Latino to chair the BIA.
In our opinion, the BIA can only fulfill its responsibilities if it is properly funded, and if the 2002 "streamlining reforms" initiated by former Attorney General John Ashcroft are rolled back. See our 2002 article entitled "Proposed BIA Regulations Would Make Mockery of Due Process" at
The USCIS states that the language of the law is "unambiguous". However, the BIA, in Matter of Garcia, a nonprecedent decision, strongly disagrees with the USCIS' interpretation of the automatic conversion clause. See
With regard to our pending Federal lawsuit regarding the "automatic conversion" clause, Cuellar de Osorio v. Scharfer, the government's answer to our complaint is due on September 22nd,. Our complaint is available online at
It all started with the following quote from ICE's Acting Chief on July 31: "This program addresses concerns raised by aliens, community groups, and immigration attorneys who say ICE unnecessarily disrupts families while enforcing the law," said Julie L. Myers, Homeland Security Assistant Secretary for ICE. "By participating in the Scheduled Departure Program, those who have had their day in court and have been ordered to leave the country have an opportunity to comply with the law and gain control of how their families are affected by their removal."
The idea was that a goodly proportion of the persons under Final Orders of Removal/Deportation with no criminal histories could avoid early morning home visits by armed ICE agents by voluntarily appearing at one of five participating ICE offices (Santa Ana, San Diego, Chicago, Phoenix and Charlotte). The ICE officers would assist these folks in arranging transportation back to their home countries within 90 days. To the government, this seemed like a reasonable alternative to arrests, guns, jail, uniformed officers, all in front of one's spouse and kids.
ICE knocked themselves out to make the program user-friendly: print and radio ads in several languages, a toll-free turn- yourself-in hotline, and online info on how to get to your nearest ICE office, even MapQuest! What more could you ask for?
Pro-immigration groups ridiculed ICE's Scheduled Departure Program a "PR gimmick" and the "Theatre of the Absurd". They pointed out that ICE has so often been accused of violating immigrants' rights that even certain Members of Congress have referred to ICE as the "Gestapo". With detention facilities at full capacity and backlogs at Immigration Courts expanding, they accused ICE of trying to play the humanitarian card in order to state "Well, we tried to do this the nice way. Obviously, illegal aliens only understand force!" If a person truly desired to return home, he could do so without paying a visit to his local ICE office.
We link to both the ICE press releases and to criticism of the program from our "ICE" page at
Whether we are talking about 8 workers or 600, none of this makes much of a dent in the estimated 10-12 million illegal immigrants in our country. There are only 100 ICE fugitive operations teams nationwide. Even if taxes were raised on every American, and this number was increased ten-fold, it wouldn't have much impact on the number of undocumented workers in the U.S. This is an area where the laws passed by Congress must conform to the laws of economics, not the other way around.
As an ex-INS prosecutor, I am firmly convinced that any "enforcement-only" approach is doomed to failure. It is worth noting that both Senator McCain and Senator Obama seem to agree with me on this issue.
Don't expect Comprehensive Immigration Reform, the DREAM Act or an AgJobs bill to be passed in the waning days of the 110th Congress.
What may be possible is some piecemeal reform. High on the list are bills which would:
A) Extend the Conrad 30 Waiver Program for Physicians
B) Extend the EB-5 Regional Center Investment Program
C) Extend the Temporary Religious Worker Program
The above three bills, along with an extension of the "E- Verify" enforcement program are likely to be signed into law during September and October.
Two other bills have a chance of passage, but your strong support is necessary.
D) A bill which would recapture approximately 500,000 immigrant visas which were lost between 1992 and 2007. Approximately 300,000 of these green cards are in the employment-based categories while the other 200,000 are in the family-based categories. It is expected that this infusion of visa numbers would make the EB-2 and EB-3 categories "current" for the first time in several years.
E) A bill which would allow 20,000 registered nurses and physical therapists to immigrate each year for the next three years. Most sponsoring employers would pay a $1,500 surcharge to help train U.S. workers for these jobs. Family members (spouses and unmarried children) of these RNs and PTs would be able to immigrate without regard to the quotas.
We link to the complete text of each of these bills from our "Immigration Legislation" page at
Let your elected representatives hear from you. The anti- immigrant folks are already busy trying to defeat these bills. If you are really serious about getting positive immigration laws passed, please read the next article and take action.
During the 2006 election, a group of immigration attorneys decided they were tired of the anti-immigrant rhetoric they were seeing in commercials at home and hearing from politicians in Washington. They decided it was no longer time for tough talk; it was time for action. So, they came together and formed an organization based on their shared concerns. They called the new group Immigrants' List (IL) and, in just one week, they raised over $120,000 to support pro-immigration candidates.
IL is the first political action committee of its kind. It represents a turning point in the fight to elect pro-immigration candidates. IL will support candidates - regardless of political party - who will work for meaningful immigration reform and oppose those who use immigration as a political tool to divide the American people.
IL is working to build a pro-immigration majority in Congress by electing members dedicated to reform. IL is also working to defeat members who use fear and misinformation to support their anti-immigration agenda. IL has given a voice to Americans everywhere who support reforming our broken system. By doing so, IL will continue to change the conversation in Washington.
As a bipartisan pro-immigration PAC, IL is interested in truly making a difference in the quest for immigration reform. So far this campaign season, we have financially supported fourteen candidates, from Dennis Shulman (D)-NJ to Jeff Flake (R)-AZ.
Immigration is a fundamental part of our social, economic and political life. Immigrants of all backgrounds have been integral to the continued growth and prosperity of America. Right now, our immigration system is broken. Many members of Congress seem content to use immigration as a political tool, rather than pursuing the reform the American people need.
As IL's message has spread, it has continued to grow. Unlike the anti-immigrant minority, most people are fed up with do- nothing Congresses. They want change. They want progress. They understand the importance of immigration reform.
Together, we will change the tone of the immigration debate in Washington. Rather than supporting the politics of fear, division, and terror, IL will fight for those candidates who understand that people from all parts of the world make essential contributions to our country. It is time to prove to members of Congress that supporting immigration reform will help them win elections. Immigration reform not only makes policy sense, it also makes political sense.
IL's members come from across the country, united by a dedication to bringing about the meaningful immigration reform America so desperately needs. Help build IL by becoming a member today! To contribute, go to
The law firm, which has 2,500 PERM applications in the pipeline, was informed by the DOL in June that each of their PERM applications will be "audited". See Topic #2 in our August 2008 newsletter entitled "Department of Labor Initiates Immigration Crackdown".
The Complaint states that unaudited PERM applications are decided in approximately 21 days while audited applications take 12-16 months to decide. It alleges that if the existing regulations are allowed to stand, employers could lose the services of valuable employees. Finally, the complaint states that "it is not inconceivable that the (Fragomen) firm could be put out of business before it even has a chance to demonstrate that it committed no improper conduct..."
At issue are four words which DOL added to the PERM regulations at 20 CFR 656.10(b)(2)(i) : "It is contrary to the best interests of U.S. workers to have the alien and/or agents or attorneys for either the employer or the alien to participate in interviewing or considering U.S. workers for the job offered the alien." (Emphasis added.)
In the case of pre-PERM applications for labor certification, employers routinely consulted with their immigration attorneys whenever a seemingly qualified U.S. worker applied for a job in response to an advertisement.
I remember a case where a client was seeking the services of a Spanish-speaking record producer. To the surprise of the employer, the record producer of one of the most popular groups in the United States responded to the advertisement even though the prevailing wage of the advertised job was probably only a small fraction of his annual income. One of our attorneys advised the employer to speak with the record producer and ask him if he was prepared to work 40 hours per week with the employer as the advertisement called for, or whether he was looking for freelance employment as she suspected. The employer followed our advice, and sure enough, the record producer revealed that he was not interested in full-time employment. The employer informed the government of this fact, and the application for alien labor certification was approved.
Now, because of the four little words inserted in the PERM regulations, attorneys are no longer permitted to advise employers once they have received resumes in response to a job advertisement.
According to Fragomen's complaint filed in Federal Court, sometime in the recent past, the DOL became aware of three papers issued by the law firm to their clients. "Each contains a statement advising clients to call their Fragomen lawyer if the recruitment process produces a job applicant who appears to the client to be 'qualified'".
The complaint states that, at a meeting between the DOL and Fragomen attorneys on May 8, 2008, "the Department expressed concern that these papers suggested Fragomen had engaged in a 'pattern or practice' of unlawful behavior by communicating with clients who believed they had found qualified U.S. job applicants."
In early June, the DOL announced that they would audit all of Fragomen's pending PERM applications.
According to Fragomen's complaint in Federal Court, the DOL threatened to prevent ("debar") the law firm from filing PERM applications in the future unless they complied with the government's demands that their attorneys reveal certain information to the DOL that the law firm considers to be subject to the attorney-client privilege.
Accordingly, on July 6, Fragomen and the DOL signed an agreement in which, the complaint alleges, Fragomen was forced to promise that they would follow the disputed DOL regulations unless and until they were overturned by a Federal Judge. In return, the DOL promised not to automatically audit future PERM applications filed by Fragomen.
In its complaint, Fragomen alleges that the DOL regulations are unlawful, and that they violate both the 1st and 5th amendments to the Constitution.
The complaint contains the following seven counts:
In addition to their 63-page Complaint, the Fragomen law firm filed an 82-page Motion for a Preliminary Injunction requesting that the Federal Court enjoin the DOL from enforcing their regulation which prohibits attorneys from communicating with their "employer clients" after resumes are received about whether the applicants meet the minimum requirements for the job. The Motion also seeks to prohibit the DOL from taking seven other actions.
On August 29, the DOL appeared to back down from its previous position when it issued a memorandum which acknowledges that immigration attorneys may provide legal advice after the employers receive resumes from their PERM advertisements. What attorneys are prohibited from doing is: (1) screening resumes before the employer has a chance to do so; and (2) interviewing job applicants.
Is this the end of the Fragomen audits? Not according to the DOL. We will continue to cover this important issue for our readers.
We link to the Complaint, the Motion for a Preliminary Injunction and various other documents and opinions relating to the case including the DOL's August 29th memorandum from our "PERM" page at
Scottsdale, Arizona
Life Skill Institute, Inc.
The R4 Conference 2008
Scottsdale Resort and Athletic Club
Topic: Assisting employers in obtaining the services of foreign-born workers who qualify for temporary visas and/or permanent residence. Insuring that employers comply with all applicable immigration laws."
For more information, please see
Los Angeles, California
Los Angeles Country Bar Assoc.
Immigration Law Training Course
Topic: "Introduction to Immigrant Visas"
For more information, please see
Santa Barbara, California
American Payroll Association
Topic: "Immigration Law for Employers"
San Antonio, Texas
University of Texas Law School
Immigration and National Law
Topics:
8:30am "Of Counsel - Breakfast with the Experts"
3:45pm "Using the Internet to Stay Current with
Immigration Laws, Procedures, and Agency Interpretations"
For more information, see
Puerto Vallarta, Mexico
American Immigration Lawyers
Association (AILA)
Texas Chapter Fall Conference
Topic: "Child Status Protection Act"
For more information, see
San Francisco, California
21st Annual AILA California
Chapters Conference
Topic: "Federal Court Litigation"
For more information, see
During the Middle Ages, alchemists were known for turning lead into gold. Sometimes, immigration lawyers are called upon to save immigrant families by practicing an updated form of alchemy.
Consider a recent case where our attorneys assumed this role:
Mrs. A is a registered nurse. The adjustment of status applications of her entire family had been denied by the USCIS. We describe how RNs can achieve permanent residence in the U.S. on our "Nurse" page at
Mrs. A's employer submitted an immigrant visa petition on her behalf in 2005, and based upon the approval of this I-140 petition, the family had submitted applications for adjustment of status based on Section 245(i) of Immigration and Nationality Act.
Under Section 245(i) of the Act, a person is allowed to adjust his status even if he is out of status provided he is the beneficiary of an immigrant petition or an application for labor certification which was properly filed on or before April 30, 2001. In order to be eligible to submit an application for adjustment of status under section 245(i), a person must satisfy the following requirements pursuant to USCIS regulations at 8 CFR 245.10:
| (i) | The alien was the beneficiary of a qualifying immigrant petition or application for labor certification filed on or before April 30, 2001. |
| (ii) | The qualifying immigrant visa petition or the qualifying application for labor certification was "properly filed" and "approvable when filed". |
| (iii) | The principal alien was physically present in the United States on December 21, 2000, if the alien's qualifying immigrant visa petition or application for labor certification was filed between January 15, 1998 and April 30, 2001. |
The husband's U.S. citizen brother had submitted an immigrant visa petition (form I-130) for him in 1988. The husband was unmarried at that time. The application for adjustment of status was filed based on the following incorrect assumption: If one family member qualifies for 245(i), the whole family qualifies to adjust status under this section of law.
In their denial, the USCIS stated that the applicant was ineligible to adjust under 245(i) based upon the approval of her spouse's 1988 petition since the couple was not yet married at that time. Since Mrs. A was the principal alien, she would only be able to benefit from section 245(i) as the dependent of her spouse. However, since Mr. and Mrs. A were both born in the Philippines, their 1988 family 4th preference priority date is not yet current.
The denial quoted the following paragraph from the USCIS' William Yates' memo dated March 9, 2005:
"If a spouse or child relationship is established after the filing of a grandfathering petition or application and is in existence at the time the principal alien adjusts status, the spouse or child is not a grandfathered alien and may not independently benefit from section 245(i). Rather, the spouse or child may only benefit from section 245(i) as a dependent of the principal alien. Accordingly, the qualifying relationship must continue to exist at the time the principal alien adjusts status in order for the spouse or child to obtain the derivative benefit."
The Yates' memo may be accessed from our "Section 245(i)" page at
At this point the family needed an excellent and experienced immigration attorney to advise them. In fact, they needed the help of an alchemist to turn their "lead" denial into a "gold" approval.
After detailed and persistent questioning of Mrs. A, our attorneys learned that over 25 years ago, Mrs. A's uncle had filed an immigrant visa petition (form I-130) under 4th Preference category on behalf of her mother. At that time, Mrs. A was a child. Therefore, she was a "derivative beneficiary" of this petition. Never in her wildest imagination did Mrs. A believe that a petition filed so long ago and on behalf of her mother could, in any way, be relevant to her case. So she had never revealed this all- important fact to her attorneys.
We informed her that this was the key to reversing the denials of the adjustment of status applications filed by her family.
We directed Mrs. A to obtain the paperwork relating to her uncle's petition. Within a short time, she was able to procure the receipt of the petition.
Immediately, we prepared and submitted a motion to reopen the denied cases. We submitted all the documents to prove that Mrs. A, the principal applicant, was independently eligible to adjust her status under section 245(i).
Since Mrs. A was the principal applicant under section 245(i), her husband and two children also became eligible to receive the benefits of section 245(i) as derivative beneficiaries.
CONCLUSION: It is not enough to know the law and the regulations. It is not even enough to know the contents of all of the government memoranda concerning the law. It is required that the attorneys ask all of the right questions, obtain all the necessary evidence, and to use their knowledge of the law, regulations and memos to achieve a positive result for their clients.
This story had a happy ending when the USCIS granted our Motion to Reopen and granted permanent resident status to each and every member of Mrs. A's family.
To read more of our Immigration Success Stories, see
Be aware of the following options:
If your question is neither short nor general, please schedule a 30-minute legal consultation with me at
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; 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 (July 21, 2008) may be found at
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
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.
Links to the transcripts of all of our chats are posted online on our "Chat" page at
Dear Mr. Shusterman,Congratulations on winning our quiz!1. Tanith Belbin (Canada) Silver, 2006 Olympics in Turin for Ice Dancing
2. Bernard Lagat (Kenya) Silver in 2004 Athens Olympics and Bronze at 2000 Sydney Olympics at 1500 m race; Gold medals in 2007 Osaka World Championships at 1500m and 500m race
3. Lenny Krayzelburg (Odessa/ now Ukraine) Gold medalist in 2004 Athens for 4x100m Medley, Gold in 2000 Sydney Olympics for 100m and 200m backstroke and 4x100m medley
4. Gao Jun (China) 1991 World Champion in Women's Doubles, 1992 Olympic silver medal in Women's doubles, 1996-1998 U.S. National Champion in Women's singles, doubles, and mixed-doubles
To the wonderful folks at Shusterman's Immigration Update:
After reading your last newsletter and viewing the Trivia Quiz, I decided to give it a shot since my family and I are very interested in the Olympics. I knew Bernard Lagat from Kenya, so I was able to immediately answer the question. However, finding the other athletes' names took a little more research. First, I googled a list of current naturalized athletes and performed an image search for virtually all of them, finally finding Gao Jun from China. I found Lenny Krayzelburg from a Wikipedia list of all Americans who medaled at the Sydney Olympics and confirmed this with an image search. Finally, I found Tanith Belbin's name from a 2006 U.S. Olympic Fact Sheet and again, performed an image search to confirm that she was the right person. All in all, it took me about 15 minutes to finish the quiz and learned some interesting things while doing the research. I have been a subscriber to Shusterman's Immigration Update for more than one year and really appreciate the amount of effort that your staff devotes to keep all its subscribers informed about the latest news.
I know that individuals who usually answer this newsletter give out their names. However, I request that you keep my name confidential for obvious reasons. I am a 23-year old Philippine Citizen currently living in California. Recently, I graduated with highest honors from a California University. I am looking into options for finding employment and changing status from an A visa to LPR via a bona fide marriage. I was hoping, if selected, to discuss my options with you.
I really hope that I am selected and am looking forward to speaking with you.
Best,
A
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
"It is doubtful that Congress would approve enough money to
pay for the huge law-enforcement effort it would take to find
and deport millions of illegal immigrants. Such an operation
would be disruptive to immigrant communities, probably
leading to discrimination against legal immigrants."
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September 2, 2008
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