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Free Subscription to SHUSTERMAN'S IMMIGRATION UPDATE
Back Issues of SHUSTERMAN'S IMMIGRATION UPDATE
Volume Ten, Number Nine
SHUSTERMAN'S IMMIGRATION UPDATE is the most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 43,000 subscribers located in more than 120 countries.
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.
The Law Offices of Carl Shusterman are moving to larger quarters in late October. Our new address will be
Our phone number (213) 623-4592, e-mail addresses and all other contact information will remain the same.
Because the CIS was slow to grant applications for adjustment of status between 2001 and 2004, and because AC-21 (a law enacted in late 2000) provided for the recapture of over 200,000 lost EB visa numbers, all of the EB categories remained current (no backlogs) during those years.
Things started to change for the worse beginning on January 1, 2005 when the EB-3 category (professionals and skilled workers) suddenly backlogged for three years for persons born in India, China and the Philippines. By July 1, 2005 and continuing throughout the balance of the fiscal year (until September 30, 2005), it became impossible to obtain or to submit new applications for permanent residence in the EB-3 category for all persons (with the exception of registered nurses and physical therapists).
Also "unavailable" are EB-3 visa numbers for unskilled workers.
What is the outlook for persons wishing to immigrate through the EB-3, EB-2 (persons with advanced degrees and persons of exceptional ability) and EB-1 (priority workers) categories in the fiscal year which begins on October 1, 2005?
The State Department, in their September 2005 Visa Bulletin, predicts that there will be backlogs in the EB-3 category starting on October 1, 2005 for persons born in India, China, the Philippines and possibly Mexico. By December 2005, the worldwide EB-3 category will also backlog. This means that there will be a waiting list for green cards no matter where the applicant is born.
An I-485 cannot be submitted to the CIS until the applicant's priority date is current. Fortunately, AC-21 allows applicants to extend their H-1B status if their EB visa category is backlogged. However, this benefit does not apply to persons in other nonimmigrant categories.
The State Department also predicts that no later than December 2005, the EB-1 and EB-2 categories for persons born in India and China will develop backlogs.
What happens to persons with pending I-485s? Fortunately, AC-21 again comes to the rescue. Not only may such persons continue to extend their H-1B status until their I-485s are adjudicated, but they may safely change jobs once their I-140s are approved and their I-485s have been pending for over 180 days as long as their employment is in the same or a similar occupation.
The State Department warns that "the level of demand in the Employment categories is expected to be far in excess of the annual limits, and once established, cut-off date movements are likely to be slow."
Legislatively, Congress can soften the impact of the coming backlogs by passing legislation to recapture EB visa numbers lost during the 2001-2004 period, and to accommodate the needs of U.S. businesses. All of the visa numbers recaptured by AC-21 have been used.
The next year promises to be a challenging one for intending immigrants and their attorneys. Knowledgeable and experienced immigration attorneys can help expedite the process of obtaining permanent residence by considering the job skills of both spouses, by utilizing alternate chargeability and by recognizing that the EB categories are not mutually exclusive. A good example of the later is provided in our success story in Topic #4 below.
The Immigration Service (CIS) 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 (August 25, 2005) may be found at
To check the Official Processing Times of your Department of Labor Regional Office and your State Workforce Agency (SWA), see
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
In your August newsletter, you wrote about the immigration reform issue now being considered by Congress, and lessons learned (or not) from the past 20 years.
As you correctly noted, the solution to our immigration problems will not come from tripling, quadrupling, or quintupling our border patrol. This does not, and has not worked simply because there are jobs on our side of the border, and there are workers desperate to provide a better life for their kids on the other side.
You also correctly noted that, realistically, we must provide a path for undocumented workers already here to gain work permits and eventually the right to reside here permanently. It is not realistic to think that we will deport 11 million undocumented workers and their family members.
Another important lesson learned, however, is the need to create more opportunities for immigrant workers and family members to come here legally. Our visa quotas have not been updated for a decade and a half. We provide 5,000 permanent visas per year for lesser-skilled workers, even though the Department of Labor says a shortage of these workers is a growing problem. With almost no opportunity to come legally, it is really not hard to understand why so much migration happens today in the "black market."
Immigrants coming here to join family members face the prospect of waiting several years or more. This, too, creates incentive to come here or stay here outside of legal channels.
If we have legalization without providing more visas for the future flow of immigrants, we will be periodically discussing the need for legalization programs, as more people continue to come here than can come here legally.
The Secure America and Orderly Immigration Act (also known as the "Kennedy/McCain bill") provides the most comprehensive overhaul of our immigration laws that has been introduced so far with bi-partisan sponsorship. This legislation provides a path to permanent residence for the undocumented; increases the number of worker and family visas to be allotted annually, so that the immigration that is occurring will do so within legal channels; and provides for a temporary worker program so that those who do not want to do so may travel back and forth across the border legally.
Will this legislation, or something like it, pass anytime soon? That will depend, in part, on people like your readers weighing in on this important subject. Right now, the "seal the borders" crowd is making their voice heard loud and clear in Washington. They are being stirred up by anti-immigrant groups and radio and television talk show hosts who have come to realize that stirring people's passions on immigration is good for their ratings. In this climate, it is very difficult for reasonable and thoughtful members of Congress to address the issue in a realistic way that might actually work.
But the climate can be changed. Congress has got to hear from our side- including the readers of your newsletter. No matter what you think of any bill now being considered, Congress must hear from "the better angels of our nature." Americans (and future Americans) have to let Congress know that constituents want to see a realistic solution to our broken immigration system that will treat immigrants fairly. Advocates from around the country have agreed to a set of principles for immigration reform, which you can find on the Web site of the Coalition for Comprehensive Immigration Reform at:
The bottom line is that Congress must hear from a lot more pro-immigrant voices. Once they do, those few Senators and Representatives who have taken a lead on this issue will be joined by their colleagues, and we may see comprehensive reform passed by Congress sooner rather than later.
Maurice Belanger
Director of Public Information
National Immigration Forum
Mr. G., a Russian national, is a top software developer whose work in digital law-enforcement technology holds great potential for the future of homeland security. Recently, however, it was Mr. G. who began feeling insecure about his own immigration future - working in a volatile industry, he was quickly approaching his 6-year limit in H-1B status. For his own sake and that of his family, it had become urgent that Mr. G. set in motion the process toward permanent residency.
Mr. G. and his Tennessee-based employer contacted us regarding this pressing matter. The obvious move was to file a Reduction in Recruitment (RIR) Labor Certification application with the Department of Labor as soon as possible, in order to allow Mr. G. to file for additional one-year extensions of his H-1B status past the six-year limit (a provision available to H-1B nonimmigrant visa holders whose RIR Labor Certification applications have been pending for over 365 days).
Trouble arose, however, when backlogs began forming in the EB-3 immigrant visa category to which Mr. G. belonged at the time. Even upon approval of his RIR Labor Certification, he might still have to wait indefinitely for his visa category to become available, placing his career at continued risk due to the volatility of his industry. It was again urgent that Mr. G. (whose position requires considerable education) qualify under a different immigrant visa category so that he would be able to apply to adjust his status to permanent resident immediately upon approval of his Labor Certification.
At first, it appeared Mr. G. was in luck: his original RIR Labor Certification sponsor had been acquired by another company located in North Carolina, offering Mr. G. another opportunity to have his position certified with the Department of Labor and therefore allowing him a chance to qualify for the EB-2 immigrant visa category, which is current.
Complicating matters, however, the Labor Certification process itself was in the midst of changing. The Department of Labor had scrapped both its Regular and RIR forms of Labor Certification in favor of its new, mysterious PERM program, a change whose ramifications remained thoroughly unclear. Would the PERM process prove quicker than the RIR Labor Certification process, which had backlogs of up to three years in some areas?
There was only one way to find out: to give the new PERM system a test run. While allowing Mr. G.'s original RIR application to pend with the Department of Labor and thereby allow him to continue extending his H-1B nonimmigrant status in one-year increments, we filed a PERM application on his behalf sponsored by his new employer in North Carolina. By stressing in our PERM application the high-level of qualifications required to assume Mr. G.'s position, we managed to transfer Mr. G. into the EB-2 visa category and thus avoid backlogs in his impending immigrant visa application.
The result? In only two weeks, Mr. G.'s PERM application was approved. Mr. G. may now apply for his green card in the EB-2 category without any delay due to immigrant visa backlogs. So skilled at developing software to aid in our national security, Mr. G. can himself now rest assured, knowing that he can become a permanent resident here without the fear of falling out of status due to an unpredictable job market or having to wait forever for his priority date to become current.
Ironically, various government agencies including the CIS have, during the past few months, implemented policies which have thwarted Congress' intent to increase the number of foreign-born nurses who may obtain permanent residence in the U.S.
Also, the CIS has discovered that it granted some applications for adjustment of status in error in 2003 and 2004. The agency mistakenly granted permanent residence to some RNs without requesting VisaScreen Certificates from them. Given that this error was committed by the CIS, one would think that the government would give such nurses a reasonable period of time to obtain VisaScreen Certificates. Instead, the agency is issuing Notices of Intent to Rescind their permanent residence one year after catching their own mistake, and giving the affected RNs a mere 30 days to respond. Someone at the CIS, tell nurses how to obtain VisaScreen Certificates in 30 days, please!
Of course, RNs who receive such a notice could simply resubmit I-485s/I-765s/I- 131 under section 245(k) of the Immigration and Nationality Act, couldn't they? Section 245(k) was added to the law in 1997 to enable most persons seeking permanent residence based on employment-based petitions despite being out-of- status or having engaged in unlawful employment for less than 180 days since their most recent admission to the U.S. to adjust their status in the U.S. However, under CIS' new, and highly restrictive, interpretation of section 245(k), submitting an application for adjustment of status does not confer "status" on a person even though the applicant is permitted to apply for a work permit and, usually, a travel permit. See
Although Congress and the President may have opened the door for ten of thousands of needed registered nurses and physical therapists, the CIS and its sister agencies seem to be intent on making this process as difficult as possible by changing the rules in the middle of the game.
Unless these agencies do a quick about face, many RNs and PTs will be forced to return to their home countries. Some matters, like the CIS' new 245(k) policy may ultimately have to be resolved through litigation, especially since 245(k) is applicable to all EB-1, EB-2 and EB-3 adjustment applications.
What strategies can employers and employees utilize now that the H-1B cap has been reached?
A good starting point is to read an article that we wrote last year when the H-1B cap was reached on October 1, 2005 entitled "H-1B Cap Reached: Strategies for Survival" at
During the past year, Congress has created two significant new exemptions from the H-1B cap:
First, the H-1B Reform Act of 2004 provides for a second H-1B cap of 20,000 for persons who hold advanced degrees from U.S. institutions of higher learning. The 20,000 caps for both fiscal years 2005 and 2006 are nowhere near being reached. An important point to remember is that the minimum entry requirement for the job being offered need only be a Bachelors degree. For example, let's suppose that the candidate has a Bachelors degree in his own country which has been determined to be equivalent to a Bachelors degree from a U.S. university. The candidate also has achieved a Masters degree in the U.S. The job offer requires only a Bachelors degree. May the candidate obtain H-1B status despite the fact that the 65,000 numerical cap has been reached? The answer is yes since the person falls under the 20,000 cap despite the fact that the job does not require an advanced degree. To read a FAQ regarding the H-1B Reform Act of 2004, see
With the H-1B cap reached so early, and with EB numbers set to backlog even further in the next few months, it is important to briefly review the rules regarding who can obtain extensions of their H-1B status for more than six years.
The starting point is the "American Competitiveness in the 21st Century Act of 2000" more commonly known as "AC-21".
AC-21, Section 106(a) and a subsequent amendment to the law allows persons to extend their H-1B status in excess of six years where either their labor certification or their I-140 was pending for one year or more. This is true even if the person is no longer working for the employer who submitted the long-pending labor certification or I-140.
May persons obtain post-6th year H-1B extensions when they are prevented from obtaining permanent residence because of per-country limitations? Section 104(c) of AC-21 answers this question in the affirmative.
To read the complete text of AC-21, a section-by-section analysis and FAQs about the law, see our "H-1B Page" at
8:30 - 9:30am
Topic: Introduction to Immigrant Visas
Los Angeles County Bar Association, Immigrant Legal Assistance Project
For more information, see
10:00 - 11:30am (PT)
Topic: Recruiting the Foreign-Born Healthcare Candidate: New Legislation and Strategies
For program and registration information, please see
Topic: Immigration Research on the Internet
University of Texas School of Law
Co-Panelist: Eugene Flynn
For program and registration information, please see
3:30 - 4:30pm Orlando, FL
Topic - Immigration and Foreign Nurses Breakout Session 324
Nursing Management Congress 2005
For program and registration information, please see
9:00 - 10:00am
Topic - Return to the Virtual Border: Update from the Department of State and the Department of Homeland Security
Practising Law Institute's 38th Annual Immigration and Naturalization Institute
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
We link to selected audio programs regarding immigration produced by National Public Radio at
See my testimony before the Senate Subcommittee On Immigration regarding "Immigration Policy: Urban And Rural Health Care Needs" at
Dear Mr. DeDomenico,Congratulations, Jayshree!Answer: The first picture is that of Carl Shusterman; The last picture is that of his daughter-in-law who happens to be of ethnic Indian origin so the map displayed is that of India (second picture).
Are you an immigrant? Yes
If so, where are you from? From India
Where do you live? Currently in Torrance, LA County, CA
What is your occupation? Student Career Counselor at UCLA
Special interests? Currently all my time is occupied with my toddler (21 months); Otherwise I like to travel and read
Tell us how you solved the quiz. Made connections and deductions based on previous information
Sincerely,
Jayshree Radhakrishnan
Career Counselor
UCLA Career Center
Editor's Note: My wife and son will be joining my daughter-in-law and her family for our first-ever trip to India (and Thailand) in December and January.
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
September 5, 2005
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