SHUSTERMAN'S IMMIGRATION UPDATE
(September 1998)

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Learn how to benefit from United States immigration laws and procedures from a former INS Attorney (1976-82) with over 30 years of experience. SHUSTERMAN'S IMMIGRATION UPDATE is must reading for potential immigrants, employers, human resources managers, immigration attorneys, reporters and policy makers. Join over 56,000 persons in more than 150 countries in subscribing to our FREE monthly e-mail newsletter. E-Mail Address: Your Name:

Volume Three, Number Nine

Published by the Law Offices of Carl Shusterman, 600 Wilshire Boulevard, Suite 1550, Los Angeles, California, 90017. Phone: (213)623-4592, Fax: (213) 623-3720, E-Mail: carl@shusterman.com, WWW Home Page: http://www.shusterman.com

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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.

NEWS FLASHES:

• Reminder: INS fee increases are effective on October 13, 1998. To see complete list, click on
  http://www.shusterman.com/fees.html

• Temporary Protected Status has been extended for certain nationals of Bosnia-Hercegovina until August 10, 1999 and certain nationals of Montserrat until August 27, 1999.

CONTENTS:

1. October 1998 State Department Visa Bulletin

2. Latest Processing Times for INS and Labor Department

3. H-1B Update: September 15th is National H-1B Call-In Day!

4. National Interest Waivers: Recent INS Decision Renders Outlook Gloomy

5. Investors: Four New Decisions from the Board of Immigration Appeals

6. Immigration Trivia Quiz: Home Run King from the Dominican Republic

7. Physicians: USIA Letter Helps Some IMG's Remain in Legal Status Despite Absence of H-1Bs

8. Court of Appeal's Decision Assures Immigrants of their Day in Court

9. Human Resource Directors: The Employer Sanctions Database

10. Answer to Immigration Trivia Quiz

1. October 1998 State Department Visa Bulletin

For the worldwide Family categories, it was a slow moving month considering October is the beginning of the new fiscal year. The numbers moved forward, if they moved at all, between one and five weeks. The one bright spot was worldwide and China first preference (unmarried adult sons and daughters of U.S. citizens) which gained eight weeks. Of course, this category had regressed seven weeks in September.

Most of the Employment categories remain 'current' (no backlogs). The unskilled workers category advanced two weeks to February 15, 1992.

The mainland China Employment-based first, second, and third categories moved forward not at all, one week and one week respectively. Not exactly the Great Leap Forward! The only "silver-lining" was that while the State Department had predicted that the investor category (EB-5) for mainland-born Chinese could become "unavailable" starting in October 1998, it regressed 13 months instead.

The news was only slightly better for Indian nationals, for whom the second categories and third categories moved forward three weeks to May 22, 1997 and December 22, 1995, respectively. Section 203(c) of the Immigration and Nationality Act provides 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. DV visas are divided among six geographic regions. Not more than 3,500 visas (7% of the 50,000 visa limit) may be provided to immigrants from any one country. For October, immigrant numbers in the DV category are available to qualified DV-98 applicants chargeable to all regions/eligible countries as follows: AFRICA (5,780), ASIA (1,312), EUROPE (5,351, except Albania: 2,090); NORTH AMERICA (Bahamas: 10); OCEANIA (173): SOUTH AMERICA, CENTRAL AMERICA and the CARIBBEAN (1,235). The year of entitlement for all applicants registered for the DV-99 program ends as of September 30, 1999. Availability through the very end of FY 1999 cannot be taken for granted. The registration period for the DV-2000 program will run between noon on October 1, 1998 and noon on October 31, 1998.

For an explanation of what the categories, dates and symbols listed below mean, see

and

For the State Department's official version, complete with information about the movement of family, employment and lottery numbers, see

2. Latest Processing Times for INS and Labor Department

Each list contains the waiting times of each center enumerates each state served by the center and any foreign offices within the center's jurisdiction.

The service centers periodically issue lists of their processing times for various types of applications. Our web page contains 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

You can also click above to check the processing times of your local INS District Office, your Department of Labor Regional Office and your State Employment Service Agency. Caveat: These waiting times are compiled by volunteer attorneys and are usually posted weeks or months after the fact.

Long before the last list of DOL waiting times was compiled, the Labor Department has been experiencing a "meltdown". It takes two years or longer to obtain an approved labor certification in much of the U.S.

3. H-1B Update: September 15th is National H-1B Call-In Day!

When you call, please stress the following:

I. H-1B workers are critical to the continued growth and success of both individual companies as well as the business and nonprofit sectors. H.R.3736 is a good deal for America.

The arbitrarily set cap has had an adverse impact on companies and communities, and severely restricts America's ability to compete in a global economy by preventing companies from hiring the "best and the brightest." Cite specific examples of the continued adverse impact the cap will have if it is not raised.

This legislation must be passed NOW! The problem will only get worse. INS sources indicate that as many as 38,000 applications already may be approved or are pending for FY 1999. Thus, the cap for FY 99 could be reached as early as December 1998.

Support H.R.3736 and oppose the Watt substitute and a motion to recommit. Votes for the Watt substitute and/or a motion to recommit are votes against the H-1B program.

The September 15 National Call-In Day offers us the opportunity to join with advocates nationwide in support of H.R. 3736. This is our chance to persuade Representatives to support H.R. 3736. H.R.3736 increases the cap on H-1B professionals and, to generate bipartisan support, includes worker protections and new funding for college scholarships and training for American workers. It is the only H-1B bill Congress will debate this session, and thus demands support.

Opposition to this compromise bill has coalesced around the "Watt Substitute," named after Representative Mel Watt (D-NC). The Watt Substitute is more restrictive than the H.R.3736 compromise. Not only are the attestations in the substitute unworkable, but the Watt substitute would: increase the visa numbers for only two years; limit the period of stay of new H-1B professionals to four years; and take increased H-1B visas from the H-2B category. It is imperative that you contact your Representatives on National Call-In Day, Tuesday, September 15. The Congressional Switchboard number is 202-224-3121. Urge your Representatives to support H.R.3736, and oppose the Watt Substitute and any motion to recommit.

4. National Interest Waivers: Recent INS Decision Renders Outlook Gloomy

INS refused, and as a result, a period of creative chaos ensued. The INS approved thousands of extremely talented scientists, artists, researchers, etc. See

But, according to a front page article in the August 20, 1998 issue of the Wall Street Journal, other persons, some with more unusual occupations, were also approved: a golf course designer, a ballroom dancer, and an ethnic drum maker. Whether the ability of these people to remain in the U.S. is in the national interest is debatable, but there is little doubt that they make our nation more interesting.

On August 7, 1998, the INS made an attempt to create order out of this chaos when it established as a binding precedent, the case of Matter of New York State Department of Transportation. The case concerns an engineer who helps design bridges in New York to make them safer. The INS rejected his application. However, in doing so, it established three new rules, none of which can be found in the law, the regulations or in the legislative history of the 1990 law that created the national interest waiver.

The new rules are as follows:

A. It must be shown that the alien seeks employment in an "area of substantial intrinsic merit".

B. It must show that the proposed benefit is "national in scope".

C. The petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien.

It is the second and especially the third rule that have potential immigrants and their employers gnashing their teeth.

With regard to the third, the labor certification process is a two-to-three year American version of the Chinese water torture. Employers are forced to recruit for jobs which are, for the most part, already filled by foreign-born nationals, and should even a minimally-qualified U.S. worker apply, the application is denied. For a detailed explanation of the labor certification process, warts and all, see

With regard to rule number two: what's wrong with asking applicants for national interest waivers to demonstrate that the benefits of their working in the U.S. be "national in scope"?

Consider this example: Every year, several hundred Canadian primary care physicians head south to the U.S. to work in government-designated underserved areas. In an ironic twist, Canadian physicians can obtain licenses by reciprocity in over 40 states, yet they can not qualify for H-1B status because the Secretary of Health and Human Resources (HHS) -- the same department which publishes the list of underserved areas -- requires them to also take the U.S. licensing exams that most states exempt them from! Fortunately, since they are working in HHS-designated medically underserved areas, the INS routinely grants such physicians national interest waivers. This allows them to start treating U.S. patients in under one year avoiding the three year wait to obtain a labor certification.

Yet during the past few months, many INS examiners have denied NIWs to Canadian physicians working in underserved areas stating that NIWs should not be used to alleviate a local labor shortage. Matter of New York Department of Transportation provides these examiners with additional ammunition to use against foreign-born physicians, and U.S. patients who live in rural and inner-city neighborhoods, thereby defeating the National Interest.

To read the new decision and an article describing alternatives for NIW applicants, see

5. Investors: Four New Decisions from the Board of Immigration Appeals

Below are brief summaries of the new decisions:

A. Matter of Soffici - This petition was originally approved by INS's Texas Service Center before being denied by Associate Commissioner, Examinations. The petitioner established a management company which does business as a Howard Johnson's Motor Lodge in Florida. The funds "invested" in the company were actually a loan, and as such cannot qualify as an investment of capital as required for the approval of an investor petition. In addition, the Associate Commissioner found the petition inadequate in that an investment of $1 million, not $500,000, was required. The documentation that the hotel was located in a "rural" area was out-of-date. The funds were taken from a joint father-son account and, therefore, can not be attributed only to one person. The source of these funds was not properly documented. There was no documentation submitted to establish that the hotel was a "new commercial enterprise" since the Howard Johnson's had been in business for 24 years. Although the hotel employs about 20 workers, the petitioner failed to show that he created additional jobs for U.S. workers.

B. Matter of Izumii - This petition was denied both by the Texas Service Center and by the Associate Commissioner. It involves what appears to be a bitterly contested case between the attorneys representing both "American Export Partners, LLC" (AEP) and its general partner "American Export Limited Partnership" (AELP), and the INS. The case elicited both oral argument and voluminous written briefs. According to AELP's attorneys, both the Texas and the Vermont Service Center's had, over a period of time, approved virtually identical AELP investor petitions over a period of time.

Although the facts are complex, it appears both AEP and AELP are located in an INS-designated "regional center" in Charleston, South Carolina. AELP, established a subsidiary which extends commercial credit to small export companies located in the southeastern U.S. The credit company has extended or purchased four loans: (1) It purchased a $780,000 loan which had been extended by a bank to a company located in Woodstock, Georgia; (2) It purchased a $380,000 loan which had been extended by the same bank to a company located in Atlanta, Georgia; (3) It extended a $200,000 loan to another company located in Atlanta, Georgia; and (4) It loaned $1,000 to a company located in Martinez, Georgia. Apparently, 95 investors have had visa petitions granted under this program. The Associate Commissioner found that since none of the loans were made to companies located in either "targeted employment areas" or "regional centers", the minimum amount of capital needed to qualify as an investor was $1 million rather than $500,000. However, on this and virtually every other point, the attorneys for AEP/AELP and the Associate Commissioner disagree over the meaning and the precedential value of a series of letters from INS officials and unpublished decisions by INS's Administrative Appeals Unit (AAU). A careful and complete reading of Matter of Izumii is required to understand the details of these disagreements.

The petitioner was required to make a $500,000 investment in the form of a promissory note. The note provides that an initial deposit of $120,000 be made into an escrow account, to be released to the partnership upon approval of an immigrant visa, five annual payments of $18,000, and a final balloon payment of $290,000.

Ultimately, the Associate Commissioner denied the petition citing the following additional grounds: (1) Since a visa petition must establish eligibility at the time that it is filed, the petitioner may not make material changes to his petition in order to make it conform with legal requirements after the petition has been submitted to the INS; (2) The capital must be made available to the business or businesses which create the jobs; (3) The petitioner may not receive guaranteed payments from the business while he still owes money to the business; (4) The petitioner may not enter into a "redemption agreement" with the business before the end of the two-year period of conditional residence. Here, the Associate Commissioner questioned whether the final $290,000 payment was "at risk" since the petitioner was given the option to sell his interest in the investment and receive the $290,000 in return. The Associate Commissioner either quoted or paraphrased (it is not clear which) a portion of the oral argument of one of the petitioner's attorneys:

"Potential alien investors are not going to make this investment under any circumstances, unless they get a green card. If anybody even suggests that this is a wonderful investment and they're going to make it without getting lawful permanent residence, they're lying and they're crazy; they're brain-damaged, all right?"

Later in the opinion, the Associate Commissioner states, "This is conceptionally no different from a situation in which an alien marries a U.S. citizen and states, in writing, that he will divorce her in two years. The focus here is on the green card and not on the business...His (counsel's) primary concern is obtaining permanent resident status for as little money as possible."; and (5) The promissory note must be fully payable within two years since this is the period designated by law for removal of conditions to full permanent residence. The decision states that "if the instant petition were to be approved, the petitioner would have paid at most $123,600 of his own funds at the time he sought removal of the conditions of his permanent resident status. This ...hardly evidences a good faith commitment of funds."

Additional grounds for denial can be found in the decision itself.

C. Matter of Hsiung - This petition was denied by both the Nebraska Service Center and the Associate Commissioner. The petitioner is one of 14 "investors" (quotations supplied by the Associate Commissioner) in Imedix, Inc., a corporation established in 1997 for the purpose of structuring, purchasing, reorganizing and upgrading health care facilities in targeted areas of the U.S. No clinics have yet been acquired, but the petitioner estimates that 27 clinics will employ approximately 194 employees.

The petition was denied by the district director because the "petitioner had failed to make an active, at-risk investment in that the project was not even in the start-up phase". The Associate Commissioner found that the petitioner had not established what assets were securing the promissory note, and whether these assets, presumably located abroad, were fully amenable to seizure by a U.S. note holder. Even if it were assumed that the note constituted "capital" under the law, the petitioner failed to establish that the fair market value of these assets equaled $500,000.

D. Matter of Ho - This petition was approved by the California Service Center, but denied by the Associate Commissioner. In 1997, King's Wheel Corp. was established in California. It is located in the City of Compton, a targeted employment area. The visa petition was denied because the sum total of activity in support of the petition was (1) the transfer of $515,000 to an "unidentified" corporate business account in the U.S.; (2) the business account was credited the one million authorized shares of King's Wheel, apparently in exchange for $500,000; and (3) Only two I-9s and a four-page business plan were provided to the INS.

There is no indication that King's Wheel had commenced doing business, the source of capital was unclear, no verification that two persons mentioned in the I-9's was provided; and the business plan consisted mainly of conclusionary assertions. The decision explains the requisites for an acceptable business plan, and states that "no astute investor would place half a million or a million dollars into a business that he had not thoroughly researched".

One wonders why it took the INS almost eight years to designate precedent decisions in this complex area of law. It is no secret that at least two companies have been openly marketing their services to investors for several years, promising to secure investor visas where the amount of the investment would not exceed $125,000. These companies assured investors that despite the low amount, the investment scheme had been approved by the INS. Our law firm declined to participate in such ventures on the theory that "if it seems too good to be true, it probably is!"

We are troubled by the Associate Commissioner's statement in Matter of Izumii that "OGC (Office of the INS General Counsel), memoranda...are merely opinions. OGC is not an adjudicative body and is in the position only of being an advisor; as such, adjudicators are not bound by OGC recommendations. See 8 C.F.R. 103.1(b)(1)."

In a more perfect world, the INS would issue regulations to implement new laws within a few months after their enactment. However, in reality, it often takes the INS years to issue such regulations. In the meantime, immigrants and their attorneys are forced to rely on opinions issued by INS officials, particularly those from the Office of the General Counsel, in advising their clients. For example, in the nearly two years since the enactment of IIRAIRA on September 30, 1996, INS has failed to even propose regulations regarding what constitutes "unlawful presence" for the purpose of implementing the three and ten year bars of inadmissibility. Thousands of persons rely on detailed opinions promulgated by the OGC. Matter of Izumii indicates that the faith being accorded to the highest legal advisor in the INS may be misplaced. This is an extremely troubling interpretation of the significance of OGC memoranda.

6. Immigration Trivia Quiz: Home Run King from the Dominican Republic

Even right-wing columnist Pat Buchanan, who wants the government to step in to tell Intel and Microsoft how many foreign-born (and usually U.S.-trained) computer programmers they may hire, would never dream of proposing that the Federal Government tell the Cubs who to hire.

By the way, what's the name of that Cub outfielder who is attracting a lot of attention this year? And who among us native Americans is more qualified for his job, Pat? Some American ballplayer could take over his position in the Cub's line-up, and make several million dollars each year, right?

See the answer in Topic #10

7. Physicians: USIA Letter Helps Some IMG's Remain in Legal Status Despite Absence of H-1Bs

There is a tremendous maldistribution of physicians in the U.S. Most U.S. graduates prefer to specialize and to work in upscale urban areas. This creates a shortage of physicians in rural and inner city areas. Primary care physicians are also in short supply.

Immigration laws permit physicians educated in foreign medical schools to remain in the U.S. rather than returning to their native countries if they work in medically underserved areas in the U.S. in H-1B status for a minimum of three years and are sponsored by an interested federal government agencies or a state department of health. This sponsorship must also be approved by the U.S. Immigration Agency and the Immigration Service.

When the H-1B cap was reached in early May, many foreign-trained physicians who had qualified for J waivers were unable to work because of a lack of H-1B visas. Fortunately, Les Jin, the General Counsel of the USIA, came up with an innovative way to restore some of these physicians to J-1 status while they awaited the reopening of the H-1B category on October 1.

The policy applies only to a limited group of physicians: those who have obtained J waivers and have registered to take the examination required for certification by a member board of the American Board of Medical Specialties (ABMS).

For a more complete explanation of the USIA's policy, see Mr. Jin's letter to the ECFMG at

8. Court of Appeal's Decision Assures Immigrants of their Day in Court

On August 12, 1997, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled unanimously that "elimination of all judicial review of executive detention violates the Constitution". In the case of Magana-Pizano v. INS, the Court ruled that where a person "is in custody in violation of the Constitution or laws or treaties of the United States", he is entitled to habeas corpus relief.

"The court has found that the U.S. Constitution does not permit the attorney general or the INS to be judge, jury and prosecutor in a deportation case," stated Lucas Guttentag of the American Civil Liberties Union Foundation.

This holding answers one of the simple questions that INS Naturalization Examiners routinely ask prospective citizens, "What is the highest law of the land?". The answer is, of course, the Constitution. Whenever the Congress and the President enact a law that violates the Constitution, it is the responsibility of the Courts, in the context of a case which brings the issue to their attention, to strike down the law as unconstitutional.

The Court ruled that neither IIRAIRA nor the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) affect the ancient writ of habeas corpus as implicitly guaranteed by the Constitution or as codified by statute at 28 U.S.C. 2241.

The Writ of Habeas Corpus originated in early 17th Century England, where it was called the "most celebrated writ of the English law" by William Blackstone in his Commentaries. The writ was used in England to challenge detention by the King. The U.S. Constitution provides that "the Privilege of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it." The Court in Magana-Pizano ruled that IIRAIRA violated the Constitution's Suspension Clause.

The Court cited cases dating back to the 1880's where the writ of habeas corpus was used to challenge the provisions of the Chinese Exclusion Act of 1882. One judge alone heard an estimated 7,000 Chinese habeas petitions between 1882 and 1890.

In order to standardize the process and minimize unnecessary petitions for writs of habeas corpus, in 1961, Congress passed amendments to the immigration law which provided that all appeals from deportation cases decided by the Board of Immigration Appeals would be decided by the U.S. Courts of Appeals. This insured a greater degree of uniformity of decisions and increased judicial efficiency. With the passage of IIRAIRA, the Congress took a giant step backwards. Those cases, like Magana-Pizano's, for which the law prohibits a direct appeal to a U.S. Court of Appeals, must first be challenged in a U.S. District Court by petitioning for a Writ of Habeas Corpus. Only after the District Court has rendered a decision may the case be appealed to the U.S. Court of Appeals and ultimately to the Supreme Court of the United States.

Magana-Pizano v. INS stands for the proposition that the Congress can not enact a law in which Justice Department is allowed to decide deportation cases which violate the Constitution or the laws without being subject to the review of the Federal Courts. The case upholds the supremacy of the Constitution, and is an important victory both for the doctrine of Separation of Powers and for individual liberty.

To read the text of Magana-Pizano v. INS, see

click on "Immigration Courts" and again on "Important Federal Court Decision: Magana-Pizano v. INS (9-1-98)".

9. Human Resource Directors: The Employer Sanctions Database (8-14-98)

In 1986, Congress finally prohibited the employment of illegal aliens. However, it failed to make the policy workable by providing for a quick and easy way for employers to verify the eligibility of new hires to work in the United States. This failure has given rise to a flourishing trade in fraudulent documents and widespread flouting of the law, as new hires present a bewildering variety of identification and work-authorization cards. Most employers caught employing illegal aliens simply claim that the documents the aliens used to prove their legal status looked real enough to them.

Even with these limitations, however, the Immigration and Naturalization Service (INS) has issued thousands of fines to companies which have intentionally broken the law. To facilitate identification of these rogue employers the Center for Immigration Studies has developed the Employer Sanctions Database http://www.cis.org/search.html which includes fines for the knowing hire or continuing employment of illegal aliens. Violations for improper record keeping are not included.

The information goes back only to 1989; before that time, records were kept separately in each INS district office, and there hadn't been much enforcement yet in any case. The database will be periodically updated with information obtained from the INS through the Freedom of Information Act. The database currently includes fines issued through September 1997.

In addition to the name and address of the businesses cited, the database reports the number of violations, the total amount assessed in the original Notice of Intent to Fine (NIF), and the total amount collected (which is often less than the original fine after negotiations between the employer and the INS).

The database's search engine allows considerable flexibility; to conduct a search go to http://www.cis.org/search.html and enter at least one of the following: business name, city, state, ZIP code, or date range of the fine. Business names may be partial; for instance, searching for "farm" will yield 80 listings, including Alantis Farms, Andrews Farm & Nursery, and Farmers Bazaar of Glen Cove.

Also, I found that INS fined one "Arianna Huffington" of Santa Barbara a paltry $9,985 on June 16, 1995, but that no money was ever collected by the INS. Could this information be correct?

10. Answers to Immigration Trivia Quiz

Carl Shusterman
September 10, 1998

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