Volume Twenty One, Number Six

SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 40,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 40 years of experience practicing immigration law.

Published by the Law Offices of Carl Shusterman, 600 Wilshire Blvd, Suite 1550, Los Angeles, California, 90017. Phone: (213) 623-4592 x0.

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Client Reviews

Shusterman’s Immigration Update August 2016

TABLE OF CONTENTS:

1. Expansion of I-601A Provisional Waiver Program
2. State Department Visa Bulletin for August 2016
3. Immigration Government Processing Times
4. Success Story: “You Get What You Pay For!”
5. Immigration Trivia Quiz: Immigrant Writers
6. EB-5 Investors: Questions to Ask an EB-5 Project
7. Ask Mr. Shusterman: Our New Phone-Friendly Website
8. Shusterman’s Upcoming Immigration Seminars
9. Jobs & Green Cards for RNs & MedTechs: Free Legal Help!
10. Winner of Our July 2016 Immigration Trivia Quiz!

NEWS FLASHES:

• Canadian RNs Looking for Jobs in the US – Health care providers in the US are having an increasingly difficult time filling vacant positions for registered nurses. One of the best options is to sponsor Canadian RNs who are looking for jobs in the US.

• Clinton: It’s ‘heartbreaking’ when IT workers must train their H-1B replacements – In an interview, Hillary Clinton discussed the issue of American workers training their immigrant replacements. Some companies have contracted with 3rd-party employers to employ foreign-born workers on H-1B visas to replace US workers. Clinton specifically referred to the Disney case where 250 IT workers were let go and replaced with foreign-born workers. These foreign-born individuals were trained by the IT workers whose jobs they replaced.

• Court Rules against Federal Government’s Efforts to Detain Children – The 9th Circuit Court of Appeals ruled against the detention of immigrant children. The Court ruled that the Flores Settlement Agreement governs the custody and release of all immigrant children. The DHS had maintained that the Agreement did not apply to children who arrived in the US together with their mothers.

• Discharged, Then Discarded: Deportation – A report by the ACLU found that many immigrant veterans have been deported as a result of minor crimes despite their honorable service in the US Armed Forces. The 1996 immigration law eliminated the discretion of immigration judges and treats many minor offenses as aggravated felonies which lead to deportation. Many of these veterans were eligible for US citizenship during and after their military service. The report faults the federal government for failing to provide adequate information and services to help veterans complete their applications for naturalization.

• Extension and Redesignation of Syria for Temporary Protected Status – The Department of Homeland Security has extended the Temporary Protective Status for certain Syrian nationals present in the US for an additional 18 months.

• Immigration Court Backlog Surpasses 500,000 Pending Cases – Less than 300 Immigration Judges across the US are burdened with over half a million deportation cases. A report predicts that the backlog will soon grow to over one million. Persons with approvable asylum cases must wait for years to be reunited their spouses and children. It takes many years to deport persons with criminal records. Hiring a few dozen additional Judges will not solve the problem. Only Comprehensive Immigration Reform will do so.

• Increased Fines for I-9 and Other Immigration Violations – Beginning on August 1, the fines for I-9 and many other types of immigration violations will increase dramatically. The civil penalties for I-9 violations will nearly double. Monetary penalties for employment discrimination and H-1B and H-2B violations will also increase substantially. The new penalties apply to violations which occurred after November 2, 2015.

• Temporary Protective Status Extended for El Salvador – On July 7, the USCIS announced an extension of temporary protective status (TPS) for certain El Salvadoreans for an additional 18 months. Applications must be submitted by September 6, 2016.

• USCIS Stakeholder Session with Leon Rodriguez – On August 11, the USCIS will hold a stakeholder session with USCIS Director Leon Rodriguez. The session will focus on the initiatives of the USCIS as well as address any concerns stakeholders may have. It will cover topics that are of interest to the African Immigrant Community. Topics such as temporary protected status and family-based immigration will be addressed.

1. Expansion of I-601A Provisional Waiver Program

Back in 1996, a law was passed which penalizes persons who incurred a certain period of “unlawful presence” in the US and seek to apply for a green card abroad. If the person has more than 180 days and less than one year of unlawful presence in the US, and goes abroad, he is barred from returning to the US for 3 years or more. If the period of unlawful presence is one year or more, the person is subject to a 10-year bar.

However, a person subject to either the 3 or 10-year bar can apply for a waiver of the bar (using form I-601) if he can demonstrate that his US citizen or green card holding spouse or parent would suffer “extreme hardship” if he were barred from returning to the US for 3 or 10 years. The problem was that the person could only apply for an I-601 waiver after he had been interviewed at a US Consulate abroad, and the waiver procedure often took 6-12 months. As a result, thousands of people chose to remain undocumented in the US rather than be separated from their family members for a prolonged period of time.

In 2013, a regulation was published which allowed spouses and sons and daughters of US citizens who had accumulated unlawful presence in the US to apply for an “I-601A provisional waiver” while still in the US. That way, they could remain with their family members in the US and go abroad for their green card interviews only after their waivers had been approved. As a result, thousands of persons obtained provisional waivers in the US and only had to remain abroad for a couple of weeks until their green card applications were approved.

The problem was that the 2013 regulation did not allow spouses and sons and daughters of green card holders to apply for provisional waivers. However, the new regulation published by the USCIS last week will soon allow them to do so.

We expect that this new regulation will enable tens of thousands of persons to come out of the shadows and apply for green cards.

Remember that I-601A provisional waivers apply only to persons who are inadmissible from the US because of unlawful presence. If a person is inadmissible for other reasons (i.e., fraud, criminal convictions, etc.), he can not apply for an I-601A provisional waiver.

2. State Department Visa Bulletin for August 2016

EMPLOYMENT CATEGORIES

The Worldwide Employment-Based (EB) 1st, 4th and 5th preference categories remain current (no backlogs) in August. However, EB-2 retrogresses to February 1, 2014 while EB-3 advances by 2 weeks.

The EB-2 category retrogresses for persons born in China and India by 6 1/2 years.

China EB-2, EB-3 and EB-5 remain frozen in August while India EB-2 and EB-3 advance by 2 weeks each. India EB-4 retrogresses 6 1/2 years.

Philippines EB-3 continues to advance, by 3 months in August.

The USCIS will only accept applications for adjustment of status from persons whose priority dates are current.

The following chart tells the story of the EB numbers in detail:

A. APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

	World	China	El Salvador, Guatemala, Honduras	India	Mexico	Philippines
1st	Current	1-01-10	Current	1-01-10	Current	Current
2nd	2-01-14	1-01-10	2-01-14	11-15-04	2-01-14	2-01-14
3rd	3-15-16	1-01-10	3-15-16	11-08-04	3-15-16	5-15-09
Unskilled	3-15-16	1-01-04	3-15-16	11-08-04	3-15-16	5-15-09
4th	Current	Current	1-01-10	1-01-10	1-01-10	Current
Religious	Current	Current	1-01-10	1-01-10	1-01-10	Current
5th	Current	2-15-14	Current	Current	Current	Current

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

	World	China	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	Current	6-01-13	7-01-09	Current	Current
3rd	Current	5-01-15	7-01-05	Current	1-01-13
Unskilled	Current	8-01-09	7-01-05	Current	1-01-13
4th	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th	Current	5-01-15	Current	Current	Current

FAMILY CATEGORIES

Worldwide Family-Based (FB) preference categories remain frozen or advance slightly in August, FB-2B by 4 weeks and FB-4 by 1 week.

None of the FB categories for Mexico advance in August.

For the Philippines, the dates for the FB categories move forward by up to 10 weeks.

The USCIS will only accept applications for adjustment of status from persons whose priority dates are current.

The chart below tells the story in detail:

A. APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

	World	China	India	Mexico	Philippines
1st	3-22-09	3-22-09	3-22-09	3-08-95	3-22-05
2A	11-15-14	11-15-14	11-15-14	9-01-14	11-15-14
2B	1-08-10	1-08-10	1-08-10	9-08-95	9-15-05
3rd	12-01-04	12-01-04	12-01-04	10-22-94	3-15-94
4th	9-15-03	1-01-03	1-01-01	4-15-97	2-01-93

B. DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

	World	China	India	Mexico	Philippines
1st	1-01-10	1-01-10	1-01-10	4-01-95	12-22-05
2A	11-22-15	11-22-15	11-22-15	11-22-15	11-22-15
2B	2-08-11	2-08-11	2-08-11	5-22-96	2-01-06
3rd	8-22-05	8-22-05	8-22-05	5-01-95	8-01-95
4th	6-15-04	6-15-04	5-01-04	6-01-98	7-15-93

3. Immigration Government Processing Times

We link to the most recent immigration waiting times for each of the four USCIS Service Centers, the National Benefits Center and the Administrative Appeals Office. We also link to the processing times of all of the 83 USCIS District Offices and Sub-offices. We link to the Labor Department’s page entitled “Processing dates for labor certification applications”. Finally, we link to the State Department’s “Visa Wait Times” page.

Read more…

4. Success Story: “You Get What You Pay For!”

Recently, I had a consultation with a man from the Philippines who had his green card taken away from him by a CBP agent as he attempted to cross the border from Canada to the US.

He had obtained a 2-year green card through marriage, and later USCIS approved his application for a 10-year green card. Later, he and his US citizen wife separated and eventually divorced.

After the separation, but prior to his divorce, he hired an attorney who advised him that he was eligible to naturalize under the 3-year rule which applies only to persons living with their US citizen spouses. The USCIS denied his application, correctly finding that since he was not living with his wife, he was ineligible to naturalize under the 3-year rule.

Whenever he traveled abroad and returned to the US, CBP questioned him about whether his marriage was bona fide. The first time, the agent believed that it was and admitted him to the US. The second time, the agent questioned him, had him sign a written statement and confiscated his green card. He was scheduled for a Deferred Inspection Interview in Northern California.

He scheduled a consultation with me, and flew down to Los Angeles. Once we were satisfied that his previous marriage was indeed bona fide, we prepared the required paperwork, and I met with him and his ex-wife at the CBP office in Northern California. I advised him that it was possible that the officer would place him in a removal proceeding before an Immigration Judge.

While he and I waited for his interview and went into the agent’s office, my wife, who is a Filipina immigrant herself, chatted with my client’s ex-wife in the waiting room. She told my wife that she met her husband in the Philippines. He was slim, good looking and she had a crush on him. Years later, they reconnected in the US and got married.

He worked as a traveling nurse, she as a caregiver. Sometimes, for weeks or even months, their jobs required them to live with or near their clients. Finally, these periods of separation caused their marriage to deteriorate. However, they continued to remain close friends.

Given these lengthy periods of separation, it was understandable to me why certain government officials questioned the legitimacy of their marriage. However, in Northern California, the CBP officer determined that the marriage was bona fide and returned the green card to our client. Of course, our client was greatly relieved. He had been worried that he might be deported to the Philippines.

After his interview, my client and his ex-wife took my wife and I to lunch. After thanking me profusely, he told me why he had chosen his first attorney and how he found out about me:

“When I needed an attorney for my citizenship case, I checked Google to find a great immigration attorney. Your name came up again and again. However, I didn’t have much money, so I choose an immigration attorney who offered a free consultation. It was the worst mistake of my life. But as soon as the government took away my green card, I knew exactly who I needed to hire. You get what you pay for!”

(More Success Stories…)

5. Immigration Trivia Quiz

Quiz Removed

6. EB-5 Investors: Questions to Ask an EB-5 Project

On July 28, the USCIS hosted the EB-5 Immigrant Investor Program: Stakeholder Engagement. Those of us who joined the meeting telephonically (the majority of attendees) could not hear most of what USCIS officers discussed due to poor acoustics. The officers’ prepared remarks will be posted on USCIS website in the near future but details from the actual “engagement” with stakeholders will largely remain a mystery.

A couple of points of note relate to the following:

Minors as I-526 Petitioners

Clients often ask us whether someone under 18 years of age can file an I-526 petition. Immigration attorneys have been unable to answer this question precisely as the regulations do not provide guidance on this topic. So we’ve turned to our colleagues who practice securities and contract laws, who largely feel that minors do not have the capacity to legally bind themselves into contracts that are required for filing I-526 petitions. USCIS weighed in on this topic during the July 28 call and stated the agency is unaware of any statutory bars to minors filing I-526 petitions but that USCIS perceives issues with such filings on account of a minor’s ability to enter into contracts required to present a valid EB-5 petition. More importantly, USCIS stated if such petitions are filed, it is the minor petitioner’s burden to establish with filing documents that the minor is in fact legally able to enter into and be bound by legal contracts that the minor has signed. USCIS did not elaborate as to what documents may establish such eligibility but at least the door is now open and we will once again turn to our contract and securities colleagues for guidance on preparing these documents.

Reporting Fraud in EB-5

IPO (USCIS’s Investor Program Office) Chief Nicolas Colucci discussed his office’s efforts in combating fraud in EB-5 cases. He urged the public to submit tips and any information pertaining to suspected EB-5-related fraud. The public can contact IPO through its website or call the Fraud Detection and National Security (FDNS) team directly at (202) 357-9326.

Chief Colucci’s remarks are welcome and I hope the EB-5 community becomes more vigilant about reporting the bad actors. Our EB-5 investor clients often ask how they can make sure to avoid potential fraud in EB-5. While there is no single answer to this question, our EB-5 attorney dedicates a significant amount of time to conducting immigration (and common sense) due diligence reviews of EB-5 projects into which our clients choose to invest. At the outset of considering a project, the EB-5 attorney and investor obtain and study the answers to the following questions:

Preliminary Questions to ask in Selecting a Regional Center-sponsored EB-5 Investment Project

1. 1. Is the Regional Center approved for the Project’s specific geographic area and industries or is an amendment being requested via Exemplar application or I-526 petition?

1. 2. Has an Exemplar been filed? If so, when?

1. 3. How many EB-5 projects has the Regional Center sponsored? Completed? What is the RC’s overall I-526 and I-829 approval rate? How many Projects closed out and how many investors received the return of their capital?

1. 4. How many I-526 petitions for this Project have been approved?

1. 5. How many investors will be allowed into this project? Is there a minimum number of investors required and have all those investors been obtained? How will the developer obtain requisite funding if an insufficient number of investors subscribe?

1. 6. What is the project’s capital stack? What is the Developer’s participation?

1. 7. TEA details.

1. 8. Job creation details. Construction jobs – direct or indirect/induced only? Job cushion? Tenant occupancy? Timeline? Are economic model inputs clearly identified? What is the job allocation formula at I-829 stage? Who will monitor project progress and job creation

1. 9. If the investors’ funds are loaned to the developer, is there a collateral for the loan?

1. 10. What is the exit strategy?

1. 11. What is the process for dealing with I-526 denials? How are the denied investor’s funds repaid?

1. 12. Does the business plan appear credible?

1. 13. Does the management team instill confidence? What is the managements’ experience with EB-5?

14. Have the project materials been prepared by an experienced team of professionals (immigration attorney, economist, business plan writer and securities counsel)?

The single most important decision in an investor’s participation in EB-5 is choosing a project in which to invest. While an EB-5 immigration attorney cannot and should not give financial and investment advice to EB-5 investors, EB-5 immigration attorneys are often in the best position to prevent an investor from selecting a “bad” project. Our EB-5 attorney has studied and worked with hundreds of EB-5 petitions and in that process developed a keen sense for identifying project issues that led to problems for investors. In working with our EB-5 clients, we transfer this knowledge to you and make sure each of our clients is an educated consumer.

7. Ask Mr. Shusterman: Our New Phone-Friendly Website

A few weeks ago, we launched our new website.

For years, over 50,000 people around the world have accessed our website each month from their computers and tablets, a lesser number from their phones.

For the last 18 months we have worked hard to launch a website which would have as much value to people accessing the site from their phones as from their computers. We believe that our new website does so.

Our biggest challenge was to allow you to access our 1,000 pages of content and important links on a much smaller screen. We also decided to use the opportunity to help you discover our 60+ “how to” immigration videos, our Facebook and Twitter pages and join the 60,000 people who subscribe to our free monthly immigration newsletter.

What follows is a crash course on how to find what you are looking for on our new website from your phone:

The top blue part of the screen on your phone contains our contact information, search and menu icons and allows you to schedule a consultation (in person, telephonic or Skype) with any of our attorneys or to follow us on social media.

Use the search and menu icons on the upper left and right corners of your screen to search for the item that you are looking for on our site or to access the following menu items:

1. Home
2. About Us
3. Site Map
4. Newsletter
5. Temporary Visas
6. Green Cards
7. Citizenship
8. Processing Times
9. Marriage Green Cards
10. Employers
11. Deportation Defense
12. Visa Bulletin

You will notice that items 6 through 13 have black triangles immediately to the right of the titles. Click on the triangle and a submenu will appear which allows you to refine your search.

Alternately, you can click on our Site Map to select any of the 70+ topics related to immigration laws and procedures.

The Breaking News bar allows you to see immigration news, the Visa Bulletin and the latest issue of our newsletter simply by clicking the “+” sign.

Next is the “Immigration Solutions” section which tells you about us, allows you to watch our introductory video and explains how to access the content on our website.

After that, there are videos about various immigration topics that you can watch on your phone. Can’t find what you’re looking for? Simply click on the “View More Videos” tab.

Below are the following features:

• 1. Our Immigration News Ticker
  2. Subscribe to Our Immigration Newsletter
  3. Latest Immigration News (This appears on every page while Breaking News only appears on our home page.)
  4. A footer with more information.

We also want to mention that we have created a new intake sheet which allows you to schedule a consultation with any of our attorneys. You can attach important documents to the intake sheet or even use your phone to take a photo of a document that you need to show us.

We realize that immigration laws and procedures are complex and that trying to educate the public about this subject on the small screen of a phone poses a challenge.

We will link to this article from our Facebook page. Please explore our new website on your cell phones and let us know how we can improve your user experience.

We are listening!

8. Shusterman’s Upcoming Immigration Seminars

• Child Status Protection Act
  Continuing Legal Education
  Portland, Oregon
  August 12, 2016
  Time: Noon

• Global Mobility in the Age of Terrorism
  Omni Hotel, Los Angeles, CA
  November 4, 2016
  Time TBD

9. Jobs & Green Cards for RNs & MedTechs
Free Legal Help!

Are you a Registered Nurse or a Medical Technologist who is looking for a job in the US?

What if you could find a job, a work visa and green cards for you and your family in the US? And what if the cost to you for all of this was zero?

Hard to believe? Let me explain:

Our law firm represents over 100 hospitals across the country. And the nurse shortage is coming back.

Our hospitals are in need of hundreds of RNs as well as Medical Technologists and other healthcare professionals. They are looking for both US and foreign-born RNs, and they will pay all of our attorneys’ fees, USCIS filing fees and more!

We have a video and a web page for those who are interested in applying for employment and sponsorship.

If you are a foreign nurse or a medical technologist and need a job in the US and the job requires a work visa and/or green card, please do the following:

Send an e-mail message to egarcia@shusterman.com

In your message, please provide the following information:

1. Have you passed the NCLEX exam?
2. Do you have a current RN license in the US? If so, from what state(s)?
3. Have you taken and passed the IELTS or TOEFL exam?
4. Do you have a valid VisaScreen certificate?
5. Do you have any immediate family members accompanying you to the United States (spouse and children)?
6. Have you ever been petitioned by any US sponsor and hold an old priority date? If so, what is your priority date?
7. If you are present in the US, what is your current immigration status?
8. What is your RN background (area of expertise)?
9. What is your country of birth?
10. What is your country of citizenship?
11. What is your phone number?

If you are a CLS, please amend the above questions accordingly.

We will forward your response to our hospitals, and if they are interested, they will contact you. Please do not contact our law firm until after you hear from one of our hospitals.

We look forward to helping you!

10. Winner of Our June 2016 Immigration Trivia Quiz!

Quiz Removed

Below is the message we received from the winner:

• 1. . Subrahmanyan Chandrasekhar was born in India. Subrahmanyan Chandrasekhar contributed to the contemporary understanding of stellar structure, white dwarves, stellar dynamics, radiative transfer, the quantum theory of the hydrogen anion, hydrodynamic and hydromagnetic stability, equilibrium and the stability of ellipsoidal figures of equilibrium, general relativity, mathematical theory of black holes and theory of colliding gravitational waves. Subrahmanyan Chandrasekhar was awarded the 1983 Nobel Prize for Physics.
  2. Albrecht Bethe was born in Strasbourg Germany. He was a German and American nuclear physicist who made important contributions to astrophysics, quantum electrodynamics and solid-state physics. Hans Albrecht Bethe won the 1967 Nobel Prize in Physics for his work on the theory of stellar nucleosynthesis.

“My name is Tudor Bitca. I am an immigrant from Moldova. Currently I live in Colorado and work for Superlative Concrete Seal building computer systems. I have been a subscriber to your newsletter for over 5 years and I use it for news and information.”

Congratulations, Mr. Bitca!

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California
Immigration and Naturalization Service (INS) Attorney (1976-82)
Member of AILA Board of Governors (1988-97)
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017
Phone: (213) 623-4592 x0, Fax: (213) 623-3720

“We didn’t raise the Statue of Liberty with her back to the world, we did it with her light shining as a beacon to the world. And whether we were Irish or Italians or Germans crossing the Atlantic, or Japanese or Chinese crossing the Pacific; whether we crossed the Rio Grande or flew here from all over the world — generations of immigrants have made this country into what it is. It’s what makes us special”

– President Obama

Shusterman’s Immigration Update August 2016 – Quick Links

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August 1, 2016