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Free Subscription to SHUSTERMAN'S IMMIGRATION UPDATE
Back Issues of SHUSTERMAN'S IMMIGRATION UPDATE
Volume Thirteen, Number Four
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".
To unsubscribe, type in your e-mail address at http://shusterman.com/subscribe.html#unsubscribe and click on "Unsubscribe".
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.
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SETTING THE BAR FOR EB-5 IMMIGRATION SINCE 2002 Attracted by the California Consortium for Agricultural Export's (CCAE) thorough understanding of and appreciation for EB-5 requirements, over 80 immigrant investors from around the world have participated in a CCAE investment project. Approved by the USCIS as a Designated Regional Center in 2002, CCAE combines EB-5 expertise with unrivaled business acumen to provide immigration attorneys with the highest level of confidence that their client's immigration and investment goals can be met. With the addition of a manufacturing investment in 2007, CCAE further expanded its portfolio of USCIS approved EB-5 qualifying investments. The Consortium expects the current investment to be fully funded in early 2008. Contact CCAE directly for the most up-to-date information regarding availability. Visit www.ccax.com for more information or contact a California Consortium for Agricultural Export representative by e-mailing jmccann@ccax.com or calling (213) 892-6367.
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On February 7, ICE, pursuant to a criminal search warrant, sent agents to Micro Solutions Enterprises, a Los Angeles- based computer-related company, arrested eight persons on criminal charges and another 130 on civil immigration charges. See the ICE News Release at
As a former INS prosecutor, I was deluged with requests by the press, radio and television stations as to whether the way ICE questioned citizens and residents were lawful.
In an effort to learn more about the legality of ICE's actions, I turned to a leading decision on this issue decided by the U.S. Supreme Court, INS v. Delgado, 466 U.S. 210 (1984). Read the complete text of this decision from our "Supreme Court" page at
"The entire workforces of the factories were not seized for the duration of the surveys here, even though INS agents were placed near the exits of the factory sites. The record indicates that the agents' conduct consisted simply of questioning employees and arresting those they had probable cause to believe were unlawfully present in the factory. This conduct should not have given respondents, or any other citizens or aliens lawfully present in the factories, any reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer... Since there was no seizure of the workforces by virtue of the method of conducting the surveys, the issue of individual questioning could be presented only if one of the respondent employees had, in fact, been seized or detained, but their deposition testimony showed that none was. They may only litigate what happened to them, and their description of the encounters with the INS agents showed that the encounters were classic consensual encounters, rather than Fourth Amendment seizures."
According to the claims submitted by those U.S. citizens and lawful permanent residents questioned in the 2008 raid, ICE restricted their freedom by confining them in a room for over 40 minutes, lining them up against a wall and prohibiting them from working, leaving the business premises or making phone calls.
If these claims are accurate, this latest raid would appear to constitute a "Fourth Amendment seizure" rather than the "consensual encounter" that the Court upheld in Delgado.
The government has six months to rule on these claims. We will update you on this issue.
In a related matter, on March 27, Los Angeles Mayor Antonio Villaraigosa wrote a letter to DHS Secretary Michael Chertoff expressing concerns that certain ICE raids were damaging the economy of the LA metropolitan area. See
"Please be advised, as of April 4, 2008 our office has revised our guidelines for communication between the National Visa Center and the public. We are now required to verify case information each time we receive an inquiry.
According to U.S. law, the National Visa Center is only permitted to discuss details of a visa case with authorized representatives and when provided with all of the following information:
NVC case number or CIS receipt number
Petitioner's name and date of birth
Beneficiary's name and date of birth
Your full name
If you are the legal representative, please include a copy of your signed G-28, Notice of Entry of Appearance as Attorney or Representative, showing that you are the legal representative as well as the following information:
NVC case number or CIS receipt number
Petitioner's name and date of birth or Beneficiary's name and
date of birth
Attorney's law firm name
Attorney's law firm address
Your full name
If you are corresponding regarding an I-140 petition you must provide the following information:
NVC case number or CIS receipt number
Name of the petitioning company
Beneficiary's name and date of birth
Your full name
If you have not provided us with this information please resubmit your inquiry including the required information.
Thank you,
National Visa Center"
On April 8, the agency issued a statement that both the 65,000 H-1B cap and the 20,000 cap for H-1Bs with advanced degrees had both been reached. USCIS announced that they had received almost 163,000 H-1B petitions, 31,200 of which qualify under the 20,000 advanced degree cap.
We link to the USCIS statements from our "H-1B Page" at
Sponsors of persons not selected for either lottery will be entitled to a refund of their USCIS filing fees.
Anyone who is found to have duplicate H-1B petitions submitted on his behalf will be disqualified from both lotteries in accordance with USCIS regulations published on March 24, 2008. We link to these regulations and to the USCIS Fact Sheet and H-1B FAQ from
What follows is some pertinent advice for those not selected:
First, if you are a foreign-born graduate of a U.S. university, make sure that you read Topic #4 of this newsletter ("Optional Practical Training - An Analysis of DHS' New Regulations") very carefully. You may be able to extend your student work card for up to 17 months.
Also, consider your other visa alternatives. Read our article entitled "How to Avoid the H-1B Cap Trap" in our May 2007 newsletter at
The preamble to the regulations cites numerous studies showing that the U.S. is not producing enough scientists and engineers. Our country is rapidly losing its lead to other countries which either produce more scientists and engineers, or which do not cap the number of foreign-born scientists and engineers who may be employed in these countries. In order to help the U.S. retain its position as the worldwide leader in these important areas, the government is issuing this new regulation.
Because the regulations are fairly complex, it is useful to divide the student-beneficiaries into two distinct groups:
Students who graduate with a degree in science, technology, engineering or mathematics (STEM) may be able to qualify for a 17-month extension of their 12-month EAD under OPT.
Quoting from the April 4th DHS Press Release:
To be eligible for an OPT extension, an F-1 non-immigrant student must:
Where formerly, students could use their OPT work card at different jobs for a variety of employers, this may no longer be true. Now, the student needs to verify that his degree qualifies him for a 17-month extension; that his job is directly related to his major field of study and that all of his employers participate in the "E-Verify" program. Obviously, the DHS believes a student in his early 20's is fully capable of making each of these legal determinations. As the father of a son who graduated from college with a STEM degree, I tend to be a bit more skeptical.
For example, consider the seemingly simple determination of what constitutes a degree in a STEM subject. We quote from the regulations:
To be eligible for the 17-month OPT extension, a student must have received a degree in one of the following subjects:
If both the student and employer manage to clear this first hurdle, then there is the issue of whether the student's job directly relates to her major area of study. Suppose that the student obtains a B.S. in Computer Science with an emphasis in Web Design. She works for a financial office where she spends part of each day updating the employer's web site and screening his e-mails, but also schedules appointments and organizes files. Does her job "directly relate" to her degree? The regulation does not provide any guidance on this issue, or indicate how an employer or a student may check with the USCIS to make sure that they are in compliance with the regulation.
Finally, and most troublesome, the student may not apply for a 17-month extension unless the employer is a participant in the "E-Verify" program. This requirement, more than any other, severely limits the scope of the regulation since only a small fraction of one percent of all U.S. employers participate in this program.
Assuming the student presently works for an employer who does not participate in the "E-Verify" program, but wishes to transfer his employment to an employer who does in order to obtain an extension of his OPT status, where does the student obtain a list of the employers who participate in the "E- Verify" program? The regulation is silent on this issue.
It is obvious that the government is attempting to use this regulation as a "carrot" to persuade employers wishing to obtain extensions of OPT for student workers to join the "E- Verify" program. However, if the primary purpose of the regulation is to prevent the U.S. from falling behind other countries in science and technology, then limiting the benefits of the program solely to employers which participate in "E-Verify" is not the most effective way to further this objective.
The deficiencies of the "E-Verify" program have been well- documented. If the DHS wishes to entice more employers to participate in the program, it should first address these deficiencies.
The other part of this regulation would allow students with OPT employment authorization whose employers have submitted an H-1B petition and an application for a change of status on their behalf to continue working for the employer until the student gains permission to work in H-1B status.
This eliminates the so-called "cap gap" which prevents students from working from the time their OPT card expires until their H-1B becomes effective.
For example, in a typical scenario, a student graduates from a U.S. university with a B.S. in Computer Science in June 2007. He obtains an OPT work card which is valid from June 2007 to June 2008. His employer is permitted to submit an H- 1B petition and change of status on his behalf six months before fiscal year 2009 starts, on April 1, 2008. While the student waits to see if his petition and change of status is approved and if he is selected in the "H-1B lottery", his OPT work permission expires in June 2008. Suppose that his H-1B petition is approved and selected in the lottery. This gives him permission to work, but only at the beginning of FY2009 which starts on October 1, 2008. This means that he is unemployable between June and October, and must leave the U.S., obtain an H-1B visa abroad and return to the U.S. on October 1st. This is what is commonly referred to as the "cap-gap".
It makes no sense for the employer to have to terminate the student's employment in June, only to rehire him in October.
In the new regulation, the DHS realizes the absurdity of this situation and takes steps to eliminate the "cap-gap". And wisely, this remedial portion of the regulation is not restricted to students majoring in STEM subjects or to those who are working for employers who are enrolled in the "E- Verify" program.
Instead, OPT students whose H-1B petitions are approved and selected in the H-1B "lottery" may simply apply for an extension of their work authorization until October 1.
On April 18, the USCIS relaxed the rules once again to allow employers who had submitted H-1B petitions for students to amend the petition to request a change of status to H-1B in the U.S.
We commend the USCIS for eliminating the "cap-gap" for all OPT students and their employers, and urge the agency to apply the same standards in granting 17-month OPT extensions.
We link to the regulations, to the government's 30-page guide for Designated School Officials, to DHS Press Release announcing the regulations, to a four-page USCIS FAQ and to all other documents mentioned in this topic from our "Student" page at
Of course, there is only so much that the agencies can do within the existing law. The real problem is that the H-1B cap of 65,000 is arbitrary and is imposed by law. Congressional action is needed to allow more professionals with degrees in science and technology to enter the U.S., "and" also much-needed school teachers and health-care workers. Listen to our podcasts on this subject from
Currently, over 300,000 persons with pending applications for immigration benefits are forced to wait months or even years for approvals solely because their FBI name checks have yet to be processed.
It is our experience that the only way to force the FBI to complete a name check which has been pending for years is to sue the Bureau in Federal Court. See our "Overcoming the FBI Name Check Backlog" at
According to the timetable, by May 2008, the FBI will process all name checks which have been pending for more than three years; by July 2008 (more than two years); by November 2008 (more than one year); by February 2009 (more than 180 days); and by June 2009, 98% of all FBI name checks will be processed in 30 days and the remaining 2% will be processed in 90 days.
We are delighted that the many successful lawsuits brought against the USCIS and the FBI by our law firm and by many other law firms have finally prodded the agencies into focusing on a problem which never should have occurred in the first place.
However, we will not be withdrawing any of our lawsuits which are currently pending in Federal Court.
We will let you know, and we trust that you will let us know, whether the two agencies adhere to their published timetables. We link to the "Joint Plan" issued by the two agencies from the "FBI Name Check" section on our "USCIS" page at
Step 1: PERM Labor Certification:
Employers must first conduct a test of the US job market to
demonstrate that the employer could not identify any
minimally qualified US workers willing to accept an open
position that is being offered at a wage equal to or more
than the prevailing wage for similarly employed workers and
that the employment of the alien worker will have no adverse
effects on the wages and working conditions of similarly-
employed U.S. workers. If no qualified US workers willing to
accept the open position are identified as a result of the
test of the US job market, the PERM application can be
prepared for filing, usually online, with the US Department
of Labor (DOL).
Step 2: I-140 Immigrant Petition*
After the PERM application has been approved by the DOL, the
employer may file an I-140 Petition on behalf of the
beneficiary with the USCIS. The employer should be prepared
to provide evidence of the ability to pay the offered wage by
presenting a Federal Tax Return, annual report or audited
financial statement. The alien worker for whom the I-140 is
being filed must also provide evidence (academic
credentials/employment verification letters, etc.) that he or
she met all the minimum requirements, as stated on the PERM
application.
Step 3: I-485 Application to Adjust Status:
The last step in the process is the filing by the employee of
his or her I-485 application to adjust status along with
qualifying dependent family members (spouse and unmarried
minor children) from non-immigrant status to legal permanent
resident (LPR) status. The alien worker and family members
may apply for work authorization and advance parole travel
documents if they wish along with their I-485 applications.
Please note that if there are immigrant visa numbers available (based on the alien worker's employment-based classification and country of chargeability) an alien worker's application to adjust status may be filed concurrently with the employer's immigrant petition.
*Alternatively, one may request to consular process his or her visa petition rather than filing an I-485 application to adjust status.
This is a general summary of permanent resident processing through the PERM labor certification process. For specific guidance, please schedule a legal consultation at
It all started with a phone call.
The caller, Mr. D, was a U.S. citizen. He married a woman from another country, and rather than hire an attorney, they decided to apply for a green card on their own. After all, getting a green card through marriage isn't exactly rocket science!
Since his wife was in Europe and he was in the U.S., they decided that obtaining a temporary spousal "K-3" visa would be faster than going straight for a green card. See
At last, the couple's patience and perseverance was about to pay off. Or so it seemed.
It turned out that there was a fly in the ointment.
The wife had previously studied in the U.S. After she finished her schooling in 2002, she did what more than a few students do. She remained in the U.S., hung out with her friends and got a job. The problem was that she had no permission from the Immigration Service to do any of these things. At any rate, in 2004, she returned back to her home country.
A few years later, when she married Mr. D, she admitted all of the above on her visa application. After all, this was years ago, and she never got in trouble with the Immigration Service. No harm, no foul, right?
Not so, according to the officials who interviewed her regarding her visa application. They determined that her previous stay in the U.S. on a student visa was unlawful. Based on this, they believed she was "unlawfully present" in the U.S. from 2002 until 2004. Therefore, they informed her she was barred from reentering the U.S. for 10 years!
Needless to say, this came as a rude shock to both Mr. D and his wife.
However, the officials informed her that she was eligible to apply for a waiver of the 10-year bar, but that she would have to prove that her husband would suffer "extreme hardship" unless a waiver was granted to her. She submitted an application for a waiver. Of course, the couple reasoned, if they could not live together in the U.S. for ten years, they would suffer extreme hardship. Duh! See our "Unlawful Presence" page at
The decision that the wife received in the mail stunned her. The USCIS determined that "the applicant's situation, based on the record, is typical to (sic) individuals separated as a result of deportation or exclusion and does not rise to the level of extreme hardship."
Time to call in the experts!
Mr. D scheduled a consultation with me and hired our law firm after receiving the denial. "File an appeal!" he implored us.
However, we could see that an appeal would not only be useless, but that the government's Administrative Appeals Office (AAO) processing times indicate that an (I-601) waiver would take two years to decide. See
In fact, there was never a finding that she had violated her status until officials at the U.S. Embassy in Vienna, Austria examined her immigration history. We argued that the 10-year bar on her returning to the U.S. did not apply in this case since she had not entered the U.S. unlawfully nor had she overstayed her visa. She had been a "status violator", and status violators do not accrue any "unlawful presence" invoking the three or ten-year bars unless an Immigration Official or Judge determines that she violated her status, and she remains in the U.S. for either 180 days or a year after this determination.
Our office cited a relevant provision in the Foreign Affairs Manual, the Bible of the State Department, which corroborated our argument. The Foreign Affairs Manual states that a consular officer's after-the-fact determination that a person violated his or her status in the U.S. is not, in itself, sufficient for the person to accrue unlawful presence. We link to the Foreign Affairs Manual from
Three months later, the U.S. Embassy in Vienna sent us an e- mail message granting our motion and stating that they had reversed their position. They requested that the wife return to the Embassy to obtain her K-3 visa to join her husband in the U.S.
Mr. and Mrs. D, at long last, are now living happily together in the U.S., and we are preparing the wife's application for a green card. It looks like a "slam dunk" to us.
As the Bard famously stated: "All's well that ends well."
To read more of our Immigration Success Stories, see
This month's Immigration Trivia Quiz, entitled "Foreign NBA Superstars" was, appropriately enough, written by a college basketball star who is the daughter of an immigrant.
Test your skills in solving this month's Immigration Trivia Quiz at
However, U.S. immigration laws only permit spouses and children (unmarried and under 21 years of age) to "follow-to-join" the principal applicant in the U.S. Here, the problem was that our client's sons were all in their mid-20s. Even the Child Status Protection Act (CSPA) did not save her sons from "aging-out". The waiting for a parent who is a lawful permanent resident of the U.S. to obtain green cards for his/her unmarried, adult sons and daughters who were born in the Philippines is 11 years. Worse yet, if any of the sons marry during the 11-year waiting period, the petitions automatically terminate.
What's a mother to do?
More to the point, since this particular mother has hired me as her immigration attorney, how do I go about solving this problem for her?
Rule #1 - Ask my client additional questions to see if I can elicit some useful information to benefit her family. The most relevant question turned out to be: "Did a relative ever submit a petition on behalf of your husband?" And fortunately, in this instance, the answer was "yes". Her husband's U.S. citizen brother had petitioned for him in 1983. However, "everyone" she talked to said that it would be easier and faster for her husband to immigrate through her now that she was a green card holder.
"Not true", I countered. "If your husband immigrates through you", I told her, "your sons will not set foot in the U.S. until 2019, and they can forget about getting married until then!"
"However, if your husband immigrates through his brother, he can immediately immigrate to the U.S. and your sons will all be considered 'derivative beneficiaries' of their uncle's petition since they were all minors in 1983, the year that the petition was filed."
"In my opinion, as soon as your husband gets his green card, he can immediately petition for your sons under the family-based 2B category. Although the wait is 11 years, under my reading of the last sentence of section 3 of the Child Status Protection Act, your sons are entitled to the 'original priority date' of their uncle's petition which is 1983, meaning that they will immediately be able to immigrate to the U.S. under the 2B category."
For more information regarding this issue, see our article "How CSPA Works with Respect to 'Age-Outs' at
We are confident that we will be successful in this endeavor and that the nurse, and thousands of other immigrants in the same position will then be able to obtain green cards for their unmarried adult sons and daughters.
We promise to keep you updated regarding our lawsuit in future newsletters.
Do you have immigration questions of general interest to our readers? Send them to
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 (April 23, 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
See
Dear Mr. Shusterman,The answers are:
A. Bijan Pakzad- Iran ANSWER IS # 4
Immigrated to the US in 1973, fashion designer who has dressed some of the most important men in the world. Also known for his exquisite fragrances
B. Zang Toi- Malaysia ANSWER IS # 3
Won the Mouton-Cadet Young Designers Award in 1990.
C. Liz Claiborne- Belgium ANSWER IS # 5
Started her own design company in 1976 to provide clothes for working women.
D. Oscar de la Renta- Dominican Republic ANSWER IS # 1
Although he was offered the post of Dominican ambassador to the United States, de la Renta refused to part with his newly acquired U.S. citizenship, and declined the nomination.
E. Josie Natori- Philippines ANSWER IS # 2
Successful businesswoman in investment banking and fashion
I am a 19 year-old college student from Los Angeles, CA.
I myself am not an immigrant, but my girlfriend of three and a half years is. She is from Mexico, and has been here since she was five years old. She is currently in college and would benefit from the DREAM Act if passed. Since that seems to be going nowhere, we are looking into the U Visa option, since that applies to her.
I have been subscribed to your newsletter since September 2007.
Your service is a breath of fresh air in a climate that all too often seems uninhabitable to people like my girlfriend.
We could really use your help. Thank you!
NL
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
"All the problems we face in the United States today can be traced to an unenlightened immigration policy on the part of the American Indian."
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May 1, 2008