Volume Fifteen, Number Four

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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 30 years of experience practicing immigration law.

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Client Reviews

Newsletter US Immigration Update April 2010

TABLE OF CONTENTS:

• 1. Immigration Legislation in 2010: Comprehensive or Piecemeal Reform?
• 2. H-1B Filing Season Starts April 1st – USCIS Issues Guidance to Employers
• 3. Schedule of Upcoming Immigration Law Seminars
• 4. Reforming the Immigration Courts and the Board of Immigration Appeals
• 5. Success Story: Helping a Physician Achieve Permanent Residence
• 6. Immigration Trivia Quiz: Dancing Without Borders – Immigrant Ballet Dancers
• 7. Ask Mr. Shusterman: A Good Attorney Asks a Lot of Questions
• 8. Immigration Government Processing Times
• 9. Lack of Checks and Balances in Removal Proceedings
• 10. Winner of our March 2010 Immigration Trivia Quiz

NEWS FLASHES:

• Blog – Our weekly blog is entitled “Nation of Immigrants”. Read our blog, which deals with current immigration issues, and you can sign-on as a follower of our blog.We welcome your comments!
• Immigration Videos – Over 90,000 persons have viewed one or more of our 29 videos regarding various immigration laws and procedures. One of our videos, “Green Cards through Marriage”, has been viewed over 30,000 times. We now feature this video in three languages: English, Spanish and Chinese. Last week, we added a video where Attorney Angeline Chen interviews me regarding the immigration of registered nurses and the prospects for Comprehensive Immigration Reform. Obtain free information about various aspects of U.S. immigration laws and procedures by viewing our “how-to” immigration videos.
• Liberian DED Extended – On March 19, the government extended Deferred Enforcement Departure for certain Liberian nationals for an additional year. See http://www.uscis.gov
• PERM Processing Times Lengthen – The Department of Labor reports that “The number of PERM applications resolved within six months of filing declined by 81 percentage points. In the past eight quarters, the number of PERM applications identified for audit grew rapidly, resulting in a commensurate decrease in the number of applications.”
• Visa Bulletin – We link to the April 2010 Visa Bulletin and to past Visa Bulletins. The visa numbers moved forward very slowly in the April Visa Bulletin.
• Visa Waiver Program – Greece has become the 36th country permitted to participate in the Visa Waiver Program. The program allows nationals of these countries to visit the U.S. for business or pleasure for a period not to exceed 90 days. The other countries which participate in the program are Andorra, Australia, Austria, Belgium, Brunei, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom.
• VisaScreen Update – Due to the long waits in the EB-3 visa preference category, many health care workers are faced with having to renew their VisaScreen Certificates which are valid for five years. Both the CGFNS and NBCOT (National Board for Certification of Occupational Therapists) have announced policies which exempt certain applicants for VisaScreen renewals from having to retake their English examinations. CGFNS announced that, beginning on March 1, 2010, VisaScreen renewal applicants who can demonstrate employment in the United States in the health care profession that is designated on their International Commission on Healthcare Professions VisaScreen certificate do not have to take another approved English exam for renewal of their VisaScreen certificate. The period of employment must be for at least 27-36 months; including nine months of the year before the date an applicant submits the renewal application. NBCOT waives the English re-exam unless the applicant has resided outside the U.S. for three consecutive years or more since receiving their last certificate.
• Web Site Redesign – After 15 years of being the webmaster of one of the world’s ugliest (but, I hope, informative) websites, I have decided to have our website redesigned. The new website will not only be more pleasing to the eye, but we hope that it will be even more helpful to our readers. If you have ideas about how our website can be improved, let us know by contacting us at

  ams@shusterman.com

1. Immigration Legislation in 2010: Comprehensive or Piecemeal Reform?

Regarding Comprehensive Immigration Reform, President Obama is talking the talk, but is he walking the walk?

On March 17, just four days before the immigration rally in Washington, D.C., Senators Schumer (D-NY) and Graham (R-SC) wrote an article in the Washington Post entitled “The Right Way to Mend Immigration”. Their plan incorporates the following four pillars:

• • 1. Requiring biometric Social Security cards to ensure that illegal workers cannot get jobs;
    2. Fulfilling and strengthening our commitments on border security and interior enforcement;
    3. Creating a process for admitting temporary workers; and
    4. Implementing a tough but fair path to legalization for those already here.

In their article, the two Senators stated: “The American people deserve more than empty rhetoric and impractical calls for mass deportation…We urge the public and our colleagues to join our bipartisan efforts in enacting these reforms.”

President Obama met with the two Senators and immediately endorsed their plan: “I pledge to do everything in my power to forge a bipartisan consensus this year on this important issue.”

Yet, almost immediately, Senator Graham poured cold water on the proposal by stating as follows: “The first casualty of the Democratic health care bill will be immigration reform. If the health care bill goes through this weekend, that will, in my view, pretty much kill any chance of immigration reform passing the Senate this year.”

Then, on March 21, the same day that the healthcare plan was approved by the House of Representatives, 150,000 pro-immigration activists marched in the streets of Washington, D.C. In a video shown to the crowd, President Obama stated: “You know as well as I do that this won’t be easy, and it won’t happen overnight….But if we work together across ethnic, state and party lines, we can build a future worthy of our history as a nation of immigrants and a nation of laws.”

However, one of the speakers challenged the President immediately after the video was shown with the following language: “Mr. President, we are going to hold you accountable.”

So where does all this rhetoric leave us?

As Rodney King famously remarked, “Why can’t we all get along?” As Democrats and Republicans in Congress have spent the past year beating each other up regarding the health care bill, do we want the same thing to happen with immigration this year? At the moment, President Obama cannot even find two Republican senators out of 41 to support Comprehensive Immigration Reform. And anyone who thinks that all Democrats are united in support of CIR must be drinking the Kool-Aid.

So does this mean that immigration reform is DOA in 2010? Not necessarily. There are individual pieces of immigration legislation which enjoy bipartisan support. Like what?

For instance, the DREAM Act: Students who have lived almost their entire lives in the U.S., excelled in school, and are pursuing their goals in universities should not be punished because their parents brought them to the Promised Land as toddlers. Senators on the left and the right are co-sponsoring the DREAM Act. Any piece of immigration legislation that is co-sponsored by Senators Richard Lugar (R-IN), Bernie Sanders (I-VT) and 31 of their colleagues should definitely be voted on in 2010.

The same thing with the AgJobs bill. On how many issues do agricultural employers and the United Farm Workers agree on? Not many, but this is one. Congressmen Jeff Flake (R-AZ) and Luis Gutierrez (D-Il) don’t see eye-to-eye on CIR, but together with over 50 of their colleagues, they have co-sponsored this important piece of legislation. If ICE ever decides to audit farms as they have factories, there will be a lot of hungry children in America. I think we all know who is picking the crops.

And how about erasing the enormous wait for Indian EB-3 workers with approved PERM applications? Is it the American Way to penalize a person solely because of their country of birth?

And who, in these terrible times of double-digit unemployment, could possibly oppose visas for investors who put Americans to work? Or for physicians and nurses who work in medically-underserved areas?

I say, let’s see what we agree on, and move forward.

In President Obama’s words, “Let’s not let the perfect be the enemy of the good.”

2. H-1B Filing Season Starts April 1st – USCIS Issues Guidance to Employers

On March 8, the USCIS issued detailed guidance on its website to employers who plan to submit H-1B petition for fiscal year 2011 starting on April 1st.

In past years, more H-1B petitions were received by the USCIS than could be approved under the 85,000 H-1B cap. The result was a random lottery.

However, last year, due to the economic recession, the cap was not reached until December 21. The USCIS made over 30 announcements the agency received additional H-1B petition. We charted the day-to-day developments on our H-1B Cap Update Page. We plan to the same thing this year.

This year, there are two additional problem areas for employers which did not exist last year.

The first stems from the Neufeld Memo of January 8 which seems to bar H-1B petitions from many staffing firms and from individuals who own the companies which employ them. We believe that this memo together with the recession will prevent the H-1B cap from being reached quickly this year.

The second potential problem area concerns the Labor Department’s new iCert Portal which employers are required to use to submit their Labor Condition Applications (LCA) for approval. Will the DOL be able to stay within the seven-day processing time for LCA approvals or will people be disqualified from obtaining H-1B status as a result of processing delays?

We will report on both of these potential problem areas from our H-1B Cap Update Page.

We believe that due to the economic downturn and the Neufeld memo, the H- 1B cap will not be reached in early April. This presents an opportunity for students working using Optional Practical Training and physicians completing their medical residencies and fellowships to obtain H-1B status. The new addresses for submitting cap-subject H-1B petitions to the USCIS’ Vermont Service Center are:

H-1B Cap Cases:

USCIS
VSC
Attn: H-1B Cap
4 Lemnah Drive
St. Albans, VT
05479-0001

H-1B U.S. Master’s Exemption Cases:

USCIS
VSC
ATTN: H-1B U.S. Masters Cap
4 Lemnah Drive
St. Albans, VT
05479-0001

3. Schedule of Upcoming Immigration Law Seminars

• • May 14-15 Memphis, Tennessee

Federal Bar Association, Annual Immigration Seminar
Topics: Immigration for Physicians
Law Firm Marketing

• • June 30 – July 3 Suburban Washington, D.C.

American Immigration Lawyers Association Annual Conference
Topic: Child Status Protection Act (Discussion Leader)

4. Reforming the Immigration Courts and the Board of Immigration Appeals

The Transactional Records Access Clearinghouse at the University of Syracuse reported, in March 2010, that pending cases at the nation’s Immigration Court reached an all-time high of over 228,000 matters in the first months of fiscal year 2010.

The case backlog was up 23% since September 30, 2009 and 82% since 2000. The average amount of time that a case was pending is well over one year.

Much of this backlog was due to the growing vacancies of Immigration Judges. The number of vacant IJ positions reached an all-time high of 48 in January 2010. The percentage of vacant IJ positions is now 17%. The pressure on a sitting Immigration Judge to complete cases is immense, and creates a potential conflict with the duty of the Judges to accord due process of law to each respondent in removal proceedings.

The Los Angeles Immigration Court has the longest backlog with pending cases averaging 713 days.

In an article entitled “Appointments of New IJs Can’t Keep Up With Attrition: Due Process Suffers”, it is revealed that little progress has been made in decreasing the number of vacancies of Immigration Judge positions. In fact, between April 2009 and March 2010, the number of sitting judges has actually declined slightly.

Although the Executive Office for Immigration Review has pledged to hire more Immigration Judges, Dana Keener, the head of the National Association of Immigration Judges has called the newly-budgeted positions “a drop in the bucket”.

Emily Creighton, a staff attorney with the American Immigration Council’s Legal Action Center commented that “Ultimately, backlogs compromise the statutory and constitutional guarantee of fair process for each person facing removal.”

The inability of the Bush and Obama Administrations to properly fund the Immigration Courts illustrates the hopelessness of relying on an “enforcement- only” policy to cope with undocumented workers.

In our opinion, taxpayers are unwilling to pay higher taxes to finance a growing enforcement-only system which needs to include at least 100 more Immigration Judges. Since a massive deportation of undocumented workers would be both extremely costly (hundreds of billions of dollars) and impractical, other solutions such as comprehensive immigration reform should be considered.

5. Success Story: Helping a Physician Achieve Permanent Residence

Like many physicians, Dr. A completed his medical residency in the U.S. as a J- 1 exchange visitor. Rather than return to his country for two years, he had the Veterans Administration (VA) sponsor him for a J waiver. Since physicians finish their residencies at the end of June, it was too late for Dr. A to obtain H-1B status. That year, the H-1B cap was reached in the first week of April.

Instead, following the advice of the INS, the VA advised him to self-petition for a National Interest Waiver (NIW) and submit an application for adjustment of status at the same time. Within a few weeks, Dr. A acquired an Employment Authorization Document (EAD) and went to work for the VA.

After working for the VA for five years, Dr. A expected to obtain permanent residence in the U.S. The USCIS wrote to him and questioned why he never obtained H-1B status. The agency did not believe that working five years on an EAD qualified a physician for permanent residence with the NIW law. On behalf of Dr. A, we responded to the USCIS, and demonstrated that it was the INS which had advised the VA to obtain EADs rather than H-1Bs for physicians in the year that Dr. A had completed his residency.

Rather than penalizing Dr. A and his employer for following the advice that they had received from the legacy INS, the agency relented and Dr. A got his green card.

6. Immigration Trivia Quiz

Quiz Removed

7. Ask Mr. Shusterman: A Good Attorney Asks a Lot of Questions

Let me tell you about David, how he became separated from his son Jack and how this could have been prevented.

David was a widower who was a distinguished Professor of Child Psychiatry in Canada. He was the father of two sons, both of whom lived in Canada with him. His younger son Jack had been accepted as a freshman at McGill University in Montreal.

David accepted an offer to be a Professor in Southern California. The university arranged for him to obtain H-1B status. David purchased a lovely home near the beach, and after a half-century of enduring the wind and rain in Montreal, he fell in love with the sand and surf. He bought himself a convertible and drove top-down on Pacific Coast Highway everyday.

The university was impressed with David and granted him tenure. They advised David to consult with an immigration attorney. The attorney and David talked for a few minutes, and decided that the quickest and easiest way for David to become a permanent resident was to be petitioned by his older son Alan who had been born in the U.S. over 21 years ago when David was a young visiting professor at a university in the Midwest.

The necessary applications were prepared and the plan worked like a charm. Within a few months, David adjusted his status and became a permanent resident of the U.S.

A few months later, my wife and I were visiting our son who was also a freshman at McGill. He introduced us to his roommate Jack, and we hit it off right away. Jack was a pre-med student and told us about his plans to practice medicine in Southern California somewhere close to his father. It was obvious that Jack and his father were very close.

Jack gave David my phone number, and a few weeks later, we got together. When David learned that I was an immigration attorney, the first thing that he asked was how he could get a green card for Jack. I prepared and submitted an immigrant visa petition for Jack, and explained to David that the waiting times in the family 2B category were about five years. David and Jack might be separated for several years. David was quite unhappy about this, but resolved that if this were necessary, they would both endure the separation.

I also explained that if his former attorney had immigrated David under one of the employment-based categories, Jack would have been able to become a permanent resident together with David. However, since David had immigrated under the immediate relative category, this was not possible. Didn’t David ever discuss this with his attorney? David was upset, but he couldn’t remember if such a discussion ever occurred. “Why didn’t the attorney advise me about this?” he asked. I had no answer.

Of course, I could have blamed David for not raising this issue with his attorney, but this would have been unfair. David was a trained professional, but his expertise was not in immigration law.

During the next couple of years, I received calls and e-mails from Jack every few months inquiring about his green card. My constant refrain was that he would have to wait a few more years in order to reunite with his father.

Then Jack met Angela at the university, and fell madly in love with her. I warned Jack that if he married Angela before his father became a U.S. citizen; his visa petition would be cancelled. Jack was upset, but felt that he could not wait. He had to choose between his fiancée and his father. He chose Angela, the couple married and Jack enrolled in a Canadian medical school. The couple made their home in Canada.

Both David and Jack feel that the U.S. immigration laws are unfair, that under a rational system, Jack and Angela and their children would be living down the street from Grandpa David.

They may be right, but to me, the problem was that David and his previous immigration attorney never discussed Jack. Had the attorney inquired about David’s plans for Jack, he could easily have immigrated David and Jack together under one of the employment-based categories.

Immigration attorneys have an obligation to ask the proper questions before beginning a new case. I recommend that immigration attorneys have potential clients complete a multi-page consultation form before interviewing them. The attorney and the client should discuss the case in some detail before formulating a strategy. Attorneys should remember that we are the immigration experts, and that our clients do not always raise the right questions. We are not merely paper pushers. We are professionals charged with fulfilling our clients’ wishes to the best of our ability.

– This article originally appeared as “Practice Pointers: A Good Attorney Asks a Lot of Questions – 15 Bender’s Immig. Bull. 201 (Feb. 1, 2010)”

Do you have immigration questions of general interest to our readers? Send them to

ams@shusterman.com

If your question is neither short nor general, please schedule a 30-minute legal consultation with me.

8. 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…

9. Lack of Checks and Balances in Removal Proceedings

The concept of separation of powers, and of “checks and balances” is as old as Ancient Greece and the Roman Republic. Our Founding Fathers modeled the U.S. Constitution on principles derived from Enlightenment philosophers like Montesquieu who believed that “the judiciary was generally seen as the most important of powers, independent and unchecked…” He specified that “the independence of the judiciary has to be real and not apparent merely.”

Unfortunately, in a stunning departure from such principles, under a law enacted in 1996, “discretionary” decisions of the USCIS and the BIA cannot be reviewed by the Federal Courts. And because most executive decisions in immigration matters are, by statute, discretionary, the power of immigration enforcement agencies goes largely unchecked.

What is wrong with this? As Lord Acton famously stated, “Power tends to corrupt, and absolute power corrupts absolutely.”

Take the case of cancellation of removal of nonpermanent residents. Applicants must demonstrate that their qualifying relatives would suffer “exceptional and extremely unusual hardship” if the applicant had to depart the U.S. In three precedent decisions, the Board of Immigration Appeals (BIA) has only succeeded in confusing most practitioners as to the criteria for satisfying this standard of hardship.

We represent a married couple, citizens of different countries, who have resided in the U.S. for almost 30 years. When they were originally placed in removal proceedings, their two U.S. citizen sons were 11 and 12 years old. One of their sons suffers from ulcerative colitis, and both sons rely totally on their parents for support and are covered under their father’s medical insurance.

For years, the government requested and received numerous postponements of the removal proceeding. Finally, the Immigration Judge transferred to another state, and a newly-appointed Judge with no prior immigration experience was assigned to hear the matter. By this time, the boys were 18 and 19 years of age and were both university students.

The Judge ruled that the hardship to the two sons was not “exceptional and extremely unusual” largely because he found that they were now old enough to take care of themselves. As for the son with ulcerative colitis, the Judge ruled that he was not dependent on his father’s health insurance since he could apply for public assistance under Medicaid. And the Judge further found that with regard to family separation, the parents could visit their sons in the U.S. whenever they wished. He held that our contention that the parents would be inadmissible from the U.S. for ten years due to unlawful presence had no basis in fact.

The BIA ruled that the Judge was wrong to suggest that the son with ulcerative colitis should apply for Medicaid. The Board also ruled that the Judge’s finding that the parents could visit their sons in the U.S. was wrong as a matter of law. In fact, the entire first page of the Board’s decision consisted of enumerating the errors made by the Immigration Judge. However, on page two of the decision, the BIA simply and without explanation, affirmed the Judge’s decision denying cancellation of removal.

When we sought to challenge this decision in Federal Court, the Court held that it lacked jurisdiction to review a discretionary decision of the BIA. During the time that the case was pending before the Federal Appeals Court, the oldest son turned 21, and successfully petitioned both his mother and father. The Court Mediator tried to persuade ICE to join us in a motion to reopen the case to allow the father and mother, both of whom had entered the U.S. on nonimmigrant visas, to adjust their status. ICE refused to do so. Today, only the introduction of a private bill by a Member of Congress prevents the father and mother from being deported.

Had our traditional system of checks and balances been in place, the Federal Appeals Court would have had the opportunity to remand the case to the BIA which may have allowed the parents to remain in the U.S.

On February 2, 2010, a nearly 500-page report entitled “Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases” was submitted to the American Bar Association’s Commission on Immigration. One of the recommendations contained in the report is to restore judicial review of discretionary decisions under an abuse-of-discretion standard. We could not agree more.

10. Winner of our March 2010 Immigration Trivia Quiz

Quiz Removed

Here is our winning entry:

Dear Mr. Shusterman,

My name is Frank Noack. I am German and am living in Lake Arrowhead. I was born in Rostock in 1966 and have been living in the USA since 2004. I am self- employed classic cars sale to Germany. My girlfriend is a medical student in Germany. I solved the quiz on the Internet. Here the answers to the Immigration Trivia Quiz:

Composer
Yo-Yo Ma
Born to Chinese immigrant parents in Paris in 1955
October 7, 1955 (1955-10-07) (age 54)
Paris, France

His mother, Marina Lu, was a singer, and his father, Hiao-Tsiun Ma, was a violinist and professor of music. His family moved to New York when he was five years old.

Igor’ Fjodorovic Stravinskij) (17 June [O.S. 5 June] 1882 – 6 April 1971) was a Russian composer, pianist, and conductor, widely acknowledged as one of the most important and influential composers of 20th century music.[1][2][3] He was a quintessentially cosmopolitan Russian who was named by Time magazine as one of the 100 most influential people of the century.[4] He became a naturalized US citizen in 1946. In addition to the recognition he received for his compositions, he also achieved fame as a pianist and a conductor, often at the premieres of his works.

Ernest Bloch (July 24, 1880 – July 15, 1959) was a Swiss-born American composer.

Bloch was born in Geneva and began playing the violin at age 9. He began composing soon afterwards. He studied music at the conservatory in Brussels, where his teachers included the celebrated Belgian violinist Eugène Ysaÿe. He then travelled around Europe, moving to Germany (where he studied composition from 1900-1901 with Iwan Knorr at the Hoch Conservatory in Frankfurt), on to Paris in 1903 and back to Geneva before settling in the United States of America in 1916, taking American citizenship in 1924. He held several teaching appointments in the U.S., with George Antheil, Frederick Jacobi, Bernard Rogers, and Roger Sessions among his pupils. In December 1920 he was appointed the first Musical Director of the newly formed Cleveland Institute of Music, a post he held until 1925. Following this he was director of the San Francisco Conservatory of Music until 1930.

In 1941 Bloch moved to the small coastal community of Agate Beach, Oregon and lived there the rest of his life. He died in 1959 in Portland, Oregon, of cancer at the age of 78. The Bloch Memorial has been moved from near his house in Agate Beach to a more prominent location at the Newport Performing Arts Center in Newport, Oregon

Tania León

Tania León (born May 14, 1943 in Havana, Cuba), a personality on today’s music scene and a composer and conductor, has been recognized as an educator and advisor to arts organizations.

León’s opera Scourge of Hyacinths, staged and designed by Robert Wilson with León conducting, has received over 22 performances in Germany, Switzerland, France and Mexico. Based on a radio play by Nobel Prize-winner Wole Soyinka it was commissioned in 1994 by the Munich Biennale, where it won the BMW Prize as best new opera. The aria Oh Yemanja from Scourge was recorded by Dawn Upshaw on her Nonesuch CD “The World So Wide”. Frank Noack
Good going, Frank – I am very impressed!

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California (1988 – present)
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

“Who in the Republican Party was the genius that said that now that we have identified the fastest-growing voting demographic (Hispanics) in America, let’s go out and alienate them?” “

– Dick Armey (R-TX) Former Majority Leader, House of Representatives March 2010

Newsletter US Immigration Update April 2010 – Quick Links

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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.