Volume Fourteen, Number Six

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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.

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

Newsletter US Immigration Update June 2009

TABLE OF CONTENTS:

1. Legislation: Congress Ready to Take up Immigration Reform
2. H-1Bs: A Rare Opportunity for Students/Physicians to Apply
3. Schedule of Shusterman’s Upcoming Immigration Law Seminars
4. H-1Bs for Health Care Workers: Advanced Degree Not Required
5. Success Story: My First Argument Before the 9th Circuit
6. Immigration Trivia Quiz: Bringing You the Gift of Song
7. Ask Mr. Shusterman: Importance of Maintaining Your H-1B Status
8. Immigration Government Processing Times
9. Child Status Protection Act (CSPA): Litigation Update
10. Winner of our May 2009 Immigration Trivia Quiz

NEWS FLASHES:

• Blog– Our weekly blog is entitled “Nation of Immigrants”.To read our blog, which deals with current immigration issues, or to receive a free subscription, see

  http://carlshusterman.blogspot.com/

  We welcome your comments!

• Computer Professionals– Everyday, for the past seven years, we search the online computer magazines and link to the most important immigration developments related to computer professionals. See our “Immigration for Computer Professionals” page at

  https://www.shusterman.com/computerprofessionalsusimmigration2010.html

• ICE– On May 14, John Morton was sworn-in as the new ICE Chief. Does this signify a kinder, gentler ICE? We link to the ICE press release at

  https://www.shusterman.com/immigrationandcustomsenforcement

• iCert Begins– The Labor Department’s (DOL’s) iCert Visa Portal began accepting Labor Condition Applications (LCAs) on April 15. Initially, the DOL announced that starting May 15, LCAs must be filed through iCert. DOL later delayed this to June 30. We link to the announcement of the new iCert system, the iCert External User’s Guide and the iCert LCA Module External User’s Guide from our “PERM Resources” page at

  https://www.shusterman.com/perm

• National Public Radio– Everyday, for the past five years, we link to the most important stories in the immigration world from our “NPR” page. See

  https://www.shusterman.com/nationalpublicradiousimmigration2010.html

• Senate Immigration Hearings– On May 20, the Senate Subcommittee on Immigration, Border Security and Citizenship held a hearing entitled “Securing the Borders and America’s Points of Entry, What Remains to Be Done”. On June 3, the full Senate Judiciary Committee will conduct a hearing entitled “The Uniting American Families Act: Addressing Inequality in Federal Immigration Law”. We link to the May 20 hearing and the WebCast from our “U.S. Senate” page

  https://www.shusterman.com/senateusimmigration.html#1b

  We link to the upcoming June 3 hearing from

  https://www.shusterman.com/senateusimmigration.html#1a

  and will link to the WebCast from this same page.

• Unlawful Presence– Since 1996, the government has issued at least ten separate memos explaining what constitutes “unlawful presence” in the United States sufficient to trigger the three-year, ten-year and permanent entitlement bars. On May 6, the USCIS issued a 51-page comprehensive memo which replaces its earlier memos. We have read the new memo in its entirety and we are very impressed by its clarity and simplicity. We congratulate the authors of the memo: (1) Donald Neufeld, Acting Associate Director, Domestic Operations Directorate; (2) Lori Scialabba, Associate Director, Refugee, Asylum and International Operations Directorate; and (3) Pearl Chang, Acting Chief, Office of Policy and Strategy on a job well done! We link to the new memo from

  https://www.shusterman.com/greencardsusing245i.html

• Visa Bulletin– The June 2009 Visa Bulletin was notable mostly because EB-2 India regressed another few years, still another slap in the face to persons who play by the rules. To view the June 2009 Visa Bulletin, see our “Visa Bulletin” page at

  https://www.shusterman.com/statedepartmentvisabulletin/

  Hoping that the backlogs in the EB visa numbers will disappear come October 1st? Better think again! The State Department tells us that because of increased demand, the retrogression will be worse than ever in both the EB-2 and EB-3 categories.

• USCIS– On May 19, the USCIS announced that it had recently opened an International Adjudication Support Branch (IASB) in Anaheim, California to assist in processing select paper- based applications and petitions received from its international offices. Currently, the IASB is assisting the USCIS office in Ciudad Juarez, Mexico in reducing the backlog of I-601 waiver applications. For more information about the IASB, see our “USCIS” page at

  https://www.shusterman.com/uscitizenshipandimmigrationservices.html#1

• Western Hemisphere Travel Initiative – Starting on June 1, citizens of the U.S., Canada and Bermuda were required to present one of the following documents when entering the U.S. by land or sea:
  
  • A valid passport;
  • A valid U.S. passport card (U.S. citizens only);
  • A Department of Homeland Security trusted traveler program card, such as a NEXUS, SENTRI or FAST program card;
  • An enhanced driver’s license (EDL). EDLs are driver’s licenses that require applicants to provide proof of their citizenship or immigration status;
  • A U.S. military identification card, with proof of military travel orders;
  • A U.S. Merchant Marine Document;
  • An enhanced tribal identification card, issued by some Native American tribes.

  For more information, see CBP’s “3 Simple Steps for Land Border Entry” from our “Customs and Border Protection” page at

  https://www.shusterman.com/customsandborderprotection

• YouTube “How to” Immigration Videos– Over 25,000 persons have viewed one or more of our YouTube videos on immigration. One of our recent videos, “Green Cards through Marriage”, has been viewed over 10,000 times. We will film more YouTube videos in June and July. Obtain free information about how you may qualify for immigration benefits by viewing our videos at

  https://www.shusterman.com/videosusimmigration.html

1. Legislation: Congress Ready to Take up Immigration Reform

On May 20, the Reuniting Families Act was introduced in the Senate. The bill would provide some much needed relief for persons waiting for their visa numbers in both the employment and family-based categories to become current.

The Act would

1. Recapture 400,000 visa numbers which went unused between 1992 and 2007;
2. Eliminate the 2A (spouses and minor children of lawful permanent residents) five-year waiting period by reclassifying these family members as “immediate relatives”;
3. Raise the per-country limits from 7% to 10%, thereby shortening the extraordinary backlogs for persons born in India, China, Mexico and the Philippines;
4. Provide that persons who become widows or orphans while waiting for their visa numbers to become current would not lose their place in line despite the death of the petitioning spouse/parent;
5. Reduce the waiting times for sons and daughters of Filipino World War II veterans; and
6. Revise the definition of stepchildren to include children whose parents married prior to their 21st birthday.

In addition to this bill, in recent weeks, the following immigration legislation has been introduced in Congress:

• The DREAM Act
• The AgJobs Act
• The Emergency Nursing Relief Act
• The Conrad State 30 Improvement Act

These bills, combined with legislation to provide a pathway to legalize 10-12 million undocumented persons in the U.S. will be taken up, as a package, by Congress this summer.

For more information on each of these bills, see our “Immigration Legislation” page at

https://www.shusterman.com/legislationusimmigration.

What are the chances that comprehensive immigration reform will become law in 2009? Charles Schumer, the Chairman of the Senate Immigration Subcommittee recently stated: “I believe that this year, we can pass comprehensive, strong, fair immigration reform.”

President Obama has scheduled a meeting with Congressional Leaders regarding immigration reform at the White House on June 8.

We will keep you posted!

2. H-1Bs: A Rare Opportunity for Students/Physicians to Apply

The H-1B system is clearly out-of-sync with the real world.

Persons who qualify for “cap-subject” H-1Bs are allowed to apply starting April 1st each year, but can not start working until October 1st, six months later.

Since the number of applications usually far exceeds the number of available visas, this means that by the second week of April, it is too late to apply.

What about all of the foreign-born students who graduate from U.S. universities in June each year? Since U.S. employers can not apply for H-1B status for them until after they obtain their degrees, by June, it is already too late to do so. One prominent newspaper calls this the “Happy Graduation, Now Go Home!” policy. The U.S. educates and then loses a lot of talent each year.

However, this year is different. Because of the economic recession, there is hope for these students and their employers. As of today, the Immigration Service is still accepting H-1B petitions submitted by U.S. employers for foreign-born professionals. There are about 20,000 unused visa numbers.

Students can use their one-year Optional Practical Training work permits to start their jobs following graduation.

Then, as soon as possible, their employers should seek to change their status to H-1B as of October 1, 2009. This is possible this year because there are almost 20,000 H-1B visa numbers remaining.

The same scenario is true for foreign-born medical residents and fellows who received their training in the U.S. using “cap-exempt” H-1B status.

These trainees complete their residencies and fellowships on June 30, at which time there are usually no “cap-subject” H- 1B visa numbers available.

This year is different. Since it is probable that there will still be H-1B numbers available on June 30, U.S. employers should submit H-1B petitions for these trainees as soon as possible.

Additional information is available on our “Immigration for Physicians” page at

https://www.shusterman.com/physiciansusimmigration.html

3. Schedule of Shusterman’s Upcoming Immigration Law Seminars

• June 3-6th, 2009Las Vegas, NV
  American Immigration Lawyers
  Association (AILA)
  2009 AILA Annual Conference on Immigration Law
  Topic: Law Practice Management

• June 17th, 2009 10am PST
  Hospital Association of Southern California
  Immigration Webinar

4. H-1Bs for Health Care Workers: Advanced Degree Not Required

All too often, it seems that some examiners at USCIS Service Centers are just looking for a way to deny petitions.

Long-standing policies are ignored and new theories are advanced to deny perfectly-qualified applicants for immigration benefits.

A few months ago, a few examiners decided on their own that M.B.B.S. degrees which were issued to physicians from British Commonwealth countries are not equivalent to M.D. degrees issued by medical schools in the U.S. As a result, many petitions and applications were denied on this basis. After much protest from the medical community, the USCIS in Washington got involved, and the situation was rectified in favor of the foreign-born physicians and their U.S. employers.

The latest government boondoggle involves state-licensed physical and occupational therapists. Though these professionals have always been held to be eligible for H-1B status, some examiner(s) noticed that the latest edition of the Labor Department’s Occupational Outlook Handbook (OOH) now says that M.S. degrees are preferred.

Accepting this statement in the OOH as Gospel, the USCIS started to deny immigration benefits to PTs and OTs with B.S. degrees even though they were in possession of state licenses.

The response to this sudden change in USCIS policy was swift and negative. Under USCIS regulations, there are three agencies designated to determine whether the credentials of foreign-born health care workers are equivalent to those of the U.S.-born counterparts: the FCCPT, the CGFNS and the NBCOT.

On February 19, the Foreign Credentialing Commission on Physical Therapy (FCCPT) weighed in on USCIS’ “confusion” about this matter. Then, on March 19, the National Board for Certification in Occupational Therapy (NBCOT) wrote to the USCIS that “immigration officials are misinterpreting the academic/educational requirements for an occupational therapist”. Finally, on March 26, CGFNS International wrote to the USCIS and explained why the OOH’s statement that a Master’s degree was a precondition for a foreign PT to be admitted to the U.S. was “incorrect”.

The hope was that the USCIS headquarters in Washington, D.C. would correct this erroneous interpretation of the law and regulations prior to start of the H-1B filing season on April 1st.

Unfortunately, USCIS did not issue a policy memorandum until May 20. However, since almost 20,000 H-1B numbers are still available, and “cap-subject” workers cannot change their status to H-1B until October 1, 2009, no harm, no foul.

In its memorandum, the USCIS recognizes that H-1B health care workers must possess an “unrestricted (state) license”, and it is irrelevant whether they possess a B.S. degree rather than an M.S. or Ph.D. degree.

We hope that, in the future, USCIS will adhere to policies which are consistent with the law and the regulations, and will provide an avenue for practitioners and employers to bring clearly erroneous decisions to the attention of Headquarters before they develop into trends. Given the 15- month wait at the agency’s Administrative Appeals Office to issue a decision on the appeal of an H-1B petition denial, this is not an adequate remedy.

It would also be helpful if the USCIS were to clarify that the May 20th memorandum applies to I-140s as well as to H-1B status, and to all persons in possession of unrestricted state licenses, not only health care professionals.

5. Success Story: My First Argument Before the 9th Circuit

Though it occurred many years ago, I vividly remember the first time that I ever argued a case before the U.S. Court of Appeals for the 9th Circuit.

First, let me share a little information about our client.

Some of the longest waiting times for green cards are experienced by citizens of the Philippines. Being born in a former colony of the U.S., Filipinos receive their education in the English language, and find it relatively easy to adapt to the American culture. (Disclaimer: My wife is a Filipina.)

Mr. S, a Filipino, had overstayed his visa in the U.S. Although he had applied for lawful permanent residence, it would be many years before he could receive a green card. He missed his daughter in the Philippines who he had not seen in many years. She could not get a visa to visit him in the U.S., and he was advised by his attorney that if he visited her in the Philippines, he might never be able to return to the U.S.

Read more…

6. Immigration Trivia Quiz:

Quiz Removed.

7. Ask Mr. Shusterman: Importance of Maintaining Your H-1B Status

“You don’t need to extend your H-1B status, you’ve got an EAD!”

If I read such a statement on a message board, I would understand. However, when someone seeking my advice tells me that his former attorney told him this, I cringe.

Why should someone with an Employment Authorization Document (EAD) not use it, but instead keep renewing his H-1B status?

Consider this real life example: Last week, an Indian professional had a legal consultation with me. He had been in H-1B status since December 2001. His employer had obtained the approval of a PERM application on his behalf. In July 2007, when all the EB visa numbers became current, his employer submitted an immigrant visa petition (I-140) on his behalf in the EB-3 category. Simultaneously, he, his wife and their two children submitted applications for adjustment of status (I-485).

The I-140 was approved, but due to the lack of visa numbers, the family’s I-485s remained pending. Although the USCIS could not approve their I-485s, they are not barred from denying them. His 18-year-old son received a Request for Evidence asking him to demonstrate that he had been in lawful status since he entered the U.S. as a B-2 visitor ten years before.

The problem was that the family had sent the son to live with his aunt and uncle in the U.S. when he was a young child. When his six-month stay in the U.S. expired, no one ever extended his B-2 stay in the U.S. or requested that his status be changed to F-1 student.

Their question was “How could their son respond to the RFE?” My answer was that since the son had resided in the U.S. unlawfully for over ten years, he was ineligible to adjust his status to permanent resident. However, if he departed the U.S. immediately to get an H-4 visa abroad, he would not be subject to the three or ten-year bars. Only when a child turns 18 can he accumulate “unlawful presence” in the U.S. which, in turn, subjects him to the bars when he departs the U.S. See

https://www.shusterman.com/greencardsusing245i.html

Once the son obtained an H-4 visa abroad, he could return to the U.S. to complete his education, and eventually adjust his status using section 245(k) of the law which provides that one can adjust status under the EB-1, EB-2 and EB-3 categories as long as he has not been out-of-status or employed without authorization for over 180 days since his most recent admission to the U.S.

Problem solved? Not so fast.

I asked the father when his H-1B status was due to expire. He replied that it had already expired at the end of 2007. Stunned, I asked him why, and he replied that his attorney had told him, “You have an EAD, why bother extending your H- 1B status?”

Not a very thoughtful answer coming from an immigration attorney. There is a USCIS memo which would have permitted the father to obtain a new H-1B petition approval and visa even though he was no longer in H-1B status. However, he was not willing to return to India to apply for a new visa. As a result, his son will be separated from the rest of his family for many years. This is tragic since it would have been so easy to avoid this outcome had the father simply extended his H-1B status.

Another reason to continue to renew one’s H-1B status is USCIS’ questionable interpretation of section 245(k). If a person’s application for adjustment of status is denied for any reason, the USCIS holds that the person may not renew their I-485 unless they have maintained their lawful “nonimmigrant” status while their application for adjustment of status is pending. In such cases, persons are often forced to leave the U.S. simply due to their failure to extend their H-1B status.

For these and many other reasons, it is always wise to maintain H-1B status until one’s application for adjustment of status is approved.

For more information regarding H-1B status, see our “H-1B Page” at

https://www.shusterman.com/h1bvisaguide

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 at

https://www.shusterman.com/schedule-immigration-consultation/

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. Child Status Protection Act (CSPA): Litigation Update

Back in 2002, the President signed a law designed to keep immigrant families intact, the Child Status Protection Act (CSPA). The law includes a provision that states that if a child turns 21 years of age before obtaining a green card together with his parents, his petition would “automatically be converted to the appropriate category” and he would be entitled to the “original priority date”.

What does this mean?

Consider the case of Melvin Cuellar de Osorio. His grandmother, a U.S. citizen, submitted a petition to sponsor his family for permanent residence in 1998. Because of long backlogs, Melvin’s parents were not able to immigrate to the U.S. until 2006. Since Melvin reached the age of 21 before his parents could immigrate, he was forced to remain behind in his native country. When his mother petitioned for Melvin under the 2B category (unmarried adult sons and daughters of lawful permanent residents), she maintained that under CSPA, Melvin was entitled to the “original priority date” of 1998 which would have allowed him to immediately rejoin his family in the U.S.

The USCIS failed to respond to her request. Without CSPA, Melvin will not be able to rejoin his family in the U.S. until 2017 at which time he will be 33 years of age. If he marries, he will lose his ability to immigrate under the 2B category altogether.

The USCIS does not seem to be in any rush to allow Melvin, and other persons in his position, to know what the words “appropriate category” or “original priority date” in CSPA mean. This August, it will be seven years since CSPA was signed into law. The agency has yet to issue regulations to implement the law. Although the USCIS has issued at least eight memos regarding CSPA, and the State Department another six, the government has avoided interpreting the portion of the law which would allow Melvin to reunite with his family.

On June 23, 2008, we brought a lawsuit in Federal Court on behalf of Melvin’s mother and five other mothers who are separated from their sons and daughters despite the clear language of CSPA. The USCIS believes that to allow children like Melvin to use their original priority date would be tantamount to permitting them to cut in line. According to the agency, CSPA does nothing to lessen Melvin’s 19 year wait to become a permanent resident.

In September, the Government submitted a motion to dismiss our complaint. Since then, the government has requested that the Judge postpone deciding our case until the Board of Immigration Appeals (BIA) rules on similar cases which are pending before the Board. The BIA has already decided two cases which interpret the words “appropriate category” and “original priority date” exactly as we state in our motion. However, these cases are not binding precedents.

The Federal Judge ruled that if the BIA did not rule on the cases by May 11th, he would not grant the government any further postponements requested by the government in our lawsuit on the ground that the BIA was about to rule on the cases before them.

We have agreed with the government that both sides will file cross Motions for Summary Judgment in our lawsuit with tentative filing dates of June 26. The motions would be noticed for a hearing on July 20.

At long last, parents may no longer have to be separated from their sons and daughters for years when they immigrate to the United States.

More information regarding the “automatic conversion” portion of CSPA and the briefs in our lawsuit are available at

https://www.shusterman.com/childstatusprotectionact.html

10. Winner of our May 2009 Immigration Trivia Quiz

Quiz Removed.

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)

Law Offices of Carl Shusterman, 600 Wilshire Blvd, Suite 1550,Los Angeles, California 90017, Phone: (213) 623-4592 Fax: (213) 623-3720

“Immigration is the sincerest form of flattery.”

– Jack Paar

Newsletter US Immigration Update June 2009 – Quick Links

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June 1, 2009