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Volume Seventeen, Number Ten

Shusterman’s Immigration Update November 2012 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 November 2012

TABLE OF CONTENTS:

1. Victory in CSPA Lawsuit!
2. J Waivers for Physicians: The Conrad State 30 Program
3. Shusterman’s Immigration Law Seminars
4. How to Obtain a Nonimmigrant Waiver of Inadmissibility
5. Success Story: Reuniting a Family Through an I-212 Waiver
6. Immigration Trivia Quiz: Venezuelans in the World Series
7. State Department Visa Bulletin for November 2012
8. Immigration Government Processing Times
9. Ask Mr. Shusterman: Adjustment of Status under 245(i)?
10. Winner of Our September 2012 Trivia Quiz!

NEWS FLASHES:

• DACA Work Authorization Code – When applying for deferred action, applicants should use the code “c (33)” rather than “c (14)”. Using the latter code could cause delays in the processing of your application.

• “Family Relationships” Include Same-Sex Partners – ICE has issued a memorandum stating that long-term same-sex couples are included in the term “family relationships” with regard to prosecutorial discretion.

• Fast Lane to U.S. Citizenship Reopens – The Pentagon has restarted the MAVNI program which allows persons on temporary visas with certain professional or language skills to enlist in the U.S. Armed Forces. Once enlisted, the person can immediately apply for naturalization to U.S. citizenship, thereby bypassing the green card requirement.

• I-9 Resources in Spanish – USCIS’ I-9 Central is now available online in Spanish and provides employers and employees with important information about the I-9 process and E-Verify.

• H-1B Backlogs Persist – Several weeks into Fiscal Year 2013, USCIS continues to process an unexpectedly large backlog of H-1B cap cases. Many petitioning employers are experiencing longer processing delays than usual, while many foreign-born professionals were unable to start their employment on October 1 as anticipated.

• H-1B Usage Under-Counted – Reports reveal that USCIS has under-counted H-1B usage by nearly 15% over the past 5 years. In fact, data shows that USCIS has approved about 45,000 too few H-1B applications between 2008 and 2012 due to inaccurate estimates of denial rates.

• Immigration “How-To” Videos – Our 30+ “How-To” Immigration Videos have been viewed well over 335,000 times. Subjects include how to obtain a green card, become a U.S. citizen, win your case in immigration court and select an immigration attorney. Our video Green Cards through Marriage has been viewed over 135,000 times. We encourage you to take advantage of this free resource.

• Norquist Pushes for Immigration Reform – Grover Norquist, a conservative power player and head of the Americans for Tax Reform, advocated immigration reform at the Midwest Summit on October 12, stating that the U.S. needs “dramatically more immigrants” to stay competitive and remain a global leader.

• Taiwan Joins Visa Waiver Program – On October 2, Taiwan was designated into the Visa Waiver Program. This move streamlines travel for thousands of eligible Taiwanese with valid passports, which should help stimulate tourism and business.

• TPS for Haitians – Temporary Protected Status (TPS) for Haiti has been extended 18 months, making it effective through July 22, 2014. The DHS has also extended the suspension of certain requirements for Haitian students on F-1 visas.

• TPS for Syrians – DHS has extended Temporary Protected Status (TPS) for Syrians to September 30, 2013.

• TRAC Sues ICE – On Oct. 22, the Transactional Records Access Clearinghouse (TRAC) filed a law suit challenging a ruling by ICE that its investigations and operations records are off-limits to the public. TRAC is particularly interested in internal inspections of detention facilities and those being held without being charged with a crime.

• U.S.-Russia Adoption Agreement – On November 1, a bilateral agreement between the U.S. and the Russian Federation went into effect, facilitating easier and safer adoptions between the two countries.

1. Victory in CSPA Lawsuit!

On September 26, in De Osorio v. Mayorkas, the Ninth Circuit joined with the Fifth Circuit in Khalid v Holder, in holding that the plain language of the Child Status Protection Act (CSPA) provides automatic conversion and priority date retention to aged-out beneficiaries of all family-based preference categories.

The Court’s decision is an important victory in a battle that began with two lawsuits (one by our law firm) filed in 2008. For those who have not been following this litigation, a bit of a background:

Traditionally, when a child turned 21 years of age, she was no longer eligible to immigrate to the U.S. together with her parents. Once her parents become permanent residents, they had the option of sponsoring their aged-out unmarried sons and daughters under the family-based 2B preference category. However, this entailed years, or even decades, of separation. Congress passed the Child Status Protection Act (CSPA) in 2002, to prevent the separation of parents from their sons and daughters.

The CSPA contains two provisions to carry out this important purpose. Under section 203(h)(1), the length of time that the visa petition was pending with the USCIS is subtracted from the child’s age on the date that the priority date becomes current. If the resulting age is under 21, the son or daughter can immigrate together with her parents. This provision makes sure that children are not penalized because of USCIS processing delays.

If the child’s CSPA age is 21 or over after this calculation, under section 203(h)(3), she automatically converts to the appropriate category and retains the priority date of the original petition. This provision provides some relief from the harsh impact of extensive visa backlogs, by crediting the child with the years she spent waiting in line with her parents.

Below is an example of how the automatic conversion and priority date retention clause work:

Mr. and Mrs. Santos, both citizens of the Philippines, were sponsored by Mrs. Santos’ sister, a U.S. citizen, on January 27, 1989. Their fourth-preference priority date became current over 23 years later on July 1, 2012. They have 3 children, born in 1988, 1992 and 1996. The sister’s visa petition was approved in one month. Therefore, their children, the oldest of whom was 1 year old, and the other two who were not yet born when the petition was submitted, are now aged 24, 20 and 16. The younger two children can immigrate together with their parents. The oldest child, who is still unmarried, benefits from the automatic conversion clause. She is given credit for the 23 years that she stood in line together with her parents waiting for her green card. As soon as her parents become lawful permanent residents, she automatically converts to the family-based 2B category. This enables her to immigrate to the U.S. and rejoin her family as soon as the priority date of the 2B category becomes current.

Unfortunately, the government sought to place unreasonable restrictions om the CSPA’s automatic conversion and priority date retention clauses. In Matter of Wang, the Board of Immigration Appeals (BIA) stated that CSPA was ambiguous with regard to what petitions are covered by the 203(h)(3). Therefore, they ruled that only children who were derivatives of an F2A petition would benefit from the automatic conversion and priority date retention clause. All other derivative beneficiaries would be excluded from benefits under the law.

Under Matter of Wang, the eldest daughter of Mr. and Mrs. Santos would not benefit from CSPA. Although she was originally included as a derivative of a fourth-preference petition, she would be ineligible under CSPA’s automatic conversion and priority date retention provisions.

In DeOsorio v. Holder, the Court found that the holding in Matter of Wang conflicts with the plain language of the CSPA and is owed no deference.

The Court rejected the BIA’s finding of ambiguity and found that CSPA’s automatic conversion and priority date retention clause clearly applies to beneficiaries of all family-sponsored petitions. The Court emphasized that the agency cannot impose its own interpretation when Congress has clearly spoken.

The Court also rejected the government’s contentions that the statute is ambiguous because it cannot practicably be applied to aged out derivatives of F3 and F4 petitions. The government argued that automatic conversion and priority date retention always requires the same petitioner, and the same petition.

However, the Ninth Circuit reasoned that unresolved procedural questions regarding how the law will be implemented do not create an ambiguity in the statute. According to the majority, any “change in policy announced by the statute’s plain language cannot be impracticable just because it is a change or because it does not specify how exactly that change is to be implemented.”

In its decision, the Court expressed confidence that the agency can develop a process to implement the plain terms of the CSPA. We hope the USCIS will begin that process now so that our clients, and the many others like them, may finally be reunited with their children.

One caveat – As we have cautioned in prior blog posts, today’s decision may not be the end of the story. Now we wait to see whether the government will ask the United States Supreme Court to review the Ninth Circuit’s decision. If that happens, it could be quite some time before this issue is decided once and for all. For most persons affected by the Court’s decision, it is wise to wait until the government’s ability to seek Supreme Court review of DeOsorio has expired near the end of December before applying for benefits under this decision.

2. J Waivers for Physicians: The Conrad State 30 Program

Named after the original sponsor, Senator Kent Conrad (D-ND), the Conrad State 30 Program was initiated in 1994. It permits International Medical Graduates (IMGs) who have completed their graduate medical education in the U.S. on J-1 exchange visitor visas to receive a waiver of the 2-year home residency requirement if they practice in cetain medically-underserved areas.

On September 28, President Obama signed S. 3245 which extends the Conrad 30 program another 3 years.

Under this program, each U.S. state can sponsor up to 30 primary care physicians and specialists each fiscal year for J-1 waivers. Although each state has formulated their own policies and program guidelines, the basic requirements are:

• The IMG physician must agree to work in a full-time capacity (40 hours/week) in H-1B status at a practice site located in a federally designated Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA) or Medically Underserved Population (MUP);
• Up to 10 (“FLEX 10”) of a state’s 30 annual waiver slots may be used for practice locations outside of designated shortage areas where the employer can demonstrate that it serves patients who live in shortage areas;
• The IMG physician must sign a contract with the health care facility to work at the approved practice site for a period of not less than 3 years;
• The IMG physician must agree to begin employment at the approved practice site within 90 days of receipt of the waiver, and;
• If necessary, the IMG physician must obtain a “No Objection” letter from his or her home country.

To apply for the J-1 waiver, the IMG physician must request sponsorship from the Department of Health in the state where he or she intends to practice medicine and complete the J-1 Visa Waiver Application. If the state agrees to sponsor the physician for a J waiver, it will forward the application to the Department of State for a recommendation to the U.S. Citizenship & Immigration Services (USCIS). USCIS is the final authority and determines whether or not to grant the waiver.

Once a J-1 waiver is granted, the employer must submit an H-1B petition and a request for a change of status to the USCIS. Physicians who receive waivers under the Conrad 30 program are exempt from the H-1B cap.

Some states attract more IMG physicians than others. It is very important that physicians and their employers examine the state’s program guidelines and ensure a complete and proper application is lodged in a timely manner as most applications are accepted on a first-come-first-served basis. A poorly prepared J-1 waiver request may result in the IMG physician missing out on one of the 30 slots or one of the 10 FLEX spots.

3. Shusterman’s Upcoming Immigration Law Seminars

• University of Texas School of Law
  Annual Conference on Immigration and Nationality Law
  Austin, Texas
  November 9, 2012, 8:30 am
  Topic: “Finding What You Need: Practice Tips for Immigration Attorneys on How to Find Key Statutes, Forms, Regulations, Government Memoranda, Manuals, and More”

• Professionals in Human Resources Association
  Los Angeles County, District 19
  Cascades Grill
  Palmdale, California
  November 14, 2012
  Topic: “What Employers Need to Know about US Immigration Laws”

• Channel Islands Public Management Association
  Human Resources Forum
  River Ridge Golf Club
  Oxnard, California
  January 16, 2013
  Topic: “Employer Compliance with I-9 Requirements”

• Professionals in Human Resources Association
  Legal Update
  Crowne Plaza Garden Grove
  Garden Grove, California
  January 22, 2013
  Topic: “What Employers Need to Know about US Immigration Laws”

• Professionals in Human Resources Association
  Legal Update
  Sheraton Four Points LAX
  Los Angeles, California
  January 24, 2013
  Topic: “What Employers Need to Know about US Immigration Laws”

• Professionals in Human Resources Association
  Legal Update
  Ontario Hilton
  Ontario, California
  January 29, 2013
  Topic: “What Employers Need to Know about US Immigration Laws”

• Professionals in Human Resources Association
  Legal Update
  Agua Caliente Hotel
  Rancho Mirage, California
  January 30, 2013
  Topic: “What Employers Need to Know about US Immigration Laws”

• Professionals in Human Resources Association
  Legal Update
  Marriott Burbank
  Burbank, California
  January 31, 2013
  Topic: “What Employers Need to Know about US Immigration Laws”

4. How to Obtain a Nonimmigrant Waiver of Inadmissibility

If you are ineligible to be admitted to the U.S. as a nonimmigrant (temporary stay), you may still be able to come to the U.S. by obtaining a waiver of inadmissibility. Nonimmigrant waivers allow applicants for temporary status in the U.S. to overcome many of the grounds of inadmissibility found in Section 212(a) of the immigration laws.

In order to obtain a nonimmigrant waiver, an applicant must be otherwise eligible for a temporary visa, such as a tourist (B-2) or student (F-1) visa, or a work visa.

In order to determine the eligibility of the nonimmigrant waiver, the Department of Homeland Security (DHS) follows the precedent decision of the Board of Immigration Appeals (BIA) in Matter of Hranka:

1. The risk of harm to society if the applicant is admitted
2. The seriousness of the applicant’s criminal or immigration law violation
3. The nature of the applicant’s reason for seeking entry

There are two different procedures for seeking the waiver: one for those who need a visa to enter the U.S.and one for those who don’t.

Those applicants who were denied a visa due to inadmissibility need to submit a waiver request at the consulate where their nonimmigrant visa application was submitted and denied. There is no application form or fee. The consulate reviews the waiver request and forwards a recommendation to the Admissibility Review Office at the Customs and Border Patrol (CBP) Headquarters in Washington, D.C. for a decision. For certain cases that involve high profile and national security issues, the consulate forwards the case to the Department of State (DOS) for consideration prior to referral to CBP. If the waiver is denied, there is no appeal.

Those who don’t need a visa to enter the U.S. (e.g., Canadian citizens) may request a waiver of inadmissibility at the Port of Entry by submitting a Form I-192 along with supporting documents. The application is received, the filing fee of $585 is accepted and receipted, the applicant’s fingerprints are taken, and the application is reviewed for completeness. The CBP office then mails the application to the appropriate field office for adjudication. This application does not require approval from the DOS. If the waiver application is denied, the decision can be appealed to the Board of Immigration Appeals.

Unlike an I-601 immigrant waiver, you don’t need to demonstrate “extreme hardship” to a qualifying U.S. relative in order to obtain a nonimmigrant waiver. The waiver is granted or denied at the discretion of the DHS or consular officer (if applicable).

There are certain grounds that cannot be overcome by nonimmigrant waivers such as political or security grounds, foreign policy grounds, espionage and sabotage, and participation in Nazi genocide.

Nonimmigrant waivers are sometimes difficult to obtain, particularly in the case of individuals with recent or serious criminal convictions. However, I once argued a nonimmigrant waiver denial in front of the BIA for a Canadian man with a felony conviction. The BIA unanimously reversed the denial and granted the waiver.

5. Success Story: Reuniting a Family through an I-212 Waiver

This month’s success story revolves around LOVE – and the things that one will do for this four letter word. Carla, driven by her love for her husband sought the wrong means to reunite with him.

Carla and Mario met in Mexico while Mario was on vacation. Mario was a permanent resident of the United States. The couple fell deeply in love and decided that they would marry and have a long-distance relationship until Mario was able to become a U.S. citizen and sponsor Carla to join him in the U.S. Mario returned to the U.S. and Carla continued to live with her parents in Mexico. All was well until her parents discovered that she had married a man without their approval, and later that she was pregnant. Her parents were furious and told Carla that she could no longer have any contact with Mario. This left her feeling alone and helpless. Grieving and emotionally distressed, Carla decided to leave her parents and to live together with her husband.

In order to reach her goal, Carla attempt to cross the border into the U.S. in the trunk of a car. Her strategy did not work. She was arrested by the Board Patrol and ordered removed from the U.S. for a period of 5 years.

Carla found herself alone and destitute in Tijuana. It was there that she gave birth to their son Gabriel. Mario found himself traveling back and forth between California to Tijuana every other weekend to be with his wife and son. In order to support Carla and Gabriel, Mario had to work 80 hours per week. This was not only physically and financially draining, it took a huge emotional toll on Mario and his family.

Unhappy and desperate, Mario scheduled a legal consultation with me. I mapped out a strategy and assigned the case to attorney Elif Keles. Ms. Keles submitted an I-212 waiver (Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal) to which she attached numerous supporting documents.

While the waiver was pending, Attorney Keles assisted Mario in becoming a naturalized U.S. citizen and in submitting immediate relative petitions for Carla and Gabriel. After a long wait, both petitions and the I-212 application were granted by the USCIS. We followed up with the U.S. Consulate in Ciudad Juarez, Mexico.

Earlier this year, Carla and Gabriel were each granted immigrant visas and were, at last, able to enter the U.S. legally.

The key to winning their case was that both Mario and Carla heeded Attorney Keles’ advice that, though they were going through very tumultuous times and had to endure a long period of separation, they should be patient and wait for their applications to be granted. They followed her advice and, as a result, were able to reunite and live together as a family in the U.S.

6. Immigration Trivia Quiz

Quiz Removed

7. Visa Bulletin for November 2012

The worldwide EB-2 category is now current. China advances 6 weeks while India remains unchanged. Worldwide EB-3 advances one month, China 2 months versus only 1 week for India. Clearly, Congress needs to rectify this unfortunate situation. Talent knows no borders.

The rest of the family and employment-based categories move very slowly in November.

FAMILY CATEGORIES

Categories	Worldwide	China (PRC)	Mexico	Philippines
1st	11-01-05	11-01-05	06-22-93	07-01-97
2A	07-15-10	07-15-10	06-22-10	07-15-10
2B	10-08-04	10-08-04	10-15-92	02-15-02
3rd	06-01-02	06-01-02	02-15-93	07-22-92
4th	03-22-01	03-15-01	07-08-96	03-01-89

EMPLOYMENT CATEGORIES

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	Current	9-01-07	9-01-04	Current	Current
3rd	11-22-06	5-15-06	10-22-06	11-22-06	8-08-06
Unskilled	11-22-06	7-01-03	10-22-06	11-22-06	8-08-06
4th	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th	Current	Current	Current	Current	Current

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. Ask Mr. Shusterman: Adjustment of Status under 245(i)?

When applying for a green card, there are two main paths that people can take: (1) applying in the U.S. for adjustment of status or (2) applying abroad through consular processing.

While most people prefer the first option, they can only do so if they meet the following requirements: (1) have entered the country lawfully and have been inspected by a USCIS officer; (2) have continuously maintained lawful status, and (3) have not worked in the U.S. without authorization. The last two requirements may be waived for immediate relatives and under section 245(k).

If you are ineligible for adjustment of status in the U.S. for any of these reasons, you may still be able to pursue permanent residence by returning to your home country and applying through a U.S. Embassy or Consulate abroad. However, you should keep in mind that you may be barred from returning to the U.S. for 3 or 10 years if you have accrued unlawful presence of more than 180 days while in the U.S. If you are inadmissible due to unlawful presence, you will need to obtain an I-601 waiver demonstrating “extreme hardship” to certain qualifying relatives before you will be allowed to return to the U.S. The process of obtaining such a waiver often takes many months, sometimes over one year.

So what if you are unlawfully present in the U.S., but don’t want to disrupt your life by traveling abroad to apply through a U.S. Consulate? There may be light at the end of the tunnel if you qualify for adjustment of status under section 245(i) of the law.

To qualify for adjustment of status under section 245(i) of the law, in addition to meeting all of the general requirements for adjustment of status, you must be the beneficiary of a labor certification or visa petition filed on or before April 30, 2001. Alternately, you must have been the minor child of a parent who had a labor certification or visa petition submitted on their behalf on or before that date. The labor certification or visa petition must have been “approvable when filed” even if it was ultimately abandoned or denied. And in some cases, you must have been present in the U.S. on December 21, 2000, the day that former President Clinton signed the last extension of section 245(i).

If you think that you may be eligible to adjust status under this section of law, you may wish to watch our video entitled How to Get a Green Card Under Section 245(i).

10. Winner of Our September 2012 Immigration Trivia Quiz!

Quiz Removed

Below is the message that we received from the winner:

“President Obama had two fathers:

1) A) His biological father is Barack Hussein Obama Sr.

B) His step-father’s name is Lolo Soetoro/Mangundikardjo

2) Barack Hussein Obama Sr. was born in Kenya; Lolo Soetoro/Mangundikardjo was born in the Dutch East Indies/Indonesia

3) Both Barack Hussein Obama Sr. and Soetoro/Mangundikardjo used student visas to come to the U.S. (Actually, Lolo was present in the U.S. as a J-1 exchange visitor, and had to return to Indonesia because he was unable to obtain a waiver of the two-year home residency requirement.)

4) A) Barack Hussein Obama Sr. left the U.S. because he was forced to leave the Ph.D program and had no money to stay in the U.S.

B) The reason Soetoro/Mangundikardjo left the U.S. was forced to return to Indonesia to help map Western New Guinea for the Indonesia government. (And this is because he tried and failed to obtain a J waiver.)

I am an immigrant as well. I am from China. I used student visa to the U.S. also. Currently, I live in Virginia Beach, VA. I am a public School teacher. I am very interested in immigration news and I have been subscribed to your newsletter for several years so far.”

Congratulations Anna!

Carl Shusterman
Certified Specialist in Immigration Law, State Bar of California
Former Immigration and Naturalization Service Trial Attorney
Served as 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

“It’s the most important thing to focus on if you’re concerned about the future of the country both as an economic power and as a serious leader of the world… It’s not only good policy to have more immigrants in the United States — dramatically more immigrants than we do today, [and] to having a path forward for those people who are here. It’s not only a good idea, but it’s good politics.”

– Grover Norquist

President of Americans for Tax Reform

Immigration Update November 2012 – Quick Links

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October 29, 2012

Disclaimer: Shusterman’s Immigration Update November 2012 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.