October 28 2015

Shusterman’s Newsletter US Immigration October 2015

Volume Twenty, Number Eight

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 35 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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Newsletter US Immigration
October 2015

1. New Rule Will Allow Thousands More to File I-485’s in October
2. State Department Visa Bulletin for October 2015
3. Immigration Government Processing Times
4. Success Story: Saving a Client from an EB-5 Denial
5. Immigration Trivia Quiz: Immigrant Writers
6. Ask Mr. Shusterman: Dilley – The Good, The Bad & The Ugly
7. Shusterman’s Upcoming Immigration Seminars
8. Winner of Our August 2015 Immigration Trivia Quiz!

NEWS FLASHES:

- DHS Announces TPS Designation for Yemen– After having been engaged in months of armed conflict, the people of Yemen have been granted a Temporary Protective Status (TPS) by the United States Secretary of Homeland Security, Jeh Johnson. Yemen has been deemed so dangerous that requiring any nationals to return would be a threat to their safety. As of September 3, 2015, the TPS was instated with the help of the U.S. Citizenship and Immigration Services (USCIS) and will allow nationals from Yemen to be approved for Employment Authorization Documents (EADs).

- Kerry: US to Accept 85,000 Refugees in 2016, 100,000 in 2017 – In the next 2 years, the United States will accept a larger number of refugees, many of whom will be Syrians.

- Nurse Jobs in the US – One of our clients, Prime Healthcare, with 34 hospitals across the US, is going to Toronto, Canada this week to recruit RNs to work in the US. They will pay for your relocation expenses and our attorney’s fees for obtaining TN status for you. Certain RNs will qualify for bonuses of up to $10,000.

- Updates to Forms I-864, I-864A, I-864EZ and I-864W – The USCIS has issued updated versions of the following forms: 1-864 Affidavit of Support, 1-864A Contract Between Sponsor and Household Member, I-864EZ Affidavit of Support and I-884W Intending Immigrant’s Affidavit of Support Exemption. The USCIS will accept the older version of these forms only until the 5th of October, 2015.

USCIS Launches Spanish-Language MyE-Verify and Expands Services– The The US Citizenship and Immigration Services (USCIS) will be releasing a Spanish version of their website, myE-Verify. The website consists of features such as Self Lock, Self Check, Case History, Case Tracker and the Employee Rights toolkit, some of which were not previously available in the Spanish language.

1. New Rule Will Allow Thousands More to File I-485’s in October

Thanks to President Obama, a new rule will take effect on October 1, 2015 which will allow thousands of immigrants and their spouses and children with backlogged priority dates in the employment-based and family-based categories to apply for adjustment of status (as well as for EADs and Advance Paroles) even though their priority dates are not yet current.

While this is a positive development, on September 25, the government “updated” the October Visa Bulletin to retrogress the filing dates depriving many thousands of persons of the opportunity to apply for adjustment of status in October.

The September 25th changes retrogress the filing dates as follows:

EB-2 India: from 7/1/2011 to 7/1/2009 (2 years)
EB-2 China: from 5/1/2014 to 1/1/2013 (1 year and 5 months)
EB-3 Philippines: from 1/1/2015 to 1/1/2010 (5 years)
FB-1 Mexico: from 7/1/1995 to 4/1/1995 (3 months)
FB-3 Mexico: from 10/1/1996 to 5/1/1995 (1 year and 5 months)

Below is an example of how the new system will work:

Teresa, a registered nurse, is the wife of an H-1B professional whose employer has yet to sponsor him for permanent residence. That means that Teresa is unable to take advantage of the new rule which allows certain H-4 spouses to apply for EADs.

However, a hospital submitted an I-140 visa petition for Teresa in December 2009. Unfortunately for Teresa, the EB-3 category for Filipino professionals has retrogressed more than 8 years. So, she will not be able to apply for a green card until the year 2023, right?

Wrong! Under the new Obama policy, any Filipino with an EB-3 priority date before January 1, 2010 will be able to apply for adjustment of status starting on October 1, 2015. See the October Visa Bulletin: Dates of Filing for Employment-Based Visa Applications. Teresa and her husband (and any children born abroad who are living lawfully in the U.S.) can submit their applications for adjustment of status (I-485 packets) in October 2015 and obtain their EADs and APs within 90 days.

This rule applies whether the I-140 is approved or is still pending. So waiting past October for the I-140 to be approved is not a good idea. Filing dates, like priority dates, often retrogress.

Other Employment-Based Examples

Professionals from India

A computer programmer from India is in H-1B status. The EB-2 current priority date for India is backed up until May 1, 2005. However, if his priority date is prior to July 1, 2009, he can file an I-485 in October. Things are not nearly as favorable if he is in the EB-3 category, but are still better than before the rule. The EB-3 current priority date for India is backed up until March 8, 2004, but if his priority date is before July 1, 2005, he can file an I-485 in October.

Professionals from China

An H-1B professional from China has an approved I-140 with a priority date in 2013. The current EB-2 priority date for China in October is January 1, 2012. However, if his EB-2 priority date is before May 1, 2013, he can file his I-485 in October. The current EB-3 priority date for China in October is October 15, 2011. Under the new rule, if the professional’s priority date is before October 1, 2013, he can submit his I-485 in October.

EB-5 Investors from China

The new rule is a huge benefit for Chinese investors since the EB-5 category for Chinese will be October 8, 2013 in October. Any Chinese person in the EB-5 category with a priority date before May 1, 2015 will be able to apply for a green card in October.

180-Day Portability Rule – Change of Employers

For many persons whose priority dates have been backlogged for years, this new policy will give them the freedom to change employers without harming their ability to become green card holders.

This is due to the 180-Day Portability clause in the American Competitiveness in the 21st Century Act (AC-21). This clause allows persons in the EB categories who have approved I-140 visa petitions and whose I-485s have been pending for 180 days or more to change employers if their new employment is in the same or a similar occupation.

Below is an example of how this would work:

Vijay, a systems analyst from India, is in the EB-2 category which is backlogged in the October 2015 Visa Bulletin to May 1, 2005 for persons born in India.

Vijay began working for Employer A in H-1B status in 2008. Employer A filed a PERM application for Vijay in early 2009. Both the PERM application and the subsequently filed I-140 have been approved for many years.

Even though Vijay has worked for Employer A for over 7 years, he is unable to change jobs without jeopardizing his green card application. If he changes jobs before getting his green card, his new employer would have to obtain approvals for both a new PERM application and an I-140 in order for Vijay to retain his 2009 priority date.

Under the new rules, anyone from India with an EB-2 priority date before July 1, 2009 who is otherwise eligible can apply for adjustment of status starting on October 1, 2015. If they do so, under the 180-day portability rule, in April 2016, they can leave Employer A and take a job with Employer B as long as their new job is in the same or a similar occupation. Employer B will not have to submit a new PERM application or I-140 visa petition for Vijay.

When Vijay’s priority date becomes current, he can submit his I-485 packet.
For Vijay and for hundreds of thousands of professionals from around the world who work in the U.S. using temporary working visas, this is a tremendous benefit. It is especially significant for persons born in India, China and the Philippines, all countries with huge EB backlogs.

Family-Based Categories

1st Preference Category

The new rule will allow unmarried adult sons and daughters of US citizens to apply for adjustment of status about one year before their priority dates are current. For Mexico, about 4 months before. For Filipinos, more than 4 years in advance.

2A Preference Category

Spouses and minor children of green card holders will be able to apply for adjustment of status about one year before their priority dates are current.

2B Preference Category

Unmarried adult sons and daughters of green card holders will be able to apply for adjustment of status about 18 months before their priority dates are current although only a few months early for Mexicans and Filipinos.

3rd Preference Category

Married adult sons and daughters of green card holders will be able to apply for adjustment of status about 10 months before their priority dates are current. Mexicans can apply 7 months before and Filipinos a little less than 2 years before their priority dates become current.

4th Preference Category

Brothers and sisters of US citizens will be able to apply for adjustment of status about 11 months before their priority dates are current. Filipinos will be allowed to apply about 8 months in advance.

Caveat: All of the numbers above are only for the month of October. The numbers could regress in November. The waiting times depend on the number of persons with priority dates for each country. You can only apply for adjustment of status through an employment-based or family-based category if you are present in the US in lawful nonimmigrant status or if you qualify for adjustment of status under Section 245(i) or Section 245(k) of the Immigration and Nationality Act.

2. State Department Visa Bulletin for October 2015

EMPLOYMENT CATEGORIES

Breaking News: Starting October 1, you will be able to submit your application for adjustment of status or for an immigrant visa before your priority date is current. We link to USCIS’s explanation of the new rules.

The worldwide EB-1 and EB-2 categories remain current (no backlogs) in October while backlog in EB-3 grows slightly to 6 weeks.

The EB numbers for China jump forward: 6 years for EB-2, 7 years for EB-3 and 2 weeks for EB-5.

However, EB categories retrogress for India: 8 months for EB-2 and 9 months for EB-3.

EB-3 for the Philippines gains 2 years.

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

A. APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES– These dates are consistent with prior visa bulletin priority dates.

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	Current	1-12-12	5-01-05	Current	Current
3rd	8-15-15	10-15-11	3-08-04	8-15-15	1-01-07
Unskilled	8-15-15	1-01-06	3-08-04	8-15-15	1-01-07
4th	Current	Current	Current	Current	Current
Religious	U	U	U	U	U
5th Targeted Employment Areas/ Regional Centers	Current	10-08-13	Current	Current	Current
5th Pilot Programs	Current	U	U	U	U

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS– These dates indicate when immigrant applicants can send adjustment of status applications without having to wait for their priority dates to become current.

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	Current	01-01-13	7-01-09	Current	Current
3rd	9-01-15	10-01-13	7-01-05	9-01-15	1-01-10
Unskilled	9-01-15	1-01-07	7-01-05	9-01-15	1-01-10
4th	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th Targeted Employment Areas/ Regional Centers & Pilot Programs	Current	5-01-15	Current	Current	Current

FAMILY CATEGORIES

The worldwide family preference numbers inch forward in October from 2 to 6 weeks. For persons born in Mexico, the forward movement is even slower.

However, there is some good news for persons born in the Philippines. The 1st preference category jumps ahead by 8 months and the 4th preference category, the longest wait on the Visa Bulletin, at 23 years, advances 2 months in October.

The chart below tells the story in detail:

A. APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES– These dates are consistent with prior visa bulletin priority dates.

Categories	Worldwide	China (PRC)	Mexico	Philippines
1st	1-15-08	1-15-08	11-22-94	6-01-01
2A	4-15-14	4-15-14	3-01-14	4-15-14
2B	1-15-09	1-15-09	8-01-95	10-01-04
3rd	5-22-04	5-22-04	6-08-94	10-01-93
4th	2-08-03	2-08-03	3-22-97	5-01-92

B. DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS– These dates indicate when immigrant applicants can send adjustment of status applications without having to wait for their priority dates to become current.

Categories	Worldwide	China (PRC)	Mexico	Philippines
1st	5-01-09	5-01-09	4-01-95	9-01-05
2A	3-01-15	3-01-15	3-01-15	3-01-15
2B	7-01-10	7-01-10	1-01-96	1-01-05
3rd	4-01-05	4-01-05	5-01-95	8-01-95
4th	2-01-04	2-01-04	5-01-98	1-01-93

3. Immigration Government Processing Times

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

4. Success Story: Saving a Client from an EB-5 Denial

In August 2014, an EB-5 investor met with Attorney Belma Demirovic Chinchoy for a consultation regarding a pending I-526 petition based on a direct EB-5 investment.

The petition had been filed in September 2013 and Frank, the investor, was getting anxious about the long adjudication process. More importantly, after meeting some EB-5 professionals in Los Angeles, Frank began to worry that his I-526 petition had not been properly prepared and might be denied.

Frank hired Attorney Chinchoy to review the filed petition and prepare a report evaluating the petition’s EB-5 compliance. The day after receiving a copy of Frank’s petition, Attorney Chinchoy called Frank back. There was no need to spend his money on a detailed evaluation of the petition. A 30-minute review showed that the filed petition was nothing more than a preliminary collection of his personal and business documents.

Attorney Chinchoy explained to Frank his options: 1) Do nothing and wait for USCIS’ RFE or NOID and attempt to save the petition in the response; 2) Withdraw the filed petition and file a proper EB-5 petition; 3) Supplement the existing file with the missing documents and advocate with USCIS to have them consider the interfiled documents.

Given that Frank is a Chinese national, he did not want to lose his 2013 priority date and lose nearly a year of “waiting in line” for an EB-5 visa. And he did not dare to wait for an extensive RFE or NOID and risk being unable to prevail. So Attorney Chinchoy set up a plan to interfile documents with USCIS in an attempt to complete the filed petition and bring it into EB-5 compliance. With an interfiling, Frank could begin improving his petition immediately and get ahead of the game should an RFE arrive.

Within a month, Attorney Chinchoy submitted a package containing over 650 pages of business, investment and source of funds documents, including a revamped business plan, with USCIS Immigrant Investor Program. Then her active advocacy with USCIS began.

Per USCIS’ processing timetable, Frank’s petition should have been adjudicated in November. By mid-December the petition was still pending so Attorney Chinchoy prepared and filed a detailed Request for Expedite Processing. Through regular follow-ups with USCIS, she learned that USCIS had “misplaced” the Request. After another submission, USCIS received and approved the Request for Expedite processing in January 2015.

Frank anxiously watched the State Department Visa Bulletin fearing EB-5 visa retrogression for China. Meanwhile, Attorney Chinchoy continued to advocate with USCIS. She planned to challenge the USCIS in Federal Court should the government fail to act on Frank’s petition within 60 days.

But good news – in the form of an RFE – came on the 60th day after the approval of Request for Expedite Processing.

The RFE was fairly simple indicating that USCIS accepted and evaluated the entire supplemental filing. Working with Frank and the business plan writer, Attorney Chinchoy prepared a response to the RFE and submitted it within a few days.

On April 7, just 3 days after receiving the Attorney Chinchoy’s response, USCIS approved Frank’s I-526 petition! The next week, the Department of State announced a 2-year retrogression for Chinese EB-5 investors starting on May 1.

On April 20, Attorney Chinchoy submitted I-485s applications for Frank and his family, beating the deadline!

Frank was thrilled beyond belief!

He wrote the following review of his experience with Attorney Chinchoy:

“We came to Belma when we realized our EB-5 application was likely to get denied. Belma was engaged with us every step of the process. Belma’s diligence and open line of communication helped me to rework and prepare the best EB5 application possible. Belma found experts to augment the application we filed, filed supplemental documents with immigration and made sure we did not lose our place in EB-5 line.

“She advocated tirelessly with Immigration to get a decision on our EB5 application. Belma’s transparency and clear commitment to my investment and application left no doubt that she had my own success in mind.”

Frank and his family are now well on their way to receiving permanent resident status in the United States.

5. Immigration Trivia Quiz:

Quiz Removed.

6. Ask Mr. Shusterman: Dilley – The Good, The Bad & The Ugly

The LA4 – Attorney Cheryl Gertler, her translator Naz, me and Paralegal Elsa Garcia – volunteered at the Dilley Detention Center (aka South Texas Family Residential Center) during the first weekend of September.

We did our best to help unaccompanied mothers and children from El Salvador, Honduras and Guatemala prepare for their Credible Fear Interviews with the USCIS.

We all agree that this was one of the most important, if heart-breaking, experiences of our lives.

The Good

1. We received great training and support from the CARA Family Detention Pro Bono Project – Thank you Isabel, Ian and Aseem. See our Dilley Photo Gallery.
2. The approval rate for Credible Fear Interviews has risen to 87% resulting in more women and children being freed from Dilley.
3. We were able to meet with 2 top immigration advisers to DHS Secretary Johnson to discuss our concerns.
4. On our last evening in Dilley, DHS released the 5 longest-held detainee families and we were able to share a meal with them.

The Bad

1. Dilley is a detention camp, not a “residential center”. Full-body scans are required to enter the facility and all sorts of items are banned including cell phones and cameras.
2. The vast majority of the facility is off-limits even to attorneys representing inmates.
3. CCA imposes arbitrary rules. Example: An aunt who had driven to Dilley all the way from Houston was prohibited from visiting her niece because she arrived at the camp wearing open-toed shoes. Seriously!
4. The children are constantly wheezing and coughing and the doctor routinely tells them to drink more water. A sign on the door warns visitors that they are in danger of catching the chicken pox if they enter the facility.

The Ugly

1. Though a Federal Judge has ruled that facility should be closed down, the government is fighting the decision tooth and nail.
2. 1,800 women and children populate the facility and the number of inmates continues to grow.
3. CBP officers frequently produce “affidavits” which are false and misleading. They mark false answers to questions asking why the women and children came to the US. They purport to take affidavits from 3 and 4-year-old children!
4. During my week in Dilley, the Los Angeles Times ran an article about ICE going from home to home in Los Angeles to round up undocumented felons including child rapists who had been freely walking the streets of LA. Yet, they continue to lock up women and children who pose no danger to society. Great priorities!

7. Shusterman’s Upcoming Immigration Seminars

2015 Pro Bono Immigration Clinic (Congresswoman Grace Napolitano)
El Monte, CA
October 1, 2015
4:00 pm – 8:00 pm

AILA Podcast
October 2015
Topic: Marketing Your Immigration Practice
With Attorneys Sheela Murthy and Greg Siskind

Immigration Seminar
Prime Healthcare
Rancho Mirage, CA
October 15, 2015
10:00 am – 11:00 pm
Topic: Immigration For Human Resource Managers

Immigration Seminar
City of Hope
Duarte, CA
October 29, 2015
11:30 am – 1:00 pm
Topic: Self-Petitioning Green Cards

Immigration Webinar
California State Bar
November 4, 2015
11:30 am – 1:00 pm
Topic: Immigration of Health Care Professionals
With Attorney Raj Iyer

Immigration – Legal Ethics
UCLA School of Law
Los Angeles, CA
January 28, 2016
5:30 am – 6:30 pm
Topic: Legal Ethics in Practice

8. Winner of Our August 2015 Immigration Trivia Quiz!

Quiz Removed.

Carl Shusterman

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

“The legalization provisions in this act will go far to improve the lives of a class of individuals who now must hide in the shadows, without access to many of the benefits of a free and open society. Very soon many of these men and women will be able to step into the sunlight and, ultimately, if they choose, they may become Americans.”

– Former President Ronald Reagan (1986)