Volume Twenty One, Number Three

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

Shusterman’s Immigration Update May 2016

TABLE OF CONTENTS:

1. Justices Appear Divided on DAPA/DACA Lawsuit
2. State Department Visa Bulletin for May 2016
3. Immigration Government Processing Times
4. Success Story: Fabio Becomes a US Citizen
5. Immigration Trivia Quiz: Immigrants in Fashion
6. EB-5 Investors: Advocacy Updates & Highlights from IIUSA’s Conference
7. Revised STEM OPT Program Will Take Effect May 10
8. Ask Mr. Shusterman: A Win-Win for Immigrants and Us
9. Jobs & Green Cards for RNs & MedTechs: Free Legal Help!
10. Winner of Our February 2016 Immigration Trivia Quiz!

NEWS FLASHES:

• • EOIR Releases FY2015 Statistics Yearbook – The statistics on cases before the Immigration Courts, the Board of Immigration Appeals and OCAHO have been released by the Executive Office for Immigration Review.

• • E-Passports through Visa Waiver Program – Current Travel Security measurements are undergoing enhancements through the usage of e-passports by anyone traveling using the Visa Waiver Program. The e-passports were implemented on April 1, 2016 and anyone who wishes to travel must obtain one. They are being implemented in order to strengthen security, protect privacy, prevent theft, and make traveling more safe and efficient.

• • Filing an I-130 Petition for Petitioner in the U.S. Military – USCIS has made it easier for U.S. military personnel to sponsor relatives for green cards using form I-130 if they are stationed overseas. If the country where they are stationed does not have an USCIS office, the U.S. consular post or embassy can now accept and adjudicate these petitions.

• • Fiscal Year 2017 H-1B Cap Premium Processing to Begin May 12 – USCIS has announced that on May 12, 2016 they will begin the 15-day processing period for cap-subject H-1B premium processing. This also includes H-1B petitions that request an exemption on the basis of having obtained master’s degree or higher in the United States. H-1B’s that do not fall under the cap will begin the 15-day processing on the day that USCIS receives the petition.

• • Jay Peak and the EB-5 Program – The owner and the CEO of Jay Peak Resorts have both been charged with having misused more than $200 million dollars of EB-5 immigrant investments to finance what the US Securities and Exchange Commission (SEC) labeled “a massive and complex fraudulent enterprise”.

• • New Workload Transfer Updates Web Page – USCIS has created a page which tracks where workload transfers are happening between the 5 USCIS Service Centers. This is beneficial for customers in that they can find all of the transfers and additional information regarding their transfer on a single page.

• • Non-Precedent Decisions Search Tool – USCIS has created a search tool for the non-precedent decisions issued since 2005. The Administrative Appeals Office (AAO) uses these non-precedent decisions as references or “binding policy guidance” for the personnel working on cases.

• • Relief Granted by Immigration Judges – The number of individuals granted relief from removal, has been decreasing at a steady rate since 2011. A chart lists the 10 states in which it takes the longest time for an Immigration Judge to grant relief from removal.

• • Three Tied to San Bernardino Gunman Are Indicted – Attorney Shusterman was quoted in the New York Times regarding immigration criminal charges that were brought against the brother of the San Bernardino shooter, and two other individuals. Investigators claim that they do not believe these persons had any part in the shooting, but that their crimes came to the surface as a direct result of the investigation.

• U.S. Army Expedited Citizenship Program (MAVNI) – The United States Army has created an expedited citizenship program (MAVNI). A variety of Healthcare and Linguistics jobs are provided in regards to qualified legal non-immigrant aliens that have been lawfully admitted and are permitted to be in the U.S.

1. Justices Appear Divided on DAPA/DACA Lawsuit

On April 18, the Supreme Court of the United States heard oral arguments in the case of United States v. Texas, the challenge to President Obama’s DAPA and DACA expansion programs.

The Deferred Action for Parental Accountability (DAPA) program would grant work authorization to over 4 million undocumented parents of the US citizen children while the expanded DACA program would do the same for an increased number of undocumented persons who entered the US as children.

The State of Texas has argued that it has “standing” to bring the lawsuit because the DAPA and DACA programs would increase the number of applicants for drivers licenses in Texas. At least 4 of the Justices (Ginsberg, Sotomayor, Kagan and Breyer) seem inclined to rule that this is not a sufficient ground to grant the state standing to sue in court to halt the federal programs. Indeed, Justice Breyer warned that if this were enough to grant a state standing to challenge a federal program that “every case of political disagreement where States disagree would come before the Court”.

The other major area of discussion was whether the Administration has the authority to grant employment authorization to millions of persons absent Congressional action. Here, Chief Justice Roberts pointedly asked whether the Administration has the authority to defer deportation “to every unlawfully present alien in the U.S. right now.” Minutes later, Justice Ginsberg opined that since there are over 11 million undocumented persons in the US, and since Congress has only approved enough funds to deport 400,000 annually, priorities must be set by the Administration.

The bottom line is that if the Justices split 4-4 on this case, the 2-1 ruling of the US Court of Appeals for the 5th Circuit will prevail and both of the Administration’s programs will remain enjoined.

However, if a single Justice (Roberts, Kennedy, Alito and/or Thomas) joins the 4 Justices who appear poised to dismiss the lawsuit, the Administration will be permitted to implement both programs. Here, Court watchers are focused on Justice Kennedy who suggested that rather than seek to invalid the DAPA program, Texas might instead have challenged regulations allowing beneficiaries to obtain work permits.

A decision by the Supreme Court is expected in June.

2. State Department Visa Bulletin for May 2016

EMPLOYMENT CATEGORIES

The worldwide employment-based visa numbers all remain current (no backlogs) in May with the exception of EB-3 (Professionals, skilled and unskilled workers) which has a 2 1/2 month backlog.

India EB-2 inches forward by 2 weeks and India EB-3 by 3 weeks.

China EB-2 and EB-3 for professionals and skilled workers both fail to advance in May. China EB-3 for unskilled workers moves forward by 7 weeks. China EB-5 inches forward by one week to February 8, 2014.

Philippines EB-3 moves ahead 5 months.

EB-4 special immigrants and religious workers from El Salvador, Guatemala and Honduras are now backlogged to January 1, 2010.

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.

	WW	China (PRC)	El Salvador, Guatemala, Honduras	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current	Current
2nd	Current	9-01-12	Current	11-22-08	Current	Current
3rd	2-15-16	8-15-13	2-15-16	9-01-04	2-15-16	8-08-08
Unskilled	2-15-16	4-22-07	2-15-16	9-01-04	2-15-16	8-08-08
4th	Current	Current	1-01-10	Current	Current	Current
Religious	Current	Current	1-01-10	Current	Current	Current
5th Non-Regional Center (C5 and T5)	Current	2-08-14	Current	Current	Current	Current
5th Regional Center (I5 and R5)	Current	2-08-14	Current	Current	Current	Current

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS – The USCIS has determined that the EB filing dates for May 2016 will be the same as those listed in the Visa Bulletin.

FAMILY CATEGORIES

The worldwide family-based preference categories advance between 0 and 10 weeks in May.

Philippines 1st preference (unmarried sons and daughters of US citizens) jumps again by 3 months while the other Philippine categories advance by 1 to 4 weeks.

The Mexico family-based categories either fail to advance in May or inch forward by 1 to 3 weeks.

The chart below tells the story in detail:

A. APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES–

Categories	Worldwide	China (PRC)	Mexico	Philippines
1st	11-22-08	11-22-08	2-08-95	10-01-04
2A	11-01-14	11-01-14	8-15-14	11-01-14
2B	9-01-09	9-01-09	9-08-95	5-01-05
3rd	12-01-04	12-01-04	10-08-94	1-22-93
4th	7-22-03	7-22-03	4-08-97	10-01-92

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.

Read more…

4. Success Story: Petition for a Writ of Mandamus

Consider filing a Petition for a Writ of Mandamus in Federal Court to force the government to decide your application for a visa, a green card or U.S. citizenship.

I can’t tell you how many times immigrants have sought our help because their applications for visas,  green cards or naturalization have been pending for months or even years.

Read more…

5. Immigration Trivia Quiz

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6. EB-5 Investors: Advocacy Updates & Highlights from IIUSA’s Conference

This fall, EB-5 investors face several filing deadlines in anticipation of new EB-5 regulations that are expected to change significantly the EB-5 program.
From April 20-22, EB-5 stakeholders gathered in Washington DC for Invest in USA (IIUSA) Ninth Annual EB-5 Advocacy Conference. For some time, IIUSA’s tag line has read “EB-5 is Working: For you. For America”. Last week, members of the EB-5 community – attorneys, lawmakers, developers, regional centers, regulators, and USCIS adjudicators – partook in a series of seminars and discussions to explore exactly how EB-5 is working. Here are the Conference’s highlights.

IIUSA’s EB-5 Advocacy in Washington DC

As most EB-5 stakeholders know, EB-5 is set to expire (again) on September 30, 2016. As last year’s Congressional efforts failed to produce viable EB-5 legislation to update the program (which runs largely based on 1990 regulations, five cases interpreting the regulations and a plethora of USCIS rules, memos and policy statements), all eyes are on possible regulatory changes that may take effect this year.

IIUSA, which is a regional center advocacy group, has issued its policy priorities which are under consideration by the organization’s membership. The following are IIUSA’s top 5 policy priorities:

1. Extend EB-5 Regional Center program for at least 5 years;
2. Increase visa capacity to enhance economic impact of EB-5 and address the backlog of investors currently waiting for visas to be available;
3. Staff commercially viable processing system at USCIS that addresses existing backlogs and prioritizes predictability and length of processing times for EB-5 related petitions and applications;
4. Avoid retroactive application of new law and reform to protect the existing EB-5 investors and their families and the billions of dollars in financial commitments and contractual obligations;
5. Ensure all EB-5 investors with petitions currently filed, or at a later stage in the EB-5 process, are guaranteed adjudication (not approval) and eligibility for immigration benefits throughout the entire EB-5 process (I-526 petition, EB-5 visa issuance, and I-829 petition) regardless of future reforms, lapses or expiration of the program.

Securities Law Issues

Amidst the rising concerns over fraud and other securities laws violations in the EB-5 industry, the SEC has been increasingly involved in the EB-5 field. In fact, last week’s conference came on the heels of a major SEC legal action against a well-known Regional Center, Jay Peak. SEC’s allegations in the filed complaint against Jay Peak and its affiliates are chilling and have expectedly shaken the EB-5 industry. The SEC’s action against Jay Peak is evidence of SEC’s continuing efforts to regulate EB-5 industry and enforce securities laws.

SEC’s Stephanie Avakian, Deputy Director, Division of Enforcement, has made it crystal clear that EB-5 investments are securities and as such fall squarely under the SEC’s purview. Not only that, but EB-5 investments must also comply with FINRA rules and state SEC rules and regulations. While some in the EB-5 industry continue to claim that EB-5 investments fall under certain “exceptions” of SEC laws, Ms. Avakian made it clear that exceptions from registering with the SEC are not tantamount to exceptions from the law.

The Securities and Exchange Commission (SEC) is entrusted by the public to protect investors by investigating, and when necessary, enforcing federal securities law. The SEC is also concerned with protecting the US capital makers and maintaining a level playing field. Ms. Avakian emphasized that EB-5 investor’s location abroad is of minimal consequence for SEC. In fact, Ms. Avakian stated that EB-5 investors living abroad are in an even greater need of protection from SEC as EB-5 investors have access to limited information and are at whims of EB-5 promoters. Kavita Jain of FINRA joined Ms. Avakian in sending a clear message that those selling, marketing and otherwise promoting EB-5 investments must do so under valid SEC and FINRA registrations and licenses.

USCIS Adjudication of EB-5 Cases

With EB-5 I-526 petition adjudications taking 16.7 months, conference attendees were optimistic that Deputy Chief of USCIS Immigrant Investor Program Office (IPO), Julia Harrison, would shed light on how USCIS intends to improve and speed up adjudications. Unfortunately, Ms. Harrison’s updates provide limited hope for significant improvements in adjudication.

The IPO is currently staffed with 121 adjudicators. By the end of 2016, IPO intends to increase its adjudicating staff to 170. Unfortunately, even a 40% increase in adjudicating staff will not decrease the processing time to acceptable levels (i.e. 6 months or less).

Ms. Harrison also announced that the IPO had formed and staffed a new unit – Policy and Regulations Team. Streamlined policies may have a positive impact on speed of adjudications. The Policy and Regulations Team has been tasked with issuing a long-overdue policy memo regarding “sustainability of investment in regional center projects” (expected in July 2016) and proposing new EB-5 regulations. No one should hold their breath for new draft regulations as the rule-making process is bureaucratic and drawn-out, but this is a step in the right direction since EB-5 regulations need to be updated.

The stakeholders posed many questions for Ms. Harrison ranging from IPO site visits to regional centers, improved communication between NVC and IPO, impacts of RC termination on non-implicated projects and investors and postponement of adjudications of I-526 petitions affected by CSPA. Ms. Harrison took note of the issues raised and promised they would be addressed through the Policy team in the coming months.

EB-5 Visa Availability for Chinese Nationals

Updates regarding availability of EB-5 visas for Chinese nationals from Mr. Charlie Oppenheim, Chief of Visa Controls Office at the US Department of State did not shed any new light on the issue. Mr. Oppenheim did not address the expected impact of the over 21,000 pending I-526 petitions on visa availability. In the best case scenario, Mr. Oppenheim said that September 2016 EB-5 visa availability for Chinese nationals will advance to March 8, 2014; worst case scenario is Feb 22, 2014.

It is expected that “early filing” table of the visa bulletin for EB-5 visas will be available in October 2016 (most likely for a very short period of time).

7. Revised STEM OPT Program Will Take Effect May 10

A significantly revised and broadened STEM OPT program will take effect on May 10, 2017 under a final regulation published in the Federal Register on March 11, 2017.

Under the new rule, more F-1 STEM students will be eligible for an extension of their OPT and those who qualify will be granted a longer period of employment authorization. But their employers will be subject to stringent new requirements, including the obligation to prepare a detailed training plan for each STEM OPT candidate, comply with more extensive reporting requirements and undergo worksite inspections conducted by U.S. Immigration and Customs Enforcement (ICE).

Read more…

8. Ask Mr. Shusterman: A Win-Win for Immigrants and Us

One of our educational videos, Green Cards through Marriage, reached 300,000 views recently. Another video US Citizenship Through Naturalization is nearing 200,000 views.

We hope that the information provided in these and our other 60+ videos has helped many foreign-born persons cut through the red tape and become permanent residents and citizens of the United States.

Do we post these videos and other educational materials hoping that all viewers will become our clients? Of course, but if even a small fraction of 1% of our viewers retained our law firm to represent them, we would be completely overwhelmed.

We hope to educate both the public and younger immigration attorneys about the complexities in the immigration process. For 99% of our viewers, the process is purely educational. If a small fraction of 1% schedule consultations with us, we are happy. Very happy!

It all goes back to the 1970s when I worked as an attorney for the Immigration and Naturalization Service (INS). I started a program where INS attorneys volunteered to speak at Citizenship Classes throughout Southern California in the evenings. We spoke at over 50 classes each year.

Fast forward to 1995 and the birth of the internet. We created a web page, and in 1996, an e-mail newsletter which now has over 60,000 subscribers in more than 150 different countries.

Later, we started Facebook, LinkedIn and Google Plus pages as well as a YouTube video channel. I became so fanatic about posting the latest immigration news online that my wife calls herself a “web widow”.

One result of these efforts is our 7-attorney law firm which specializes exclusively in immigration law. We represent over 100 corporate and thousands of individual clients. But the more important outcome is that we have been able to educate millions of want-to-be immigrants to the United States.

It is clearly a win-win situation!

9. Jobs & Green Cards for RNs & MedTechs
Free Legal Help!

Are you a Registered Nurse or a Medical Technologist who is looking for a job in the US?

What if you could find a job, a work visa and green cards for you and your family in the US? And what if the cost to you for all of this was zero?

Hard to believe? Let me explain:

Our law firm represents over 100 hospitals across the country. And the nurse shortage is coming back.

Our hospitals are in need of hundreds of RNs as well as Medical Technologists and other healthcare professionals. They are looking for both US and foreign-born RNs, and they will pay all of our attorneys’ fees, USCIS filing fees and more!

We have a video and a web page for those who are interested in applying for employment and sponsorship.

If you are a foreign nurse or a medical technologist and need a job in the US and the job requires a work visa and/or green card, please do the following:

Send an e-mail message to egarcia@shusterman.com

In your message, please provide the following information:

1. Have you passed the NCLEX exam?
2. Do you have a current RN license in the US? If so, from what state(s)?
3. Have you taken and passed the IELTS or TOEFL exam?
4. Do you have a valid VisaScreen certificate?
5. Do you have any immediate family members accompanying you to the United States (spouse and children)?
6. Have you ever been petitioned by any US sponsor and hold an old priority date? If so, what is your priority date?
7. If you are present in the US, what is your current immigration status?
8. What is your RN background (area of expertise)?
9. What is your country of birth?
10. What is your country of citizenship?
11. What is your phone number?

If you are a CLS, please amend the above questions accordingly.

We will forward your response to our hospitals, and if they are interested, they will contact you. Please do not contact our law firm until after you hear from one of our hospitals.

We look forward to helping you!

10. Winner of Our February 2016 Immigration Trivia Quiz!

Quiz Removed

Below is the message we received from the winner:

1. Alfred Hitchcock (Rear Window) – Born in Leytonstone, Essex, England
2. Charlie Chaplain is director of the dictator – Born in London England
3. Federico Fellini – director of La Dolce vita – Born in Rimini, Emilia-Romagna, Italy
4. Jean-Luc Godard – director of breathless – Born in Paris, France

My name is Mr. Akins from Nigeria, 34 years old. I am a Registered Nurse living in Washington DC. I love to volunteer to help out the community. I have been a subscriber to the newsletter since Jan 2015 and I utilize the newsletter to keep updated on the immigration news in the United States. I was about to solve the quiz using google to find the names of the directors and their place of birth.

Thanks,

Mr Akins.

Congratulations, Mr. Akins! I think we came up with a great solution to your immigration dilemma!

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

“As we hear commentary on U.S. v. Texas, we must set aside partisan opinions. Remember: Human lives will be affected by the ruling. We must recognize that regardless of their immigration status, those who would benefit from DAPA and expanded DACA are our brothers and sisters, our neighbors and often our friends”

– Archbishop Wester

A member of the U.S. Conference of Catholic Bishops’ migration committee

Shusterman’s Immigration Update May 2016 – Quick Links

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May 1, 2016

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.