Volume Ten, Number Twelve

Shusterman’s Newsletter US Immigration December 2005 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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Newsletter US Immigration December 2005

TABLE OF CONTENTS:

1. President Bush on Immigration: A Delicate Balancing Act 2. Official Immigration Government Processing Times
2. Physicians: Oral Argument before Federal Appeals Court (12/5/05)
3. Success Story: How to Demonstrate Extraordinary Ability
4. Immigration Trivia Quiz: From a Place Far, Far Away
5. Recapture of Time for Persons in H-1B and L-1 Status
6. Two Important Decisions re: the 180-Day Portability Rule
7. Videos of Recent Immigration Law Seminars
8. Chat Schedule, Transcripts, Audios & Videos
9. Winner of the November 2005 Immigration Trivia Quiz

There will be no January 2006 issue of SHUSTERMAN’S IMMIGRATION UPDATE. We will be enjoying ourselves traveling in Asia!

NEWS FLASHES:

• Backlog Elimination Center Chart– The Labor Department has released a chart which shows on a state-by-state basis when certain applications for labor certifications were transferred to Backlog Elimination Centers. We have posted the chart online on our “Department of Labor” page at

  https://www.shusterman.com/departmentoflaborusimmigration.html#4

• Computer Company Agrees to Pay $2.65 Million in Back Pay, Fines for Immigration Violations– The Department of Labor has a strong enforcement policy against companies who sponsor H-1B workers, and fail to pay them at the prevailing wage. Read about one company who played fast and loose with the rules, and ended up paying $2.25 million in back pay to its workers, $400,000 in fines to the government and is banned from participating in the H-1B program for the next 18 months. We link to the DOL news release at

  https://www.shusterman.com/departmentoflaborusimmigration.html#5

• DREAM Act Reintroduced in Senate– On November 18, the Development, Relief, and Education Act for Minors (DREAM Act) was again introduced by a bipartisan coalition of Senators as S.2075. If passed by Congress and enacted into law, the DREAM Act would provide an expedited way for certain undocumented university graduates and others to obtain permanent residence in the United States.

• EB Numbers and H-1Bs – This month, Senate and House Conferees will meet to iron out a bill which may more than double the number of EB visas and add 30,000 extra H-1B visas annually. These amendments are included in the Senate version of the bill, but do not appear in the House version. Stay tuned!

• Nurses – Despite the ever-increasing shortage of registered nurses at U.S. hospitals, the number of new graduate nurses from U.S. schools barely matches the number of RNs who are retiring. In California, which has one of the lowest per-capita rates of RNs to patients, the waiting lists to enroll in nursing schools are large and growing. During the 1990s, all nine University of California schools disinued their undergraduate nursing programs. So did USC. Now, the Los Angeles Times reports that the times may be a’changing. UCLA will reinstate its undergraduate RN program next fall, and UC Irvine may be close behind. Unfortunately, the CIS is continuing its zero tolerance RN denial program. RNs whose I-485s are denied because of complex new prevailing wage and posting requirements are being told to go home. There is no second chance for much-needed nurses to adjust their status. RNs who lack a VisaScreen certificate are being told that CIS is legally prohibited from granting them extensions to pass English examinations. We think that the agency needs to get its priorities in order and stop targeting hospitals and nurses.

• Report: An Assessment of the Proposal to Merge CBP and ICE– In November 2005, the DHS’s Office of the Inspector General released a 175-page report evaluating whether the Customs and Border Protection (CBP) and Immigration and Citizenship Enforcement (ICE) should be merged. CBP has authority over immigration enforcement at U.S. borders while ICE is in charge of immigration enforcement in the interior of the U.S. Prior to the creation of the Department of Homeland Security (DHS) on November 25, 2002, immigration enforcement duties were combined in one agency, the Immigration and Naturalization Service (INS). The report found growing antagonism and a lack of coordination between the CBP and ICE. Many members of Congress favor the merger of the two agencies. We link to the Inspector General’s report from our “DHS” page at

  https://www.shusterman.com/departmentofhomelandsecurity

• Refugees– Each year, the President determines the number of refugees who will be allowed to settle in the U.S. During the 1990s, the number usually exceeded 100,000. After September 11, 2001, the number of refugees admitted to the U.S. fell drastically, and has never reached 100,000 since then. On October 24, 2005, President Bush announced that in fiscal year 2006, only 70,000 refugees would be admitted to the U.S. We link to President Bush’s memorandum on this subject to Secretary of State Rice from our “Asylum” page at

  https://www.shusterman.com/asylumusimmigration/#1

1. President Bush on Immigration: A Delicate Balancing Act

Pity our poor President! Attacked for getting us into the war in Iraq and for turning a budget surplus into the largest deficit in history, the President is trying to find an issue which will unite his own party, if not all America. And what has he chosen, but immigration.

On November 28, he made speeches in Texas and Arizona calling for a tougher border enforcement policy, or as he put it, ending the “catch and release” policy and instituting a “catch and return” policy. Keep increasing the size of the Border Patrol (to about 12,500), the number of detention beds, and use technology to deport illegal aliens. This kind of talk is calculated to throw “red meat” to the rabid anti-immigrant wing of his own party.

But as a former INS prosecutor in the early 1980s, I have seen the last four Presidents increase the size of the Border Patrol, increase the number of detention beds, etc., etc. The result: over the past 25 years, we have over 10 million undocumented (or illegal, call them what you will) persons in this country. Clearly, doubling or tripling the Border Patrol has little effect on the number of people from poor countries, eager to work in the U.S., and ready to come to the U.S., legally or illegally.

The President realizes this and proclaims that in order to make the border truly secure, we need a “guest worker” program. This type of talk is music to the ears of the business community who are concerned about having enough workers to make our economy run. And it may help bring some Hispanics, our country’s fastest growing group of voters into the Republican Party. And, by the way, the President wants to change the immigration laws (Though he doesn’t say how…), but mind you, he is against an amnesty!

The guest workers will only be able to stay in the U.S. for a few years, and then leave. I must say that this sounds a bit unrealistic to me. Once a worker is finally able to live a decent life and feed his family, what would make him give all this up, and return to the poverty of his native country?

To return to reality, if just briefly, what if the guest worker program allowed it’s participants to seek green cards if they paid their taxes, did not commit criminal acts and learned English? Isn’t this what made our country great in the first place?

But I digress. The devil will be in the details, and the details will emerge during the legislative process next year.

2. Official Immigration Government Processing Times

* Citizenship and Immigration Services (CIS)

The Immigration Service (CIS) lists its processing times for immigration petitions and applications on their web site.

Most immigration applications and petitions must be submitted to one of the following USCIS Service Centers: (1) Laguna Niguel, California; (2) Lincoln, Nebraska; (3) Mesquite, Texas; and (4) St. Albans, Vermont and (5) the National Benefits Center in Missouri.

These service centers periodically issue lists of their processing times for various types of petitions and applications. We link to the latest list issued by each service center.

Warning: Processing times may appear faster on the official lists than they are in reality.

Administrative appeals of most types of petitions denied by the USCIS are adjudicated by the agency’s Administrative Appeals Office (AAO) in Washington, DC.

The AAO’s most recent published processing times (August 25, 2005) may be found at

https://www.shusterman.com/pdf/administrativeappealsofficeprocessingtimes.pdf

3. Physicians: Oral Argument before Federal Appeals Court (12/5/05)

We are nearing a resolution of our lawsuit challenging INS regulations which misinterpreted a 1999 law which granted physicians practicing in medically- underserved areas the right to obtain permanent residence through National Interest Waivers (NIWs).

On December 5, the U.S. Court of Appeals for the 9th Circuit has scheduled oral arguments in which I will participate. The panel which will hear the case consists of three excellent judges: Pregerson, Noonan and Thomas.

Among the many portions of the regulation which we are challenging are the following:

1. The law provides that NIWs will be available to “all” alien physicians who comply with the law. The INS regulations limit the benefits of the law to primary care physicians, and deny benefits to specialists practicing in underserved areas.
2. The law provides that physicians must agree to practice in underserved areas for an “aggregate of five years”. The regulations establish various start dates designating when the five years begins to accrue. For example, if a physician receives a J waiver, the five years starts when the physician changes status from J to H-1B. Any time that the physician practices in an underserved area prior to the J waiver being granted (e.g., in O-1 status) is not counted. Physicians who have completed their medical residencies and/or fellowships in H-1B status are particularly disfavored. Their five- year medical service requirement does not begin until they have submitted their NIW petitions, and the petitions have been approved by the CIS.
3. The law provides that physicians who were beneficiaries of NIW petitions submitted to the CIS prior to November 1, 1998 are required to complete three (rather than five) years of practice in a medically underserved area. The regulations, however, limit this benefit to physicians whose NIW petitions were still pending on November 12, 1999, the date on which the law was enacted.

Scheduling oral arguments usually means that the Court believes that there are serious legal questions raised by the lawsuit. Assuming that this is true here, we certainly agree with the Federal Appeals Court.

We are looking forward to a holding which would benefit not only our plaintiff physicians, but thousands of foreign-born physicians practicing across the United States.

To view all pleadings which have been submitted in this case, please see our “Physicians” page at

https://www.shusterman.com/physiciansusimmigration.html#3

4. Success Story: How to Demonstrate Extraordinary Ability

The Wall Street Journal ran a front-story article featuring our firm and our handling of a number of Extraordinary Ability green card cases on behalf of professional skateboarders. The article specifically discussed our success in representing Lincoln Ueda, a top-ranked “vert” (vertical) skateboarder from Brazil.

We were pleased and honored to have assisted Mr. Ueda in attaining lawful permanent residence in the United States. However, he represents only one of many professional skateboarding cases we currently handle, some of which have been more challenging than the one featured in the Wall Street Journal article.

Take Mr. R, for example. A British national, Mr. R was considered one of the most daring and talented professional skateboarders in the world. He both won and placed highly in many international competitions, and had been nominated “Skateboarder of the Year” by a prominent skateboarding-related magazine.

His accomplishments were such that he earned the sponsorship of multiple clothing and skateboard equipment companies, and was even featured as a character in a series of skateboarding video games. In short, Mr. R’s success enabled him to retire from competition in order to devote his time to performing in professional showcases and participating in his multiple-endorsement advertising campaigns.

Mr. R’s case was what we sometimes refer to as a “slam dunk”: because Mr. R clearly exceeded the requirements for classification as a person of extraordinary ability, we expected quick and easy immigrant visa approval. To our surprise however, we encountered considerable resistance from the Immigration Service in the form of a lengthy Request for Evidence.

Read more…

5. Immigration Trivia Quiz:

Quiz Removed.

6. Recapture of Time for Persons in H-1B and L-1 Status

Generally, U.S. immigration laws limit the amount of time that a person may remain in the United States in H-1B status to six years. As we have detailed in prior newsletters, two separate sections of AC-21 (The American Competitiveness Act in the 21st Century of 2000), provide for post-6th year extensions of H-1B status under certain circumstances.

Similarly, persons may remain in the U.S. in L-1A (executives and managers) status for seven years and in L-1B (specialized knowledge) status for five years.

Questions arise when a person in H-1B or L-1 departs the U.S. for either personal or business reasons: Does this time spent outside the U.S. count toward the 5, 6 or 7 year period? Or can it be “recaptured” thereby allowing the person to extend his status in the U.S. beyond these time periods? The applicable CIS regulation, 8 CFR §214.2(h)(13)(iii) states: “An H-1B alien in a specialty occupation or an alien of distinguished merit and ability who has spent six years in the United States under section 101(a)(15) (H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under section 101(a)(15) (H) or (L) of the Act unless the alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year.”

This regulation would seem to indicate that any time spent outside the U.S. does not count against the statutory maximum. However, the CIS has instead followed a rule which requires that the time spent outside the U.S. be “meaningfully interruptive” of the person’s stay in the U.S. in order for a person to recapture this time in order to seek an extension of stay.

The “meaningfully interruptive” standard, which is derived from old court cases which interpreted “continuous physical presence” for purposes of suspension of deportation, is quite subjective. When I was an INS Trial Attorney in the early 1980s, cases with similar facts were approved or denied depending upon whether a particular judge thought that a person’s absence from the U.S. was “meaningfully interruptive” of his continuous physical presence in the U.S. This subjectivity caused Congress to eliminate this test in 1996.

Unfortunately, this vague standard gained new life after the enactment of AC-21 in 2000. Employers and employees would apply to the CIS to “recapture” time spent abroad in an effort to obtain extensions of stay. One immigration examiner would grant an extension while another would deny an extension on the exact same facts! This was clearly a policy which made no sense for either the government or for U.S. employers attempting to comply with the law.

Fortunately, the “meaningfully interruptive” test has recently been relegated to the dust bin of history thanks to the Acting CIS Deputy Director Robert Divine. Mr. Divine had the CIS “adopt” a decision of its Administrative Appeals Office (AAO) which provides that if a person in H-1B or L-1 status is outside the U.S. for even a day, for whatever reason, this period of time may be recaptured, and the person’s status in the U.S. may be extended.

On October 21, the new CIS policy was spelled out in detail in a nine-page memo by Michael Aytes, CIS’ Acting Associate Director for Domestic Operations. In brief, the Aytes memo states that

• Any absence of 24 hours or more may be recaptured
• A request for recapture of time must be supported by independent documentary evidence (e.g., passport stamps, I-94s, plane tickets, etc.) and should contain a chart of the person’s absences from the U.S. and a statement requesting recapture. The burden of the proof is on the petitioning employer.
• H-4 and L-2 dependents may be granted extensions of stay to the same date as granted to the principal applicant.

7. Two Important Decisions re: the 180-Day Portability Rule

In the CIS’ second “adopted” decision (See Topic #6), the CIS held that 180- portabililty is not possible where the I-140 immigrant visa petition is ultimately denied.

180-day portability is based on Section 106(c) of AC-21 which amends section 204, INA as follows:

“(j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE- A petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.”

The question arises as to the proper interpretation of the phrase “shall remain valid”. Although there is clearly no requirement that an employee wait until the I-140 is approved or that the I-485 is pending more than 180 days before changing jobs, he does so at his own risk. Should the I-140 ultimately be denied, he loses his ability to “port” to the new job and his I-485 will be denied.

If you decide to change jobs before the approval of the I-140, we strongly recommend that you continue to maintain valid nonimmigrant status. This way, if the I-140 is denied, your immigration status in the U.S. will still be lawful.

In a related development, on October 28, 2005, the Board of Immigration Appeals (BIA) held, In re Minor Humberto PEREZ VARGAS (23 I&N Dec. 285) that Immigration Judges have no authority to determine whether the validity of an alien’s approved employment-based visa petition is preserved under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. 1154(j), after the alien’s change in jobs or employers.

Here, the alien was the beneficiary of an approved I-140 immigrant visa petition whose I-485 was not adjudicated within 180 days and change employers. The Board held that the Judge had no jurisdiction to under section 204(j), the 180-day portability rule because Judges have no jurisdiction over the adjudication of visa petitions.

However, there is no question that an Immigration Judge has jurisdiction over applications for adjustment of status where the CIS has approved the visa petition. Since the visa petition was approved in this case, it is not clear to us that deciding whether the beneficiary properly ported is not a question related to the adjudication of the application for adjustment of status. Perhaps only the CIS has the expertise to decide whether the new job is in the same or similar occupation as the one for which the visa petition was approved. However, we are not convinced that an Immigration Judge lacks the expertise to decide such matters.

Ultimately, the Federal Appellate Courts may decide whether this case was decided correctly.

8. Videos of Recent Immigration Law Seminars

While immigration attorneys read many of hours of immigration laws, regulations, court and administrative decisions and agency memos each week, we realize our subscribers are not necessarily interested in doing the same. If you were, you probably would have become an immigration attorney rather than a physician, nurse, scientist, business or computer professional, etc.

That is why, several years ago, we started adding audios, videos and web casts to our site. This way, instead of reading text, you can listen and see what’s new in immigration law. We have posted online videos of President Bush’s speech about his guest worker proposal, my testimony before the Senate and videos of a seminar that I gave at the invitation of medical residents in New York. In addition, we link to web casts of Senate and House committee hearings on immigration topics.

We have also posted a number of audios explaining how to obtain a temporary working visa, a green card, U.S. citizenship, etc. as well as a page linking to National Public Radio audios about dozens of immigration topics.

Each year, I participate in a two-day seminar for immigration attorneys and paralegals sponsored by the University of Texas Law School in San Antonio. My topic was “An Immigration Lawyer’s Guide to Factual and Legal Research of the Web”. This year’s seminar was particularly useful. Robert Mautino spoke about “Naturalization” and “Derivative Citizenship”. Other speakers covered topics ranging from employment-based immigration to deportation defense.

The Law School videotaped each of our presentations, and is offering them for sale. The videos are very professional and informative.

9. Chat Schedule, Transcripts, Audios & Videos

Deleted

10. Winner of our November 2005 Immigration Trivia Quiz

Quiz Removed.

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California, 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

December 1, 2005

A deportation may result in “loss of both property and life; or all that makes life worth living.” Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)

– Supreme Court of the United States

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