Volume Nine, Number Ten

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.

Subscribe to our E-Mail Newsletter, join the conversation on our Immigration Facebook Page, follow our Blog Posts and subscribe to our “How-To” Immigration Videos.

Client Reviews

Newsletter US Immigration Update October 2004

TABLE OF CONTENTS:

• 1. Employment-Based Immigration Numbers to Backlog Soon
• 2. Immigration Government Processing Times
• 3. H-1B Cap Reached for FY 2005: Strategies for Survival
• 4. Physicians: J Waivers Program Extended and Expanded
• 5. Immigration Trivia Quiz: The 2004 Election Quiz
• 6. Immigration Issues in the 2004 Presidential Election
• 7. Employment-Based Immigration: Secrets for Success
• 8. Schedule of Upcoming Immigration Law Seminars
• 9. Chat Schedule, Transcripts, Audios & Videos
• 10. Winner of the September 2004 Immigration Trivia Quiz

Client Reviews

PHYSICIAN TELECONFERENCE

On October 14th, Immigrationcafe.com, a non-profit organization, will host a major teleconference about the immigration of foreign-born physicians to the U.S. If you are an immigration attorney, a physician recruiter or a physician who is seeking immigration assistance, see Topic #3 below or, for program and registration information, proceed directly to

http://immigrationcafe.org/index.php?fuseaction=page.a207 (Link no longer operational)

NEWS FLASHES:

• 212(c) Regulations– On September 28, the Executive Office for Immigration Review (EOIR) published its final regulations detailing who is eligible and how to apply for relief from deportation/removal under section 212(c) of the law.
• Business Immigration Newsletter– Periodically, the American Immigration Lawyers Association (AILA) publishes “Connect!” a newsletter devoted to business-related immigration developments. We link to this newsletter from

  https://www.shusterman.com/toc-busimm.html (Link no longer operational.)

• Congress Research Service (CRS) Reports– The CRS is the non-partisan public policy research arm of the United States Congress. The Legislative Drafting Bureau and Reference Division, as it was originally named, was established in July 1914. The CRS provides Congress with research and objective analysis on a wide variety of topics. The CRS does not generally post its reports online. However, the Thurgood Marshall Law Library is a relatively recent resource for CRS reports which has quickly become one of the primary locations on the Web for finding CRS products. In addition to links for 400+ reports are links to other sources for CRS reports.
• California Drivers License Bill Vetoed by Governor Schwartzenegger– Although last year, Democratic legislators apparently made a deal with Governor Schwartzenegger to withdraw a bill allowing undocumented persons to obtain California drivers licenses in exchange for the passage of a compromise bill in 2004, the Governor vetoed the new bill in late September on the ground the would-be terrorists could benefit from the legislation. Democrats point to Florida where the President’s brother, Governor Jeb Bush, signed similar legislation. For more information, see

  http://www.sacbee.com/content/politics/ca/story/10842201p-11760055c.html (Link no longer operational)

• Military Naturalization– The CIS has posted information about expedited Military Naturalization online. The changes stem from amendments in the naturalization laws made by the National Defense Authorization Act for Fiscal Year 2004. Persons in the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard, certain Reserve components of the National Guard and the Selected Reserve of the Ready Reserve may apply for expedited naturalization under sections 328 or 329, INA. The filing fee is waived and the naturalizations may occur abroad. In addition, the period of service required by section 328, INA has been reduced from three years to one year. Having represented many immigrants serving in the U.S. Armed Forces, we are delighted to link to this information from our “Citizenship” page at

  https://www.shusterman.com/uscitizenship/#3

• 9/11 Bill Hijacked by Immigration Restrictionists– On October 8, the House of Representatives voted to approve H.R. 10, a bill to implement the recommendations of the 9/11 Commission. Unfortunately, the bill contains a number of anti-immigration provisions not recommended by the Commission including: (1) a broad expansion of expedited removal, (2) heightened burdens for asylum eligibility, (3) prohibition on acceptance of consular identifications, (4) restrictions on driver’s license issuance to non- citizens, (5) elimination of habeas corpus review for a variety of final removal orders, (6) new mandatory detention provisions, (7) elimination of temporary stays pending judicial review of removal orders, and (8) authorization to remove individuals to countries without functioning governments. The bill must now be reconciled with a Senate bill which does not contain these anti-immigration provisions.Since the House adjourned on October 9, the Senate-House Conference Committee will not meet to iron out differences between the two bills until after the November elections.President Bush unsuccessfully tried to dissuade the House from including the anti-immigration provisions in the bill. On October 7, the Administration issued a three-page statement which expresses certain reservations about H.R. 10. The Administration’s statement expresses, among other things, opposition to the overbroad expansion of expedited removal authorities contained in H.R. 10 as well as the overbroad alien identification standards proposed by the bill that are unrelated to security concerns. We link to the Administration’s statement from our “September 11th” page at

  https://www.shusterman.com/september11immigration.html#1

• Temporary Protected Status– The DHS published a notice in the Federal Register extending TPS designation for Sudan for a 12 month period, until 11/2/05. The 60-day re-registration period runs from 10/7/04 to 12/6/04. DHS also re-designates TPS for Sudan. The 180-day registration period began on 10/7/04 and will remain in effect until 4/5/05. Also, the DHS published a notice in the Federal Register extending TPS designation for Burundi for a 12 month period, until 11/2/05. The 60-day registration period runs from 10/7/04 to 12/6/04. See

  http://uscis.gov/graphics/publicaffairs/newsrels/TPS_Sudan_10_7_04.pdf (Link is no longer operational)

  (Sudan)

  http://www.uscis.gov/ilink/docView/FR/HTML/FR/0-0-0-1/0-0-0-94157/0-0-0-94177/0-0-0-94715.html

  (Burundi)

• Visa Lottery Instructions for Fiscal Year 2006 Announced by State Department– Once again, the State Department’s DV-2006 Visa Lottery will be conducted online.Natives of all countries except the following may apply for inclusion in DV-2006 Lottery:
  • Canada
  • China – mainland China (nationals of Hong Kong, Macau and Taiwan ARE included)
  • Colombia
  • Dominican Republic
  • El Salvador
  • Haiti
  • India
  • Jamaica
  • Mexico
  • Pakistan
  • Philippines
  • Russia
  • South Korea
  • United Kingdom (natives of Northern Ireland and Hong Kong are eligible, but natives of Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena, and the Turks and Calicos Islands are not eligible)
  • Vietnam
• Applications must be received between November 5, 2004 (noon, ET) and January 7, 2005 (noon, ET). We link to the official State Department instructions from our “Lottery” page at

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

• Washington Update– Every few weeks, the American Immigration Lawyers Association (AILA) publishes its “Washington Update” which brings readers the most up-to-date news about legislation, regulations, congressional hearings and other immigration-related developments from inside the Beltway. We link to “Washington Update” from

  https://www.shusterman.com/toc-advocacy.htm (Link is no longer operational.)

1. Employment-Based Immigration Numbers to Backlog Soon

We always display the most recent State Department Visa Bulletin on our web site at

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

We posted the November 2004 Visa Bulletin online a full week before the State Department based posted it on their page.

For the past few years, while the family-based numbers have been inching ahead, the employment-based numbers have all been “current”, no backlog. This is about to change for the worse.

The November 2004 Visa Bulletin contains the following caveat:

“During the past two years, the visa allocation system compensated for reduction in CIS visa number demand by making very rapid advances in the visa cut-off dates. As the cut-off dates advanced, tens of thousands of applicants became eligible to file for adjustment of status at CIS offices. Heavy demand was expected as CIS began to address their backlog and finalize action on such cases. The Visa Office has been alerting interested parties to this possibility over the past two years, and this is exactly what has recently begun to happen. FAMILY: As CIS demand for visa numbers continues to increase, little if any forward movement of cut-off dates is expected during FY-2005, and the potential for retrogressions in certain categories cannot be ruled out. While retrogression of certain Family cut-off dates is not likely in the immediate future, it cannot be ruled out late in the fiscal year. This is because the CIS backlog is likely to include large numbers of applicants in all categories with priority dates well before the current cut-off dates. EMPLOYMENT: The increasing CIS use of numbers is likely to require the establishment of cut-off dates in one or more categories during FY-2005. Such action is expected in the Employment Third preference category as early as January.”

In simple English, this means that the 3.5 million persons who have played by the rules established by Congress and waited in line to able to apply for permanent residence under the existing system of family and employment preferences are screwed!

The State Department is warning that the family-based numbers are unlikely to move forward and may even move backward in the coming year. Equally disturbing is that by January 2005, the employment-based numbers are expected to start developing backlogs.

If the increasing backlog in the family and employment categories were simply the result of the demand for green cards exceeding the supply, this would be completely justified. The United States admits approximately one million immigrants annually, more than any other country in the world. Anti-immigrant groups label this as “mass immigration” and call for the Congress to drastically decrease the number of immigrants. However, viewed in perspective, the numbers of legal immigrants admitted to the U.S. annually equals less than one-half of 1% of our population, not a “flood”, but more like a “trickle”. A majority of these immigrants are parents, spouses and children of U.S. citizens. The rest are close family members of U.S. citizens and permanent residents, persons with essential job skills and refugees.

The reason that the new backlogs are developing is not the result of increased demand, but because of the inability of the government to process applications for permanent residence in a timely fashion. If a U.S. employer needs the services of foreign-born professional, let’s say a surgeon in a medically-underserved area, the process of obtaining permanent residence for the physician takes between three and five years. During the 1980s and the early 1990s, the processing time for an application for adjustment of status took 90 days or less. Now, the processing time for the same application is between two and three years. Yes, since 9/11, every applicant must undergo a security check. However, these security checks usually take a few weeks, or sometimes a couple of months, not years to complete.

The simple fact is that the Immigration Service (whether you call it the INS or the CIS) is not doing its job in an efficient manner. For starters, despite huge infusions of funds into the system, too many Immigration Examiners are still working on old Windows 95 computers. More importantly, many examiners are afraid to approve benefits applications. Their thinking goes: if the Indian or Filipino surgeon mentioned above turned out to be a terrorist, what would happen to your job if you were the one who approved his application? Under this type of pressure, it is far safer to mail out Requests for Evidence (RFEs) questioning the ability of his employer to pay his salary, the surgeon’s qualifications, etc., etc. Finally, the government has done everything in its power to make the examiners at the CIS Service Centers as inaccessible as possible. Try calling them, faxing them or e-mailing them. All in all, the present system is a disaster.

The Yearbook is a 218-page document, densely packed with statistics, so if you suffer from insomnia, I highly recommend that you read it just before bedtime

However, for those of our readers with a little less time on their hands, we direct your attention to page 19, Table A – Immigrants Admitted by Major Category of Admission, Fiscal Years 2001-2003. This table shows that the number of persons obtaining permanent residence in the U.S. fell by 30% between 2001 and 2003. There was a huge decrease in the number of applications for adjustment of status which were approved by the INS/CIS which fell from over 650,000 to less than 350,000. The decrease in the number of approvals in the employment-based categories was particularly striking, falling from almost 180,000 in 2001 to just over 82,000 in 2003.

However, isn’t the CIS reducing, or as DHS Secretary Ridge likes to say “eliminating”, their backlogs by 2006? Time will tell. But the family and employment-based numbers that were lost in the last couple of years can never be recaptured even if Secretary Ridge’s optimistic forecasts pan out.

The bottom line is that the U.S. economy stands to lose thousands of needed professionals, like the surgeon in the medically-underserved area, and family members will continue to endure separations of more than 20 years unless Congress steps up to the plate and changes the law.

2. 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…

3. H-1B Cap Reached for FY 2005: Strategies for Survival

This past year, the numerical cap on H-1B workers fell from 195,000 to 65,000. The cap was reached in mid-February, less than halfway into the fiscal year. For more information, see our “H-1B Page” at

https://www.shusterman.com/h1bvisaguide.html#3

On April 1, 2004, the CIS started to accept H-1B petitions for jobs with start dates of October 1, 2004. Not surprisingly, given the improved economy, the number of receipts of H-1B petitions subject to the cap has been averaging about 10,000 per month. Do the math: 10,000 per month times six months means that CIS had probably received about 60,000 petitions by the start of the new fiscal year. With only 5,000 numbers remaining plus a one-time release of the 6,800 numbers reserved in free trade agreements for citizens of Chile and Singapore, no H-1B petitions subject to the cap will be accepted by the CIS sometime after late October or early November.

This represents an 11-month blackout period for H-1B visas. Of course, not all H-1B petitions are subject to the cap.

What’s an employer in need of H-1B workers, or a potential H-1B worker, to do?

Remember, persons in H-1B status who are seeking extensions of stay or changing employers are generally exempt from the cap. So are persons whose employers are university-affiliated or university-related nonprofit institutions, or government or non-profit research institutions. Though the cap was reached only 10 days ago, we had encountered this situation not once, but twice. The human resources manager of a hospital called us because one of their pharmacists who is currently employed on F-1 student optional practical training was about to run out of status. Could they use premium processing to change her status to H-1B? No, but if the hospital were affiliated with a university, they could change her status to H-1B and save the $1,000 premium processing fee. After a little research, it turned that the hospital was, indeed, affiliated with a university. The pharmacist got her H-1B and the hospital saved $1,000 in filing fees. Same scenario for a physician who received a job offer for what turned out to be a university-related clinic.

You may also want to refer to the article in our September 2004 newsletter entitled “Immigration Legislation: E-Mail Congress and the Media” and ask your elected representatives to raise (or eliminate) the H-1B cap. There is a pending bill to exempt up to 20,000 foreign-born, U.S.-educated persons with graduate degrees from the cap.

4. Physicians: J Waivers Program Extended and Expanded

During the past two week, the House of Representatives (H.R.4453) and the Senate Judiciary Committee (S. 2302) have passed legislation which would substantially benefit foreign-born physicians seeking J waivers. Among the significant provisions contained in the legislation are the following:

• The Conrad State 30 Program will be extended for another two years.
• Physicians who receive J waivers through Interested Government Agencies (IGA) waivers will be explicitly exempted from the H-1B numerical cap.
• Federal, as well as state, agencies may sponsor physicians who are specialists as well as primary care doctors.
• Conrad 30 Programs may sponsor a maximum of five physicians who do not practice in HPSAs/MUAs if they serve patients who reside in MPSAs/MUAs. Federal Programs may also sponsor physicians who do not practice in HPSAs/MUAs if they serve patients who reside in MPSAs/MUAs.

Unfortunately, as of today, the bill has yet to be voted upon by the Senate. We will inform our readers via our “News Ticker” as soon as the Senate takes action on this bill.

5. Immigration Trivia Quiz: The 2004 Election Quiz

Quiz Removed

6. Immigration Issues in the 2004 Presidential Election

Why doesn’t sensible and popular immigration reform legislation (the SOLVE Act, the DREAM Act, the AgJobs Act, etc.) ever become law?

Could it be because immigrants cannot vote?

This is exacerbated by the fact that employers and family members who sponsor immigrants don’t always hold their elected representatives accountable for their votes on immigration bills.

Granted, reforms in the legal immigration system are not as politically sexy as the war in Iraq and the economy, not to mention the Scott Peterson trial or Britney Spears’ latest marriage.

Still, both the legal (and the illegal) immigration areas should be certified by the President as “disaster areas” just as hurricane-ravaged areas in Florida. But where are the votes in doing this?

At the beginning of 2004, President Bush proposed an ambitious “jobs for willing workers” immigration reform plan. In response, he took so much heat, mostly from members of his own party, that he never even prevailed upon a friendly Senator or Representative to introduce a bill embodying his proposal in Congress. When, the bipartisan AgJobs bill which had over 60 sponsors was about to come up for a vote in the Senate, President Bush quietly asked Senate Majority Leader Bill Frist (R-TN) not to allow a vote on the bill. More recently, an anti-immigrant organization noticed that President Bush’s immigration speech in January was missing on the English- language version of his web page, but was posted on the Spanish-language version of the page. Oh my, what an unfortunate oversight, said his spokesman who then added a copy of the speech to the English-language site.

One would think that the pro-business Republicans, in control of both Congress and the Presidency, would have passed legislation benefiting employment-based immigration. How about raising the H-1B cap? Or restoring a temporary visa category for registered nurses to assist beleaguered hospitals and patients?

John Kerry and the Democrats have, to their credit, introduced a number of far-reaching immigration reform proposals including the SOLVE Act which would fix a number of problems in this broken system. But since they lack the votes to get anything passed in Congress, their proposals are mostly symbolic. And the unions, their traditional supporters, continue to oppose raising the H-1B cap and any “guest worker” programs for nurses or any other needed profession.

With the 2004 elections around the corner, we have created a web page entitled “Presidential Elections – 2004” at

https://www.shusterman.com/toc-elections04.html (Link is no longer operational.)

which links to both the Bush and Kerry positions on immigration issues, the Republican and Democratic National Committees, the Congressional Immigration Reform Caucus (anti-immigration, consisting of 68 Republicans and 3 Democrats), the Congressional Hispanic Caucus (pro-immigration, consisting of 20 Democrats) and a variety of new organizations (New York Times, NPR, MSNBC and YAHOO!).

Be informed before you cast your ballot!

7. Employment-Based Immigration: Secrets for Success

As a continuing feature, we summarize recent cases successfully handled by our law firm involving employment-based temporary visas and green cards:

* Dr. T’s Exceptional Hardship

Dr. T, a Guatemalan national, is a successful Vascular Surgeon with a promising career in the U.S. He had one problem, however: as a physician in J-1 status, Dr. T would have to practice for three years in an underserved area to fulfill his J-1 visa requirements – a condition which would have been extremely detrimental to his career – or return to Guatemala for two years.

Therefore, we applied for a J-1 exceptional hardship waiver on Dr. T’s behalf. Our argument was multi-layered: relying on published reports concerning corruption throughout Guatemala’s government and health care system, we demonstrated the dangers the doctor would face if forced to return to his native country. Dr. T’s wife, a registered nurse, would have been a victim of Guatemala’s limited health care system if she were forced to move to that country. Additionally, she spoke no Spanish, and was responsible for the care of her elderly mother who had been diagnosed with cancer. Finally, Dr. T’s two U.S. citizen children both suffered from debilitating speech impediments and would have been unable to receive proper treatment for their condition were they to be forced to relocate to Guatemala.

We are delighted to report that the Immigration Service granted Dr. T a J-1 exceptional hardship waiver, and currently practices medicine as a person of Extraordinary Ability in O-1 status. We have recently submitted Dr. T’s Application for Adjustment of Status based on his citizen spouse.

* Mr. O’s Son

Mr. O, a Mexican national and green cardholder came to us with the following problem: his son was about to turn 21, and therefore lose his eligibility to gain permanent residency anytime in the near future based on his father’s permanent resident status. Mr. O’s son fell into the 2A preference category, which for Mexican nationals at the time was backlogged nearly 10 years.

We observed, however, that Mr. O’s wife, the stepmother of his son, was a national from El Salvador with a pending green card application. Since the waiting times from El Salvador are far shorter than from Mexico, we opted to utilize the “alternate chargeability” rules contained in section 202(b) of the Immigration and Nationality Act. We sent a request for the CIS to expedite Mr. O’s wife’s permanent residency interview and she was able to adjust her status shortly before her stepson’s birthday. Thanks to the quick thinking of my staff, Mr. O’s wife obtained her green card just in time to provide her stepson a green card as an immediate relative.

For more information regarding how to obtain permanent residence through employment, see our “Green Card” page at

https://www.shusterman.com/greencards/#3

8. Schedule of Upcoming Immigration Law Seminars

• October 25-26
  San Francisco, California
  Practising Law Institute
  37th Annual Immigration and Naturalization Institute
  My Topic will be “Current Issues in Naturalization and Citizenship.”

• November 4-5
  Scottsdale, Arizona
  The American Organization of Nurse Executives (AONE)
  “Getting It Right: Foreign-Educated Nurse Recruitment”- I am honored to have been selected to be the keynote speaker of the conference.

• May 9-10, 2005
  Las Vegas, Nevada
  Physician Recruitment Conference

9. Chat Schedule, Transcripts, Audios & Videos

Deleted

10. Winner of the September 2004 Immigration Trivia Quiz

Quiz Removed

Here is the message that we received from the winner:

Dear Mr. Shusterman,

1. Zubin Mehta – born in Bombay, India – Is the Music Director of the New York Philharmonic Orchestra and a conductor. He has many recordings.

2. Irving Berlin – born in Eastern Russia – a famous hit of his was “Alexander’s Ragtime Band”.

3. John Lennon – born in Liverpool, England – One of his most famous songs is “Imagine”.

I am a paralegal and use your site for immigration updates.

Dawn Ona
Seattle, Washington

Editor’s Note: Dawn, your knowledge of Zubin Mehta and classical music is truly encyclopedic!

Not to shortchange Mr. Berlin and Mr. Lennon, here is a brief biography of each of these singer/songwriters:

Irving Berlin, born “Israel Baline” in Mogilyov, Russia, immigrated to America at the age of five. Although he could not read a note of music, he composed some of the most popular and enduring songs of the 20th century including “God Bless America”, “There’s No Business like Show Business”, “(I’ll Be Loving You) Always”, “Cheek to Cheek”, “Blue Skies”, “Puttin’ on the Ritz” and “Let’s Face the Music and Dance”. Although he was Jewish, he also penned such classics as “White Christmas” and “Easter Parade”. Someone once asked Jerome Kern, himself a brilliant composer, about Irving Berlin’s place in American music. Kern replied: “His place in American music? Irving Berlin is American music.”

John Lennon, born in Liverpool, England, also could not read music. As some of our more elderly readers may still remember, Mr. Lennon was a member of a rock group during the 1960s known as the “Beatles”. Together with fellow Beatle, Paul McCartney, Mr. Lennon composed such rock classics as “I Want to Hold Your Hand”, “She Loves You”, “Eleanor Rigby”, “Revolution”, “Back in the U.S.S.R.” and “The Long and Winding Road”. Lennon and McCartney also collaborated on the groundbreaking album “Sergeant Pepper’s Lonely Hearts Club Band”. Despite his enormous contributions to American music and culture, the INS spent a great many years, and dollars, trying to deport him for a marijuana conviction in Great Britain. However, Mr. Lennon eventually prevailed (Thanks to his immigration attorney, the legendary Leon Wildes.) and was permitted to remain in the U.S. See

https://www.shusterman.com/newsletterusimmigrationmarch2000.html#10

Mr. Lennon, now deceased, would have turned 64 this week: “Will you still need me, will you still feed me when I’m 64?” is one of the most familiar Lennon-McCartney lyrics.

October 11, 2004

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

People are any nation’s greatest resource, and the United States has been greatly enriched by the contributions of those who, though not born here, have pledged their lives, allegiance, and human capabilities to building this nation.

– Representative Lamar Smith (1997)

Newsletter US Immigration Update October 2004 – Quick Links

About Us
Back Issues of Our Newsletter
Citizenship
Client Testimonials
Forms Download
Green Cards
Job Search
PERM
Processing Times
Schedule a Legal Consultation
Subscribe to Our Newsletter
Success Stories
Temporary Visas
Visa Bulletin