Newsletter US Immigration Update April 2000
Volume Five, Number Four
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.
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Newsletter US Immigration Update April 2000
Guest Contributors:
This month, Topic #8 was written by Maurice Belanger, Senior Policy Analyst for the National Immigration Forum. Based in Washington, D.C., and established in 1982, the Forum has distinguished itself as one of the nation’s foremost authorities on immigration. The Forum defends legal immigration, fights anti-immigrant prejudice and preserves the American tradition of diversity. For more information about the National Immigration Forum, see
Topic #9 was written by Traci Hong, Staff Attorney for the American Immigration Law Foundation (AILF). AILF is a foundation which was established to promote public understanding of immigration law and policy through education, policy analysis and support to litigators. For more information about AILF, see
http://www.ailf.org
Newsletter US Immigration April 2000
Table of Contents
- AILA Treasurer – Wouldn’t it be great if at least one of the officers of the American Immigration Lawyers Association (AILA) was an immigrant, one who had personally experienced the threat of deportation and the agony of a lost file? Of course, but he or she would also have to be exceptionally qualified for the job. Well, there is such a candidate and her name is Ellen Ma Lee. For more information, see
https://www.shusterman.com/ellen.html (No longer an active link)
- Adjustment of Status for Persons in H/L Status – On June 1, 1999, the INS issued regulations allowing persons in H and L status to remain nonimmigrants after they have applied for adjustment of status. These regulations have created confusion and have provided more questions than answers. Some of those questions are answered in INS’s latest memorandum. See
https://www.shusterman.com/245hl-300.html (Link no longer operational)
However, we understand that this latest memo did not get it quite right. Therefore, the INS will be issuing another memo to clarify this memo ;-)
- Amnesty – The Clinton Administration announced its support for what was termed a “mini-amnesty” by Frank Sharry, the Executive Director of the National Immigration Forum. Specifically, the administration is supporting a pending bill, H.R.4172, which would advance the “registry” date from 1972 to 1986. This would permit over 500,000 persons who have resided in the U.S. for 14 years or more to legalize their status. The last time that the registry date changed was in 1986 when it was changed from 1948 to 1972. For a short explanation regarding registry, see
https://www.shusterman.com/howtoavoiddeportationremoval.html
- Deportation:The minutes of the March 30 liaison meeting between AILA and EOIR are online. See
https://www.shusterman.com/deportationdefense.html
and scroll down to “Minutes of EOIR-AILA Liaison Meeting (3-30-00)”.
- Detention – The U.S. Court of Appeals for the Ninth Circuit held that the INS may not detain aliens for more than a “reasonable” time past the statutory 90-day removal period. The court decided the case on statutory rather than constitutional grounds. Two other appeals courts, one in Denver and the other in New Orleans have approved the INS’s indefinite detention policy. The 9th Circuit’s decision, which could potentially affect thousands of detained persons, is expected to be resolved by the Supreme Court.
- Expungements – The BIA, in Matter of Roldan, held that an expunged criminal conviction could be the basis for a person’s deportation. See
https://www.shusterman.com/newsletterusimmigrationapril1999.html#8
On March 16, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments in the Roldan case, and from the questions that were posed to the attorneys, it appears that Matter of Roldan may soon be history!
- Human Resource Managers – Want to participate in a discussion about various areas of immigration law? Carl Shusterman has been selected by Legal Elite Online, LLC to answer questions about immigration law on a quarterly basis. His first topic is “Compliance with Immigration Employer Sanctions Laws” from April 28 to May 5. For more information, see
https://www.shusterman.com/legalelite.html (Link is no longer operational.)
- J Waivers – The State Department’s revised procedures and change of address for waivers of the two-year home residency requirement for certain J exchange visitors became effective on March 31, 2000. See
https://www.shusterman.com/jwvr300.html (Link no longer operational)
- LCA-Faxback – On April 10, the new LCA Faxback number in Philadelphia was changed to (215) 861-5266.
- Nurses & NAFTA – The American Hospital Association (AHA) urged the Commerce Department to resist efforts to limit the entry of registered nurses into the U.S. under North American Free Trade Agreement provisions. R.N.s are among the professionals allowed temporary entry under NAFTA, but Commerce has come under pressure to remove the nurses from that list. In a letter to Tamara Underwood, director of the Trade Advisory Center, AHA Executive Vice President Rick Pollack said a 1999 study reported a nursing shortage that is only going to get worse. He pointed to the conclusions of a Harvard Research Institute report that there are not enough nurses in the workforce or in the educational pipeline to replace those retiring, that the demand for nurses will increase, and that nursing school enrollment declined 20.9% from 1995 to 1998. “At a time when the labor market is tight, and where demographics suggest that we will need more registered nurses to provide patient care in the future, it would be misguided to adopt a policy curtailing the free flow of nursing professionals in the United States pursuant to NAFTA,” he said. (Source: AHA News)
- Racial Profiling – On April 11, the U.S. Court of Appeals for the 9th Circuit voted 7-4 that Border Patrol agents may not consider a person’s “Hispanic appearance” in deciding whether to stop motorists for questioning near the border between the U.S. and Mexico. The court stated that “stops based on race or ethnic appearance send the underlying message to all our citizens that those who are not white are judged by the color of their skin alone.”
- TPS – Angola – The Attorney has granted TPS to Angola until March 29, 2001. Guinea-Bissau: TPS for persons born in Guinea-Bissau will not be extended past September 10, 2000. In order to apply for this final six-month extension, applications must be submitted by April 19, 2000. Applicants must submit forms I-821 and I-765 to the INS.
1. April 2000 State Department Visa Bulletin:
On March 10, 2000, we posted the April 2000 Visa Bulletin, before the State Department posted the dates on their web site.
For the Family categories, the priority dates continue to creep forward at a snail’s pace. Worldwide numbers move forward from one to five weeks. India 4th advances one week while the Philippine 4th (brothers and sisters of U.S. citizens) is still lingering back in 1979, a wait of over 20 years!
The Employment categories have all been Current (with the exception of the unskilled worker category which advances three months to June 1, 1994) since August 1, 1999 due to the INS’s failure to approve applications for adjustment of status in significant numbers.
However, starting April 1, 2000, the EB2 and EB3 categories for persons born in India will backlog to January 1, 1999 and January 1, 1997, respectively. Though we won’t obtain the numbers for mainland China until Monday at the earliest, expect the EB numbers for China to regress significantly. According to the State Department’s Charles Oppenheim, the regressions came about because the INS started approving I-485’s in mass quantities during the past few weeks.
The April Visa Numbers (partial listing) can be found at
https://www.shusterman.com/statedepartmentvisabulletin/
For an explanation of what the categories, dates and symbols listed below mean, see
https://www.shusterman.com/greencardsthroughrelatives.html
and
https://www.shusterman.com/greencardsthroughemployment/
For the State Department’s official version, complete with information about the movement of family, employment and lottery numbers, wait a couple of days and then see http://travel.state.gov/visa_bulletin.html (Link is no longer operational.)
On April 14, 2000, we posted the May 2000 Visa Bulletin the same day that the State Department posted the dates on their web site.
For the Family categories, the priority dates continue to creep slowly forward. Worldwide numbers advanced from one to four weeks. India 4th moved ahead fours weeks while the Philippine 4th (brothers and sisters of U.S. citizens) remains frozen at August 1, 1979, a wait of over 20 years!
The Employment categories for persons born in mainland did not move. Some had expect them to regress. The Indian EB-2 and EB-3 categories moved forward three months and one month, respectively.
The numbers for unskilled workers advanced two months to June 1, 1994.
For an explanation of what the categories, dates and symbols listed below mean, see
https://www.shusterman.com/greencardsthroughrelatives.html
and
https://www.shusterman.com/greencardsthroughemployment/
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.
3. H-1B Update: Cap Reached, Overcount Confirmed, Legislation
Much has occurred on the H-1B front since our last newsletter.
Significantly, on March 21, INS announced that the 115,000 numerical cap has been reached and explained by means of a regulation what this means to pending petitions, to petitions submitted after that date, and extended the duration of status of F-1 students and J-1 exchange visitors applying to change their status to H-1B. see
https://www.shusterman.com/hcapreg00.html (Link no longer operational)
You can also read INS’s “Fiscal Year 2000 H-1B Cap FAQ” at
https://www.shusterman.com/h1bcapfaq.html (Link no longer operational)
Then, on April 6, the INS issued its long-awaited KPMG audit confirming that the agency had indeed approved more H-1B petitions in fiscal year 1999 than was permitted by law. The audit estimated that the additional H-1B’s totaled between 21,888 and 23,385. INS determined that the actual overcount was 21,888 and is conferring with Congress as to the implications of this error. See
https://www.shusterman.com/h1boverct.html (Link no longer operational)
Anti-immigrant critics like House Immigration Subcommittee Chairman Lamar Smith (R-TX) were, not surprisingly, livid. Smith stated that “the taxpayers would be well-served by remedial math training for the top managers at the INS…It would cost less than hiring a big-name accounting firm every time the agency must count past 10.”
KPMG, who was paid $670,000 for the audit, is still working to determine how the overcount occurred.
Regarding the issue of increasing the H-1B cap, President Clinton announced to a delegation of business executives his administration’s strong support for such a move: “We will raise it because, first of all, immigration’s good for our country, and secondly, these companies need to continue to grow.”
In Congress, a vote on the bill (S.2045) which would immediately raise the H-1B cap to 195,000 was postponed to the week of April 25.
In the House of Representatives, a bipartisan bill (H.R.3983) to raise the cap to 200,000 per year beginning on October 1, 2000 had faced stiff competition from Rep. Smith’s bill (H.R.3814) which would raise the cap for this year only to 160,000 if certain conditions are met, and let the cap fall to 107,500 next year and 65,000 the following year.
On April 11, Rep. Smith announced that he would introduce a new bill, H.R.4227, with all the same restrictions as H.R.3814 – employers would be required to show they have increased their U.S. work force, raised salaries for American workers and would have to file public reports on the foreign workers and their pay. Small companies would be barred from hiring H-1B workers, and the cap would not been raised until the Labor Department issued its long-awaited regulations under 1998 law. Rep. Smith’s bill would, however, completely eliminate the H-1B cap during fiscal years 2000, 2001 and 2002. The bill was marked-up in the House Immigration Subcommittee on April 12. Every Democrat on the subcommittee voted against the bill. Sandy Boyd, the chairwoman of American Business for Legal Immigration, an industry group, stated that “while the bill appears to be uncapped, with all the conditions put on it, those (visa) numbers would be unusable.”
Things promise to get very interesting over the next month.
Read the complete text of the competing bills, along with FAQ’s, section-by-section analysis and more at
https://www.shusterman.com/h1bvisaguide.html
We will continue to post updates on the progress of these bills on our news ticker as soon as Congress takes action.
4. Audio: Listen to Immigration Information on the Web
Deleted
5. Unlawful Presence: INS Moves Closer To Reality
Prior to the passage of the 1996 immigration law, if a person who was unlawfully in the U.S. (because he entered the U.S. without inspection, overstayed or violated his status) qualified for permanent residence, he had to consular process. That is, he could not adjust his status in the U.S. He instead had to return to his native country and apply for an immigrant visa abroad unless he qualified for adjustment of status under an exception (e.g., some immediate relatives of U.S. citizens, 245(I), 245(k)) to the general rule.
The 1996 law introduced the term “unlawfully present” to the lexicon which already included “illegal”, “deportable”, “excludable”, and “unauthorized”. Aliens who were “unlawfully present” in the U.S. starting on April 1, 1997 for a certain period of time were to be subject to a number of bars of inadmissibility if they subsequently departed the U.S. Those who were unlawfully present in the U.S. for a period of 180 days were subject to 3-year bars to returning to the U.S. Others who had accumulated one year of unlawful presence were subject to 10-year bars. Still others were subject to lifetime bars.
I remember one congressman who had supported the 1996 law predicting that before the first 180-day period ended in late September 1997, we would see the largest voluntary departure of illegal aliens from the U.S. in our country’s history. Of course, nothing like this ever occurred.
Instead, for the past three years, the INS and the American Immigration Lawyers Association (AILA) have been engaged in discussions as to what constitutes “unlawful presence” in the U.S. The INS initially took a very hard line position, but over the years has shown increasing flexibility given the fact that the law is poorly-drafted and the consequences of unlawful presence are so severe.
For example, the law states that for certain periods of time after a person has applied for an “extension of status” or a “change of status”, he does not accumulate unlawful presence for the purpose of the 3-year bar. The period of unlawful presence is “tolled” for 120 days. However since the law does not use the words “adjustment of status”, the INS initially held that time spent by a legal nonimmigrant waiting for his application for adjustment of status to be adjudicated (which always exceeds 120 days) was considered to be unlawful presence! Later, the INS reversed its position and held that Congress used the words “change of status” generically to include applications for “adjustment of status”.
On March 3, 2000, in two separate field memos signed by Michael A. Pearson, the INS Deputy Executive Associate Commissioner, Immigration Services Division, the agency has taken another welcome step closer to reality.
The first memo deals with applications for an extension or change of status. The memo states that
“Although legislative history is silent regarding the intent of the 120-day tolling period, an inference may be drawn that Congress expected the Service to adjudicate the petitions within such a time frame. However, due to unprecedented workload, in many instances the Service has been unable to adjudicate a timely filed application for E/S (extension of status) or C/S (change of status) within the 120-day period envisioned by Congress.”
Later, in the memo, the INS holds that if a persons submits a timely application for an extension or change of status, and the INS fails to adjudicate the application for 180 days or even for over one year, the person does not accumulate any unlawful presence in the U.S., and if they depart the U.S. before their application is adjudicated, they are not subject to the 3/10 year bars.
Of course, as the genie in the movie “Aladdin” would say, this rule is subject to a couple of “provisos”: (1) The person must not have been employed in the U.S. without permission; and (2) The application must be “non-frivolous”. The problem with these provisos is that they are decided after the fact, after you leave the U.S. while your application for an extension or change of status is pending and apply for a visa abroad.
For example, the memo states that
“To be considered non-frivolous, the application must have an arguable basis in law and fact and must not have been filed for an improper purpose. If the consular officer finds that the alien qualifies for a visa in the same category as the visa classification that was sought in the abandoned E/S or C/S application, the consular officer may presume that the E/S or C/S application is not frivolous.”
What is an “arguable basis in law and fact” and what is an “improper purpose”? Reasonable people may disagree. However, a visa denial by a consular officer can not be appealed. Although the Pearson memo is a giant step forward, there is no way to guarantee that when you leave the U.S. while your application is pending that a consular officer will deny your visa application on the grounds that your extension/change of status application was frivolous. You, or your client, is in the unenviable position of depending on the kindness of strangers.
The complete text of the Pearson memo can be found at
https://www.shusterman.com/unlawfulpresenceeoscos.html
The second Pearson memo eliminates the 120-day limitation discussed above for purposes of section 222(g)of the 1996 law, the provision that provides that if a person overstays his period of authorized stay in the U.S., his visa is automatically void, and he must return to his country if he wishes to obtain a new visa. To read the complete text of this second memo, see
https://www.shusterman.com/222g-ins.html (Link no longer operational)
6. Immigration Trivia Quiz: First Asian-American Congressman
Quiz Removed
7. Chat Schedule and Online Transcripts
Deleted
8. National Immigration Forum: Immigration Policy Update
Thanks to Maurice Belanger, Senior Policy Analyst for the National Immigration Forum, the nation’s preeminent coalition of organizations concerned with immigration policy, we now have what amounts to a newsletter within a newsletter.
What follows is the table of contents of the Forum’s most recent “Immigration Policy Update”:
A. HRIFA Final Rule Published March 24th
B. Labor’s Change in Policy Towards Employer Sanctions
C. New Voices in the Immigration Debate
D. Smith INS Reorganization Bill Passes Subcommittee
E. Senate H-1B Bill Passes Judiciary Committee
F. Administration’s Budget Builds on Past Initiatives
G. House Hearing Provides Civic Lesson
H. FAIR Ads Backfire in State that Welcomes Immigrants
I. Honduran/Nicaraguan TPS a Bureaucratic Mess
J. Two Bills Marked up in House Subcommittee
K. Update on Forum Publications and Activities
To read the complete text of the update, see
https://www.shusterman.com/nif300.html (Link is no longer operational.)
9. Healthcare Worker Litigation: Plaintiffs Still Needed
by Traci Hong
Staff Attorney
American Immigration Law Foundation
In 1998, a lawsuit filed by the American Immigration Law Foundation (AILF) and the law firm of Dechert, Price and Rhoads led to the issuance of regulations implementing the certification requirement under section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) for nurses and occupational therapists. However, INS still has not issued regulations implementing IIRIRA section 343 for four categories of healthcare workers (physician’s assistants, speech/language pathologists, medical technologists and medical technicians).
AILF had been preparing for another lawsuit to compel the INS to issue regulations for these healthcare workers when the INS informed the American Immigration Lawyers Association at a liaison meeting that it intends to issue regulations for the remaining healthcare workers by April 30, 2000. We have therefore postponed filing this litigation until after April 30, 2000 to see if the INS will indeed issue the regulations. AILF sent a “demand letter” to the INS on March 15, 2000 to put the INS on notice that we intend to proceed with the litigation if it fails to issue regulations by its self-imposed deadline.
In the meantime, AILF continues to prepare for litigation so that we will be ready to file this case as soon as possible if the INS fails to issue regulations on April 30, 2000 as promised. We are still looking for plaintiffs in the following categories:
- Speech/Language Pathologists, Medical Technologists, Medical Technicians and Physician’s Assistants who have approved I-140s and/or pending I-485s;
- Children of these healthcare workers who will age out in 2000;
- Healthcare workers who are separated from their families abroad because of the delay in the issuance of regulations;
- Hospitals and other healthcare providers who have been adversely affected by the INS’s failure to issue regulations implementing section 343 for these four classifications of healthcare workers.
If you fall in any of the foregoing categories or represent someone who does, please consider participating in this litigation. If you have any questions about this case, please contract Traci Hong at thong@ailf.org See AILF’s March 15, 2000 “demand letter” to the INS at
https://www.shusterman.com/343ailf.html (Link no longer operational)
10. Answers to the Trivia Quiz: Immigrant Achievement Awards
Quiz Removed
We had a winner within hours – here is his letter to me:
Dear Mr. Shusterman,
Thank you very much for the opportunity to consult with you.
After receiving this month’s update, I did a web search on Yahoo using the keywords “Immigrant achievement awards” and got to the American Immigration Law Foundation website(www.ailf.org), saw the link to the foundation’s honorees for this year, and got the information you requested about the honorees for your trivia quiz.
I am a physician from the Philippines and came to the US in 1994 on a J1 visa for residency training in Texas. I have finished my residency in Internal Medicine and have done one year of fellowship in Rheumatology at the Univ. of Texas at Galveston. I had to forego the second year of fellowship when I got a J1 visa waiver through the University of Texas and worked at a satellite clinic in a nice small town in east Texas. However, the University closed our clinic after only 1 year in December because of cutbacks and I am still trying to secure another position at this time.
I appreciate the invaluable help your website gives with your updates, links and chats. I have subscribed to your monthly update since 1996. I usually check your website everyday to catch up on any new developments.
Again, Thank you.
Yours Truly,
Ulysses Lopez, MD
Congratulations, Dr. Lopez! The answers to the quiz can be seen at
https://www.shusterman.com/honorees2.html (Link no longer operational.)
I attended the awards and was very moved by the stories of each of these outstanding individuals. For biographical information, click on their photographs at the URL listed above.
Carl Shusterman
Certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service 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
Newsletter US Immigration Update April 2000 – Quick Links
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April 14, 2000
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