Volume Fifteen, Number Seven

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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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Client Reviews

Newsletter US Immigration Update August 2010

TABLE OF CONTENTS:

• 1. Federal Judge Grants Preliminary Injunction Against Arizona Law
• 2. September State Department Visa Bulletin – The Great Leap Forward?
• 3. Schedule of Shusterman’s Upcoming Immigration Law Seminars
• 4. C-Span Video Library – Getting It Straight from the Immigration Experts
• 5. Success Story: Showing a Valid Employer-Employee Relationship
• 6. Immigration Trivia Quiz: Immigrants on Broadway
• 7. Ask Mr. Shusterman: Guess Who’s Coming to the United States
• 8. Immigration Government Processing Times
• 9. Practice Pointers for Attorneys: “You’re a Lawyer, Sue Them!”
• 10. Winner of our July 2010 Immigration Trivia Quiz

NEWS FLASHES:

• Blog – Our weekly blog is entitled “Nation of Immigrants”. Read our blog, which deals with current immigration issues, and you can sign-on as a follower of our blog. We welcome your comments!
• Free Legal Consultation – Our new Immigration Facebook page now has over 500 persons participating. As soon as we get 1,000 fans, we will hold a lottery and give away a free legal consultation. To be eligible, connect with us on Facebook.
• H-1B Cap Update – On July 26th, the USCIS released the number of H-1B cap- subject petitions received by the agency as of July 23rd. The numbers are far behind those from last year. We predict that there will be H-1B numbers available well into 2011.
• Immigration Videos – In July, we added our 30th video to Immigration Videos page. This is a short video of me testifying before the U.S. Senate Subcommittee on Immigration. Our “how-to” immigration videos have been viewed over 115,000 times. Our most popular video is “How to Obtain a Green Card through Marriage to a U.S. Citizen” which has been viewed well over 40,000 times.
• Top Corporate Immigration Lawyers in the U.S. – Recently, I received a letter from the Human Resources Executive Magazine informing me that I had been selected as “one of the top corporate employment attorneys” in the United States. We link to a list of the 15 immigration attorneys who received this honor. Congratulations to you all!
• TPS Extensions – On July 9th, the USCIS announced that the DHS would extend Temporary Protective Status (TPS) for certain nationals of El Salvador until March 9, 2012. On July 12th, the USCIS announced that the registration period for certain nationals of Haiti was extended 6 additional months to January 18, 2011.
• “U” Petitions for Victims of Crime – On July 15th, the USCIS announced that it had granted 10,000 “U” petitions for victims of crimes since October 1, 2010. This compares with 6,000 such petitions granted during the last fiscal year. This marks the first time that the USCIS has reached the statutory maximum number of “U” petitions. USCIS will resume approving “U” petitions on October 1, 2010.
• USCIS Policy Review – USCIS announced on July 26th, that based on 5,600 responses to a survey posted this spring, the agency will give priority to reviewing its policies in the following ten areas:
  1. National Customer Service Center;
  2. Nonimmigrant H-1Bs;
  3. Naturalization;
  4. Employment-Based Adjustment of Status;
  5. Family-Based Adjustment of Status;
  6. Employment-Based Preference Categories 1, 2, and 3;
  7. Refugee and Asylum Adjustment of Status;
  8. Form I-601 Waivers;
  9. General Humanitarian Programs; and
  10. Employment Authorization and Travel Documents.

  The USCIS announced: “We will convene working groups to review each of the issue areas. Leaders from across USCIS will join analysts, adjudicators and customer service representatives in examining policy and instructional documents that guide our work. USCIS will follow the federal rulemaking process whenever appropriate, and once approved, new policies will be available electronically.”

• Web Site Redesign – After 15 years of being the webmaster of one of the world’s ugliest (but, I hope, informative) websites, I have decided to have our website redesigned. The new website will not only be more pleasing to the eye, but we hope that it will be even more helpful to our readers. If you have ideas about how our website can be improved, let us know by contacting us at

  ams@shusterman.com

1. Federal Judge Grants Preliminary Injunction Against Arizona Law

On July 28, Federal District Court Judge Susan Bolton granted a preliminary injunction against major sections of Arizona’s new immigration law which were scheduled to become effective the following day.

In a 36-page decision, Judge Bolton found that the United States is “likely to succeed on the merits in showing that the following sections of S.B.1070 are preempted by Federal law”:

• “requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person…
• creating a crime for the failure to apply for or carry alien registration papers…
• creating a crime for an unauthorized alien to solicit, apply for, or perform work…
• authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States…”

“The Court also finds that the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance of equities tips in the United States’ favor considering the public interest.”

The U.S. Department of Homeland Security (DHS) immediately issued a press release praising the Judge’s decision.

The court did not block the provisions of the Arizona law that criminalize the solicitation of employment on public streets or the one that forbids local police agencies from adopting policies that limit or restrict enforcement of federal immigration laws.

So, where do we go from here?

Arizona State Senator Russell Pearce, the author of the law, had this to say, even before the Judge’s ruling: “I wrote it to go to the Supreme Court…I’m begging for that fistfight at the Supreme Court. We will win in a 5-4 decision and finally settle this problem.”

It is all but certain that the State of Arizona will appeal the Court’s Order to the U.S. Courts of Appeals for the Ninth Circuit. Should the Appeals Court uphold the Judge’s Order, the State of Arizona may appeal to the Supreme Court. However, if so, the law will be enjoined at least until October when the Supreme Court reconvenes.

In any case, this is not the beginning of the end, but perhaps it is the end of the beginning. The Arizona law, the seven lawsuits challenging it and the Judge’s preliminary injunction against the law have served to focus public attention on immigration. One hopes that the two major political parties will eventually come together as they did in the Senate in 2007 and pass a bill similar to the McCain-Kennedy Act on a bipartisan basis.

In the meantime, in order to assist our readers in keeping up to date with the various lawsuits challenging the Arizona law, we have created a web page regarding the Arizona Immigration Law complete with legal documents, videos and opinions regarding the law.

2. September State Department Visa Bulletin – The Great Leap Forward?

For the past three years, all of our articles about the monthly Visa Bulletin have been filled with gloom and doom as the EB numbers continued to retrogress. Absent a legislative fix, we are not about to uncork any bottles of champagne this month.

However, we would be remiss if we failed to note that the August 2010 Visa Bulletin contains welcome news for many of those waiting for their visa numbers to become current:

• Family Categories – Worldwide
  • The 1st preference category (unmarried adult sons and daughters of U.S. citizens) moved forward 4 months;
  • The 2A preference category (spouses and unmarried children of permanent residents) jumped ahead 8 months;
  • The 2B preference category (unmarried adult sons and daughters of permanent residents) also jumped ahead by 8 months;
  • The 3rd preference category (married sons and daughters of U.S. citizens) moved forward 4 months; and
  • The 4th preference category (brothers and sisters of U.S. citizens) jumped ahead 5 months.

• Employment Categories
  • EB-2 (persons of exceptional ability and those with advanced degrees) China moved forward over 3 months while India jumped ahead 5 months;
  • EB-3 worldwide (professionals and skilled workers) sprinted forward by 9 1/2 months; and
  • EB-3 worldwide (unskilled workers) charged ahead by almost a full year.

Does this mean that “Happy Days are Here Again!”? Hardly! Millions of people including many professional workers are forced to wait way too long for green cards.

However, for a few thousand people, including many of our clients, the August Visa Bulletin is a dream come true.

What about would-be immigrants from India and China who have been waiting for many years for their green cards?

The August Visa Bulletin holds out some hope:

“E. APPLICABILITY OF INA SECTION 202(a)(5)(A)AS IT RELATES TO THE ALLOCATION OF “OTHERWISE UNUSED” NUMBERS

INA Section 202(a)(5)(A), added by the American Competitiveness in the 21st Century Act (AC21), provides that if total demand will be insufficient to use all available numbers in a particular Employment preference category in a calendar quarter, then the otherwise unused numbers may be made available without regard to the annual per-country limits. This provision helps to assure that all available Employment preference numbers may be used. In recent years, the application of Section 202(a)(5)(A) has occasionally allowed oversubscribed countries such as China-mainland born and India to utilize large quantities of Employment First and Second preference numbers that would have otherwise gone unused.

For example, let us assume that 11,600 Employment Second preference numbers are available in a calendar quarter. There is heavy Employment Second preference demand by China-mainland born and India applicants; however, each country is oversubscribed and would ordinarily be limited to about 800 of the available numbers due to the prorating provisions of INA Section 202(e). Applicants from other countries that have not yet reached their per-country limit have reported a total demand of 6,500 numbers. After taking the worldwide demand into account, it is determined that as a result of the China-mainland born and India per-country limits only 8,100 of the total available Employment Second preference numbers would be used in that quarter. In this instance, the otherwise unused 3,500 numbers could then be made available to China-mainland born and India regardless of their per- country limits. Should that occur, the same cut-off date would be applied to each country, since numbers must be provided strictly in priority date order regardless of chargeability. In this instance, greater number use by one country would indicate a higher rate of demand by applicants from that country with earlier priority dates.”

English Translation – In September, the EB priority dates for persons born in India and mainland China will jump forward, perhaps dramatically.

1. APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

Categories	World	China	Dominican Republic	India	Mexico	Philippines
1st	01-08-05	01-08-05	01-08-05	01-08-05	15-11-92	01-01-96
2A	01-03-09	01-03-09	01-03-08	01-03-09	01-03-08	01-03-09
2B	01-01-04	01-01-04	01-01-04	01-01-04	15-06-92	01-08-01
3rd	01-01-02	01-01-02	01-01-02	01-01-02	01-03-92	01-05-94
4th	01-06-01	01-06-01	01-06-01	01-06-01	01-01-94	01-04-90

 

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

Categories	World	China	Dominican Republic	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current	Current
2nd	Current	01-03-06	Current	01-03-06	Current	Current
3rd	01-06-04	22-09-03	01-06-04	01-10-02	U	01-01-04
Unskilled	15-05-02	15-05-02	15-05-02	01-01-02	U	15-05-02
4th	Current	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current	Current
5th Non-Regional	Current	Current	Current	Current	Current	Current
5th Regional	Current	Current	Current	Current	Current	Current

3. Schedule of Shusterman’s Upcoming Immigration Law Seminars

• • The 53rd Annual PIHRA Conference and Exhibition

Professionals in Human Resource Administration (PIHRA)
Pasadena Convention Center
Pasadena, California
September 22 – 11:10am
Topic: “Immigration and Foreign Workers”

• • Los Angeles County Bar Association

Immigrant Legal Assistance Program
Los Angeles, California
September 30, 2010
Topic: “Introduction to Immigrant Visas”

• • 34th Annual Conference on Immigration and Nationality Law

University of Texas School of Law
Austin, Texas
October 20-22
Topics:
(1) Practice Tips for Immigration Lawyers
(2) Citizenship
(3) Ask the Experts Panel

4. C-Span Video Library – Getting It Straight from the Immigration Experts

Want to keep up with the latest news and videos regarding immigration policy? A great place to look is the C-Span Video Library.

I know what you are asking yourself: “Isn’t C-Span that TV network that broadcasts those boring sessions of Congress where you sit and watch them count the votes on a bill pending before the Senate or the House of Representatives?”

And, of course, the answer is “yes”, or should I say “yes, but…”? C-Span stands for the “Cable-Satellite Public Affairs Network”. It runs public affairs programming and covers government proceedings. It is owned by the cable industry.

However, what I watch is on the computer, not on TV. Here you can pick and choose what you want to watch.

For example, go to C-Span’s Video Library website and type “Immigration” into the search engine. What do you get?

First, you get almost 200 photos of persons including present and former government officials, heads of pro-immigration and anti-immigration advocacy organizations (Why do the anti-immigration folks appear on C-Span more than the pro-immigration folks?), and assorted Senators and Representatives.

Click on Frank Sherry’s photo and you can see the Executive Director of the pro-immigration group America’s Voice and his “C-Span Biographical History”. He has been on the station a total of 17 times, most recently when he talked about Arizona’s Immigration Law in May.

You can see each person’s topics, a photo gallery and who they appeared with.

Second, you can access over 1,600 shows about immigration, starting with the most recent. See Michael Lind from the New American Foundation talk about his latest op-ed in the Washington Post on why “comprehensive reform” is not a good strategy… should “think small” on issues like immigration.

Third, there are over 25,000 written transcripts containing the word “immigration” on C-Span which you can access online.

Finally, you can search by legislative committees or by immigration bills. This is handy if you are interested in a specific item like the DREAM Act or if you would like to watch videos of committee hearings on particular topics online.

All C-Span programs are available online, easy to find, and best of all, free!

5. Success Story: Showing a Valid Employer-Employee Relationship

As reported in a previous newsletter, a January 8, 2010 USCIS memo entitled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” has made it more difficult, and sometimes impossible, for IT consulting firms who hire professionals to work at third-party worksites to obtain H-1B status on their behalf.

The stated purpose of the memo by Donald Neufeld, Associate Director of Service Center Operations, is “to provide guidance, in the context of H-1B petitions, on the requirement that the petitioner establish that an employer- employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.”

The memo puts particular focus on determining if the employer has demonstrated that it has a “sufficient level of control over the employee.” See our H-1B Visa Guide for additional information.

We represent many IT consulting companies, some of which place temporary H-1B workers at client-sites as is common in the industry. In March 2010, we helped one of our corporate clients prepare and file an H-1B extension on behalf of a Senior Systems Administrator who had been working for the same employer since June 2009 in H-1B status authorized by USCIS.

Approximately 3 weeks after the H-1B extension was filed, the USCIS issued a 4-page Request for Evidence (RFE) essentially asking for a laundry list of documents, including Tax Returns of both the petitioner and beneficiary, quarterly wage statements, contracts, photographs of the worksite, etc. to demonstrate that a valid employer-employee relationship existed and would continue to exist for the full duration of the requested H-1B extension of stay. The RFE actually asked for evidence that the employer-employee relationship had existed since the original H-1B approval had been issued (some 9 months before the H-1B extension).

Fortunately, we had forewarned our client of the issues raised by the January 2010 memo and the company was able to provide us with much, if not all, of the requested evidence, including copies of contracts it had in place with the company where the employee was assigned. The contract included language that we brought to the Service’s attention stating:
“Contractor shall have sole responsibility to recruit, interview, test, select, hire, manage, train, counsel, discipline, review, evaluate, set pay rates(including the classification of Contractor Personnel as exempt or non-exempt), and terminate the persons who provide the Services hereunder.”
and
“On-site Contractor Personnel will be required to acknowledge that they are not employees of CLIENT COMPANY to agree to dispute resolution procedures regarding any dispute they may have concerning their employment by Contractor or concerning their employment status.”
We were able to further demonstrate the petitioner’s supervision of the employee by showing the hierarchal structure of the organization and evidence that the company had control over the day-to-day activities of the employee through regular service and progress reports.

This case shows the importance of preparing in advance for any possible issues as most RFEs issued by USCIS only allow the petitioner 30 days in which to respond. Because we had anticipated the issues raised in the Neufeld memo, we were able to provide sufficient evidence of the employer-employee relationship to satisfy the USCIS’s concerns. This resulted in an H-1B approval notice being issued for our client a short time after our response to the RFE was filed.

In this era of increased scrutiny by the USCIS of most types of petitions, we would not suggest any consulting or staffing agency even consider filing an H- 1B petition if it does not have sufficient evidence of the existence of the employer-employee relationship, including signed contracts between the petitioner and the end-client. It is important to note that in many cases similar to this, the USCIS will only approve the H-1B petition for the duration of the contract between the employer and the end-client.

6. Immigration Trivia Quiz

Quiz Removed

7. Ask Mr. Shusterman: Guess Who’s Coming to the United States

Ever wonder how many people get green cards in the U.S. in a year?

In 2009, the number was 1.1 million, slightly above the numbers in 2007 and 2008.

And what countries did the immigrants come from? Did the number of immigrants coming from one country exceed 50% of the total?

Hardly! Only 15% of last year’s immigrants were born in Mexico. The other top countries of birth were China, the Philippines, India and the Dominican Republic, each of which accounted for 4-6% of the new immigrants.

In total, 37% of the new immigrants are Asian while 31% are from North America.

And most of the new immigrants settled in Arizona, right?

Not even close! The top destinations were California (20%), New York (13%), Florida (11%), Texas (8%) and New Jersey (5%). So, all in all, most immigrants settled in these five states.

Most new immigrants are women (54.6%), a percentage greater than that of the native-born population (51%). Almost 58% of the new immigrants are married as opposed to only 39% of the native-born population.

The median age of immigrants is lower (31 years) than that of the native-born population (35 years).

And do any of the statistics tell us why the line for employment-based (EB) immigrants is becoming so backlogged? Yes, the annual quota for EB immigrants decreased from 162,704 in 2008 to 140,000 in 2009. Now, that’s something that Congress may want to look into.

Oh, I know what you are asking yourself: Where did Shusterman get all of these numbers, probably from the American Immigration Lawyers’ Association, right?

Good guess, but wrong.

They came from a report issued this spring by the United States Department of Homeland Security!

Do you have immigration questions of general interest to our readers? Send them to

ams@shusterman.com

If your question is neither short nor general, please schedule a 30-minute legal consultation with me.

8. 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…

9. Practice Pointers for Attorneys: “You’re a Lawyer, Sue Them!”

Did you go to law school to save the world?

No kidding? Me too!

And while practicing immigration law can be very rewarding, spending hours sitting in waiting rooms and responding to countless RFEs is a mind-numbing experience. Many immigration attorneys feel hassled and run down, and some are even counting the years, months and days until they can retire.

These days, business is down, and sometimes it feels like the only things that are up are USCIS filing fees.

Overshadowing your happiness when a client is granted naturalization or adjustment of status is the growing portion of your PERM applications that have been pending at the Labor Department for over a year, not to mention those dozens of phone calls from clients asking you when their EB-2 and EB-3 priority dates are going to be current.

Worse yet, it seems that almost every time Congress passes a law which benefits immigrants, either the USCIS or the BIA interprets the law as narrowly as possible. Wouldn’t it be fantastic if you could go to Court and sue the government and win?

Well, you can!

I know that you’re thinking, “Carl, who do you think is going to pay for this?”

Let me tell you a little story.

Back in 1999, the President signed a law which eased restrictions on obtaining national interest waivers for physicians who practice in medically-underserved areas. The INS issued regulations eviscerating many important portions of the law. For example, while the law stated that “all physicians” could benefit from the law, the regulations excluded specialists. Somehow, the agency apparently thought that it had the authority to amend laws passed by Congress.

Our law firm sued the INS in Federal Court and, on my birthday in 2004, we lost the case. However, we didn’t give up, and two years later, the U.S. Court of Appeals, in Schneider v. Chertoff, 450 F.3d 944 (9 Cir. 2006), struck down many of the restrictions contained in the INS regulations.

Did we do the case pro bono? Not at all. We gathered together a number of plaintiffs who were adversely affected by the regulation and they shared the costs. AILF wrote a wonderful amicus curiae brief that inspired us to litigate other such issues.

Now, we are litigating the “automatic conversion” clause of the Child Status Protection Act (CSPA). The law was enacted in 2002, but eight years down the road, the USCIS still hasn’t gotten around to writing regulations to implement CSPA. In fact, there is not even a government memo interpreting the “automatic conversion” clause. This is probably because this section of CSPA compels the USCIS to allow aged-out kids to immigrate together with their families. Talk about an un-American concept!

For years, every time we tried to utilize this clause, the USCIS and the State Department refused to let us do so. However, once we sued the government last summer, the Office of Immigration Litigation repeatedly requested continuances in order to give the BIA time to disregard their previous nonprecedent decisions regarding the clause, and to issue a decision that greatly restricted the scope of the clause. The Federal Judge deferred to the expertise of the BIA and guess what? We are back at the 9th Circuit. And who is paying for all of this legal work? Again, we were able to gather together a number of plaintiffs to share the fees.

And once again, American Immigration Council (the new name for AILF) is preparing an amicus brief on behalf of the plaintiffs.

We are suing the government to uphold the law, and to keep thousands of immigrant families together. And believe me, it feels good!

If even 10% of the nation’s immigration attorneys would sue the government when they violated a law or a regulation, and would ask for EAJA fees, we might see a whole new attitude at the USCIS.

In any event, when you win a high-impact case in Federal Court, you are not only elated, you suddenly remember why you chose to go to law school in the first place.

10. Winner of our July 2010 Immigration Trivia Quiz

Quiz Removed

Below is the winning entry:

1. (C) Frank Capra was born in Sicily, Italy. He directed “Mr. Smith Goes to Washington”.
2. (A) Christopher Nolan was born in London England. He directed “Batman Begins”.
3. (B) James Cameron was born in Ontario, Canada and directed “Titanic”.
4. (D) Josef Von Sternberg was born in Vienna, Austria-Hungary (now Austria) and directed “Blonde Venus”.

My name is Allan Peach I am not an immigrant, but my friend is. I was born in Nebraska and now live in Santa Monica, California. I am a computer consultant. My interests include film history. I solved the quiz as I am a film buff. I have been a subscriber to the newsletter for nearly 10 years.
Allan,

Congratulations on winning our quiz. I look forward to speaking with your friend.

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California (1988 – present)
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

“This is a major step that will help protect the residents of Arizona against racial profiling and discrimination, and the Obama administration deserves praise for its principled decision to challenge this law despite pressure to stay silent. A single state’s frustration with federal policy cannot be allowed to hijack federal authority or dictate federal priorities in ways that impede effective law enforcement, threaten the rights of citizens and non-citizens alike and violate core American values.”

– Anthony D. Romero Executive Director, ACLU July 28, 2010

Newsletter US Immigration Update August 2010 – Quick Links

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July 28, 2010

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.