Volume Fifteen, Number One

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SHUSTERMAN’S Newsletter US Immigration January 2010 is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 40,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 30 years of experience practicing immigration law.

Published by the Law Offices of Carl Shusterman, 600 Wilshire Blvd, Suite 1550, Los Angeles, California, 90017. Phone: (213) 623-4592 x0.

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Client Reviews

Newsletter US Immigration Update January 2010

TABLE OF CONTENTS:

1. Comprehensive Immigration Reform: Outlook for 2010
2. New Bill Would Revamp the Employment-Based Preference System
3. New Bill Would Fix Family-Based Preference System
4. EB Immigrants: How Long Before I Get My Green Card? (Part 2)
5. Success Story: Saving a Divorcee from Deportation
6. Immigration Trivia Quiz: Shaping the Future of American Sports
7. Ask Mr. Shusterman: DOS Predicts Visa Numbers for September 2010
8. Immigration Government Processing Times
9. Presidents Clinton, Bush and Obama: Your Visas Are Denied!
10.Winner of our December 2009 Immigration Trivia Quiz

NEWS FLASHES:

• Asylum – On December 16, John Morton, the Assistant Secretary for ICE announced that, starting on January 4, the government will stop detaining asylum seekers who have a credible fear of persecution in their home countries. See the ICE announcement on our “Asylum” page at

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

• Blog – Our weekly blog is entitled “Nation of Immigrants”. To read our blog, which deals with current immigration issues, or to receive a free subscription, see

  http://shusterman.typepad.com/nation-of-immigrants/

• Computer Professionals – For the past seven years, we have searched online computer magazines and linked to the most important immigration developments related to computer professionals. See our “Immigration for Computer Professionals” page at

  https://www.shusterman.com/computerprofessionalsusimmigration2010.html

• H-1B Cap Reached – As of December 21, 2009, USCIS has received sufficient petitions to reach the statutory cap for FY2010. USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2010 that are received after December 21, 2009 USCIS will apply a computer- generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009. See our H-1B cap charts at

  https://www.shusterman.com/h1bcapinformationfiscalyear2010.html

  Remember that just because the H-1B cap was reached does not mean that H- 1B petitions can not be submitted until April 1, 2010. The following H-1B petitions are exempt from the cap and may be submitted at any time: Extension of status, change of employment, concurrent employment, petitions for physicians with J waivers and petitions submitted by cap-exempt employers.

• Healthcare Workers – We link to a report entitled “Critical Care: The Role of Immigrant Workers in U.S. Healthcare” authored by the Immigrant Policy Center on December 11 from our “Immigration Articles and Reports” page at

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

  The report finds that

  • Immigrants are a critical component of the workforce at all skill levels in the nation’s largest healthcare occupations.
  • The Bureau of Labor Statistics (BLS) predicts significant numbers of job openings in the healthcare occupations where most foreign-born healthcare workers are employed.
  • Shortages of healthcare workers are expected to increase in the years to come, and immigrants will help fill the gap.

  I testified before the Senate Immigration Subcommittee in 2001 regarding my suggestions for eliminating certain immigration obstacles for foreign-born physicians and registered nurses. I hope that the new immigration reform legislation will result in easing the path for MDs, RNs and allied healthcare workers to qualify for temporary visas and permanent residence in the U.S.

• Highly-Skilled Immigrants – We link to a new report entitled “Prosperous Immigrants, Prosperous Americans: How to Welcome the World’s Best Educated, Boost Economic Growth, and Create Jobs” written by Marshall Fitz of the Center for American Progress. We hope that many of the ideas contained in this report will be incorporated in the Senate’s version of Comprehensive Immigration Reform scheduled to be introduced in February. We link to the new report from our “Immigration Articles and Reports” page at

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

• N-400s – On December 17, the USCIS announced that, effective immediately, the filing locations for submitting applications for naturalization were changed. We link to the USCIS notice from our “Obtaining U.S. Citizenship” page at
• Nurses – On December 17, the USCIS announced that since the Nursing Relief for Disadvantaged Areas Reauthorization Act of 2005 has not been extended by Congress, the last day that the agency will accept H-1C petitions submitted by qualifying hospitals on behalf of registered nurses will be on December 21. This expiration does not affect the ability of H-1C nurses currently in status to continue employment during their authorized period of stay, the authority of USCIS to adjudicate a petition properly filed on or before Dec. 21, 2009, or the eligibility of the beneficiary of an approved H-1C petition to be admitted to the United States as an H-1C nonimmigrant. We link to the USCIS notice from rn-relief.html (Link no longer operational)
• Prevailing Wage Requests – Beginning on January 1, 2010, requests for prevailing wages for PERM applications and non-immigrant petitions must be sent, by mail, to the National Prevailing Wage and Helpdesk Center (NPWHC) in Washington, D.C. rather than to the State Workforce Agencies and the Chicago NPC. We link to the new regulation from our “Department of Labor Immigration Resources” page at

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

  Because of concerns that mailing wage requests would significantly delay the process, the Department of Labor (DOL) announced that electronic submission of prevailing wage requests will be available on DOL’s iCert online portal beginning on January 20, 2010. We link to the iCert Portal from our “PERM” page at

  https://www.shusterman.com/perm-2/

• Visa Bulletin – We link to the January 2010 Visa Bulletin and to past Visa Bulletins from
  

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

• YouTube “How to” Immigration Videos – Over 60,000 persons have viewed one or more of our 26 videos regarding various immigration procedures. One of our videos, “Green Cards through Marriage”, has been viewed well over 22,000 times. We now feature this video in three languages: English, Spanish and Chinese. Obtain free information about various aspects of U.S. immigration laws and procedures by viewing our videos at

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

1. Comprehensive Immigration Reform: Outlook for 2010

On December 15, Representative Gutierrez (D-Ill.) introduced the Comprehensive Immigration Reform ASAP Act of 2009 (H.R. 4321) in the House of Representatives. To date, the bill has 92 co-sponsors, all of them Democrats. We link to the 644-page bill and to summaries of the bill from our “Immigration Legislation” page at

https://www.shusterman.com/legislationusimmigration

The bill provides a generous legalization program whereby persons who were undocumented in the U.S. on December 15 would have to demonstrate that they have jobs, undergo criminal background checks, learn English and pay $500 fines in order to gain six-year visas, and later to become lawful permanent residents. The bill incorporates other pieces of legislation including the DREAM Act and the Emergency Nursing Supply Relief Act.

The bill would also provide for increased training and equipment for the Border Patrol, improved conditions for detainees and an end to the controversial program whereby local law enforcement officers assist in federal immigration law enforcement.

Finally, the bill would increase and improve the current “preference” systems for admitting both employment and family-based immigrants. See Topic # 2 and 3 below.

In contrast to the Kennedy-McCain bill in 2007, the new bill contains no provision for a guest worker program. Instead, it would create a federal commission to study this issue.

Representative Jeff Flake (R-AZ), a champion of immigration reform on the other side of the aisle from Mr. Gutierrez noted this when he stated: “Any bill without a temporary worker program is simply not comprehensive.”

An indication of the vehemence of the opposition to the bill can be seen by the comment from Representative Lamar Smith (R-TX) who said “The bill won’t pass because the American people oppose rewarding lawbreakers, which then encourages even more illegal immigration.”

Representative Gutierrez stated that Speaker of the House Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-NV) and the Obama Administration have agreed that the Senate will first take up the issue of immigration reform bill before the House of Representatives.

In January or February, it is expected that the Chairman of the Immigration Subcommittee Charles Schumer and Senator Lindsay Graham (R-SC) will introduce a bi-partisan immigration reform bill in the Senate.

Since the Senate bill will be bipartisan, we expect that it will have tougher enforcement provisions, and less generous benefits provisions, than does the House bill.

President Obama has indicated that he wants Congress to pass an immigration bill in 2010, but not until Congress passes legislation to reform energy and to regulate financial markets. This could mean that Congress will be debating immigration policy just ahead of the 2010 elections in November.

Senator Schumer has indicated that the bipartisan Senate bill will be based upon the following principles:

1. Illegal immigration is wrong, and a primary goal of comprehensive immigration reform must be to dramatically curtail future illegal immigration.
2. Operational control of our borders–through significant additional increases in infrastructure, technology, and border personnel–must be achieved within a year of enactment of legislation.
3. A biometric-based employer verification system-with tough enforcement and auditing-is necessary to significantly diminish the job magnet that attracts illegal aliens to the United States and to provide certainty and simplicity for employers.
4. All illegal aliens present in the United States on the date of enactment of our bill must quickly register their presence with the United States Government-and submit to a rigorous process of converting to legal status and earning a path to citizenship-or face imminent deportation.
5. Family reunification is a cornerstone value of our immigration system. By dramatically reducing illegal immigration, we can create more room for both family immigration and employment-based immigration.
6. We must encourage the world’s best and brightest individuals to come to the United States and create the new technologies and businesses that will employ countless American workers, but must discourage businesses from using our immigration laws as a means to obtain temporary and less-expensive foreign labor to replace capable American workers; and finally
7. We must create a system that converts the current flow of unskilled illegal immigrants into the United States into a more manageable and controlled flow of legal immigrants who can be absorbed by our economy.

Can 2010, an election year with the country mired in double-digit unemployment, be the right time for comprehensive immigration reform?

We have our doubts, but only time will tell.

We will continue to keep you informed of developments in Congress this year regarding immigration reform.

2. New Bill Would Revamp the Employment-Based Preference System

The Comprehensive Immigration Reform bill introduced in the House of Representatives would revamp the existing employment-based (EB) preference system in a number of important ways:

1. Recapture – Currently, 140,000 persons are permitted to immigrate to the U.S. each year under the EB preference system. If less than 140,000 visa numbers are given out by the end of the government’s fiscal year on September 30, the remaining numbers are essentially thrown away. As a result, in most years, 20,000 to 30,000 visa numbers are lost.The bill would change this system so that whatever EB visa numbers are remaining at the end of the fiscal year would simply be carried over to the next fiscal year. In addition, all the visa numbers which were lost during the past 17 fiscal years would be “recaptured” and used to help clear the growing backlogs in the system. We estimate these recaptured visas would number in the hundreds of thousands.
2. Exemptions from the Annual Visa Cap – In the family-based preference system, “immediate relatives” of U.S. citizens (parents, spouses and children) are exempt from numerical limits. However, in the current EB system, no one is exempt. Every system needs to have priorities. The new bill would make the following categories of immigrants exempt from the EB cap:
   1. Schedule A – Shortage Occupations – Registered Nurses and Physical Therapists;
   2. STEM workers – Persons with M.S. or Ph.D. degrees in Science, Technology, Engineering or Mathematics who have worked in the U.S.;
   3. Recipients of Masters or higher degrees from U.S. universities;
   4. Recipients of medical specialty certification based on postdoctoral training and experience in the United States;
   5. Persons with approved National Interest Waivers; and
   6. Spouses and children of those persons in the above categories.
3. Early Applications for Adjustment of Status – In a welcome break from the past, the new bill would allow persons with approved EB visa petitions to immediately apply for adjustment of status, and to obtain both work permits and travel authorization in three-year increments. Presently, persons with approved EB visa petitions must wait until their priority dates become current before they can apply for adjustment of status. This was not a significant problem when backlogs were short or nonexistent. However, now that the retrogression has resulted in backlogs of up to 7 to 8 years, persons must continually extend their H-1B status, or if they are in another nonimmigrant status, they may not be able to seek an extension at all. Persons who apply for adjustment of status before their priority dates are current will be subject to a $500 surcharge.
4. Exemptions from PERM – Certain EB immigrants are exempt from the PERM requirement. The new bill will exempt two additional groups from PERM:
   1. Recipients of medical specialty certification based on postdoctoral training and experience in the United States; and
   2. Recipients of Masters or higher degrees from U.S. universities.
5. Increase in Per-Country Limitations – The number of EB green cards available to persons from a single country during a fiscal year would be increased from 7% of the total (9,800) to 10% (14,000).

The new bill would create a “Commission on Immigration and Labor Markets” which would make recommendations regarding future flows of workers to the U.S. The bill would also create a web-based job search engine dubbed the “American Worker Recruitment and Match System” (AWRMS). The system would match job seekers with employers and would be established and run by the various State Workforce Agencies (SWAs).

We link to detailed summaries of the new bill from our “Immigration Legislation” page at

https://www.shusterman.com/legislationusimmigration

3. New Bill Would Fix Family-Based Preference System

Our current immigration system which forces parents to be separated from their children and husbands to be separated from their wives for years at a time is both cruel to immigrant families and unworthy of our country’s proud tradition as a nation of immigrants. The immigration reform bill introduced by Representative Luis Gutierrez (D-IL.) and 90 co-sponsors on December 15 would improve the backlog-plagued family-based immigration system in a number of ways. We list some of the most significant changes below:

• Immediate Relatives Would No Longer Be Subtracted from Preference Categories – Spouses, parents and children of U.S. citizens are considered “immediate relatives” and are not subject to numerical quotas that force other relatives to have to wait from four to over 22 years to qualify for permanent residence in the U.S. Current law allocates 480,000 green cards per year to numerically-limited family-based immigrants. However, this number is a complete fiction since immediate relatives are required to be counted against this number. Since the number of immediate relatives who immigrate to the U.S. each year exceeds 480,000, the number of visas remaining would be zero for immigrants under the four family-based preference categories. However, current law establishes a “floor” of 226,000 family-based preference immigrants. The new bill would dispense with this deceptive practice. Immediate relatives would no longer be subtracted from the number of family-based preference immigrants who are allowed to obtain permanent residence each year.

• Family Numbers Would Be Carried Forward – Currently, unused family- based numbers are transferred to the employment-based categories in the following fiscal year. And theoretically, unused employment-based numbers are transferred to the family-based categories.However, in reality, because immediate relatives are subtracted from the family-based numbers, family-based visa numbers never exceed the floor of 226,000. The transfer of unused EB numbers to the family-based categories, therefore, does not actually occur. The new bill would change this by allowing unused family-based numbers in one year to be used during the next fiscal year in the family-based categories.

• Spouses and Children of Permanent Residents – Currently, a green card holder who sponsors his spouse and children must wait between four to six years before they are allowed to reunite with him in the U.S. Recognizing the cruelty of separating nuclear families, the new bill would reclassify the spouse and children of permanent residents as “immediate relatives” thereby eliminating this four to six year wait.

• Reallocation of Visa Numbers for Family-Based Preferences – Inasmuch as the family-based 2A preference category will disappear (since spouses and children of permanent residents would be added to the immediate relative category), the 2nd preference numbers would be reduced from 114,200 to 60,000, a decrease of 54,200 which would be reallocated to the other family- based preference categories as follows:

1. • Family 1st (unmarried adult sons and daughters of U.S. citizens) would increase from 23,400 to 38,000;
   • Family 3rd (married sons and daughters of U.S. citizens) would increase from 23,400 to 38,000; and
   1. Family 4th (brothers and sisters of U.S. citizens) would increase from 65,000 to 90,000.

• Increase in Per-Country Quotas – Currently, family members are unfairly penalized due to their countries of origin. For example, while brothers and sisters of U.S. citizens generally wait 10 years to become permanent residents, those born in Mexico must wait over 14 years while those born in the Philippines are forced to wait over 22 years to qualify for permanent residence. In an effort to reduce such absurdly long waiting times and to treat applicants on a more equal basis, the per-country quotas would be increased from 7% to 10% of the worldwide total. For example, coupled with the increase in visa numbers, the number of persons born in the Philippines who could obtain green cards each year under the family 4th category would increase from 4,550 per year (7% of 65,000) to 9,000 per year (10% of 90,000).In addition, the new bill creates a number of other beneficial changes for family-based immigrants. These changes are too numerous to be listed in this article. One of the most significant changes, however, is to create a special immigrant category for sons and daughters of Filipino World War II veterans. There would be no numerical limitations on this category. We link to the new immigration reform bill from our “Immigration Legislation” page at

https://www.shusterman.com/legislationusimmigration

4. EB Immigrants: How Long Before I Get My Green Card? (Part 2)

In our December 2009 newsletter, we explained how the employment-based (EB) priority date system works. See

https://www.shusterman.com/newsletterusimmigrationdecember2009.html#4

In this article, we provide you with materials which may make it easier for you to estimate when you will be able to adjust your status (AOS) and become a permanent resident.

First of all, how many people have pending applications for AOS in the EB categories? The USCIS states that, as of September 23, 2009, there were 234,000. Of this total, 75,000 were in the EB-2 category and 151,000 were in the EB-3 category. Of course, not all persons with EB priority dates, even old ones, are eligible to AOS in the U.S. For example, there is no nonimmigrant category for RNs born outside of Canada or Mexico. Therefore, most nurses must immigrate abroad. Assuming that 85% of EB immigrants are able to AOS, the additional 15% who obtain immigrant visas abroad add another 32,000 to the EB backlogs.

If this were the end of the story, it would be relatively easy to estimate how long it would take for you to get your green card. However, in the world of U.S. immigration laws, things are not so simple. With a few exceptions, none of the 194 countries outside the U.S. is allowed to use over 7% of the 140,000 EB numbers allocated each year. This puts a lot of pressure on countries like China (population: 1.3 billion) and India (population: 1.1 billion) since these countries send a lot of nonimmigrants to the U.S. but whose annual limitation on EB immigrants is equal to “non- sending” countries like Andorra (population: 82,000) and Liechtenstein (population: 32,000).

In fact, the number of persons born in India with pending applications for AOS is 111,000, roughly equal to the total populations of Andorra and Liechtenstein! Of these, 48,000 are in the EB-2 category and 63,000 are in the EB-3 category.

The numbers for the other “high-sending” countries are as follows:

China                   EB-2     19,300         EB-3      6,300
Philippines             EB-2        510         EB-3     11,500
Mexico                  EB-2        211         EB-3      8,000

How about the statistics for persons born in any of the other 190 countries in the world? There are only 75,000 pending applications for AOS in the EB categories from these countries, far less than for India! Of these, 7,100 are in the EB-2 category and 63,000 are in the EB-3 category.

So what does all this mean to you?

If you are in the EB-2 category, and were born in any country other than China or India, there is little risk that you will have to wait more than a few months to get your green card after your PERM application is approved. This is because out of the 75,000 people with pending applications for AOS in the EB-2 category, almost 70,000 were born in China or India.

What are the waiting times if you were born in China or India?

Let’s take China first. Since 28.6% of each country’s EB numbers (9,800 per year) are allocated to EB-2 category, this means that only 2,802 persons, those with the oldest priority dates, can AOS each year. However, any visa numbers not used by persons in the EB-1 category which also has a yearly cap of 2,802 can also be used by those with EB-2 priority dates. A rough estimate is that 3,000 to 4,000 green cards are available each year to persons with China EB-2 priority dates. With 19,300 persons with pending applications for AOS, it is easy to see why the current priority date in the January 2010 Visa Bulletin is May 1, 2005, almost a five-year backlog.

Things look much grimmer for persons with pending AOS applications under the EB-2 category who were born in India. Why? Because the quota remains roughly the same (3,000 – 4,000 per year), but the number of persons with pending AOS is more than double (48,000) what it is for China. Though the January Visa Bulletin shows a five-year backlog, my best guess is that this is only true because the great bulk of Indian EB-2 cases have priority dates in 2005 and 2006. If your EB-2 priority date is in 2006 or 2007 and you were born in India, chances are that you will have to wait another 10 years or so to get a green card.

The outlook for those in the EB-3 category is even worse, especially for folks born in India. The number of persons with EB-3 priority dates with pending AOS applications exceeds 150,000. The number of persons in this category who were born in India is the same as the number of persons born in the other 190 countries (excluding China, the Philippines and Mexico) combined: 63,000. And since India EB-2 applicants will use up all of the remaining India EB-1 and EB-2 visa numbers, only 2,802 EB-3 visa numbers will be available annually. The results can only be described as frightening. The real backlog is over 20 years!

And what does the future hold? Perhaps the number of applicants in the EB categories is decreasing? Yes, this is true, but there is little chance that the present green card backlogs for those with EB priority dates will significantly decrease unless Congress steps up to the plate and reforms our outdated immigration laws.

The USCIS issues quarterly “Production Reports” which shows how many petitions and applications of various types were received and processed by the agency. We looked to see how many I-140s were received by the USCIS in FY2008 which began just a few weeks after July-August 2007 when all EB priority dates become current, and presumably, all eligible applicants applied for AOS.

Here is what we found: On a quarterly basis, the USCIS received 32,000; 30,000; 24,000 and 18,000 I-140s, for a total of over 100,000 I-140s in one year. Assuming USCIS approved 80-90% of these petitions, this is far short of the 140,000 annual EB quota, right? Hardly, since this only means that 80,000 to 90,000 principal beneficiaries had I-140s approved on their behalf. Taking their derivative spouses and children into account, the real number of people added to the EB queue in FY2008 was probably between 200,000 and 300,000. And remember, some EB categories require I-360s or I-526s rather than I-140s so the number of applicants is even a little larger than this. It is true that in FY2009, the number of 1-140s received by the USCIS was probably about half what it was in FY2008, but with family members added in, the total number of applicants probably will exceed 140,000.

And since most EB-2 and EB-3 applicants need to have PERM applications approved on their behalf, and the date that the PERM application was received by the U.S. Department of Labor (DOL) is the person’s priority date, wouldn’t it be interesting to know how many PERM applications are currently being processed by the DOL? Answer: As of September 23, 2009, the number was 65,800. This is important to know since some of these applications have been pending for a long time. Even if you submitted your AOS application in 2007, someone with a long-pending PERM application which finally gets approved may be in line ahead of you for a green card. And not just that one person, but his/her spouse and children as well.

We hope that this helps you to better understand the “retrogression” and why the present EB system needs to be reformed when Congress takes up immigration reform in January.

5. Success Story: Saving a Divorcee from Deportation

Presentation, hard work and attention to detail matter. Sometimes, although immigrants may have the facts and evidence on their side, they need the assistance of experienced immigration counsel to help them present their case in the right way. We were once again reminded of this fact when dealing with a new client who we will call “Ms. M”.

Ms. M scheduled a telephonic consultation with me after the USCIS in Portland, Oregon (Actually, our client lived in another state, but has asked us not to identify her state of residence.) denied her Petition to Remove the Conditions of Residence (Form I-751). She had a prior attorney who she felt did not adequately represent her before the USCIS. After reviewing her files, we agreed.

Ms. M initially entered the United States with a fiancée (K-1) visa. She married her U.S. citizen petitioner within 90 days as required. The couple lived together for over two years. During that time, she became a “conditional resident”.

Under the immigration laws, if a noncitizen obtains residence based on a marriage that is less than two years old, she will be granted conditional residence (also known as a two-year green card). Although her rights and responsibilities as a conditional resident are the same as that of a non- conditional lawful permanent resident, she must take the additional step of filing a petition to remove the conditions on her residence within two years. Although most I-751 petitions are filed jointly with the U.S. citizen spouse, there are waivers of the joint petition requirement.

During her two years of marriage, Ms. M had endured psychological and verbal abuse from her U.S. citizen husband. He would confiscate her money, follow her to work, and threaten her with deportation if she angered him. She finally left him shortly after their second anniversary. When Ms. M filed her I-751 petition, she filed it requesting an extreme cruelty waiver of the joint petition requirement. This waiver is granted when an applicant establishes that the marriage was in good faith, but that she suffered abuse or extreme cruelty from her U.S. citizen spouse.

Ms. M hired an immigration attorney to assist with her I-751 petition. She sent her attorney all the evidence she had of her life with her husband. Among the evidence was her lengthy and rambling diary discussing her life with her husband. Rather than using this diary as a starting place for a declaration, her attorney simply submitted the entire document to the USCIS. Although the diary documented the verbal and emotional abuse that Ms. M suffered, it was confusing and contained information about a former boyfriend of Ms. M’s who was also a U.S. citizen.

When Ms. M was interviewed by the USCIS, it became clear that the examiner was focusing on portions of the diary that had nothing to do with Ms. M’s immigration case, and was drawing negative inferences from her references to her former boyfriend. He sent Ms. M a Notice of Intent to Deny her I-751 petition. Her former attorney advised her that responding was pointless. Ms. M did not want to give up so easily so she responded on her own. Nevertheless, the USCIS terminated her conditional residence and placed her in removal proceedings before an Immigration Judge.

At this point, Ms. M became frightened that she would be deported from the U.S. She fired her attorney retained our law firm to represent her despite the fact that we are located in another state.

We prepared a new I-751 petition for Ms. M, this time requesting a “good faith marriage waiver” as she had by now obtained a divorce. As the name implies, this waiver requires a showing that the marriage was entered into in good faith, but has been terminated. We assisted Ms. M with preparing a new declaration explaining how she met her former spouse, describing their life together, and also discussing the circumstances that led to their divorce.

Without having to appear in person, the Immigration Judge granted our requests for postponements of Ms. M’s removal hearing until the USCIS decided her new I-751 petition. One of our attorneys flew to Portland to accompany Ms. M to her second I-751 interview. Although there were numerous questions relating to her first I-751 petition, Ms. M was fully prepared to answer. Several weeks after the interview, Ms. M was thrilled to receive a ten-year permanent resident card in the mail. Her petition had been approved!

Shortly thereafter, the Immigration Judge terminated the removal proceedings against her.

We believe that if the original I-751 petition had been carefully prepared, Ms. M would have never had to suffer the trauma of being placed in removal proceedings.

6. Immigration Trivia Quiz

Quiz Removed

7. Ask Mr. Shusterman: DOS Predicts Visa Numbers for September 2010

In an unusual move, the State Department predicts where the employment- based visa numbers would be as of September 2010 under a “best case scenario”.

The following is a quote from the January 2010 Visa Bulletin:

“WHAT ARE THE PROJECTIONS FOR CUT-OFF DATE MOVEMENT IN THE EMPLOYMENT PREFERENCES FOR THE REMAINDER OF FY-2010?

Based on current indications of demand, the best case scenarios for cut-off dates which will be reached by the end of FY-2010 are as follows:

Employment Second:
China: July through October 2005
India: February through early March 2005

If Section 202(a)(5)were to apply:
China and India: October through December 2005

Employment Third:
Worldwide: April through August 2005
China: June through September 2003
India: January through February 2002
Mexico: January through June 2004
Philippines: April through August 2005

Please be advised that the above date ranges are only estimates which are subject to fluctuations in demand during the coming months. The actual future cut-off dates cannot be guaranteed, and it is possible that some annual limits could be reached prior to the end of the fiscal year.”

Summary: EB2 waiting times for persons born in China and India would actually be longer than they are today! So would EB3 for India. However, the EB3 waiting times for persons born in other countries would be reduced somewhat.

The bottom line is that the waiting times would still be enormous. Clearly, Congressional action is required.

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 at

https://www.shusterman.com/schedule-immigration-consultation/

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. Presidents Clinton, Bush and Obama: Your Visas Are Denied!

Immigration attorneys are all too aware that U.S. immigration laws are so overly strict our last three Presidents would all be ineligible to even visit our country, much less to qualify for green cards.

Think I’m exaggerating?

Consider that a person who admits to smoking marijuana a few times, even as a teenager many years ago, is forever banned from entering the U.S.

If you were born in the Philippines, before you can qualify for a green card, you must undergo a medical examination at St. Luke’s Hospital in Manila to make sure that you do not have a dangerous contagious disease. However, the physicians at St. Luke’s frequently ask persons about past drug usage. Not just heroin and cocaine, but marijuana. Not just in the last year or two, but at any time.

If a person, even one who has waited patiently in line for his green card interview for 10 to 20 years, dares admit that he smoked a couple of joints as a teenager, his green card will be denied and he will never be able to join his family in the U.S.

Does this seem unreasonable? President Clinton admitted smoking marijuana although he claimed that he never “inhaled”. When asked about his use of drugs, President Bush shrugged off the question with the statement that “when I was young and irresponsible, I was young and irresponsible”. President Obama candidly admitted using various illegal drugs as a youth. Yet, the American people forgave each of these men their youthful indiscretions and voted for them to become the 42nd, 43rd and 44th Presidents of the United States.

Yet U.S. immigration laws do not provide for forgiveness for would be immigrants who have admitted to smoking marijuana, even in the distant past.

However, there now may be a ray of hope for at least some of the Filipinos who were honest enough to admit their past marijuana usage to physicians at St. Luke’s Hospital.

In 2006, a person applying for immigration to the U.S. at the U.S. Embassy in Manila was denied because he admitted to a physician at St. Luke’s that he had used marijuana on four occasions in the past even though he was never charged with or convicted of a crime. His waiver application was subsequently denied. He appealed this denial to USCIS’ Administrative Appeals Office (AA0) in Washington, D.C.

Over three years later, on June 17, 2009, John F. Grissom, the Acting Chief of the AAO issued a decision which cited a BIA precedent decision, Matter of K-, 7 I&N Dec. 594 (1957) which held that a “valid admission of a crime for immigration purposes requires that the alien be given an adequate definition of the crime, including all essential elements, and that it be explained in understandable terms,” a rule intended to insure “that the alien would receive fair play and to preclude any possible later claim by him that he had been entrapped into admitting the commission of a crime involving moral turpitude.”

The AAO held that this standard had not been met in this case. It overruled the decision of the Officer-in-Charge in Manila, held that no waiver was necessary and returned the matter for “further processing of the immigrant visa application.”

The AAO decision is available online at

www.uscis.gov/err/H2%20-%20Waiver%20for%20Excludability/Decisions_Issued_in_2009/Jun172009_02H2212.pdf (Link no longer operational)

The decision explains that the DHS (and by delegation, the AAO) has final responsibility over guidance to consular officers concerning inadmissibility for visa applicants. We link to the document which grants the DHS this responsibility, the Memorandum of Understanding Between Secretaries of State and Homeland Security Concerning Implementation of Section 428 of the Homeland Security Act of 2002. 

We assume that the person who is the subject of this AAO decision will eventually be admitted to the U.S. as a lawful permanent resident. And, hopefully, so will many other visa applicants who honestly answered the “marijuana question” at St. Luke’s Hospital.

But isn’t it time to change our immigration laws so that visa applicants don’t have to be dishonest if they want to qualify for green cards? If not, then we will be rewarding dishonesty and punishing those who tell the truth. If we can forgive our Presidents for their minor indiscretions, can’t we apply the same forgive and forget policy to immigrants?

Read more of our Immigration Success Stories.

10. Winner of our December 2009 Immigration Trivia Quiz

Quiz Removed

Below is the message that we received from the quiz winner:

Dear Mr. Shusterman,

The answers to the quiz are as follows:
1 – C Revlon
2 – A Laura Mercier
3 – D Iman
4 – B Max Factor

1. Revlon- Creators: Charles Revson and his brother Joseph . He was born in the famed Jewish section of Montreal, Quebec, though he later asserted his birthplace was Boston, Massachusetts
2. Laura Mercier Cosmetics – Creator Laura Mercier was born in France .
3. Iman- Creator Iman Mohamed Abdulmajid was born in Somalia, Mogadishu .
4. Max Factor – Creator Maximilian Faktorowicz (Polish-Jewish) was born in Poland.

Hi,

My name is Olga G and I live in Illinois .

I have been a subscriber to this wonderful newsletter since 2002-2003.

I am a full time mom at the moment.

I use cosmetics very occasionally, a few times a year :)

I did research on the internet by names, words, models names, google images.

Congratulations, Olga! During the first week of December, I thought that no one would be able to solve this month’s quiz. No one even tried. I am very impressed!

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

“One of the great things about this country is we get the best and the brightest talent to study here, and once they study here they start enjoying the intellectual freedom and the entrepreneurship, they decide to stay, and they start new businesses. Suddenly you’ve got a whole new generation of folks who are creating Intel or other extraordinary businesses…If those students start seeing a closed door, then we are losing what is one of our greatest competitive advantages.”

– President Obama December 3, 2009

“The time for waiting is over. This bill will be presented before Congress recesses for the holidays so that there is no excuse for inaction in the New Year. It is the product of months of collaboration with civil rights advocates, labor organizations, and members of Congress. It is an answer to too many years of pain -mothers separated from their children, workers exploited and undermined security at the border- all caused at the hands of a broken immigration system…”

– Representative Luis Gutierrez (D-Ill.) December 11, 2009

Newsletter US Immigration January 2010 – Quick Links

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December 28, 2009

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.