3. Schedule of Shusterman’s Upcoming Immigration Law Seminars

• Professionals in Human Resource Association (PIHRA)
  24th Annual Legal Update
  Topic: “Immigration: What HR Professionals Need to Know”Monday, January 24th
  Doubletree Hotel Ontario Airport
  222 N. Vineyard Ave.
  Ontario, CA 91764
  9:30amTuesday, January 25th
  Sheraton Universal Hotel
  333 Universal Hollywood Dr.
  Universal City, CA 91608
  9:30amThursday, January 27th
  Crowne Plaza Hotel
  12021 Harbor Blvd.
  Garden Grove, CA 92840
  9:30am
• Beverly Hills Bar Association
  Beverly Hills, California
  January 27, 2011
  Topic: “Social Media for Attorneys”
• Immigration Boot Camp
  Pincus International
  Los Angeles, California
  March 4, 2011
  My Topics: (1) Obtaining Permanent Residence, (2) U.S. Citizenship
• AILA Annual Conference on Immigration Law
  American Immigration Lawyers Association
  San Diego, California
  June 15-18, 2011
  Discussion Leader: “Child Status Protection Act”

4. Persons in Removal Proceedings have a Right to Their A-Files

On November 10, the U.S. Court of Appeals for Ninth Circuit held, in Sazar Dent v. Holder, that a person in removal/deportation proceedings has a right to receive a copy of his administrative file.

The case involves a man born in Honduras who was brought to the U.S. as a child by an American woman, and who was later adopted by her. When the government tried to deport him for a criminal conviction, he argued that he was an American citizen by virtue of his adoption. The Immigration Judge and the BIA both agreed that he had been adopted, but found that he had failed to prove that his adoptive mother was a U.S. citizen by birth.

When he departed and re-entered the U.S., the government charged him criminally for re-entering the U.S. illegally after being ordered deported. However, they dropped the criminal case after it was demonstrated that he was never served with the BIA’s order. During these criminal proceedings, he learned that his administrative file (“A-file”) contained information about both his adoption and his mother’s citizenship status.

Documents present in his A-file which were not given to him included a naturalization application that his adopted mother had submitted on his behalf in 1982, and a copy of an Application to File Petition for Naturalization that he had submitted in 1986. Neither the IJ nor the BIA was aware of these documents when they issued their decisions ordering him removed from the U.S.

The Court held as follows:

“Dent argues that because he was not provided with the documents in his A-file, he was denied an opportunity to fully and fairly litigate his removal and defensive citizenship claim. We agree.”

The Court went on to hold more generally that, under 8 U.S.C. 1229a(c)(2)(B), “Congress has provided that to meet his burden of proof in removal proceedings, ‘the alien shall have access’ to his entry document ‘and any other records and documents, not considered by the Attorney General to be confidential, pertaining to the alien’s admission or presence in the United States.”

The Court rejected the government’s contention that to obtain a copy of his A-file, a person in removal proceedings is required to file an application under the Freedom of Information Act (FOIA) stating that “aliens in removal proceedings might not get responses to their FOIA requests before they were removed.”

Will the government now provide each respondent in removal proceedings with a copy of his or her A-file? We’ll believe it only after we see it!

5. Success Story: Using Section 245i to Help a Client Avoid Deportation

When people contact my office with an immigration problem, we first direct them to our intake questionnaire, where we ask them to fill in family, immigration and criminal history. The form is quite exhaustive, and apparently, exhausting. We receive a lot of complaints from potential clients who do not want to take the half hour or so to ensure that we are fully informed of the details of their case. I usually explain the policy, like I do in “A Good Attorney Asks a Lot of Questions,” published in Bender’s Immigration Bulletin of February 2010, as well as the “Ask Mr. Shusterman” of my April 2010 newsletter. Sometimes the smallest details that may appear insignificant to a client could make or break their immigration case.

Consider Ms. Bulayo (her name has been changed for her privacy), a Filipino nurse who came to us with a Notice to Appear – the first step in removal proceedings. She had not maintained her legal status while she waited for her employer to file her I-140. Ms. Bulayo’s previous attorney neglected to caution her of the danger of losing status for more than the 180-day grace period allowed for employment based petitions under 245(k). In fact, Ms. Bulayo did not recall ever speaking to the attorney, but only with paralegals and legal assistants.

Ms. Bulayo filed an application for adjustment of status based on her employer’s I-140, and was under the impression that things would go smoothly. She was dismayed when her application was denied by the USCIS and she was referred to the Immigration Court.

When I interviewed Ms. Bulayo about her family and immigration history as I always do during initial consultations, I ascertained that she qualified for Section 245(i), a provision that allows immigrants to adjust their status in the United States even if they have failed to maintain lawful status.

Section 245(i) is an important provision of the immigration laws. Now defunct, it provides individuals who have overstayed their visas, worked without authorization, or even entered without inspection, with a means to adjust their status in the United States despite these violations. An individual qualifies for the benefits of 245(i) if a family member or employer filed an immigrant visa petition or a labor certification for them on or before April 30, 2001, with some caveats.

Persons qualified under Section 245(i), may adjust their status, provided they pay a $1,000 penalty fee. Without this provision, a person would usually have to return to their home country to apply for an immigrant visa, which typically makes them subject to a 10-year bar before they are able to return to the U.S.

Unfortunately, Ms. Bulayo’s previous attorney did not ask her about any prior family-based petitions which may have been filed on her behalf. It turned out that in 1988 an aunt petitioned for Ms. Bulayo’s mother when Ms. Bulayo was still unmarried and under the age of 21. Thus, Ms. Bulayo was a derivative beneficiary of her aunt’s petition.

Even though Ms. Bulayo subsequently “aged-out” of her aunt’s petition, it still qualified her for the benefits of section 245(i). Although she was applying for adjustment of status based on her employer’s I-140 petition, this 1988 family- based petition qualified her for the benefits of section 245(i). Ms. Bulayo knew about the I-130 petition filed in 1988, but because she had aged-out long ago she never thought it could be of use to her.

By the time she came to us, it was too late for her case to be approved by the USCIS. Thankfully, the Immigration Judge also has authority to grant an application for adjustment of status. Attorney Amy Prokop of our firm litigated her case and was able to obtain continuances so that they could delay the case until her priority date became current.

Just last month Ms. Bulayo’s case was approved. If her prior attorney had simply asked whether anyone ever petitioned for her or her family before April 30, 2001, she could have avoided the denial of her application by USCIS and the subsequent two and a half years in immigration court.

Because of cases like this, we at the Law Offices of Carl Shusterman like to ask a lot of questions. Even if the questions might seem arbitrary or irrelevant, they are sometimes the key to a successful outcome.

Read more of our Immigration Success Stories.

6. Immigration Trivia Quiz:

Quiz Removed.

7. Ask Mr. Shusterman: Can I “Moonlight” on an H-1B Visa?

If you are an H-1B worker, you should know that you are only authorized by the U.S. Citizenship & Immigration Services (USCIS) to work for the company that sponsored you for your H-1B petition. Any gainful employment outside this company is prohibited and is considered a violation of your legal non-immigrant status. However, if you are offered a part-time job in addition to your H-1B employment, do you have to refuse?

You may not have to pass on this offer if the part-time employment you are considering is in a specialty occupation. If so, applying for a concurrent H-1B petition is an option for you. Although a concurrent H-1B petition is not limited to part-time employment it is more realistic to hold one full-time job and a second part-time job than two full-time jobs at the same time. USCIS will keep this in mind when adjudicating your concurrent H-1B petition.

So, what exactly is a concurrent H-1B petition? Well, processing a concurrent H-1B petition is no different from processing a regular H-1B petition in that the same requirements and standards apply and have to be met. The offered position must be an occupation which requires a minimum of a bachelor’s degree or its foreign equivalent; the offered wage must meet or (even better for you) exceed the prevailing wage for the occupation; and, you must possess the necessary education or its equivalent to qualify for the position.

When filing your concurrent H-1B petition, it is important for your immigration attorney to identify to the USCIS that the H-1B petition being filed on your behalf is for concurrent employment. Once your concurrent H-1B petition has been filed with USCIS you should get a decision in about three to four months. Of course, as with any regular H-1B petition, premium processing service is also available. However, why pay USCIS an extra $1,225 in filing fees when it is not really necessary? You do not have to wait for the USCIS to approve the concurrent H-1B petition before you start working with the second company. Since you are already in H-1B status, you benefit from the H-1B portability rule and you can start working for the second company as soon as your concurrent H-1B petition has been received by USCIS.

If you obtained your current H-1B status through a cap-exempt employer, another benefit to processing a concurrent H-1B petition is that your part-time employment may be with a cap-subject employer. Having a cap-subject employer means that the concurrent H-1B petition will be filed under the H-1B cap and you will be counted towards the cap. So, should you later decide to change employers you will no longer have to worry about being subject to the H-1B cap. This is an important consideration especially if the economy starts picking up and more employers start filing for H-1B petitions.

Although concurrent H-1B petitions are available to all who qualify for this option, it is most often utilized by physicians, software consultants and allied healthcare professionals. If you find yourself in a position to accept part-time employment, call your immigration lawyer to determine if you qualify for concurrent H-1B employment.

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. What is a National Interest Waiver and How can it Help me Obtain a Green Card?

A National Interest Waiver, (NIW) is an employment-based second preference immigration petition. Normally, those who qualify for the second employment-based category (EB-2) for workers holding advanced degrees, are subject to the labor certification requirement, which, while designed to protect the legal resident workforce from competition, involves several extra “hoops” for you to jump through. However, an exception exists if your employment is in the national interest. If so, you may submit an Immigrant Visa Petition (I-140) without undergoing a labor certification process. An NIW expedites the employment-based immigration process.

What are the requirements for filing a National Interest Waiver?

You must fulfill the basic requirement for the EB-2 category: possession of a Master’s degree or a Bachelor’s degree plus five years of progressive experience related to the position. In addition to this, the USCIS is rather selective. From a 1998 decision entitled New York State Department of Transportation, the agency imposed very restrictive criteria for obtaining National Interest Waivers.

The factors taken into consideration are:

• Whether the individual seeks to work in an area of “substantial intrinsic merit”;
• Whether the benefit of the proposed activity “will be national” in scope; and
• Whether the national interest would be adversely affected if a labor certification were required.

The third requirement listed is the most difficult to prove. It needs to be demonstrated that when a person is particularly distinguished in his or her field, the PERM process (labor certification) may be contrary to the national interest.

Since the PERM process requires an employer to prove that they tried and were unable to find a US worker to fill the position, if there is a willing U.S. worker who meets the minimum qualifications for the job, a PERM application may not be approved. However, the USCIS also recognizes that the PERM process may present unnecessary roadblocks in certain circumstances. For instance, if a distinguished scientist is working on a cure to a disease, it would be contrary to the national interest for the employer to replace the scientist with a minimally-qualified US worker. In these kinds of special circumstances, a foreign national can apply for an NIW, allowing the employer to bypass the PERM process.

All National Interest Waiver applicants must show that, if granted a green card, they will substantially and prospectively benefit the national economy, cultural or educational interest or welfare of the United States. The applicant must demonstrate that he or she will continue to work in his field of expertise. Further, an NIW petition must clearly show that the person’s past record would benefit our country’s national interest. Recommendation letters testifying to the foreign national’s unique skills, experience, knowledge and expertise are required.

What are the advantages of applying for a National Interest Waiver?

There are two main advantages of the National Interest Waiver petition:

1. No need for Labor Certification:The Labor Certification under PERM may be a long process taking anywhere around 2 months to 2 years. Therefore, bypassing the Labor Certification process is a great advantage of the NIW petition. Also, many employers are reluctant to sponsor a foreign employee’s green card application, and this is especially true during the present economic recession. In such a situation, an employer may not want to begin a Labor Certification process, and an alien cannot apply for a Labor Certification without an employer’s sponsorship.
2. No need for an Employer to Submit an NIW petition: A foreign national applicant can self-petition for the NIW, which means that the applicant does not need a specific U.S. employer’s sponsorship or even a job offer for his or her green card application.

These advantages can make the NIW immigration process relatively easy. With the convenience of the self-petition and without the stress of the labor certification, the NIW petition is an ideal way to immigrate, but only if you can prove that your work will benefit the national interest.

10. Winner of our November 2010 Immigration Trivia Quiz

Quiz Removed.

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

Newsletter US Immigration Update January 2011 – Quick Links

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January 3, 2011