Volume Fifteen, Number Three

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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 March 2010

TABLE OF CONTENTS:

• 1. Immigration Legislation in 2010: Comprehensive or Piecemeal Reform?
• 2. H-1B Filing Season Starts April 1st – Many Possible Problem Areas
• 3. Schedule of Upcoming Immigration Law Seminars
• 4. Reforming the Immigration Courts and the Board of Immigration Appeals
• 5. Success Story: Getting a PERM Denial Reversed
• 6. Immigration Trivia Quiz: The Sound of Music Knows No Bounds
• 7. Ask Mr. Shusterman: Getting a Family Released From CBP Custody
• 8. Immigration Government Processing Times
• 9. Universal Health Care Without Registered Nurses?
• 10. Winner of our February 2010 Immigration Trivia Quiz

NEWS FLASHES:

• Blog – Our weekly blog is entitled “Nation of Immigrants”. Sign up to follow our blog. We welcome your comments!
• Detention – The New York Times has created an interactive chart containing information regarding immigrant detention centers throughout the U.S.
• E-Verify Report – Remember when Congress and the President thought in 1986 that the new I-9 system would prevent undocumented immigrants from gaining employment in the U.S. Clearly, proponents of the I-9 system were wrong. These days, the government is promoting the “E-Verify” system which matches each job applicant’s information against the government’s databases. Now, a new reportwhich was submitted to the Department of Homeland Security finds that with regard to the employment of undocumented workers, E-Verify clears them for jobs 54% of the time. Why? Mostly because of identity theft. So, what’s next, mandatory fingerprinting of all workers in the U.S.? Watch out, the cure may be worse than the disease.
• Immigration Forms and Filing Locations – Increasingly, the USCIS is centralizing the filing of applications for immigration benefits at lockboxes rather than at Service Centers. In addition, the agency has modified the following forms during February: the I-485, the I-360, the I-765, the I-102 and the I-824.
• Immigration Videos – Over 80,000 persons have viewed one or more of our 29 videos regarding various immigration laws and procedures. In January, we posted three new videos online: Two concern how your family may benefit from the Child Status Protection Act. The other video explains how you may be eligible to obtain U.S. Citizenship through your parents and grandparents. One of our videos, “Green Cards through Marriage”, has been viewed over 28,000 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 “how-to” immigration videos
• Visa Bulletin – We link to the March 2010 State Department Visa Bulletin and to past Visa Bulletins
• 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. Immigration Legislation in 2010: Comprehensive or Piecemeal Reform?

A Comprehensive Immigration Reform bill (CIR ASAP) was introduced in the House of Representatives last December. However, the House will not consider this bill unless a CIR bill is first approved by the Senate.

As the health care debate demonstrates, it is more difficult to get a bill passed by the Senate than by the House of Representatives. This is because a minority of Senators can filibuster a bill in order to prevent the Senate from voting on the bill. In order to stop a filibuster, at least 60 Senators must invoke “cloture”.

The question is whether there are 60 Senators willing to support a Comprehensive Immigration Reform bill at a time when there is double-digit unemployment in the U.S.

Immigration advocates have been holding their collective breath waiting for Senators Charles Schumer (D-NY) and Lindsay Graham (R-SC) to introduce a CIR bill. We waited all through January and February, but to no avail. Neither persons with temporary visas nor lawful permanent residents can vote, and as election season grows closer, the chances of a CIR bill becoming law in 2010 grow dimmer.

On the other hand, there is bipartisan support for certain piecemeal legislative reforms. One example is the recently-introduced Start-Up Visa Act of 2010 sponsored by Senators Richard Lugar (R-Ind) and John Kerry (D-Mass):

“The StartUp Visa Act of 2010 would amend immigration law to create a new EB-6 category for immigrant entrepreneurs, drawing from existing visas under the EB-5 category, which permits foreign nationals who invest at least $1 million into the U.S., and thereby create ten jobs, to obtain a green card. After proving that he or she has secured initial investment capital and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the United States, attracted $1 million in additional investment capital or achieved $1 million in revenue, then he or she would receive permanent legal resident status.”

A person could qualify for a two-year green card under the EB-6 category with an initial investment of $250,000.

We link to a discussion draft of the bill as well as to Senator Lugar’s press release from our “Immigration Legislation” page.

It is important that immigration advocates meet with their Senators and Representatives to impress on them the need to reform our broken immigration system.

In February, I joined a group of immigration attorneys in meeting with Representative Judy Chu (D-CA), a co-sponsor of the CIR-ASAP bill.

2. H-1B Filing Season Starts April 1st – Many Possible Problem Areas

H-1B filing season will start a few weeks earlier than usual this year.

We will overnight our clients’ H-1B petitions to the USCIS on March 31 as usual. However, unlike previous years, there is no longer the possibility of a one-day approval for Labor Condition Applications (LCAs).

Under the U.S. Department of Labor’s new iCert Portal System, LCAs are taking at least 7 days to get approved, and with the anticipated last-minute rush during H-1B filing season, it is wise to file LCAs online 3-4 weeks in advance, in other words, now!

Another problem area this year concerns the recent USCIS memo entitled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements”.

The memo and the new I-129 petition form which appeared after the memo was issued on January 8, 2010 make it more difficult, and sometimes impossible, for staffing firms who hire professionals to work at third-party worksites to obtain H-1B status on their behalf. The memo states that staffing companies must demonstrate that they “control” their employee’s day-to-day tasks.

Similarly, the memo prevents corporations owned by a potential H-1B beneficiary from submitting an H-1B petition on behalf of the beneficiary. The grounds for denial would be that the beneficiary rather than the petitioning corporation will be controlling the beneficiary’s work.

For those employers and employees who are new to the H-1B process, what follows is a brief overview:

H-1B is a temporary working status for persons filling jobs which require a minimum of a Bachelors degree. The beneficiary of the H-1B petition must possess such a degree. The petitioning employer must pay the employee at the prevailing wage.

There are two numerical caps for H-1Bs: (1) A general cap of 65,000 and (2) A “Master’s Cap” of 20,000 for those who possess a higher degree from a U.S. university.

In recent years, both caps have been reached during the first week of April even though the beneficiaries of the H-1B petitions are not allowed to work in H-1B status until October 1. Last year because of the economic recession, the caps were not reached until late December. However, after a slow spring and summer, starting in late September, the number of H-1B petitions submitted spiked. We predict that the H-1B numbers will be used up much faster this year.

Of course, certain H-1B petitions are “cap-exempt” including:

1. Extensions of stay
2. Change of employers (except from a cap-exempt to a cap-subject job)
3. Concurrent employment where the worker’s first job is for a cap-exempt employer
4. Certain physicians who have received J waivers
5. Persons working “at” at universities or “at” university-related or university-affiliated employers
6. Persons working “at” non-profit research institutions
7. Persons working “at” governmental research institutions

Additionally, nationals of Singapore and Chile have the first crack at 6,800 “H1- B1” visa numbers because of Free Trade Agreements between their countries and the U.S. In reality, less than 1,000 numbers are used each year by nationals of these two countries.

We will track the usage of H-1B numbers just as we did in 2009.

3. Schedule of Upcoming Immigration Law Seminars

• • March 18 Los Angeles, California

Los Angeles County Bar Association
Immigration Law Training Course
Topic: “Introduction to Immigrant Visas”

• • March 18 6:00pm Pasadena, California

Kaplan Medical
Topic: Immigration for Physicians and Nurses

• • May 14-15 Memphis, Tennessee

Federal Bar Association
Topics: Immigration for Physicians
Law Firm Marketing

• • June 30 – July 3 Suburban Washington, D.C.

American Immigration Lawyers Association Annual Conference
Topic: “Child Status Protection Act” (Discussion Leader)

4. Reforming the Immigration Courts and the Board of Immigration Appeals

On February 2, a report entitled “Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases” was presented to the American Bar Association’s Commission on Immigration. The report, which is almost 500-pages long, was prepared on a pro bono basis by the law firm of Arnold and Porter. Those who are interested may want to read the 78-page Executive Summary of the report.

This is the first of several articles regarding the various recommendations contained in the report.

The ABA’s News Release points out that DHS “law enforcement and other officers, rather than government attorneys, initiate immigration court proceedings”.

I remember that when I served as an INS Trial Attorney 30 years ago, deportation officers, not attorneys, prepared Orders to Show Cause as NTAs were called then.

This is the equivalent of police officers, rather than the District Attorneys’ Office, initiating criminal court proceedings. Police officers are trained to apprehend criminals, not to determine whether they meet the legal standards for prosecution.

Why is it important that government attorneys rather than DHS officers initiate removal proceedings?

In this case, an example is worth a thousand words.

We currently represent a woman in removal proceedings. The woman was born in Mexico. When she was a teenager, she was petitioned for a green card by her U.S. citizen step-father. Although she was only 16 at the time, she was given the third-degree by immigration officers as to whether she was married or had any children. Satisfied that the answers to both of these questions were negative, she was told to go home, and wait for a decision to be made on her application for permanent residence.

Over two years later, she received a letter in the mail informing her that her fingerprints had expired and that the government needed to retake them. She wrote back asking for a postponement because she was “expecting a baby”. Her appointment was rescheduled and, a few months later, the INS sent her a green card in the mail. This time, no one bothered to inquire as to her marital status. Her alien registration card indicates that she was granted permanent residence as an immediate relative (minor unmarried daughter) of a U.S. citizen.

Fast forward five years. She was excited to finally be able to apply to become a citizen of the United States. After all, her husband who she married before she got her green card was now a naturalized U.S. citizen and a Staff Sergeant in the U.S. Air Force. He had served two tours of duty in Iraq. Also, their two children were both U.S. citizens. She was the only one in the family who was not a U.S. citizen.

On the day of her naturalization interview, the DHS examiner told her that her application was denied. Not only that, but she was placed in removal proceedings. She was shocked and so was her husband. They immediately called our office and scheduled an appointment to see me.

As I read her NTA, the document that initiated her removal proceedings, I could not believe my eyes. The NTA accused her of obtaining her green card by fraud!

What was the fraud that the officer was alleging? The government maintained that since she was married when the DHS mailed her a green card as an immediate relative and she failed to reveal this fact, she should be deported. Never mind that the INS should never have issued her a green card in the first place. The mistake was clearly a screw-up on the government’s part, not the result of fraud.

Long story short, we went over the head of the officer who issued the NTA and persuaded the government to withdraw the fraud charge.

However, this demonstrates why government attorneys who are familiar with the immigration laws and the definition of fraud should be the ones who issue NTAs rather than DHS officers who have no legal training and who may see fraud where none exists.

5. Success Story: Getting a PERM Denial Reversed

Imagine waiting for the approval of a labor certification application under the PERM process for over 2 years, and then unexpectedly getting a denial.

Recently, we had a case of labor certification denial of a General Operations Manager from India. He was the beneficiary of an application filed in 2007 under the EB-2 category. He was working on an H-1B beyond 6 years due to his pending labor certification under the AC-21 provisions. The denial of the PERM application meant that he could not get further H-1B extensions, and he would have to return to India after the expiration of his current H-1B stay. The only way for him to continue to work in the U.S. was to get an approval of the labor certification. It was a desperate situation.

Before explaining the Labor Department’s rationale for the denial, let us briefly explain the labor certification process for those of you not familiar with the employment-based green card process. Filing of the labor certification application is the first step in the green card process. The employer has to carry out good faith recruitment in the job market to determine if any qualified American citizens/green card holders are available to fill in the position. The recruitment consists of the placement of two Sunday advertisements in a newspaper of general circulation appropriate to the occupation and placement of a 30 day job order with the state employment office serving the area of intended employment. For professional positions, the employer is required to engage in three additional types of recruitment which can be any of the following: advertisement on the internet job sites, advertising on the employer’s website, using the services of a private employment agency or job placement agencies, campus recruitment, advertisement in a local newspaper, TV or radio. The PERM regulations also specify that most of the advertisements include the name of the employer and directs applicants to send resumes to the employer.

In this case, for one of the additional recruitment steps, the employer used the services of a private employment firm. The labor certification was denied because the advertisements placed by the private employment firm on behalf of the employer did not direct applicants to send resumes to the employer as required by the regulations. According to the denial, because the firm did not provide sufficient contact information to the applicants, this requirement had not been satisfied and the submitted documentation was inadequate.

We were surprised at the decision. As we interpreted the regulations, the job advertisement placed by the private employment firm was not required to identify the employer’s name or to direct the resumes to the employer. We advised the employer to submit a motion to reconsider the decision. Filing a new labor certification was not an option since it will not allow the H-1B worker to remain in the U.S.

In our motion to reconsider, we quoted the regulatory language regarding the advertisement (i.e. what details are to be provided in the advertisement). We argued that it would be unreasonable for the DOL to expect the advertisement requirement of directing the applicants’ resumes to the employer to apply to a private employment agency or placement agency. We explained that the specific regulation quoted by the DOL for denying the case was obviously directed to newspaper advertisements or other advertisements placed directly by the employer. It would make absolutely no sense to apply this regulation to a placement agency where they must recruit for candidates in a confidential fashion as a business necessity. If the private employment agency or the placement agency were to include its client’s contact information in its recruitment campaigns, potential employees would contact the employer directly and bypass the placement agency completely. If the DOL had intended all the advertisements to require the employer’s contact details, they would have excluded this optional recruitment step of using private employment firms / placement agencies.

DOL considered our arguments, reversed their earlier decision and approved the PERM application a few weeks later.

Read more of our Immigration Success Stories.

6. Immigration Trivia Quiz

Quiz Removed

7. Ask Mr. Shusterman: Getting a Family Released From CBP Custody

A few weeks ago, I posted a story written by one of our clients, a Registered Nurse from the Philippines employed by a hospital in the U.S., who was stopped and held by CBP officers as she and her family tried to drive north from their home in El Centro, California near the U.S.-Mexican border to Palm Springs to celebrate her husband’s birthday. The entire family had pending applications for adjustment of status, but in a bizarre twist of fate, they were held by the CBP all day and threatened with criminal charges, incarceration and deportation.

Here is the story from my point of view:

Having worked for the INS (1976-82), I always assume that government officers are trying to do their jobs to the best of their ability. However, they have tremendous power over the lives of foreign-born persons residing in the U.S., and this power is not always exercised judiciously.

When I arrived at my office in the morning, one of our legal assistants informed me that a client had left a message for me to call her. It was an emergency.

I immediately returned her call, and learned that she and her family had been stopped at an interior checkpoint on the highway heading north from El Centro to Palm Springs. They were all being held in their own car. The RN and her husband had shown the officers their EAD work permits and their children’s passports. The CBP officers told them that it was illegal for them to apply for adjustment of status since they had initially arrived in the U.S. as visitors. Further, since the I-94s in their children’s passports had expired, they could be charged with transporting illegal aliens, a criminal offense. At the very least, they were going to be taken into custody and transported to an immigration detention facility to undergo removal proceedings.

In the background, I could hear the loud barking of dogs, and a female CBP officer demanding that my client stop using her cell phone in a “secure area”. This was obviously a huge misunderstanding. I asked my client if she could hand her cell phone to the CBP officer so that I could explain that my clients were legally residing and working in the U.S. However, the CBP officer stated that she did not talk with lawyers, and that my client should terminate the phone call immediately.

Not knowing exactly where my clients were being held, I called a CBP attorney, explained the situation to him, and requested that he intervene to get my clients released. I was shocked when he replied to my request by stating the following: “So your clients have applied for adjustment of status, but their applications are still pending. Therefore, they need to return to their countries and wait for their approvals. They have no right to remain in the U.S.”

I figured that I was talking to an attorney who perhaps understood the customs side of the agency, but was completely clueless as to immigration laws and procedures. I patiently explained that persons with pending applications for adjustment of status had the right to remain in the U.S. Why else would USCIS routinely issue such persons work and travel permits? I faxed the I-485 filing receipts to the CBP attorney, and asked him to verify what I had told him with the USCIS. He agreed to do so and to call me back within an hour. However, I never heard back from him.

Fast forward to 5pm. After several more phone calls to my clients, I determined where they were being detained. I called the phone number listed on the CBP website, and got a supervisor on the phone. He was very polite and we discussed the situation in a civil manner. He informed me that my clients’ EADs had expired, but that they had continued to work in the U.S. He stated that he had no choice but to issue NTAs. I countered that if a person doesn’t apply for a new EAD a few months in advance, it is common for the old EAD to expire before the new EAD is issued. However, in those situations, if the person is adjusting status through employment, section 245(k) allows the person to adjust status in the U.S. despite a short period of unauthorized employment. Taking such persons into custody and issuing NTAs was a waste of government resources since the Immigration Judge would probably terminate proceedings to allow the person to adjust status before the USCIS. However, the supervisor, ever polite, said, “Mr. Shusterman, you may be correct, but we have to do what we have to do, and we will let the Immigration Judge decide what to do with your clients.”

I thanked him for speaking with me, and hung up the phone feeling somewhat frustrated. I thumbed through my client’s file, and suddenly noticed that we had processed the EAD extensions for her and her husband (We usually advise our clients to do this on their own in order to save attorney’s fees.), and that they had been issued new EADs valid until the summer of 2010.

I immediately called the supervisor back, and offered to fax the EAD approvals to him. He sounded somewhat shocked when I told him the news. He said that he would look into the situation immediately, and check my materials against what appeared in the government’s computers. This would take at least 45 minutes, and if everything checked out, my clients would be released.

I told him that I was leaving work, and asked if I could call him in 45 minutes from my house. I also provided him with my home phone number. He agreed.

As soon as I returned home, I called the supervisor. However, another CBP officer took my call. He informed me that the needed checks were still being performed. He called me “Carl” rather than “Mr. Shusterman” which I took as a good sign. Then he told me that all the officers at his office were impressed with my work, and that “if he ever needed an attorney, he would call me.” I was stunned, and I thanked him. He said to call back around 7 pm since my clients should be released by then.

I ate dinner with my wife and told her the story. She was born in the Philippines, and is a former INS and Customs officer. She told me that most Customs officers that she worked with knew little or nothing about Immigration laws and procedures.

At 7 pm, I called the CBP but could not get through. I called my client on her cell phone, and she informed me that she and her family had been released. It had been a horrendous day for her and her family, and she agreed to write her story for me to share with readers of my blog and newsletter.

It had been an exhausting day for me as well. I was glad it had a happy ending, but I remain concerned about the next family who might be placed in a similar situation.

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

ams@shusterman.com

However, 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. Universal Health Care Without Registered Nurses?

Both the House of Representatives and the Senate each passed health care legislation in 2009, and the Administration is hoping to craft a compromise bill which would extend health insurance to an additional 30-40 million Americans.

Although the Congressional debate was extremely contentious, one important issue was never debated: How can our country provide health care for tens of millions of uninsured persons when there are not enough registered nurses to care for patients now?

The Health Resources and Services Administration (HRSA), which is part of the U.S. Department of Health and Human Services, has projected that the shortage of nurses will approach 1,000,000 by the end of the decade. As a result of our growing RN shortage, nurses are being forced to care for additional patients. Yet, a study published in the Journal of the American Medical Association (JAMA) estimates that increasing an RN’s workload from 4 to 8 patients would result in a 30% increase in patient deaths.

Our country clearly needs more nurses. Can we educate more Americans to be nurses? One would certainty think so. Yet, despite the growing shortage, tens of thousands of potential students are being turned away from nursing schools because of shrinking state budgets.

In addition, there are tens of thousands of foreign-born registered nurses waiting abroad for the opportunity to work in the U.S. Many have already passed the NCLEX examination to be licensed in the U.S. Thousands have been sponsored by hospitals in the U.S. The Department of Labor has designated registered nurses as a shortage occupation for immigration purposes for over a quarter of a century.

So what’s the problem?

1. RNs are in the employment-based third preference (EB-3) category. Under the present system, there is a backlog of over seven years for a person to immigrate to the U.S. in the EB-3 category.
2. From 1952 to 1995, it was relatively quick and easy for U.S. hospitals to obtain temporary (H-1 and H-1A) visas for nurses to care for patients in the U.S. However, Congress allowed the H-1A program to expire in 1995.

It’s time to get realistic about health care in the U.S. Our population is rapidly aging, and without proper medical care, there will continue to be thousands of premature deaths in hospitals due to overburdened nurses.

We need to educate more RNs in the U.S. and we need to ease the restrictions on foreign-born nurses who have passed U.S. licensing examinations.

It’s just common sense.

10. Winner of our February 2010 Immigration Trivia Quiz

Quiz Removed

Here is our winning entry:

Dear Mr. Shusterman,

My name is Alex and I am an immigrant living in America. I have been a subscriber for years, but still don’t have my green card. Hopefully you could give me some advice.

As for the quiz I used Google to find the quotes. It wasn’t so hard, but took some time. I hope I will be the first one to get it right.

Thank you for the wonderful website.

Here are the answers to the Immigration Trivia Quiz:

#1
(a) Ruth Prawer Jhabvala
(b) Cologne, North Rhine-Westphalia, Germany
(c) Howards End

#2
(a) Paul Haggis
(b) London, Ontario, Canada
(c) Crash

#3
(a) M.Night Shyamalan or real name Manoj Nelliyattu Shyamalan
(b) Mahe, Pondicherry, India
(c) The Village

#4
(a) Billy Wilder
(b) Sucha, Galicia, Austria-Hungary (now Sucha Beskidzka, Poland)
(c) Sunset Blvd.

Congratulations, Alex!

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 wake-up call to anyone who thinks E-Verify is an effective remedy to stop the hiring of illegal immigrants”.

-Senator Charles Schumer (D-NY) Commenting on the new E-Verify Report

Newsletter US Immigration Update March 2010 – Quick Links

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March 1, 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.