Volume Fourteen, Number Eleven

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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.

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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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.

Client Reviews

Newsletter US Immigration Update December 2009

TABLE OF CONTENTS:

1. 65,000 H-1B Cap May be Reached Within Days – Going, Going, Gone!
2. Universal Healthcare without Enough Physicians? – Rx for IMGs
3. Immigration Enforcement: Impossible Without Immigration Reform
4. EB Immigrants: How Long Before I Get My Green Card? (Part I)
5. Success Story: Helping a Client Qualify as an EB-1 Outstanding Researcher
6. Immigration Trivia Quiz: Making the World a More Beautiful Place
7. Ask Mr. Shusterman: H-1B Surge – OPT Students, Listen Up!
8. Immigration Government Processing Times
9. USCIS Errors: Who Should Bear the Burden of Fixing Their Mistakes?
10. Winner of our November 2009 Immigration Trivia Quiz

Newsletter US Immigration December 2009 – NEWS FLASHES:

• 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/We welcome your comments!

• 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 http://www.shusterman.com/computerprofessionalsusimmigration2010.html
• Deportation Guide – We link to the new 26-page “Deportation Resources Manual: A Practical Guide for Immigrant Advocates” written by the Alabama Appleseed Center for Law & Justice, Inc. from our “Deportation” page at http://www.shusterman.com/deportationdefense.html#4
• H-1Bs and LCAs – On November 5, the USCIS announced that due to delays at the Labor Department in approving Labor Condition Applications (LCAs), it would start accepting H-1B petition filings without an approved LCA. The petitioner would, however, be required to provide that an LCA had been submitted to the Labor Department at least seven days earlier. The only acceptable evidence of filing is a copy of DOL’s email giving notice of receipt of the LCA. Upon receipt of the H-1B petition, the USCIS will mail a Request for Evidence (RFE) giving the employer 30 days to supply an approved LCA. This procedure will be in effect through March 4, 2010. We link to “USCIS Update: Temporary Acceptance of H-1B Petitions Without Department of Labor Certified Labor Condition Applications (LCAs)” from our “H-1B” page at

  http://www.shusterman.com/h1bvisaguide

• Lou Dobbs – Or should we say, “Senor Luis Dobbs”? After years of bashing undocumented workers as the cause of many of our nation’s problems in his “Broken Borders” segment on CNN, Senor Dobbs is now contemplating a run for the U.S. Senate in New Jersey. Believe it or not, Luis has decided to “reach out” to Hispanic voters.
• Military Naturalization – On November 9, the Military Families Act (S. 2757) was introduced in the Senate. The bill would allow immediate family members of active military service members to become lawful permanent residents even when the sponsoring soldier has lost his or her life in service. Also included in the bill are the sons and daughters of Filipino World War II veterans whose immigration status has been long deferred due to numerical limitations on immigrant visas.

 

• National Public Radio – For the past five years, we have linked to the most important stories in the immigration world from our “NPR” page. See

  http://www.shusterman.com/nationalpublicradiousimmigration2010.html

• Ombudsman – On November 23, DHS Secretary Janet Napolitano appointed January Contreras as the new USCIS Ombudsman. In this role she leads the Office of the USCIS Ombudsman in its efforts to interact with the public and employers to enhance the effective delivery of citizenship and immigration services. Primary efforts include helping to resolve obstacles to accessing services, identifying areas in need of improvement, and recommending solutions to improve services. For more information, see our “Ombudsman” page at

  http://www.shusterman.com/ombudsman

  We congratulate the Ombudsman’s office for recommending that the USCIS accept H-1B without approved LCAs. See above.

• Surviving Relatives Law – Attorney Charles Wheeler has written an interesting and highly-informative article concerning the law that President Obama signed on October 28 which provides immigration benefits to widows of U.S. citizen as well as surviving relatives of family-based and employment- based visa petitions where either the petitioner or the principal beneficiary dies.Charles and I will appear on a panel together in Maryland at the Annual AILA Conference in July 2010. We will be discussing the Child Status Protection Act (CSPA) and the pending litigation regarding CSPA’s “automatic conversion” clause in the U.S. Court of Appeals for the 9th Circuit.

• Visa Bulletin – We link to the December 2009 Visa Bulletin and to past Visa Bulletins from

  http://www.shusterman.com/statedepartmentvisabulletin/

• YouTube “How to” Immigration Videos – Over 50,000 persons have viewed one or more of our 26 YouTube videos regarding various immigration procedures. 15 of these videos have been viewed over 1,000 times each. One of our videos, “Green Cards through Marriage”, has been viewed well over 20,000 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

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

1. 65,000 H-1B Cap May be Reached Within Days – Going, Going, Gone!

H-1Bs are visas which allow foreign-born professionals to work in the United States. Contrary to what many people think, H-1Bs are not only computer programmers, but are physicians, researchers, scientists, health care workers, school teachers and a wide variety of professionals.

There are actually not one, but two numerical caps on the number of workers who can obtain H-1B status each year (Some H-1B petitions are exempt from these numerical caps.):

1. 20,000 persons with advanced degrees from U.S. institutions of higher learning; and
2. 65,000 other professionals.

Although H-1B workers are not permitted to begin employment until the beginning of the federal fiscal year on October 1st, U.S. employers may submit petitions on behalf of such workers six months earlier, on April 1st.

Did we say “may”? In most years, the correct word is “must”. That is because the two H-1B caps are reached during the first week of April. Our office Fed Ex’s H-1B petitions to the USCIS on the evening of March 31st.

Even then, the USCIS usually receives so many H-1B petitions during the first week of April that winners are chosen by a random lottery. In 2008, the company Google submitted 310 H-1B petitions during the first week of April, and received a mere 90 approvals.

This year is different.

Because the economy remains mired in a recession and unemployment has reached double digits, there are still a few H-1Bs numbers available even though we are nearly eight months past April 1st. The Advanced Degree Track is filled, but the 65,000 general cap has yet to be reached.

Remember that 6,800 of the H-1B cap numbers, because of Free Trade Agreements entered into in 2004 are reserved for nationals of Chile and Singapore. In past years, those visas which went usused were returned to the overall cap. However, the USCIS has not made any statement as to whether this will be done this year. Therefore, it is difficult to predict when the H-1B cap will be reached.

We track the number of H-1B petitions received by the USCIS from our “H-1B Cap Update” page at

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

As our charts indicate, as of November 27, the USCIS had received 58,900 H-1B petitions. Even assuming that all of these petitions are approved, there would still be over 6,000 remaining, correct? But with 2,000 H-1B petitions submitted each week, the H-1B cap could be reached before the end of December.

Our advice: Apply immediately, and if you not sure whether you qualify for H-1B status, take a few minutes to read our “H-1B Visa” page at

http://www.shusterman.com/h1bvisaguide

2. Universal Healthcare without Enough Physicians? – Rx for IMGs

As we prepare to extend healthcare insurance to another 40 million people in the U.S., do we have enough physicians to care for them?

According to the U.S. Department of Health and Human Services, over 25% of our population lives in medically-underserved areas where there is less than one primary-care physician for every 3,500 patients.

Even under our present healthcare system, the Association of American Medical Colleges projects a deficit of 159,000 physicians by 2025. At least 15 medical specialty societies have released studies projecting shortages in their fields. The American Academy of Family Physicians predicts a shortage of 40,000 general practice physicians within the coming decade as U.S. medical school graduates favor higher-paying specialties. Passage of universal healthcare coverage would increase the need for physicians by 35,000.

Unfortunately, in the not-so-distant past, the prevailing wisdom was that we were training too many physicians in the U.S. In 1997, a law was enacted which capped the number of medical residents and fellows in the U.S. at 24,000 per year. Despite the realization that the physician shortage is severe and growing, this cap has increased less than the growth of our country’s population during the past decade.

The Obama administration has earmarked $200 million in federal stimulus money to boost the ranks of the National Health Services Corps by 3,300 physicians and other clinicians. However, this amount pales when compared against the need for tens of thousands of additional physicians.

Despite the immense shortage of physicians, it is generally agreed that the physician shortage in the U.S. would be much worse without the presence of many thousands of International Medical Graduates (IMGs), physicians who graduated from medical schools abroad. IMGs currently comprise over 20% of all practicing physicians in the U.S.

Unfortunately, we are less than welcoming to IMGs who are foreign-born. Last year, over 3,000 IMGs who passed the required examinations and applied for U.S. residency programs were turned away. A large number of IMGs who enter U.S. residency training programs do so using exchange visitor (J-1) visas. Since J-1 visa applicants must demonstrate that they have no intention of remaining in the U.S. permanently, many IMGs are denied J-1 visas. Those who succeed in obtaining such visas are subject to the two-year home residency requirement. Upon completing their training in the U.S., they are required to return to their home countries for at least two years. Nevertheless, approximately 1,000 IMGs per year are able to obtain “waivers” of this requirement by being sponsored by an “interested government agency” in the U.S. and working a minimum of three years in a medically-underserved area, five years if they wish to immigrate by means of a National Interest Waiver.

The bottom line is that, given the current budget deficit, Congress is unlikely to appropriate the billions of dollars required to educate and train a sufficient number of physicians in the U.S. Passage of universal healthcare will make the physician shortage even more severe. Therefore, we need to extend the welcome mat to IMGs wishing to serve U.S. patients. Reforming our outdated immigration laws would be a good start.

To learn more about IMGs and our immigration laws, see

http://www.shusterman.com/physiciansusimmigration.html

3. Immigration Enforcement: Impossible Without Immigration Reform

Although former President Bush talked the talk about comprehensive immigration reform, he never walked the walk. His administration was tarnished by the creation of hundreds of detention facilities where persons were deprived of access to attorneys, to medical care and dozens of people, including applicants for asylum, died as a result.

President Obama is seeking to avoid some of these terrible consequences, but to remain “tough” regarding immigration enforcement. He is attempting to make the detention centers more humane, and to target employers rather than immigrants in his enforcement efforts.

The Administration is dramatically expanding the number of audits of employers who sponsor H-1B professionals. During fiscal year 2009 (October 1, 2008 – September 30, 2009), the USCIS conducted a little over 5,000 site visits. However, in a letter from USCIS Director Alejandro Mayorkas to Senator Charles Grassley (R-Iowa) in November, Mr. Mayorkas announced that his agency would conduct 25,000 on-site inspections of companies sponsoring H- 1B workers. See

http://www.shusterman.com/computerprofessionalsusimmigration2010.html#1

A similar situation is also occurring with respect to I-9 audits of employers suspected of hiring undocumented workers.

On July 1, ICE announced that it was mailing out I-9 audit notices on a single day to 652 employers, more than the 502 notices which were mailed to employers during the entire fiscal year 2008. On November 19, ICE Assistant Secretary John Morton announced that 1,000 more I-9 audit notices were being sent to employers. According to ICE spokesmen and others, here is a partial state-by-state breakdown of the number of businesses which have received Notices of Inspection:

• 161 – Texas (60 in or near San Antonio)
• 150 – California
• 86 – Vermont (Farms)
• 52 – Arizona
• 24 – Illinois
• 12 – Colorado (including Xcel Energy, Inc.)
• 3+ – New Jersey
• 2 – Rhode Island

The amount of fines that will be assessed in these audits will surely be in the millions of dollars, not to mention the potential criminal prosecutions.

We also link, from the same page, to “USCIS’ New Handbook for Employers” and to our article reprinted from the National Law Journal entitled “INC vs. INS”.

So, does the Administration believe in an “enforcement-only” approach? Fortunately, it does not.

On November 13, DHS Secretary Janet Napolitano gave a speech endorsing immigration reform. Secretary Napolitano said the following:

“Over the past ten months, we’ve worked to improve immigration enforcement and border security within the current legal framework. But the more work we do, the more it becomes clear that the laws themselves need to be reformed.”

She continued:

“…in order to have fully effective law enforcement, we need Congress to create the legal foundation for bringing the millions of illegal immigrants in this country out of the shadows, require them to register and pay all taxes they owe, and enforce the penalties that they will have to pay as part of earning legal status. Let me emphasize this: we will never have fully effective law enforcement or national security as long as so many millions remain in the shadows.”

We expect Congress to debate the issue of Comprehensive Immigration Reform in January 2010. We look forward to this debate.

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

Never before have the waiting times to obtain permanent residence in the U.S. been so long for persons in the employment-based categories.

Currently, only persons with EB-3 priority dates before June 1, 2002 may apply for adjustment of status, a 7 1/2 year wait. If you were born in India, the wait is 8 1/2 years. See our “Visa Bulletin” page at

http://www.shusterman.com/statedepartmentvisabulletin/

You can get a feel for the enormity of the “retrogression” by comparing the current waiting times with those from past Visa Bulletins.

For example, compare the current priority dates with those listed in the June 2007 Visa Bulletin. June 2007 was the month before all the EB numbers became current. Then, the worldwide EB-3 priority date was June 1, 2005, a two-year backlog while the EB-3 priority dates for persons born in mainland China, India and Mexico was June 1, 2003, a four-year backlog.

It is helpful to go back a bit further, say to June 2004. Believe it or not, at that time, all EB priority dates were current. That is, there were no waiting times between the approval of your labor certification and your ability to apply for adjustment of status!

As you can see, the retrogression is a comparatively recent phenomenon.

* How does the EB priority date system work?

I remember when the Immigration Act of 1990 was signed into law. The law increased the EB numbers from 56,000 to 140,000. My clients and I were elated. Finally, Congress had acted to provide an adequate number of EB slots so that U.S. companies could immigrate foreign-born workers with needed skills.

The EB numbers are allocated according to the following formula:

EB-1	28.6%
EB-2	28.6% plus any unused EB-1 numbers
EB-3	28.6% plus any unused EB-1 and EB-2 numbers
EB-4	7.1%
EB-5	7.1%

In addition, no country can use more than 7% of the worldwide numbers in any of the above categories. Therefore, nationals of a particular country are limited to no more than 9,800 EB numbers per year. Due to higher demand for EB visas from countries with large populations like China and India, the EB-2 and EB-3 backlogs often tend to be longer for persons born in these countries.

It is important to keep in mind that the 140,000 number includes not only the worker being immigrated, but the foreign-born spouse and children of the worker.

* When are persons with backlogged EB priority dates going to be able to adjust their status and become permanent residents?

At first glance, one might be inclined to state that if the backlog is 7 1/2 to 8 1/2 years for a person in the EB-3 category, this is how long a person whose employer submitted a PERM application for him or her today will have to wait to adjust status. Similarly, it seems that a person with a pending adjustment application and a June 2005 EB-3 priority date would have to wait another three to four years to adjust status.

However, such predictions distort the way that the Visa Bulletin works. Compare looking at the Visa Bulletin to viewing the stars in the sky. If you look at the North Star through a telescope, can you tell what it looks like? You may think that you can. However, when you reflect that the North Star is 430 light years away from the Earth, you realize that what you are seeing is not what the star looks like now, but what it looked like 430 years ago.

Keep this in mind when considering how long the waiting times are in the Visa Bulletin. The Visa Bulletin tells you that a person with a 7 1/2 year old EB-3 priority date may adjust status in December 2009. However, it does not predict that a person in the EB-3 category whose employer submits a PERM application today will be able to apply for adjustment of status in 7 1/2 years, nor does it predict when persons with pending applications for adjustment will become permanent residents. In other words, the Visa Bulletin tells you about the past. It does not predict the future movement of priority dates.

We will discuss how to estimate how long your real waiting time may be in the next issue of our newsletter.

In the meantime, you may wish to consult the following articles and tables which were compiled by the USCIS:

1. Questions & Answers: Pending Employment-Based Form I-485 Inventory
2. I-485 Employment-Based Inventory Statistics
3. USCIS Production Report: FY2009 Report to Congress (10-05-09)

We link to each of these documents from our “Green Cards through Employment” page at

http://www.shusterman.com/greencardsthroughemployment.html#1

5. Success Story: Helping a Client Qualify as an EB-1 Outstanding Researcher

It is not difficult to obtain the approval of a petition for an EB-1 Outstanding Researcher who is extraordinary and who has an impressive list of awards, publications, etc. However, for those researchers with outstanding, but not necessarily extraordinary qualifications, an evaluation by an experienced immigration attorney is extremely important as it may save the person several years in obtaining lawful permanent resident status. It may also free the research institution from having to undergo the PERM process.

Ms. K, who was born in India, is employed as an H-1B researcher for a leading medical research center which is one of our corporate clients. She came to our office for a legal consultation. After a detailed review of her research background, we suggested that she apply as an EB-1 Outstanding Researcher with her employer’s sponsorship.

Because she holds a Master’s degree rather than a Ph.D., Ms. K was not confident that she qualified as an Outstanding Researcher. We explained that it is not a requirement that an Outstanding Researcher possess a Ph.D. Ms. K took our advice and retained us to assist her employer in preparing a petition for her as an Outstanding Researcher. Since there is no backlog in the EB-1 category for India or any other country, we were able to submit the I-140 on her behalf and applications for adjustment of status for her and her husband simultaneously.

Ms. K was very cooperative and diligent at obtaining letters of recommendation and collecting documents in response to our requests. We made sure that she maintained her nonimmigrant H-1B status just in case the USCIS denied her EB-1 petition.

Sure enough, the USCIS challenged the EB-1 visa petition submitted on behalf of Ms. K by issuing a Request for Evidence (RFE). The Immigration Officer questioned whether Ms. K met the criteria of Outstanding Researcher, specifically citing a news article regarding Ms. K’s research work and her published scientific articles. The Officer stated that only the closing paragraph of an article we submitted mentioned her name, and that she was listed only as a co-author of the submitted scientific articles. However, even if the Officer were correct, Ms. K still met two of the six criteria for qualifying as an Outstanding Researcher. We were given 30 days to respond to the RFE.

To address the issues raised in the RFE, we cited a decision of the USCIS’s Administrative Appeals Office (AAO) which stated that under the regulation which governs what evidence must be submitted to demonstrate who is an Outstanding Researcher, 8 C.F.R. 204.5(i)(3)(i), USCIS could not require that the beneficiary meet more than two of the six enumerated criteria. Furthermore, instead of submitting new evidence, we demonstrated that Ms. K was the sole author of the research paper which attracted major media attention. Even though her mentors were listed as co-authors, it was clear that most of the research was performed by Ms. K. In addition, we submitted a list of Ms. K’s newly published research articles to supplement the petition.

To Ms. K’s great surprise, the USCIS approved the Outstanding Researcher petition just five days after we submitted our response to the RFE. At the same time, the agency approved applications for adjustment of status for Ms. K and her husband.

All in all, the process took less than one year instead of the five years it would have taken had we filed a PERM application under the EB-2 category.

The human resources manager at the medical research institution was impressed and so was Ms. K. Here is what she wrote about our law firm on a web site which rates attorneys:

“Mr. Carl Michael Shusterman’s firm…successfully obtained my GC in the EB1 Category bypassing labor within 1 year. I think he is one of the best lawyers after I went through couple of lawyers. I have been satisfied with the services of Mr. Carl Michael Shusterman and his team. I would like to express my special appreciation to Mr. S. Rajakrishna and Ms. Susan Zhang who were extremely hands-on on my case, are deeply understanding of Immigration law, extremely experienced, confident, and thorough, who are always ready for the help. Thank you! I have recommended this firm to my friends and some of them have talked to them and become their clients now. They are awesome.”

To read more of our Immigration Success Stories, see

http://www.shusterman.com/successstoriesimmigration/

6. Immigration Trivia Quiz:

Quiz Removed.

7. Ask Mr. Shusterman: H-1B Surge – OPT Students, Listen Up!

Last year, employers submitted so many H-1B petitions; the USCIS had to pick the winners by lottery.

This year, eight months after the opening of the filing season that started on April 1st, the H-1B cap has yet to be reached. However, the numbers may not last long.

During the first week of April, the USCIS received almost enough H-1B petitions to fill the 20,000 cap for persons with advanced degrees, but only 43,000 petitions against the 65,000 general cap.

Over four months later, only 2,000 more H-1B petitions had been approved. Why so few?

It’s the economy, stupid!

But apparently, despite all the gloom and doom over the high unemployment rate, U.S. employers are again starting to hire professional workers. Between September 25 and the end of November, the USCIS approved over 10,000 additional H-1B petitions bringing the total to 56,900 and forcing advanced degree professionals to compete for numbers against those with Bachelors degrees. We are tracking each new USCIS announcement with our two charts at

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

Given that 6,800 of the 65,000 visas are reserved for nationals of Chile and Singapore, the H-1B cap may be reached this week or next!

Who should act quickly to claim an H-1B number? A whole range of professionals, but certainly students working using Optional Practical Training (OPT). When you have a one-year work permit in your hand, and can easily move from employer to employer, it’s easy to become complacent.

However, if the H-1B cap is reached in a week or two, imagine what may happen next April Fools Day? Yes, another H-1B lottery. And a lot of unfortunate OPTs would have to return home.

So if you graduated from a university in the U.S. with a Bachelors, Masters or a Ph.D., don’t rest on your EAD. Ask your employer to sponsor you for an H-1B, and do so ASAP.

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. USCIS Errors: Who Should Bear the Burden of Fixing Their Mistakes?

Is a person who was deported almost 30 years ago, and returned to the U.S. without inspection a year later, subject to the permanent bar under the 1996 immigration law?

The 1996 law created the permanent bar to immigrating to the U.S. Section 212(a)(9)(C)(i)(II) provides as follows:

“(C) Aliens unlawfully present after previous immigration violations.-

(i) In general.-Any alien who-

…(II) has been ordered removed under section 235(b)(1) , section 240 , or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.”

The question is whether or not this section of law is retroactive.

When our client, Mrs. Santiago (not her real name) entered the U.S. in the early 1980s and EWI’d a year later, did this subject her to the permanent bar?

We think not, yet recently the USCIS denied her Application for Permission to Reapply for Admission to the United States After Deportation or Removal (Form I-212) on the ground that a person who is subject to the permanent bar is ineligible to have an I-212 granted under two separate BIA decisions. However, neither of the cited decisions involves a person who was deported and then returned to the United States prior to the effective date of the 1996 law.

We searched for the answer to this question on the new USCIS website. First, we looked at the Neufeld memo of May 6, 2009 entitled “Consolidation of Guidance Concerning Unlawful Presence Under Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I)”. However, since the portion of section 212(a)(9)(i) that allegedly makes Mrs. Santiago inadmissible is subsection II, rather than subsection I, the Neufeld memo does not answer our question.

Next, we looked to the USCIS’ Adjudicator’s Field Manual for guidance. We compliment the USCIS for posting a copy of the Manual online. This saves immigrants and their attorneys from having to spend $150 to buy the book which contains the Manual. Also, it is easier to navigate the online version of the Manual since it is searchable.

We link to the USCIS Adjudicator’s Field Manual from our “USCIS” page at

http://www.shusterman.com/uscitizenshipandimmigrationservices.html#1a

Unfortunately, the Manual also fails to deal with the issue of retroactivity of subsection II of the permanent bar.

So, is it possible to find an answer to our question on the Web?

We did a Google search, and found several web sites (including our own) which contain an INS memorandum entitled “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and Nationality Act (Act)” written by former General Counsel Paul Virtue which answers our question. See our “Unlawful Presence and the 3/10 Year and Permanent Bars” page at

http://www.shusterman.com/unlawfulpresencesimmigrationbars.html#1

The Virtue memo states as follows:

“Section 212(a)(9)(C)(i)(II) of the Act applies to those aliens ordered removed before or after April 1, 1997, and who enter or attempt to reenter the United States unlawfully any time on or after April 1, 1997.”

Eureka! The permanent bar is not retroactive and, therefore, does not apply to Mrs. Santiago.

We find it troubling that the Virtue memo is apparently absent from the USCIS’ new website even though it is the only guidance regarding this issue emanating from the agency during the 13 years since the law was enacted.

The agency has no regulations which implement this section of law, and does not guide its officers as to the proper interpretation of the section 212(a)(9)(c)(i)(II) in its Adjudicator’s Field Manual.

It is no wonder that the USCIS examiner mistakenly assumed that the permanent bar applied to Mrs. Santiago. And, or course, the only way for the Service’s mistake to be corrected is for Mrs. Santiago to pay the USCIS to file an appeal.

This is obviously unfair to Mrs. Santiago. There must be a better way.

We suggest that

1. USCIS.gov be revised so that all policy memoranda appear on the website;
2. The Adjudicator’s Field Manual be updated to reflect the guidance that was given to the field in 1997 by the USCIS General Counsel’s office; and
3. Where clear Service error results in a denial of benefits, the filing fee should be returned to the applicant.

P.S. – In all fairness to the USCIS, a very smart fellow named Jason Abrams located the “Virtue memo” on the USCIS website and sent us the URL. See

http://www.uscis.gov/ilink/docView/AFM/DATAOBJECTS/Appendix40-1.pdf

10. Winner of our November 2009 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)

Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550, Los Angeles, California 90017, Phone: (213) 623-4592 Fax: (213) 623-3720

“President Obama has repeated assured 12 million illegal immigrants that he will fight to give them the chance to earn the right to stay. His administration should not undermine that noble effort by carelessly lending credibility to the view that the future citizens living and working among us are a class of criminals.”

– New York Times Editorial November 27, 2009

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November 30, 2009