Volume Fourteen, Number Eight

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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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Client Reviews

Newsletter US Immigration Update August 2009

TABLE OF CONTENTS:

1. Immigration Legislation: Senate Bill Includes Controversial Measures
2. Class Certification Granted in CSPA “Automatic Conversion” Case
3. A Brief Legal Analysis of CSPA’s Automatic Conversion Clause
4. California Snake Oil: A Diversion from Immigration Reform
5. Success Story: Avoiding the H-1B Cap with a Little Help from the USCIS
6. Immigration Trivia Quiz: “Let’s Play!”
7. Ask Mr. Shusterman: Employers, How to Survive an I-9 Audit
8. Immigration Government Processing Times
9. How to Use Your H-1B to Qualify under Section 245K
10. Winner of our July 2009 Immigration Trivia Quiz

NEWS FLASHES:

• Beware of Immigration Fraud – On July 22, the Executive Office of Immigration Review (EOIR) cautioned immigrants to beware of immigration fraud. Specifically, EOIR warned that “Notarios,” Visa Consultants, and Immigration Consultants Are NOT Attorneys — They CANNOT Represent You in Immigration Court”. As a former INS Trial Attorney, I would like to add that removal hearings are very serious business. Make sure that the attorney that you hire is both experienced and knowledgeable in representing persons in removal proceedings. We link to the EOIR advisory notice from our “EOIR” page at

  shusterman.com/executiveofficeforimmigrationreview.html

• 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://carlshusterman.blogspot.com/

  We welcome your comments!

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

  shusterman.com/computerprofessionalsusimmigration2010.html

• Detention – On July 30, Senators Robert Menendez (D-NJ), Kirsten Gillibrand (D-MA), and Edward Kennedy (D-MA) took action to reform the Department of Homeland Security’s ever-growing immigration detention system.

• Besides Lottery entrants, others who may check their case status online include persons whose cases are pending at USCIS Service Centers, persons with pending J waivers, those with FOIA requests, and those with pending Passport applications. We also provide an 800 telephone number where persons in removal proceedings can check their case status.

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

  shusterman.com/nationalpublicradiousimmigration2010.html

• OPT Rule Survives Court Challenge – On July 17, the U.S. Courts of Appeals for the 3rd Circuit upheld a lower court ruling that the Programmers Guild lacks standing to challenge a rule published by the USCIS which grants Optional Practical Training (OPT) work permits for 29 months to certain foreign-born graduates of U.S. universities. To qualify, the student must have majored in science, technology, engineering or mathematics, have a job offer in one of these fields and the employer must enroll in the government’s “E-Verify” program. See the story in the July 27th issue of Computerworld.com which we link to from our “Computer Professionals” page at

  shusterman.com/computerprofessionalsusimmigration2010.html#1

• Religious Workers’ Premium Processing – On July 20, the USCIS resumed premium processing of R-1 petitions for certain nonimmigrant religious workers. Premium processing is only available for petitioners where there has been a successful completion of an onsite inspection by the government at the site where the beneficiary will be employed. We link to the USCIS’ Q&A on this subject from our “Premium Processing” page at

  http://www.shusterman.com/premiumprocessingimmigration

• Report: Immigration Report Vital to National Security – During the first week of July, a panel of the Council on Foreign Relations co-chaired by former Florida Governor Jeb Bush released a 165-page report entitled “U.S. Immigration Policy”. The report states that “the continued failure to devise and implement a sound and sustainable immigration policy threatens to weaken America’s economy, to jeopardize its diplomacy and to imperil its national security.” We link both to the 165-page report and to Washington Post article summarizing it from our “Immigration Articles and Reports” page at

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

• Science and Visas – The July 10 issue of Science magazine features a poll U.S. scientists done by the Pew Research Center. Scientists stated that the second “Biggest Obstacle to Research” after lack of funding, was “visa problems”.

• Therapists – A federal lawsuit caused the USCIS to back off their position that physical and occupational therapists must have M.S. or Ph.D. degrees in order to qualify for H-1B status. On July 17, the agency issued a memo informing employers of PTs and OTs who had their H-1B petitions denied solely for this reason prior to May 20 to submit a “PT/OT Service Motion Request” via e-mail to the government on or before August 12, 2009. The USCIS will then reopen the denial on their own motion.

 

• TPS Extension for Somalis – On July 27, the DHS announced an extension of 18 months for Temporary Protected Status of certain Somali nationals. Read more on the USCIS web site at

  http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/tps-designated-country-somalia/temporary-protected-status-designated-country-somalia

• Visa Bulletin – In an unexpected turn of events, the EB-2 category priority dates for China and India moved forward by more than 3 1/2 years in August. As for the family categories, change has been minimal. The August 2009 Visa Bulletin may be viewed at

  shusterman.com/statedepartmentvisabulletin/

• YouTube “How to” Immigration Videos – Over 45,000 persons have viewed one or more of our 24 YouTube videos on immigration. One of our videos, “Green Cards through Marriage”, has been viewed well over 13,000 times. Obtain free information about various aspects of U.S. immigration laws and procedures by viewing our videos at

  shusterman.com/videosusimmigration.html

  I was quoted in the July 2009 issue of the California Lawyer discussing YouTube as a means of educating the public regarding legal issues. See

  shusterman.com/videosusimmigration.html#A

1. Immigration Legislation: Senate Bill Includes Controversial Measures

On July 9, the Senate, by a vote of 84 to 6, passed a DHS funding bill which includes a variety of immigration enforcement and benefits measures. The measure now goes to a House-Senate Conference Committee which must reconcile this bill with a funding measure previously passed by the House of Representatives which contains none of the immigration amendments added by the Senate.

* ENFORCEMENT PROVISIONS

The Senate adopted an amendment offered by Senator Jim DeMint (R-SC) to provide that the DHS must complete 700 miles of actual fencing along the U.S. – Mexican border by the end of fiscal year 2010. Despite being funded for several years, the DHS has only managed to erect a fraction of this amount.

The bill also includes an amendment by Senator David Vitter (R-LA) which aims at preventing the DHS from rescinding the “No-Match” rule. Secretary Napolitano had announced her intention to do so earlier this week. This rule would require employers to fire workers who are unable to resolve discrepancies in their Social Security Records.

The bill includes an amendment by Senator Jeff Sessions (R-AL) which would effectively make the “E-Verify” program permanent for federal contractors. Not only would “E-Verify” be used to check the immigration status of new hirees, it would also apply to existing employees who are assigned to work under a federal contract. Before the Sessions’ amendment passed, 10 Democrats joined most of the Republican Senators in voting for a procedural motion. The House bill would also extend the “E-Verify” program, but only for a period two years.

However, both the mandatory “E-Verify” program for federal contractors and the implementation of the “No-Match” rule have both been enjoined by a Federal Court order since 2007. Therefore, it is not clear that either provision of the Senate bill would become effective even if they remain in the final bill after a House-Senate Conference Committee meeting, and are signed into law.

The Senate bill also contains an amendment by Senator Charles Grassley (R-IO) which allows employers, for the first time, to use the “E-Verify” program to screen existing employees as well as new hires.

DHS spokesman Matt Chandler criticized these amendments. He stated that they “are designed to prevent real progress on immigration enforcement and are a reflection of the old administration’s strategy: all show, no substance.”

* BENEFITS PROVISIONS

The Senate also adopted two amendments offered by Senator Orin Hatch (R-UT). The first would eliminate the “widow’s penalty”. This would allow foreign-born widows and orphans to remain eligible for permanent residence even when the U.S. citizen spouse/parent dies before they achieve such status. The second would extend the “Conrad 30” J waiver program for physicians and the religious worker program for non-ministers until September 30, 2012. Currently, both programs are due to expire on September 30, 2009.

Finally, the Senate bill includes an amendment by Senator Patrick Leahy (D-VT) which would make the EB-5 Regional Center Investor program permanent. Currently, the program is due to expire on September 30, 2009.

* COMMENTARY

What should we make of the Senate’s sudden interest in adding far-reaching immigration amendments to an appropriations bill?

Joanne Lin, ACLU Legislative Counsel, states, with regard to the “No-Match” rule that “while the Senate might think it has taken a step to fix illegal immigration, it has actually set into motion a rule that will jeopardize the jobs of tens of thousands of U.S. citizens who could be unjustly fired under the rule due to SSA database errors.”

Mary Giovagnoli of the Immigration Policy Center is not impressed by many of the Senate’s actions. She states that “enforcement-only amendments win on the Senate floor – bad policy, but great political theater. Unfortunately, political theater is often hard for politicians to resist when they are dealing with complex issues that defy simple solutions.”

We link to her analysis of the enforcement provisions of the Senate bill and to the ACLU’s press release from our “Media” page at

shusterman.com/mediausimmigration.html#1

Since Senator Charles Schumer (D-NY) has promised to introduce a comprehensive immigration reform bill by Labor Day, we hope that the most controversial immigration amendments to the DHS appropriations bill will be stricken by the House-Senate Conference Committee. Perhaps it would be better if major changes in our immigration laws were made after legislative hearings and an opportunity for Members of Congress to examine the arguments for and against each measure.

2. Class Certification Granted in CSPA “Automatic Conversion” Case

A Federal Judge has certified a nationwide class in a challenge to the USCIS’s restrictive interpretation of the “automatic conversion” clause in the Child Status Protection Act (CSPA) of 2002. This opens the way for children who have “aged-out” to be reunited with their parents.

The USCIS has resisted implementing this important section of law for the past seven years. Just a few weeks ago, the Board of Immigration Appeals (BIA), in Matter of Wang, adopted the government’s restrictive interpretation of the automatic conversion clause.

On July 16, Federal Judge James Selna (Central District, California), over government objections, made his ruling in the case of Costelo v. Chertoff. The lawsuit, which challenges the government’s restrictive reading of the automatic conversion clause, had been put on hold for over one year because the government had argued that the issue would soon be decided by the BIA. Our law firm joined in submitting an amicus brief written by Mary Kenney, Esq. on behalf of AILA and AILF supporting the class certification in which we argued that the Court should not give deference to Matter of Wang since the law is clear on its face.

What is the automatic conversion clause?

It consists of a single sentence in CSPA which provides as follows (references to the statute omitted):

“RETENTION OF PRIORITY DATE- If the age of an alien is determined…to be 21 years of age or older…, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

What does this mean in practice?

For example, a U.S. citizen petitions his brother and his family including their 10-year-old son in the summer of 1998. By the time that the priority date becomes “current” in 2009, the son has reached his 21st birthday. Even after subtracting the time that the visa petition was pending, he has aged-out.

The government’s position is that the father has to re-petition the son under the 2B category (unmarried, adult sons and daughters of lawful permanent residents) and go to back of the line. This means that despite the family having waited for 11 years to get their green cards, the parents will be forced to endure eight years of separation from their son. If the son marries during this eight-year period, the petition will automatically be terminated.

However, under CSPA’s automatic conversion clause, the son is entitled to the “original priority date” which was in 1998. His 4th preference petition is “converted to the appropriate category” which, since he is the unmarried son of a permanent resident, is the 2B category. Most persons with a 1998 priority date in the 2B category would be able to immediately immigrate to the U.S.

In terms of complexity, this is far from rocket science.

I wrote an article about the automatic conversion clause shortly after CSPA was signed into law in 2002. Other immigration lawyers subsequently reached the same conclusion. The BIA, in Matter of Garcia (2006), also interpreted the automatic conversion clause the same way. Unfortunately, the Board did not designate Matter of Garcia as a precedent. In terms of statutory analysis, it is very clear that the automatic conversion clause applies to derivative beneficiaries in the family-based, employment-based and diversity lottery categories.

However, despite the clear language of the law (See Topic #3 below), the government stubbornly clings to the view that the automatic conversion clause simply codifies a regulation which applies only to derivative beneficiaries of 2A visa petitions. Surprisingly, a three-judge panel of the BIA was persuaded by this argument in Matter of Wang. The petitioner in Matter of Wang has recently filed a Motion for Reconsideration and Request for En Banc Hearing before the BIA and filed a lawsuit challenging the decision in a Federal Court in Ohio.

In the Costelo class action lawsuit, the petitioners are preparing a motion for summary judgment which will soon be filed with the Court. They will also request a preliminary injunction prohibiting the government from deporting persons who qualify for benefits under the automatic conversion clause.

We are confident that the Federal Courts will allow for this much maligned section of the law to take effect in the near future, thereby benefitting tens of thousands of immigrant families.

Given the irreparable harm suffered by immigrant families over the past seven years, we are very pleased that the matter will be decided by a Federal Judge in the near future. However, we are mindful of the fact that the Costelo class action will not resolve the matter of how the automatic conversion clause applies to derivative beneficiaries in employment-based cases.

That issue is pending before the Board in Matter of Patel. However, unless the BIA backs away from its holding in Matter of Wang, another lawsuit may be necessary to resolve this matter. For a limited time, we will schedule half-price legal consultations for persons who have pending employment-based applications for permanent residence and whose sons and daughters would be eligible for green cards through “automatic conversion”. If you qualify for such a consultation, complete and send us the form at

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

Where the form asks “What type of immigration assistance are you seeking?” write “EB AUTOMATIC CONVERSION”. Also, make sure that you include your e-mail address on the form. Do not call us nor pay us for the consultation. We will notify you via e-mail whether you qualify for a half-priced consultation.

We link to the class certification and briefs in Costelo from our “CSPA” page at

shusterman.com/childstatusprotectionact.html#4

We link to the Motion for Reconsideration and Request for En Banc Hearing in Matter of Wang as well as the complaint filed in Federal Court from

shusterman.com/childstatusprotectionact.html#5

3. A Brief Legal Analysis of CSPA’s Automatic Conversion Clause

At least six federal lawsuits are pending which challenge the USCIS’ interpretation of the “automatic conversion” clause of the Child Status Protection Act (CSPA) of 2002. In one of these lawsuits, Costelo v. Chertoff, a Federal Judge has certified a nationwide class of petitioners of family-based visa petitions for their sons and daughters.

We link to each of the cases referred to in this article from our “CSPA” page at

shusterman.com/childstatusprotectionact.html

The question addressed by this article is how much, if any, deference, should the Federal Courts give the BIA’s recent decision interpreting CSPA’s automatic conversion clause. Matter of Wang, 25 I&N 28 (BIA 2009).

The automatic conversion clause of CSPA is section 203(h)(3) of the Immigration and Nationality Act as amended. In order to understand the meaning of this clause, it is important to read and understand the meaning of section 203(h) of the Act:

203(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN –

(1) IN GENERAL.– For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using–

(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by

(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.

(2) PETITIONS DESCRIBED- The petition described in this paragraph is-

(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or

(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien’s parent under subsection (a), (b), or (c).

(3) RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

(4) APPLICATION TO SELF-PETITIONS- Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.

Since section 203(h)(3) refers to “subsections (a)(2)(A) and (d)” of section 203, it is also necessary to read and understand both of these sections of law.

Section 203(a)(2)(A) provides as follows:

(a) Preference Allocation for Family-Sponsored Immigrants. – Aliens subject to the worldwide level specified in section 201(c) for family-sponsored immigrants shall be allotted visas as follows:

(2) Spouses and unmarried sons and unmarried daughters of permanent resident aliens. –

Qualified immigrants –

(A) who are the spouses or children of an alien lawfully admitted for permanent residence.

In simple English, this section of law refers to spouses and children of permanent residents who are petitioned under the family-based 2A category.

Section 203(d) provides as follows:

Treatment of family members

A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

Simply put, section 203(d) states that spouses and children of principal beneficiaries of visa petitions are entitled to permanent residence in the same category as the principal. In other words, if a U.S. citizen brother petitions his sister for a green card, not only does the sister obtain permanent residence in the family-based fourth preference category, but so do her husband and children. If a person qualifies for a green card through employment or through the visa lottery, his spouse and children also qualify under the same category.

Section 101(b)(1) defines “child” for purposes of immigrating to the U.S. In general, a child is defined as a person who is under 21 years of age and is unmarried.

Spouses and children under section 203(d) who are accompanying or following to join the principal beneficiary of a visa petition or the winner of the visa lottery are commonly referred to as “derivative beneficiaries”.

In Matter of Garcia (2006), an unpublished decision of the Board of Immigration Appeals (BIA), the Board considered the case of Maria Garcia, a “derivative beneficiary” who was born in Mexico.

On January 13, 1983, Maria’s mother was petitioned as the sister of a U.S. citizen. At that time, Maria was only nine years old.

Under section 203(d), Maria was a derivative beneficiary who would have been eligible to become a permanent resident at the same time, and in the same category, as her mother as long as she remained a “child”, that is, unmarried and under 21 years of age. However, by the time that visa numbers became available to Maria and her mother in 1996, Maria was 22 years of age. In common parlance, she had “aged-out”. By 1996, the only relief that was available to Maria was for her permanent resident mother to submit a visa petition on Maria’s behalf under the 2B category for unmarried adult sons and daughters of lawful permanent residents. Maria’s mother did just that in 1997.

However, Maria was placed in deportation proceedings, and by the time her case was decided by the BIA on June 16, 2006, visa numbers were available in the Mexican 2B category only to persons whose lawful permanent resident parent(s) had petitioned for them before October 22, 1991, a 15-year wait.

Under the law as it existed prior to CSPA, Maria would have had to wait in line for a green card twice. First, she waited from 1983 to 1996, a period of 13 years for a family-based 4th preference visa number to be current. However, she was no longer a child under section 101(b)(1) because she had reached the age of 21 before her visa number became current in 1996. Therefore, she lost her place in line for a green card. When her mother petitioned for her in the 2B category in 1997, she would have had to go to the back of a 15-year line and be separated from her mother until 2012. Furthermore, if Maria married prior to immigrating in 2012, the visa petition would automatically terminate. By then, she would be 38-years-old.

The unanimous BIA panel which decided her case in 2006 held that CSPA’s automatic conversion clause applied to Maria Garcia. The Board held that Maria was no longer a “child” for purposes of section 203(h)(1) since she was 22 years of age when her visa number under the family-based fourth preference category became current, and since the visa petition was approved the same day that it was submitted, no time could be subtracted from Maria’s age under CSPA.

Because she was still a “derivative beneficiary” under section 203(d) except that her age was more than 21 years old, the Board held that she qualified for automatic conversion of her visa petition under section 203(h)(3). They then addressed the question of what was the “appropriate category” that the visa petition should be “converted” to. The Board held as follows:

“The respondent was (and remains) her mother’s unmarried daughter, and therefore, the ‘appropriate category’ to which her petition was converted is the second preference category of family-based immigrants, i.e., the unmarried sons and daughters of lawful permanent residents. Furthermore, the respondent is entitled to retain the January 13, 1983, priority date that applied to the original fourth-preference petition, and therefore a visa number under the second-preference category is immediately available to the respondent.”

The Board, in Matter of Garcia, did not find the statutory language of section 203(h)(3) ambiguous. Since this section of law specifically applies to derivative beneficiaries as defined by section 203(d), the Board found that Maria Garcia was entitled to benefit from the automatic conversion clause. The case was remanded to the Immigration Judge to consider Maria’s application for adjustment of status.

Three years later, in Matter of Wang, the Board refused to follow the reasoning of Matter of Garcia, held that the language of section 203(h)(3) was ambiguous and ruled that CSPA’s automatic conversion clause did not apply to derivative beneficiaries.

This ruling is puzzling to say the least. How can section 203(h)(3) not apply to derivative beneficiaries when it specifically references section 203(d), the section of law which concerns derivative beneficiaries? Matter of Wang essentially deletes the automatic conversion clause’s reference to section 203(d) from the statute.

Further, the Board fails to explain what it finds “ambiguous” about the language of section 203(h)(3). It simply goes on to discuss the legislative history of this section of law despite the fact that no such legislative history exists.

The starting point of all statutory interpretation is the intent of Congress, and “‘[d]eference to the (agency’s) interpretation…is only appropriate if Congress’ intent is unclear.'” Padash v. INS, 358 F.3d 1161, 1168 (9th Cir. 2004). Where traditional tools of statutory construction reveal Congress’ intent, “deference is not required at all.”

4. California Snake Oil: A Diversion from Immigration Reform

Here in my home state, the budget is over $25 billion in the red. Many citizens are trying to find someone to blame for this mess. The Governor? The legislature? Proposition 13? No. The easiest thing to do is to blame the mess on a group with little or no political power.

This group consists of “undocumented workers” or “illegal aliens”, take your pick, or to be more precise, their U.S. citizen children.

The plan is to put a proposition on the California ballot which, if passed, would cut off welfare payments to these children. Will this solve the budget crisis? Hardly, since the cuts would be less than 4% of the budget deficit. Would such a move be challenged in court? Certainly. There is no getting around the fact that under the 14th amendment to the Constitution, these children are U.S. citizens and cannot have their legal rights abridged, no matter what the status of their parents. Will it make a lot of voters enraged against “Mexicans” and “wetbacks”? But of course…

History tends to repeat itself. Back in 1994, a bunch of zealots put anti-immigrant Proposition 187 on the ballot. The proposition would have cut health, welfare and educational benefits for illegals and, in some cases, for their U.S. citizen children. Sound familiar?

I wrote an op-ed in the Los Angeles Times about Proposition 187, warning that the ballot initiative was clearly unconstitutional. The proponents of 187 dubbed it “SOS”, short for “Save Our State”. My article was entitled “Snake Oil Salesmen”.

Proposition 187 was passed by an overwhelming majority of voters. Republican Governor Pete Wilson endorsed the proposition and went on to win the election.

Did Proposition 187 accomplish its stated goals? Hardly. The Courts declared the proposition unconstitutional. What’s more, the campaign jolted the state’s large Hispanic population into action. Millions of immigrants naturalized as American citizens and registered to vote. The Republican presence in the California State Legislature shrank to about one-third.

Hopefully, the latest attempt to demonize immigrants from Mexico and their U.S. citizen children will fail at the ballot box. In any case, it will be a colossal waste of time and money since U.S. citizens cannot legally be deprived of benefits due to the immigration status of their parents.

One can only hope that the comprehensive immigration reform bill supported by the Obama Administration will pass Congress and be signed into law this fall. Let’s get every worker in this country on the tax rolls, and handle this matter in an intelligent fashion.

We link to the latest legislative proposals from our “Immigration Legislation” page at

shusterman.com/legislationusimmigration.

5. Success Story: Avoiding the H-1B Cap with a Little Help from the USCIS

Recently, one of our corporate clients called us to request our help in securing H-1B status for a person they wished to hire.

Mr. Reddy was working as a contractor at their facility through a software consultancy firm. He was engaged in developing and implementing a new software system. The company was very impressed with Mr. Reddy, and wanted to hire him.

Read more…

6. Immigration Trivia Quiz:

Quiz Removed.

7. Ask Mr. Shusterman: Employers, How to Survive an I-9 Audit

Not surprisingly, we received many questions about I-9 audits last month from employers across the country. The following information is taken directly from the website of the U.S. Immigration and Customs Enforcement (ICE) website:

“In April, ICE implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. (On July 1), ICE announced as part of this initiative, 652 businesses around the country would be audited to determine their compliance.”

This compares with 503 businesses which underwent I-9 audits in fiscal year 2008.

ICE’s new strategy is to go after employers with “knowing” rather than merely paperwork violations of the law, and not to raid plants, imprison and bring criminal charges against undocumented workers.

Having assisted employers in coping with I-9 audits for over 20 years, we made the following blog posts to assist employers who have received Notices of Inspection, or who may receive such notices in the future. We link to these posts, entitled “I-9 Audits: 7 Tips for Employers” (July 6) and “Employers Caught Up in a Catch-22” (July 1) from our “Nation of Immigrants Blog Page” at

shusterman.com/blognationofimmigrants/

We also posted two new videos entitled “How to Survive An I-9 Audit (Parts I and II) on our “Free Immigration Advice on YouTube” page at

shusterman.com/videosusimmigration.html#9

How did the government select the 652 employers who it served with Notices of Inspection?

Of course, the government does not publish this type of information.

However, as a former INS Attorney (1976-82) who ordered many hundreds of investigations, I can provide you with some generalized information on this subject. I believe that the leads came from the following sources:

1. Some employers unwisely submit applications for undocumented workers on their payroll for alien labor certification (aka PERM applications) to the U.S. Department of Labor. If such an application indicates that the status of the person being applied for does not authorize them to work for the employer, the government will be able to carry its burden of demonstrating that the employer committed a “knowing” violation of the employer sanctions laws;
2. Where a person complains that their identity is being used by another individual, the government may be able to track the workplace of the person who is using the stolen social security number;
3. A person with knowledge of the company’s hiring practices or personnel (e.g., a former employee or a competing business owner) files a complaint with ICE.

Ironically, the employers who are most vulnerable to the second and third types of complaints are users of the government’s “E-Verify” program. Since E-Verify collects the names, social security numbers, etc. of all new hires, it is easy for the government to match names and personal information of employees with that found in the complaints.

What’s an employer to do? Simply sit and wait for an I-9 audit? We think not.

We recommend that all employers read and study USCIS’ 64-page “Handbook for Employers” which we link to from our “Employers’ Information Guide” at

shusterman.com/employersimmigrationguide/#9

We expect that many thousands of employers will have their form I-9s audited in the coming year. As stated in our blog posts and videos, savvy employers will have experienced immigration attorneys assist them in auditing their I-9 forms long before they receive a notice from ICE. The money that they spent on legal fees will be small indeed compared to the cost of being fined and possibly defending against criminal penalties brought on by an I-9 audit.

Many employers have been fined many hundreds of thousands of dollars after their I-9s were audited. In some cases, the government has assessed fines exceeding $1,000,000.

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. How to Use Your H-1B to Qualify under Section 245K

During the past few months, there have been no green cards available for persons in the employment-based third preference category (EB-3) and long backlogs in the EB-2 category for persons born in India and China.

So, with few green cards to grant, why has the USCIS been scheduling interviews for persons with pending applications for adjustment of status in these categories?

The short answer is that just because the USCIS cannot grant most EB-3 and EB-2 applicants’ green cards, the agency can take advantage of the lull in applications for adjustment of status to deny persons with pending applications.

How can they do that? Easy!

Let’s say that a person was out-of-status for more than 180 days since their most recent admission to the U.S. Denied! Not qualified for adjustment of status under section 245K of the immigration law.

The irony is that section 245K was added to the law by Congress in order to make the requirements for adjustment of status less onerous for employment-based applicants. It allows persons to adjust their status to permanent residence as long as they were not engaged in unauthorized employment or were out-of-status for 180 days or more since their most recent admission to the U.S.

By way of contrast, persons in the family-based preference categories (who are not immediate relatives of U.S. citizens) can not adjust their status if they have engaged in unauthorized employment or been out-of-status AT ANY TIME.

Let’s say that one time during the many years that you were in H-1B status, you lost your job and were out of work for over 180 days. Adjustment of status denied!

Or maybe you moonlighted at another job without INS’s (This was in 2003!) permission. Adjustment of status denied!

There are endless variations on this sad scenario. But not only will your application for adjustment of status be denied, but the USCIS will only be too eager to issue a notice for you to appear before an Immigration Judge in removal proceedings!

All those years of working in the U.S. and paying your taxes, all for naught?

Not so fast!

If you are still qualified for an H-1B or an L-1 status, there is a solution. Simply leave the U.S. and return using your visa or obtain a new visa. And poof! Upon returning to the U.S., you will once again be qualified to adjust status under section 245K.

Why?

Because the time that you were out-of-status or engaged in unauthorized employment occurred before your last admission to the U.S. This does not bar you from immediately re-applying for adjustment of status under section 245K.

Not bad, am I right?

A couple of weeks ago, one of our physician clients was denied adjustment of status because he had moonlighted without authorization many years ago, and had never informed us. At the beginning of July, he approached us with apologies and tears in his eyes. Was the future that he had planned in the United States suddenly over?

Not at all.

Two weeks later, we obtained an approved H-1B petition for him. He was granted a visa in his country last week, and returned to the U.S. yesterday. Next week, we will resubmit an application for adjustment of status for him under section 245K.

No harm, no foul.

Read USCIS’ memorandum regarding adjustment of status under section 245K from our “Adjustment of Status” page at

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

10. Winner of our July 2009 Immigration Trivia Quiz

Quiz Removed.

Carl Shusterman (aka the “Big Lawyer” ;-)

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

“Senators Robert Menendez of New Jersey and Kirsten Gillibrand of New York have introduced bills to force the department to adopt legally enforceable rules, with real penalties, for detention centers. Mr. Obama and his homeland security secretary, Janet Napolitano, did not create the system, nor is six months enough to take it apart. But at some point that work must begin.”

– New York Times Editorial August 1, 2009

“Extremely happy with the service. Fees are very reasonable for the quality of service that they provide. Hired their services a few years ago after 2 lawyers told me my case was hopeless and advised me to go back to my country of origin. I got my greencard December 2011.” (More client reviews…)

Newsletter US Immigration Update August 2009 – Quick Links

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August 2, 2009