Volume Eighteen, Number Twelve

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 35 years of experience practicing immigration law.

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Client Reviews

Newsletter US Immigration Update December 2013

TABLE OF CONTENTS:

1. Immigration Reform Without a Pathway to Citizenship?
2. Senators Weigh in on CSPA Lawsuit
3. USCIS Launches Redesigned Websites
4. My PERM Application was Denied, Now What?
5. Success Story: O-1 visa for an Architect of Extraordinary Ability
6. Trivia Quiz: Immigrants in Rock and Roll
7. State Department Visa Bulletin for December 2013
8. Immigration Government Processing Times
9. Indian IT Company Agrees to Pay $34 Million Settlement
10. Winner of Our November 2013 Trivia Quiz!

NEWS FLASHES:

• EOIR Fact Sheet on OCAHO – The EOIR has provided a fact sheet on the Office of the Chief Administrative Hearing Officer (OCAHO), providing information on the types of cases it hears such as employer sanctions, document fraud, and unfair immigration-related employment practices. It also provides information on how OCAHO receives these types of cases, what decisions it might make concerning them, the process for reviewing OCAHO decisions and how to access them.

• Immigration “How-To” Videos – Our 50+ “How-To” Immigration Videos have been viewed over 530,000 times. Subjects include the comprehensive immigration reform (CIR) bill, how to obtain a green card, how to become a U.S. citizen, how to win your case in immigration court and how to select an immigration attorney. Our video Green Cards through Marriage has been viewed over 180,000 times. We encourage you to take advantage of this free resource.

• Immigration Relief for Certain Filipinos – On November 15, the USCIS announced that certain Filipinos who were impacted by Typhoon Haiyan (aka Yolanda) may be eligible for a variety of immigration benefits.

• Parole-in-Place Memo – On November 15, the USCIS issued an updated “parole-in-place” memo which allow certain spouses, parents and children of members of the U.S. Armed Forces (as well as reservists and veterans) who entered the U.S. without inspection to obtain parole-in-place status which will allow them to adjust their status to permanent residence in the U.S. rather than returning to their native countries and face a ten-year bar to returning to the U.S. Formerly, parole-in-place was only available to spouses of active-duty soldiers.

• Scholarship Resources for DACA Students – Since many high school students are currently in the throes of applying for college, we want to highlight some scholarship resources for those students who may be undocumented and are wondering how they will fund their higher education. We link to a list of scholarships that don’t require a SSN and are available for Deferred Action for Childhood Arrivals (DACA) students and to a recently updated student resource guide on paying for college.

• TPS Extended for Somalis – DHS has extended Temporary Protected Status (TPS) for certain nationals of Somalia by 18 months, starting on March 18, 2014 and ending on September 17, 2015. USCIS encourages eligible individuals to register or re-register as soon as possible.

• Work Authorization for Asylum Seekers – On November 4, U.S. District Court Judge Richard Jones ordered the final approval of a nationwide class action settlement agreement. The settlement will help ensure that asylum seekers, who have fled persecution in their home countries, are not unlawfully prevented from working and supporting their families while the government adjudicates their cases. The changes will commence on December 3, 2013.

1. Immigration Reform Without a Pathway to Citizenship?

If they want to chop that thing up into five pieces, as long as all five pieces get done, I don’t care what it looks like.”

The problem is that none of bills that have been considered by the House Judiciary Committee even touch on what to do about the 11 million undocumented persons living in the U.S. The Committee wants to make the border (at least the one with Mexico) more secure, make E-Verify mandatory and bring in more high-tech and agricultural workers. That’s all well and good, but aren’t they ignoring the Big Elephant in the room: What about the 11 million?

Here is the root of the problem: In the 2012 Presidential election, Hispanics and Asians voted overwhelmingly for President Obama. No surprise since his opponent’s solution to our broken immigration system was “self-deportation”.

The GOP knows that if they want to win back Hispanic and Asian voters, they must address our immigration problem. However, by passing a bill containing a Pathway to Citizenship for 11 million persons, many Republicans are afraid that they are enfranchising people who are going to vote for their opponents.

What to do?

The Chairman of the House Judiciary Committee is working on a bill which would allow the undocumented to qualify for work and travel permits, but not for green cards and citizenship. Okay, maybe a Pathway to Citizenship for the Dreamers. The Chairman of the House Oversight Committee has a slightly different take. He would grant the undocumented a six-year provisional status, and would allow them to get green cards and naturalization, but only if they qualify under current law. The rest, probably the overwhelming majority, could remain in the U.S., but only under a newly-created temporary worker category.

How are proponents of comprehensive immigration reform reacting to such proposals?

Surprisingly, a good many CIR supporters are no longer insisting on a Pathway to Citizenship. A leading immigration advocate, Representative Luis Gutierrez (D-IL), states that he is open to compromise, and seems willing to accept a bill which would protect the undocumented from deportation even if it does not offer a Pathway to Citizenship for all.

Maybe half a loaf is better than none at all, but aren’t we creating a two-tier society?

Will there be a new immigration law in 2013, or even in 2014, and what will it say? Only time will tell.

2. Senators Weigh in on the CSPA Lawsuit

When Congress passed the Child Status Protection Act (CSPA) in 2002, there was wide bipartisan support concerning the need to change the immigration law to prevent the separation of families during the waiting process.

Both the Senate and the House of Representatives passed the legislation unanimously, and it was signed into law by President Bush. One of the flaws in the immigration law that CSPA was designed to remedy was that when children turned 21 years old while waiting with their families for their green cards to be issued, they were no longer able to immigrate to the U.S. with their parents despite the fact that they had waited in line for many years, even decades.

Congress established a two-step solution to this problem. First, in order to avoid family separation due to administrative delays, the number of days that a visa petition was pending would be subtracted from the child’s age. If the resulting age was less that 21, the child could immigrate together with his parents. Second, if after this calculation the child’s age was over 21, the child would retain the priority date of the original petition. That is, he would be given credit for the years spent waiting in line. Also, the petition would automatically convert to the appropriate category. In most cases, this would be the family-based 2B category, since the child was now the unmarried adult son or daughter of a permanent resident.

Seems simple enough, but nevertheless, we have been litigating this issue in the federal courts since 2008. The government maintains that the relevant provision is ambiguous and that courts should defer to a very restrictive interpretation of the law promulgated by the Board of Immigration Appeals (BIA) in Matter of Wang in 2009. The BIA held that while the first step of the formula applies to derivative beneficiaries of all family-based and employment-based preference categories, the second step applies only to a tiny subset of family-based beneficiaries. This is a curious interpretation since both subsections of the law clearly apply to the same people. The only difference is that the first step applies to persons whose age, after performing the formula, is under 21 while the second step applies to those whose age is over 21.

The three U.S. Courts of Appeals which have issued precedential decisions regarding this issue all agree the language of the statute is unambiguous and, hence, there is no need to defer to the BIA’s decision. However, two courts (the Fifth Circuit in Texas and the Ninth Circuit in California) ruled that the statute unambiguously foreclosed the BIA’s approach, whereas the other (the Second Circuit in New York) held that the statute unambiguously required it. The Solicitor General sought Supreme Court review, arguing that the law’s language is ambiguous and that courts should defer to the BIA.

The language in dispute was first drafted by the Senate. The BIA, in Matter of Wang, curiously omitted any quotes from Senators when discussing the meaning of the disputed sentence. Wouldn’t it be helpful if Senators from both parties could speak directly to the Justices of the Supreme Court as to the meaning of the statute that they authored?

On November 4, exactly that occurred. A bipartisan coalition of current and former U.S. Senators — former Senator (now Governor) Brownback (R-KS), and Senators Feinstein (D-CA), Hatch (R-UT), McCain (R-AZ), Menendez (D-NJ) and Schumer (D-NY) submitted a legal brief to the Supreme Court. What does the brief say?

The Senators carefully explain Congress’ reasons for passing the CSPA, and clearly demonstrate the disputed subsection requires that the agency extend its benefits to all derivative beneficiary children.

The following quotes from the brief are helpful in understanding the purpose of the law.

On page 9, the Senators explain that

“Only through the broad coverage of all derivative beneficiaries could the CSPA effectively protect family unity and award credit for the years that families had already waited.”

and

“The Solicitor General’s argument that the CSPA covers only beneficiaries of F2A petitions directly conflicts with the primary purpose for which the law was enacted. In enacting this legislation, Congress meant to correct the inequities of the pre-CSPA regime in full.”

On page 16, the Senators dismiss the Solicitor General’s ambiguity argument in the strongest terms:

“The Solicitor General’s Attempt To Manufacture Ambiguity Erodes Congress’s Ability To Effect Its Will Through Clear, Unambiguous Draftsmanship.”

On page 18, the Senators condemn the executive branch’s attempt to rewrite the CSPA:

“The Solicitor General’s continuing insistence that the CSPA is ambiguous raises serious institutional concerns. While Congress can and often does rely on agency expertise to fill intentionally placed gaps in statutory language, it does not typically give an agency carte blanche to rewrite statutory language that is clear simply because the agency declares that the statute contains ‘tension.’ The Solicitor General’s attempt to read ambiguity into a statute simply because the requirements of the statute diverge from preexisting agency procedures undermines the authority of Congress. This Court should reject that attempt and reaffirm the agency’s duty to carry out the mandates of a congressional statute.”

Finally, on page 19, the Senators conclude that

“In the face of such an unambiguous congressional mandate, the existence of alleged ‘tension’ between the statute and preferred agency procedure is not sufficient to generate ambiguity where none exists. Congress has enacted a law that is clear on its face; the agency must act to faithfully carry it out.”

The Senators’ brief is both forceful and convincing. Families which are impacted by this section of CSPA may wish to read the full brief of the Senators as well as the amicus briefs submitted by the Catholic Legal Immigration Network and by Immigration Advocacy Organizations.

The Solicitor General has until November 27 to submit a reply brief.

Our firm is co-counsel in the case, and the case will be argued in the Supreme Court by Mark Fleming, who specializes in appellate litigation at WilmerHale. The Supreme Court will hear oral argument on December 10, and a decision is expected in early 2014.

3. USCIS Launches Redesigned Websites

On October 30, the USCIS introduces new websites, in English and in Spanish. The new sites are designed to enhance the user experience. In the past, I’ve always had a difficult time finding the information I needed on uscis.gov. Because of this, I made sure that our website links to the most helpful pages on USCIS website from our temporary visas page, our green cards page, our citizenship page, our forms page, our USCIS page, etc. Hopefully, this saves our users a lot of time.

However, it seems that it is much easier to find the information I need on the new USCIS website than on the old one. Bravo!

The green card menu near the top of the page contains the following items:

1. Forms
2. News
3. Citizenship
4. Green Card
5. Tools
6. Laws

Place your cursor over the word “Forms”, and a pull-down menu provides links to a lot of useful information. The first row links to the most commonly searched for USCIS forms. The second row links to a chart showing the filing fees for various types of USCIS forms. It also links to a section regarding e-filing procedures and an explanation of how to order forms by phone and by mail. Finally, there is a link to the most searched for State Department forms and a link to the CBP page explaining the new I-94 procedures. The third row breaks down the forms according to category: Citizenship, Family-Based, Employment-Based, etc.

Most of the other 5 menu items also have multiple rows of menu items which link to commonly searched for topics. The “Citizenship” tab links to various items concerning naturalization, citizenship through parents, and State Department passport information. The “Tools” tab provides links to a host of helpful services. It explains how to get a copy of your file, find a civil surgeon, check the status of your pending application, etc.

Other menu items may still need a little work. For example, the “News” item contains only 3 links in the pull-down menu. While the “News Releases” and “Alerts” links are up-to-date, the “Questions and Answers” link stops in July 2012. Perhaps there is a reason for this, but if so, the page does not explain what it is.

There are other items which need additional work. For example, when I worked as an INS Attorney (1976-82), I spent a couple of years interviewing persons claiming U.S. citizenship through their parents. The laws pertaining to “acquisition” and “derivation” of U.S. citizenship are complex, and the legal requirements changed every few years. For this reason, INS Attorneys always relied on 4 handy charts published by the government.

When I created our website in 1995, I wanted to link to these charts on the INS/USCIS website. However, it was extremely difficult to find them. When I finally did so, I linked to them from our “US Citizenship Through Parents” page. However, every few months, the government would change the URL/Address of these pages, thereby breaking my links. After repairing the broken links over a dozen times, I decided to put the 4 Nationality Charts on our website.

Ever the optimist, I hoped that the new USCIS website would make it easier to find the 4 charts. In order to test my thesis, I placed my cursor on the “Citizenship” tab and down came the various menu items. I clicked on the link entitled “Citizenship Though Parents”. Two charts instantly appeared, but where were the other 2?

I decided to try a new approach. I clicked on the website’s internal search engine which reads “What are you looking for?” and entered the words “Nationality Charts”. I got 89,900 results, but wait, the first 4 were links to the elusive Nationality Charts. Eureka!

However, when I clicked on the first link, I did not see the chart, but the following message:

“Please be aware that the Adjudicators Field Manual (AFM) Chapters 71 to 76 and Appendices 71-1 to 75-7 have been superseded by USCIS Policy Manual, Volume 12: Citizenship & Naturalization as of January 22, 2013.”

Hmm… I then clicked the “Policy Manual” link, and from there, I clicked on “Part H: Children of U.S. Citizens”. This provided me with a lot of great information, but very complex. Where were the charts? Perhaps, if I were willing to spend a considerable amount of time
clicking links, I would have found them, but for now, I’ll stick to my own website.

4. My PERM Application was Denied, Now What?

As many of our readers are aware, the majority of employment-based immigration is dependent upon the approval of the Labor Certification application, commonly known as the PERM process. If your PERM gets denied, your employer cannot move on to the next step of filing an Immigrant Visa Petition (I-140). PERM can be denied for a variety of reasons, such as the Department of Labor’s (DOL) misinterpretation of regulations or facts or even simple typographical errors. It is important to remember that the Certifying Officer’s (CO) denial is not final, and there are processes available for reconsideration and appeal.

Upon the denial of a PERM application, it is very important to examine the reasoning of the denial. Was there an error on the part of the DOL? Did they overlook any facts? Were there legal grounds cited in the denial? Depending on the cause of the denial, the attorney and client can determine the next best course of action and decide whether to submit a Motion to Reconsider with the DOL or appeal to the Board of Alien Labor Certification Appeals (BALCA).

Motion to Reconsider
When a Motion to Reconsider is filed with the DOL, it allows the CO to reconsider his original determination. If the CO reaffirms his original decision, the Motion for Reconsideration will be treated as an appeal request and the DOL will forward it to BALCA for their review. This whole process takes around 2 years!

If the attorney believes that the denial was due to a government error, current DOL policy allows for the review to be placed in a “government error review” queue, although there is no regulatory basis for motions to reconsider due to government error. If a Motion to Reconsider is filed citing “government error”, the DOL will pre-screen the case, and if they agree that it was indeed their error, they will certify the PERM application within 2 months. However, if the DOL finds that a government error did not occur, the Motion to Reconsider will be placed in the regular queue.

Our office has filed many successful Motions to Reconsider due to government errors, which has helped our clients get a speedy approval rather than having to wait for 2 years. For example, in one of our cases, the DOL denied the certification on the grounds that an incorrect newspaper was used for recruitment. In another case, they denied the certification on the basis that one the advertisements did not meet with the regulatory requirements. In both cases, the DOL placed our Motion to Reconsider in the government error queue and approved the PERM applications.

Request for BALCA Review

It is possible to directly appeal a PERM denial to BALCA without first requesting a Motion to Reconsider. This appeal is also filed directly with DOL, and upon receiving the appeal, the CO prepares an appeal file which is forwarded to BALCA. Please note that if the cases are directly sent to BALCA, the brief should only contain legal arguments and evidence that is already with the CO as of the time of the denial. Currently it takes around a year for BALCA to rule on appeals.

Both Motions for Reconsideration and BALCA reviews need to be filed within 30 days of the denial of the PERM application. This give employers and their attorneys time to develop a strategy.

Conclusion
Throughout this process it is important to remember that all is not lost if a PERM labor certification gets denied. Though at times it makes sense to file a new labor certification, attorneys and their clients should exhaust all possible remedies as provided by the law to review a denied application.

5. Success Story: O-1 Visa for an Architect of Extraordinary Ability

A few months ago, Mr. R had a Skype consultation with me to discuss his options for obtaining a temporary working visa. He had been offered a job by an architecture firm and needed to start working on a project in the United States. For a foreign worker to come to the U.S. to work for an American company, his employer needs to first file a nonimmigrant visa petition on the worker’s behalf.

After the petition has been approved by the USCIS, the foreign worker can then obtain the work visa at a U.S. Consulate abroad. Upon entering the U.S., he must present the nonimmigrant visa petition approval issued by the USCIS and his passport with the valid work visa stamp.

For many foreign professionals who want to come to the U.S. to work, a popular option is the H-1B visa. Unfortunately, the H-1B Cap for fiscal year 2014 had already been reached when Mr. R contacted our office. As such, we had to think of a suitable alternative for him.

Read more…

6. Trivia Quiz:

Quiz Removed.

 

7. State Department Visa Bulletin for December 2013

In the December 2013 Visa Bulletin, the family 2A category (spouses and children of permanent residents) failed to advance for the second month in a row.
The other family-based worldwide categories inched forward, between 2 and 5 weeks. The dates for persons born in the Philippines failed to advance in both the 1st category (unmarried sons and daughters of U.S. citizens) and the 2A category.

For persons born in Mexico, all of the family-based categories remain frozen. None advanced even a day between November and December.

The chart below tells the story in more detail:

FAMILY CATEGORIES

Categories	Worldwide	China (PRC)	Mexico	Philippines
1st	11-15-06	11-15-06	9-22-93	7-1-01
2A	9-8-13	9-8-13	9-1-13	9-8-13
2B	5-01-06	5-01-06	4-1-94	3-22-03
3rd	3-8-03	3-8-03	6-1-93	1-22-93
4th	9-08-01	9-08-01	10-22-96	6-01-90

In November 2013, the worldwide EB-1, EB-2, EB-4 and EB-5 priority dates all remain current.

China EB-2 moves forward by 1 month.

The worldwide EB-3 category advances by 1 year to October 11, 2011 with the exception of the Philippines which moves forward 3 weeks and India.

The EB-2 category for the India retrogresses over 3 1/2 years while India EB-3 retrogresses by 3 weeks. What is the reason for this?

The State Department explains as follows:

“The India Employment Second and Third preference category cut-off dates were advanced very rapidly at the end of fiscal year 2013. Those movements were based strictly on the availability of thousands of “otherwise unused” numbers which could be made available without regard to the preference per-country annual limits.

The movements have resulted in a dramatic increase in the level of applicant demand received in recent months. This has required the retrogression of those cut-off dates for December in an effort to hold number use within the numerical limits.”

The chart below tells the story in more detail:

EMPLOYMENT CATEGORIES

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	Current	11-8-08	11-15-08	Current	Current
3rd	10-1-11	10-1-11	9-01-03	10-1-11	1-08-07
Unskilled	10-1-11	10-1-11	9-01-03	10-1-11	1-08-07
4th	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th	Current	Current	Current	Current	Current

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. Indian IT Company Agrees to Pay $34 Million Settlement

Various companies have paid one million dollars or more to the government in order to settle cases involving immigration violations. However, the $34 million settlement that an Indian IT company recently agreed to pay is the largest yet.

What did the company do to bring this on itself?

The U.S. Attorneys’ Office in the East District of Texas accuses Infosys, a multi-billion dollar company based in India, of misusing B-1 business visitor visas to place foreign-born employees in professional jobs in the United States.

USCIS.gov states that persons on B-1 visas are permitted to come to the U.S. to engage in any of the following activities:

• Consulting with business associates
• Traveling for a scientific, educational, professional or business convention, or a conference on specific dates
• Settling an estate
• Negotiating a contract
• Participating in short-term training
• Transiting through the United States
• Certain air crewmen may enter the U.S. as deadhead crew with a B-1 visa

However, in order to work as a computer programmer or a systems analyst in the U.S., a person must usually possess an H-1B visa. Most H-1B employers are subject to a numerical cap which, in practice, allows them to sponsor professional employees only during the first week of April each year. Also, applying for an H-1B worker involves an expenditure of several thousand dollars in attorneys’ fees and government filing fees.

Infosys employs over 160,000 workers in more than 30 countries. Approximately 15,000 of these workers are employed in the U.S. 10,800 have H-1B visas and 1,600 have L-1B specialized knowledge visas. According to a confidential source, the number using B-1 visas is about 1,000. The company claims that it uses B-1 visas only for “legitimate business purposes”.

In the settlement agreement, the government and Infosys essentially agree to disagree. The government states that the company provided their B-1 workers with a memorandum which instructed them “to deceive U.S. Consular Officials, including specific instructions to avoid certain terminology, to secure entry of the visa holder in the United States.” Infosys, despite agreeing to pay the government $34 million, “denies and disputes any claims of systemic visa fraud, misuse of visas for competitive advantage or immigration abuse. Those claims are untrue and are assertions that remain unproven.”

The matter began as a whistleblower case brought by a disgruntled employee. A civil lawsuit by the employee was dismissed. However, in 2011, the B-1 issue raised by the employee led the Department of Justice and the DHS to audit Infosys’ I-9 forms.

This settlement does not subject Infosys to any civil or criminal judgment. It allows the company to continue to supply IT professionals to U.S. firms and to be eligible for federal contracts.

Although $34 million sounds like a lot of money to you and me, given that Infosys’ market capitalization exceeds $30 billion, the settlement amount is simply “chump change” for the company. Indeed, news of the settlement had little effect on the company’s stock price. And making the payment certainly beats spending time in Federal Prison.

However, this should be a cautionary tale for any employer thinking of toying with U.S. immigration laws, especially those who don’t have rainy day fund of several millions of dollars to tap. U.S. Attorney John Bales made the point succinctly: “We want other companies like Infosys to be on notice that we will be looking.”

Also, the settlement may aid lawmakers in the House who are trying to limit the use of H-1B and L-1B visas by IT consulting firms in rounding up the necessary votes to do so. The Senate bill (S.744) already contains such a provision.

Employers beware!

10. Winner of our November 2013 Immigration Trivia Quiz!

Quiz Removed.

 

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California, Former Immigration and Naturalization Service (INS) Attorney (1976-82), Served as Member of AILA Board of Governors (1988-97)

Law Offices of Carl Shusterman, 600 Wilshire Blvd, Suite 1550, Los Angeles, CA 90017, Phone: (213) 623-4592 x0, Fax: (213) 623-3720

“If we get several dishes together and they make up, as a group, serious immigration reform, then we can work with Republicans, provided none of the individual dishes make us so sick to our stomachs that we must leave the table.”

– Congressman Luis Gutierrez (D-IL)

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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.