Volume Eleven, Number Six

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 July 2006

TABLE OF CONTENTS:

1. Comprehensive Immigration Reform: On Life Support?
2. Videos Explain Immigration for Doctors and Nurses
3. Physicians: VICTORY for MDs in Federal Appeals Court
4. Success Story: Upgrading Your Applications at DOL & CIS
5. Immigration Trivia Quiz: The End of an Era (1954)
6. Immigration Government Processing Times
7. My First Visit to India: Experiencing India’s Capital
8. Schedule of Upcoming Immigration Law Seminars
9. Chat Schedule, Transcripts, Audios & Videos
10. Winner of the June 2006 Immigration Trivia Quiz

NEWS FLASHES:

• Adjustment of Status Applications (I-485s)– Starting July 24, standalone I-485s based on approved I-140s must be filed with the CIS’ Nebraska Service Center (NSC). Forms that are filed together with I-485s like I-765s and I-131s must also be submitted to the NSC. Both the NSC and Texas Service Center will share the responsibility for processing these applications. See the CIS News Release at

  http://www.uscis.gov/graphics/publicaffairs/newsrels/BiSpec_063006PR.pdf (Link no longer operational)

  In the near future, CIS will discontinue the combined processing of I-140s and I-485s. Also, CIS will begin premium processing of I-140s.

• Affidavits of Support – On June 21, the CIS issued a final regulation regarding affidavits of support. The new rules, which will take effect on July 21, will (1) reduce the amount of documentation that a sponsor needs to submit, (2) introduce a new short form I-864EZ, (3) introduce a new I-864W form for persons who are exempt from having an affidavit of support filed on their behalf and (4) generally make the affidavit of support process less restrictive. The new rules apply for all I-485 applications pending on July 21 regardless of when the application was submitted to the CIS.
  We link to the final regulations as well as to CIS’ Fact Sheet and Questions and Answers about the new rules from our “Affidavit of Support” page at

  http://www.shusterman.com/affidavitofsupportimmigration

• All affidavit of support forms are available from our “Immigration Forms” page at

  http://www.shusterman.com/formsusimmigration/

• EADs – At the AILA Conference in San Antonio, Texas in June, CIS officials announced that, in the future, only Service Centers rather than District Offices, will issue Employment Authorization Documents (EADs). In the past, our clients have received hundreds of “interim” EADs from District Offices when CIS failed to issue EADs within the required 90 days. It is hoped that the new system will force the CIS to issue EADs within 90 days. Applicants should apply for new EADs long before their current EADs expire. The new system leaves little room for error or delay.
• H-1B Cap for Persons with Advanced Degrees in the U.S.– Although the 65,000 cap on H-1B petitions was reached in late May, employers continue to be able to submit H-1B petitions for persons who hold advanced degrees from universities in the U.S. As of June 23, the CIS had received approximately 12,000 petitions subject to this cap. The cap is 20,000, and we expect it to be reached during the next few weeks.
• H-1B Cap Exempt Petitions– On June 6, Michael Aytes, CIS’ Associate Director for Domestic Operations, issued a very helpful memorandum which has already enabled our office to obtain over a dozen H-1B visas for clients after the 65,000 cap was reached on May 25. The law provides that persons who are employed “at” (not to be confused with “by”) “an institution of higher education or a related or affiliated nonprofit entity” or at “a nonprofit research organization or a governmental research organization” are exempt from the cap. In other words, the person may be employed “by” a for- profit employer and still be cap-exempt depending on where he works “at” and what he does.
• Reinstatement of Removal– On June 22, the U.S. Supreme Court ruled, in Fernandez-Vargas v. Gonzalez, that reinstatement of removal under 241(a)(5), INA applies to aliens who illegally reentered prior to the effective date of IIRIRA. We link to the Court’s decision from

  http://www.supremecourtus.gov/opinions/05pdf/04-1376.pdf

• TPS Extended for Salvadorans– On June 15, the CIS announced that Salvadorans present in the United States in Temporary Protected Status (TPS) could renew their status for another 12 months. Additionally, their EAD work permits would be automatically extended until March 9, 2007. See

  http://www.uscis.gov/graphics/publicaffairs/newsrels/ElSalTPS_061506PR.pdf (Link no longer operational)

  Also, see a Q & A on this subject at

  http://www.uscis.gov/graphics/publicaffairs/questsans/ElSalTPS_061506QA.pdf (Link no longer operational)

• Visa Bulletin– The July 2006 Visa Bulletin was marked by severe retrogressions in worldwide family-based 1st (unmarried adult sons and daughters of U.S. citizens) and 2A (spouses and children of lawful permanent residents) categories. The Visa Bulletin did, however, contain good news for persons born in mainland China in the employment-based 1st (priority workers) and 2nd (exceptional workers, and those with advanced degrees) categories. To view the July 2006 Visa Bulletin, see our “Visa Bulletin” page at

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

1. Comprehensive Immigration Reform: On Life Support?

Senators who passed a comprehensive immigration reform bill in May, and Representatives who passed an enforcement-only immigration bill last December, continue to talk, not so much to each other, but past each other.

House and Senate Committees will contact a “road show” of public hearings in July and August, not so much to try to reach a compromise, but to win public support for their respective positions in advance of the November election.

The hearings kick off on July 5 at the U.S. Border Patrol Station in Imperial Beach, California where the House Subcommittee on International Terrorism and Nonproliferation will examine “Border Vulnerabilities and International Terrorism”. The venue will change to Laredo, Texas on July 7 though the topic will remain the same. For more information, see

http://commdocs.house.gov/committees/intlrel/hfa28499.000/hfa28499_0.htm

Also on July 5, at Independence Hall in Philadelphia, Pennsylvania, the Senate Judiciary Committee will conduct a field hearing entitled “Comprehensive Immigration Reform: Examining the Need for a Guest Worker Program.” For details and a list of witnesses, see

http://judiciary.senate.gov/hearing.cfm?id=1983 (Link no longer operational)

Polls show that most Republican voters would like to see an immigration bill enacted this year. In a conservative district in Utah last week, Representative Chris Cannon (R-UT), a strong proponent of comprehensive immigration reform easily beat back a challenge from a well-financed proponent of the House’s enforcement-only approach to immigration.

Some House Republicans have tried to fashion immigration plans which they hope might bridge the gap between the House and the Senate bills. Congressman Mike Pence (R-IND) introduced the “Border Integrity and Immigration Reform Act” which combines increases immigration enforcement with a guest worker program, but which completely rejects the legalization provisions of the Senate bill. See

http://mikepence.house.gov/News/DocumentQuery.aspx?CatagoryID=2146 (Link no longer operational)

Recently, Republicans in the Senate have signaled their House counterparts regarding their desire to reach a compromise solution. Several senators indicated that they could accept a bill which puts enforcement ahead of the implementation of the legalization and guest worker programs. Minority Leader Harry Reid (D-NV) agreed with Majority Leader Bill Frist (R-TN) to drop taxation amendments from the Senate bill, and accept those in the House bill instead.

On June 29, nine House Republicans introduced “The Securing Knowledge, Innovation, and Leadership (SKIL) Act” (H.R.5744) which would raise the H-1B cap from 65,000 to 115,000 and the EB cap from 140,000 to 290,000. Both categories would benefit from numerous exemptions to the cap.

The chief House sponsor of the SKIL bill, Representative John Shadegg (R-AZ) stated that “Unfortunately, we are not graduating the number of Americans with advanced degrees in math and sciences that our high tech and medical industries need to compete. Until we can fix the problem of not having enough highly skilled American graduates, we need to pass the SKIL Bill…We stand to potentially lose the next technological giants like Yahoo! or Google if we do not keep America’s workforce competitive. We must maintain our edge by providing opportunities to highly educated and skilled individuals interested in staying here in the U.S.”

We link to a two-page summary of the SKIL bill at

http://www.shusterman.com/pdf/skil506.pdf

The SKIL bill was introduced in the Senate in May by Senator John Cornyn (R- TX) and was subsequently incorporated into the Comprehensive Immigration Act of 2006. We discussed its effects on the H-1B and EB categories in the June 2006 issue of SHUSTERMAN’S IMMIGRATION UPDATE. See

http://www.shusterman.com/newsletter-back-issues-us-immigration/

Although the legalization and guest worker provisions of the Senate bill have been written off by many pundits, we believe that there is an excellent chance that some version of the SKIL bill will be enacted into law before the end of 2006.

2. Videos Explain Immigration for Doctors and Nurses

Please see Uur “How To” Videos Page.

3. Physicians: VICTORY for MDs in Federal Appeals Court

On June 7, the U.S. Court of Appeals for the Ninth Circuit, in Schneider v. Chertoff, overturned the decision of a Federal District Court, and ruled in favor of our plaintiff physicians, voiding significant parts of the restrictive National Interest Waiver (NIW) regulations issued by the INS in 2000.

First, the Court held that the language of the law which requires most physicians to practice in underserved areas for “an aggregate of five years” was clear, and that the INS could not establish artificial “start dates” depending on the type of nonimmigrant status of the physician. For example, one of our plaintiff physicians had worked in an AIDS Clinic in an underserved area on an O-1 (“person of extraordinary ability”) visa for over 4 years before we obtained a J waiver on his behalf. The INS regulations would have forced him to work for another 5 years in the area, for a total of 9 years before obtaining permanent residence. The Court ruled that the law requires the INS to count time worked in the underserved area in O-1 status prior to being granted a J waiver.

Similarly, two of our plaintiff physicians had completed their medical residencies in H-1B status. They had worked in underserved areas for many years before NIWs were filed on their behalf. The INS rule stated that no time worked in underserved areas could be counted toward the 5-year requirement until after the NIW petitions were approved by the agency. Again, the Court ruled that all work performed in the underserved areas, both before and after the NIW petitions were approved must be counted toward the 5 year requirement.

Second, the court ruled that the clear language of the law requires the agency to grant permanent residence to physicians whose NIW petitions were filed on or before November 1, 1998 and who practiced in underserved areas for 3 years. The court voided the portion of the INS regulation which required such petitions to be pending on the date that the law was enacted, on November 12, 1999.

Third, the Court found no basis in the law for the INS rule that physicians had to complete their 5-year service requirement in 6 years, or their 3-year service requirement in 4 years.

The Court upheld the portion of the regulations which requires physicians to establish that they are complying with the law at two separate stages, although with the voiding of the 4 and 6 year limitations, it is questionable what value this “double compliance” system would provide.

Finally, the Court declined to rule on whether specialists who agree to work in underserved areas are eligible to obtain permanent residence through NIWs. Our one plaintiff specialist and his attorney failed to respond to a request for evidence causing the agency to deny his NIW petition due to abandonment.

If necessary, we intend to file another lawsuit in order to resolve this last issue. If you are a specialist who would like to obtain permanent residence through a National Interest Waiver, we would be happy to represent you. You may schedule a legal consultation at

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

I would like to thank my associate Elif Keles, Esq. for writing and re-writing all of our legal briefs in this case until I deemed them “perfect”, and to Trina Realmuto, Esq. of AILF for writing an excellent amicus curiae (“friend of the court”) brief to the 9th Circuit and to the Director of the Legal Action Center of the American Immigration Lawyers Foundation (AILF), Nadine Wettstein, for her invaluable assistance.

All papers filed in this case as well as the oral arguments and the final decision of the Appeals Court may be accessed online at

http://www.shusterman.com/physiciansusimmigration.html#3

4. Success Story: Upgrading Your Applications at DOL & CIS

The following three stories exemplify the success that our office has had with the Department of Labor’s PERM system and with qualifying our clients under the EB-2 category. In fact, in all three cases, we received approval of the PERM application within one week of filing(!), and used the EB-2 category to avoid the current five-year backlog in the EB-3 category.

* Marketing Manager

Consider the predicament of Mr. W, a joint national of Venezuela and Israel who served as the Marketing Manager for a media design solutions company. Mr. W’s immigration strategy was initially quite simple: Since his EB-3 wife was employed by a very large and respected toy manufacturer in H-1B status, he hoped to obtain a green card by piggybacking on her case. Her employer’s law firm, however, had been dithering for years as to whether to file a Labor Certification on her behalf or wait until the new PERM system was in place. When they finally decided to act in March 2005 (only a short time before the new PERM system began) they filed a regular (non-RIR) Labor Certification on her behalf, condemning Mr. and Mrs. W to a wait of several years before the Labor Certification would be adjudicated!

Demoralized after almost a year of no movement on his wife’s application, Mr. W requested our help. We immediately filed a PERM application for him, structuring it so that he would qualify under the EB-2 category based upon the high level of skill required to assume his Marketing Managerial position (Mr. W held a Master’s degree in a marketing-related field.). Within one week of filing, Mr. W’s PERM application was approved, which enabled him and his wife to use combined processing and avoid both the labor certification and EB-3 backlogs.

* Business Development Manager

Mr. K is an Armenian national with a Master’s degree who had been hired as a Business Development Manager for a non-profit charitable organization. Filed by prior counsel, Mr. K’s H-1B visa application had been denied and appealed, forcing him to wait up to 11 months for final adjudication by the Immigration Service. Discouraged, Mr. K was forced to return to Armenia while we filed a new H-1B application with a start date of October 1. While Mr. K waited, we encouraged his employer to begin advertising for Mr. K’s EB-2 category position under the PERM regulations, and filed his PERM application as soon as he returned to the U.S. Thanks to a quick PERM approval, Mr. K has applied for his green card in EB-2 category.

* Senior Software Developer

Mr. A is a Senior Software Developer for a groundbreaking technology firm whose Labor Certification application had been pending in the EB-3 category since 2001. While his RIR Labor Certification lingered in limbo, his position was becoming more and more precarious – his original employer had already been purchased by a new company, which was itself about to be purchased. Mr. A was in the process of extending his H-1B visa for a ninth year! Because his position and credentials clearly qualified him for the EB-2 immigrant visa category (He holds a Master’s degree and performs highly technical work duties.) we felt Mr. A was an ideal candidate for the new PERM system. Mr. A’s PERM case was approved in one week and he has applied for adjustment of status.

In all three examples, we took advantage of the Department of Labor’s newfound efficiency in the PERM process, also qualifying our clients to apply for lawful permanent residence under the EB-2 immigrant visa category in order to avoid lengthy backlogs in the EB-3 category.

Read more of our Immigration Success Stories.

5. Immigration Trivia Quiz: The End of an Era (1954)

Quiz Removed

6. 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…

7. My First Visit to India: Experiencing India’s Capital

After finishing close to half of Mr. Naipul’s book about India at the airport in Goa, our Spice Air plane (which had been delayed by the fog in New Delhi for several hours) transported us northwest to New Delhi, the capital of India.

Unlike Mumbai and Goa, New Delhi was quite cool and we immediately put on light jackets. We stayed at a small hotel an hour’s taxi ride from the airport.

New Delhi is a “tiny” city compared with Mumbai with a population of “only” 10 million people. Having attended university in Scotland, it was obvious to me that the city was constructed by the British with its wide streets and “roundabouts”. Although we had been warned that it was possible to look directly at the sun in New Delhi since the air is so polluted, this admonition proved to be inaccurate. In fact, the air pollution was less than it is in some parts of Los Angeles. This was probably due to the initials “C.N.G.” that we saw on thousands of cars and buses. C.N.G. stands for Compressed Natural Gas, and if more cars and buses ran on C.N.G. in Mumbai and Los Angeles, people would be able to breathe a lot easier.

In New Delhi, we visited the Gandhi National Museum. A plaque quotes Gandhi: “Non-violence is the pitting of one’s whole soul against the will of the tyrant…it is then possible for a single individual to defy the might of an unjust empire.”

We visited Jami Masjid, India’s largest mosque, constructed by Shah Jahan, the astronomical instruments in Jantar Mantar, Humayun’s Tomb and the Qutb Minar.

We viewed various government buildings. Unfortunately, none of them were open to the public. We saw, behind closed gates, the Rashtrapati Bhavan which was originally build as the British Viceroy’s Palace, and which is now the official residence of the President of India. We also walked around a massive red sandstone arch which is called the “Gate of India” which commemorates the Indian and British soldiers who died during World War I and in numerous other wars.

We also walked through the Lahore Gate into the “Red Fort” which was constructed by Shah Jahan (who also built the Taj Mahal) and which was the seat of Mughal power until the last emperor was exiled in the mid-19th century.

One of the most spectacular buildings that we visited was the Baha’i House of Worship, a comparatively new building constructed in the 1980s. It is shaped like a 27-petalled white lotus flower, and is surrounded by fountains and park land. We removed our shoes, and ascended to the silent tranquility of the Lotus Temple. See

http://www.shusterman.com/images/lotustemple.jpg

The “real India”, however, seemed to be located in the streets of Old Delhi. We took an exciting ride on the back of a bicycle-driven “rickshaw” through the narrow streets of Old Delhi, clearing the vendors and their stalls by a matter of inches. It was thrilling as we jetted into another world in our rickshaw-like time machine.

I would be remiss if I did not mention the newspapers in India. At breakfast, we browsed through the Times of India, the Delhi Times and the Indian Express. The titles of their front page articles say it all: “There’s No Place for Love” (“Away from the prying eyes of cops and the censorious stares of passers-by, should lovers be given a place of their own in the city?”); “A Perfect 10? Duh!” (“Spare a thought for the real figure that real women want.”); “Politicians Shouldn’t Accept Bribes Below Rs 1 Lakh” and an article about the Delhi Airport entitled “Rush Hour, No Numbers, One Cop: To Grab Cab, Flex Muscles, Jump Queue.” To understand this last headline, it helps to view a photo of our arrival at the New Delhi Airport. See

http://www.shusterman.com/images/ndairport.jpg

After a few days in Delhi, we were ready to leave the big city, and board the “Palace on Wheels” for an 8-day adventure in Rajasthan.

*** TO BE CONTINUED ***

8. Schedule of Upcoming Immigration Law Seminars

• • July 8 Pacifica Radio

1:00pm
Topic: Immigration Prospects for Highly-Skilled Professionals
Listen at
KPFK in Los Angeles (90.7 FM) KPFK in Santa Barbara (98.7 FM) KPFA in Berkeley (94.1 FM) KPFT in Houston (90.1 FM) WBAI in New York City (99.5 FM) WPFW in Washington, D.C. (89.1 FM)

• • September 20 San Diego, California

4:00 – 5:15pm
Healthcare Staffing Summit
Topic: “Keys to Success in International Recruiting”

• • September 22

San Antonio, Texas
2:45pm
Topic: Unlocking the Power of the Internet for Immigration Practice, Research, and Marketing
University of Texas Law School, 30th Annual Conference

• • October 9

Los Angeles, California
9:45 – 11:15am
National Business Institute
My Topics:
Nonimmigrant Visas
Immigrant Visas
Immigration and Employment: Legal Aspect of Hiring Foreign Workers

• • October 15-17

Nashville, Tennessee
American Society for Healthcare Human Resources Administration (ASHHRA)
42th Annual Conference and Exposition

9. Chat Schedule, Transcripts, Audios & Videos

Deleted

10. Winner of our June 2006 Immigration Trivia Quiz

Quiz Removed

The following is the winning answer:
Dear Mr. Shusterman,
The athletes pictured are:

Martina Navratilova
a former World No. 1 woman tennis player. Originally from Czechoslovakia, she defected to the United States in 1975 and became a U.S. citizen in 1981. During her career she won 18 Grand Slam singles titles and 40 Grand Slam doubles titles (31 women’s doubles and 9 mixed doubles). She won the women’s singles title at Wimbledon a record 9 times. She is considered one of the greatest players of all time.

http://en.wikipedia.org/wiki/Martina_Navratilova

Albert Pujols
(born January 16, 1980 in Santo Domingo, Dominican Republic) Pujols became the first player in Major League history to hit 30 or more home runs in each of his first five seasons. On August 31st of that year, he became the first Major League player since Ted Williams to reach the 100 RBI mark in each of his first five seasons.

http://en.wikipedia.org/wiki/Albert_Pujols

Hakeem Olajuwon
(born Akeem Abdul Olajuwon on January 21, 1963 in Lagos, Nigeria) Olajuwon was arguably one of the best centers to ever play.

http://en.wikipedia.org/wiki/Hakeem_Olajuwon

I came to the US in 1998 on a student visa from India and currently am on an H1b visa. I read your web site and update regularly and thank you for it.

Thank you,
Raghu
Congratulations, Raghu!

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Trial Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, California 90017

“The disagreement is whether the Republican Party is going to be some kind of new, xenophobic, anti-foreigner party, or whether we’re going to be the party of a country that is thrilled at the growth, where businesses grow, where businesses create new jobs.”

-Congressman Chris Cannon (R-UT)

Newsletter US Immigration Update July 2006 – Quick Links

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July 2, 2006

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.