Volume Nine, Number One

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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Newsletter US Immigration Update January 2004

TABLE OF CONTENTS:

• 1. February 2004 State Department Visa Bulletin
• 2. Immigration Government Processing Times
• 3. President Proposes New Guest Worker/Legalization Program
• 4. Physicians: HHS J Waiver Program – Less is More?
• 5. Immigration Trivia Quiz: And the Winner Is…?
• 6. Why GOOD People Get BAD Immigration Law Advice – Part II
• 7. Naturalization: Three Good Reasons Not to Apply
• 8. Nurses: California Heading Toward a Public Health Crisis
• 9. Chat Schedule, Transcripts, Audios & Videos
• 10. Answers to the December 2004 Immigration Trivia Quiz

NEWS FLASHES:

• BIA Disputes ABA Report– In the November 2003 issue of SHUSTERMAN’S IMMIGRATION UPDATE, we reported on an ABA Commission Report which criticized Attorney General Ashcroft’s “procedural reforms” at the Board of Immigration Appeals and linked to an article in the National Law Journal which was critical of these reforms. See

  http://www.shusterman.com/newsletterusimmigrationnovember2003.html#6

  On December 22, the BIA Chairman took issue with the Report’s findings. In a three-page letter, he concluded that “to the extent the ABA’s Findings and Recommendations and the Dorsey and Whitney Study suggest that the Board is superficially reviewing large numbers of cases, they are simply wrong.” The complete text of the letter may be accessed at

  http://www.usdoj.gov/eoir/press/03/ABA.pdf

  We also link to the Chairman’s two-page response to the National Law Journal article at

  http://www.usdoj.gov/eoir/press/03/BIANLJresponse120803.pdf

• Border Enforcement– In a December 2003 article, Marc Cooper examines some of the unintended consequences of increased immigration enforcement along certain segments of the U.S.-Mexican border. Although the number of border patrol officers and illegal immigrants in the U.S. both continue to grow, it is much more hazardous now to cross the border than it was a few years ago. In 1995, 61 people died trying to cross the border. Today, the figure is over 400 per year. Cooper points out that in the 28-year history of the Berlin Wall, only 287 people died trying to cross it. We link to Cooper’s article “On the Border of Hypocrisy” from our “Immigration Reports and Organizations” page at

  http://www.shusterman.com/immigrationorganizations.html#2

• US VISIT– The first stage of the Visitor and Immigration Status Indication Technology (US VISIT) system was launched on January 5. When complete, US VISIT will record the entries and departures of nonimmigrants to and from the U.S. In its initial stage, the system takes the index fingerprints and digital photographs of certain nonimmigrants arriving at 115 airports and 14 seaports in the U.S. This biometric information is checked against various government databases. Nonimmigrants using the Visa Waiver Program are exempt from US VISIT.During the next two years, the same information will be collected at land ports of entry and upon departure from the U.S. We link to the Department of Homeland Security’s (DHS) “US VISIT” web page from our “DHS” web page at

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

1. February 2004 State Department Visa Bulletin

The February 2004 Visa Bulletin has yet to be released by the State Department. We will post the Visa Bulletin online at

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

as this occurs.

However, because of the tremendous interest in the President’s speech today, we are e-mailing this issue of our newsletter in advance of the publication of the Visa Bulletin.

2. 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…

3. President Proposes New Guest Worker/Legalization Program

On January 7, President Bush announced a major new immigration initiative which, if passed into law, would be the most significant change to immigration law in 18 years.

The President stated that our present immigration laws do not work, do not serve the economic needs of the United States, and that the undocumented workers who have come to this country seeking economic opportunity have not been treated fairly.

The President sketched only the broad picture of what his program would look like.

Apparently, it would draw on a bill introduced in Congress by Senator John McCain. The Department of Labor would be authorized to establish a massive job-based registry. Jobs would first be offered to U.S. workers and then to immigrants via a temporary visa program.

Immigrants with qualifying jobs or offers of employment would pay an initial fee and receive a three-year, renewable working visa. They would be allowed to change employers and to travel abroad.
Although they would be permitted, after a period of time, to adjust their status to permanent residents, apparently they would have to utilize the present employment-based system. The President called on Congress to raise the existing number of persons who could immigrate annually through employment above the 140,000 limit. However, he did not specify what the new numerical limit would be.

The President also called for shortening waiting times for U.S. citizenship, increased border enforcement and financial incentives to encourage temporary workers to return to their own countries. The President reaffirmed that he is not in favor of a “blanket amnesty” program.

As always, the devil will be in the details. What’s in the program for the 3.5 million persons presently waiting in line to legally immigrate to the U.S.? With millions of potential aspirants to the new program, how many years will it take for them to qualify for green cards?

Critics from the left and the right immediately attacked the President’s proposal. Democratic Presidential candidates criticized the program as “too little, too late” while anti-immigration restrictionists labeled the program an “amnesty” and said that the President was “pandering to Hispanics” in an election year

We are willing to give the President’s program the benefit of the doubt. He certainly “talked the talk” today, but will he “walk the walk” in the weeks and months to come?

If we see the huge backlogs at the Service Centers coming down, and an eagerness to approach this important issue in a compassionate and bipartisan way, he will certainly have our support. If not, maybe today’s speech was simply the beginning of the 2004 Presidential campaign.

We link to the following items concerning the President’s proposal: Speech (Complete Text) –

http://www.whitehouse.gov/news/releases/2004/01/20040107-3.html

(Link no longer operational)

WebCast of Speech –

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

Fact Sheet –

http://www.shusterman.com/pdf/factsheet10704.pdf

Questions and Answers –

http://www.shusterman.com/pdf/faq10704.pdf

Background Briefing –

http://www.whitehouse.gov/news/releases/2004/01/20040106-3.html

(Link no longer operational)

We will continue to update our web site as new developments occur and details emerge.

4. Physicians: HHS J Waiver Program – Less is More?

In the November 2003 issue of SHUSTERMAN’S IMMIGRATION UPDATE, we reported that the Department of Health and Human Services (HHS) had temporarily suspended its program sponsoring primary care physicians for J waivers.

On December 19, 2003, the HHS reopened the program and published new rules in the Federal Register.

The HHS web site provides the following information about the new program:

Specific Requirements for Fiscal Year 2004 : To target communities and populations in the greatest need for primary care and mental health services, HHS will only process an application for waiver from a facility in or with a health professional shortage area (HPSA) score of 14 or higher . Further, a facility in a HPSA that scores 14 or higher must be either:

• A health center as defined under Section 330 of the Public Health Service Act;
• A rural health clinic as defined under Sections 1102 and 1871 of the Social Security Act; or
• A Native American/Alaskan Native tribal medical facility as defined by the Indian Self Determination and Education Assistance Act (P.L. 93-638). These criteria are quite restrictive. Where the previous HHS program required that the employment be located in a federally-designated HPSA or in a MUA/P, the new rule restricts sponsorship of J waivers to physicians who agree to practice in HPSAs (not MUAs or MUPs) with a score of 14 or higher. How will this work in practice?Go to our homepage at

  http://www.shusterman.com

  and place your cursor on the word “Physicians” on the red navigational bar near the top of your screen. A pull- down menu will appear. Move your cursor down to “HPSA Database” and left click this link.

  You will see a screen entitled “Health Professional Shortage Areas, Ad-Hoc Database Query Selection”. This allows you to view HPSAs within one or more regions or states.

  For example, under “State”, scroll down to “California” and highlight this selection. Then go to “Date of Last Update” and where it says “From:”, type in “01/01/03”. Where it says “To:”, type in “12/24/03”. Next to “HPSA Score (Lower Limit”, type in “1”. Now, click the “Submit” button.

  A list of almost 50 medically-underserved areas appears. How many of these areas can a physician who wants HHS sponsorship for a J waiver practice in? Look to the column on the right side of your screen. HHS lists a “score” for each of these HPSAs. Only three of the HPSAs have a score of 14 or more, the minimum score for HHS waiver sponsorship under the new rules. And, remember, not just any facility (see above) can utilize the program. So, the possibilities that a J clinical physician can be sponsored for an HHS waiver in California are slim indeed.

  What’s a physician to do? For starters, since the State of California has used only a small fraction of the 30 slots under the Conrad program, most primary care physicians would do well to rely on the State program, and forget all about HHS. Which is a pity, since we all hoped that the HHS program would pick up where the now-defunct USDA program left off.

5. Immigration Trivia Quiz: And the Winner Is…?

Quiz Removed

6. Why GOOD People Get BAD Immigration Law Advice – Part II

In the November 2003 issue of SHUSTERMAN’S IMMIGRATION UPDATE, we told you why so many people get bad immigration law advice.

This month, we offer some solutions to this all-too-common problem.

How do you select an immigration attorney who is competent, ethical and responsive to your needs? It’s not as difficult as you may think.

Here are four simple steps that you take without leaving your computer to evaluate attorneys:

STEP #1 – READ THEIR BIOGRAPHIES

Almost every immigration attorney worth considering has a web site. Go to their web sites, and read their biographies.

Are these biographies self-serving and perhaps a little puffed up? Of course! Take statements like, “Attorney Smith has been listed in Best Lawyers in the U.S.” with a grain of salt. However, use these bios to see how long the lawyer has been practicing immigration law, how active he has been in the American Immigration Lawyers Association (Caveat: Mere membership in AILA means only that he pays his dues, not that he is a good attorney.), whether he ever worked for the INS, what his particular areas of specialization are, etc., etc.

The biographies of our attorneys are listed at

Immigration Attorneys 100+ Years of Combined Experience

STEP #2 – WHERE IS THE LAW FIRM LOCATED?

“Location, location, location” may be the three most important words in purchasing a home, but in selecting an immigration law firm to represent your company or yourself, location is increasingly becoming irrelevant unless the attorney’s personal appearance is required at a hearing or interview. Most immigration applications and petitions are submitted by mail to Immigration Service Centers in California, Texas, Nebraska and Vermont, and interviews are no longer the norm.

Immigration law is federal. This means that an attorney who is admitted to the Bar in ANY state can practice immigration law in EVERY state.
For example, although our law firm is located in Los Angeles, our largest corporate client is headquartered in New Jersey. We submit petitions on behalf of their employees to the Vermont Service Center. We represent clients in all 50 states and in a number of foreign countries. Believe it or not, we have never personally met most of our clients.

It is a well-known fact that a huge percentage of the best immigration attorneys in the U.S. are located in a few big cities. Selecting a professional whose office is located in the same little town as you maybe an excellent idea if you are choosing a dentist or a physician, but not if you want the best immigration attorney to represent you.

STEP #3 – SELECT A CERTIFIED SPECIALIST

Four states (California, Florida, North Carolina and Texas) make it easy for you to select an immigration attorney. These states allow attorneys to qualify as Certified Specialists in immigration law.

In order to achieve this designation, attorneys must pass a rigorous examination, have the requisite amount of experience and be favorably rated by their colleagues.

How do you determine whether a particular attorney is a Certified Specialist in immigration law? Read their business cards, their letterhead, and/or their biographies. Certified specialists have no interest in hiding this designation. If they are Certified Specialist, they will let you know. The bar associations of each of these four states have web pages listing all Certified Specialists.

STEP #4 – SHOP AROUND

Oh, did we mention that you should compare attorney fees? No, we did not. Not because this is unimportant, but because we believe that it is best to narrow your search to two or three attorneys based strictly on quality, and only then to compare fees.

It most cases, the amount that a law firm charges for H and L visas or for permanent residence through employment does not vary more than 10-20%. If your company needs to process a large volume of such cases, most law firms are willing to grant a volume discount. However, unless you are on the verge of bankruptcy, it is important not to let price alone dictate which law firm you choose to represent you in immigration matters.

For those who need more advice on selecting an excellent immigration attorney or law firm, see

http://immigration.knowitallmall.com/library/weekly/aa122299a.htm (Link no longer operational)

7. Naturalization: Three Good Reasons Not to Apply

Becoming a naturalized citizen allows you to vote, work for the federal government, petition for your parents and siblings, etc, etc. People always encourage you to become a naturalized citizen.

Here are three good reasons why I, as a former INS Naturalization Attorney (1976-79) think that you might be better off NOT applying for naturalization:

REASON #1 – Criminal Record

One woman we know had a couple of expunged shoplifting convictions back in the 1980s. She turned her life around, and decided to apply for naturalization. The result? Her application for naturalization was denied, and she was placed under removal proceedings. Only then did she retain our law firm to represent her. We are currently trying to stop the government from deporting her.

Remember that just because a particular crime was not deportable when the conviction took place does not mean that the government can’t deport you for the conviction now. Also, an expungement may wipe out a conviction for most purposes, but not for immigration purposes. Finally, it does not matter how long ago the crime was committed, there is no statute of limitations for deportable crimes.

REASON #2 – How Did You Get a Green Card?

What if you obtained an employer-sponsored green card, but never worked for the petitioning employer? There maybe a perfectly reasonable explanation for this, but the government may force you to tell it to a Judge in a removal proceeding. The same result if you “forgot” to tell that the INS about an important aspect of your case when you applied for your green card.

REASON #3 – Have You Ever Claimed to be a U.S. Citizen?

In 1996, Congress passed a law that provides that if you ever claim to be a U.S. citizen after the law’s enactment, you are deportable, and there is NO WAIVER.

A lot of people apply for naturalization only to be placed in removal proceedings. It is oftentimes a wise move to consult with an immigration attorney who is experienced in naturalization law prior to making an application.

8. Nurses: California Heading Toward a Public Health Crisis

On January 1, California implemented the “Safe Staffing Law” which imposes mandatory nurse-to-patient ratios at each of the 500+ hospitals in the state.

Where will hospitals get the nurses needed to comply with the law? The United States is currently experiencing a severe national shortage of RNs.

In addition, California ranks 49th among the 50 states in number of nurses per capita, with 585 nurses per 100,000 residents. The state estimates that over 100,000 more nurses will be required by 2010 to comply with the law.

According to the California Healthcare Association, which represents hospitals across the state, “California is in the midst of a serious nurse shortage, which if left unchecked, will result in nothing short of a public health crisis. Unlike past nurse shortages, which have tended to be cyclical in nature, the current situation is not expected to ease in the foreseeable future.”

The overwhelming majority of nurses are women. Today, women have more career choices than becoming nurses or teachers. Many medical and law schools receive more applications from women than from men. Hence, many less American women become nurses today than 20 years ago.

A significant number of nurses practicing in the U.S. were trained in the Philippines. From 1952 to 1995, hundreds of thousands of Filipina nurses came to the U.S. on temporary work visas, and presently work in U.S. hospitals as permanent residents and U.S. citizens. We know, we immigrated at least 5,000 of these nurses.

These days, it takes between 18 and 24 months to obtain permanent residence for registered nurses. The problem is that hospitals need access to RNs now, not two years in the future.

A restoration of the temporary visa category for Registered Nurses will help hospitals cope with the nursing shortage and comply with the new mandatory nurse-to-patient ratios.

9. Chat Schedule, Transcripts, Audios & Videos

Deleted

10. Answer to the December 2003 Immigration Trivia Quiz

Quiz Removed

Our subscribers are a truly amazing group of people! Just minutes after sending out the December 2003 issue of SHUSTERMAN’S IMMIGRATION UPDATE, we received the following message:

Hi, this is my entry to the Immigration trivia quiz:

Left photo:

Name: Dr. Abraham Verghese
Country of birth: Ethiopia
Current working in: El Paso Texas (Professor of Medicine and Chief of Infectious Diseases, Texas Tech Health Sciences Center)
Author’s book: My Own Country – A Doctor’s Story

Right photo:

Name: Dr. Atul Gawande
Place of birth: USA (Brooklyn, New York)
Current working in: Boston, Masachusetts (Surgical Resident)
Author’s book: Complications – A Surgeon’s Notes On An Imperfect Science

Thanks!

Chetan
* Who is Chetan? And how did he answer our quiz so quickly? After we informed him that he had won the quiz, we received the following message:
It is nice to know that I am the Trivia Quiz winner for this month.

I have recently read the books written by these two authors and I easily recognized them from the photos. I also knew their current places of work from their books. All I had to do was a little googling to find out their places of birth.

I am an IMG physician and I am originally from India. I am currently in the US as a temporary visitor and I will be starting my residency training in July 2004 on an H-1B visa.

Being an IMG physician planning to do my residency in the US, I have been closely following your web site for the past few years and your newsletter keeps me updated with the latest changes in the U.S. immigration laws and procedures. Your web site and newsletter deal with the immigration issues of IMG physicians very well.

Please keep up the good work!

Sincerely,

Chetan
(Editor’s Note: We have also recently read “My Own Country” by Dr. Verghese and “Complications” by Dr. Gawande, and we recommend both books.)

January 7, 2004

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 question is whether we are to abandon the standards and habits of a free society, fleeing the risks of freedom for the deadlier risks of oppression.”

– I.F. Stone

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