Volume Eight, Number Five

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 May 2003

This month’s issue contains the following topics:

1. June 2003 State Department Visa Bulletin
2. Immigration Government Processing Times
3. E-Filing of Immigration Applications Starts on May 29th
4. Obtaining Your Green Card through Labor Certification
5. Immigration Trivia Quiz: Pundits Debate Iraq War
6. Success Story: Switching Between Categories to Get a Green Card
7. Deportation: AILF’s Legal Action Center’s New Web Site
8. Schedule of Upcoming Immigration Law Seminars
9. Chat Schedule, Transcripts, Audios & Videos
10. Answers to the April 2003 Immigration Trivia Quiz

NEWS FLASHES:

• AAO Decisions– The BCIS (formerly INS) web site has substantially expanded the number of posted decisions issued by the Administrative Appeals Office (AAO). We link to AAO decisions issued AFTER July 31, 2000 and those issued BEFORE that date (Apparently, there were no AAO decisions issued ON July 31, 2000 ;-) from our BCIS page at

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

• Board of Immigration Appeals (BIA) – Five members of the “liberal” wing of the BIA were officially removed from their positions in late April and relocated to other positions within the Executive Office for Immigration Review (EOIR). We wish former BIA Chairman Paul Schmidt, and members Gus Villageliu, Cecelia Espenoza, Noel Brennan and John Guendelsberger the best of luck in their new positions. Their departure marks a sad day for immigrants’ rights.
• Citizenship Through Grandparents– In a memorandum dated April 17, 2003, the BCIS has clarified that when a person acquires U.S. citizenship based on the prior physical presence in the U.S. of a grandparent, it is not required that the citizen grandparent be alive when the person applies for citizenship. We link to this memo from our “Citizenship” page at

  http://www.shusterman.com/uscitizenship/#5

• Ciudad Juarez– The U.S. Consulate in Ciudad Juarez (CDJ), Mexico has eased its rules on accepting applications for nonimmigrant visas from persons who are third country nationals. If a person previously obtained the same type of visa that they are not seeking in their own country, or if they changed status in the U.S., CDJ will entertain their application.However, those who entered the U.S. as visitors and then changed status will not be able to apply for visas at CDJ. Also, CDJ will not process “E” (treaty trader/investor) visas for third country nationals.
• Deportation I– On April 29, the Supreme Court of the United States ruled, by a 5-4 margin, that a permanent resident convicted of certain crimes (in this case, burglary and petty theft) may be held in custody without a bond hearing while his removal proceeding is pending. The decision overrules the 9th Circuit Court of Appeals which had ruled that this was a violation of the 5th Amendment’s guarantee of due process of law. The person in question was admitted to the U.S. as a permanent resident when he was six years old. After completing his criminal sentence, he was transferred to INS custody. Prior to the Supreme Court’s decision, he had been released on a $5,000 bond and was attending college classes.The Supreme Court also held, by a 6-3 margin, that a person may challenge an Immigration Service’s “no bond” ruling in Federal Court by means of a Writ for a Petition of Habeas Corpus. We link to the 75-page decision, Demore v. Kim, from our “Deportation” page at

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

  Since the ruling, a number of respondents in removal proceedings have been arrested by the government and detained.

  How important is this decision?

  Important enough for the President of the American Bar Association (ABA) to issue the following statement:

  “Today, a narrowly divided Supreme Court ignored one hundred years of legal precedent by ruling that the government can jail long-term immigrants legally in the United States, without bond or any opportunity to show they are not a danger of flight risk pending civil immigration hearings. This decision is extraordinary because in virtually every proceeding in the U.S. legal system a person would not be imprisoned without an individualized judicial determination that his or her detention is necessary. The ABA calls on Congress to repeal promptly the 1996 law upheld today.”

  For a critical commentary on Demore v. Kim, see the ACLU’s press release at

  http://www.aclu.org/ImmigrantsRights/ImmigrantsRights.cfm?ID=12505&c=95

• Deportation II – Attorney General Ashcroft overruled both an Immigration Judge and the Board of Immigration Appeals which had both ordered a young Haitian asylum seeker freed on a $2,500 bond. Mr. Ashcroft invoked “national security” reasons in ruling that the applicant should be held in custody without bond. According to the Attorney General, national security would be affected since releasing him on bond might “stimulate mass migration”. See Matter of D-J-at

  http://www.justice.gov/eoir/vll/intdec/vol23/3488.pdf

• Immigration and Nationality Law Specialists– California is one of the four states which certifies Legal Specialists in Immigration and Nationality Law. Among other things, attorneys are required to pass an examination measuring their expertise in this area of law. The next examination, which is given every two years, occurs on August 17, 2003. The registration deadline is July 3, 2003.For registration information and eligibility requirements, see

  http://www.californiaspecialist.org/content/exam.htm (Link is no longer operational.)
  Persons may search for Immigration Specialists in California by county at

  http://www.calsb.org/ls/lscounty.htm (Link is no longer operational.)

• Investors – On April 29, the Court of Appeals for the Ninth Circuit held, in Chang v. U.S., that the INS acted illegally by retroactively changing the rules for the immigrant (EB-5) investor program, thereby saving 200 investors from almost certain deportation. The Court’s holding effectively overrules the INS’s 1998 decision in Matter of Izummi. We link to both Chang v. U.S. and Matter of Izummifrom our “Investors” page at

  http://www.shusterman.com/investorsusimmigration/

• LIFE Legalization Deadline Approaching– June 4 is the deadline for LIFE Legalization Applications. They must be filed with the Missouri Service Center at the Chicago P.O. Box address. See

  http://uscis.gov/graphics/publicaffairs/newsrels/FinalLegRegRel.htm (Link is no longer operational)

• Physicians– The Michigan Department of Community Health has announced a date change for the J-1 waiver application acceptance dates this year. They will be accepting applications June 9-13, 2003. The application guideline packets are now available. To request a packet for a client, submit a check for $50 payable to the Michigan Health Council, at 2410 Woodlake Drive, Okemos MI 48864. Include the physician’s full name, specialty and graduation date (from residency).We link to Conrad 30 Programs around the country from our “Physicians” page at

  http://www.shusterman.com/physiciansusimmigration.html#8

• Spanish– FirstGov.gov now has a web site entitled “FirstGov en Espanol” which is a collection of thousands of web pages from every cabinet-level federal agency and numerous independent and state agencies. See the page on immigration, citizenship and voting at

  http://www.firstgov.gov/Espanol/Topics/Votaciones.shtml

• Temporary Protected Status (TPS)– On April 30, the BCIS announced that it had extended the TPS status for certain nationals of Honduras and Nicaragua for 18 months until January 5, 2005. See

  http://uscis.gov/graphics/publicaffairs/newsrels/tpsextend-043003.htm (Link is no longer operational)

  For general information about TPS, see our “Asylum” page at

  http://www.shusterman.com/asylumusimmigration/#4

• Terrorism– On April 15, a new report was released by the General Accounting Office (GAO) which recommends that terrorist watch lists from different agencies should be consolidated to promote better integration and sharing. We link to this report at

  http://www.gao.gov/new.items/d03322.pdf

  to the highlights of the report at

  http://www.gao.gov/highlights/d03322high.pdf

• U.S. VISIT System– On April 29, the Department of Homeland Security announced the new U.S. Visitor and Immigrant Status Technology (VISIT) system for nonimmigrants. VISIT will use two biometric identifiers for each person, replace the NSEERS (Special Registration) entry-exit system, and incorporate SEVIS (Student and Exchange Visitor Information System). The system is scheduled to be in its first phase of operation at international air and sea ports of entry by the end of 2003.

1. June 2003 State Department Visa Bulletin

On May 13, we posted the June 2003 Visa Bulletin, the same day that the State Department posted the dates on their web site.

Movement in the worldwide family categories was slow. All of the worldwide family categories with the exception of the 3rd category (married sons and daughters of U.S. citizens) advanced between three and five weeks.

The Mexican categories either failed to move (2B category – unmarried adult sons and daughters of U.S. citizens) or sprinted ahead over four months (1st category – unmarried adult sons and daughters of U.S. citizens and 3rd category).

The Philippine family categories remained as frozen as Lot’s wife. The 1st, 3rd and 4th (brothers and sisters of U.S. citizens) are failed to move. Only the 2A and 2B categories which are same as the worldwide categories showed any forward movement.

The Visa Bulletin warns that “The PHILIPPINES Family First (F1), Third (F3) and Fourth (F4) preference cut-off dates have moved forward very quickly during the past year. This has resulted in a significant increase in number use, and could require the retrogression of these cut-off dates as early as July”.

The Visa Bulletin also warns that “continued heavy applicant demand in the INDIA Family Fourth (F4) preference category is likely to require the oversubscription of this chargeability for July…Therefore, it will be necessary to establish a cut-off date in the F4 category, which is earlier than that of the Worldwide date. This action will be required to hold visa issuance within the annual numerical limits. This oversubscription will have no impact on visa availability in the India Employment categories, which will remain ‘Current’.”

The Visa Bulletin creates false expectations. As long as a category advances less four weeks each month, the waiting period listed on the bulletin cannot be relied upon. Unless Congress acts to reform the family-based system, the 3.5 million persons waiting to immigrate to the U.S. based on approved family-based petitions should consider other options for immigrating.

All of the employment-based numbers remain current. The time to apply for your labor certification or visa petition is now.

The June 2003 Visa Numbers can be found at

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

For an explanation of what the categories, dates and symbols listed below mean, see

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

Check the State Department’s official version to see complete information about the movement of family, employment and lottery numbers, at

http://travel.state.gov/visa_bulletin.html (Link is no longer operational.)

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. E-Filing of Immigration Applications Starts on May 29th

On May 29, the BCIS (formerly INS) will permit e-filing of the following two types of applications:

• I-90: Application for Replacement of Green Card
• I-765: Application for Employment Authorization

The process will not be completely online. Upon completion of the online e-filing session, applicants will receive instant electronic confirmation that the application was received. They can then schedule an appointment to visit a BCIS Application Support Center for collection of a digital photograph, signature, and fingerprint.

The BCIS is starting e-filing with the I-90 and the I-765 forms since together they account for approximately 30% of all immigration benefit applications submitted to the agency.

By October 1, 2003, the BCIS plans to accept online submissions of the following types of applications:

• I-129: Petition for Nonimmigrant Worker
• I-131: Application for Travel Document
• I-140: Immigrant Petition for Alien Worker
• I-539: Application for EOS/COS
• I-821: Application for TPS
• I-907: Request for Premium Processing

4. Obtaining Your Green Card through Labor Certification

(First in a Series of Articles)

Since it appears that the soon-to-be-unveiled PERM program may be very restrictive, this article gives an outline of the current Labor Certification (LC) process and tells you where to find assistance when preparing LC applications, particularly Reduction in Recruitment (RIR) applications.

* WHAT IS LABOR CERTIFICATION?

Labor Certification is a test of the United States job market and is used to prove that there are no United States workers who are qualified, willing and able to perform the duties described in the application. This is the most common path to obtaining Permanent Residence for foreign nationals who are in the U.S. on temporary working visas (e.g., the “H-1B” and “L-1B” visas).

Since a Labor Certification is filed for prospective employment, it does not matter whether the person works for the employer during the Labor Certification process or after it is approved. It is, however, recommended that the employee begin to work for the employer as soon as he/she is granted work authorization in order to ensure that the bona fides of the job offer is not questioned. The employer may terminate the person’s employment or offer at any time without incurring liability.

The employer may apply for either a Regular Labor Certification, or a Reduction in Recruitment (RIR) Labor Certification.

Regular Labor Certification processing involves filing the application with the local State Workforce Agency (SWA) and waiting for advertising instructions. The local State Workforce Agency will then guide the employer through the rest of the application process.
Reduction in Recruitment (RIR) Labor Certification is an expedited method which permits employers to demonstrate to the SWA and the Department of Labor (DOL) that they have unsuccessfully attempted to recruit U.S. workers for the position prior to applying for an LC. The employer must prove that an adequate test of the labor market has been made through sources normal to the occupation and industry within the six-month period preceding the filing of the application with the SWA.

A RIR LC can be granted for any occupation, except those for unskilled labor listed on “Schedule B”.

In most cases, RIR is the preferred course of action since, in most states, processing times for RIR LCs are considerably shorter than for Regular LCs.

* GENERAL REQUIREMENTS

To file for any kind of labor certification, an employer must meet the following requirements:

* The position must be a bona fide full time permanent job offer located within the U.S.;

* The job offer meets the prevailing wage requirements;

* The working conditions and environment do not adversely affect U.S. workers; and

* There is no qualified U.S. worker available to accept the job offer.

In addition, the employee must also demonstrate that

* They meet the educational and experience requirements of the position at the time the LC application is filed. Educational certificates and verification of employment letters must be provided.

Next Month: Factors to consider before submitting an application for an RIR Labor Certification.

5. Immigration Trivia Quiz:

Quiz Removed.

6. Success Story: Switching Between Categories to Get a Green Card

Recently, a young man with an H-1B visa visited our office seeking assistance with the following dilemma: His father, a lawful permanent resident of the U.S., had submitted a family 2B petition (unmarried adult son/daughter of permanent resident) for him in 1996. The INS had approved the petition.

In January 2003, his father had become a naturalized citizen of the U.S., thereby automatically upgrading his category to from 2B to 1st (unmarried adult sons/daughters of U.S. citizen). Since the regulations permit such persons to retain their priority dates, he became immediately eligible to apply for adjustment of status.

There was one snag, however. The man’s fiancee was also an H-1B visaholder, but resided in another state. What would happen to his petition if he married her? Would he lose his eligibility for permanent residence? Would he lose his priority date? He visited his local Immigration Service office, and was advised not to marry her. If he did, the representative warned him, he would lose his priority date. He phoned a couple of lawyers who gave him the same advice.

Alas, the regulations provide otherwise. We advised him that he could marry his fiancee immediately if he wished. He and she would then be able to adjust their status under the family-based 3rd category (married sons and daughters of a U.S. citizen) and keep the original 1996 priority date.

One caveat: make sure that you perform each of these steps in the correct order. If he had married his fiancee prior to his father’s naturalization, the petition would have been automatically terminated since there is no category for married sons/daughters of permanent residents. Therefore, it is all-important that the marriage occurs only after his father becomes a naturalized citizen.

The man left my office with a smile, and I felt great as well. Those April showers had turned into May flowers!

7. Deportation: AILF’s Legal Action Center’s New Web Site

One of the most helpful web sites for individuals undergoing removal proceedings, and the immigration attorneys who represent them, just became a lot better.

The American Immigration Law Foundation (AILF) established its excellent Legal Action Center (LAC) in 1990. The LAC, headed by Nadine Wettstein, Esq., litigates important immigration cases, sometimes all the way to the Supreme Court of the United States.

LAC’s web site contains the following sections, all of which are of great value to the public:

• Practice Advisories – These are intended to assist immigration lawyers. They cover various topics arising in practice before immigration-related administrative agencies and the federal courts. Topics include asylum, waivers, suspension of deportation, federal litigation, etc.
• Brief Archive – This is a huge collection of legal briefs and memoranda on a wide variety of deportation/removal topics written by immigration lawyers around the U.S. Topics are arranged alphabetically from “Aggravated Felonies” to “Waivers”.
• Litigation Updates – Information about the various lawsuits in which AILF is participating. Examples include AILF’s family unity lawsuit, their asylee adjustment lawsuit and securing the right to effective assistance of counsel.
• Post-September 11 Resources – This section contains the latest information regarding governmental immigration policies in the post-September 11th era.

Both immigration practitioners and the public should make use of these resources.

For example, the law states that, as a general rule, a Request for Asylum must be submitted within an individual’s first year in the U.S. However, often this time limit is unrealistic as both country conditions and personal circumstances change over time.

How can an individual get around this one-year deadline? A good place to start is by reading AILF’s Practice Advisory entitled “The Asylum One Year Filing Deadline and Exceptions”.

How do you locate these AILF resources?

We link to them from our “Deportation” page at

http://www.shusterman.com/deportationdefense.html#A1

You can also use the red navigation bar near the top of the screen on our web site. Place your cursor on the word “Deportation” and a pull-down will appear. Move your cursor down to “AILF” and a submenu will appear with the following choices: “Practice Advisories”, “Brief Archive”, “Litigation Updates” and “9/11 Resources”.

The old AILF web site had a big problem: it was that it was often difficult to find what you wanted. Not only is the new site arranged more logically, a search engine has been added.

8. Schedule of Upcoming Immigration Law Seminars

The following is a partial list of Immigration Seminars in which I am scheduled to participate during the next few months:

• • May 22, 2003 San Francisco, CA
    American Psychiatric Association – 156th Annual Meeting
    I will be participating in a 90-minute workshop and speaking about immigration solutions for foreign-born physicians.
  • June 18-19, 2003 San Francisco, CA
    Healthcare Staffing Summit
    I will be speaking about “Immigration Policies and Procedures for Healthcare Workers: The Legal Prospective” on June 19 at 3:30pm
    I will also participate in an “Overseas Recruitment/Immigration Clinic” on June 20 at 10:30am.
  • June 29 – July 2, 2003 San Antonio, Texas
    American Health Lawyers Association – Annual Conference
    My topic is “Immigration Issues in Recruiting Foreign Nurses and Physicians” on July 2 at 9:45am. The session will repeat at 1:30pm.
  • August 7, 2003 Los Angeles, CA
    Immigration Law in the Workplace
    My topics include “Labor Certification” and “Immigration Resources on the Internet”.
  • August 17-20, 2003 Denver, Colorado
    American Society for Healthcare Human Resources Administration (ASHHRA) – “Cultivating Our Human Capital”
    My presentation will be entitled “Immigration & Foreign Health Professionals – Is the Door Half Open, or Half Shut?”
  • September 4, 2003 Anaheim, California
    California State Bar Association Annual Conference
    “Latest Developments in Immigration Law”

9. Chat Schedule, Transcripts, Audios & Videos

Deleted

10. Answer to the April 2003 Immigration Trivia Quiz

Quiz Removed.

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

“Long term, the best solution is to grow our own technology work force, but it’s going to take several years for us to generate the number of computer people we need. In the meantime, we need the H-1B program.”

– Representative Lamar Smith (R-TX), May 2003

Newsletter US Immigration Update May 2003 – Quick Links

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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.

May 13, 2003