Volume Five, 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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Client Reviews

Newsletter US Immigration Update January 2000

This month’s issue contains the following topics:

Table of Contents

• 1. January 2000 State Department Visa Bulletin
• 2. Immigration Government Processing Times
• 3. H-1B Cap and The Coming Backlog in Visa Numbers
• 4. INS: Forms Download Page is a Hit with Immigrants
• 5. MCI Worldcom Website: Immigration FAQ’s in Six Languages
• 6. Immigration Trivia Quiz: Reel Immigrants From Latin America
• 7. Chat Schedule For January and February 2000
• 8. Labor Department: What’s Behind the Labor Cert Meltdown?
• 9. Federal Court Decision Preserves Waiver of Deportation
• 10. Answer to December’s Immigration Trivia Quiz

NEWS FLASHES:

• Amnesty – The U.S. Court of Appeals for the Ninth Circuit has agreed to rehear the 2 to 1 decision in the CSS late amnesty lawsuit which was previously decided in favor of the INS. Eleven judges will hear the case en banc in San Francisco on March 20.

• Attorneys – How do you go about finding the best immigration attorney for your needs? The savvy guides at About.com have researched this question, and have some good advice for you. See

  http://www.shusterman.com/how-to-select-an-immigration-attorney/

• Fees – Fees on INS’s forms I-360, N-300, N-336 and N-470 are scheduled to change on January 14, 2000. See

  http://www.shusterman.com/toc-fp.html#2 (Link no longer operational)

• INS – The Acting General Counsel has written a letter to the American Immigration Lawyers Association (AILA) enumerating 21 issues regarding the 1996 and 1997 laws which have been resolved. Many of these issues deal with the complex areas of unlawful presence and the proper application of section 245(I). Read the complete text of the letter at

  INS General Counsel’s List of Resolved Issues

• Media – Immigration was in the news with the national spotlight on a six-year-old Cuban boy, Elian Gonzalez. The television magazine “Extra” aired a segment during the first week of January during which I commented on the legal aspects of the case. Next week, CNN will do a feature regarding our client, Guy Taylor, an 18-year-old orphan from Canada whose entire family lives in the U.S., but who will be separated from them unless Congress passes a private bill on his behalf. (Senator Feinstein (D-CA) has promised to introduce such a bill as soon as Congress reconvenes!)

• Search Engine – Back in 1995, when there were less than 75 pages on our website, SHUSTERMAN’S IMMIGRATION UPDATE did not exist and we did not have a free forms download page, we never gave a thought to having a search engine for our site. More than 500 articles and 2,000 links later, late on Christmas Eve, with a little help from Santa and his Elves, we quietly installed a search engine at the top right corner of our site.
  We hope that you like it!

• Students – INS has proposed a $95 fee for F-1, J-1 and M-1 students. Schools and exchange programs would collect the fee at the time the student enrolls or commences the exchange program. Exempted would be J-1 students in government-sponsored programs and F-1 and M-1 students enrolled in private elementary schools or public or private secondary schools. Written comments on the proposed regulations are due by February 22, 2000.

1. January 2000 State Department Visa Bulletin

On December 14, 1999, we posted the January 2000 Visa Bulletin, before the State Department posted the dates on their web site.

For the Family categories, the priority dates were stagnant. The only Worldwide category to advance at all was the 4th preference (brothers and sisters of U.S. citizens) which inched forward one week. Visa numbers for persons born in the Philippines and India failed to move at all. For persons born in Mexico, the 3rd and 4th preference categories each moved ahead one week.

What keeps the January 2000 Visa Bulletin from being depressing are the Employment categories, all of which remain Current with the exception of the unskilled worker category which advances two months to November 1, 1993.

Why the dramatic contrast between the Family and the Employment categories? Now that the INS can approve applications for adjustment of status without waiting for CIA checks (See Topic #8), the District Offices have closed out thousands of family-based applications. However, the Service Centers have yet to start approving large numbers of employment-based cases. When they do, watch for the Employment categories to backlog.

Visa Lottery (January and February Numbers)

Section 203(c) of the Immigration and Nationality Act provides 50,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. DV visas are divided among six geographic regions. Not more than 3,500 visas (7% of the 50,000 visa limits) may be provided to immigrants from any one country.

For January, immigrant numbers in the DV category are available to qualified DV-2000 applicants chargeable to all regions/ eligible countries as follows. When an allocation cut off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut off number: AFRICA (12,800) except Ghana (6,040) and Nigeria (5801); ASIA (4,940); EUROPE (14,200) except Albania (5,100); NORTH AMERICA (Bahamas)(15); OCEANIA (753); SOUTH AMERICA, CENTRAL AMERICA, and the CARIBBEAN (1,650).

For February, immigrant numbers in the DV category are available to qualified DV-2000 applicants chargeable to all regions/ eligible countries as follows. When an allocation cut off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut off number: AFRICA (12,001); ASIA (4,201); EUROPE (14,016); NORTH AMERICA (Bahamas)(10); OCEANIA (738); SOUTH AMERICA, CENTRAL AMERICA, and the CARIBBEAN (1,200).

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

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

and

http://www.shusterman.com/greencardsthroughemployment/

FAMILY CATEGORIES

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	9-15-98	9-15-98	9-15-98	10-22-93	3-22-88
2A	9-15-95	9-15-95	9-15-95	6-22-94	9-15-95
2B	11-22-92	11-22-92	11-22-92	8-22-91	11-22-92
3rd	10-8-95	10-8-95	10-8-95	7-08-91	11-15-87
4th	10-01-88	10-01-88	3-15-87	10-01-88	7-15-79

EMPLOYMENT CATEGORIES

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	Current	Current	Current	Current	Current
3rd	Current	Current	Current	Current	Current
Unskilled	11-01-93	11-01-93	11-01-93	11-01-93	11-01-93
4th	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th	Current	Current	Current	Current	Current

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. H-1B Cap and The Coming Backlog in Visa Numbers

“When will the H-1B cap be reached?” This is the question asked by hundreds of persons who have written to me during the past month. The INS broke its silence earlier today when an official predicted, off the record, that the cap would be reached by a petition filed sometime in March.

In Congress, a host of bills have been introduced to raise, modify or eliminate the H-1B cap. Other bills would create a new “T” visa category to drain off some of the surplus numbers. See

http://www.shusterman.com/h1bvisaguide.html

Meanwhile, the INS has hired a consulting firm to audit the agency’s alleged miscount of the fiscal year 1999 numbers. Senator Abraham (R-MI) believes that the INS is actually undercounting the numbers while Representative Lamar Smith (R-TX) believes that fraud so permeates the H-1B program that if INS would get its house in order, there would be no need for additional numbers.

In early January, Senate Judiciary Committee staffers reported that Committee Chairman, Orrin Hatch (R-UT) and Immigration Subcommittee Chairman Spencer Abraham will introduce a bill which would:

A. Add 40,000 to 50,000 H-1B numbers to the present cap for a period of two years;

B. Exempt H-1B workers employed by universities and affiliated research and nonprofit institutions from the cap; and

C. Abolish country quotas from the employment-based immigrant visa system. This would be a great boon to persons born in India and China.

The Hatch-Abraham bill will be voted upon by the Committee before the end of February and by the full Senate in early spring.

The abolition of country quotas for EB categories would be especially significant. A few days ago, Charles Oppenheim, chief of the State Department’s Immigrant Control and Reporting Division predicted that his agency may have to limit the availability of certain EB numbers to Indians with priority dates of September 1996 or earlier and mainland-born Chinese with priority dates of July 1995 or earlier. The backlogs may start to reappear as early as March 1999 (See topic #1.)

Read about these and other developments in an interesting article entitled “Green Card Blues” by Ed Frauenheim in TechWeek Magazine at

http://www.shusterman.com/h1bvisaguide.html#4

4. INS: Forms Download Page is a Hit with Immigrants

Everyone seems to have his or her idea about how to reform the INS. Some Senators want two agencies under one boss while some Congressmen want two agencies under two bosses. Since leaving the INS in 1982, my idea has been to sell the agency to private enterprise ;-)

However, reaction to my proposal has always been: “Who would buy the INS?” Keep reading…

Consider the exponential growth in page views on the INS website:

During October/November 1996, the number of visitors to the INS website totaled a mere 60,000.

In the September 1999 edition of SHUSTERMAN’S IMMIGRATION UPDATE, we pointedly suggested that the INS get all of their forms online and downloadable ASAP. See

http://www.shusterman.com/newsletterusimmigrationseptember1999.html#6

INS took our advice and, guess what, over a Million forms were downloaded from the INS website in October/November 1999! And what do you think is the most popular page on the INS website? You guessed it, the “forms” page. By the way, almost all of our downloadable INS forms at

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

are links to the INS website.

(Brief aside: Janet Reno called me last week and promised that when the INS goes public, she will get all subscribers to SHUSTERMAN’S IMMIGRATION UPDATE in on the IPO ;-) Tell your friends!!! This could be bigger than Yahoo and Qualcomm in 1999!

Read all about the success of the forms page in a recent message that I received from the INS Webmaster (This is for real.):

Dear Carl,

Finally: Forms, More Forms, Virtually All Forms

OK, OK, OK! You were right! Again! People DO want forms over content from our Internet Website. Hopefully, they are able to get both! Thanks very much to you for being among the first to repeatedly (and at times, almost single-mindedly) emphasize to us [your September Immigration Update refers] that this forms service was indeed what many folks wanted and needed first and foremost from a revamped INS Website at uscis.gov.

While we had labored long and hard getting new and hopefully useful content online by the time of our August 12 debut, and while we add even more content to that each week, it is forms that people have gone to the most. We have even included a “Hot Topics” direct line to that feature for those who don’t want to click through the normal pathway to our forms site. And, in naming the INS Online as a “Hot Site” for November 30, 1999, USA Today also emphasized our forms online service as a major contributor to our being “Hot!”

We have just compiled our Monthly User Report for November. What a smile it brought to our faces! During the first two months of FY 2000 [being October and November 1999], 1.167 million — yes, that’s MILLION — people visited and used our Website: 617,000 user sessions in October, and another 550,000 in November. According to our statistics, our Website users stayed an average of 19:13 minutes.

This represents a significant increase in usage from previous years. In October and November 1996, just two months after the first INS Internet Website went online on August 12, 1996, 67,890 people visited. A year later, during the same two months in 1997, 271,683 people visited our Website. One year after that, in 1998, 633,751 people visited, while in 1999, the 1.167 million came to our Website door for service, information, and yes, for forms!

Consequently, the most popular section of the Website was Forms, Fees and Fingerprints. During October and November, 525,000 people visited that section, and 363,000 visitors downloaded over 1 million — yes, MILLION — forms. Of these, over 101,000 copies of the I-765 were downloaded, 99,900 I-130s, 71,767 I-129s, 70,000 I-9s, 69,000 I-539s, 61,000 I-131s, 55,000 I-134s, and 48,000 N-400s. An additional 15,000 people ordered 42,000 forms by mail through our Internet Website.

Over 74,000 people downloaded our Forms, Fees and Filing Locations Chart, while another almost 27,000 downloaded our Application Support Centers Chart.

Because of this tremendous interest in our forms online, we are pushing through a couple of initiatives to ensure that forms downloaded from our Website are of highest quality, and can be filled out (but not filed) online, then printed and sent to us in the mail. Better for applicants, better for us. And finally, we are pushing forward with a new rule that eliminates some of the cumbersome instructions for printing forms from the Internet, making downloading forms even more useful.

So, you were right: people want our forms. And, through our Website, they can get them without having to visit an INS field office, or make a telephone call or write us a letter. Better for our customers; better for us.

Our content features still had their followings. During October and November, over 280,000 visitors got information from our Immigration Services and Benefits section, while another 203,000 got information from the “How Do I …?”s. Field offices were visited by 243,000 people while almost 190,000 visited our About INS features, especially our Statistics and our History pages. About 180,000 people looked up information under Laws and Regulations, while over 123,000 got information from our Public Affairs section.

In November, we started the This Month in Immigration History series, which we hope will be of interest to the general reader and anyone interested in immigration history. Our newest section is “Teacher and Student Resources,” where we collate links to information on our Website that is of greatest interest to teachers and students, as well as to the public in general.

Even more content is planned. In addition, we want to reiterate that we take suggestions and complaints about the Website seriously, and have made numerous improvements to it — and corrected several glitches — because of the feedback we received from visitors to our Website. That address can be found under the Feedback button at the top of the Website.

Gregg Beyer

INS Webmaster

5. MCI Worldcom Website: Immigration FAQ’s in Six Languages

For several years, we have been serving as the Immigration Experts on the MCI WorldCom website. We developed a 10-part FAQ about the immigration law and a list of links. The MCI WorldCom folks have translated the FAQ and the Links into a number of different languages.

Initially, the FAQ appeared online in Spanish, Chinese and English. Now, the FAQ is also available in Japanese, Korean and Russian.

To read the FAQ in each of the following languages, See

http://www.mci.com/international/english/immigration.shtml< (Link is no longer operational.) (English)

http://www.mci.com/international/spanish/immigration.shtml (Link is no longer operational.) (Spanish)

http://www.mci.com/international/chinese/immigration.shtml (Link is no longer operational.) (Chinese)

http://www.mci.com/international/japanese/immigration.shtml (Link is no longer operational.) (Japanese)

http://www.mci.com/international/korean/immigration.shtml (Link is no longer operational.) (Korean)

http://www.mci.com/international/russian/immigration.shtml (Link is no longer operational.) (Russian)

Each FAQ answers the following ten questions:

1. How can I obtain a temporary visa to enter the U.S.?
2. How can I qualify for a temporary working visa?
3. How can I obtain a green card?
4. How can I obtain permanent residence through marriage to a U.S. citizen?
5. What is the State Department’s Visa Bulletin?
6. How can I obtain permanent residence through my relatives?
7. How can I obtain permanent residence through employment or through an investment?
8. How can I obtain permanent residence through the visa lottery?
9. How can I obtain relief from deportation?
10. How can I become a citizen of the U.S.?

The MCI WorldCom website also directs readers to over a dozen Immigration Resource Links for further information.

6. Immigration Trivia Quiz: Reel Immigrants From Latin America

Quiz Removed

7. Chat Schedule For January and February 2000

Our December 6 chat on Employer Sanctions (I-9 forms) and our January 10 chat on “Problems and Solutions for Computer Professionals” will be online soon.

Upcoming chats include “Physicians: Benefits Available Under the New Law” on January 24 at 6pm, PST (9pm, EST). Before you participate, you may want to review the following materials:

“President Signs Law To Grant NIW’s to Certain Physicians” at

http://www.shusterman.com/physiciannationalinterestwaiverlaw1999.html

“Text of Section 5 of Public Law 106-95…” at

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

and “New Physicians Law FAQ” at

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

If you were born in India or China and are concerned about backlogged visa numbers and restrictive country quotas, join us for a chat on “Strategies For Persons From Backlogged Countries” on February 7 at 6pm, PST (9pm, EST).

Bring a date and join us for our Valentine’s Day Chat on February 14 at 5pm, PST (8pm EST) entitled, appropriately enough, “Raising the H-1B Cap, Congressional Valentine to the IT Industry?”

Hospital administrators and registered nurses will not want to miss our chat on “Nurses: H-1C’s, TN’s and Permanent Residence on February 21 at 6pm, PST (9pm, EST).

A schedule of upcoming chats and transcripts of completed chats may be found at

Link to chat no longer available

8. Labor Department: What’s Behind the Labor Cert Meltdown?

In the December 1999 edition of SHUSTERMAN’S IMMIGRATION UPDATE, we reported (in Topic #9) on a nationwide class action lawsuit to compel the Labor Department process Applications for Alien Labor Certifications within a reasonable time. (Even as I type these words, there are would-be immigrants still waiting for DOL to process labor certifications forwarded to them by the states in 1996!)

Why does it take years and years to process an application?

Recently, Mark Nerheim, an immigration attorney in Seattle, called to tell us about a website which provides some answers. These answers come courtesy of the Labor Department since the site states that the information “is provided in partnership with the U.S. Department of Labor, United States Employment Service”.

The other partner is ICESA/CESER. The Interstate Conference of Employment Security Agencies (ICESA) is the national organization of state administrators of unemployment insurance, employment and training services, and labor market information programs in the 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands. The Center for Employment Security Education and Research (CESER) is the education and research arm of the ICESA.

Together, the DOL and ICESA/CESER maintain a website entitled “The Workforce ATM”. Within this website is a section on the “Alien Labor Certification Program”. The Archives section contains a couple of dozen letters, including some very interesting correspondence between ICESA and DOL, not to mention Congressional correspondence.

Particularly enlightening are a series of letters from SESA and ICESA officials to the DOL referring to a lack of federal funding for the states in the permanent Alien Labor Certification (ALC) Program and a growing sense of alarm about a perceived lack of responsiveness by the DOL to the states’ concerns.

In particular, see the July 18, 1999 letter from Emily DeRocco, the Executive Director of ICESA to John Beverly, the Director of DOL’s Employment Service (USES) where she complains that “USES’ participation in the planning and follow-up to the (June 4-5, 1998 Federal-State ALC) workgroup meeting was less than it should have been”. She attaches a number of recommendations by the states to streamline the ALC program. She concludes by stating that “while additional funding is seen as imperative to eliminating the backlog, the states believe that a number of recommendations contained in the document, if implemented quickly, will greatly assist in reducing the backlog. We look forward to your response to this joint initiative.”

Then, in a letter dated November 17, 1998, Ms. DeRocco asserts that the states cannot adequately process ALCs in a timely fashion because “funds for administration of the permanent ALC program have been cut dramatically in recent years”. She adds that “I am sure that you…are well aware of the difficulties facing states when they have to explain to an employer or individual why it takes over a year to even get to their application. Furthermore, this program generates many complaints from state and federal legislators inquiring about the status of their constituents’ applications”. Her letter concludes that “states are unable to accomplish this job with inadequate resources and support. In addition, the negative impact this under-funded program has on states’ relationships with their business community is causing serious damage. For your information, we have attached letters from earlier this year from approximately 30 state administrators, highlighting the severe backlog in their states”.

John Beverly III, the Director of DOL’s U.S. Employment Service, responded to Ms. DeRocco’s letter over four months later on March 29, 1999. Mr. Beverly’s letter states that the DOL plans to have a “new processing system in place by the end of FY 2000” (October 1, 2000). If the new system is implemented, the Federal Government would have full responsibility for the administration of the permanent Alien Labor Certification program.

It will be interesting to see if a new system can be established and become operational in less than ten months.

These letters and more (including the websites for the Oregon and Texas ALC Websites) may be found by clicking on

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

9. Federal Court Decision Preserves Waiver of Deportation

On December 27, 1999, the U.S. Court of Appeals for the Ninth Circuit issued its most recent decision in the case of Magana-Pizano v. INS.

The case concerns a young man who immigrated to the U.S. from Mexico at the age of five in 1977. In 1995, he was convicted of a misdemeanor drug offense.

At the time of his conviction, the immigration law permitted him to apply for a waiver of deportation based on his long residence in the U.S., evidence of rehabilitation and the hardship which would be suffered by him and his family if he were deported to Mexico. These and other factors would be balanced against the recency and severity of his offense.

However, before he appeared before an Immigration Judge, the law changed, and both the Judge and the Board of Immigration Appeals (BIA) ruled that he was no longer eligible to apply for a waiver of deportation.

Mr. Magana-Pizano petitioned for a Writ of Habeas Corpus in Federal District Court and submitted a Petition for Review of the BIA’s decision to the Federal Appeals Court. The INS opposed both actions on the ground that the 1996 law prevented review of such decisions by the federal courts.

Initially, the Federal Appeals Court ruled that the U.S. Constitution guaranteed the right of Mr. Magana-Pizano to file for a Writ of Habeas Corpus, and that no law could deprive him of that right.

However, the Supreme Court of the United States disagreed with INS’s broad interpretation of the statute, and remanded the case to the Federal Appeals Court for a new decision which did not require a ruling on the constitutionality of the law.

On remand, the U.S. Court of Appeals, Ninth Circuit held that: (1) Mr. Magana-Pizano was entitled to seek a Writ of Habeas Corpus on statutory grounds, and (2) that since his conviction predated the 1996 law, he could not be deprived of his right to apply for a waiver of deportation before an Immigration Judge.

Lucas Guttentag, the National Director of the ACLU’s Immigrant Rights Project stated that the court’s ruling “makes an enormous difference for all people whose cases were pending” on April 24, 1996 when the new law was passed. Thousands of people are affected in the nine western states within the jurisdiction of the Ninth Circuit Court of Appeals.

The full text of the court’s opinion may be found at

http://www.shusterman.com/magana2.html (Link no longer operational)

10. Answer to December’s Immigration Trivia Quiz

Quiz Removed

Over 100 people correctly answered the December Immigration Trivia Quiz within 24 hours after receiving their copy of SHUSTERMAN’S IMMIGRATION UPDATE. CEO’s, government officials, newspaper reporters, immigration attorneys, physicians, computer professionals and students all participated.

The “immigrants” were longtime residents of the National Zoo, Hsing-Hsing and Ling-Ling, two giant pandas born in the PRC.

The winner, appropriately enough, is a Chinese physicist (and a brand new subscriber) by the name of Dr. Kezhao Zhou. Here is his letter to me:

Dear Mr. Shusterman,

I am very glad to participate in the Immigration Trivia Quiz. I subscribed to the mailing list a week ago and this is the first issue of the newsletter I received. I knew the “immigrant” mentioned in the quiz was a giant panda but I couldn’t remember the details. So I searched the key words “panda”, “kidney” and “dies” using my favorite search engine google.com. The results led to a web page on “Everything you need to know about panda”

http://www.geocities.com/Athens/Acropolis/9492/fampanda.html

(Link is no longer operational.)

which has a list of famous pandas including Hsing-Hsing who died last November and his mate, Ling Ling, who died in 1992.

Now about myself. I came to the US from China in 1992 for graduate study and received a PhD in physics from UC, San Diego in 1998. I have been working in a company in the San Francisco Bay Area since then. My company just filed I-140 petition in EB1 category for me. But the process at INS California Center seems to be slow. I subscribe to your newsletter to keep myself informed on the latest immigration developments. I am delighted to find that both the newsletter and your web site are very informative and useful.

I look forward to speaking with you in the very near future. Wishing you a very happy holiday season.
Kezhao

Congratulations, Dr. Zhou!

Carl Shusterman
Certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service 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

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January 14, 2000