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Shusterman’s Immigration Update February 2017

Volume Twenty Two, Number Two

SHUSTERMAN’S Shusterman’s Immigration Update February 2017IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding US 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 40 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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Shusterman’s Immigration Update February 2017

 

TABLE OF CONTENTS:

1. Trump’s Executive Orders: How to Protect Yourself
2. Are You Ready for the H-1B Filing Season?
3. State Department Visa Bulletin for February 2017
4. Immigration Government Processing Times
5. Immigration Trivia Quiz: Immigrant Politicians
6. Ask Mr. Shusterman: DHS Proposes Changes in EB-5 Program
7. Shusterman’s Upcoming Immigration Seminars
8. Jobs & Green Cards for RNs & MedTechs: Legal Help!
9. Winner of Our January 2017 Immigration Trivia Quiz!

NEWS FLASHES:

  • Ink Signature No Longer Required on Affidavits of Support – The Department of State has announced that original or “wet ink” signatures are no longer required on submitted form I-864, Affidavit of Support. This also applies to the I-864A, I-864W, and I-864EZ forms.

  • Nationwide Class Status Granted to Protect Asylum Seekers by Federal Court – A federal court in Seattle has granted nationwide class action status in a case seeking to protect the rights of thousands of asylum seekers.

  • The “Wet-foot/Dry-foot” Policy Making Cubans Eligible for Permanent Residency has been Terminated  – Before leaving office, President Obama announced that the Department of Homeland Security would end the “wet-foot/dry-foot” policy. The policy made Cubans eligible for permanent residency within one year of reaching American soil, without the need for a visa

  • Trump’s Immigration Ban Means a War with Tech – The decision by President Donald Trump to impose a broad immigration ban on 7 countries may have an impact he did not foresee. Aside from inflaming civil liberties groups, sparking court fights and spontaneous demonstrations last night at various US airports, the move is also giving the tech industry a renewed voice and a rallying point on immigration. Computerworld quotes Attorney Carl Shusterman about this.

  • USCIS Announces a New Approach to Posting Processing Times – On January 5, 2017, the USCIS announced that it would begin post processing times using a specific date format rather than weeks or months. This is part of an ongoing effort to make processing times easier to understand.

1. Trump’s Executive Orders: How to Protect Yourself

In his first week in office, President Trump wasted no time in issuing 3 Executive Orders regarding immigration.  It is apparent that this is just the beginning of how he intends to upend our nation’s immigration system.

If you are an immigrant, we will give you some advice on what you need to do to protect yourself and your family at the end of this article.

 

  • President Trump’s Executive Orders

If only the Executive Orders could accomplish these goals, the American people would all benefit.   However, they are written in such a fashion that they will make us less secure.

The 1st Order concerns building a wall along the 2,000 mile border between the US and Mexico, an ill-conceived endeavor which would cost the American taxpayers (No, the government of Mexico has made it very clear that they do not intend to pay for the wall.) tens of billions of dollars and accomplish very little.

The 2nd Order would prioritize the deportation of criminals, a smart move, but something that the Obama Administration has already done for many years.

However, the Order would also compel state and local agencies to turn over information to the DHS which they are unwilling to do.  Imagine if your local police department were forced to share the immigration status of every person that was given a traffic ticket.  The bond of trust between local enforcement and these people will be broken.  Would immigrants report serious crimes to their local police departments if this bond was broken?

The 2nd Order would also stop Federal funding to “sanctuary cities”, an issue whose legality will ultimately be decided in the Federal Courts.

Most of the press has concentrated on the 3rd Order which would halt refugees from coming to the US for 120 days, from Syria indefinitely and halting the entry of persons into the US from 7 majority Muslim countries for 90 days or more.

Suspending the resettlement of refugees punishes the victims, not the perpetrators.  ISIS and Al Queda must be laughing at the stupidity of this policy.

GOP Senators John McCain and Lindsey Graham issued a statement condemning the Executive Order for doing “more to help terrorist recruitment than improve our security.”

The Order, on its face, would even permit CBP officers at airports to turn away lawful permanent residents (aka green card holders) no matter how long they have lived in the US with their families.  Then, two days after the Order was signed, a high official in the Trump Administration announced that it would not apply to green card holders.

It does without saying that we all want to protect our country from terrorists.  Yet, excluding all visitors, students and professionals merely because they were born in a particular country or are members of a particular religion will not protect us and is antithetical both to our values and our interests.

The order excludes citizens/nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the US.

Would such an Order have stopped the 9/11 attacks, the Boston Marathon massacre or the San Bernardino shootings?  Of course not, since none of the perpetrators were from any of these 7 countries.  Duh!

What do these Executive Orders accomplish except to grab headlines and apparently convince some of our fellow citizens that the President is serious about controlling immigration and stopping terrorism?

And this is only the beginning.  Now, the USCIS has announced that it will put a hold on all applications and petitions benefitting citizens/nationals of the 7 countries, be they in the US or abroad.  That means that a green card holder who was welcomed to our country after fleeing the revolution in Iran (be he/she Moslem, Christian, Bahai or Jewish) cannot be sworn-in as a US citizen.  Sad.

A draft copy of a 4th unsigned Executive Order entitled “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Program” was linked Vox.com.  This Order would impact the H-1B and H-4 EAD programs, provide for site visits to L-1 employers and expand the E-Verify Program.

 

  • Advice for Workers, Students and Visitors
  1. If you are from one of the 7 countries listed above, do not leave the country unless you do not intend to return to the US.
  2. If you are from a predominately Moslem country, remember that it may be dangerous for you to travel abroad since your country could be added to the List of 7 at any time.
  3. If you are have a pending application/petition for immigration benefits and you are from one of the 7 countries, your application will be placed on hold. See your immigration attorney if you wish to file a Petition for a Writ of Mandamus in Federal Court to try to force the government to take action on your pending application/petition.
  4. If you are from a predominately Moslem country which is not on the List of 7, you may want to file your application for immigration benefits now before your country is added to the List of 7.
  5. If you are a green card holder, no matter what country you were born in, you may be wish to apply for naturalization as soon as possible in order to assure that you will be able to travel abroad freely in the future.
  6. If you are present in the US on temporary visa and wish to extend or change your status, do so as soon as possible as immigration laws may be changed in the future to make it more difficult for you to do so.
  7. If you are undocumented, see an immigration attorney to see if there are any possibilities for you to apply for lawful status.
  8. If you are undocumented, and are arrested by an Immigration Officer, refuse to sign any documents or give a statement. Instead, request a hearing before an Immigration Judge.  You may be eligible for relief from deportation and for an Employment Authorization Document.
  9. If you plan to sponsor a relative for a green card, do so immediately as the family-based categories may be severely restricted in the future.
  10. If you are on a temporary working visa and wish to apply for a green card, ask your employer to sponsor you now.

2. Are You Ready for the H-1B Filing Season?

Employers and employees need to get started on the H-1B process now. It is time to prepare job descriptions, obtain Prevailing Wage Determinations (PWDs), post notices and submit Labor Condition Applications (LCAs) to the Department of Labor.

On April 3, 2017, the USCIS will begin accepting H-1B petitions. Since there is an annual numerical cap of only 85,000 H-1B visas (65,000 for the general cap, and 20,000 for those with advanced degrees in the US), the USCIS holds 2 lotteries for H-1B petitions.

During each of the last 2 years, the USCIS received over 230,000 H-1B petitions annually from cap-subject H-1B employers, almost 3 times the number of visas available.

Some of our corporate clients, knowing that there is only a 1 in 3 chance that an H-1B petition that they submit could be chosen in the lotteries, file 3 times as many H-1B petitions for each job that they wish to fill.  USCIS filing fees for petitions not chosen in the lotteries are refundable.  Attorney fees are not.

Certain jobs are exempt from the H-1B numerical caps. These include employment “at” universities, at “affiliated” or “related” organizations or at non-profit or government research institutions.  USCIS has recently published new rules which broaden these categories.

It is very important that properly completed H-1B petitions be submitted to the USCIS on a timely basis.

A properly completed H-1B petition will include the following documents:

  • A certified LCA showing that the employer agrees to pay the beneficiary at the prevailing wage for the position or the actual wage, whichever is higher;
  • Evidence that the employer has the ability to pay the above salary;
  • Evidence that the occupation requires a minimum of a bachelor’s degree in the field of specialty; and
  • Evidence that the H-1B professional’s educational credentials and/or experience are sufficient to meet the requirements of the position.

Upon approval of an H-1B petition, the professional will be able to commence his or her employment on October 1, 2017.  If the professional is in the US in a nonimmigrant status, the H-1B petition should also include an application for a change of status.  Otherwise, a professional can apply for an H-1B visa at a US Embassy/Consulate in his/her home country and come to the US 10 days prior to October 1, 2017.

The initial period of employment in H-1B status is granted for up to 3 years and may be extended for an additional 3 years. H-1B professionals whose employers have taken timely steps to apply for permanent residence on their behalf may receive post-6th year extensions. Once an H-1B professional has been counted towards the H-1B cap, he or she can obtain H-1B extensions and change employers without regard to the cap.

While most H-1B professionals are educated abroad, a large number are educated in the US. Generally, these persons have obtained their undergraduate or graduate degrees in the US while in F-1 status. F-1 students can obtain Optional Practical Training (OPT) upon graduation and are able to work for their employers for up to 1 year prior to obtaining H-1B status. In addition, they may qualify for automatic extensions of their OPT work permits after April 3, 2017 under USCIS’ “cap-gap” rule.

For persons with degrees in a STEM (Science, Technology, Engineering or Mathematics) field, if their employers participate in the E-Verify program, they can extend their OPT work permits for an additional 24 months whether or not they are selected in either of the H-1B lotteries.

Meanwhile, bills are being introduced in Congress to dramatically reform the present H-1B system.  One, the H-1B and L-1 Visa Reform Act, would abolish the lottery and give priority for H-1B visas to foreign students who graduate from universities in the US.

3. State Department Visa Bulletin for February 2017

EMPLOYMENT CATEGORIES

The worldwide employment-based preference categories all remain current except for EB-3 which advances by two months to October 1, 2016.

However, the outlook remains bleak for persons born in India, China and the Philippines due to per-country quotas.

India EB-3 inches ahead by 1 week while India EB-2 remains frozen at April 15, 2008.

China EB-2 advances by 4 weeks while China EB-3 moves forward 3 weeks. China EB-5 investors will see their waiting times lengthen to almost 3 years.

Philippines EB-3 moves forward by almost 3 months to October 15, 2011.

The EB-4 category for persons born in Mexico, El Salvador, Guatemala and Honduras remains frozen.

The following chart tells the story of the EB numbers in detail:

A. APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

World China El Salvador, Guatemala, Honduras India Mexico Philippines
1st Current Current Current Current Current Current
2nd Current 11-15-12 Current 4-15-08 Current Current
3rd 10-01-16 10-01-13 10-01-16 3-22-05 10-01-16 10-15-11
Unskilled 10-01-16 12-01-05 10-01-16 3-22-05 10-01-16 10-15-11
4th Current Current 7-15-15 Current 7-15-15 Current
5th Current 4-08-14 Current Current Current Current

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS– These dates indicate when immigrant applicants can send adjustment of status applications without having to wait for their priority dates to become current.

World China India Mexico Philippines
1st Current Current Current Current Current
2nd Current 3-01-13 4-22-09 Current Current
3rd Current 5-01-14 7-01-05 Current 9-01-13
Unskilled Current 8-01-09 7-01-05 Current 9-01-13
4th Current Current Current Current Current
5th Current 6-15-14 Current Current Current

FAMILY-BASED CATEGORIES

The family-based categories in the visa bulletin are as follows:

visa bulletin

An applicant’s priority date is the day that the government received the I-130 Petition. For more on family-based visas and how you can shorten your application time, see Attorney Shusterman’s video near the top of this page.

VISA BULLETIN – FAMILY

The worldwide family-based priority dates continue to move slowly forward between 2 and 6 weeks.

Philippines F1 advances by 2 months while F2B remains frozen.

For persons born in Mexico, 1 of the priority dates fails to advance while the other 4 inch forward between 1 and 3 weeks.

The F4 category for siblings advances 4 weeks for persons born in India and 8 weeks for those born in mainland China.

The following charts tell the story in detail:

A. APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES–

World China India Mexico Philippines
1st 2-22-10 2-22-10 2-22-10 5-08-95 12-01-15
2A 4-15-15 4-15-15 4-15-15 4-01-15 4-15-15
2B 7-08-10 6-08-10 7-08-10 11-08-95 4-08-06
3rd 3-22-05 3-22-05 3-22-05 12-15-94 9-08-94
4th 2-08-04 1-22-04 6-15-03 5-22-97 6-22-93

B. DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS– These dates indicate when immigrant applicants can send adjustment of status applications without having to wait for their priority dates to become current.

World China India Mexico Philippines
1st 1-01-11 1-01-11 1-01-11 6-01-95 5-01-06
2A 11-22-15 11-22-15 11-22-15 11-22-15 11-22-15
2B 2-8-11 2-8-11 2-8-11 6-01-96 2-01-07
3rd 8-22-05 8-22-05 8-22-05 5-01-95 1-01-95
4th 7-01-04 7-01-04 5-01-04 12-01-97 4-01-94

4. Immigration Government Processing Times

immigration waiting 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…

5. Immigration Trivia Quiz:

Quiz Removed.

6. Ask Mr. Shusterman : DHS Proposes Changes in EB-5 Program

On January 13, the Department of Homeland Security (DHS) published a proposed rule which would enact the most significant changes in the EB-5 investor program in over 20 years.

 

 

      • Increase in Minimum Investment Amounts

 

The new rule would increase the minimum investment amount for those investing in projects located in Targeted Employment Areas (TEAs) from $500,000 to $1,350,000.
The minimum amount for investments not in TEAs would be increased from $1,000,000 to $1,800,000.

In addition, these amounts would be adjusted every 5 years in the future to conform with the Consumer Price Index.

 

    • Designation of TEAs

Municipalities with an unemployment rate which is at least 150% of the national unemployment rate are TEAs as are certain rural areas.

The purpose of allowing lower minimum investment amounts for projects in TEAs is to aid workers in these areas.

Many persons have criticized the gerrymandering of TEAs boundaries in order to facilitate the development of EB-5 projects located in wealthy areas.

The proposed rule would make it much more difficult for wealthy areas to be classified as TEAs. The ability of states to designate areas of high unemployment would end. DHS would make these designations using a uniform national standard.

 

    • Retention of Priority Dates

The proposed rule would permit the beneficiary of an approved I-526 to use the priority date of an approved petition for a different project in the event that the original regional center or project runs into trouble after the approval of the petition, but before the investor receives a green card.

 

    • Effective Date of the Proposed Rule

The comment period for the proposed rule ends on April 11, 2017, nearly 3 months into the new Administration and shortly before the EB-5 regional center program is scheduled to expire.

Whether the proposed rule will become effective, or whether it will be withdrawn by the new President or superseded by Congressional action remains to be seen.

7. Shusterman’s Upcoming Immigration Seminars

Visas 101: The Process, Procedures and Law
Doubletree Hotel Downtown
Los Angeles, CA
February 16th, 2017
Time: 3:45-5:30pm

Donald Trump Immigration Webinar
The State Bar of California
March 1, 2017
Time: 12:00-1:00pm

Federal Bar Association
Immigration Law Section
Annual Conference
Denver, CO
May 12, 2017
Time: TBD

8. Jobs & Green Cards for RNs & MedTechs – Legal Help!

Are you a Registered Nurse or a Medical Technologist who is looking for a job in the US?

Our law firm represents over 100 hospitals across the country. And the nurse shortage is coming back.

If you are a foreign nurse or a medical technologist and need a job in the US and the job requires a work visa and/or green card, please do the following:

Send an e-mail message to egarcia@shusterman.com

In your message, please provide the following information:

1. Have you passed the NCLEX exam?
2. Do you have a current RN license in the US? If so, from what state(s)?
3. Have you taken and passed the IELTS or TOEFL exam?
4. Do you have a valid VisaScreen certificate?
5. Do you have any immediate family members accompanying you to the United States (spouse and children)?
6. Have you ever been petitioned by any US sponsor and hold an old priority date? If so, what is your priority date?
7. If you are present in the US, what is your current immigration status?
8. What is your RN background (area of expertise)?
9. What is your country of birth?
10. What is your country of citizenship?
11. What is your phone number?

If you are a CLS, please amend the above questions accordingly.

We will forward your response to our hospitals, and if they are interested, they will contact you. Please do not contact our law firm until after you hear from one of our hospitals.

We look forward to helping you!

9. Winner for January 2017 Immigration Trivia Quiz!

Quiz Removed.

 

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California
Immigration and Naturalization Service (INS) Attorney (1976-82)
Member of AILA Board of Governors (1988-97)
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017
Phone: (213) 623-4592 x0, Fax: (213) 623-3720

“This executive order sends a signal, intended or not, that America does not want Muslims coming into our country. That is why we fear this executive order may do more to help terrorist recruitment than improve our security.”

– Senators John McCain (R-AZ) and Lindsey Graham (R-SC)

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