Volume Eight, Number Eight

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 August 2003

This month’s issue contains the following topics:

1. August 2003 State Department Visa Bulletin
2. Immigration Government Processing Times
3. Health Care Workers: DHS Issues Final VisaScreen Rules
4. Obtaining Your Green Card through Labor Certification
5. Immigration Trivia Quiz: Major League Baseball Players
6. Legislation: Free Trade Agreements – Chile & Singapore
7. Deportation: Permission to Reapply to Return to the U.S.
8. Schedule of Upcoming Immigration Law Seminars
9. Chat Schedule, Transcripts, Audios & Videos
10. Answers to the July 2003 Immigration Trivia Quiz

NEWS FLASHES:

• Hiring at the Law Offices of Carl Shusterman– Since we began displaying banners on our site to let you know that we are hiring paralegals and legal assistants, we have received almost 200 resumes. In the past two weeks alone, we have hired a paralegal and two legal assistants.We are proud to welcome to our office Donna Oh, Peter DeDomenico and Yanet Guillen. Donna is a highly-qualified business paralegal with over six years of experience. Peter is a free- lance translator with 18 months of experience as a legal assistant for a major immigration law firm. Yanet is an attorney in Mexico who aspires to practice immigration law in the U.S. And as a bonus, Yanet is fluent in Spanish, Donna in Korean and Peter in French, Spanish, Italian and you name the language…We continue to seek an experienced paralegal to assist Ellie Najfabadi, Esq., who specializes in business visas (E, H and L, and EB 1, 2 and 3) and J waivers for physicians (If you have never done one, don’t worry. We are willing to train!)
• Amnesty– On August 6, Peter Schey, the lead counsel for the plaintiffs in both the Catholic Social Services (CSS) and the LULAC/Newman late amnesty cases, announced that proposed settlement agreements have been reached in both cases and are under review by the Secretary of the Department of Homeland Security Tom Ridge. Assuming that Secretary Ridge approves these agreements, they must also be approved by the Federal Judges. These agreements would allow over 250,000 class members to begin applying for permanent residence perhaps as early as December 2003. We link to both proposed settlement agreements from our “Amnesty” page at https://www.shusterman.com/amnestyusimmigration

• InfoPass– Related to the above news flash, the BCIS’s new (started in June 2003) online appointment system “InfoPass” for residents of Florida seems to have eliminated the long lines which used to snake around the BCIS district office in Miami. InfoPass can be used to ask questions as well as to make appointments. BCIS officials recently doubled InfoPass’s capacity so that 600 appointments can be made online daily.BCIS Director Aguirre states: “We are very encouraged by what we have seen on InfoPass. The public has taken very well to it.”We link to InfoPass from our “BCIS” web page at http://www.shusterman.com/uscitizenshipandimmigrationservices.html#1

• L Visas– Last month, we reported on two bills which were introduced in the House of Representatives to cure abuses in the use of the L visa category. What abuses? It appears that some “job shops” have had success in bringing in a limited number of high technology workers using the L-1B “specialized knowledge” category rather the H-1B category and have displaced U.S. workers in order to cut costs.As a result of such abuses, on July 25, the “USA Jobs Protection Act” was introduced in the Senate by Sen. Christopher Dodd (D- CT) (S.1452) and the House of Representatives by Rep. Nancy Johnson (D-CT) (H.R.2849). These bills severely cut back on the ability of U.S. employers to employ workers not only in the L-1B category, but in the L-1A and the H-1B categories as well.On July 29, the U.S. Senate Subcommittee on Immigration, Border Security and Citizenship held a hearing on “The L-1 Visa and American Interests in the 21st Century Global Economy.” We link to the witness testimony at this hearing from our “Immigration Legislation” page at http://www.shusterman.com/legislationusimmigration.html#3
• We also link to the WebCast of this hearing at http://www.judiciary.senate.gov/meetings/the-l1-visa-and-american-interests-in-the-21st-century-global-economy                                            although we sympathize with American high tech workers who have lost their jobs, we believe that the number of jobs lost due to abuses in the L-1B visa program is very small compared to job losses due to downsizing and outsourcing. It is public knowledge that the IT industry has been downsizing for the past two years. Tens of thousands of U.S. and foreign-born workers have been laid off. The number of H-1B visaholders entering the U.S. each year has fallen by over 50%. The industry is, at once, cutting jobs and outsourcing jobs overseas to cut costs.To the extent that there are abuses in the L-1B category, they can best be dealt with by the BCIS applying a consistent definition of what constitutes “specialized knowledge”. If any legislative action is required, it should be restricted to the L-1B category, not to L-1A executives and managers. We believe that legislation which would prevent international companies from transferring their executives and managers to the U.S. would put U.S. companies at a competitive disadvantage and would result in even more U.S. jobs being moved abroad.
• Religious Workers– As it does every two years, most of the religious worker category will sunset on September 30, 2003. On July 18, the BCIS issued a memorandum requiring service centers to expedite petitions for religious workers. See http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2003/religwkrpub.pdf

• September 11– We link to an article entitled “A Flawed Report Card: How DOJ Mishandled the Post-September 11 Detention Process” by Anita Ramasastry, a professor of law at the University of Washington from our “September 11” page at http://www.shusterman.com/september11immigration.html#5

• Suspension of TWOV and ITI Programs– On August 2, the Department of Homeland Security and the State Department suspended both the Transit without Visas (TWOV) and the International to International (ITI) programs. We link to a FAQ about the programs and to the complete text of the suspension regulation from our “September 11th” page at http://www.shusterman.com/september11immigration.html#1

• Temporary Protected Status (TPS)– On July 21, the BCIS announced that TPS would be extended for certain Somalis for a one-year period expiring on September 17, 2004. The re- registration period ends on September 19, 2003. See

  http://www.uscis.gov/ilink/docView/FR/HTML/FR/0-0-0-1/0-0-0-88492/0-0-0-88513/0-0-0-89067.html
  On August 6, the BCIS announced that TPS would be extended for certain Liberians for a one-year period until October 1, 2004. The re-registration period ends on October 6, 2004. See

  http://www.shusterman.com/pdf/liberia803.pdf

1. August 2003 State Department Visa Bulletin

Movement in the worldwide family categories was surprisingly rapid, especially for September, the last month of the fiscal year. All of the worldwide family categories advanced between five and nine weeks.

The Mexican categories moved forward even more rapidly, especially the 3rd preference category (married sons and daughters of U.S. citizens) which advanced 13 weeks.

The Philippine family categories awoke from their slumber with a jolt. The 4th preference category (brothers and sisters of U.S. citizens) advanced over 4 months while the 3rd preference category sprinted ahead over 6 months!

So much for the dire end-of-the-fiscal-year predictions of the State Department.

There was only one regression in the entire Visa Bulletin. The India 4th preference category moved backward 11 weeks.

The Visa Bulletin creates false expectations. As long as a category advances less than 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.

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

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

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. Health Care Workers: DHS Issues Final VisaScreen Rules

On July 25, the Department of Homeland Security issued final regulations to implement the “VisaScreen” requirement contained in §343 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

See “DHS Announces New Requirement for Health Care Workers” at

http://www.ilw.com/immigrationdaily/News/2003,0730-health.pdf
and

DHS’s FAQ regarding its new regulations at

http://www.ilw.com/immigrationdaily/News/2003,0730-healthfaq.pdf

The final regulations are similar to INS’s proposed regulations which were issued on October 11, 2002. We wrote about the proposed regulations and provided advice to employers in the November 2002 issue of SHUSTERMAN’S IMMIGRATION UPDATE at

http://www.shusterman.com/newsletterusimmigrationnovember2002.html#5

Given the issuance of the final regulations, it is all the more important that employers immediately apply for permanent residence for all eligible nonimmigrant employees, and that all nonimmigrant health care workers obtain “VisaScreen” certificates prior to July 26, 2004. As it may take several months to obtain such a certificate, the time to start the process is now.

Also, we urged hospitals and other organizations to write comments to the INS to try to soften the impact of the proposed regulations on the already beleaguered health care sector. We were pleased when the American Hospital Association, the American Immigration Lawyers Association and 11 other groups all wrote to the INS to request the “VisaScreen” requirement not apply to nonimmigrant health care workers immediately upon publication of the final regulations. To do so would have prevented hundreds, perhaps thousands, of foreign-born workers employed by U.S. health care providers from continuing their employment.

We compliment the DHS for heeding this advice. The final regulations contain a provision under which the blanket waiver of the “VisaScreen” requirement will continue to apply to all nonimmigrants until July 26, 2004, and waivers may be granted to nonimmigrants on a case-by-case basis after that date.

Even so, in time, the new regulations could have a devastating effect on the U.S. hospitals, nursing homes and other health care providers whenever the government stops granting waivers to nonimmigrant nurses, therapists and other health care workers.

The plain fact is that both the Immigration Service and the State Department have spared nonimmigrants from the impact of the law since its effective date on September 30, 1996, almost seven years ago. Since that time, the shortage of nurses and other health care workers has reached crisis proportions. It’s time for Congress to replace the “VisaScreen” requirement with a more sensible system (What is wrong with utilizing the state licensing system?), and create a usable temporary visa category for registered nurses.

For those wishing to read a detailed analysis of the new regulations, see our FAQ at

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

 

4. Obtaining Your Green Card through Labor Certification

(Fourth in a Series of Articles)

What to expect after filing a Reduction in Recruitment (RIR) Labor Certification:

• The State Workforce Agency (SWA), in most cases, issues a receipt. Be sure to keep this receipt as this date will probably become your “priority date”;
• If the SWA is satisfied that the employer has conducted a good faith job search and there are no qualified available U.S. workers to fill the job opening, it will waive the job recruitment requirement and submit a favorable recommendation to the Department of Labor (DOL);
• The DOL reviews the case and may raise additional questions or issues;
• Once the DOL is satisfied, the Labor Certification application is approved.

What to expect after you file a Regular Labor Certification:

• The SWA, in most cases, issues a receipt. Be sure to keep this receipt as this date will probably become your “priority date”;
• The SWA will work with the employer to develop a job advertisement for placement in either a journal or newspaper of general circulation in the area of intended employment for three consecutive days. The ad must contain a complete description of the vacancy including job responsibilities, duties, salary, and minimum qualifications. All applications will be routed through the SWA. The employer must interview all applicants who meet the position requirements.
• The employer will evaluate job candidates against the job criteria (as established in Form ETA-750A), and must submit a recruitment report to the SWA after applications have been received and qualified applicants interviewed. The recruitment report is a summary of the applicants received and the candidates interviewed, including any decisions made to hire or not hire the candidates.
• If any qualified U.S. workers are identified, the application will be denied.
• The information gathered by the SWA will be collated and forwarded to the regional office of DOL for review and a decision. Generally, the SWA will notify the employer when the application and all associated documents have been forwarded to the certifying officer in the regional office.
• DOL reviews the case and may raise additional questions or issues via a Notice of Findings;
• Once the DOL is satisfied, the Labor Certification application is approved.

Processing Times

Processing times can vary considerably from state to state and region to region. For instance, waiting times in New York for a regular labor certification go back as far as 1998 while in Delaware, the SWA is working on regular labor certification applications which were received in September 2002.

Factors which may affect the successful processing of a Reduction in Recruitment Labor Certification:

In March of 2002, DOL indicated through a memo

http://www.shusterman.com/newsletterusimmigrationapril2002.html#7
that the following factors may affect their ability to adjudicate an RIR application.

• Current status of the U.S. economy on a national, regional, and local level.
• Shortage/surplus of job candidates within the local area.
• Employer’s size.
• Employer’s layoff record within the past year.
• Employer’s hiring practices of U.S. workers evidenced by its percentage in relation to its entire workforce.

Other factors also under consideration are

• Salary offered.
• Specialized nature of the position.

5. Immigration Trivia Quiz:

Quiz Removed.

6. Legislation: Free Trade Agreements – Chile & Singapore

On July 30 and 31, both the House of Representatives and the Senate passed Free Trade Agreements with Chile and Singapore (H.R. 2738 and H.R. 2739) each by over a two-thirds margin.

Both of these agreements have significant immigration implications.

Like the North American Free Trade Agreement (NAFTA), the two new agreements would allow the following classes of persons to enter the U.S. on temporary visas: (1) business visitors; (2) treaty traders and investors; (3) intracompany transferees and (4) professionals.

The agreements would allow 1,400 Chilean and 5,400 Singaporean professionals to enter the U.S. on “H-1B1” work visas each year. H-1B1 visas are a hybrid of H-1B and TN visas. Persons obtaining H-1B1 visas would be subject to both the country quotas and the worldwide H-1B numerical caps. Petitioning employers would have to obtain the approval of LCAs and H-1B1 petitions in the U.S. before applicants could apply for H-1B visas abroad. To obtain an H-1B1 visa, an applicant would have to demonstrate that he is coming to the U.S. for a temporary stay.

The Free Trade Agreement with Chile recognizes only the following four categories of professionals: (1) Disaster Relief Claims Adjuster; (2) Management Consultant; (3) Agricultural Manager and (4) Physical Therapist.

The two Free Trade Agreements will become effective on January 1, 2003. The United States is expected to negotiate free trade agreements with other countries in the near future.

We link to the two new Free Trade Agreements and to specific information about their immigration provisions from our new “Free Trade Agreements” page at

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

7. Deportation: Permission to Reapply to Return to the U.S.

Generally, once a person has been deported or removed from the United States he or she cannot re-enter the country for either five or ten years, even if he qualifies for a green card.

A person who has been deported and wants to re-enter before the end of the five or ten-year period must submit a properly documented form I-212, an “Application for Permission to Reapply for Admission into the United States After Deportation or Removal.”

In 1995, our client married his spouse, a green card holder living in the U.S. A year later, the American Embassy in his country granted him a tourist visa valid for ten years. He arrived into the U.S. as a tourist on May 12, 1996. Over the course of the next three years he lived and worked in the U.S. However, he would return to his native country before his tourist status ran out. Then he would return to the U.S. to be with his wife using the tourist visa stamped in his passport. In 1998, the couple had a young daughter born in the U.S.

On March 17, 1999, the date of his last arrival into the U.S., he was ordered deported because he was working in the U.S. without authorization. His wife and daughter remained in the U.S.

In 2000, his wife became a naturalized U.S. citizen. Meanwhile, the BCIS approved an immediate relative visa petition filed by his wife. However, since he was deported in 1999, he could not receive a green card from the American Embassy.

After his wife retained our law firm, we prepared a form I-212 for her husband, and supplemented it with a number of exhibits.

The BCIS considers the following factors when reviewing I-212 applications:

1. The applicant’s moral character;
2. The need for the applicant’s services in the U.S., and his or her family responsibilities;
3. The recentness of the deportation;
4. The length of time the applicant had been in the U.S.;
5. The reason that the applicant was deported; and
6. The hardships resulting from the deportation.

See Matter of Tin, 14 I&N Dec. 371 (Regional Commissioner, 1973).

We submitted the following documents to the BCIS with our client’s application:

1. Marriage certificate;
2. Naturalization Certificate and Birth Certificate of his citizen spouse;
3. Birth certificate of the couple’s daughter born in the U.S.;
4. Affidavit by his wife;
5. Medical and school records of his wife;
6. Child care receipts for the couple’s daughter;
7. Monthly family expense report, including his wife’s pay stubs, income tax returns, rent receipts, utility bills, and credit card statements;
8. Color photos of our client and his wife and their daughter;
9. Cost of roundtrip airfare between U.S. and client’s native country;
10. Affidavits by client’s in-laws living in the U.S.;
11. Green card of client’s mother-in-law;
12. U.S. passport of client’s sister-in-law;
13. Green card of client’s brother-in-law;
14. Documents proving that our client is living outside the U.S. with certified English translations;

In the wife’s affidavit, she described how she was caring for their two-year-old daughter alone. Her economic situation was dire. Although she was working two part-time jobs, she was earning very little money. She had to pay for rent, utilities, food, and child care services. Despite all her responsibilities, she was attending school at night to earn her Bachelor of Arts degree.

Oftentimes, her sister and brother had to give her money to make ends meet. The situation caused her to suffer from depression. A doctor prescribed medication for her depression and anxiety. She thought about returning to her native country to be with her husband, however, the economic situation in that country is deplorable.

To her delight, in July 2003, the BCIS approved her husband’s application. Now, he is ready to apply for an immigrant visa at the American Embassy in his country. Hopefully, he will be able to rejoin his family in the U.S. before the end of this year.

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:

• August 17-20, 2003 Denver, Colorado
  American Society for Healthcare Human Resources Administration (ASHHRA) – “Cultivating Our Human Capital”
  My presentation is entitled “Immigration & Foreign Health Professionals – Is the Door Half Open, or Half Shut?”
• September 4, 2003 Anaheim, California
  California State Bar Association Annual Conference
  “Immigration Law after September 11th”
• September 19, 2003 San Antonio, Texas
  American Immigration Lawyers Association
  Interactive Workshop on Occupations
  My topic is “Allied Health Care Professionals”. Ellie Najfabadi, Esq. from our law firm will discussing “Doctors”.
• October 10-11, 2003 Boston, Massachusetts
  American Immigration Lawyers Association (AILA) New England Chapter 2003 Conference
  “Advanced Immigration Solutions for Health Care and Bio-Tech”
  My presentation will concern the Immigration of Foreign-Born Physicians
• October 16-17, 2003 San Antonio, Texas
  27th Annual Conference in Immigration and Nationality Law – University of Texas School of Law
  My presentation is entitled “Using the Web to Practice Immigration Law”.
• October 27, 2003 San Francisco, CA
  Practising Law Institute
  36th Annual Immigration & Naturalization Institute
• November 7 Philadelphia, PA
  Association of Nursing Executives (AONE)

9. Chat Schedule, Transcripts, Audios & Videos

Deleted

10. Answer to the July 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

“In the absence of that immigration, you simply could not have generated the economic growth that the U.S. produced (in the 1990s).”

– Paul Harrington, Northeastern University, June 2003 (Mr. Harrington is a population expert. His quote followed the publication of a report that the U.S. birthrate had fallen to its lowest level since 1909.)

Newsletter US Immigration Update August 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.