Volume Three, Number Twelve

SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 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 December 1998 contains the following topics:

Table of Contents

• 1. December 1998 State Department Visa Bulletin
• 2. Immigration Government Processing Times
• 3. H-1B Regulations Issued Just Prior to December 1, 1998 Deadline
• 4. Immigration Weather Report: Huge Backlogs Rapidly Approaching
• 5. Health Care Professionals: More on Test Scores
• 6. Immigration Trivia Quiz: I Know, It’s Only Rock’n’Roll
• 7. Web Site: Immigrants Support Network
• 8. Our Web Site Receives a “Makeover”
• 9. Human Resource Directors: Labor Department “Meltdown”
• 10 Answers to November’s Immigration Trivia Quiz

NEWS FLASH:

• Under New INS Regulations (12-4-98), Petitions and Applications Relating to Immigrant (EB-5) and Nonimmigrant Treaty Traders or Investors (E-1 and E-2) Must Be Filed With Either the California or the Texas Service Centers. See

  http://www.shusterman.com/invest98.html (Link is no longer operational.)

• INS Proposes Rules under NACARA for Salvadorans, Guatemalans and former Soviet Bloc Nationals (11-24-98). See

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

• Because of Hurricane Mitch, INS Releases Certain Central American Detainees from Custody, and Halts Deportations of Central Americans until January 7, 1999. See

  http://www.shusterman.com/245inacarausimmigration.html

• Nurses and Occupational Therapists Will Begin Receiving Green Cards on December 14, 1998. See

  http://www.shusterman.com/343regs.html (Link no longer operational)

1. December 1998 State Department Visa Bulletin

On November 10, 1998, we posted the December 1998 Visa Bulletin, the same day that the State Department posted the dates on their web site.

For the Family categories, the picture is getting dimmer by the month. The numbers moved forward, if they moved at all, between one and three weeks. Some categories failed to move at all.

Most of the Employment categories remain ‘current’ (no backlogs). The unskilled workers category advanced two weeks to March 15, 1992.

For persons born in the Peoples Republic of China and India, the employment categories were, if not dead, on life-support. The first, second and third categories for China moved two weeks, two weeks and one week, respectively. Similarly, the second and third categories for Indians advanced three weeks and one week, respectively.

The influx of another 142,500 H-1B workers over the next three years plus 10,000 to 20,000 health care workers suddenly qualifying for green cards threatens to further backlog the system. A legislative fix is clearly called for, but the amendments to the H-1B bill which would have let Chinese and Indian H-1B’s take advantage of unused worldwide visa numbers for permanent residence failed to make it into the law.

On an individual basis, all Chinese and Indian H-1B, J-1, E and L-1 visaholders should apply for permanent residence immediately, if you have not already done so. On a collective basis, any organization which is prepared to launch a serious legislative effort to secure additional visa numbers for Indian and Chinese professionals should contact me immediately. I am prepared to volunteer the use of my newsletter and public relations resources to help spearhead such an effort.

Visa Lottery

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 limit) may be provided to immigrants from any one country.

For December, immigrant numbers in the DV category are available to qualified DV-99 applicants chargeable to all regions/eligible countries as follows: AFRICA (9,144), ASIA (2,710), EUROPE (7,441, except Albania: 5,067 and Bulgaria: 7,266); NORTH AMERICA (Bahamas: 24); OCEANIA (261): SOUTH AMERICA, CENTRAL AMERICA and the CARIBBEAN (1,422).

The registration period for the DV-2000 ended at noon on October 31, 1998.

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/

For the State Department’s official version, complete with information about the movement of family, employment and lottery numbers, see

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

FAMILY CATEGORIES

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	8-15-97	8-15-97	8-15-97	8-01-93	4-01-87
2A	5-15-94	5-15-94	5-15-94	5-08-93	5-15-94
2B	3-01-92	3-01-92	3-01-92	7-08-91	3-01-92
3rd	5-08-95	5-08-95	5-08-95	3-22-90	3-15-87
4th	4-22-88	4-22-88	5-01-86	10-08-87	8-01-7

EMPLOYMENT CATEGORIES

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	11-15-97	Current	Current	Current
2nd	Current	6-08-96	7-01-97	Current	Current
3rd	Current	9-22-94	1-08-96	Current	Current
Unskilled	3-15-92	3-15-92	3-15-92	3-15-92	3-15-92
4th	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th	Current	10-01-97	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 Regulations Issued Just Prior to December 1, 1998 Deadline

As we reported in the November 1998 issue of SHUSTERMAN’S IMMIGRATION UPDATE, the good news about the law raising the numerical cap on H-1Bs is that 142,500 additional H-1Bs will be issued over the next three years.

The cloud attached to this silver lining is Section 414(a) of the “American Competitiveness and Workforce Improvement Act” which provides that most employers of H-1B professionals have to pay a $500 surcharge per H-1B petition starting on the latter of the following two dates: (1) On December 1, 1998, or (2) Whenever the INS establishes a system to collect the new fees, whichever occurred later.

To no one’s great surprise, the INS, the same agency which took over two years to issue “interim” regulations to implement a portion of section 343 of the 1996 law pertaining to health care workers and two years to issue “interim” regulations to benefit persons with “conditional grants of suspension of deportation” was able to complete the task of publishing H-1B regulations (which promise to supply the agency with additional funding) within approximately five weeks. To read the full text of the regulations, see

http://www.shusterman.com/h1bfees.html (Link no longer operational)

Therefore, since December 1, 1998, most employers have been required to attach a check or money order for $610 (the regular filing fee of $110 plus $500) together with most H-1B petitions.

Some fortunate employers are exempted from the $500 surcharge, though not from the $110 filing fee. These include: (A) Institutions of higher education as defined in Section 101(a) of the Higher Education Act of 1965 and 8 CFR 214.2(h)(19)(iii) of the new regulations. (B) Nonprofit organizations and entities related to or affiliated with an institution of higher education, as defined under 8 CFR 214.2(h)(19)(iii) of the new regulations. (C) Nonprofit research organizations or Governmental research organizations, as defined by 8 CFR 214.2(h)(19)(iii) or the new regulations. (D) Second or subsequent requests for an extensions of stay that the employer has filed for the same alien. Employers who claim an exemption from the $500 surcharge are required to file form I-129W, Petition for Nonimmigrant Worker Filing Fee Exemption. To download and print a copy of form I-129W, suitable for submission to the INS, click

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

and scroll down to form I-129W. Remember, if you have not already done so, download a free copy of the Adobe Acrobat Reader by clicking on the appropriate logo near the top of the forms page.

4. Immigration Weather Report: Huge Backlogs Rapidly Approaching

In 1990, the same year that Congress established a 65,000 numerical cap for H-1B visas, it also raised the numerical cap of employment-based green cards to 140,000. Comparing the two caps is a bit misleading, however. Spouses and children do not count for purposes of the H-1B cap, but they do under the cap for permanent residents.

For the first few years after the passage of the 1990 law, employment-based quotas were mostly “current” (no backlogs) while the family-based quotas ranged from current to almost 20 years in the case of Philippine-born brothers and sisters of U.S. citizens. The only storm clouds overhead were for unskilled workers (e.g., housekeepers and child monitors) and professional and skilled workers from the Philippines, primarily registered nurses.

When the 1996 immigration law effectively prevented foreign-born health care workers (with the exception of physicians) from obtaining permanent residence in the U.S. for over two years, the employment-based third preference category from the Philippines became current.

However, with the advent of the World Wide Web in 1994, and the increasing popularity of Personal Computer, the information technology industry became the engine which fueled the economic boom in the U.S. Though we import most of our electronics products and automobiles from abroad, in the area of information technology (IT) , telecommunications and biotech, the U.S. has emerged as the undisputed worldwide leader. These industries have created huge amounts of well-paying jobs for U.S. workers.

Additionally, some of the best and brightest software engineers and microbiologists who helped propel the U.S. into world leadership in IT and Biotech are bright young foreign-born graduates from Harvard, Yale, Stanford, MIT, Caltech and other renown institutes of higher learning. Many of Silicon Valley entrepreneurs are also foreign-born, from Intel’s Hungarian-born Andy Grove to hundreds of Indian and Chinese investors whose names are virtually unknown to the general public.

In 1996, the employment-based categories for permanent residence started to backlog for persons born in India, a country which accounts for 44% of all H-1B visaholders in the U.S. By December 1997, the Peoples Republic of China (PRC), joined India as the second country to experience significant backlogs in obtaining employment-based permanent residence for software engineers, scientists and other highly-trained professionals. Over 9% of all H-1B visaholders are born in the PRC.

Although the total number of professionals born in India and the PRC account for less than a tenth of one percent of the U.S. labor force, to U.S. employers ranging from IT giants like Sun, Netscape, Hewlett-Packard and Microsoft, to universities and National Cancer Institutes, and to biotechnology companies like Amgen and Genentech, the services of these professionals are essential. They are highly educated, well-paid and are engaged in projects to develop leading edge software, perform important medical research, and, in the process, create jobs for thousands of U.S. workers.

When a coalition of high technology companies explained the need for the services of these professionals in early 1998, the Senate passed legislation by a vote of 80 to 20 to raise the H-1B cap. see

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

and scroll down to “American Competitiveness Act (S.1723), Text and Hearings” and click on “Full Text of S.1723 (H-1B Cap Bill) Passed by Senate on (5-18-98)”.

Significantly, section 8 of the S.1723 would have all but eliminated the country quotas for permanent residence for employment-based immigrants. The Senators who overwhelmingly voted to approve S.1723 realized that raising the H-1B cap was a useless gesture if, after a few years, the U.S. employer would lose the services of the H-1B visaholder anyway because of rigid country quotas.

Country quotas are a vestige of the infamous “national origins quotas” which were largely eliminated from the immigration laws in 1952. In countries like Canada, country quotas have been completely eliminated from their immigration laws. Our 1952 law, rather than eliminate country quotas, simply provided that all countries would be given identical quotas. In practice, this means that the PRC and India with a combined population of two billion have the same quotas as tiny countries like Nepal, Bhutan, and Monaco, nations which account for virtually no immigration to the U.S. Under S.1723, unused employment-based visa numbers from these countries could be used by Indian software engineers and Chinese cancer researchers. The numbers would simply be moved from an unused category to one where the numbers were needed. The overall limitations on immigration to the U.S. would remain unchanged.

Unfortunately and inexplicably, this common sense approach taken by the Senate was not adopted in the final compromise bill which was passed by the Congress and signed by the President.

Now, with an extra 142,500 H-1B visaholders, and with 10,000 to 20,000 health care workers able to secure permanent residence over the next few months, the employment-based categories will backlog severely, and the U.S. economy will be adversely affected, unless Congress amends the new H-1B law to reinsert a provision modifying the per-country quotas.

This is a goal of a new pro-immigrant organization, the Immigrants Support Network (See Topic #7.). One can only hope that the new Congress will be receptive to such a needed change in our immigration system.

5. Foreign Healthcare Workers English Information Site

We discussed the passage of the long-awaited regulations regarding foreign-born healthcare workers on October 14, 1998 in Topic #5 of the November issue of SHUSTERMAN’S IMMIGRATION UPDATE.

I wrote analyses of these regulations for each of the following publications: (1) Bender’s Immigration Bulletin; (2) The Immigration Law Review of the Healthcare Association; and (3) The Handbook for the Midyear Conference of the American Immigration Lawyers Association.

Last week, I received a phone call from one Peter Peterka, and within a few short minutes, I realized that in my eagerness to impress my fellow immigration attorneys and the healthcare community with my erudition, I had completely missed one of the major issues posed by the new regulations.

The regulation requires foreign-born nurses and occupational therapist to pass proficiency tests in written and spoken English. (Fortunately, attorneys writing newsletters need not pass such examinations. In fact, not more than a minute ago, I shouted out to my foreign-born wife who was reading a book in the living room, “Honey, how do you spell erudition’?”)

Foreign-born health care workers are cut no such slack. The new regulations require occupational therapists to score 560 on the paper-based Test of English as a Foreign Language (TOEFL) and 220 on the computer-based TOEFL; 4.5 on the Test of Written English (TWE) and 50 on the Test of Spoken English (TSE).

Registered nurses must score 540 on the paper-based and 207 on the computer-based TOEFL; TWE: 4.0; TSE: 50; MELAB: 79; Oral Interview: 3+.

Licensed practical/vocational nurses must score 530 on the paper-based and 197 on the computer-based TOEFL; TWE: 4.0; TSE: 50; MELAB: 77; Oral Interview: 3+.

If all these numbers cause your eyes to glaze over, then you are a lot like me. However, for Peter Peterka, these numbers really get his juices flowing. You see, Peter is a statistician and testing methodology is his specialty. Peter is, to put it mildly, outraged about these numbers. He obtained published score reports, published research reports, and unpublished data directly from the Educational Testing Service, the folks who administer the TOEFL, the TWE and the TSE.

According to Peter’s research, 30 to 50% of Native English speakers tested do not meet the English Proficiency cut-offs set by most states for health care licensure.

Peter’s reports may be read online by clicking on

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

and scrolling down to “English Tests” and by clicking again on “Foreign Therapist’s and Healthcare Worker’s English Information Site”.

Remember that you still have until February 11, 1999 to submit written comments on the October 14, 1998 INS regulations regarding foreign-born health care workers. Comments must be mailed, in triplicate, to Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street NW., Room 5307, Washington, DC, 20536. To ensure proper handling, please reference “INS No. 1879-97” on your correspondence.

The complete text of the regulations may be found at

http://www.shusterman.com/hcw10.html (Link no longer operational)

6. Immigration Trivia Quiz: I Know, It’s Only Rock’n’Roll

Quiz Removed

7. Web Site: Immigrants Support Network

In the November issue of SHUSTERMAN’S IMMIGRATION UPDATE, I stated: “On a collective basis, any organization which is prepared to launch a serious legislative effort to secure additional visa numbers for Indian and Chinese professionals should contact me immediately. I am prepared to volunteer the use of my newsletter and public relations resources to help spearhead such an effort.”

The next day, I was contact by the various members of the Immigrants Support Network (ISN), a nonprofit organization devoted to promoting and protecting the interests of persons applying for permanent residence through the employment-based categories. I am so delighted to see immigrants organizing to protect their interests, I volunteered as an attorney advisor to ISN.

ISN was established just a few months ago and already has attracted thousands of members. In its own words:

“The roots of ISN go back to a mailing list set up by Jitendra Telang (Jitu) in early 1998 to keep in touch with other I-485 applicants at TSC. This soon grew into four different mailing lists, one for each service center, and then AOSDB, which allowed users to share their application details with each other. After realizing frustrations of various applicants waiting endlessly for their green cards in different stages of the employment-based process, (the) idea of forming a non-profit entity to represent these people and their interests was tossed around and discussed (in some cases in parallel under different settings and forums) by a number of people including Jitu, Pradeep Chaphalkar (Chafi), Shailesh Gala, Prakash Balakrishnan, and many others. Upon finding several people who were willing to support such an initiative, ISN was formed.”

I spoke with Jitu Telang and Shailesh Gala in a conference call and I came away with a strong feeling that ISN could be a significant force in helping to persuade Congress, the Administration and the public of the need to (1) Reduce INS, Labor Certification and LCA processing times; (2) Pass legislation to allow persons born in countries with backlogged employment-based preference categories to utilize unused visa numbers in order to secure permanent residence in a more reasonable period of time; and (3) Allow H-1B visaholders with approved INS visa petitions for permanent residence to extend their H-1B status for more than six years if they are merely waiting for their visa numbers to be current.

Membership in ISN is free and the benefits are many. Participate in their discussion groups, subscribe to their mailing lists, and see how your I-485 processing times compare with those of your colleagues. You can obtain membership in this worthy organization by clicking on the ISN logo which currently appears on our homepage and at

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

ISN is seeking coalition partners among industry, immigration and ethnic organizations with the objective of reforming U.S. immigration laws to insure that U.S. employers continue to have access to the best and brightest professionals in the world.

Although ISN was initially organized by persons of Indian origin, professionals of various other nationalities were quick to see the advantages of collective action, and have become ISN members. All persons seeking immigration under the employment-based categories share a common interest in reforming and streamlining the present laws and procedures.

Wherever your place of birth, your profession, your location in the U.S. and your employment-based preference category, enhance your chances of obtaining a green card in a reasonable period of time by joining ISN.

8. Our Web Site Receives a “Makeover”

In response to suggestions from our readers, our web site has undergone a makeover during the past month. This makeover is not merely cosmetic.

We update our page an average of five or six times per week. People who visit our site frequently to see the latest immigration news were understandably confused about where to look for the updated information as the table on our homepage abounded with the words “new” and “updated”.

So we decided to locate the new and updated information where our readers could see it instantly, right on our homepage. We created a section entitled “U.S. Immigration News” which contains three or four links to new developments in different sections of the site. We also added a news ticker which contains a number of “hot off the press” developments, often posted just hours after they occur.

For persons new to our site, and those who have not taken the time to explore our site in detail, we have created a simple tutorial entitled “How To Use This Site” and have divided it into three parts: (1) The Homepage, (2) Beyond The Homepage, and (3) Links.

We hope that our new homepage is both simpler and more useful to our readers.

Please let us know what you think!

9. Human Resource Directors: Labor Department “Meltdown”

On December 1, 1998, we received, courtesy of Deborah Notkin, Esq., a state-by-state, region-by-region breakdown of the Labor Department’s (DOL) processing times for Alien Labor Certifications and Labor Condition Applications: It’s very clear that the DOL’s Employment and Training Administration is experiencing a “meltdown”.

DOL processing times for Applications for Alien Labor Certifications range from a low of two months in New England to one year to over two and one-half years across the rest of the country. Region IX in San Francisco has been working on applications forwarded to it in May and June of 1996 for at least one year. The situation is growing worse by the month. If the DOL issues a Notice of Finding (meaning they would like more information), the processing times become truly scary.

The name of the game these days is RIR (Reduction in Recruitment). see

http://www.shusterman.com/gal197.html (Link no longer operational)

DOL can process an RIR case in from two to four weeks in Region II (New York and New Jersey) to six months in Region VI (Texas and nearby states).

Do these processing times seem not so bad? That’s because before a Labor Certification reaches DOL, it must first be processed by the State Employment Security Agency (SESA) in the state of intended employment. Due primarily to massive cuts in funding, SESA processing times have become a nightmare. A few examples: Massachusetts (18-24 months), New York (16 months), New Jersey (25 months), etc.

To get an approximation of the real waiting times, you must add together both the SESA and the DOL processing times, and consider the possibility of an NOF.

The report also covers Labor Condition Applications (LCA’s), which are one-page forms which must be approved by DOL before an H-1B petition may be approved by the INS. By law, DOL must process LCA’s within seven days. By DOL’s own admission, only Region X (Alaska, Idaho, Oregon and Washington) meets that standard. Region V (Chicago area) takes 45 days while Region VIII (Denver) takes a full 60 days to turn around an LCA.

S. 1723, the Senate Bill to raise the H-1B Cap would have permitted employers to submit LCA’s directly to the INS together with H-1B Petitions, thereby saving the DOL a lot of work, and streamlining the H-1B process. This sensible provision was dropped without explanation from the so-called compromise bill (though some knowledgeable observers have noted that the compromise bill provides funding for DOL processing and enforcement of LCA’s, something that was not included in S.1723).

To view the latest DOL and SESA processing times (not recommended for persons with medical conditions – if reading the report causes dizziness or nausea, please seek advice from your physician prior to continuing), see

http://www.shusterman.com/dol98.pdf  (Link no longer operational)

Since this file is in “Portable Document Format” (PDF), you will not be able to view the file unless you first download the Adobe free Acrobat Reader which you can do by clicking on

http://www.shusterman.com/waitingtimesusimmigration/

and clicking again on the yellow icon under “Department of Labor Processing Times”.

10. Answers to November’s Immigration Trivia Quiz

Quiz Removed

Who said “There’s no such thing as a free lunch.”? During the first two days after mailing out the November edition of SHUSTERMAN’S IMMIGRATION UPDATE, almost 100 persons correctly answered the Trivia Quiz. Fortunately (for me), I designated the winner as the “first” person to provide the correct answer. Otherwise, I’d be doing free consultations until the year 2000!

The winner, who does not want his name revealed, is not only our subscriber but our client. He is a Chinese-born graduate student in an eastern university who retained me, sight unseen, to obtain permanent residence for him as an investor. Instead, our law firm convinced him that a better course of action was a walk-in suspension of deportation application in Atlanta. A couple of years ago, my friend, Charles Kuck an immigration lawyer in Atlanta got the INS to initiate deportation proceedings against our client. I flew to Atlanta for the merits hearing before the Immigration Judge. We won, and recently he became a permanent resident. Unless he marries a U.S. citizen or joins the Marines, he won’t be able to collect his prize of a free naturalization application for another five years. Not to worry – we honor our commitments!

Oh…and the answer is, as copied from the winner’s email:

“They are Walter Kohn (born in Vienna, Austria), University of California at Santa Barbara, USA and John A. Pople (born in Burnham-on-Sea in Somerset, U.K.), Northwestern University, Evanston, Illinois, USA (British citizen).”

This month’s quiz is designed to be a bit more…challenging. And our clients need not apply! No more Mr. Nice Guy ;-)

Carl Shusterman

Newsletter US Immigration December 1998 Quick Links

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December 11, 1998

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.