December 23 2001

Newsletter US Immigration Update December 2001

Volume Six, Number Twelve

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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Newsletter US Immigration Update December 2001

This month’s issue contains the following topics:

January 2002 State Department Visa Bulletin
Immigration Government Processing Times
Legislation: Introducing Our September 11, 2001 Web Page
Waging War On Terrorism While Preserving Civil Liberties
Immigration Trivia Quiz: Keeping A Promise To Serve
Information On INS Fugitives To Be Listed In FBI Database
180 Day Portability Rule: Clearing Up Common Misconceptions
Web Site: Social Security Online – An Immigration Guide
Chat Schedule, Transcripts, Audios & Videos
Answers To November’s Immigration Trivia Quiz

NEWS FLASHES:

Job Opportunities at the Law Offices of Carl Shusterman– We have filled our vacant paralegal and legal assistant positions. Thank you for your tremendous response. Due to our rapidly expanding workload, we will be creating an extra three positions over the next few weeks/months. If you have previous immigration experience and/or a university degree holder with a minimum of a 3.4 GPA (no attorneys, please), and are interested in furthering your career, please e-mail your resume to scanton@shusterman.com (Link no longer operational)

Conference– The National Immigration Forum will host a conference entitled “A Nation of Immigrants in the 21st Century: Moving Forward in a Time of New Challenges” to be held on January 31 and February 1, 2002 at the Mayflower Hotel in Washington, DC.The conference will bring together hundreds of immigrant, refugee, labor, business, ethnic, community and local government advocates to develop plans and strategize for the future. Speakers will include high-ranking Administration officials, Members of Congress, recognized legal and policy experts, business and labor leaders, reporters and pollsters, and community leaders.For further information, please contact Rena Surana-Nirula at the National Immigration Forum at rsurana@immigrationforum.org

H-1Bs and Social Security Cards– What happens when a U.S. employer wants to submit a petition for a professional who needs a state license to work in the U.S.? Usually, the person will need a social security number to obtain a license. If the Social Security Administration (See Topic #8) refuses to issue a card either because the person is outside the U.S. or because he is present in the U.S. on a nonworking visa, the situation becomes problematic.Fortunately, on November 20, the INS issued a memorandum which offers a solution to this common “chicken and egg” problem, at least in the H-1B context. see http://www.shusterman.com/pdf/h1bstatusandsocialsecuritycards-cookmemo2001.pdf
INS Restructuring– On December 7, INS Commissioner James W. Ziglar announced the appointment of Richard B. Cravener as Director of the Office of INS Restructuring. This marks the first phase in the implementation of the restructuring plan unveiled on November 14. Mr. Cravener served most recently as District Director of the INS Houston District Office. He has served in various capacities with INS since 1972.

INS Statistics– INS has issued its year end Statistical Report for fiscal year 2001 which ended on September 30, 2001. A brief summary of the report reveals that the number of air, land and sea inspections dropped slightly from the previous year, probably due to sharply decreased international travel following the September 11 terrorist attacks. Similarly, apprehensions along the Mexican border were down over 25% from FY 2000. With regard to immigration benefits, receipts increased over 33%. While approvals rose only 18%, denials rose over 30%. Perhaps most disturbing was the huge increase in pending cases, up 41% from a year earlier. Applications for naturalization rose slightly, while the number of persons who were sworn-in as U.S. citizens dropped precipitously!

LCA Online System– Well, for 10 years, we have had to contend with the Labor Condition Application (LCA). Congress wrote into the law that the Labor Department would turn around LCAs within seven days. DOL regulations changed this to seven “business” days. Then, the DOL established the automated LCA FaxBack System which seemed to be down as often as it was up. Now, the DOL has unveiled its new web-based “LCA Online System” which is currently in the “Alpha Test Phase”. The new system is supposed to be up and running by January 14, 2002.

New Forms Required– INS advises that beginning on January 1, 2002, the agency will accept only the latest I-140 employment-based Immigrant Visa Petitions and the latest Applications for Naturalization on form N-400. You may download the new I-140 on our “Immigration Forms” page at http://www.shusterman.com/formsusimmigration/ and the new N-400 on our “Citizenship Forms” page at http://www.shusterman.com/citizenshipforms/ Both of these new forms are “fillable” online.

Nurses: INS’s California Service Center has adopted a new harsh policy which will result in the denial of many I-140s submitted on behalf of registered nurses. INS regulations provide that an immigrant visa petition may be approved on behalf of a nurse who has either passed the CGFNS examination or who is in possession of a “full and unrestricted license” in the state of intended employment. In some states, like California, licensure may be obtained without the necessity of taking the CGFNS examination. However, if an applicant for a state RN license lacks a Social Security Number, even after she passes the state licensing examination, she will receive a letter from the Board of Registered Nursing stating that a license will be issued to her only after she presents a Social Security Number. For years, the CSC approved I-140s for nurses who presented such letters. Now, in an abrupt change of policy, the CSC has begun denying I-140s for such nurses. The new harsh policy seems to be out of sync with the recent INS Headquarters memorandum regarding Social Security Numbers and H-1Bs. (See “H-1Bs and Social Security Cards” above.)

RIR Labor Certifications– On November 13, the Labor Department published a list of 14 Frequently Asked Questions (FAQ) regarding its August 3, 2001 regulations concerning converting from a regular to an RIR labor certification.

Visa Processing in Mexico/Canada for Third-Country NationalsFor a few weeks, border posts in Mexico and Canada ceased accepting new Nonimmigrant Visa Applications for Third-Country Nationals (TCNs) in the United States. Now, TCN processing has been restored with one significant modification. Men between the ages of 16 and 45 who are citizens of the following countries are subject to a 20-day background check before a nonimmigrant visa may be issued: Afghanistan, Algeria, Bahrain, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates, and Yemen.

1. January 2002 State Department Visa Bulletin

On December 10, we posted the January 2002 Visa Bulletin, the same day the State Department posted the dates on their web site.

As usual, the family-based numbers showed either minimal or no forward movement. No category moved forward more than one month with the exception of the 3rd preference category (married sons and daughters of U.S. citizens) for persons born in the Philippines which advanced six weeks.

The Visa Bulletin creates false expectations. For example, a U.S. citizen parent of a single adult son or daughter is led to believe that his or her child will be able to immigrate in a little less than three years since the current priority date for the worldwide family-based 1st preference category is March 1, 1999. The unfortunate reality is that the there has been no forward movement in this category since November 2000. The parents and children should be informed of this fact, and advised either to seek other means to immigrate or to reconcile themselves to the fact that they will have to live their lives in different countries.

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 for the seventh consecutive month. The time to apply for your labor certification or visa petition is now. We predict that sometime during the year 2002, visa numbers for persons born in India, China and possibly the Philippines will again begin to backlog.

Diversity lottery visas will be available in JANUARY for persons with numbers below those shown in the following list:

AFRICA: AF 6,650

ASIA: AS 5,400 except Bangladesh 2,275

EUROPE: EU 6,535

NORTH AMERICA (BAHAMAS): NA 8

OCEANIA: OC 250

SOUTH AMERICA and the CARIBBEAN: SA 600

Diversity lottery visas will be available in FEBRUARY for persons with numbers below those shown in the following list:

AFRICA: AF 8,000

ASIA: AS 6,825 except Bangladesh 2,675

EUROPE: EU 8,100

NORTH AMERICA (BAHAMAS): NA 8

OCEANIA: OC 290

SOUTH AMERICA and the CARIBBEAN: SA 690

The January 2002 Visa Numbers can be found at http://www.shusterman.com/statedepartmentvisabulletin/

For an explanation of what the categories, dates and symbols listed below mean, see http://www.shusterman.com/greencardsthroughrelatives.html and http://www.shusterman.com/greencardsthroughemployment/

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.

3. Legislation: Introducing Our September 11, 2001 Web Page

The terrorist attacks on the World Trade Center and the Pentagon on September 11th have resulted in tremendous changes in immigration laws, regulations and procedures.

The new anti-terrorism law, the USA Patriot Act, contains numerous immigration provisions. The Administration has stated that noncitizen terrorists will be tried before military tribunals rather than before Federal Courts. During the past three months, over 1,000 individuals who the government refuses to name have been held in custody, mostly for immigration status violations. Attorney-client conversations are being monitored by the federal government. The INS has authorized inputting the names of over 300,000 persons facing deportation in an FBI database. The INS has issued regulations which give INS attorneys the authority to stay custody decisions of Immigration Judges. More recently, Congress has begun to conduct governmental oversight hearings, and groups have begun to file lawsuits over what they see as mass violations of civil liberties.

In an effort to keep our readers current with all of these new laws, regulations, policies, etc., we have established a “September 11th” web page at http://www.shusterman.com/september11immigration.html

This web page is currently subdivided into the following four sections:

Administration
USA Patriot Law
Congress
Private Organizations

The Administration section allows readers to see important White House, State Department, Justice Department, FBI and INS regulations and memoranda regarding combating terrorism through immigration policy.

The USA Patriot Law section contains the complete text of the law, a summary of the immigration-related provisions of the law and Attorney General Ashcroft’s statement vowing to implement the law immediately and completely.

The Congress section contains a link to all the legislation either proposed or enacted which is “related to the attack of September 11, 2001”. It also links to congressional hearings concerning immigration law controls and terrorism.

Finally, we link to statements and observations regarding the balance between waging war on terrorism and preserving civil liberties by such private organizations as the American Bar Association, the American Civil Liberties Union, the American Immigration Lawyers Association and the National Immigration Forum.

Currently, the September 11th page contains over 20 entries and links. The page will continue to be updated on a regular basis.

4. Waging War On Terrorism While Preserving Civil Liberties

President Bush frequently states that the Al Qaeda terrorist network is attacking our freedoms. Wouldn’t it be tragic if we win the war on terrorism abroad but, in the process, sacrifice the very freedoms which make the United States the “Land of the Free”?

On December 6, the Senate Judiciary Committee held an oversight hearing entitled “Preserving Our Freedoms While Defending Against Terrorism” in which Attorney General John Ashcroft was the sole witness. The Senators and the Attorney General focused on such weighty matters as the legality of military tribunals without an explicit declaration of war and the continued detention of hundreds of detainees who the Justice Department refuses to name. We link to the hearing on our “September 11th” page at http://www.shusterman.com/september11immigration.html

Freedoms can be lost, little by little, by the implementation of regulations and policies which may seem fairly innocuous, but upon closer inspection, impinge upon liberty in a way which is antithetical to our system of justice.

As long as I can remember, when the INS sets a bond on a person in custody, the person has a right to request that the bond be “redetermined” by a neutral Immigration Judge.

A Special Agent who has worked up a case for a considerable length of time may have developed such strong feelings about the case that he persuades his superior to hold the detainee without bond or to set a very high bond which is impossible for the detainee to post.

The Immigration Judge may lower, or raise, the bond depending on whether the person is likely to abscond or is a danger to the community. If either the INS or the detainee is unhappy with the Judge’s decision, they may submit an appeal to the Board of Immigration Appeals (BIA). However, in the meantime, the Judge’s decision prevails.

The new regulation stands the system on its head. If the INS decides that the person should be held without bond, or sets a bond of $10,000 or more, the INS has only to submit a Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43) within one business day after the issuance of the order (and a Notice of Appeal within 10 days of the Judge’s order), and the Judge’s order is held in abeyance pending the BIA’s decision on the appeal. Similarly, if the INS Commissioner certifies the BIA’s order to the Attorney General within five business days, the BIA’s custody order is stayed pending the decision of the Attorney General.

What is wrong with the new regulation? In a war against terrorism, why should some “super-liberal” Judge be given the authority to release an Al Qaeda member or sympathizer on his own recognizance?

Here are a few things that bother us about the interim regulation:

There is no language in the regulation which limits its effect to terrorists or even to suspected terrorists. It could apply to any nonimmigrant or even to a long-time immigrant charged with a minor immigration violation;
While the regulation requires the INS to submit an EOIR-43 within one business day and a Notice of Appeal within 10 business days, there is no requirement that the BIA decide the appeal within a certain number of days. Similarly, there is no limitation of the number of days, weeks or months that the Attorney General may take to review the BIA’s decision.
Only the INS may stay the Immigration Judge’s order. If a person in detention appeals the Judge’s custody decision raising the bond, the decision is not stayed on appeal.
Custody determinations are typically issued prior to the hearing in removal proceedings. A person who is held without bond, or who cannot make bond, is less apt to proceed with his case than is a person who is free.
The interim rule took effect on October 31 without the usual comment period since the Attorney General determined that this was necessary “to prevent the release of aliens who may pose a threat to national security”.
The regulation undermines the authority of both the Immigration Judges and the BIA. Both were removed from the INS in 1983 and placed into another Justice Department agency, the Executive Office for Immigration Review (EOIR) in order to provide a more effective check on the excesses of the INS.

The new regulation will probably never be the subject of a congressional hearing. It will never come to the attention of most Americans.

However, in its own small way, it undermines the liberties that our country is based upon, and allows an administrative agency to exercise unchecked authority over individuals.

5. Immigration Trivia Quiz:

Quiz Removed.

6. Information On INS Fugitives To Be Listed In FBI Database

Are you one of the approximately 314,000 persons who is under a final order of deportability/removability from an Immigration Judge and who is unlawfully residing in the U.S.?

If so, be advised that the INS is taking steps to make it easier for you to be apprehended and deported. The agency announced, on December 5, that it is sending your name to the National Crime Information Center, a database maintained by the FBI and used by local police agencies.

The next time a police officer pulls you over for a routine traffic stop, you could be taken into custody, handed over to the INS, and shipped back to your country.

As a former INS Trial Attorney, I can certainly understand why the agency would want to enter the names of each of these persons into the FBI database. The INS lacks the resources to apprehend these persons. Once all 314,000 names and identifying information have been entered into the database, a process which could take one year or more, the INS is counting on local police forces to apprehend up to 10% of these persons annually.

My 20 years in private practice have taught me at least a couple of good reasons why entering these names into the FBI database may not be such a good idea:

These databases are used primarily by local police departments. In the past, police departments have been prohibited from enforcing the immigration laws.First, they have no training which would enable them to distinguish a person who is present in the United States legally from one who is not. However, in this case, the INS is listing only those persons who have been ordered deported by an Immigration Judge. Therefore, arresting such persons and turning them over to the INS requires no special expertise in immigration law.Second, and more importantly, there are millions of immigrants and nonimmigrants who reside in the United States, both legally and illegally. These persons have encounters with local police departments in a variety of settings: as wanted criminals, as material witnesses and as victims of crimes. Too many crimes are not reported because persons who are in the United States unlawfully are afraid to approach their local police. For this reason, local police departments have spent years assuring such people that they are in the business of deterring crime and assisting victims of crimes, and that they are not involved in the enforcement of federal immigration laws.Now, if local police departments have access to the names of INS fugitives and decide to assist the INS in apprehending these persons, the trust that they have worked years to establish in local ethnic communities will evaporate, and immigrants who are witnesses to, and victims of, criminal behavior will be fearful of reporting such crimes to the police. For this reason, a better alternative would be for the INS to be provided with enough resources so that the agency could apprehend and deport the persons on its list without outside assistance.

The list is not accurate. Jeanne Butterfield, the Executive Director of the American Immigration Lawyers Association (AILA), states that “you’ve got a lot of people walking around out there who have no idea there was a hearing or a deportation order against them”. Our law firm has assisted scores of persons in reopening their deportation hearings because they did not receive notice of their hearing, and were ordered deported “in absentia”. Recently, we were retained by a physician who was undergoing a medical residency program. He had applied for political asylum in the United States many years ago, and was granted an EAD (work permit) by the INS. Recently, when he visited the INS to renew his EAD, he was told that it could not be renewed because he had been ordered deported by an Immigration Judge. The residency program immediately terminated his employment. He came to see us in a panic: “Is this is what I get for following all the rules?” When we looked at his file at the Immigration Court, we found that the Judge had NOT ordered him deported, but had administratively closed his case because the INS was unable to serve him with a Notice to Appear before an Immigration Judge. We will straighten out this mistake, and get a new work permit for him. However, suppose that his name had been entered into the FBI database, and that he had been stopped by a police officer (e.g., for speeding to the hospital to perform an emergency surgery), he would have been arrested and turned over to the INS for deportation.The bottom line is that the information that the INS plans to enter into the database is not completely accurate. The INS should devise a simple and effective way for innocent persons to be protected.

7. 180 Day Portability Rule: Clearing Up Common Misconceptions

In November, I spoke at an immigration law seminar given by the Practising Law Institute in San Francisco. My topic was the “180 Day Portability” rule, also known as §106(c) of the American Competitiveness in the 21st Century Act (AC-21).

Although the rule is only two sentences long and is stated in simple English, employers and employees alike remain confused as to its meaning.

The law states that both labor certifications and employment-based visa petitions remain valid with respect to a “new job” where the INS fails to adjudicate an application for adjustment of status within 180 days “if the new job is in the same or a similar occupation as the job for which the “petition was approved” or the “(labor) certification was issued”.

This seems simple, doesn’t it? Of course, since there are currently no INS regulations interpreting the statute, reasonable minds may disagree about what the phrase “same or similar occupation” means. What if a software engineer becomes a senior software engineer? Not much of a stretch. However, if she becomes the VP for Software Operations, her attorney may have to do battle with the government to get her adjustment application approved.

A lot of people get confused when there is a change of

salary, and/or
location

However, since neither are limiting factors under §106(c), both the salary and the location of the applicant’s new job should be irrelevant.

Others are confused about whether the rule applies where the applicant changes jobs before the 180-day period has elapsed. Again, the operation of the new rule is not affected by such changes. If an applicant for adjustment of status changes jobs 60 days into the 180-day period, she is home free as long as the INS takes over 180 days to decide the application.

The statute provides that the job offer is prospective only. However, case law imposes an “intent” requirement: An applicant must, at the time that an application for adjustment of status is submitted, have the intent to work for the petitioning employer indefinitely. If the applicant quits to work at a higher-paying job two days after the adjustment application is filed, the INS may seek to deny the application arguing that the applicant lacked the requisite intent at the time that the application was submitted. However, some people think that the rule requires the applicant to work for the petitioning employer for 180 days after the I-485 is submitted. It clearly does not.

INS’s Policy Memorandum regarding AC-21, dated June 19, 2001, provides, on page eight, that “adjudicators shall not deny applications for adjustment of status on the basis that the alien has changed jobs. Under present practices, it is expected that an I-485 applicant notify the Service when they no longer intend to enter into employment with the employer who sponsored them on the I-140 petition. The Service should continue to expect the applicant to submit a letter to the INS of this change of intent… The Service should request a letter of employment from the new employer…”

In practice, an applicant who changes jobs after the I-485 has been submitted should send both letters to the INS by certified mail.

8. Web Site: Social Security Online – An Immigration Guide

Wouldn’t it be great if questions about the relationship between immigration and social security could be answered in one place on the web? Now, they can be, and in 15 different languages!

The Social Security Administration (SSA) has established a web site to answer questions about social security and immigration from employers, workers, student, refugees and asylees.

The site covers a large number of topics including how to obtain a social security card, what to do when you need a social security card for tax purposes, how to get a social security number for a driver’s license, how to verify names and social security numbers for employees, how to report earnings for household workers, advice for self-employed persons, etc.

The site contains a number of useful features, one of which is the “Multi-Language Gateway” which provides social security information in the following languages: Arabic, Armenian, Chinese, Farsi, Greek, Haitian-Creole, Italian, Korean, Polish, Portuguese, Russian, Spanish, Tagalog and Vietnamese.

The site also contains a handy chart listing categories of nonimmigrants that are permitted to work in the U.S. Caveat: This chart needs to be updated to include K-3, K-4 and V status. We link to Social Security Online on our “Government Links” page athttp://www.shusterman.com/lawsregulationsusimmigration.html#8

9. Chat Schedule, Transcripts, Audios & Videos

Deleted

10. Answers To November’s 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)

Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550, Los Angeles, California 90017, (213) 623-4592 Fax- (213) 623-3720

“Those who would trade freedom for security do not deserve either.”

– Benjamin Franklin