Volume Sixteen, Number Eleven

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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.

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Client Reviews

Newsletter US Immigration Update December 2011

TABLE OF CONTENTS:

1. New Deportation Priorities Will Bring Focus to ICE Enforcement Efforts
2. CSPA: Teach Your Parents, and their Attorneys, Well
3. Schedule of Shusterman’s Upcoming Immigration Law Seminars
4. Employer Fines Where Employees Don’t Complete Section 1 of Form I-9
5. Success Story: Green Card through Registry for a 65-Year Resident
6. Immigration Trivia Quiz: Immigrant Directors
7. State Department Visa Bulletin: December 2011
8. Immigration Government Processing Times
9. Ask Mr. Shusterman: How Can I Qualify for an E-2 Visa?
10. Winner of Our November 2011 Trivia Quiz!

NEWS FLASHES:

• • U.S. Green Card Lottery Entrants Down Nearly 50% for 2013 – Applicants for this year’s diversity-visa lottery totaled to about 8 million, almost half of the nearly 15 million applicants the previous year. State Department officials attribute the decline in applications to the exclusion of the Bangladeshis because of the large number of them already living in the U.S.

• • Bundled Filings for L-1 Petitions – The USCIS has announced that it will give employers the opportunity to bundle L-1 petitions. Each individual filing will need their own supporting evidence, forms, filing fees, G-28 and, if desired, premium processing forms and fees.

• CSPA Update – On November 8, Judge Tallman of the U.S. Court of Appeals for the 9th Circuit gave the Government . If a visa availability date regresses, and an alien has already filed a Form I-485 based on an approved Form I-130 or Form I-140, the officer should retain the Form I-485 and note the date a visa number first became available. Once the visa number again becomes available for that preference category, determine whether the beneficiary is a “child” under paragraph 21.2(e)(1)(ii) using the visa availability date marked on the Form I-485, as long as the I-485 was filed within one year of that visa availability date.”When I e-mailed the father a message that his daughter could remain in the U.S. and adjust status with him and his wife when the priority date became current, he was thrilled. So was his daughter who is pursuing her Master’s degree.Given the retrogression in the employment-based categories, it is very important that parents of sons and daughters who turned 21 years of age before they obtain permanent residence, and their immigration attorneys, fully understand how the Child Status Protection Act operates.

1. New Deportation Priorities Will Bring Focus to ICE Enforcement Efforts

On November 17, two important memoranda will start the process of implementing the priorities of the Immigration and Customs Enforcement (ICE) agency in deciding who to place under removal proceedings, and which existing cases currently in removal proceedings to pursue.

Despite the protestations of anti-immigrant zealots that this amounts to an “amnesty” for illegal immigrants, nothing could be further from the truth.

In reality, the Obama Administration has been deporting 400,000 persons per year from the United States, far more than any previous administration. The problem is that even though there are over 300,000 persons currently under removal proceedings, the Federal Government has the money to employ only 250 Immigration Judges across the U.S., each Judge is responsible for over 1,200 active cases, and their backlogs are constantly growing. When I served as an INS Trial Attorney 30 years ago, a Judge could schedule a case to be heard on its merits within a few weeks or months. Today, a merits hearing takes years to be scheduled. The “system” has become a joke.

When you consider that these backlogs allow some people who are under removal proceedings because they are serious criminals or have attempted to defraud the system to remain in the U.S. for many years, it is clear that the system must be reformed and that priorities need to be set.

Our criminal courts do not treat persons with traffic tickets the same as serious criminals. Why should the Immigration Courts do so?

One problem that has rarely been discussed is the fact that ICE Attorneys are not the ones who issue, or even screen, Notices to Appear (NTAs) before Immigration Judges. These are the documents that lay out the allegations and the legal grounds of removal for persons in proceedings. Instead, this function has always been reserved for non-attorneys!

A simple story suffices. In 1981, when I was an INS Trial Attorney, I was given the case of a young Filipina whose mother and father were both lawful permanent residents of the U.S. However, only her father sponsored her for a green card as his unmarried adult daughter. Because the backlogs for Filipinos wishing to immigrate to the U.S. are very long, it took many years before she was interviewed at the U.S. Embassy in Manila for her green card. By this time, her father had died, and she duly noted this on her application for permanent residence. Apparently, the consular officer did not notice that her father was deceased, and he approved her application for an immigrant visa. Thrilled, she quit her job as an executive secretary, sold her house and boarded a plane to come to the U.S. to reside here and to care for her widowed mother. However, at the airport, the INS officer noticed that her father had died, and paroled her into the U.S. for a “deferred inspection” in Los Angeles. The INS officer who interviewed her in Los Angeles issued an Order to Show Cause (The “OSC” is the equivalent of today’s Notice to Appear.) charging her with being inadmissible to the U.S.

Despite the fact that I was to be the prosecuting attorney, I had no say about whether the government should spend its time and resources in an effort to deport this woman from the U.S. Personally, I felt that since she had done nothing wrong, and simply relied on the mistake made by the U.S. Embassy, she should be allowed to remain in the U.S. Moreover, the OSC ignored the reality that had her permanent resident mother sponsored her for a green card, she would be allowed to remain in the U.S. I spoke to the deferred inspection officer about cancelling the OSC, but he refused to do so. Why I’ll never know, but despite the fact that I was an INS Trial Attorney and he was not, whether or not to cancel the OSC was completely up to him. I remember thinking how backwards this system was. Eventually, the woman was allowed to remain in the U.S., but I’ll never forget all of the time and effort that the INS spent trying to exclude her from the U.S. Where were our priorities? Why didn’t INS Trial Attorneys have any say in the matter?

Now, 30 years later, ICE attorneys are finally being treated like real attorneys instead of like flunkies who must defer to the judgment of non-lawyers.

We link to INS/USCIS prosecutorial memos from the year 2000 to the present. Previous prosecutorial memos are incorporated in the June 17, 2011 memo by ICE Director John Morton. This memo forms the basis for the two memos issued on November 17. The more recent memos direct ICE Attorneys to review all 300,000 cases now in removal proceedings to see whether they conform with the priorities enunciated in the Morton memo. Briefly stated, ICE is supposed to concentrate its energies on deporting the “bad guys” – dangerous criminals, persons who have recently crossed the border and those that have attempted to defraud the system. Other persons, who may have come to the U.S. as children and lived most of their lives here, or persons who have resided in the U.S. for over 3 years and have close relatives who are U.S. citizens may have their NTAs cancelled. This will not give them green cards, but it will enable the Immigration Courts to operate more efficiently and concentrate their energies on deporting serious criminals and recent border crossers.

In Phase One of the new system, ICE attorneys are already reviewing new NTAs for persons who have yet to have hearings before an Immigration Judge, and cancelling “low priority” cases as defined by the Morton memo. Phase Two of the program will run from December 4 to January 13 in Baltimore and Denver. ICE Attorneys in those cities will review cases which are pending in Court. They will request that Judges “administratively close”, but not terminate, the low priority cases of persons who are not in detention. Simultaneously, ICE agents will be required to complete a training program regarding the new guidelines by mid-January.

Once the above pilot programs are completed, ICE officials will draw up plans to implement the new policies nationwide in early 2012.

Will the new program cure our dysfunctional immigration system? Hardly, since it only deals with those in removal proceedings and fails to provide those whose cases are closed with work permits or drivers licenses. But is it a step in the right direction? I can say with great confidence that at least one former INS Trial Attorney, and a lot of Immigration Judges, think so.

2. CSPA: Teach Your Parents, and their Attorneys, Well

Her father called me for a legal consultation. He had been waiting in the EB-3 line with a pending application for adjustment of status, like so many others, for over 4 years, and so had his wife and daughter. Now, his attorney was telling him that his daughter, a straight-A student, would have to leave the United States before her CSPA age became 21 years old.

Not wanting his daughter to leave the U.S., he had consulted numerous immigration attorneys in the state where he lived. They all told him the same thing. His daughter’s CSPA age would be 21 within weeks, and she needed to leave the country.

First, I had him explain the facts to me. His daughter was born in September 1988. His employer had filed an I-140 on his behalf in April 2007 at which time his daughter was 18 1/2 years old. In July 2007, while the I-140 was still pending, all the EB-2 and EB-3 priority dates became current. His attorney submitted I-485s on behalf on him, his wife and his daughter. After a couple of Requests for Evidence, the I-140 was approved in June 2009.

Three months later, in September 2009, the daughter had her 21st birthday. Since the I-140 had been pending for 2 years and 2 months, CSPA allows this time to be subtracted from his daughter’s age. Therefore, her CSPA age was only 18 1/2 in September 2009. However, his attorney warned him that if the family did not receive their green cards by November 2011, his daughter would “age-out” and have to leave the country.

I explained to him that CSPA worked as follows: A child’s CSPA age is determined on the latter of the following two dates: (1) when the priority date became current (July 2007); or (2) when the visa petition was approved (June 2009). In his daughter’s case, the later date was June 2009. At that time, her age was 20 years and 9 months old. However, since CSPA permitted the length of time that the visa petition was pending to be subtracted from her age, we could subtract 26 months from her age. Thus, her CSPA age was 18 years and 7 months.

CSPA also requires that she “seek to acquire” permanent residence in the U.S. within one year of visa availability. Since an I-485 had been filed for her in July 2007, the same month that the visa became available, this requirement had been complied with.

However, now, because of the retrogression in the EB-3 numbers, it was over 4 years later, and her priority date was nowhere near current. Was her attorney correct that her CSPA age would be 21 years old in November 2011? I did not think so. I advised her father that once she complied with all of the CSPA requirements, her CSPA age was effectively frozen at 18 years and 7 months forever. However, I wondered why all the other attorneys that he had consulted had told him that she was going age out in November 2011.

I asked Attorney Amy Prokop in our office to research the matter. She e-mailed me a section of the one of the USCIS’ memos on the subject, the Neufeld memo of April 30, 2008.

The relevant portion of the Neufeld memo states as follows:
“If the alien beneficiary’s CSPA age is under 21, he or she remains a child for purposes of the application for permanent residence provided the beneficiary properly applies for permanent residence, based on the subject petition, within one year of visa availability and notwithstanding the alien’s CSPA on the date of adjudication of such application.”
Further, the Neufeld memo contains a section specifically devoted to the subject of retrogression:

“Visa Availability Date Regression. If a visa availability date regresses, and an alien has already filed a Form I-485 based on an approved Form I-130 or Form I-140, the officer should retain the Form I-485 and note the date a visa number first became available. Once the visa number again becomes available for that preference category, determine whether the beneficiary is a “child” under paragraph 21.2(e)(1)(ii) using the visa availability date marked on the Form I-485, as long as the I-485 was filed within one year of that visa availability date.”

When I e-mailed the father a message that his daughter could remain in the U.S. and adjust status with he and his wife when the priority date became current, he was thrilled. So was his daughter who is pursuing her Master’s degree.

Given the retrogression in the employment-based categories, it is very important that parents of sons and daughters who turned 21 years of age before they obtain permanent residence, and their immigration attorneys, fully understand how the Child Status Protection Act operates.

3. Schedule of Shusterman’s Upcoming Immigration Law Seminars

• South Florida AILA Chapter
  South Florida AILA Conference
  Miami, Florida
  February 9-10, 2012
  Topic: Understanding the Child Status Protection Act
• Immigration Boot Camp
  Pincus International
  Los Angeles, California
  March 2012
• FBA 8th Annual Immigration Law Seminar
  Federal Bar Association
  Memphis, Tennessee
  May 2012

4. Fines on Employers Where Employees Do Not Complete Section 1 of Form I-9

Over the years, we have noticed that employers do not always check to make sure that their employees properly complete Section 1 of the I-9 form. Section 1 is entitled “Employee Information and Verification” and to the right of this heading are the following words: “(To be completed and signed by the employee at the time employment begins.)”

While it is understandable that some employers believe that they are not responsible for mistakes that their employees make in completing Section 1, this belief is erroneous. If the employee fails to properly complete Section 1, it is the employer who is liable.

Employers should pay special attention to a recent decision of the Office of the Chief Administrative Hearing Officer (OCAHO) in the Justice Department entitled U.S.A. v. Ketchikan Drywall Services, Inc., 10 OCAHO no. 1139 (August 11, 2011).

In this case, Immigration and Customs Enforcement (ICE) assessed fines of over $286,000 against Ketchikan (KDS), including fines of $69,000 because the company “failed to ensure that 65 employees properly completed section 1 of the form.” Although the company maintained that these errors were either “technical or procedural” and that they should not be fined, for the most part, OCAHO disagreed.

For the benefit of our readers, we examine these Section 1 errors:

• No Box Checked and No Alien Number EnteredSection 1 instructs each employee to check 1 of 4 boxes, thereby attesting under penalty of perjury, that he is: (1) a citizen of the United States; (2) a non-citizen national of the United States; (3) a lawful permanent resident; or (4) an alien authorized to work until a particular date.If an employee checks box #3, he must enter his alien number. If he checks box #4, he must enter either his alien number or his admission number and the date that his employment authorization will expire.Some of the KDS employees signed Section 1 without checking any of the boxes. Others checked box #3, but failed to enter an alien number. In some cases, KDS copied the employee’s alien registration card and supplied it to the goverment.KDS argued that where the employee produced a copy of the card, there is no substantive violation, and where the employee simply signed Section 1 without more, this complied with the law since the statute does not require the employee to reveal his immigration status to the employer, only that he is authorized to work in the U.S.OCAHO disagree with both of these arguments finding that the employees’ failure to properly complete Section 1 was a substantive violation of the law even where a copy of the relevant document was submitted.
• No Box Checked, but Alien Number EnteredWhere the employee failed to check any of the boxes, but entered an alien number next to the box entitled “a lawful permanent resident”, and signed Section 1, OCAHO agreed with the employer that the violation was not “substantial” and refused to fine the employer.
• Box Checked, but No Alien Number Entered
• Here, one such employee produced no documents while the other showed a social security card and a drivers license. KDS argued that in reference to the employee who produced documents, there was no violation of the law.OCAHO disagreed finding that “when the employee fails to write in an Alien number on the Form I-9, the government is unable to verify the employee’s status in the United States, defeating the purpose of the Form I-9.”
• Multiple Boxes CheckedWhere employees checked the box indicating that they were U.S. citizens and also checked the box that they were lawful permanent residents, OCAHO held that, because these categories are mutually exclusive, these violations were substantive.However, another employee checked the box that he was a lawful permanent resident and wrote an alien number, and also checked the box that he was an alien authorized to work in the U.S. Since OCAHO found that these categories are not mutually exclusive, they found no substantive violation of the law.
• New I-9 for Rehired Employee

Where an employee is rehired within 3 years of the execution of his original I-9, the employer may choose to either (1) update the original I-9 using Section 3 which does not require the signature of the rehired employee, or (2) complete a new I-9 in which case the employee must complete and sign Section 1 of the form.

In this case, KDS choose to complete a new I-9, but did not have the rehired employee complete or sign Section 1 of the form. OCAHO ruled that this was a substantive violation of the law.

We hope that this review of the Ketchikan decision assists employers in understanding that penalties will be imposed unless Section 1 of the I-9 form is properly completed and signed. In our next newsletter, we will examine the alleged violations of Section 2 of the I-9 form in Ketchikan.

5. Success Story: Getting a Green Card through Registry for a 65-Year Resident

A man who we will call “Mr. Gonzalez” received an unwelcome surprise on his 65th birthday. When he applied to begin receiving Social Security benefits, he discovered that he was not a US citizen. As the child of two US citizen parents, this came as a great surprise to him. Though born abroad, his parents brought him here as a young child and told him he was a US citizen. He had attended school in the US and had been a productive tax-paying member of society throughout his adult life.

After receiving this nasty surprise, Mr. Gonzalez scheduled a legal consultation with our office. He erroneously thought that even though he was not a US citizen that there might be some way he could become a citizen since both of his parents were US citizens. Usually children of US citizens born abroad have rights to derivative citizenship. However, to derive citizenship, Mr. Gonzalez would have to show paperwork not in his possession. We requested his mother’s government file through the Freedom of Information Act, but it did not give us enough information to prove that Mr. Gonzalez had derived US citizenship.

If we could not prove that Mr. Gonzalez was a US citizen, maybe there was an alternate route. Maybe we could obtain a green card for him though a section of law that grants legal permanent residency to eligible applicants who have lived in the US since January 1, 1972. In order to qualify for this section, known as registry, we had to prove that Mr. Gonzalez had resided in the US since the beginning of 1972. In fact, he had never left the country since his first entry as a child, long before that date. We compiled his school records, marriage certificate, the birth certificates of his five children born in the US, his Social Security and tax records, and a statement by Mr. Gonzalez giving an account of his life in the US. We also demonstrated that he was a person of good moral character.

Since Mr. Gonzalez was a model “citizen,” we had no problem showing his eligibility to the immigration officers. He passed his interview with flying colors and was issued his green card. It was a long time coming. Mr. Gonzalez breathed a sigh of relief. He will be eligible to apply for naturalization in 5 years.

His first Social Security check will be mailed to him soon.

Read more of our Immigration Success Stories.

6. Immigration Trivia Quiz:

Quiz Removed.

7. State Department Visa Bulletin: December 2011

The December 2011 Visa Bulletin was issued by the Department of State on November 8.

Each of the worldwide family-based categories moved forward between 2 and 5 weeks. There was even less movement in the family-based categories for the two most backlogged countries, the Philippines and Mexico with the exception of the 2A category for Mexico which advanced 9 weeks.

FAMILY CATEGORIES

Categories	Worldwide	China (PRC)	Mexico	Philippines
1st	9-01-04	9-01-04	4-08-93	3-01-97
2A	3-22-09	3-22-09	02-08-09	3-22-09
2B	8-15-03	8-15-03	11-22-92	8-15-01
3rd	10-08-01	10-08-01	12-15-92	7-08-92
4th	7-15-00	7-15-00	5-01-96	9-08-88

EMPLOYMENT CATEGORIES

The welcome news in the employment-based categories was EB-2 for persons born in China and India. This category advanced 4 1/2 months. Otherwise, worldwide EB-3 moved foreword 3 weeks for professionals and skilled workers and 6 weeks for unskilled workers.

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	Current	03-15-08	03-15-08	Current	Current
3rd	01-15-06	09-08-04	08-01-02	01-15-06	01-15-06
Unskilled	01-01-06	04-22-03	7-22-02	01-01-06	01-01-06
4th	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th	Current	Current	Current	Current	Current

8. 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…

9. Ask Mr. Shusterman: How Can I Qualify for an E-2 Visa?

“For all its current economic woes, America remains a beacon of entrepreneurialism. Between 1996 and 2004 it created an average of 550,000 small businesses every month. Many of those small businesses rapidly grew big. The world’s largest company, Wal-Mart, was founded in 1962 and did not go public until a decade later; multi-million dollar companies such as Google and Facebook barely existed a decade ago.”

-The Economist, March 12, 2009

The E- 2 visa is a great option for those with an entrepreneurial spirit who would like to come to the United States in order to start a business. It is only available for those from nations with which the U.S. maintains a treaty of commerce and navigation. The applicant should be coming to the U.S. to develop and direct the operations of a business in which they have invested or are currently investing.

In order to obtain an E-2 visa, the applicant must be coming to the United States solely to develop and direct the enterprise. There are three primary concerns:

First, the applicant must have the necessary funds in his control, should have received the funds by legitimate means, and the funds should be irrevocably committed to the business enterprise. Mere intent to invest, or just having a bank account with such funds available is not good enough. In order to prove irrevocability, the applicant must provide documentary evidence such as proof of company set-up (corporate incorporation documentation), proof of leasing premises, asset purchase agreements, equipment purchase agreement, etc.

Second, the E-2 visa applicant must make a “substantial” investment in the planned business. There is no set dollar amount that will be considered “substantial”. Each consulate may have an informal minimum investment threshold. They look at the amount of the qualifying funds invested; and the cost of purchasing an established business or, if a newly created business, the cost of establishing such a business.

Potential applicants should keep in mind that an investment less than $100,000 will be subject to a higher level of scrutiny. This is not to say that $100,000 is the “magic” amount that will get the visa approved. The purpose of the substantiality requirement is to ensure that that business is not speculative, and that it will be viable.

Finally, the applicant should ensure that the funds invested in the business enterprise are “at risk”. That is, if for any reason the enterprise fails, the investor will lose his money, not some third party investors. For this purpose, any investment which is secured against the assets of the enterprise will not count towards the amount invested. The investor can get a loan by securing it against his or her own personal assets, but not against the assets of the business.

Another important factor that is considered by the authorities is the business is “marginal”. A marginal business is an enterprise that does not have a present or future capacity to generate more than enough income to provide a living for the treaty investor and his or her family. The applicant does not have to prove that the business will be profitable in the short-term, but they must prove adequate financing to tide over short-term hiccups and sustain the business over a period of time. The business should project a significant economic contribution for the future (i.e create jobs for Americans). To this end, it is advisable to provide a 5-year business plan along with the petition and application package.

Unlike the H and L visas, foreign entrepreneurs can directly seek an E-2 visa from the U.S. Embassy or Consulate in their country without any prior approval from the USCIS. If the foreign national is already in the U.S. in another temporary visa status, he may seek a change of status to E-2. An initial E-2 visa is valid for 2 years, and can be extended for an indefinite period as long as the investor continues to manage the business. The E-2 visaholder’s dependent spouse is entitled to obtain employment authorization.

Do you have a business idea you want to try in the U.S.? Are you from one of our E-2 treaty nations? If so, contact an immigration attorney experienced in obtaining E-2 visas to see if you qualify.

10. Winner of our November 2011 Immigration Trivia Quiz!

Quiz Removed.

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California (1988-Present)
Former Immigration and 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, CA 90017, Phone: (213) 623-4592 x0, Fax: (213) 623-3720

“I do not believe that the people of the United States are going to take people who have been here a quarter century, who have children and grandchildren, who are members of the community, who may have done something 25 years ago, separate them from their families and expel them. I’m prepared to take the heat for saying, let’s be humane in enforcing the law without giving them citizenship but by finding a way to create legality so that they are not separated from their families.”

– Newt Gingrich: Republican Candidate for President

November 22. 2011

Newsletter US Immigration Update December 2011 – Quick Links

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November 29, 2011