Volume Eleven, Number One

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 February 2006

TABLE OF CONTENTS:

• 1. Legislation: The Future of Employment-Based Immigration
• 2. Immigration Government Processing Times
• 3. PERM Denials: When “No” Doesn’t Necessarily Mean “No”
• 4. Success Stories: Why Wait When You Can Litigate?
• 5. Immigration Trivia Quiz: Happy Valentine’s Day!
• 6. Labor Department: Contact Information and Update
• 7. My First Visit to India: A Whole New World
• 8. Schedule of Upcoming Immigration Law Seminars
• 9. Chat Schedule, Transcripts, Audios & Videos
• 10. Winner of the December 2005 Immigration Trivia Quiz

NEWS FLASHES:

• Alternate Definition of “American firm or corporation” under section 316(b), INA, and standard of proof applicable in most administrative immigration proceedings – See new CIS memorandum at

  http://uscis.gov/graphics/lawsregs/handbook/AdoptedDecAFM011106.pdf

• CIS Director Takes Office – On January 4, Dr. Emilio Gonzalez, an immigrant, was sworn-in as the new CIS Director. Read the CIS Press Release at

  http://uscis.gov/graphics/publicaffairs/newsrels/Gonzalez_010506PR.pdf (link no longer operational)

  and read his biography at

  http://uscis.gov/graphics/gonzalez_bio.htm (link no longer operational)

• CBP Director to be Nominated: On January 30, 2006, the Department of Homeland Security (DHS) announced that President Bush would nominate Ralph Basham, the Director of the Secret Service as the new Director of the U.S. Customs and Border Protection (CBP). We link to the DHS press release at

  http://www.dhs.gov/dhspublic/display?content=5378 (Link no longer operational)

• E-3 Visas – On January 6, the CIS issued specialty worker guidance for U.S. employers who wish to employ professional workers from Australia.

• H-1B Exemption Cap Reached for Fiscal Year 2006 – On January 17, the H-1B Exemption Cap of 20,000 for persons holding advanced degrees from U.S. universities was reached.
• Naturalization – On January 24, the CIS issued a public notice announcing that unless specifically requested by a family, the agency will no longer group naturalization applications submitted by members of a family together for processing. We link to the public notice at

  http://uscis.gov/graphics/publicaffairs/statements/GroupMng_012406PN.pdf (link no longer operational)

• SuperLawyers – A couple of years ago, I was honored to be named a SuperLawyer by my attorney colleagues in Southern California. In fact, I was the only immigration lawyer to be selected as one of the Top 100 SuperLawyers in Los Angeles. This year, three attorneys from our law firm were selected as SuperLawyers, more than any other immigration law firm in Southern California. Besides me, the other two SuperLawyers were both of our firm’s “Of Counsels”, Howard Hom and Curtis Pierce.
• Visa Bulletin – The State Department’s February 2006 Visa Bulletin showed unexpected advances in employment-based preference dates for persons born in China and India. The State Department expects such advances to continue, and for the worldwide EB-2 category to remain current throughout the remainder of the fiscal year. To view the February 2006 Visa Bulletin, see our “Visa Bulletin” page at

  http://www.shusterman.com/statedepartmentvisabulletin/

1. Legislation: The Future of Employment-BasedImmigration

During the next few weeks, Congress is scheduled to decide the future of employment-based immigration to the United States.

Comprehensive immigration reform proposals by Senators McCain and Kennedy, Cornyn and Kyl, Hagel and Specter will be considered by the Senate in February.

Each proposal contains a combination of the following elements: (1) a guest worker program; (2) stricter immigration enforcement; and (3) an expansion of the employment-based immigration system.

The guest worker program is, by far, the most controversial part of the package. To President Bush and its Congressional proponents, a guest worker proposal is simply a way of creating a procedure to allow U.S. companies to continue to employ millions of foreign-born workers to fill jobs which American choose not to perform.

Opponents of a guest worker program maintain that if employers simply raise their wages, American workers will do any job. Call me a “doubter”. Our unemployment rate has been hovering around 5% for over a year. Yet, the Wall Street Journal recently ran an article about lettuce growers who, unable to harvest their crops, raised their rates to over $10 per hour. A few Americans applied, but none lasted more than a few hours. How many of the unemployed are willing and able to perform stoop labor in rural valleys?

The opponents of a guest worker program refuse to vote for any program which looks like an “amnesty”. Chairman James Sensenbrenner (R-WI) of the Subcommittee on Immigration in the House of Representatives puts it simply: “A guest-worker program that applies to illegal aliens already here is an amnesty.” Representative Sensenbrenner and over one hundred Republican Congressman in the House of Representatives are against any “amnesty”. Since Chairman Sensenbrenner will be the chief House negotiator in any Senate-House Conference Committee on an immigration reform bill, this spells trouble for any guest worker program.

If the guest worker program does not include the 10 million plus illegal workers who are presently in the U.S., there is not the slightest possibility of either regularizing their immigration status or of deporting them. That is simply a fact, and building a huge fence on Mexico’s border (no one ever suggests doing so along the Canadian border) with the U.S. will simply discourage illegal workers in the U.S. from returning home to visit their families. Also, it does nothing to stem the influx of illegal workers who enter the U.S. with visas and then overstay. Those in Congress who think that by criminalizing these people the problem is solved are kidding themselves and their constituents.

The real solution is to look reality square in the face, and fashion a solution which will penalize illegal workers, but, at the same time, allow them to participate in a guest worker program that will eventually result in them becoming permanent residents of the U.S. Unless there is a light at the end of the tunnel for them, what is the incentive for them to come out of the shadows and register for the program? The McCain-Kennedy bill contains such a program.

At least one ex-INS prosecutor (The one who writes this newsletter) knows that the government cannot solve the illegal alien problem by wishing it away, or by an enforcement-only approach. Ten years after President Clinton enacted a “get tough” at the border policy, the number of illegal workers in the U.S. has more than doubled. Congress must realize that, in the post-9/11, world, the United States simply cannot afford to have 10 million persons in the U.S. who are unknown to the government. Every citizen should write to his Member of Congress and tell them that he/she wants these people identified, fingerprinted, registered with the government, paying taxes and learning English.

Whether or not the Congress enacts a guest worker program, the United States has another immigration problem that needs to be solved, and solved now. Our country is educating less scientists, engineers, doctors and nurses than we did when I graduated from law school in 1973. In the meantime, countries in Asia are graduating far more of these professional workers than does the U.S. Fortunately, many of these professional workers have been supplementing the U.S. workforce for the past 30 years. Unfortunately, during the past year, huge backlogs in our immigration system have developed, and many of the best and brightest of these professionals are choosing to stay at home. This does not bode well for our security and our industries.

Our country is losing its manufacturing base. For example, the U.S. automobile industry is firing tens of thousands of U.S. workers and G.M. and Ford are edging ever-closer to bankruptcy. Why? Because the American public is choosing to buy automobiles produced by Japanese and German companies.

Fortunately, thanks to the immigration of tens of thousands of Indian and Chinese engineers to the U.S., the top software, chip makers and biotech companies are still located in the U.S. But with our outdated immigration laws making it increasingly difficult for U.S. employers to hire talented foreign- born scientists and engineers, how long can America maintain its dominance in these industries? U.S. employers can vote with their feet the same as U.S. consumers. Make it impossible to bring a sufficient number of foreign-born engineers to the U.S., and Microsoft and Intel and other top U.S. companies will simply locate their new plants and hire their new engineers not in the U.S., but in India and China.

Most of the bills pending before Congress would increase employment-based immigration to 290,000 annually. This would help insure that our country maintains its number one position in science and technology.

Check our homepage on a daily basis for updates as the Senate and then the House of Representatives debate comprehensive immigration reform.

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. PERM Denials: When “No” Doesn’t Necessarily Mean “No”

When the Department of Labor introduced the new PERM system last year, everyone expected growing pains. Nobody anticipated, however, such a troubled, idiosyncratic system. While our office’s success rate has thus far been very high, we’ve been faced with a number of denials typical to many Practitioners.

Initially, these denials fell into two categories: Those based on Attorney, Agent or Employer error, and those arising from DOL computer programming glitches-denials automatically issued as a result of certain response combinations on Form ETA-9089.

Specifically, the DOL programming denials occurred when:

• “The alien’s qualifications listed on the application do not meet (the minimum requirements stated on the application.” In these cases, the answer to question H.6 (Is experience in the job offered required for the job?) was “yes,” and the answer to question H.10 (Is experience in an alternate occupation acceptable?) was “yes.” Subsequently, the response to question J.18 (Does the alien have the experience in the job offered required in H6?) was “no”, with Question J.20 (Does the alien have the experience in the alternate occupation in H.10?) as “yes”. The system thus concluded that the person was not qualified for the position and automatically issued a denial.
• “More than one additional recruitment step was conducted less than 30 days from the date of the application.” For these types of applications, one type of recruitment was conducted within the 30-day window which is allowed under the regulations, but the system was unable to recognize this scenario and therefore issued a denial.
• Failure to post a notice for household domestic workers. Denials were issued in spite of the regulation stating that no posting is required for households where there are no other US workers.

The Department of Labor has recognized these programming errors and made every effort to fix them. (However, we very recently received a denial stating that the individual was not qualified for a position requiring a Bachelor’s degree plus one year of experience when, in fact, the applicant held a Master’s degree and two years of relevant experience.)

A sampling of the types of denials deemed to be Attorney, Agent and Employer error are listed below:

• Use of a P.O. Box as a company address. A company must use its full address.
• Attorneys registering on behalf of Employers instead of Employers actually doing these themselves. This implies the DOL can specifically track whether the source of registration was an Agent or Attorney versus that of the Employer.
• Inclusion of recruitment that took place outside the 180-day/30-day windows. Only recruitment within that time frame should be included.
• Checking “no” where Employers state they have not offered the job to the foreign national listed as the beneficiary.

Other recent examples of denials include:

• The system’s inability to read characters when a “yes” or “no” has clearly been checked.
• An Employer’s “failure to respond” to the four questions issued by the DOL to verify the integrity of the case, when it is subsequently revealed that such questions had never actually been sent.
• The accusation that the “wrong” newspaper was used for recruitment because the alien did not live in the area of intended employment, even when the newspaper in question was the largest such publication in circulation in that area. This, again, is a DOL error.

The system is clearly not perfect, but then again, each application needs to be prepared with the utmost care.

So in the event of a denial, what do you do? Our suggestion is to search for the underlying reason for the denial. If it is clearly a computer error, we recommend immediate refiling, as requests for review can take months and months. This approach avoids keeping clients on hold, and waiting for reviews of denials based on trivial matters. In the case of a denial, be sure as well that your advertising has not gone stale, which would lead to additional costs and extended waiting periods. We therefore strongly suggest filing immediately after the mandatory 30-day lag time following a client’s initial 30- to 60-day recruitment period.

4. Success Story: Why Wait When You Can Litigate?

The process of obtaining permanent residence and naturalization are often fraught with bureaucratic red tape and seemingly endless waiting before cases are adjudicated. Fortunately, legal mechanisms are in place that guarantee timely processing of citizenship applications. For example, if the Immigration Service fails to rule on a citizenship case within 120 days from the date of an applicant’s interview, the applicant has the right to have the case adjudicated by a judge in Federal District Court.

Our client, Mr. K, a green card holder and citizen of Iran, found himself in this very situation. In early July 2004, Mr. K had his citizenship interview, where he was informed that after undergoing a routine FBI background check, he would receive final decision on his case and be scheduled for his oath ceremony.

One hundred twenty days came and went without a response from the Immigration Service. Despite repeated inquiries, we were told that the background checks had not yet been completed. Frustrated with the wait, we filed a Petition for Hearing on Naturalization Application on behalf of our client with the Federal District Court.

The CIS immediately ruled on Mr. K’s citizenship application, but not the way we expected. The Service not only denied Mr. K’s application, they alleged he was deportable from the United States due to a prior criminal conviction, and placed him in removal proceedings.

Mr. K had been arrested back in 1999 and pled guilty to a felony charge. He received five years probation, with a fine and community service. Though not an aggravated felony, this conviction formed the basis for the Immigration Service’s decision that he was ineligible for citizenship or even for permanent residence in the United States.

When we appeared before the Immigration Judge, we pointed out that the Immigration Service had demonstrated a serious misunderstanding of the law. Mr. K obtained permanent residency in 1986, a full 13 years prior to his 1999 conviction. The law states, however, that a permanent resident of five years or more in the U.S. can not have his residency revoked due to one conviction of a crime of moral turpitude, provided the crime does not constitute an aggravated felony.

The government attorney agreed, and the Immigration Judge ruled in favor of Mr. K.

As for our client’s citizenship application, case law in the 9th Circuit provides that once a complaint is filed in Federal Court, the CIS loses jurisdiction over the application. We made the U.S. Attorney’s Office aware of this. They then agreed to stipulate that his case be remanded to the CIS and decided within strict time limits.

Bottom line: Mr. K was sworn in as a U.S. citizen in January 2006.

On a side note, Mr. S, a citizen of India, applied for naturalization and received his interview. After waiting patiently for nearly two years to be sworn-in, Mr. S hired our law firm to file a Petition for Hearing on Naturalization application in Federal District Court. The litigation prompted the Immigration Service and the FBI to complete processing of his application. Both Mr. S and Mr. K were sworn in as citizens on the very same day!

The moral of the story: Why wait when you can litigate?

5. Immigration Trivia Quiz: Happy Valentine’s Day

Quiz Removed

6. Labor Department: Contact Information and Update

Attorneys needing to contact the Labor Department’s National Processing Centers in Chicago and Atlanta, or the Backlog Elimination Centers in Philadelphia and Dallas should use the following e-mail addresses and telephone numbers:

For technical PERM questions, use plc.help@dol.gov

National Processing Centers

Chicago
PLC.Chicago@dol.gov
312-886-8700

Atlanta
PLC.Atlanta@dol.gov
404-893-0101

Backlog Elimination Centers

Philadelphia
info@phi.dflc.us
484-270-1500

Dallas
info@dal.dflc.us
214-237-9111

For proof of pending Application for Labor Certification on H-1B extensions beyond 6 years only:

• Philadelphia – h1b7yr@phi.dflc.us
• Dallas – h1b7yr@dal.dflc.us

Update from the Backlog Elimination Centers:

In January, the remaining DOL Regional Offices were closed and the pending applications for Labor Certification were sent to Backlog Elimination Centers in Philadelphia and Dallas.

DOL expects to complete any required data entry on the new cases from the regional offices within a few weeks.

The target for full data entry and to have 45 day letters sent out on all cases is still June 2006. However, DOL hopes to finish even earlier.

For more information, see our “Department of Labor Immigration Resources” page at

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

7. My First Visit to India: A Whole New World

After practicing immigration law for over twenty-five years and helping thousands of Indian clients obtain visas and green cards, I decided that it was time to visit India.

My wife and I booked flights and made hotel reservations for November, one of the coolest months. I read “Freedom at Midnight,” a book about the departure of the British from India and, on September 10th, my wife and I rented and watched the movie “Gandhi,” which we had seen and enjoyed several years before. The next morning the world changed in an ugly and violent way, and we cancelled our vacation to India.

That was in 2001.

A few years later, my son married a lovely and intelligent young woman whose parents had immigrated to the U.S. from India many years before. In late 2005, my wife and I decided to join my daughter-in-law’s family for our long-delayed vacation to India. In addition, we planned to take a week to ourselves to take a luxury train ride through Rajasthan.

We flew to San Francisco where we received visitor’s visas valid for ten years. We read CDC reports, got multiple injections against a variety of diseases and purchased a plethora of pills just in case.

MIDNIGHT IN MUMBAI

Our flight lasted all through Christmas Day. I watched an Indian-made love story. Little did I know that the male lead in the film, Shah Rukh Khan, was the Tom Cruise of India. I saw his face on numerous billboards and newspaper articles throughout our stay.

We landed in Mumbai (formerly Bombay) where a driver met us at the airport and navigated through traffic that made the 405 freeway in Los Angeles seem like a drag strip in comparison.

Car, buses, motorcycles, bicycles and even animals and intrepid pedestrians jostled for position at every light. Unless jet lag was causing me to hallucinate, I could swear that the vehicles were “talking” to each other. Beep, beep, I’m passing you on the right. Beep, beep, I’m squeezing in with less than six inches to spare between you and the bus on your left. Where were the lanes? Where were the police? In Mumbai, I was told, all you needed to drive were “good brakes, a good horn and good luck.”

On our way to the hotel, we passed families living in hovels just inches from the highway. We also passed thousands upon thousands of men asleep on the sidewalks. I later read that the homeless population of Mumbai numbers over 2 million, and that the total population is over 26 million and climbing rapidly. Mumbai is well on its way to becoming the largest city in the world. Los Angeles is tiny in comparison.

Finally (and fortunately) we arrived at our hotel located near the “Gate of India,” which was built early in the 20th Century for a visit by the Prince of Wales, and which was where the British left India when the country became independent in 1947.

At our hotel we were met by a huge man wearing a fabulous red outfit, a black turban and neatly-cropped whiskers. In my half-slumbering state, I imagined that I was in the presence of royalty. In fact, almost every upscale hotel in Mumbai has a similar looking man to control traffic in front of the hotel.

My wife and I registered, took the elevator to a high floor, opened the door to our room, headed for the bed and sank into a well-deserved sleep…

See a photograph of me and my fellow travelers at the Taj Mahal (near the end of my Indian adventure) at

http://www.shusterman.com/images/tajmahal.gif

*** TO BE CONTINUED ***

8. Schedule of Upcoming Immigration Law Seminars

1. 1. February 14

Los Angeles, California
10:15 – 11:30am
White Memorial Medical Center
Southern California Association of Health Care Recruiters
Topic: “Update on Rules for Immigrating Foreign-Born RNs and PTs”

1. 1. April 8

Philadelphia, Pennsylvania
7:00 – 8:00am
Pennsylvania Convention Center
Location: 113 C American College of Physicians
Topic: “Visa and Immigration Issues for IMGs”

1. 1. May 10 & 17

Nationwide Teleconference
10:00am – Noon, CDT
Texas Hospital Association
Topic: Immigration and Health Care Staffing

1. 1. June 7

Orange County, California
10:00 – 11:00am
Pacific Coast Association of Health Care Recruiters
Topic: “Immigration of Nurses and Allied Health Care Professionals”

1. 1. June 21

San Antonio, Texas
6:30 – 8:30pm
Henry B. Gonzalez Convention Center
American Immigration Lawyers Association
Topic: “Doctors and Healthcare Workers”

9. Chat Schedule, Transcripts, Audios & Videos

Deleted

10. Winner of our December 2005 Immigration Trivia Quiz

Quiz Removed

Below is the message that we received from our winner:
Dear Peter,

The individuals are Chewbacca and Peter Mayhew from left to right. Chewbacca is the character played by Peter Mayhew in the Star Wars series (Episodes III, IV, V, and VI). The fictional character Chewbacca is a Wookie and from the planet of Kashyyk. In the story, Chewbacca was a very loyal citizen of his planet. He was taken captive by the Empire governed by the evil emperor Papaltine otherwise known as Darth Sideous. Han Solo freed him and Chewbacca swore his loyalty to Han. They became a well known duo, later helping Luke Skywalker in his quest to rid the universe of the Empire’s dominion.

Peter Mayhew, the tall actor who plays Chewbacca, was born on May 19, 1944 in Barnes, London, England. He began acting after he was cast in a role playing a minotaur after auditioning for the role when it required someone with “large feet”. George Lucas searched for a tall person to play Chewbacca, and Peter fit the role. Peter now lives in Granbury, Texas and owns his own business. He took the oath to become a naturalized citizen of the Untied States on October 17, 2005 at a ceremony in Arlington, Texas.

I am an immigrant from Buenos Aires, Argentina. I currently live in Chino, California. I recently graduated from Cal Poly Pomona with a Bachelors in Graphic Design and am working as a freelance Graphic Designer. I love mountaineering, rock climbing, backpacking, and practically anything that deals with the outdoors. I have been a Shusterman newsletter subscriber for about two years and use the website to get information on the Dream Act and any other immigration updates as I am not a naturalized citizen. I am a decent Star Wars fan and had most of the knowledge about the Trivia Quiz already in my own noggin. I also went to the Star Wars website just to get a bit more information on Peter.

Leo
“A decent Star Wars fan”? – Leo, you should be on Jeopardy!

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

“It never ceases to surprise me that, in a world of 6.5 billion people, 98 percent are ‘stayers,’ living in the country of their birth; that the remaining two percent, international migrants of a bewildering variety of origins, migration motives, and modes of adaptation to their new environments, are at heart ambitious, determined, and intrepid souls, which is what makes migration the ‘selective’ process that it is; and that, all things considered, so little focused attention is paid to either of those two facts.”

• Dr. Ruben G. Rumbaut: Professor of Sociology, University of California, Irvine; Co-author, Immigrant America: A Portrait and Legacies: The Story of the Immigrant Second Generation; and Co-Director, Center for Research on Immigration, Population, and Public Policy, UCI.

February 1, 2006

Newsletter US Immigration Update February 2006 – 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.