Volume Three, Number Five

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 May 1998

This month’s issue contains the following topics:

Table of Contents

• 1. May 1998 State Department Visa Bulletin
• 2. Immigration Government Processing Times
• 3. Legislation: Will Congress Save or Scuttle the H-1B Program?
• 4. Health Care Workers: America’s New Indentured Servants
• 5. Physicians: AMA’s International Medical Graduates Section
• 6. Due Process?: The Sad Saga of Gerard Curran
• 7. HR Directors: Good Faith Exceptions to I-9 Requirements
• 8. Visa Lottery: Information About DV-99 and DV-2000
• 9. Affidavit of Support: 1998 HHS Poverty Income Guidelines
• 10. Immigration Trivia Quiz: Guess Who’s the Immigrant

NEWS FLASHES:

• Sierra Club members, by a vote of 60% to 40% voted not to support a measure to restrict immigration to the U.S. In the words of the club’s executive director, “The common-sense solution to overpopulation is birth control, not border patrols.”

1. May 1998 State Department Visa Bulletin

On April 9, 1998, we posted the May 1998 Visa Bulletin before the State Department posted the dates on their web site.

All of the Family categories moved forward between one and six weeks. Most of the Employment categories remain “current” (no backlogs). The unskilled workers category advances three weeks to April 1, 1991 while the religious workers category remains at August 1, 1997.

The mainland China categories advance as follows: the first preference moves forward one week to June 8, 1997; the second preference advances one week to May 1, 1996; while the third preference also moves forward one week to February 15, 1994.

The news was not much brighter for Indian nationals, for whom the second category moves forward one week to August 15, 1996 while the third category again shows no forward movement, remaining stuck at May 8, 1995.

Starting May 1, immigrant visas for winners of the DV-98 lottery will no longer be current for ANY REGION. If your number is current, be sure to file your application for permanent residence before the end of April. For May 1998, the following are the DV cut-off dates: Africa (30,720); Asia (at 11,110 except for Bangladesh at 6,450); Europe (17,800, except for Albania at 13,340 and Bulgaria at 16,680); North America (Bahamas)(3); Oceania (584); and South America, Central America and the Caribbean (1,304).

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	10-15-96	10-15-96	10-15-96	8-01-93	1-09-87
2A	1-01-94	1-01-94	1-01-94	2-15-93	1-01-94
2B	10-15-91	10-15-91	10-15-91	6-22-91	10-15-91
3rd	12-01-94	12-01-94	12-01-94	8-01-89	12-08-86
4th	1-08-88	1-08-88	1-22-86	3-22-87	5-01-78

EMPLOYMENT CATEGORIES

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	6-08-97	Current	Current	Current
2nd	Current	5-01-96	8-15-96	Current	Current
3rd	Current	2-15-94	5-08-95	Current	Current
Unskilled	4-01-91	4-01-91	4-01-91	4-01-91	4-01-91
4th	Current	Current	Current	Current	Current
Religious	8-01-97	8-01-97	8-01-97	8-01-97	8-01-97
5th	Current	Current	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. Legislation: Will Congress Save or Scuttle the H-1B Program?

Since February 25, 1998, we have become the website of choice for those interested in the evolving debate about increasing the H-1B cap. On that day, the Senate Judiciary Hearing held a hearing on how the reaching of the H-1B cap would impact the Information Technology section of the economy. That same day, we reported on the hearings and provided links to the testimony of the witnesses. Throughout March, April, and May, we provided regular coverage on H-1B usage and the progress of bills in the Senate and the House of Representatives to raise the cap.

When S. 1723 was introduced in the Senate in March, we immediately linked to a copy of the bill’s text, and supplemented the text with an article regarding the highlights of the bill. When the bill was passed by the Committee on April 2, we linked to the revised copy of the bill and updated our article on the bill’s highlights. We followed the same pattern with H.R. 3736 in the House, with its hearing on April 21 and its passage by the subcommittee on April 30.

Following our article on the reaching of the H-1B cap on May 8, many subscribers wrote to us to express their appreciation for our work. We pledge to continue with our timely and extensive coverage of this important issue.

Rather than reiterating the events of the past two months, please see

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

Regarding the reaching of the cap, please see

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

(Link no longer operational)

After the cap was reached, the INS, on May 11, issued regulations for the guidance of would-be H-1B applicants. See

http://www.shusterman.com/h1brule.html

(Link no longer operational)

THE QUESTION ON EVERYONE’S MINDS IS “WHERE DO WE GO FROM HERE?”

The reaching of the cap means that no more H-1B petitions will be approved by the INS with start dates before October 1, 1998 unless a new law is enacted. Remember, if you are presently in H-1B status and are merely seeking an extension of stay or a change of employers, the cap does not apply to you. If what you want is the approval of an H-1B petition or a change of status to H-1B, this is the time to e-mail your Member of Congress. (See

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

and scroll down to “Congress” and click on “Contacting the Congress”) At the very least, call the U.S. Capitol Switchboard at (202) 224-3121 to express your support for S. 1723.

The problem is that the Senate and House bills (and the Administration’s approach) are all different:

(A) SENATE: S. 1723 is the favorite bill of most H-1B immigrants and of Yours Truly: It would be valid for five years; provide millions of dollars for college scholarships for Americans; crack down big time on employers who violate the law; provide for H-1B extensions beyond six years for workers whose hair is turning grey waiting for their labor certifications to be approved and/or for their priority dates to become current. (The only obvious flaw in S. 1723 is that it limits the number of health care professionals to 10,000 per year. It does nothing to limit the number of fashion models, but we digress.) Best of all, S. 1723 is the ONLY bill which would effectively eliminate the idiotic per country quotas that penalize you for the sin of being born in a populous country.

(B) HOUSE: H.R. 3736 is the revenge of Representative Lamar Smith, the Darth Vader of Immigration in the House of Representatives. It’s valid for three years instead of five; does not provide for scholarships for needy Americans; limits health care workers to 7,500 per year; and does not even address the twin questions of H- 1B extensions beyond six years and country quotas.

Instead, the bill proposes to change the entire character of the H-1B category. Only employers who can prove that they have tried to recruit American workers will be eligible to petition for H-1B workers. A much needed requirement? The Information Technology Association of America (ITAA), probably the only organization that can get the owners of Microsoft, Netscape, Intel and Sun Microsystems into one room without blood being spilled, estimates that there are currently almost 350,000 unfilled jobs in the computer industry alone. H.R. 3736 and S. 1723, both of which would increase the H-1B cap by a puny 30,000 to 40,000 per year, would help, but obviously would not solve the problem.

H.R. 3736 would simply make things worse by creating another government bureaucracy to monitor whether U.S. employers have been adequately recruiting Americans. With unemployment down to a new 30-year low, we think that a better approach would be to use the money not to pay more unnecessary bureaucrats, but to fund college scholarships so that poor Americans can be trained to fill the other 300,000 jobs needed by the computer industry.

Smith did not permit amendments to bill in the subcommittee, but we expect a rash of amendments to H.R. 3736 when the bill hits the House Judiciary Committee later this week.

(3) ADMINISTRATION: The Labor Department and their friends on Capitol Hill have been hostile to the H-1B program since the beginning. There would not even be a numerical cap on H-1Bs were it not for a labor-sponsored amendment to the Immigration Act of 1990.

We expect amendments when the bill reaches the Senate floor this week to limit the duration of S. 1723 to three years. In the Senate Judiciary Committee, amendments to limit the maximum duration of an H-1B visa to three years came within two votes of passage. The Labor Department has literally fallen in love with the idea of requiring recruitment of U.S. workers as an integral part of any new H-1B program.

How and when will all of these ideas play out? The sponsors of the Senate bill are a bipartisan bunch now that Senators Graham (D-FL) and Lieberman (D-CT) have signed on as co-sponsors of S. 1723. The real problem is in the House of Representatives where everyone is up for re-election in six months. Few members of Congress are eager to screw-up the greatest economic expansion in 30 years by killing off the goose that laid the golden egg, the information technology industry. However, organized labor has taken an inordinate interest in the H-1B program (considering that H-1Bs are primarily computer and health professionals, not teamsters or auto workers), and few Democrats want to incur the wrath of the AFL-CIO.

Bottom line: This issue is too important to go away. The questions are whether the Senate and the House can agree on a reasonable bill, whether the Administration will sign off on the bill, and whether this can be done quickly (Is the resumption of the H-1B program by the end of May too much to ask for?). Otherwise, by the time the INS comes out with regulations to implement the bill, October 1, 1998 will have come and gone, the ground littered with the I-94s of programmers (and physicians and researchers and therapists) who could not, because of governmental incompetence, change their status to H-1B or achieve extensions past the six-year limit. If there is no bill, the real losers will be the American public who will be reduced to watching as yet another major American industry, and source of high-paying jobs, moves offshore.

We will, of course, continue our coverage of the bills on a daily basis. Any progress will be reported on

http://www.shusterman.com

4. Health Care Workers: America’s New Indentured Servants

Since September 30, 1996, the day that President Clinton signed the landmark 1996 immigration law, foreign-born health care workers (other than physicians) working in the U.S. have been barred from obtaining permanent residence because of a legal requirement of dubious value which was inserted into the law, without hearings, shortly prior to its enactment.

Section 343 of the law provides that foreign-born health care workers must have their credentials evaluated and pass an English examination before they are permitted to obtain a visa to work in the U.S. Who could argue with such a requirement?

Except, isn’t this what state licensing agencies already do? Why is it necessary to duplicate these testing and evaluation requirements on the federal level? Some cynics have speculated that the location of the private organization charged with implementing this requirement (at a charge of $300 to $400 per worker) in the state of the senator who sponsored the amendment may not have been wholly coincidental.

In any case, the origins of the amendment are unclear. The amendment took effect immediately upon the bill’s signing, leaving the INS to issue regulations to implement the new requirement. Were all health care workers impacted? This was the INS’s original interpretation. Later, the agency narrowed the list to seven occupations. Would health care workers who received their education and training in the U.S. be subject to the requirement? Here, the INS responded that the law provided no exceptions.

Has the law resulted in a shortage of health care workers? No, because the State Department and the INS routinely issue waivers to health care workers seeking to enter the U.S. on temporary visas. No such waiver exists for workers seeking permanent residence, and therein lies the rub.

No foreign-born health care worker may obtain permanent residence through their jobs until they are certified under section 343, and there will be no certifications forthcoming until the INS issues implementing regulations. This the agency has yet to do.

Workers with pending applications for green cards have been waiting almost 20 months for the INS to issue these regulations. Some, whose applications were pending when the law was enacted have been waiting even longer. Where are the regulations? The INS has remained silent as to the reason for the delay.

Meanwhile, back in the real world, therapists and other professionals affected by the lack of regulations are allowed to live and work in the U.S. The only problem is that they may not change jobs. It simply takes too long to repeat the green card process.

In the U.S., most history books inaccurately state that the first slaves to be brought to the British colonies arrived at Jamestown in 1619. The truth is that these people were not slaves, but indentured servants. Now, the 1996 immigration law coupled with governmental inaction has created a new class of indentured servants, people who are unable to leave their jobs.

We reported on this issue in the September and December 1997 issues of SHUSTERMAN’S IMMIGRATION UPDATE, see “Health Care Workers: Consumer Protection or Pork Barrel?” at

http://www.shusterman.com/newsletterusimmigrationseptember1997.html#5

and “Health Care Workers: Still No Regs…” at

http://www.shusterman.com/newsletterusimmigrationdecember1997.html#6

These articles seem to have had no beneficial effects other than to allow me to vent my spleen. The press has almost totally ignored the plight of the health care workers. No organized lobby seems to be pushing the INS to issue regulations or for Congress to delay the effective date or repeal section 343.

So why am I bringing up this issue again? Simply because one of my subscribers, a Ph.D. at prestigious Baylor College of Medicine in Houston, Texas wrote me a letter explaining the problem from the point of view of an Occupational Therapist.

I omitted his name for reasons of privacy, but in his article, “INS TOYING WITH LIVES AND CAREERS OF FOREIGN HEALTH-CARE PROFESSIONALS”, at

http://www.shusterman.com/hcw8.html

(Link no longer operational)

the message comes through loud and clear.

5. Physicians: AMA’s International Medical Graduates Section

Take a guess at the percentage of members of the American Medical Association (AMA) who are International Medical Graduates (IMGs)? The correct answer is an astonishing 23%! Mind you, not all IMGs are foreign-born, but all attended medical schools abroad.

Eight years ago, the AMA established an IMG Advisory Committee to address the concerns of IMG physicians. Last year, the AMA, in recognition of the increasing number of IMG physicians established an IMG Section which may introduce resolutions directly to the AMA House of Delegates.

The IMG Section is open to all AMA members who were educated in the U.S. and to the 40,000 members who were educated abroad.

The Chair of the Governing Council of the IMG Section is Busharat Ahmad, MD. He may be reached by phone at (734) 242-8020 or by fax at (743) 242-8099.

A link to the IMG Section’s web site can be found by clicking

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

and scrolling down under the “General Information” topic to “AMA’s IMG Section Website”.

Many of our subscribers may be interested in viewing the section of the IMG Section site entitled “Immigration Information for IMGs” which is located directly below the above-referenced link.

6. Due Process?: The Sad Saga of Gerard Curran

Twelve years ago, at the age of 24, Gerard Curran left his native England and sought his fortune in the U.S. By 1998, he owned his own house and business, was the proud father of two children born in the U.S., and had married Suzanne Stewart, a U.S. citizen.

Gerard and his first wife share custody of eight-year-old Jack and five-year-old Hannah. Fortunately, Gerard makes enough money in his small plumbing business to be able to pay his ex-wife the $800 per month in child support ordered by the court.

During his twelve years in the U.S., he paid his taxes, never violated the law, and was a good citizen…well, not quite a citizen. Gerard had originally entered the U.S. on a tourist visa, and when it expired, he stayed on and hoped for the best.

Suzanne filed a petition to legalize Gerard’s immigration status shortly after their marriage in 1997, but by that time, the INS had placed Gerard under deportation proceedings. Normally, the law permits a would-be immigrant who is married to a citizen to obtain permanent residence (a “green card”) without leaving the U.S. However, Gerard’s first attorney did not realize this, and even the Immigration Judge who heard Gerard’s case failed to advise him of this important right. Instead, the Judge ordered him to leave the U.S. by May 7, 1997.

Gerard’s new lawyers pointed out that a mistake has been made and asked the Judge to reconsider his decision. This the Judge refused to do, and Gerard appealed the Judge’s Order, a process which often takes a year or more. Despite the fact that the INS approved the petition filed by Suzanne recognizing that their marriage was bona fide, the INS refused to allow Gerard to remain in the U.S. during the pendency of his appeal.

Why? Because the 1996 immigration law prohibits Judges from granting “voluntary departure” for more than 120 days and removes all discretion from INS deportation officers to grant extensions. This occurs despite the meritorious nature of Gerard’s appeal and the hardship to his wife and children. It was meant to show the public that Congress was “getting tough” on illegals.

So, on May 6, 1998, Gerard Curran, boarded a plane for London as ordered by the INS, and left his wife and children in the U.S. His new lawyer in London hopes to obtain a green card for Gerard within a few months. In the meantime, Gerard ponders how he will support his children, and how the American Dream suddenly turned into a nightmare for him and his family.

If foreigners was no longer entitled to due process of law, what about Suzanne and the children, citizens all?

7. HR Directors: Good Faith Exceptions to I-9 Requirements

Section 411 of the 1996 immigration law limits the liability of employers for certain technical and procedural errors in completing I-9 forms. This section of law applies to employers who have made a good faith attempt to comply with a particular requirement, but nevertheless there are certain technical or procedural failures to meet the requirement.

On April 7, 1998, the INS issued a proposed regulation defining the term “technical or procedural failure to meet such requirement”.

An example of a technical or procedural failure to meet a requirement is when an employer fails to ensure that an employee provides her maiden name, address, or birth date in section one of form I-9.

For the complete text of the regulation, see

http://www.shusterman.com/employersimmigrationguide/

and scroll down to the section entitled “Employment Sanctions (I- 9’s) and Other Employment Issues” and click on “INS’s Proposed Rule To Limit Employer Liability For Good Faith Compliance With I-9 Requirements (4-7-98)”.

Written comments may be submitted, 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. 1819-96 on your correspondence. Comments must be submitted on or before June 8, 1998.

For further information, contact Angelo Sorrento, INS Senior Special Agent at (202) 514-2998.

8. Visa Lottery: Information About DV-99 and DV-2000

On May 6, 1998, the State Department issued a press release which contained, among other items, the results of the DV-99 Visa Lottery. To view this press release and to see how many “winners” there were from each country, see

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

and click on “Diversity Visa Lottery 1999 Results”.

On May 7, 1998, the State Department reported that all notifications for the DV-99 “winners” had been sent.

The notice also reported as follows:

The registration period for the Diversity Visa Lottery (DV-99) which ran from October 24, 1997 until November 24, 1997 is now over. Winners have been selected at random by computer from among all qualified entries received during the mail-in period.

Successful applicants were registered and notified by mail during April 1998. Only those selected were notified by the National Visa Center. If you do not receive written notification by June 1998, then you were not selected for the DV-99 lottery. Neither the National Visa Center nor U.S. embassies and consulates abroad will be able to provide a list of successful applicants.

The dates for the next diversity visa lottery (DV-2000) will be noon on October 1, 1998 until noon of October 31, 1998. You may wish to check this site again after August 1998 for instructions on applying for the DV-2000 visa lottery.

Facts & Tips For DV-99 Lottery “Winners”:

A. Although the NACARA law enacted in November 1997 reduced the number of persons who will receive permanent residence through the DV-99 Visa Lottery from 55,000 to 50,000, 90,000 persons received letters from the State Department in the past few weeks advising them that they were winners of the DV-99 Visa Lottery. Despite the receipt of such a letter, if you are not one of the first 50,000 persons who receives a green card under the lottery, your chances of redeeming your winning lottery ticket are nil.

B. If you are present in the U.S., you will not be able to apply for adjustment of status until October 1, 1998. Given the new fingerprint requirements and the necessity of a personal interview, you would be lucky to obtain a green card interview by the end of the year. On the other hand, if you choose to be interviewed at the U.S. Embassy in your home country, you should complete and mail in your forms to the National Visa Center in Portsmouth, New Hampshire immediately. With proper preparation and with a little luck, you could be back in the U.S. with your green card before the end of October.

C. Since DV-99 applications are not pre-screened to weed out unqualified applicants, and since the laws have changed radically since the last lottery, I doubt that there will be 50,000 qualified persons out of the 90,000 “winners” this year. Perhaps the State Department will notify additional “winners” mid-year. Remember, if you have ever been unlawfully present in the U.S., you are probably ineligible to adjust status to permanent resident in the U.S. Section 245(i), which would have permitted you to do so by paying a $1,000 fine, expired last January 14, 1998. And if your period of unlawful presence exceeds 180 consecutive days after April 1, 1997, or one year in the aggregate, don’t even think about applying for a DV-99 green card abroad. Your departure from the U.S. will trigger either the three or the ten- year exclusion bars.

9. Affidavit of Support: 1998 HHS Poverty Income Guidelines

The 1996 immigration law (IRAIIRA) requires that petitioners of all family-based immigrants, and certain employment-based immigrants, complete and sign an Affidavit of Support (form I-864) committing them to support the would-be immigrant and his or her immediate family members.

The law requires a sponsor to demonstrate an income level at or above 125 percent of the Federal poverty line, as published annually by the Department of Health and Human Services. To establish income level, sponsors must provide proof of current employment and copies of their Federal income tax returns for the 3 most recent tax years. The income of certain other household members may be added in computing income level if they sign a contract, Form I-864A, agreeing to make their income and/or assets available for the support of the sponsored immigrants. For active duty military personnel, the income requirement is 100 percent of the poverty level if they are sponsoring their spouse and/or child.

The 1998 Federal Poverty Income Guidelines, as determined by the Department of Health and Human Services (HHS) may be found at

http://www.shusterman.com/poverty-income-guidelines/

If the sponsor’s household income does not meet the income requirements, evidence of assets, such as cash in savings accounts, stocks, bonds, or property, may be considered in determining the sponsor’s ability to support the immigrant.

If the sponsor cannot meet the required income level based on income and assets, another person may serve as a joint sponsor. The joint sponsor must meet all sponsorship requirements, other than being the petitioner, and be willing to assume legal liability for the sponsored immigrant(s) with the petitioning relative.

INS and DOS will not use a set formula to determine whether a person qualifies as a sponsor. The greatest weight will be placed on earnings from current employment. In most instances, sponsors will be found eligible if they are employed and demonstrate the ability, along with household members who sign a contact on Form I-864A, to earn income at or above 125 percent of the poverty line for the number of persons who will be supported.

10. Immigration Trivia Quiz: Guess Who’s the Immigrant

He grew up in a rural part of Australia in a tiny house with no telephone, no electricity and no running water. He immigrated to the U.S. in 1964 and, over time, became the most widely syndicated editorial cartoonist in the world.

This Pulitzer Prize winner’s trademark is Punk the Penguin who appears in the corner of each of his drawings.

Who is he?

To view his take on the vicious 1996 anti-immigrant law, see

http://www.uexpress.com/ups/opinion/cartoon/po/archive/po970403.html

(Link no longer operational)

Carl Shusterman

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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.