Volume Five, Number Eleven

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 November 2000

Subscribers to SHUSTERMAN’S IMMIGRATION UPDATE: 36,873

TABLE OF CONTENTS:

1. December 2000 State Department Visa Bulletin
2. Immigration Government Processing Times
3. Legislative Round-Up: What’s Been Done, What’s To Come
4. Asylum: Newspaper Study Ranks Immigration Judges
5. Immigration Trivia Quiz: Seven Simple Questions
6. Supreme Court To Hear Cases Regarding Indefinite Detention
7. Citizenship: Child Citizenship Act of 2000 Becomes Law
8. Private Romero’s 50-Year Odyssey To Become A U.S. Citizen
9. Chat Schedule, Online Transcripts & LegalElite
10. Answers To October’s Immigration Trivia Quiz

NEWS FLASHES:

• CIPRIS – What is it? A small island republic in the Mediterranean? Close, but no cigar! Recently, I had the privilege of speaking at a NAFSA (Association of International Educators) convention, and learned more about CIPRIS (Coordinated Interagency Partnership Regulating International Students), an INS program to track the international students which NAFSA vigorously opposes.For our readers who are interested in learning more about CIPRIS, see

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

• Detention Operations Manual – On November 9, the INS posted this detailed manual online. It consists of the following: (1) Detainee Services (16 sections); (2) Health Services (4 sections); (3) Security and Control (16 sections) and (4) Terminology (1 section). To access the Detention Operations Manual, see

  http://www.shusterman.com/deportationdefense

• Downloadable INS Forms – A new regulation makes it easier to use INS forms downloaded from the Internet. It eliminates the color and printing requirements, and the need to obtain prior approval by the INS before using the forms.

• INS Commissioner Resigns – After seven years, INS Commissioner Doris Meissner resigned effective November 17, 2000. Read the INS News Release at

  http://uscis.gov/graphics/publicaffairs/newsrels/Meissner.htm (Link is no longer operational)

• National Visa Center (NVC) – The ever-expanding State Department web site has a section devoted to the National Visa Center in Portsmouth, New Hampshire complete with a FAQ and downloadable State Department forms.We link to the downloadable State Department forms at

  https://eforms.state.gov/

• Nurses vs. Fashion Models – Members of which of these two occupations have an easier time obtaining visas to work in the U.S.? See http://www.healthcarebusiness.com/archives/healthcarebusiness/current/looselips.html (Link is no longer operational.)

• Physicians – On November 6, 1999, the President signed a law to allow certain physicians to qualify for National Interest Waivers (NIWs) by working in medically underserved areas. On September 6, 2000, the INS issued an “interim final” rule which all but nullified the law. In November 2000, the American Immigration Lawyers Association (AILA) submitted a 28-page set of comments criticizing the regulation. I was privileged to be one of the AILA attorneys who drafted the comments. AILA’s comments are available online at

  http://www.shusterman.com/physiciansnationalinterestwaiverregulations-ailacomments.html

• Seizures of Cars and Other Conveyances – The INS has entered into a settlement after being sued regarding its policy of seizing cars, boats and planes allegedly used to smuggle persons illegally into the U.S. Read the INS Notice at

  http://uscis.gov/graphics/gete.htm (Link is no longer operational.)

• Temporary Protected Status (TPS) – TPS for certain nationals of Burundi, Sierra Leone and Sudan has been extended for one year until November 2, 2001. The re-registration period ends on December 11, 2000. For further information, see

  http://www.shusterman.com/asylumusimmigration/

  and scroll down to “Temporary Protected Status”.

1. December 2000 State Department Visa Bulletin

On November 14, we posted the December 2000 Visa Bulletin (partial list) before the State Department posted the dates on their web site.

For the Family categories, the movement of priority dates was slow, between two to four weeks, with worldwide first preference (unmarried sons and daughters of U.S. citizens) marking time. India 4th (brothers and sisters of U.S. citizens) advanced two weeks. Some FB numbers are currently unavailable. They will be posted on our web site soon.

On the Employment side of the ledger, the U.S. Consulates in Chennai and Mumbai have posted different EB-2 and EB-3 numbers for persons born in India. Chennai lists India EB-2 as June 1, 1999 and EB-3 as April 15, 1997 while Mumbai lists EB-2 as January 1, 2000 and EB-3 as March 8, 1997. At this time, we do not have the EB-2 and EB-3 numbers for persons born in the PRC, or the EB-3 numbers (which are supposed to regress) for persons born in the Philippines. We hope to post the complete December Visa Bulletin online within the next 24 hours. Because of the “recapture” provisions of the new H-1B law, we expect that within six to twelve months, the backlogs in the EB-2 and EB-3 categories will disappear. The priority date for unskilled workers advanced three months to May 1, 1996.

The December Visa Numbers (partial listing) 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/

Check the State Department’s official version to see complete information about the movement of family, employment and lottery numbers, at

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

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. Legislative Round-Up: What’s Been Done, What’s To Come

Congress adjourned a few days before the election, with the fate of the LIFA amendments (NACARA parity, restoration of §245(I) and the advancement of the registry date from 1972 to 1986) still unresolved. The Congress did not send CJS appropriations bill with the Repulican LIFE amendments,but without the Democrat’s LIFA amendments, to the President for a certain veto.

For an excellent comparison of the LIFA and the LIFE amendments, prepared by the American Immigration Lawyers Association, see

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

On November 14, Congress reconvened for a lameduck session. Like most lameduck sessions, this one promises to be interesting.

Since the Republicans retained their majority in both the Senate and the House of Representatives, there is little chance that the LIFA amendments will be enacted into law. However, with the election over, there may be more room for compromise between the LIFE and LIFA immigration amendments. If both sides engage in a little give and take, something called the LIFO amendments may be enacted into law. Both sides can then declare victory and go home. Stayed tuned!

In the closing days of the regular legislative session, more immigration bills were passed and signed into law than in the past two years.

Among the highlights are the following:

A. On October 17, the President signed both the H-1B cap bill (Public Law No. 106-313) and the H-1B fee increase bill (Public Law No. 106-311) into law. H-1B fees will increase to $1,000 per petition on December 17, 2000. For the complete text of both bills, three different FAQ’s, and a transcript of our chat on the new laws, see

http://www.shusterman.com/h1bvisaguide.

B. On October 28, the President signed the Victims of Trafficking and Violence Protection Act of 2000 (Public Law 106-386). This law reauthorizes and strengthens the Violence Against Woman Act (VAWA) which was originally enacted in 1994. The new law creates a nonimmigrant “T” visa for up to 5,000 victims of trafficking annually. Victims would have to demonstrate that they would be subject to extreme hardship involving unusual or severe harm if they were returned to their home countries. Certain “T” visaholders would later become eligible to adjust their status to permanent residents.

For an excellent summary of the immigration-related provisions of this law, prepared by Gail Pendleton of the National Immigration Project of the National Lawyers Guild, see

http://www.shusterman.com/vawa00.html (Link no longer operational)

C. On October 30, the President signed the Child Citizenship Act of 2000 into law (Public Law No. 106-395). To read the President’s Statement upon signing this act, see

http://www.shusterman.com/hr2883wh.html (Link no longer operational)

For an explanation and analysis of this law, see Topic #7 below.

D. Also, on October 30, the President signed the Visa Waiver Permanent Program Act (Public Law No. 106-396) into law. In addition to making the Visa Waiver Program a permanent part of the law, the law extends the EB-5 pilot program for investors in certain designated areas for another three years, and eliminates the need to file a new or amended H-1B petition in certain cases of corporate restructuring. To read the President’s Statement upon signing this act, see

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

E. On November 1, the President signed the Religious Workers Act of 2000 (Public Law No. 106-209) into law. The law extends the immigrant visa program for religious workers another three years until September 30, 2003.

F. On November 6, the President signed legislation (S.2812) exempting certain disabled individuals from having to take an oath of allegiance to the United States in order to become naturalized.

4. Asylum: Newspaper Study Ranks Immigration Judges

On October 17, the San Jose Mercury News obtained a 1,134 page printout from the Justice Department showing how frequently each of the nation’s Immigration Judges granted requests for asylum. The data was entered into a computer and analyzed by DMR Associates of Springfield, Virginia.

The data revealed that of over 175,000 requests for asylum which were made to Immigration Judges, just under 30,000 (17%) were approved, less than 100,000 (56%) were denied, over 12,000 were abandoned and a little more than 37,000 were withdrawn.

The study indicated that the Immigration Judges in some courts were much stricter than others. Ranked as “Unsafe Harbors” by the newspaper were the courts in Seattle, Los Angeles, Houston, Oakdale (Louisiana), Atlanta, Arlington (Virginia), Newark, Elizabeth (New Jersey), New York (Varick Street) and Detroit.

More lenient courts included San Francisco, El Paso, Dallas, Harlingen (Texas), Miami, Baltimore, York (Pennsylvania), Philadelphia, Jamaica Wackenhut (New York), and Chicago. Since there are 52 cities with Immigration Courts, the others fell in the in-between group.

However, since there are often many judges in a particular Immigration Court, moving your residence from one city to another does not necessarily improve your odds of obtaining asylum. For example, the Court in New York is the home to three of the “Ten Most Lenient Judges” (Judges Terry A. Bain, Victoria Ghartey and Margaret McManus) as well as two of the “Ten Strictest Judges” (Judges William F. Jackun and Noel Anne Ferris).

A link to the San Jose Mercury story is available at

http://www.shusterman.com/deportationdefense

under “Asylum Statistical Charts For Immigration Judges”.

For a statistical analysis applicable to every Immigration Judge in the U.S., see

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

5. Immigration Trivia Quiz: Seven Simple Questions

Quiz Removed

6. Supreme Court To Hear Cases Regarding Indefinite Detention

What happens when the INS is unable to deport a person back to his country? Can the agency imprison the person for the rest of his life?

This is a question which has been troubling me since I served as an INS Trial Attorney in the early 1980s. I would accompany Immigration Judges into federal prisons around the country to represent the government in exclusion proceedings involving persons who committed crimes in Cuba. Fidel Castro was not willing to allow the U.S. to deport these people back to Cuba. Now, 20 years later, Cuba still refuses to accept deportees from the U.S. Does the INS have the authority to keep deportees whose countries will not accept them back locked up forever?

The Supreme Court of the United States never ruled on this question in the 1980’s, but is about to do so now.

The Court has agreed to decide the legality of indefinite detention because two the Federal Circuit Courts of Appeals have issued contrary decisions on this important issue.

In 1999, the Fifth Circuit Court of Appeals in New Orleans considered the case of Kestutis Zadvydas. Mr. Zadvydas was born in a displaced persons camp in post-war Germany. His parents, both of whom were Lithuanian nationals, brought their son to the U.S. in 1956 as a refugee.

When he was ordered deported by the INS in 1994 because of a narcotics offense, neither Germany, nor Lithuania, nor the Dominican Republic, the country of birth of Mr. Zadvydas’ wife, were willing to accept him into their countries.

A Federal Judge freed him briefly in 1997 granting his request for a Writ of Habeas Corpus. The Judge ruled that “the probability of permanent confinement” was “an excessive means” of accomplishing the law’s purpose of protecting the public from one found deportable because of a criminal conviction.

However, the Fifth Circuit Court of Appeals overruled this decision and held that Mr. Zadvydas would not necessarily be imprisoned forever since the INS would periodically review the need for his detention, and would attempt to find a country to which he could be deported.

The second indefinite detention case is Ma v. Reno. On April 10, 2000, the Ninth Circuit Court of Appeals in California issued a decision which was contrary to that of the Fifth Circuit.

The Ninth Circuit ordered the release of a 22-year-old Cambodian named Kim Ho Ma. Mr. Ma had served a two-year sentence for a gang-related killing. He was ordered deported, but the Cambodian government refuses to accept deportees from the U.S. As a result, Mr. Ma had remained in INS custody for another two years.

The Federal Appeals Court ordered Mr. Ma freed, holding that his detention was so much longer than the 90-day “removal” authorized under the immigration laws as to be unreasonable and unauthorized by statute.

Mr. Zadvydas applied for review by the Supreme Court arguing that since he entered the U.S. legally, he has “due process rights including a fundamental liberty interest in personal freedom under the Fifth Amendment.”

The Justice Department, in Reno v. Ma, also applied for review by the Supreme Court, arguing that the Ninth Circuit Court’s ruling “cannot be reconciled” with precedent decisions by the Supreme Court which require courts to defer to the Attorney General regarding immigration matters. The Justice Department calls attention to the hundreds of similar cases for release from detention which have been filed in the Ninth Circuit.

The Supreme Court’s decision on this issue promises to be a landmark decision.

To read the complete text of the Fifth Circuit’s decision in Zadvydas v. Underdown, see

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

To read the complete text of the Ninth Circuit’s decision in Ma v. Reno, see

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

7. Citizenship: Child Citizenship Act of 2000 Becomes Law

Congress passed the “Child Citizenship Act of 2000” which the President signed into law on October 30.

The new law amends §320 of the Immigration and Nationality Act (INA) to provide that a child becomes a U.S. citizen by operation of law if he or she (1) has at least one citizen parent; (2) is under the age of 18; and (3) is residing in the U.S. as a lawful permanent resident in the legal and physical custody of his or her citizen parent. This applies to both natural and adopted children.

Prior law required both of the child’s parents to naturalize before the child can derive citizenship through his or her parents.

The new law amends §322, INA to provide that if the child is not a permanent resident of the U.S., a qualifying citizen parent (Note: The citizen parent must have been physically present in the U.S. or its outlying possessions for a minimum of five years, at least two of which must occur after the parent’s 14th birthday. Alternately, the citizen parent may have a citizen parent who fulfills these physical presence requirements.) may petition for the naturalization of the child.

With regard to §322, the child may either be residing abroad in the legal and physical custody of the citizen parent, or be temporarily present in the U.S. pursuant to a lawful admission and be maintaining lawful immigration status.

An application for a certificate of citizenship under §322 may be filed from abroad. However, in order to obtain citizenship, the child must take an oath of naturalization before an INS officer.

Effective date: These provisions of the law become effective 120 days after the President’s signature.

The law also creates limited exceptions to the bar against establishing good moral character and to inadmissibility and deportability for certain noncitizens who voted unlawfully or who made a false claim to U.S. citizenship. The effective date of these provisions relates back to any acts which occurred on or after September 30, 1996.

The amendments to §320 and 322 of the law will facilitate the making of persons citizens of the U.S. through derivation and/or through naturalization. All of the above provisions will benefit persons by making them immune from deportation. Persons who are U.S. citizens can not be removed or deported from the U.S.

To read the complete text of the new law, see

http://www.shusterman.com/hr2883.html (Link no longer optional)

8. Private Romero’s 50-Year Long March To Become A U.S. Citizen

Arthur Romero was born in 1922 to Mexican-born parents who were lawful permanent residents, and later citizens, of the U.S. If he had been born in the U.S. like each of his 13 older siblings, he would have been a citizen by birth and would have been spared over a half-century of trauma.

Instead, his mother decided to have Arthur in Mexico. After his birth, mother and baby entered the U.S. as permanent residents.

His father had suffered discrimination in California because of his Mexican heritage and his dark skin. When Arthur received a 1-A classification from his draft board during World War II, his father ordered his teenage son to go to Mexico rather than enter the U.S. Army. Although Arthur had misgivings about doing so, he did not dare to question his father’s authority. Little did he know the price that he would have to pay.

U.S. immigration laws provide that an immigrant who leaves the U.S. to avoid the draft during wartime becomes forever ineligible for U.S. citizenship or even for permanent residence.

Mr. Romero lived in Mexico until 1948. Upon the outbreak of the Korean War, he applied for and was granted a visa to reenter the U.S. He immediately enlisted in the U.S. Army. However, there was a hitch in his plans to make amends for his earlier conduct. Since he had lost his permanent residence, he needed to be a U.S. citizen to enlist. His aunt signed an affidavit that he had been born in the U.S.

During his three-year tenure in the Army, this affidavit became subject to severe scrutiny by various federal agencies. Sometime in 1951, after Private Romero had married a citizen of the U.S., the Immigration Service found him to be illegally in the U.S. Based on the INS’ findings, the Army granted him an honorable discharge “for the convenience of the service”. The INS brought him to Calexico, California and told him to “voluntarily depart” the U.S. by walking across the border to Mexicali, Mexico. Little did he know that it would take him almost 50 years to earn the right to live in the U.S.

For the next few years, Mr. and Mrs. Romero resided in Mexicali, Mexico although Mrs. Romero crossed the border daily to work at her job in Calexico, California.

Three times, Mrs. Romero applied for a green card for her husband, and three times the application was denied.

Finally, the Romeros returned to the U.S., Mr. Romero with an INS-issued border crossing card. In 1971, he applied for U.S. citizenship on the basis of his wartime service in the U.S. military. The interview went perfectly. However, later he was called in by the INS and asked to withdraw his application because the INS told him that his departure to Mexico during World War II made him permanently ineligible for naturalization.

Although he complied and withdrew his application, INS took no steps to try to deport him. In the meantime, life went on. Mr. and Mrs. Romero lived in the U.S., raised and sent to college their three sons, all of whom are U.S. citizens. Ironically, one son later became the Mayor of Calexico. However, the family always lived with the fear that Mr. Romero might one day be deported. Despite his 30+ years of working and paying taxes in the U.S., his lack of a criminal record and his three years of honorable military service, Mr. Romero was suspended in legal limbo. Even after his retirement, he never asked for or received a single Social Security check, or any benefits from Medicare or the Veterans Administration.

Then came the Internet. In 1998, one of the Romero’s sons was referred to our web site by a law school immigration clinic. There, he found a link to INS’s web site regarding “Interpretations” for naturalization cases. The link lead him to a 1980 case of a man who, because of a fraudulent enlistment, received an honorable discharge from the U.S. Army “for the convenience of the Service”. Unlike Mr. Romero, who had lacked the resources to do so, the man had gone to Federal Court to challenge INS’s interpretation of the law. He won his case and was granted U.S. citizenship. Because of this case, the INS had changed their position and decided that persons who served during wartime who were discharged “for the convenience of the Service” were nevertheless eligible to be naturalized.

Mr. Romero’s son contacted us and asked whether this case applied to his father. We agreed that it did, and we quickly prepared and submitted an application for naturalization for Arthur Romero, then in his mid-70’s.

However, because the INS had a very difficult time trying to locate his ancient file and obtain his military records, it took over 18 months and the assistance of Rep. Calvin Dooley (D-CA) to schedule a naturalization interview for Mr. Romero. I recently accompanied him to his interview in Fresno, California. The INS examiner was pleasant, and Mr. Romero passed his U.S. history and government test with flying colors. The INS examiner told him that he had passed, and handed him a letter scheduling him for an October swearing-in ceremony. When we informed Mrs. Romero and their son what had happened, it was all smiles and hugs. See a photo of Mr. and Mrs. Romero and me, taken a few minutes after his interview:

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

Recently, I received a glowing letter from Mrs. Romero about her husband’s swearing-in ceremony. Private Romero’s 50-year long march had ended successfully. He had, at long last, become a proud citizen of the United States.

9. Chat Schedule, Online Transcripts & LegalElite

Chats

We now have more than two dozen chat transcripts online. Among the topics covered are how to obtain a temporary working visa, permanent residence and U.S. citizenship, new laws pertaining to nurses and physicians, how to complete immigration forms, special problems encountered by computer professionals and by persons born in India and China, the outlook for the Visa Bulletin, and an I-9 primer for HR managers and employees.

Three of our most popular chat transcripts are:

“The New H-1B Cap And More!” (October 9)

“The New H-1C Nurse Regulations” (September 18)

“The New NIW Regulations For Physicians” (September 11)

For a list of chat transcripts, see

Link to chat no longer availableLegalElite —

At the end of this month (November 27 – December 4), we will conduct two simultaneous discussions for LegalElite.com

The first is for attorneys and is entitled “Ten Commandments For Marketing Your Law Firm Online”. I will be answering questions along with Margaret Watkins of Luce, Forward, Hamilton & Scripps.

The second is entitled “The New H-1B Cap Law” and we will take up right where our October 9th chat on the same subject left off.

For information about how to subscribe to these free online discussions, see

http://www.shusterman.com/toc-le.html (Link no longer operational.)

10. Answers To October’s Immigration Trivia Quiz

Quiz Removed

October’s Immigration Trivia Quiz was answered in short order by Rommel Munar:

Hi Carl,

The answers to the jazz quiz are:

1. Diana Krall – born in Nanaimo, British Columbia, Canada

2. George Albert Shearing – born in London, England

3. Miles Dewey Davis III – born in Alton, IL, USA

Mimeo.com’s phone is 1-800 GO MIMEO

Thank you,

Rommel Munar

When I informed Mr. Munar that he was the winner, I received the following response:

Dear Carl,

Thank you for selecting me as the winner for the October Immigration Trivia Quiz. Most of the credit should belong to my good friend Jim Hill who is a great music enthusiast. I would never have known Diana Krall nor George Shearing if not for him. As for their country of births, we used yahoo.com and allmusic.com to obtain it. The Diana Krall picture was a tough one. Her websites

http://www.dianakrall.com

came up on a search from yahoo.com. We saw the exact same picture on her bio page.

I am in my third year of H1-B as a Systems Analyst and I am from the Philippines. Your website is truly a tremendous source of information for people like us who need assistance in the immigration process. I would also like to thank you for the timely information that you have been providing us through your newsletter. Thank you and have a great day.

Truly yours,

Rommel Munar

 

Congratulations, Rommel!

Carl Shusterman
Certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service 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

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November 14, 2000