Volume Seven, 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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Client Reviews

Newsletter US Immigration Update November 2002

TABLE OF CONTENTS:

1. December 2002 State Department Visa Bulletin
2. Immigration Government Processing Times
3. Legislation: Immigration Provisions in DOJ Authorization Law
4. Physicians: Free, Online Videos & Power Point Seminars
5. INS Proposes New VisaScreen Rules for Health Care Workers
6. Security: State Department – It’s All Happening at the Zoo
7. Determining the Prevailing Wage in Labor Certification Cases
8. Schedule of Upcoming Immigration Law Seminars
9. Chat Schedule, Transcripts, Audios & Videos
10. Answers to the October 2002 Immigration Trivia Quiz

NEWS FLASHES:

• AR-11– After being inundated with hundreds of thousands of AR-11 change of address forms, the INS has revised the form, and now requests that the AR-11 be sent to an address in London, Kentucky, rather than to INS headquarters in Washington, D.C.The new AR-11 form, complete with the new filing instructions, is available for downloading from our free forms download page at

  http://www.shusterman.com/formsusimmigration/

• Ciudad Juarez – The U.S. Consulate in Ciudad Juarez, Mexico ended their longstanding practice of granting nonimmigrant visas to third-country nationals (TCNs) on November 1. There is an exemption, however, for those seeking F-1 student visas and for third-country nationals who reside within the jurisdiction of the consulate. The consulate took this action primarily because of increased workload brought on by a huge demand for V visas. Other border posts in Mexico and Canada should be able to process NIV requests by TCNs. However, if and when proposed regulations are finalized which require Canadian landed immigrants to obtain visas, TCNs may be forced to return to their countries of origin in order to obtain nonimmigrant visas.
• Detention– The Commission on Immigration Policy, Practice and Pro Bono of the American Bar Association has posted a wealth of resources on the web relating to the rights of persons detained by the INS.This information includes “Immigration Detention Resources”, and three “Legal Guides” in PDF format ranging from 97 to 130 pages each. Kudos to the ABA’s Chris Nugent. We link to each of these resources from our “Deportation” page at

  http://www.shusterman.com/deportationdefense.html#2

• H-1B Physicians Win Over $1 Million In Back Pay – In the Matters of Wage and Hour Division v. Mohan Kutty, (OALJ, Oct. 9, 2002), an Administrative Law Judge held that an employer was liable for back wages to 17 H-1B physicians for over $1 million and for more than $100,000 in civil money penalties.
• Impostor Web Sites– Several private organizations have established web sites that falsely imply that they are official governmental web sites. Many thousands of immigrants have been swindled out of their money by these smooth operators. Do not be fooled by these phony sites.
• Legalization– Earlier this year, the U.S. Conference of Catholic Bishops (Migration and Refugee Services) published a report entitled “The Case for Legalization of Undocumented Immigrants”. We link to the report from our “Immigration Reports and Organizations” page at

  http://www.shusterman.com/immigrationorganizations/

  On November 3, Ouisa Davis, Esq., the Executive Director of a legal aid clinic for immigrants for the Catholic Diocese of El Paso, Texas authored an article entitled “Flawed U.S. immigration policies causing deaths along the border” in the El Paso Times. see

  http://www.borderlandnews.com/stories/opinion/columnists/20021103-39117.shtml (Link is no longer operational.)

• Special Registration Expanded– On November 6, the INS expanded Special Registration to include certain persons present in the U.S. These persons are males, at least 16 years of age, who were born in, or are citizens or nationals of, Iran, Iraq, Libya, Sudan and Syria. Nonimmigrants that entered the U.S. before September 11, 2002 are affected. Persons in “A” or “G” status and persons who applied for asylum on or before November 6 are not included. Special registrants must report to a designated INS office between November 15 and December 16, 2002, re-register annually, and report address changes to the INS within 10 days. Willful failure to follow any of these requirements may result in deportation. See the notice on our “September 11” page at

  http://www.shusterman.com/september11immigration.html#1

• Students– On November 2, President Bush signed the Border Student Commuter Act (H.R.4967) – Public Law 107-274. The new law establishes a border commuter nonimmigrant classification under the F and M visa categories for Canadian and Mexican nationals who maintain actual residence in their country of nationality and commute to the United States for full or part-time study.

 

• Supreme Court – On November 4, in INS v. Orlando Ventura, the Supreme Court unanimously reversed a decision of the Court of Appeals for the Ninth Circuit in finding that no change in “country conditions” in Guatemala could justify denying Mr. Orlando Ventura’s Request for Asylum from Guatemala. Both sides had requested that the Court of Appeals remand the case to the Board of Immigration Appeals (BIA) to make a factual determination as to whether country conditions in Guatemala had indeed changed. The Supreme Court found that it was not within the authority of the federal courts to make decisions regarding changed country conditions or other factual matters, and ordered the Ninth Circuit to remand the case to the BIA. Some court watchers believe that the Supreme Court per curiam decision in this case (and in two other non-immigration cases) shows that the high court believes that the Ninth Circuit, which decides the majority of immigration cases in the U.S., is overstepping its bounds

• Temporary Protected Status (TPS)– The Justice Department extended TPS for nationals of Sierra Leone for another year, through 11/02/03. The 60-day re-registration period runs from 10/31/02 through 12/30/02. See

  http://www.usdoj.gov/opa/pr/2002/October/02_ag_625.htm

1. December 2002 State Department Visa Bulletin

On November 12, we posted the December 2002 Visa Bulletin, the same day that the State Department posted the dates on their web site.

For once, all of the family-based categories showed advances, some of them significiant. The worldwide 1st preference category (unmarried, adult sons and daughters of U.S. citizens), moved forward three weeks. Each of the other worldwide family-based categories advanced five weeks.

All of the Mexican and Philippine categories also advanced, sometimes by months rather than weeks. The biggest jump was in the Mexican 3rd preference category (married sons and daughters of U.S. citizens) which advanced four and one-half months. Other significant moves occurred in the Mexican 4th preference category (brothers and sisters of U.S. citizens) which advanced two and one-half months and the Filipino 1st which moved forward two months.

Charles Oppenheim, the State Department’s “guru” of the Visa Bulletin has predicted that there will be significant advances in the family-based categories this year. He further predicted that the employment-based categories would remain current with the possible exception of the unskilled worker category.

The Visa Bulletin creates false expectations. For example, a U.S. citizen parent of a single adult son or daughter is led to believe that his or her child will be able to immigrate in a little less than three years since the priority date, as of May 2002 (before its recent regression) for the worldwide family-based 1st preference category was March 1, 1999. The unfortunate reality is that the there has been little forward movement in this category since November 2000. The parents and children should be informed of this fact, and advised either to seek other means to immigrate or to reconcile themselves to the fact that they will have to live their lives in different countries.

Unless Congress acts to reform the family-based system, the 3.5 million persons waiting to immigrate to the U.S. based on approved family-based petitions should consider other options for immigrating.

All of the employment-based numbers remain current. The time to apply for your labor certification or visa petition is now. We predict that sometime this year, visa numbers for persons born in India, China and possibly the Philippines will again begin to backlog.

The December 2002 Visa Numbers can be found at

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

For an explanation of what the categories, dates and symbols listed below mean, see

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

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. Legislation: Immigration Provisions in DOJ Authorization Law

On November 2, President Bush signed into law the Justice Department Authorization bill (H.R.2215) – Public Law 107-273. We link to the complete text of the new law from our “Immigration Legislation” page at

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

Read AILA’s excellent “Washington Update” dated November 8, 2002 on our “Advocacy” page at

http://www.shusterman.com/toc-advocacy.htm (Link is no longer operational.)

Also, read AILA’s latest newsletter on business immigration “Connect” at

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

The following is AILA’s summary of the immigration provisions of the new law:

Waiver of Foreign Country Residence Requirement with Respect to International Medical Graduates. (Sec. 11018):

Extends until 2004 the program authorizing visas for foreign medical graduates wishing to serve in the United States, and raises the number of visas available per State from 20 to 30.

Posthumous Citizenship for Non-Citizen Veterans. (Section 11030):

Extends the deadline for allowing family members to apply for honorary posthumous citizenship for non-citizen veterans who died while honorably serving the U.S. in past wars.

Extension of H-1B Status for Aliens with Lengthy Adjudications. (Section 11030A):

Recognizing that lengthy processing times by the Department of Labor have precluded some H-1B visa holders from being eligible to apply for a one-year extension of H status pursuant to the American Competitiveness in the 21st Century Act of 2000 (Public Law 106-313), this provision is intended to permit aliens who have labor certification applications caught in lengthy agency backlogs to extend status beyond the 6th year limitation. As long as 365 days have elapsed since the filing of a labor certification application (that is filed on behalf of or used by the alien) or an immigrant visa petition, H-1B status can be extended in one-year increments. This will be true even if the alien has since changed their status or left the country. If an application for a labor certification or adjustment of status or a petition for an immigrant visa petition is denied, the extended H-1B status ends at that point.

Application for Naturalization by Alternative Applicant if Citizen Parent Has Died. (Section 11030B):

Amends the Immigration and Nationality Act to authorize a child’s grandparents or legal guardian to submit an application for naturalization on behalf of the child under section 322 of the INA where the child’s parent, who otherwise would be authorized to submit the petition, died during the preceding five years.

Removal of Conditional Basis of Permanent Resident Status for Certain Alien Entrepreneurs, Spouses, and Children. (Section 11031):

This provision applies to investors who filed and had their Immigrant Petition by an Alien Entrepreneur (Form I-526) approved between January 1, 1995 and August 31, 1998, obtained conditional resident status and filed a Petition by Entrepreneur to Remove Conditions (Form I-829). The section sets forth numerous new procedures for determining whether an eligible investor can have the conditions removed from his permanent resident status. It also states that an investor whose conditional status is terminated by the INS may have that decision reviewed by an immigration judge. The provision also provides that any alien who was admitted on a conditional basis as a child of an investor shall remain a “child” for purposes of this title.

Conditional Permanent Residence for Certain Alien Entrepreneurs, Spouses, and Children. (Section 11032):

This provision applies to individuals who filed Immigrant Petitions by Alien Entrepreneurs (Form I-526) that were approved by the INS between January 1, 1995 and August 31, 1998, and who timely filed adjustment of status applications or applied for immigrant visas overseas, but who never became conditional residents because they remained overseas or because the INS never acted on their adjustment applications. The provision provides that if the INS revoked a Petition by an Alien Entrepreneur (Form I-526) on the ground that an investor failed to meet the capital investment requirement, that revocation is to be disregarded for purposes of this bill, and the adjustment or immigrant visa application overseas is to be treated as reopened. Once the investor becomes a conditional resident, he must file a Petition by Entrepreneur to Remove Conditions (Form I-829) within two years.

Definition of Full Time Employment for Investors (Section 11035):

This section defines full time employment for purposes of section 203(b)(5) of the INA as a position that requires at least 35 hours of work a week.

Eliminating Enterprise Establishment Requirement for Alien Entrepreneurs. (Section 11036):

Eliminates the “establishment” requirement from section 203(b)(6) of the INA. Investors must only show that they have invested in a commercial enterprise and do not have to show that they established one. This section also eliminates the “establishment” requirement from section 216A of the INA for investors who have filed a Petition by Entrepreneur to Remove Conditions (Form I-829). Investors must also show that they have sustained their investment actions over the two-year period. The section also makes clear that the term “commercial enterprise” may include a limited partnership.

Amendments to Pilot Immigration Program for Regional Centers to Promote Economic Growth. (Section 11037):

Amends section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 to refine the description of an EB-5 regional center and clarify that the regional centers can promote increased export sales, improve regional productivity, job creation or increase domestic capital investment. The section also indicates that the INS should approve applications for EB-5 regional center status where the application is based on a general prediction concerning the kinds of commercial enterprises that will receive capital from investors, the jobs that will be increased directly or indirectly as a result of the investment, and the positive economic impacts that will result from the investment.

4. Physicians: Free Online Videos & Power Point Seminars

On October 3, I gave a seminar entitled “Immigration for Foreign-Born Physicians” in New York City. I discussed J waivers, H-1B and O-1 visas, how to obtain permanent residence, our soon-to-be-filed nationwide lawsuit challenging INS’s interim NIW regulations, and answered numerous questions from the audience.

The entire seminar, as well as my power point presentation and the question and answer session, was videotaped.

In order to increase your understanding of the complex set of immigration laws and procedures relating to foreign-born physicians, we have made the entire seminar accessible online.

The seminar consists of three parts:

A) J Waivers, H-1B and O-1 Visas

http://www.shusterman.com/video/img100302_p1.ram (Link no longer operational)

B) Obtaining Permanent Residence

http://www.shusterman.com/video/img100302_p2.ram (Link no longer operational)

C) Questions and Answers

http://www.shusterman.com/video/img100302_qa.ram (Link no longer operational)

Simply click the RealPlayer icon and follow the instructions.

Also, while viewing the video, be sure to click the “maximize” box in order to have the video fill your screen.

Enjoy!

5. INS Proposes New VisaScreen Rules for Health Care Workers

On October 11, the Immigration and Naturalization Service (INS) issued proposed regulations which, when finalized, could adversely affect a hospital’s ability to sponsor foreign-born health care workers on temporary visas, and to retain present employees.

We were interviewed by the American Hospital Association News regarding these regulations. You can read the online version of the interview at

http://www.hospitalconnect.com/ahanews/jsp/display.jsp?dcrpath=AHA/NewsStory_Article/data/AHA_News_021021_INS_proposed_%20rule&domain=AHANEWS (Link no longer operational)

Since 1996, the immigration laws have required certain foreign-born health care professionals (nurses, occupational therapists, physical therapists, physicians’ assistants, medical technicians/technologists, and speech language pathologists and audiologists) to obtain certificates (“VisaScreen”) that their education, experience, licensure and English-language ability are equivalent to their U.S. counterparts before they are permitted to obtain permanent residence.

The law also applies to persons present in the U.S. in temporary working status (“H-1B”, “H-1C”, “TN”, etc.), but for the past six years, both the INS and the State Department have waived this requirement. However, if the proposed regulations are finalized in their present form, no waivers will be available for nonimmigrants.

In practical terms, this means that all employees with temporary visa status will be required to present a VisaScreen Certificate whenever they

1. Apply for a temporary visa abroad;
2. Apply to change to working status within the U.S.;
3. Attempt to extend their stay in the U.S.; or
4. Exit the U.S. and attempt to reenter the country.

For example, if a Canadian nurse who is presently working in the U.S. under NAFTA (in “Trade NAFTA” or “TN” status) leaves the U.S. for a weekend to visit her family in Canada, she will not be able to reenter the U.S. without a VisaScreen Certificate. Based upon past experience, it is estimated to take a minimum of 3-4 months to obtain such a certificate.

Although the regulations must be finalized prior to becoming effective, here are our recommendations to hospitals regarding the steps they should follow. Taking these steps as soon as possible may them help to minimize disruptions to their workforce:

1) Have your facility prepare a census of foreign-born employees working in temporary visa status. Such a census should include:

a) The name of each of your employees with temporary visa status.
b) Their occupations.
c) Their current visa status.
d) The dates on which this status expires.
e) Whether the employees have applied to extend their status and when this was done.
f) Whether the employees have applied for permanent residence.
g) Whether they are in possession of an Employment Authorization Documents (EADs – work permits) and Advance Paroles (travel permits).
h) Whether the employees are in possession of VisaScreen Certificates.

2) Registered nurses and physical therapists in possession of temporary working visas should immediately apply for permanent residence and for VisaScreen Certificates. Once applications for adjustment of status to permanent residence, for EADs and Advance Parole are submitted to the INS, both a work permit and a travel permit will be issued to the employee within approximately 90 days. However, if the RN or PT is in TN status, and that status will expire in the next three to four months, our recommendation is for the employee to apply for an extension of stay prior to applying for permanent residence.

3) Other foreign-born health care professionals employed in temporary visa status should immediately apply for VisaScreen Certificates. Since the permanent residence process is far longer (3-4 years) for professionals who are not registered nurses or physical therapists, it is essential that they obtain VisaScreen Certificates as quickly as possible to insure that they will be able to continue their employment, and to preserve their ability to travel outside the U.S. and to reenter the country to resume their employment.

The proposed regulations establish a mechanism for credentialing agencies to submit applications for certification to the INS, and procedures by which their certification may be terminated.

On a disappointing note, the rules still would require foreign-born health care professionals who are educated, trained and licensed in the U.S. to pay a credentialing organization to certify that their education, training and licensure are equivalent to that of U.S. workers.

On a more positive note, the new rules would add two additional English-language testing organizations to the list of acceptable organizations: the International English Language Testing System (IELTS) and the Test of English for International Communication (TOEIC).

Since nonimmigrant health care professionals have been exempted from the VisaScreen for over six years, it is important that the final regulations provide for a phase-in period so that hospitals are not caught unaware and lose valuable, trained professional employees. A recent study in the Journal of the American Medical Association demonstrates that the shortage of nurses is resulting in a large number of unnecessary patient deaths. A phase-in period for the new regulations would help hospitals maintain their existing workforces and minimize the danger that the shortage of trained health care professionals poses to the American public.

We strongly urge hospitals to comment on the proposed INS regulations in an effort to soften their impact on both existing and future employees. Comments must be received on or before December 10, 2002. Written comments should be submitted to Director, Regulations and Forms Services Division, Immigration and Naturalization Service, 425 I Street, NW, Room 4034, Washington, DC 20536. INS No. 2080-00 should be referenced. Comments may also be submitted by e-mail at insregs@usdoj.gov INS No. 2080-00 should be included in the subject box.

Given the increased shortages of health care professionals which have developed since the 1996 law was passed, it is time for Congress to reconsider the “VisaScreen” requirement and its implementation, especially since this requirement was added to the law without the benefit of legislative hearings.

6. Security: State Department – It’s All Happening at the Zoo

Since the tragic events of September 11, 2001, the operative word at the State Department’s Bureau of Consular Affairs, the folks who decide who gets a visa to come to the United States, is “security”.

The Department of State (DOS) has the unenviable job of approving and denying many millions of applications for nonimmigrant visas (NIVs) each year, and hundreds of thousands of immigrant visa applicants. DOS’s 211 visa-issuing posts abroad denied almost 2.5 million NIV applications last year, mostly on the ground that the applicants were intending immigrants.

In short, the DOS has never been a “soft touch” for persons seeking temporary visitor or student visas. However, in light of the mass murders committed by foreign-born terrorists on September 11, 2001, various anti-immigrant groups, with the benefit of 20-20 hindsight, are now blaming the DOS for issuing tourist visas to the hijackers. It is difficult to know, in advance, who might commit a terrorist or criminal act in the U.S. The intelligence agencies which identified at least two of the terrorists before September 11 never shared this information with either the DOS or the INS until a few days before September 11, AFTER the two had already entered the U.S.

According to a recent government study, the visa-issuing process, in which a consular officer has only a few minutes to decide an application, where interviews were frequently waived in Saudi Arabia and other nearby countries, and where intelligence agencies often refuse to share important information with the DOS, is in need of reform.

In October 2002, the General Accounting Office (GAO) released a report entitled “Border Security: Visa Process Should Be Strengthened as an Antiterrorism Tool”. The report states that “we determined that the hijackers had presented little information to prove their eligibility for a visa under [existing law]. None of their applications had been completely filled out and only two of the 15 hijackers had been interviewed before receiving a visa.”

The report also found that visa screening had improved since September 11, but added that “weaknesses remain that limit the effectiveness of the visa process as an antiterrorism tool.”

We link to this 80-page report from our “September 11” page at

http://www.shusterman.com/september11immigration.html#1

Since September 11, persons seeking to enter the U.S. from a country designated by the DOS to be state sponsors of terrorism (Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria) are subject to increased scrutiny in the visa-issuing process and to Special Registration by the INS. We link to the INS “Special Registration” procedures at

http://www.shusterman.com/september11immigration.html#1

The State Department (DOS) has an array of security and name check codes named after various birds and land-based animals: Visas Condor, Visas Eagle, Visas Mantis, Visas Donkey, Visas Pegasus*

Given that much of recent delays in granting visas are directly related to these checks, it is important to know the purpose and function of each of these programs. Due to space limitations, we will discuss only the latest DOS name-check procedure, Visas Condor, here and examine the other name checks and security clearances in upcoming issues of SHUSTERMAN’S IMMIGRATION UPDATE.

Visas Condor is a name check procedure established after the September 11th tragedies. It applies to males aged 16 to 45 from 26 different countries. Although the DOS has refused to release the names of these 26 countries, according to the media, they include Afghanistan, Algeria, Bahrain, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, Turkey, the United Arab Republics and Yemen. The media also reports that there is a 27th country on the list: Bangladesh.

In addition, consular officers apparently have the discretion to use Visas Condor for female applicants, nationals of countries not on the “List of 27”, and for persons of different nationalities if they were born in one of the 27 listed countries.

Responses on the new DS-157 supplemental NIV application can trigger Visas Condor checks. These checks are requested from consular posts to the DOS and then to various intelligence agencies. Initially, an NIV could be issued if no response was received within 30 days. However, due to complaints from governmental agencies that they did not have time to clear name checks within 30 days, NIVs are not being issued until a response is actually received. This procedure has resulted in highly publicized stories about popular entertainers and scientists waiting abroad for weeks or even months while U.S. concerts were cancelled and research projects postponed.

On October 18, the State Department issued a cable terminating the “20-Day Hold Procedure for Certain NIV Applicants”. see

http://travel.state.gov/state205630.html (Link is no longer operational.)

7. Determining the Prevailing Wage in Labor Certification Cases

Last month we explored prevailing wages as applied to H-1B Nonimmigrant visas. This month, we are looking at them in the context of Labor Certification Applications.

This is one of the most crucial and confusing issues in the successful processing of labor certifications. Once a position is certified, the rest of permanent residence processing for that foreign national is based on the statements contained on that application. Technically, the employer must pay the prevailing wage once the foreign national is granted legal permanent residence. However, practice shows that if the supporting documentation submitted with the permanent residence application demonstrates that the foreign national is earning less than the prevailing wage, the INS will be skeptical that the prevailing wage will be paid after permanent residence is granted. This will hinder the overall success of the legal permanent residence application.

Labor certification applications are built around the ETA-750A form (Offer of Employment), which outlines the specifications of a job being offered to a foreign worker. This form, together with other materials, is submitted to the State Workforce Agency (SWA) with jurisdiction over the work site. The wage offered on the form must meet or exceed 95% of the prevailing wage for the position in the geographic area where the duties are performed.

As part of labor certification processing, the SWA will check the wage offered against current wage data to ensure that it is in line with prevailing wages for that specific position and geographic region. As we saw with H-1B prevailing wages, the figure isn’t always what the employer expects it to be.

In order to preview the determination the SWA will make regarding the wage offered, the employer can choose to submit a request for a prevailing wage determination directly to the SWA. Each State’s SWA is different, but most have a fax form available online for requesting prevailing wage determinations. For example, the form in California may be accessed online at:

http://www.calmis.cahwnet.gov/htmlfile/programs/pwformnw.pdf (Link no longer operational)

If the wage offered on the ETA-750A is within 95% of the wage determination issued by the SWA, there will not be a concern, and the employer can feel confident submitting the ETA-750A.

If the employer chooses not to request a prevailing wage determination before filing, there is a risk that the SWA will find that the wage offered on the ETA 750-A is too low. In such a case, the SWA will issue an “Assessment Notice”. On one hand, this slows down processing. On the other hand, it gives the employer an opportunity to either adjust the wage or present evidence that the wage offered is in line with the prevailing wage.

The employer has limited options to find an alternative figure that the SWA will accept. Since the figure comes straight from the SWA’s own research, how can it be challenged?

First, double-check the SWA’s figure. Each SWA obtains their prevailing wage data from the Department of Labor’s Occupational Employment Statistics/Standard Occupational Classification (OES/SOC) online database. This is their default source for prevailing wage data, and they view it as the most authoritative source. We link to the Department of Labor’s Online Wage Library through our “Department of Labor” page at

http://www.shusterman.com/departmentoflaborusimmigration.html#9

OES/SOC figures are not always accurate or realistic. There are inherent problems collecting data, and the only categories are for entry-level and experienced-level positions. Mid-level positions are not reflected in the presentation of the data at all. This flaw is inherent in the OES/SOC system. In rare cases, the SWA may have chosen a figure from the wrong job category, which can easily be corrected.

If the OES/SOC figure seems accurate on its face, what is the next level of authoritative wage data? The U.S. Department of Labor (DOL) has a wage database, compiled by their Bureau of Labor Statistics (BLS). We link to the BLS homepage from our Department of Labor page at

http://www.shusterman.com/departmentoflaborusimmigration.html#9

Start at the BLS homepage, then follow these links, in the following order:

1. Wages By Area And Occupation (can be found on the left side of the page, beneath “Wages, Earnings and Benefits”)
2. For Pay Setting Purposes
3. Get Detailed Statistics
4. Create Customized Tables – One Screen

This data is an acceptable alternative to the OES in every state. However, there are some guidelines as to which DOL/BLS data is acceptable. Look carefully at their tables. Firstly, appropriate data must be “published” data, which generally doesn’t show a level. Secondly, it must have been published within the previous two years. Thirdly, their “Modeled Estimate” data is not acceptable for pay-setting purposes, unless it is also clearly labeled as “published” within the last 2 calendar years.

If the DOL/BLS data doesn’t yield an acceptable figure, the employer can turn to a private survey such as the Employers’ Group or Watson Wyatt. However, all SWA’s adhere to very specific criteria that any private wage data must meet before they will use it in place of the OES wage data:

1. The survey data must have been collected within the last 24 months.
2. If it is a published survey, the survey must have been published within the last 24 months.
3. The survey must cover the Metropolitan Statistical Area where the duties are performed (“Regional” or “Statewide” data are unacceptable).
4. A copy of the job description must be included, and must adequately match the job as described on the ETA-750A.
5. The survey must represent samples taken from across industries that Employ workers in the occupation.
6. The wage determination must be based on an arithmetic mean (weighted average).
7. The survey must identify a statistically valid methodology that was used to collect the data.

If the employer cannot determine whether a particular survey meets these criteria, they can call the SWA and double check with them before relying on the survey to establish a prevailing wage.

If no adequate private survey can be found, the employer can conduct its own survey. Depending on the cooperation afforded by the employer’s peers, this may or may not be easy to accomplish. An employer-conducted survey must meet the following criteria:

1. It must have been completed within the last 24 months. 2. It must contain the names and addresses of the employers contacted. 3. The names and phone numbers of the persons contacted must be provided. 4. It must include a copy of the job description provided to all employers contacted. 5. A clear definition of the experience levels used in the survey must be provided. 6. Data must include the number of employees at each experience level for each employer. 7. Data must include the exact wage for each employee. 8. Data must be collected from eight different employers within the specific geographic area of the job site, and across industries using the same occupation.

We have heard complaints that SWAs often use these guidelines for private and employer surveys to reject employers’ attempts to provide alternative prevailing wage figures to those provided by the OES/SOC data. However, in practice, we have rarely experienced a problem where the alternative data presented conforms to the criteria outlined above. When in doubt, contact the SWA to review the alternative data with them in order to be confident that it will be accepted.

8. Schedule of Upcoming Immigration Law Seminars

The following is a partial list of Immigration Seminars in which I will participate during the next few months:

A) November 14-16, 2002 Monterey, California
“15th Annual California Chapters Conference”
– Sponsored by the American Immigration Lawyers Association
(I will speak about “Health Care Workers”.)

B) November 18-19, 2002 San Francisco, California
“35th Annual Immigration & Naturalization Institute”
– Sponsored by the Practising Law Institute
(I am on a panel entitled “INS & State Department Update” with Stephen K. Fischel, Office Director; Legislation, Regulation and Advisory Opinions – State Department; Jacquelyn A. Bednarz, Special Assistant to INS’s Executive Associate Commissioner, Office of Policy and Planning; and Jeffrey J. Rummel, Esq.)

C) December 4-6, 2002 Sacramento, California
– California State Rural Health Association Annual Conference
“Shoulder to Shoulder: Building on our Successes for Rural Health Solutions”
I am participating in a panel entitled “Attracting and Retaining a Qualified Workforce.”

D) 2nd Annual Multicultural Public Health Conference
January 31, 2003 Fresno, California – Addressing Health Disparities in the San Joaquin Valley – Sponsored by the Central California Center for Health and Human Services

For more information, call The Rios Company at (559) 485-1320

9. Chat Schedule, Transcripts, Audios & Videos

Deleted

10. Answers To The October 2002 Immigration Trivia Quiz

Quiz Removed

One of our favorite physicians has become a double winner in our monthly immigration trivia quizzes. Here is her winning entry, and a follow-up letter on how she won the quiz a second time:

A) Ang Lee
Having garnered international acclaim for his work, Taiwanese director Ang Lee was one of the first Chinese-born directors to find critical and commercial success on both sides of the Pacific. Born in 1954 in Taipei, he graduated from the National Taiwan College of Arts in 1975 and then went to the United States, where he studied theater directing at the University of Illinois and film production at New York University.

He directed the following: The Hulk (2003), The Hire (2001), Superbit 3-Pack (2001), Crouching Tiger, Hidden Dragon (2000), Ride with the Devil (1999), The Ice Storm (1997), Sense and Sensibility (1995), Eat Drink Man Woman (1994). He was the Screenwriter for The Wedding Banquet (1993) and Pushing Hands (1992). Finally, he Produced Crouching Tiger, Hidden Dragon (2000), The Ice Storm (1997), The Wedding Banquet (1993) and Pushing Hands (1992).

Mr. Lee has garnered the Academy, Golden Globe, and Director’s Guild Awards for Best Director.

B) M. Night Shyamalan
Born in Madras, India, on August 6, 1970, Shyamalan was raised in the posh Philadelphia suburb of Penn Valley. He was an actor in the movie Signs (2002) that he directed, wrote, and produced. He also directed: Unbreakable (2000), The Sixth Sense (1999), and Wide Awake (1998) and produced Unbreakable (2000). Finally, he wrote: Unbreakable (2000), The Sixth Sense (1999), and Stuart Little (1999), and Wide Awake (1998).

Mr. Shyamalan was nominated for the Academy, Golden Globe, Director’s Guild, and Writer’s Guild Awards for The Sixth Sense (1999).

Dear Mr. Shusterman:

This is fun! I actually delayed answering this quiz and did not send an answer right away. I had a pretty good idea about the identity of the immigrants, but the part about the EB1 petition documentation made me hesitate. I had a vague idea of the process (Isn’t that why you hire LAWYERS?) so I had to go through your own web page to go through the EB1 requirements before I sent in an answer.

I actually recognized M. Night Shyamalan from the picture since he makes all these Alfred Hitchcock-like cameo appearances in his own movies. So I figured you had gone “Hollywood” on us. Going with that theory, I made a guess that the other gentleman was Ang Lee. “Sense and Sensibility” is one of my all time favorite movies and I have always thought that it was AMAZING that an Asian director was picked to do a Jane Austen film. Talent and hard work do cross boundaries, I guess.

For your EB-1 documentation, I used Yahoo! Movies for a list of their filmographies, awards and nominations.

Thank you again for your wonderful web page.

Sincerely,
Aimee Dizon, MD
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

“Once I thought to write a history of the immigrants in America. Then I discovered that the immigrants were American history.”

– Professor Oscar Handlin, Harvard Historian

Newsletter US Immigration Update November 2002 – Quick Links

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November 12, 2002

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.