Volume Eleven, Number Eight

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 October 2006

TABLE OF CONTENTS:

1. Congress Votes to Build a Fence along the Mexican Border
2. Retrogression Expected to Get Worse Before It Gets Better
3. Cabreras: Will They Be Able to Stop the Removal Machine?
4. Success Story: Rules of Engagement
5. Immigration Trivia Quiz: Ghosts, Goblins and Ghouls and Green Cards
6. Immigration Government Processing Times
7. Rajasthan: A Fascinating Conclusion to our Indian Adventure
8. Schedule of Upcoming Immigration Law Seminars
9. Chat Schedule, Transcripts, Audios & Videos
10. Winner of the September 2006 Immigration Trivia Quiz

NEWS FLASHES:

• Best Lawyers in America– I am honored to have been selected by my fellow attorneys as one of “The Best Lawyers in America” for over ten consecutive years. A list of all the Best Lawyers in America appears in the Washington Post Magazine today, and will be featured in the Los Angeles Times Magazine on November 12. Find out whether your attorney made the list. See

  http://www.shusterman.com/pdf/bestatty07.pdf

• Habeas Corpus– The Constitution of the United States, Article I, provides that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” On September 28, the Senate voted 51-48 against an amendment proposed by Senator Arlen Specter (R-PA) to the Military Commissions Act which would have preserved the right of habeas corpus. The suspension of the writ of habeas corpus has already been approved by the House of Representatives. The President has announced that he will sign this bill. But is it constitutional? The Center for Constitutional Rights thinks not, and has promised to sue in Federal Court to uphold this important constitutional right. See

  http://www.ccr-ny.org/v2/reports/report.asp?ObjID=3in4Yl9iUG&Content=848 (Link no longer operational)

• International Religious Freedom Report– On September 15, the Department of State released its 2006 Annual Report on International Religious Freedom. The 197 countries and area reports survey the government and societal treatment of all known religious groups, and discuss U.S. Government efforts to promote religious freedom in each country. We have posted a link to the report from our “Asylum” page at

  http://www.shusterman.com/asylumusimmigration/#2

• Lottery– On September 20, the State Department announced the rules for the DV-2008 Green Card Lottery. For the third year in a row, the lottery will be strictly an online affair. Applications will be accepted starting at noon, October 4, EDT and ending at noon, December 3, EST. We link to the rules from our “Lottery” page at

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

• Naturalization– On September 15, the CIS announced the elimination of the naturalization backlog. Average processing times between submission of the application and the swearing in ceremony have fallen from 14 months in 2004 to 5 months today according to the agency. See

  http://www.uscis.gov/graphics/publicaffairs/newsrels/N400Bklg091506NR.pdf (Link no longer operational)

  Of course, if 120 days pass after your naturalization interview, and you have yet to be sworn in, you have the right to sue the CIS in Federal Court, something that we have done on numerous occasions with a high degree of success. See

  http://www.shusterman.com/newsletterusimmigrationfebruary2006.html#4

• Ports of Entry and Port Director Contact Information– Customs and Border Protection (CBP) officers are present at 317 ports of entry in the U.S. and 14 pre-clearance offices in Canada and the Caribbean. We link to a list of Ports of Entry, Port Directors and their contact information from the CBP section of our “DHS” page at

  http://www.shusterman.com/departmentofhomelandsecurity.html#4

• Premium Processing– On September 22, the CIS announced that Premium Processing would be expanded, on September 25, to the following categories of I-140s: (1) EB-1 Outstanding Professors and Researchers; (2) EB-2 members of the professions with advanced degrees or exceptional ability not seeking national interest waivers; and (3) EB-3 unskilled workers.

  For more information, see our “Premium Processing” page at

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

• Temporary Protected Status (TPS) for Certain Nationals of Burundi and Liberia– On September 14, the DHS announced that it was extending TPS for certain nationals of Burundi from November 2, 2006 to November 2, 2007. We link to the DHS Press Release at

  http://www.uscis.gov/graphics/publicaffairs/newsrels/BurundiTPS091406PR.pdf (Link no longer operational)

  and the DHS FAQ at

  http://www.uscis.gov/graphics/publicaffairs/questsans/BurundiTPS091406QA.pdf (Link no longer operational)

  On September 18, the DHS announced that it would terminate TPS status for Liberians effective October 1, 2007. See

  http://www.uscis.gov/graphics/publicaffairs/newsrels/LiberiaTPS_091806PR.pdf (Link no longer operational)

• USCIS Today– We link to the most recent issue of “USCIS Today”, CIS newsletter, from our “CIS” page at

  http://www.shusterman.com/uscitizenshipandimmigrationservices.html#2A

• Visa Bulletin– To view the October 2006 Visa Bulletin, see our “Visa Bulletin” page at

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

1. Congress Votes to Build a Fence along the Mexican Border

On September 29, just prior to adjourning to campaign in the mid-term elections, Congress voted to build a 700-mile fence along the border of the U.S. and Mexico.

Sadly, at the last minute, the Senate went along with the House of Representatives which had been touting an “enforcement-only” immigration policy all summer long.

While this may be a terrific election strategy, building a 700-mile fence along a 2000+ mile border will do little or nothing to stem the flow of illegal immigrants entering the U.S. “You don’t have to be a law enforcement or engineering expert to know that a 700-mile fence on a 2,000-mile border makes no sense,” said Senator Richard J. Durbin (D-Ill).

Immigrants heading north from Mexico or Central America will continue to flow into the U.S. since 1,300 miles of the border will not have a fence. Previous efforts to curtail illegal immigration by fortifying the border near San Diego, California and El Paso, Texas simply resulted in persons crossing the border into Arizona. This resulted in hundreds of deaths because of failed attempts to cross the border in a desert region, but no decrease in illegal border crossings.

Congress appropriated $1.2 billion to start construction of the border fence, $380 million to hire 1,500 more border patrol agents and enough money to add another 6,700 detention beds. Will this money ever be spent? A couple of years ago, Congress voted to raise the number of border patrol agents by 2,000, but the Administration only appropriated enough funds to pay the salaries of 200 officers. With the country drowning in red ink, we predict that no fence will be built during this Administration. But what a great campaign issue for the November elections!

Furthermore, a fence will not have any effect upon the 40% of illegal immigrants who arrive with temporary visas and “forget” to go home. And the “fence” does not address what to do about the 12 million undocumented workers already present in the U.S. nor does it solve our nation’s chronic shortage of scientists, IT professionals, nurses, therapists, teachers, etc. Don’t even mention porous U.S.-Canadian border where only a tiny number of border patrol agents are stationed.

Reaction from dissenting Senators on both sides of the aisle was swift and harsh.

Liberal Senator Edward Kennedy (D-MASS) stated: “It’s a feel-good plan that will have little effect in the real world. We all know what this is about. It may be good politics, but its bad immigration policy. That’s not what Americans want.”

Conservative Republicans like Senator Larry Craig (R-ID) were equally frustrated over Congress’ failure to address the need for farm workers: “Pickers are few and the growers blame Congress,” Craig said, reading a news headline. “The growers ought to blame Congress. They ought to blame a government that has been dysfunctional in an area of immigration that has been a problem for decades.”

2. Retrogression Expected to Get Worse Before It Gets Better

As recently as December 2004, all employment-based (EB) categories for permanent residence were “current”. That is, there were no backlogs.

That all started to change in January 2005 when the EB-3 category (professionals and skilled workers) backlogged three years. These backlogs are referred to as the “retrogression”.

The retrogression has gradually gotten worse during the past 21 months. The October 2006 State Department Visa Bulletin reveals that the EB-3 category has now retrogressed almost 4 1/2 years. The backlogs are even greater for persons born in India and Mexico. Even the EB-2 category for advanced-degreed professionals has backlogged for persons born in India and China. See

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

In the absence of congressional action, the retrogression will get worse, probably a lot worse, before it gets better. Why?

In May 2005, President Bush, recognizing the tremendous shortage of nurses and therapists, signed a bill which “recaptured” 50,000 immigrant visas for Schedule A professionals, primarily registered nurses, physical therapists and their family members. By the end of this month, all 50,000 visas will be used up. What will happen to RNs and PTs who are still in line for green cards and those who will apply for permanent residence in the future? They will be added to the EB-3 backlog which will result in increased waiting times, perhaps to five years or more.

The total number of persons who are permitted to obtain permanent residence each year in the employment-based categories is only 140,000. Adding another 30,000 – 50,000 to the current backlogs will certainly make the retrogression more severe.

Even more problematic are the 300,000+ applications for labor certification currently pending in the Labor Department’s (DOL’s) Backlog Elimination Centers. DOL has pledged to take action on each of these applications within the next 18 months. Even if only 200,000 of these applications are ultimately approved, if 50% of the applicants have a spouse and one child, the number of green cards needed to accommodate them would total 300,000. This is more than double the annual cap on EB green cards. Therefore, this has the potential to make the EB-2 and EB-3 numbers regress another two years.

Finally, present laws contain hard per-country caps. This means that countries like India and China which have populations of over one billion persons each have exactly the same quotas as Monaco and Mauritius, two tiny countries which supply the U.S. with virtually no immigrants. Given that most H-1B professionals are born in India and China, the per-country quotas will exaggerate the retrogression for persons born in these countries.

If high-skilled immigrants could only come to U.S. or remain in their own countries, our country could afford to continue this backward, “Let them eat Chicken McNuggets!” approach. But various European countries, Canada, Australia, New Zealand and the Persian Gulf countries are all competing for these talented individuals. Even Germany, the great bastion for engineers is seeing the number of German students studying engineering fall precipitously.

It is in our national interest to make our country the principal destination for computer professionals and scientists, for nurses, teachers and therapists, and for businessmen and physicians from all over the world.

The Senate immigration bill (S.2611) would have greatly expanded both the outdated employment and family-based immigration systems and eased the per-country limitations. Unfortunately, House Republicans, worried that they might lose their majority in the mid-term elections, refused to negotiate a compromise bill with the Senate.

Perhaps, in the “lame duck” session of Congress which will occur after the November elections, reason will prevail and Congress will pass amendments to fix our legal immigration system.

But just in case, be sure to keep the heat on members of Congress, and perhaps, they will see the light.

Use CapWiz to e-mail your representatives. You can find CapWiz at the bottom of our homepage at

http://www.shusterman.com

by entering your zip code in the icon entitled “Write to Congress” and clicking the “Go” button.

As one of our founding fathers famously stated: “We must all hang together or surely we will hang separately!”

3. Cabreras: Will They Be Able to Stop the Removal Machine?

Sometimes you have to see an Immigration Judge to get a green card. However, as a former INS Trial Attorney, I compare this to swinging on a trapeze without a net below. If something goes wrong, you could be done for.

We have written about the Cabreras before. Benjamin Cabrera, born in Mexico, has lived in the U.S. over 22 years, since he was just 16 years old. His wife, Londy Hidalgo, arrived here in 1988 when she was 18. Their daughters, 14 and 12 years old, are honor students and U.S. citizens. Three of the Cabreras’ parents are lawful permanent residents in their 60s with health problems. Most of their many brothers and sisters, nieces and nephews are U.S. citizens.

In 2002, an Immigration Judge granted the Cabreras permanent residence through a process called Cancellation of Removal. However, the government attorney appealed, and a panel of the Board of Immigration Appeals reversed the Judge. We challenged the Board’s decision in Federal Court and won. Now, the case comes before the Judge again on October 5.

The Cabrera case has been extensively covered in the press. Both Senator Diane Feinstein and Congresswoman Lucile Roybal-Allard have introduced private bills in Congress to grant the Cabreras green cards.

The hardship in the Cabrera case is much stronger than it was when the Immigration Judge first granted their case in 2002. If the Immigration Judge again grants the Cabreras’ application for Cancellation of Removal, his decision will be final unless the government attorney again appeals the Judge’s decision.

Given the strength of this case, this would seem to be unlikely. However, in Los Angeles, the government automatically appeals the Judge’s decision in Cancellation cases no matter how strong the case is. This should not be the case as most of the government’s attorneys are excellent and experienced advocates, not automatons. See the next topic for an example of a recent case in Los Angeles where the Immigration Judge granted Cancellation of Removal and the government attorney did not appeal.

4. Success Story: Rules of Engagement

It took one full year for Mrs. B from India to receive her nonimmigrant K-1 visa (for fiancées of U.S. citizens), but shortly after she arrived in the United States her fiancé changed his mind and decided not to marry her. Broken-hearted and ashamed of her rejection, she was introduced to an Indian man who was a lawful US permanent resident. The couple began spending time together, eventually fell in love and married. They retained an attorney to prepare an immigrant visa petition and application for adjustment of status to file with the Immigration Service. However, the attorney overlooked the fact that Mrs. B would be ineligible to receive her green card through her husband because she had not married her original K-1 petitioner.

The couple was blissfully unaware that their case was not approvable, and was excited on the day of their interview with the Immigration Service. The interview went well, and the officer gave his tentative verbal approval. There were just a few minor details to be sorted out before Mrs. B would be granted status as a US permanent resident. After celebrating that evening, they were stunned to receive a call from the officer the next day. “I’m sorry,” he said, “Mrs. B cannot receive a green card because she entered on a K-1 visa, and did not marry her original petitioner.”

Devastated, husband and wife sought new legal representation. Their new attorney confirmed that Mrs. B was indeed ineligible to receive a green card through her husband in the United States even though he was now a U.S. citizen. She would need to be processed for an immigrant visa at a consulate in her home country. It was then that the couple learned that because Mrs. B had more than 1 year of “unlawful presence” in the U.S., if she departed she would be barred from returning for a period of ten years. Their new attorney informed them that Mrs. B would need to obtain a waiver of this bar before returning as a US permanent resident. To make matters worse, processing of the waiver could take anywhere from 1 – 2 years. Mrs. B would need to remain in India, separated from her husband, while her waiver application was processed. And there were no guarantees that the waiver would be granted.

Worried that his wife would have to return to India with an uncertain return status, the forlorn couple continued searching for help. After stumbling upon our web site one day, the husband called to schedule a consultation. We informed them that there was another option available although it too presented a fair amount of risk. If Mrs. B could prove to an Immigration Judge that her deportation would pose an “exceptional and extremely unusual hardship” to her husband, she could be granted a green card through “cancellation of removal.”

It was an agonizing decision, but the couple decided to go forward. Together, our office and the couple prepared hundreds of pages of exhibits to prove that leaving the U.S. for India would result in an exceptional and extremely unusual hardship to Mr. B for several reasons. First, the couple owned a successful small business together and the wife was instrumental in its daily operation. If she were to leave, the business would be jeopardized, and the jobs of dozens of employees would be at risk. Second, the stress to her husband would be exacerbated by the fact that he also cares for his elderly permanent resident parents who lived with the couple and depended upon them for their basic living needs. Moreover, the couple’s first child was less than one year old. Mrs. B’s deportation would result in either a prolonged separation of Mr. B from his baby daughter, or would require him to raise his daughter alone for many years.

During the hearing before the Immigration Judge, we highlighted these and many other significant factors which we believed were “unique” and “exceptional.” We presented testimony of the couple, their relatives and an expert witness. Even though the law permits 4,000 non-permanent residents to obtain a cancellation of removal each fiscal year, only about 1,300 cases a year are approved because of the difficulty of meeting the hardship standard. Despite the odds, the judge approved Mrs. B’s application for cancellation of removal and she received a green card a short while later.

Read more of our Immigration Success Stories.

5. Immigration Trivia Quiz: Ghosts, Goblins, Ghouls and Green Cards

Quiz Removed

6. 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…

7. Rajasthan: A Fascinating Conclusion to our Indian Adventure

In New Delhi, we boarded a luxury train known as the “Palace on Wheels” for an exciting seven-day adventure in the Indian state of Rajasthan. See

http://en.wikipedia.org/wiki/Rajasthan

We looked forward to exploring one of the most historical and fascinating parts of the world. We would visit palaces, forts and wild game preserves. We would be transported to a new location each night, and in the morning, we would ride elephants and camels, see forts and palaces and, perhaps, tigers and crocodiles. We would also have the chance to purchase exquisite carpets and jewelry. I secretly hoped that my wife would not get carried away.

We boarded the train, and greeted our fellow passengers, most of whom were Indian-born physicians and their families who had immigrated to the U.S.; there was also a British-American couple and two sisters from Kenya.

We talked excitedly about our plans for the first day with our new-found friends. We were to travel all night and wake up in Jaipur, the “Pink City”, the capital of Rajasthan. This well-planned city was painted pink in 1876 to welcome the Prince of Wales. In 1900, it had a population of 160,000. Today, it is inhabited by over two and one-half million people. On our arrival, we were supposed to be transported by elephants to the famous Amber Fort, with its mixture of Hindu and Muslim architecture and its fabulous view of an artificial lake far below.

I had enjoyed delicious meals in Mumbai, Goa and New Delhi without the slightest trace of an upset stomach. However, our final lunch in Delhi, eaten a couple of hours before boarding the Palace on Wheels, did me in completely. It is lucky that the compartments on the train were fairly small, because despite the Imodium that my wife spoon-fed me, I made no fewer than a dozen trips to the restroom that night as our train headed slowly towards Jaipur.

After an entire evening of “Toilet Tango”, I felt completely drained. In the morning, as I munched on a piece of dry toast, I informed my fellow passengers that I would be staying on the train to rest for the day because of a “little stomach problem.”

Then, I reached for the antibiotic ciprofloxin which I had brought along for just such an eventuality. I swallowed my first pill with my tea, and a few minutes later, I felt like a new person. Instantly, I understood how the term “miracle drugs” originated. Less than an hour later, my wife and I mounted a baby elephant and headed uphill toward the Amber Fort.

The rest of the trip was uphill as well. Our train left Jaipur that evening and crossed the Thar Desert to Jaisalmer, near the border of India and Pakistan. The streets were lively. Children as young as seven and eight years of age formed a band and performed for rupees for the tourists. See

images/theband.jpg

We rode camels across the sand dunes and watched the setting sun. I felt like Lawrence of Arabia. That evening, we watched local dancers and musicians perform as we ate outside next to fireplaces. Some of our friends from the train joined the dancing.

Our next stop was in Jodhpur, the “blue” city. See one of my photographs of Jodhpur taken from the imposing Mehrangarh Fort

images/bluecity.jpg (This link is no longer operational.)
Our tour continued through the wildlife sanctuary at Sawai Madhopur where we, unfortunately, were unable to see any of its famed tigers. However, at the Chittaurgarh Fort, we saw dozens of monkeys, none of whom seemed to mind me taking their pictures, especially this long- tailed fellow as he gulped down some water

images/monkey.jpg

Next came Udaipur where we took boats to the fabulous Lake Palace for a sumptuous lunch.

The following day, we awoke in the wee hours of the morning, and wrapped ourselves in blankets as we toured the bird sanctuary at the Keoladeo Ghana National Park in Bharatpur where we saw kingfishers, egrets and Siberian Cranes.

The week ended in Agra, home to the Red Fort and the fabulous Taj Mahal, one of the Seven Wonders of the World. The Taj Mahal was constructed by more than 20,000 workers over a 20-year period in the early 17th Century, just after the Pilgrims landed on Plymouth Rock tens of thousands of miles on the other side of the world. It was built under the direction of the Muslim Mughal Emperor Shah Jahan for his favorite wife after her death so that he could be buried next to her for all eternity.

My wife and I say that our trips to other parts of the U.S. and Europe were vacations, but that our visit to India was truly an “adventure”.

8. Schedule of Upcoming Immigration Law Seminars

• • October 9

Los Angeles, California
National Business Institute Immigration and Employment: Legal Aspects of Hiring Foreign Workers
My Topics:
A) Nonimmigrant Visas
B) Immigrant Visas

• • October 15 – 17

Nashville, Tennessee
American Society for Healthcare Human Resources Administration (ASHHRA)
42th Annual Conference and Exposition

• • November 2 – 4

Monterey, California
American Immigration Lawyers Association
19th Annual AILA California Chapters Conference
My Topic: Litigation

• • February 13, 2007

Los Angeles, California
Southern California Association of Health Care Recruiters
Topic: Immigration of Nurses and Allied Health Professionals

9. Chat Schedule, Transcripts, Audios & Videos

Deleted

10. Winner of our September 2006 Immigration Trivia Quiz

Quiz Removed

Dear Mr. Shusterman,

My name is Kris Kaszuba and I am an immigrant with a TN Visa from Vancouver, BC Canada. We live in San Diego, CA and my occupation is an Urban Planner.

Other special interests include small business, archaeology, travel and scuba diving.

To tell you how I solved the quiz: I used Google.com to help me out.

I have been a subscriber to your newsletter for 6 months and I use the newsletter/website to obtain updates on immigration visas and to find out if I can possibly get derivative US citizenship from my grandfather.

Quiz Answers:

1) First and last name: Apu Nahasapeemapetilon
2) Occupation: The Hindu Kwik-E-Mart Owner
3) 23rd episode of the 7th season
4) Subject of Springfield’s protest: Immigration; Proposition
24 which will deport all illegal immigrants
5) Name of this episode: “Much Apu About Nothing”

Thanks . . . I hope I win.

Kris Kaszuba
Congratulations, Kris!

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

“Even more embarrassing is Tom Tancredo and his hot, hateful rhetoric against immigrants. Such demagoguery feeds the worst instincts of nativists and blocks a serious solution to our nation’s border security problems. Reagan, conversely, understood that America is a country of immigrants…”

– Dick Armey, Republican House Majority Leader (1995-2002)

 

Newsletter US Immigration Update October 2006 – Quick Links

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October 1, 2006