Volume Ten, Number Nine

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 September 2005

TABLE OF CONTENTS:

• 1. EB Numbers: Grim Outlook for the Coming Year
• 2. Immigration Government Processing Times
• 3. Comprehensive Immigration Reform: What You Can Do
• 4. Immigration Success Story: Our First PERM Approval
• 5. Immigration Trivia Quiz: The New Recruits
• 6. Registered Nurses: Congress Giveth, CIS Taketh Away
• 7. H-1B Cap Reached for Some, but Not for Others
• 8. Schedule of Upcoming Immigration Law Seminars
• 9. Chat Schedule, Transcripts, Audios & Videos
• 10. Winner of the August 2005 Immigration Trivia Quiz

WE ARE MOVING TO LARGER OFFICES!

The Law Offices of Carl Shusterman are moving to larger quarters in late October. Our new address will be

600 Wilshire Boulevard
Suite 1550
Los Angeles, CA 90017

Our phone number (213) 623-4592, e-mail addresses and all other contact information will remain the same.

NEWS FLASHES:

• Best Lawyers in America– On August 24, I received a letter informing me that my colleagues had selected me as one of the “Best Lawyers in America” for 10 years or more. A big thanks to my fellow attorneys. Although, it is flattering to be chosen for such an honor, in truth, it is my excellent staff which makes the boss look good! I have posted the letter from “The Best Lawyers in America” on our web site at http://www.shusterman.com/pdf/bestatty06.pdf and added a link to it from my biography at http://www.shusterman.com/ourimmigrationattorneys/

• Business Immigration Newsletter– Periodically, the American Immigration Lawyers Association (AILA) publishes “Connect!” a newsletter devoted to business-related immigration developments.

• Canada/Mexico Entry Requirements Delayed – The Department of Homeland Security (DHS) has delayed its plans to require all persons who travel by air or sea from Canada, Mexico, the Caribbean, Bermuda and South and Central America to show a passport or one of four other secure documents by December 31, 2005. DHS will instead implement this requirement by December 31, 2006. Persons who arrived at land borders will not have to comply with these requirements until December 31, 2007.

• (New) CIS Director– President Bush has nominated Emilio T. Gonzalez to be the next Director of the CIS.

• Fee Increases for Certain Appeals and MTRs– On August 29, the CIS announced that, as of September 28, 2005, they will raise the $110 fees that they currently charge to persons who appeal their decisions to the Administrative Appeals Office (AAO) or who submit Motion to Reopen or Reconsider CIS or AAO decisions. The fees will rise to $385, a rather steep increase. Please note that these fee increases do not apply to appeals and MTRs submitted to the Board of Immigration Appeals (BIA) or to Immigration Judges (IJs) since both the BIA and the IJs are part of the Executive Office for Immigration Review, not the CIS.

• Litigation: Challenging BIA Decisions in Federal Court– “Why Are So Many People Challenging Board of Immigration Appeals Decisions in Federal Court? An Empirical Analysis of the Recent Surge in Petitions for Review”

• Supreme Court– For the first time in the Bush Presidency, there are vacancies on the Supreme Court. President Bush has nominated Judge John Roberts of the Federal Appeals Court for the District of Columbia to become the Chief Justice of the Supreme Court. The Senate is expect to take up his nomination on Thursday. What are Judge Robert’s views on immigration? We have posted a memo that he co-authored in 1982 when he was employed by the Department of Justice. In this memo, he criticizes the Supreme Court’s decision in Plyler vs. Doe in which the Court struck down as unconstitutional a Texas law which would have barred illegal aliens from attending public schools.On September 3, Chief Justice Rehnquist died of thyroid cancer. Judge Roberts formerly served as a law clerk for Justice Rehnquist. Rehnquist’s death and Justice Sandra Day O’Connor’s retirement create two vacancies on the Supreme Court for President Bush to fill, and allows him to reshape the Court by appointing justices who share his philosophy.

• Temporary Protected Status (TPS)– The DHS has announced the extension of TPS for certain nationals of Liberia, Burundi and Sudan residing in the U.S.

• Washington Update– Periodically, the American Immigration Lawyers Association (AILA) publishes its “Washington Update” which brings readers the most up-to-date news about legislation, regulations, congressional hearings and other immigration-related developments from inside the Beltway.

1. EB Numbers: Grim Outlook for the Coming Year

Things aren’t what they used to be when it comes to the ability of persons to obtain permanent residence through the employment-based (EB) preference categories. Unless Congress acts quickly to remedy the situation, the coming backlogs will be a virtual “Hurricane Katrina” to U.S. employers and their foreign-born employees.

Because the CIS was slow to grant applications for adjustment of status between 2001 and 2004, and because AC-21 (a law enacted in late 2000) provided for the recapture of over 200,000 lost EB visa numbers, all of the EB categories remained current (no backlogs) during those years.

Things started to change for the worse beginning on January 1, 2005 when the EB-3 category (professionals and skilled workers) suddenly backlogged for three years for persons born in India, China and the Philippines. By July 1, 2005 and continuing throughout the balance of the fiscal year (until September 30, 2005), it became impossible to obtain or to submit new applications for permanent residence in the EB-3 category for all persons (with the exception of registered nurses and physical therapists).

Also “unavailable” are EB-3 visa numbers for unskilled workers.

What is the outlook for persons wishing to immigrate through the EB-3, EB-2 (persons with advanced degrees and persons of exceptional ability) and EB-1 (priority workers) categories in the fiscal year which begins on October 1, 2005?

The State Department, in their September 2005 Visa Bulletin, predicts that there will be backlogs in the EB-3 category starting on October 1, 2005 for persons born in India, China, the Philippines and possibly Mexico. By December 2005, the worldwide EB-3 category will also backlog. This means that there will be a waiting list for green cards no matter where the applicant is born.

An I-485 cannot be submitted to the CIS until the applicant’s priority date is current. Fortunately, AC-21 allows applicants to extend their H-1B status if their EB visa category is backlogged. However, this benefit does not apply to persons in other nonimmigrant categories.

The State Department also predicts that no later than December 2005, the EB-1 and EB-2 categories for persons born in India and China will develop backlogs.

What happens to persons with pending I-485s? Fortunately, AC-21 again comes to the rescue. Not only may such persons continue to extend their H-1B status until their I-485s are adjudicated, but they may safely change jobs once their I-140s are approved and their I-485s have been pending for over 180 days as long as their employment is in the same or a similar occupation.

The State Department warns that “the level of demand in the Employment categories is expected to be far in excess of the annual limits, and once established, cut-off date movements are likely to be slow.”

Legislatively, Congress can soften the impact of the coming backlogs by passing legislation to recapture EB visa numbers lost during the 2001-2004 period, and to accommodate the needs of U.S. businesses. All of the visa numbers recaptured by AC-21 have been used.

The next year promises to be a challenging one for intending immigrants and their attorneys. Knowledgeable and experienced immigration attorneys can help expedite the process of obtaining permanent residence by considering the job skills of both spouses, by utilizing alternate chargeability and by recognizing that the EB categories are not mutually exclusive. A good example of the later is provided in our success story in Topic #4 below.

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. Comprehensive Immigration Reform: What You Can Do

Dear Mr. Shusterman,

In your August newsletter, you wrote about the immigration reform issue now being considered by Congress, and lessons learned (or not) from the past 20 years.

As you correctly noted, the solution to our immigration problems will not come from tripling, quadrupling, or quintupling our border patrol. This does not, and has not worked simply because there are jobs on our side of the border, and there are workers desperate to provide a better life for their kids on the other side.

You also correctly noted that, realistically, we must provide a path for undocumented workers already here to gain work permits and eventually the right to reside here permanently. It is not realistic to think that we will deport 11 million undocumented workers and their family members.

Another important lesson learned, however, is the need to create more opportunities for immigrant workers and family members to come here legally. Our visa quotas have not been updated for a decade and a half. We provide 5,000 permanent visas per year for lesser-skilled workers, even though the Department of Labor says a shortage of these workers is a growing problem. With almost no opportunity to come legally, it is really not hard to understand why so much migration happens today in the “black market.”

Immigrants coming here to join family members face the prospect of waiting several years or more. This, too, creates incentive to come here or stay here outside of legal channels.

If we have legalization without providing more visas for the future flow of immigrants, we will be periodically discussing the need for legalization programs, as more people continue to come here than can come here legally.

The Secure America and Orderly Immigration Act (also known as the “Kennedy/McCain bill”) provides the most comprehensive overhaul of our immigration laws that has been introduced so far with bi-partisan sponsorship. This legislation provides a path to permanent residence for the undocumented; increases the number of worker and family visas to be allotted annually, so that the immigration that is occurring will do so within legal channels; and provides for a temporary worker program so that those who do not want to do so may travel back and forth across the border legally.

Will this legislation, or something like it, pass anytime soon? That will depend, in part, on people like your readers weighing in on this important subject. Right now, the “seal the borders” crowd is making their voice heard loud and clear in Washington. They are being stirred up by anti-immigrant groups and radio and television talk show hosts who have come to realize that stirring people’s passions on immigration is good for their ratings. In this climate, it is very difficult for reasonable and thoughtful members of Congress to address the issue in a realistic way that might actually work.

But the climate can be changed. Congress has got to hear from our side- including the readers of your newsletter. No matter what you think of any bill now being considered, Congress must hear from “the better angels of our nature.” Americans (and future Americans) have to let Congress know that constituents want to see a realistic solution to our broken immigration system that will treat immigrants fairly. Advocates from around the country have agreed to a set of principles for immigration reform, which you can find on the Web site of the Coalition for Comprehensive Immigration Reform.

Those principles are an excellent place to start for writing your own letter. You can get plenty more ideas from the National Immigration Forum’s Web site at:

http://www.immigrationforum.org

Another idea: write about your own experience with immigration or immigrants.

The bottom line is that Congress must hear from a lot more pro-immigrant voices. Once they do, those few Senators and Representatives who have taken a lead on this issue will be joined by their colleagues, and we may see comprehensive reform passed by Congress sooner rather than later.

Maurice Belanger
Director of Public Information
National Immigration Forum

4. Immigration Success Story: Our First PERM Approval

A few weeks ago, when we submitted our first online PERM application, we promised our readers that we would report, in 60 days, on the progress of this application whatever the result. We are very pleased to report this first application was approved by the U.S. Department of Labor in just two weeks. Here is the story:

Mr. G., a Russian national, is a top software developer whose work in digital law-enforcement technology holds great potential for the future of homeland security. Recently, however, it was Mr. G. who began feeling insecure about his own immigration future – working in a volatile industry, he was quickly approaching his 6-year limit in H-1B status. For his own sake and that of his family, it had become urgent that Mr. G. set in motion the process toward permanent residency.

Mr. G. and his Tennessee-based employer contacted us regarding this pressing matter. The obvious move was to file a Reduction in Recruitment (RIR) Labor Certification application with the Department of Labor as soon as possible, in order to allow Mr. G. to file for additional one-year extensions of his H-1B status past the six-year limit (a provision available to H-1B nonimmigrant visa holders whose RIR Labor Certification applications have been pending for over 365 days).

Trouble arose, however, when backlogs began forming in the EB-3 immigrant visa category to which Mr. G. belonged at the time. Even upon approval of his RIR Labor Certification, he might still have to wait indefinitely for his visa category to become available, placing his career at continued risk due to the volatility of his industry. It was again urgent that Mr. G. (whose position requires considerable education) qualify under a different immigrant visa category so that he would be able to apply to adjust his status to permanent resident immediately upon approval of his Labor Certification.

At first, it appeared Mr. G. was in luck: his original RIR Labor Certification sponsor had been acquired by another company located in North Carolina, offering Mr. G. another opportunity to have his position certified with the Department of Labor and therefore allowing him a chance to qualify for the EB-2 immigrant visa category, which is current.

Complicating matters, however, the Labor Certification process itself was in the midst of changing. The Department of Labor had scrapped both its Regular and RIR forms of Labor Certification in favor of its new, mysterious PERM program, a change whose ramifications remained thoroughly unclear. Would the PERM process prove quicker than the RIR Labor Certification process, which had backlogs of up to three years in some areas?

There was only one way to find out: to give the new PERM system a test run. While allowing Mr. G.’s original RIR application to pend with the Department of Labor and thereby allow him to continue extending his H-1B nonimmigrant status in one-year increments, we filed a PERM application on his behalf sponsored by his new employer in North Carolina. By stressing in our PERM application the high-level of qualifications required to assume Mr. G.’s position, we managed to transfer Mr. G. into the EB-2 visa category and thus avoid backlogs in his impending immigrant visa application.

The result? In only two weeks, Mr. G.’s PERM application was approved. Mr. G. may now apply for his green card in the EB-2 category without any delay due to immigrant visa backlogs. So skilled at developing software to aid in our national security, Mr. G. can himself now rest assured, knowing that he can become a permanent resident here without the fear of falling out of status due to an unpredictable job market or having to wait forever for his priority date to become current.

5. Immigration Trivia Quiz:

Quiz Removed.

6. Registered Nurses: Congress Giveth, CIS Taketh Away

As we reported in the June 2005 issue of SHUSTERMAN’S IMMIGRATION UPDATE, on May 11, 2005, President Bush signed legislation recapturing 50,000 immigrant visas for persons employed in Schedule A occupations, primarily registered nurses and physical therapists. See

http://www.shusterman.com/newsletterusimmigrationjune2005.html#1

The CIS and the State Department began accepting applications from RNs, PTs and their spouses and children beginning on July 1, 2005.

Ironically, various government agencies including the CIS have, during the past few months, implemented policies which have thwarted Congress’ intent to increase the number of foreign-born nurses who may obtain permanent residence in the U.S.

• DOL – Even before the bill was signed into law, the Labor Department’s (DOL’s) PERM regulations went into effect. While, in the past, it was acceptable to submit wage surveys for RNs issued by DOL’s Bureau of Labor Statistics’ Occupational Employment Statistics, the PERM regulations mandate that before submitting an immigration visa petition on behalf of an RN, an employer must obtain a Prevailing Wage Determination from the State Workforce Agency (SWA) in the state of intended employment. This is true even where the prevailing wage is determined by a collective bargaining agreement. In states like California, where the process of obtaining the prevailing wage from the SWA can take two months or more, this new requirement imposes a significant delay on employers seeking to immigrate foreign-born nurses. Once the prevailing wage is obtained from the SWA, and a notice is posted for ten business days, the employer is prohibited from submitting an I-140 visa petition for a minimum of 30 days. PERM may expedite the usual labor certification process, but for Schedule A occupations, it imposes significant, and in our view, unnecessary delays. This is particularly troublesome given that RNs and PTs are both classified by the DOL as “shortage occupations”.

• CIS– The CIS has adopted a wide variety of policies which have resulted in delaying or denying permanent residence for RNs. On June 15, the CIS issued a memorandum which seeks to implement the new DOL PERM regulations, but which has resulted in some immigrant visa petitions and applications for adjustment of status being denied. We have posted the June 15 memo online at

  http://www.shusterman.com/pdf/yatesusimmigratinmemo61505.pdf

  The CIS memo mandates that employer Schedule A posting notices contain the name and address of the appropriate CIS Service Center Director. The DOL PERM regulations contain no such requirement. Nevertheless, at least one Service Center has denied petitions/applications where the posting notice does not comply with this “requirement”.

Also, the CIS has discovered that it granted some applications for adjustment of status in error in 2003 and 2004. The agency mistakenly granted permanent residence to some RNs without requesting VisaScreen Certificates from them. Given that this error was committed by the CIS, one would think that the government would give such nurses a reasonable period of time to obtain VisaScreen Certificates. Instead, the agency is issuing Notices of Intent to Rescind their permanent residence one year after catching their own mistake, and giving the affected RNs a mere 30 days to respond. Someone at the CIS, tell nurses how to obtain VisaScreen Certificates in 30 days, please!

Of course, RNs who receive such a notice could simply resubmit I-485s/I-765s/I- 131 under section 245(k) of the Immigration and Nationality Act, couldn’t they? Section 245(k) was added to the law in 1997 to enable most persons seeking permanent residence based on employment-based petitions despite being out-of- status or having engaged in unlawful employment for less than 180 days since their most recent admission to the U.S. to adjust their status in the U.S. However, under CIS’ new, and highly restrictive, interpretation of section 245(k), submitting an application for adjustment of status does not confer “status” on a person even though the applicant is permitted to apply for a work permit and, usually, a travel permit. See

http://www.shusterman.com/pdf/245kdenialimmigration2005.pdf

Of course, the applicant has no control over how long their I-485 remains pending at a CIS Service Center. Since 1995, we have yet to see the agency adjudicate I-485s in 180 days or less. Under the new CIS interpretation of section 245(k) which, to our knowledge, has not been published in a decision, regulation or memorandum, an RN’s chance to reapply for adjustment of status under section 245(k) is defeated in every instance by agency inaction.

Although Congress and the President may have opened the door for ten of thousands of needed registered nurses and physical therapists, the CIS and its sister agencies seem to be intent on making this process as difficult as possible by changing the rules in the middle of the game.

Unless these agencies do a quick about face, many RNs and PTs will be forced to return to their home countries. Some matters, like the CIS’ new 245(k) policy may ultimately have to be resolved through litigation, especially since 245(k) is applicable to all EB-1, EB-2 and EB-3 adjustment applications.

7. H-1B Cap Reached – What You Can Do Now

On August 12, the CIS announced that H-1B cap of 65,000 for fiscal year 2006 (October 1, 2005 to September 30, 2006) had been reached. We link to the CIS Press Release entitled “USCIS Reaches H-1B Cap” from our “H-1B Page” at

http://www.shusterman.com/h1bvisaguide.html#3

This link also allows you to view the handy chart on the CIS web site that tracks the numbers of H-1B and H-2B petitions subject to the cap which have been approved or are still pending. Unfortunately, this chart has not been updated by the CIS since August 5, 2005.

What strategies can employers and employees utilize now that the H-1B cap has been reached?

A good starting point is to read an article that we wrote last year when the H-1B cap was reached on October 1, 2005 entitled “H-1B Cap Reached: Strategies for Survival” at

http://www.shusterman.com/newsletterusimmigrationoctober2004.html#3

Be sure not to forget that persons in H-1B status who are seeking extensions of stay or changing employers are generally exempt from the cap. So are persons whose employers are university-affiliated or university-related nonprofit institutions, or government or non-profit research institutions.

During the past year, Congress has created two significant new exemptions from the H-1B cap:

First, the H-1B Reform Act of 2004 provides for a second H-1B cap of 20,000 for persons who hold advanced degrees from U.S. institutions of higher learning. The 20,000 caps for both fiscal years 2005 and 2006 are nowhere near being reached. An important point to remember is that the minimum entry requirement for the job being offered need only be a Bachelors degree. For example, let’s suppose that the candidate has a Bachelors degree in his own country which has been determined to be equivalent to a Bachelors degree from a U.S. university. The candidate also has achieved a Masters degree in the U.S. The job offer requires only a Bachelors degree. May the candidate obtain H-1B status despite the fact that the 65,000 numerical cap has been reached? The answer is yes since the person falls under the 20,000 cap despite the fact that the job does not require an advanced degree. To read a FAQ regarding the H-1B Reform Act of 2004, see

http://www.shusterman.com/handllaw2004faq.html

Second, with regard to physicians who have obtained interested government agency waivers of their J status, another new law provides that they are exempt from either of the H-1B caps. We link to the complete text of this law from our “Physicians” page at

http://www.shusterman.com/physiciansusimmigration.html#12

It is also worth noting that persons who have already been counted against the cap during the previous six years are exempt, unless they would be eligible for a full six years of authorized admission at the time the petition is filed. For example, if a person was admitted to the U.S. in H-1B status, subject to the cap, two years ago and then changes status to that of an F-1 student in order to further his education, he may change back to H-1B even if he failed to achieve an advanced degree. Same result if the person departed the U.S. before finishing his full six years in H-1B status if he has not remained outside the U.S. for one year or more.

With the H-1B cap reached so early, and with EB numbers set to backlog even further in the next few months, it is important to briefly review the rules regarding who can obtain extensions of their H-1B status for more than six years.

The starting point is the “American Competitiveness in the 21st Century Act of 2000” more commonly known as “AC-21”.

AC-21, Section 106(a) and a subsequent amendment to the law allows persons to extend their H-1B status in excess of six years where either their labor certification or their I-140 was pending for one year or more. This is true even if the person is no longer working for the employer who submitted the long-pending labor certification or I-140.

May persons obtain post-6th year H-1B extensions when they are prevented from obtaining permanent residence because of per-country limitations? Section 104(c) of AC-21 answers this question in the affirmative.

To read the complete text of AC-21, a section-by-section analysis and FAQs about the law, see our “H-1B Page” at

http://www.shusterman.com/h1bvisaguide.html#1

8. Schedule of Upcoming Immigration Law Seminars

• September 15
  Los Angeles, California
  8:30 – 9:30am
  Topic: Introduction to Immigrant Visas
  Los Angeles County Bar Association, Immigrant Legal Assistance Project

• September 15
  Audio Conference: Kennedy Information
  10:00 – 11:30am (PT)
  Topic: Recruiting the Foreign-Born Healthcare Candidate: New Legislation and Strategies

• September 23
  San Antonio, Texas
  Topic: Immigration Research on the Internet
  University of Texas School of Law
  Co-Panelist: Eugene Flynn

• October 11
  Disney’s Contemporary Resort
  3:30 – 4:30pm
  Orlando, FL
  Topic – Immigration and Foreign Nurses Breakout Session 324
  Nursing Management Congress 2005

• November 17
  San Francisco, California
  9:00 – 10:00am
  Topic – Return to the Virtual Border: Update from the Department of State and the Department of Homeland Security
  Practising Law Institute’s 38th Annual Immigration and Naturalization Institute

9. Chat Schedule, Transcripts, Audios & Videos

Deleted

10. Winner of our August 2005 Immigration Trivia Quiz

Quiz Removed.

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)

Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550, Los Angeles, California 90017, Phone: (213) 623-4592 Fax: (213) 623-3720

September 5, 2005

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