The Immigration Service (CIS) lists its processing times for immigration petitions and applications on their web site.

Most immigration applications and petitions must be submitted to one of the following USCIS Service Centers: (1) Laguna Niguel, California; (2) Lincoln, Nebraska; (3) Mesquite, Texas; and (4) St. Albans, Vermont and (5) the National Benefits Center in Missouri.

These service centers periodically issue lists of their processing times for various types of petitions and applications. We link to the latest list issued by each service center.

Warning: Processing times may appear faster on the official lists than they are in reality.

To see how fast (or slow) your service center is processing a particular type of petition or application, see our Government Processing Times Page at

The AAO's most recent published processing times (August 25, 2005) may be found at

To check the Official Processing Times of your Department of Labor Regional Office and your State Workforce Agency (SWA), see

The State Department web site contains a "Visa Wait List" page which permits readers to choose a particular U.S. consular post and learn how long it takes the post to process temporary, nonimmigrant visas. See

3. Physicians: Oral Argument before Federal Appeals Court (12/5/05)

On December 5, the U.S. Court of Appeals for the 9th Circuit has scheduled oral arguments in which I will participate. The panel which will hear the case consists of three excellent judges: Pregerson, Noonan and Thomas.

Among the many portions of the regulation which we are challenging are the following:

1. The law provides that NIWs will be available to "all" alien physicians who comply with the law. The INS regulations limit the benefits of the law to primary care physicians, and deny benefits to specialists practicing in underserved areas.

2. The law provides that physicians must agree to practice in underserved areas for an "aggregate of five years". The regulations establish various start dates designating when the five years begins to accrue. For example, if a physician receives a J waiver, the five years starts when the physician changes status from J to H-1B. Any time that the physician practices in an underserved area prior to the J waiver being granted (e.g., in O-1 status) is not counted. Physicians who have completed their medical residencies and/or fellowships in H-1B status are particularly disfavored. Their five- year medical service requirement does not begin until they have submitted their NIW petitions, and the petitions have been approved by the CIS.

3. The law provides that physicians who were beneficiaries of NIW petitions submitted to the CIS prior to November 1, 1998 are required to complete three (rather than five) years of practice in a medically underserved area. The regulations, however, limit this benefit to physicians whose NIW petitions were still pending on November 12, 1999, the date on which the law was enacted.

Scheduling oral arguments usually means that the Court believes that there are serious legal questions raised by the lawsuit. Assuming that this is true here, we certainly agree with the Federal Appeals Court.

We are looking forward to a holding which would benefit not only our plaintiff physicians, but thousands of foreign-born physicians practicing across the United States.

To view all pleadings which have been submitted in this case, please see our "Physicians" page at

4. Success Story: Demonstrating Extraordinary Ability

We were pleased and honored to have assisted Mr. Ueda in attaining Permanent Residency in the United States. However, he represents only one of many professional skateboarding cases we currently handle, some of which have been more challenging than the one featured in the Wall Street Journal article.

Take Mr. R, for example. A British national, Mr. R was considered one of the most daring and talented professional skateboarders in the world. He both won and placed highly in many international competitions, and had been nominated "Skateboarder of the Year" by a prominent skateboarding-related magazine. His accomplishments were such that he earned the sponsorship of multiple clothing and skateboard equipment companies, and was even featured as a character in a series of skateboarding video games. In short, Mr. R's success enabled him to retire from competition in order to devote his time to performing in professional showcases and participating in his multiple-endorsement advertising campaigns.

Mr. R's case was what we sometimes refer to as a "slam dunk": because Mr. R clearly exceeded the requirements for classification as an alien of extraordinary ability, we expected quick and easy immigrant visa approval. To our surprise however, we encountered considerable resistance from the Immigration Service in the form of a lengthy Request for Evidence.

To begin, the Service was concerned with the fact that while Mr. R boasted numerous athletic achievements, such accomplishments were in the past and he was no longer competing. This objection was easily overcome: for although Mr. R no longer battled for gold medals at international events such as the X Games, he was still invited to perform tricks to crowds at competitions and showcases all year round. In fact, his extraordinary skateboarding skills represented the very source of his very significant income-by making appearances across the U.S., Mr. R continued to cultivate his reputation as an outstanding skateboarder and ultimately add value to his image attached to the products he endorsed. In other words, his outstanding ability as a skateboarder not only directly earned him income, but generated considerable profit for the many companies that sponsored him.

More importantly, however, the Service questioned the significance of Mr. R's accomplishments themselves. The difficulty here was a matter of perception: the concept of "professional skateboarding" is sometimes itself difficult for people of an older generation to grasp. In the past, skateboards were essentially a hobby and a means of transportation; there were no professional competitions, professional organizations, awards, cash prizes, product endorsements or magazines devoted to the activity. Simply put, only recently has skateboarding made the transition from afternoon pastime into a full- fledged, internationally recognized sport. With this in mind, it is perhaps understandable why an immigration officer with an outdated concept of the sport might question, say, the importance of winning skateboarding competitions or receiving a Skateboarder of the Year nomination.

It was therefore our burden to demonstrate to the Immigration Service that skateboarding itself constitutes a genuine sport for which a participant's outstanding ability represents a truly significant accomplishment. Fortunately, we had an arsenal of evidence on our side. We demonstrated how events at which Mr. R appeared, such as the X Games, are televised internationally and draw crowds in the hundreds of thousands. We pointed out how the revenues generated by skateboarding equipment and paraphernalia, along with all the related DVDs, video cassettes, video games, shoe and clothing lines generate tens of millions of dollars annually. Finally, we stressed that the competitions Mr. R had triumphed regularly offered cash prizes to participants in the tens of thousands of dollars. We did everything we could to make clear that skateboarding is not only a bona-fide sport, but a thriving, multi-million- dollar industry. To be considered among the very greatest within such a popular and lucrative sport in-and-of-itself defines the term "outstanding ability."

In the end, the Immigration Service agreed and granted Mr. R permanent residency. His case demonstrates how the term "Extraordinary Ability" does not apply only to traditional popular sports or artistic media. Although a given sport may be lesser known than another does not mean that its elite performers will not provide a discernible benefit to the United States. Mr. R, along with our other skateboarder clients, are important figures to millions of people worldwide and have a tremendous amount to offer our nation as a whole. We link to the Wall Street Journal article at

5. Immigration Trivia Quiz:

6. Recapture of Time for Persons in H-1B and L-1 Status

Similarly, persons may remain in the U.S. in L-1A (executives and managers) status for seven years and in L-1B (specialized knowledge) status for five years.

Questions arise when a person in H-1B or L-1 departs the U.S. for either personal or business reasons: Does this time spent outside the U.S. count toward the 5, 6 or 7 year period? Or can it be "recaptured" thereby allowing the person to extend his status in the U.S. beyond these time periods? The applicable CIS regulation, 8 CFR §214.2(h)(13)(iii) states: "An H-1B alien in a specialty occupation or an alien of distinguished merit and ability who has spent six years in the United States under section 101(a)(15) (H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under section 101(a)(15) (H) or (L) of the Act unless the alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year."

This regulation would seem to indicate that any time spent outside the U.S. does not count against the statutory maximum. However, the CIS has instead followed a rule which requires that the time spent outside the U.S. be "meaningfully interruptive" of the person's stay in the U.S. in order for a person to recapture this time in order to seek an extension of stay.

The "meaningfully interruptive" standard, which is derived from old court cases which interpreted "continuous physical presence" for purposes of suspension of deportation, is quite subjective. When I was an INS Trial Attorney in the early 1980s, cases with similar facts were approved or denied depending upon whether a particular judge thought that a person's absence from the U.S. was "meaningfully interruptive" of his continuous physical presence in the U.S. This subjectivity caused Congress to eliminate this test in 1996.

Unfortunately, this vague standard gained new life after the enactment of AC-21 in 2000. Employers and employees would apply to the CIS to "recapture" time spent abroad in an effort to obtain extensions of stay. One immigration examiner would grant an extension while another would deny an extension on the exact same facts! This was clearly a policy which made no sense for either the government or for U.S. employers attempting to comply with the law.

Fortunately, the "meaningfully interruptive" test has recently been relegated to the dust bin of history thanks to the Acting CIS Deputy Director Robert Divine. Mr. Divine had the CIS "adopt" a decision of its Administrative Appeals Office (AAO) which provides that if a person in H-1B or L-1 status is outside the U.S. for even a day, for whatever reason, this period of time may be recaptured, and the person's status in the U.S. may be extended.

On October 21, the new CIS policy was spelled out in detail in a nine-page memo by Michael Aytes, CIS' Acting Associate Director for Domestic Operations. In brief, the Aytes memo states that

• Any absence of 24 hours or more may be recaptured

• A request for recapture of time must be supported by independent documentary evidence (e.g., passport stamps, I-94s, plane tickets, etc.) and should contain a chart of the person's absences from the U.S. and a statement requesting recapture. The burden of the proof is on the petitioning employer.

• H-4 and L-2 dependents may be granted extensions of stay to the same date as granted to the principal applicant.

We link both to the CIS' adopted decision and to Mr. Aytes memo from our "H-1B Page" at

7. Two Important Decisions re: the 180-Day Portability Rule

180-day portability is based on Section 106(c) of AC-21 which amends section 204, INA as follows:

"(j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE- A petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed."

The question arises as to the proper interpretation of the phrase "shall remain valid". Although there is clearly no requirement that an employee wait until the I-140 is approved or that the I-485 is pending more than 180 days before changing jobs, he does so at his own risk. Should the I-140 ultimately be denied, he loses his ability to "port" to the new job and his I-485 will be denied.

If you decide to change jobs before the approval of the I-140, we strongly recommend that you continue to maintain valid nonimmigrant status. This way, if the I-140 is denied, your immigration status in the U.S. will still be lawful.

In a related development, on October 28, 2005, the Board of Immigration Appeals (BIA) held, In re Minor Humberto PEREZ VARGAS (23 I&N Dec. 285) that Immigration Judges have no authority to determine whether the validity of an alien's approved employment-based visa petition is preserved under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. 1154(j), after the alien's change in jobs or employers.

Here, the alien was the beneficiary of an approved I-140 immigrant visa petition whose I-485 was not adjudicated within 180 days and change employers. The Board held that the Judge had no jurisdiction to under section 204(j), the 180-day portability rule because Judges have no jurisdiction over the adjudication of visa petitions.

However, there is no question that an Immigration Judge has jurisdiction over applications for adjustment of status where the CIS has approved the visa petition. Since the visa petition was approved in this case, it is not clear to us that deciding whether the beneficiary properly ported is not a question related to the adjudication of the application for adjustment of status. Perhaps only the CIS has the expertise to decide whether the new job is in the same or similar occupation as the one for which the visa petition was approved. However, we are not convinced that an Immigration Judge lacks the expertise to decide such matters.

Ultimately, the Federal Appellate Courts may decide whether this case was decided correctly.

We link both to the CIS adopted decision and to the BIA decision in PEREZ VARGAS from the "180-Day Portability" section of our "Green Card" page at

8. Videos of Recent Immigration Law Seminars

That is why, several years ago, we started adding audios, videos and web casts to our site. This way, instead of reading text, you can listen and see what's new in immigration law. We have posted online videos of President Bush's speech about his guest worker proposal, my testimony before the Senate and videos of a seminar that I gave at the invitation of medical residents in New York. In addition, we link to web casts of Senate and House committee hearings on immigration topics.

We have also posted a number of audios explaining how to obtain a temporary working visa, a green card, U.S. citizenship, etc. as well as a page linking to National Public Radio audios about dozens of immigration topics.

We link to all of the above from our "Audios, Videos & WebCasts" page at

Each year, I participate in a two-day seminar for immigration attorneys and paralegals sponsored by the University of Texas Law School in San Antonio. My topic was "An Immigration Lawyer's Guide to Factual and Legal Research of the Web". This year's seminar was particularly useful. Robert Mautino spoke about "Naturalization" and "Derivative Citizenship". Other speakers covered topics ranging from employment-based immigration to deportation defense.

The Law School videotaped each of our presentations, and is offering them for sale. The videos are very professional and informative. To see a five-minute clip from my presentation, click on the following link:

If you are interested in purchasing any of the audios, DVDs and the course binder of the sessions, click on "Buy CLE Materials for This Conference".

9. Chat Schedule, Transcripts, Audios & Videos

Chats

Since 1999, we have served as the official immigration experts for About.com. We have participated in dozens of free chats since then. Our chats always focus on a particular subject.

Links to the transcripts of all of our chats are posted online on our "Chat" page at

Immigration Audios

Are your eyes getting tired from reading all of our information about immigration laws and procedures? Then sit back, close your eyes, and listen to any (or all!) of the following immigration audios:

• Welcome To Our Web Site!
  http://shusterman.com/audio/welcome.ram

• Understanding the H-1B Cap Law: AC-21
  http://shusterman.com/audio/h1bcapla.ram

• Temporary Visas to Visit, Study or Work in the U.S.
  http://shusterman.com/audio/temp.ram

• Obtaining A Green Card To Live and Work in the U.S.
  http://shusterman.com/audio/gc.ram

• How to Become a Citizen of the U.S.
  http://shusterman.com/audio/usc.ram

• IMG's and Canadian Physicians
  http://shusterman.com/audio/md.ram

We link to selected audio programs regarding immigration produced by National Public Radio at

Immigration Videos

• Physicians: J Waivers, H-1B and O-1 Visas
  http://shusterman.com/video/img100302_p1.ram

• Physicians: Obtaining Permanent Residence
  http://shusterman.com/video/img100302_p2.ram

• Physicians: Questions and Answers
  http://shusterman.com/video/img100302_qa.ram

10. Winner of our November 2005 Immigration Trivia Quiz

The answer that we received from the winner is too long to reprint in this newsletter, but a shorter answer to our question may be found online on the U.S. Senate's web site at

Dear Mr. Shusterman:

My name is Ildefonso Tellez. I'm originally from Mexico and I'm in the US on an H-1B visa. I'm a physician working for Emory University in Atlanta.

I'm sending you my answers to your quiz. I immediately recognized Churchill's and Mother Theresa's faces so I just searched the internet and found out about the other two people. I always check your page for updates and news. It's the most reliable and informative immigration website. I'm looking forward to hearing from you soon.

Sincerely

Ildefonso Tellez, MD, MPH

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

December 1, 2005

A deportation may result in "loss of both property and life; or all that makes life worth living." Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)

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