Shusterman Law http://www.shusterman.com Over 100 Years of Immigration Law Experience Mon, 29 Aug 2016 21:49:24 +0000 en-US hourly 1 https://wordpress.org/?v=4.6 Shusterman’s Immigration UpdateSeptember 2016 http://www.shusterman.com/shustermans-immigration-update-september-2016/ Sun, 28 Aug 2016 16:23:58 +0000 http://www.shusterman.com/?p=57422 Volume Twenty One, Number Seven SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 40 years of experience practicing immigration law. Published by the Law Offices […]

The post Shusterman’s Immigration Update
September 2016
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Volume Twenty One, Number Seven

SHUSTERMAN’S specialized knowledgeIMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 40 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.

Subscribe to our Immigration Newsletter, join the conversation on our Facebook Page, follow our Blog Posts and subscribe to our “How-To” Immigration Videos.

TABLE OF CONTENTS:

1. A New Immigration Program for Foreign Start-Ups
2. State Department Visa Bulletin for September 2016
3. Immigration Government Processing Times
4. Success Story: Deportation? No. US Citizenship? Yes!
5. Immigration Trivia Quiz: Famous American Companies
6. EB-5 Investors: EB-5 Program’s Looming Sunset on September 30, 2016
7. Ask Mr. Shusterman: Eliminate the EB Per-Country Quotas
8. Shusterman’s Upcoming Immigration Seminars
9. Jobs & Green Cards for RNs & MedTechs: Free Legal Help!
10. Winner of Our August 2016 Immigration Trivia Quiz!

Client Reviews

Great Work!

“We are very pleased by the services we get from the Law Offices of Carl Shusterman. Our experience in the past year with all our H1B renewals has been amazing, and we’ve obtained great results.”

- KRG Technologies, Valencia, California

Read More Reviews

Skype Consultations Available!

NEWS FLASHES:

  • Department of Justice to Expand Employer Liability on Immigration Related Discrimination Claims – The Department of Justice has proposed a regulation that seeks to increase its ability to enforce federal anti-discrimination laws related to immigration. If such regulation were to be approved it would significantly impact employers, increasing the latter’s exposure to discrimination claims. Additionally, the implementation of this regulation would give the DOJ the power to waive the 180-day time limit for an individual employee to file a discrimination charge against their employer.

  • Detained Mothers on Hunger Strike – In early August, mothers detained in an immigrant facility in Pennsylvania began a hunger strike in hope of ending their prolonged detention. Some of these women have been held in detention for over a year, others for more than 300 days. In an open letter to the Secretary of Homeland Security they wrote with great conviction, “We will get out alive or dead” as a response to his claims that women were being held for only 20 days or less at these detention centers. They are simultaneously fighting a legal battle in which they are seeking a declaration acknowledging that there has been a violation of their constitutional rights, giving them the opportunity to a new asylum hearing.

  • Unscrupulous Attorneys Prey On Immigrants in Federal Detention Centers – Over 60,000 persons have been arrested for illegally crossing our southern border since last October. Many are women and children fleeing violence in Central American. Thousands of these asylum seekers are being held in Federal Detention Centers. Often, without access to legal assistance, they are being preyed upon by unscrupulous attorneys.

1. A New Immigration Program for Foreign Start-Ups

In the next few days, the USCIS will propose a new regulation allowing the agency to grant parole to certain foreign-born entrepreneurs who establish start-up businesses in the US. This is not a new law, but a regulation which would implement one of President Obama’s proposals for encouraging innovation.

USCIS expects 3,000 persons will qualify for parole annually under this program although there are no numerical limitations.

Who Qualifies?

  • Persons who have established a start-up business in the US within 3 years before they apply for a parole;
  • Persons who own 15% or more of the start-up;
  • Persons who play an active role in the business. Passive investors can not qualify.
  • The start-up must have received at least $345,000 in capital from qualified US investors or a minimum of grants from federal, state and local governments in the US. If these funding criteria are not met, the entrepreneur would have to demonstrate the start-up’s potential for rapid growth and job creation;
  • No more than 3 entrepreneurs could be granted parole for a single start-up; and
  • Spouses and children of an entrepreneur would also be eligible for parole.

The business can not be an investment vehicle primarily engaged in the offer, purchase, sale or trading of securities, futures contracts, derivatives or similar instruments.

How to Apply for the Program?

The USCIS is developing form I-941, Parole for Entrepreneurs status. There will be a filing fee of $1,200 plus an additional fee for biometrics. In addition to the parole, entrepreneurs and their families will receive travel documents.

Persons may apply for this program from inside the U.S. or abroad.

Entrepreneurs are restricted to working for the start-up while spouses are free to work wherever they please.

How Long Does the Parole Last?

Initially, the parole would be issued by the USCIS for 2 years. The parole could be extended up to 5 years if the start-up continues to operate, attracts more investment, creates new jobs, etc. However, if the start-up ceases to operate or provide significant public benefits, the USCIS can revoke the parole.

The entrepreneur’s stake in the start-up is allowed to decline to no less than 10%. However, the start-up must be shown to have created a minimum of 10 full-time jobs for US workers, generate $500,000 annually or grow at a 20% pace.

Parolees are required to maintain an income level of 400% of the HHS Poverty Guidelines. Spouse’s income may be included.

Who Benefits from the Program?

While entrepreneurs from around the world could benefit from this program, persons who are citizens of any of the 60+ countries with E-2 Investor Treaties with the US may have little incentive to request parole.

The 2 countries with the largest number of H-1B visa holders in the US, India and China, do not have E-2 Treaties with the US. At the present, it is difficult for persons from these 2 populous countries to establish start-up companies in the US. Once the parole regulation becomes effective, one can expect persons from these countries to create many start-up technology, biotech, pharmaceutical and other types of companies in the US which will employ many thousands of American workers.

When Does the Program Become Effective?

After the proposed regulation is published in the Federal Register, there will be a 45-day public comment period. The USCIS will need to consider each of the public comments and may modify the proposed regulation. The final regulation will probably be published either in late 2016 or early 2017.

2. State Department Visa Bulletin for September 2016

EMPLOYMENT CATEGORIES

In the September Visa Bulletin, the worldwide EB-1, EB-2, EB-4 and EB-5 priority dates all remain current (no backlogs). The EB-3 category advances by 6 weeks to May 1, 2016.

None of the Chinese EB categories advance in September while India EB-2 and EB-3 both move forward more than 3 months.

Philippines EB-3 rockets ahead by almost 14 months to July 1, 2010, not bad for the final month of the fiscal year!

USCIS, as usual, has announced that it will not accept any applications for adjustment of status (I-485s) unless the applicant’s priority date is current.

The following chart tells the story of the EB numbers in detail:

A. APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

World China El Salvador, Guatemala, Honduras India Mexico Philippines
1st Current 1-01-10 Current 1-01-10 Current Current
2nd 2-01-14 1-01-10 2-01-14 2-22-05 2-01-14 2-01-14
3rd 5-01-16 1-01-10 5-01-16 2-15-05 5-01-16 7-01-10
Unskilled 5-01-16 1-01-04 5-01-16 2-15-05 5-01-16 7-01-10
4th Current Current 1-01-10 1-01-10 1-01-10 Current
Religious Current Current 1-01-10 1-01-10 1-01-10 Current
5th Current 2-15-14 Current Current Current Current

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS– These dates indicate when immigrant applicants can send adjustment of status applications without having to wait for their priority dates to become current.

World China India Mexico Philippines
1st Current Current Current Current Current
2nd Current 6-01-13 7-01-09 Current Current
3rd Current 5-01-15 7-01-05 Current 1-01-13
Unskilled Current 8-01-09 7-01-05 Current 1-01-13
4th Current Current Current Current Current
Religious Current Current Current Current Current
5th Current 5-01-15 Current Current Current

FAMILY-BASED CATEGORIES

The family-based categories in the visa bulletin are as follows:

visa bulletin

An applicant’s priority date is the day that the government received the I-130 Petition. For more on family-based visas and how you can shorten your application time, see Attorney Shusterman’s video near the top of this page.

VISA BULLETIN – FAMILY

A. APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

Most of the worldwide Family-Based (FB) priority dates advance slowly or not at all in September. The exception is the F1 category for unmarried adult sons and daughters of US citizens which jumps ahead by over 3 months.

The Philippines is the only country where the FB priority move significantly forward in September: F1 by more than 3 months, F2B by 10 weeks, F3 by 3 months and F4 by one month. Good news for the country with the longest waiting times in many of the FB categories.

The following charts tell the story in detail:

World China India Mexico Philippines
1st 9-15-09 9-15-09 9-15-09 3-22-95 7-01-05
2A 11-15-14 11-15-14 11-15-14 9-01-14 11-15-14
2B 2-01-10 2-01-10 2-01-10 9-15-95 12-01-05
3rd 12-01-04 12-01-04 12-01-04 11-15-94 6-15-94
4th 10-08-03 1-01-03 1-01-01 4-22-97 3-01-93

 

B. DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS– These dates indicate when immigrant applicants can send adjustment of status applications without having to wait for their priority dates to become current.

World China India Mexico Philippines
1st 1-01-10 1-01-10 1-01-10 4-01-95 12-22-05
2A 11-22-15 11-22-15 11-22-15 11-22-15 11-22-15
2B 2-08-11 2-08-11 2-08-11 5-22-96 2-01-06
3rd 8-22-05 8-22-05 8-22-05 5-01-95 8-01-95
4th 6-15-04 6-15-04 5-01-04 6-01-98 7-15-93

3. Immigration Government Processing Times

We have included a link to various tables where you can access the immigration waiting times

  • USCIS Service Centers
  • National Benefits Center
  • EB-5 Immigrant Investor Program Office
  • USCIS’ 83 Field Offices

Search the Field Offices for the USCIS’ 83 District Offices and Sub-offices to look up the processing times for (1) Applications for Adjustment of Status (I-485) (2) Work Authorization (I-765); (3) Advance Parole (I-131); (4) Naturalization (N-400) and other types of applications. To access your immigration waiting time, what you need to know are:

  • The office where your petition has been filed or transferred to
  • The type of application or petition
  • The date on which the petition was filed

This information can all be found on the Notice of Receipt that was mailed to you by the USCIS. To begin, simply click on the Field Office or Service Center that interests you and click “Submit Query” and you will be directed to the current USCIS processing time table.

If your petition/application is on appeal, you can access the processing times of the Administrative Appeals Office (AAO).

If your PERM case or other type of application is pending at the DOL, we link to the Department of Labor Processing Times.

If you are applying for a visa abroad, we link to Visa Appointment and Processing Times at 100+ US Embassies and Consulates around the world.

If you have requested a copy of your file from the USCIS, you can check the status of your Freedom of Information Act (FOIA) request.

If you are applying for affirmative asylum you can check how the Asylum Division has prioritized applications for interview scheduling.

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

4. Success Story: Deportation? No. US Citizenship? Yes!

Recently, we had a consultation with a man on the East Coast who had received a Notice to Appear (NTA) before an Immigration Judge for a removal hearing.

He had been convicted of a drug offense and numerous immigration attorneys had advised him that there was no hope for him. He would be deported back to his country.

He had immigrated to the US together with his family at the age of 3, and was desperate to remain in the only country he had ever known. He took full responsibility for his conviction, but wanted to remain in the US after he finished his sentence.

He had done considerable research into his immigration status, and believed that he had derived US citizenship as a youngster. He was a long-time permanent resident of the US and his father had naturalized before his 16th birthday.

At the time his father naturalized, he and his wife were divorced and they had been granted joint custody of their son.

Did that make him a US citizen?

The immigration attorneys that he had consulted researched the issue and concluded that the answer was “no”. They told him to accept the fact that he would be deported to a country where he knew no one and had no friends nor relatives.

The Immigration and Naturalization Act (INA) of 1952 controlled his fate. When I worked as an INS Citizenship Attorney in the 1970s, I used the INA to determine who had “derived” US citizenship as a minor through the naturalization of their parent(s).

The INA provides that if a child is a permanent resident of the US and his parents naturalize before his 16th birthday, he automatically becomes a US citizen. While the law generally requires that “both parents” naturalize, it creates an exception where the child’s parents are divorced. In that case, it is only required that the parent who naturalizes have “custody” over the child.

So, the man who consulted with us would be a US citizen since his parents were given joint custody of him and his father naturalized before his 16th birthday, right?

Not so fast.

The only case of precedential value to address this issue was Bustamante-Barrera v. Gonzales which was decided by the US Court of Appeals for the 5th Circuit in 2006. There, the court decided that word “custody” in the INA meant “sole custody” rather than “joint custody”.
So, the man who called us was not a US citizen after all, and would be deported?

Fortunately, he is not within the jurisdiction of the 5th Circuit which covers Texas, Louisiana and Mississippi. Also, the reasoning of the Court seems terribly flawed to us.

We suggested that he retain us to research this issue, and he did so.

We found that the Board of Immigration Appeals (BIA) had rejected the government’s reliance on Bustamante-Barrera in a non-precedent decision in 2010.

In Re: Kurt Jesus Rabanal Puertas, the BIA stated:

“…we are not persuaded by the DHS’s arguments that the New York court’s grant of ‘joint custody’ to the respondent’s parents with their decree of divorce was insufficient to satisfy the legal custody requirement under the statute.”

Back when the INA became law in 1952, joint custody was a rare exception in child custody cases. Now it is the norm. Adding the word “sole” to the statute is a judicial overreach which would deprive thousands of children of derivative citizenship in clear contravention of the law.

We will present evidence to the Immigration Judge that our client is a US citizen and cannot be deported.

5. Immigration Trivia Quiz: Famous American Companies

This month’s Immigration Trivia Quiz is entitled:

Famous American Companies

The first person to correctly answer our quiz (and supply their biographical information) wins a free legal consultation with one of our attorneys before the end of September.

6. EB-5 Investors: EB-5 Program’s Looming Sunset on September 30, 2016

One year ago, EB-5 program stakeholders including investors, developers and industry professionals all but held their breath for the then-anticipated sunset of the EB-5 program. But the sunset date of September 30 come and went without any changes to the EB-5 program. The program was merely extended for an additional year and thus we have a new sunset date of September 30, 2016.

This year’s program sunset has received far less attention by program stakeholders, but the question of the EB-5 program’s future remains. Few in the EB-5 industry believe that September 30 will bring major changes to the program; even fewer, if anyone, believe the EB-5 program will end. However, the truth is that none of us knows.

What we do know is that, in this election year, the Congress has even less capacity and appetite for proposing and passing substantive changes than it had in 2015. We also know that the EB-5 program is a major contributor to investment in the US and improved economic activity. Thus while there is no reason to end or suspend EB-5 program, there are many reasons to change it.

Our clients, developers and investors alike, repeatedly ask if their project or immigrant petition would be subject to potentially changed EB-5 rules if the application is submitted to USCIS after September 30. The only answer we can give them is: maybe. There are many scenarios that could play out but we will not know for sure until September 30.

One of the positive developments we expect to see in the new Federal Fiscal Year on October 1, 2016, is a possibility for EB-5 investors to utilize “early filing” visa bulletin table (commonly known among EB-5 investors as “Table B”). If the Department of State allows for “early filing” of Adjustment of Status Applications (Form I-485) pursuant to “Table B” priority dates, then EB-5 petitioners will be able to file adjustment applications if they meet the following criteria:

– Have an Approved I-526 Petition;
– The I-526 Priority date is earlier than that posted in “Table B”*; and
– Are present in United Status in lawful status that allows for filing of adjustment of status.

*The current September 2016 Visa Bulletin shows the priority date of May 1, 2015 in the early filing “Table B”.

We wrote at length about the “early filing” option in our October 2015 Newsletter.

7. Ask Mr. Shusterman: Eliminate the EB Per-Country Quotas

This year’s political debate regarding immigration seems to focus almost exclusively on what to do about the millions of undocumented immigrants in the US. The Democrats want a path to citizenship. The Republicans do not.

However, there are other important immigration issues, some which both political parties can agree on. The following is one of these issues.

In 2013, the Senate, by an overwhelming bipartisan majority, passed a bill which would have eliminated per-country quotas for employment-based immigrants. Regrettably, the House of Representatives never voted on this bill.

Now, 3 years later, this issue is more important than ever.

A little background is in order. Some foreign-born professionals come to the US using H-1B temporary working visas. Others come to attend universities using F-1 student visas. After graduation, they are allowed to work using Optional Practical Training (OPT) permits. Some students are granted OPT for one year. Most of those in STEM fields can extend their OPT for up to 3 years.

The important thing to understand is that neither the F-1 nor the H-1B visa categories have any limitations on the country of birth of the students or the workers. This is true of most, if not all, temporary visas categories.

However, when these students and workers are sponsored by US employers for green cards, suddenly their country of birth counts more than their qualifications in determining how long they must wait in line for green cards.

And we are not talking about weeks or months, but years and even decades!

These days, most H-1B professional workers are employed in high-tech fields like the computer industry. Tens of thousands of foreign-born programmers are employed by Apple, Google, Facebook, Microsoft and other high-tech companies in the US. The great majority of these professionals were born in India.

There is a limit on how long these professionals can be employed in the US in H-1B status, so the best and the brightest of these professionals are sponsored by their employers for green cards.

Unfortunately, existing immigration laws limit the percentage of persons who can obtain green cards through employment to just 7% for persons born in any one country.

The result is that Indian programmers are forced to wait many years for green cards while persons born in most other countries have minimal waits.

The same thing is true for persons born in mainland China and the Philippines.

Several hundred thousand Chinese-born students study at universities in the US. Many get PhDs in the sciences and obtain OPT. However, they face extremely long waits for obtaining green cards simply because of their country of birth.

This also applies to persons born in the Philippines. Thousands of hospitals in the US are facing growing shortages of registered nurses. Filipino nurses could help alleviate this shortage, but because of per-country quotas, it takes hospitals many years to sponsor a nurse born in the Philippines for a green card.

None of this makes any sense. To sponsor a foreign-born person for a green card, employers must show that they were unable to find a minimally-qualified US worker for the job. And because our country leads the world in computers, biotechnology, pharmaceuticals, healthcare and many other advanced fields, why should we categorize working professionals according to their country of birth rather than their skill sets?

America needs talent!

8. Shusterman’s Upcoming Immigration Seminars

  • Global Mobility in the Age of Terrorism
    Omni Hotel, Los Angeles, CA
    November 4, 2016
    Time TBD
  •  

  • Legal Ethics in Practice Seminar
    UCLA School of Law
    Los Angeles, CA
    January 26, 2017
    Time: TBD

 

9. Jobs & Green Cards for RNs & MedTechs
Free Legal Help!

Are you a Registered Nurse or a Medical Technologist who is looking for a job in the US?

What if you could find a job, a work visa and green cards for you and your family in the US? And what if the cost to you for all of this was zero?

Hard to believe? Let me explain:

Our law firm represents over 100 hospitals across the country. And the nurse shortage is coming back.

Our hospitals are in need of hundreds of RNs as well as Medical Technologists and other healthcare professionals. They are looking for both US and foreign-born RNs, and they will pay all of our attorneys’ fees, USCIS filing fees and more!

We have a video and a web page for those who are interested in applying for employment and sponsorship.

If you are a foreign nurse or a medical technologist and need a job in the US and the job requires a work visa and/or green card, please do the following:

Send an e-mail message to egarcia@shusterman.com

In your message, please provide the following information:

1. Have you passed the NCLEX exam?
2. Do you have a current RN license in the US? If so, from what state(s)?
3. Have you taken and passed the IELTS or TOEFL exam?
4. Do you have a valid VisaScreen certificate?
5. Do you have any immediate family members accompanying you to the United States (spouse and children)?
6. Have you ever been petitioned by any US sponsor and hold an old priority date? If so, what is your priority date?
7. If you are present in the US, what is your current immigration status?
8. What is your RN background (area of expertise)?
9. What is your country of birth?
10. What is your country of citizenship?
11. What is your phone number?

If you are a CLS, please amend the above questions accordingly.

We will forward your response to our hospitals, and if they are interested, they will contact you. Please do not contact our law firm until after you hear from one of our hospitals.

We look forward to helping you!

10. Winner of Our August 2016 Immigration Trivia Quiz!

August’s Immigration Trivia Quiz was entitled: Immigrant Writers.

Below is the message we received from the winner:

  1. Alexander Solzhenitsyn; Russia; One Day in the Life of Ivan Denisovich
  2. Wystan Hugh Auden; England; The Age of Anxiety
  3. Czeslaw Milosz; Lithuania; The Captive Mind

“I am an immigrant from Mexico currently living in Van Nuys, CA. I’m happily married, we have 2 kids and I work as an accountant.

I solved your quiz by searching your images in Google and in Wikipedia. I’ve been a subscriber of your newsletter for 4 years, plus I follow you on Facebook and Twitter. I use your newsletter and social media to keep up to date to immigration news such as DAPA.”

Congratulations, Mr. Rios!

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California
Immigration and Naturalization Service (INS) Attorney (1976-82)
Member of AILA Board of Governors (1988-97)
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017
Phone: (213) 623-4592 x0, Fax: (213) 623-3720

“In establishing preferences, a nation that was built by the immigrants of all lands can ask those who now seek admission: ‘What can you do for our country?’ But we should not be asking: ‘In what country were you born?'”

– President Lyndon Johnson

1964 State of the Union Address

Quick Links –

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August 29, 2016

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September 2016
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Bloomberg-Led Pro-Immigrant Reform Group Looks to 2017 http://www.shusterman.com/bloomberg-led-pro-immigrant-reform-group-looks-to-2017/ Thu, 04 Aug 2016 17:05:45 +0000 http://www.shusterman.com/?p=57578 The pro-immigration advocacy group led by Michael Bloomberg has launched a new campaign, taking place in all 50 states with pro-reform events and economic reports tailored to each state, with a focus on the economic benefits for an overhaul of the immigration system.

The post Bloomberg-Led Pro-Immigrant Reform Group Looks to 2017 appeared first on Shusterman Law.

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The pro-immigration advocacy group led by Michael Bloomberg has launched a new campaign, taking place in all 50 states with pro-reform events and economic reports tailored to each state, with a focus on the economic benefits for an overhaul of the immigration system.

The post Bloomberg-Led Pro-Immigrant Reform Group Looks to 2017 appeared first on Shusterman Law.

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Shusterman’s Immigration Update August 2016 http://www.shusterman.com/shustermans-immigration-update-august-2016/ Mon, 01 Aug 2016 07:01:15 +0000 http://www.shusterman.com/?p=54650 Volume Twenty One, Number Six SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 40 years of experience practicing immigration law. Published by the Law Offices […]

The post Shusterman’s Immigration Update
August 2016
appeared first on Shusterman Law.

]]>
Volume Twenty One, Number Six

SHUSTERMAN’S specialized knowledgeIMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 40 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.

Subscribe to our Immigration Newsletter, join the conversation on our Facebook Page, follow our Blog Posts and subscribe to our “How-To” Immigration Videos.

TABLE OF CONTENTS:

1. Expansion of I-601A Provisional Waiver Program
2. State Department Visa Bulletin for August 2016
3. Immigration Government Processing Times
4. Success Story: “You Get What You Pay For!”
5. Immigration Trivia Quiz: Immigrant Writers
6. EB-5 Investors: Questions to Ask an EB-5 Project
7. Ask Mr. Shusterman: Our New Phone-Friendly Website
8. Shusterman’s Upcoming Immigration Seminars
9. Jobs & Green Cards for RNs & MedTechs: Free Legal Help!
10. Winner of Our July 2016 Immigration Trivia Quiz!

Client Reviews

Great Work!

“We are very pleased by the services we get from the Law Offices of Carl Shusterman. Our experience in the past year with all our H1B renewals has been amazing, and we’ve obtained great results.”

- KRG Technologies, Valencia, California

Read More Reviews

Skype Consultations Available!

NEWS FLASHES:

  • Canadian RNs Looking for Jobs in the US – Health care providers in the US are having an increasingly difficult time filling vacant positions for registered nurses. One of the best options is to sponsor Canadian RNs who are looking for jobs in the US.

  • Clinton: It’s ‘heartbreaking’ when IT workers must train their H-1B replacements – In an interview, Hillary Clinton discussed the issue of American workers training their immigrant replacements. Some companies have contracted with 3rd-party employers to employ foreign-born workers on H-1B visas to replace US workers. Clinton specifically referred to the Disney case where 250 IT workers were let go and replaced with foreign-born workers. These foreign-born individuals were trained by the IT workers whose jobs they replaced.

  • Court Rules against Federal Government’s Efforts to Detain Children – The 9th Circuit Court of Appeals ruled against the detention of immigrant children. The Court ruled that the Flores Settlement Agreement governs the custody and release of all immigrant children. The DHS had maintained that the Agreement did not apply to children who arrived in the US together with their mothers.

  • Discharged, Then Discarded: Deportation – A report by the ACLU found that many immigrant veterans have been deported as a result of minor crimes despite their honorable service in the US Armed Forces. The 1996 immigration law eliminated the discretion of immigration judges and treats many minor offenses as aggravated felonies which lead to deportation. Many of these veterans were eligible for US citizenship during and after their military service. The report faults the federal government for failing to provide adequate information and services to help veterans complete their applications for naturalization.

  • Immigration Court Backlog Surpasses 500,000 Pending Cases – Less than 300 Immigration Judges across the US are burdened with over half a million deportation cases. A report predicts that the backlog will soon grow to over one million. Persons with approvable asylum cases must wait for years to be reunited their spouses and children. It takes many years to deport persons with criminal records. Hiring a few dozen additional Judges will not solve the problem. Only Comprehensive Immigration Reform will do so.

  • USCIS Stakeholder Session with Leon Rodriguez – On August 11, the USCIS will hold a stakeholder session with USCIS Director Leon Rodriguez. The session will focus on the initiatives of the USCIS as well as address any concerns stakeholders may have. It will cover topics that are of interest to the African Immigrant Community. Topics such as temporary protected status and family-based immigration will be addressed.

1. Expansion of I-601A Provisional Waiver Program

Back in 1996, a law was passed which penalizes persons who incurred a certain period of “unlawful presence” in the US and seek to apply for a green card abroad. If the person has more than 180 days and less than one year of unlawful presence in the US, and goes abroad, he is barred from returning to the US for 3 years or more. If the period of unlawful presence is one year or more, the person is subject to a 10-year bar.

However, a person subject to either the 3 or 10-year bar can apply for a waiver of the bar (using form I-601) if he can demonstrate that his US citizen or green card holding spouse or parent would suffer “extreme hardship” if he were barred from returning to the US for 3 or 10 years. The problem was that the person could only apply for an I-601 waiver after he had been interviewed at a US Consulate abroad, and the waiver procedure often took 6-12 months. As a result, thousands of people chose to remain undocumented in the US rather than be separated from their family members for a prolonged period of time.

In 2013, a regulation was published which allowed spouses and sons and daughters of US citizens who had accumulated unlawful presence in the US to apply for an “I-601A provisional waiver” while still in the US. That way, they could remain with their family members in the US and go abroad for their green card interviews only after their waivers had been approved. As a result, thousands of persons obtained provisional waivers in the US and only had to remain abroad for a couple of weeks until their green card applications were approved.

The problem was that the 2013 regulation did not allow spouses and sons and daughters of green card holders to apply for provisional waivers. However, the new regulation published by the USCIS last week will soon allow them to do so.

We expect that this new regulation will enable tens of thousands of persons to come out of the shadows and apply for green cards.

Remember that I-601A provisional waivers apply only to persons who are inadmissible from the US because of unlawful presence. If a person is inadmissible for other reasons (i.e., fraud, criminal convictions, etc.), he can not apply for an I-601A provisional waiver.

If you have questions about the new regulation, please see our I-601A Frequently Asked Questions page.

2. State Department Visa Bulletin for August 2016

EMPLOYMENT CATEGORIES

The Worldwide Employment-Based (EB) 1st, 4th and 5th preference categories remain current (no backlogs) in August. However, EB-2 retrogresses to February 1, 2014 while EB-3 advances by 2 weeks.

The EB-2 category retrogresses for persons born in China and India by 6 1/2 years.

China EB-2, EB-3 and EB-5 remain frozen in August while India EB-2 and EB-3 advance by 2 weeks each. India EB-4 retrogresses 6 1/2 years.

Philippines EB-3 continues to advance, by 3 months in August.

The USCIS will only accept applications for adjustment of status from persons whose priority dates are current.

The following chart tells the story of the EB numbers in detail:

A. APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

World China El Salvador, Guatemala, Honduras India Mexico Philippines
1st Current 1-01-10 Current 1-01-10 Current Current
2nd 2-01-14 1-01-10 2-01-14 11-15-04 2-01-14 2-01-14
3rd 3-15-16 1-01-10 3-15-16 11-08-04 3-15-16 5-15-09
Unskilled 3-15-16 1-01-04 3-15-16 11-08-04 3-15-16 5-15-09
4th Current Current 1-01-10 1-01-10 1-01-10 Current
Religious Current Current 1-01-10 1-01-10 1-01-10 Current
5th Current 2-15-14 Current Current Current Current

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

World China India Mexico Philippines
1st Current Current Current Current Current
2nd Current 6-01-13 7-01-09 Current Current
3rd Current 5-01-15 7-01-05 Current 1-01-13
Unskilled Current 8-01-09 7-01-05 Current 1-01-13
4th Current Current Current Current Current
Religious Current Current Current Current Current
5th Current 5-01-15 Current Current Current

FAMILY CATEGORIES

Worldwide Family-Based (FB) preference categories remain frozen or advance slightly in August, FB-2B by 4 weeks and FB-4 by 1 week.

None of the FB categories for Mexico advance in August.

For the Philippines, the dates for the FB categories move forward by up to 10 weeks.

The USCIS will only accept applications for adjustment of status from persons whose priority dates are current.

The chart below tells the story in detail:

A. APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

World China India Mexico Philippines
1st 3-22-09 3-22-09 3-22-09 3-08-95 3-22-05
2A 11-15-14 11-15-14 11-15-14 9-01-14 11-15-14
2B 1-08-10 1-08-10 1-08-10 9-08-95 9-15-05
3rd 12-01-04 12-01-04 12-01-04 10-22-94 3-15-94
4th 9-15-03 1-01-03 1-01-01 4-15-97 2-01-93

B. DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

World China India Mexico Philippines
1st 1-01-10 1-01-10 1-01-10 4-01-95 12-22-05
2A 11-22-15 11-22-15 11-22-15 11-22-15 11-22-15
2B 2-08-11 2-08-11 2-08-11 5-22-96 2-01-06
3rd 8-22-05 8-22-05 8-22-05 5-01-95 8-01-95
4th 6-15-04 6-15-04 5-01-04 6-01-98 7-15-93

3. Immigration Government Processing Times

We have included a link to various tables where you can access the immigration waiting times

      • USCIS Service Centers
      • National Benefits Center
      • EB-5 Immigrant Investor Program Office
      • USCIS’ 83 Field Offices

Search the Field Offices for the USCIS’ 83 District Offices and Sub-offices to look up the processing times for (1) Applications for Adjustment of Status (I-485) (2) Work Authorization (I-765); (3) Advance Parole (I-131); (4) Naturalization (N-400) and other types of applications. To access your immigration waiting time, what you need to know are:

      • The office where your petition has been filed or transferred to
      • The type of application or petition
      • The date on which the petition was filed

This information can all be found on the Notice of Receipt that was mailed to you by the USCIS. To begin, simply click on the Field Office or Service Center that interests you and click “Submit Query” and you will be directed to the current USCIS processing time table.

If your petition/application is on appeal, you can access the processing times of the Administrative Appeals Office (AAO).

If your PERM case or other type of application is pending at the DOL, we link to the Department of Labor Processing Times.

If you are applying for a visa abroad, we link to Visa Appointment and Processing Times at 100+ US Embassies and Consulates around the world.

If you have requested a copy of your file from the USCIS, you can check the status of your Freedom of Information Act (FOIA) request.

If you are applying for affirmative asylum you can check how the Asylum Division has prioritized applications for interview scheduling.

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

4. Success Story: “You Get What You Pay For!”

Recently, I had a consultation with a man from the Philippines who had his green card taken away from him by a CBP agent as he attempted to cross the border from Canada to the US.

He had obtained a 2-year green card through marriage, and later USCIS approved his application for a 10-year green card. Later, he and his US citizen wife separated and eventually divorced.

After the separation, but prior to his divorce, he hired an attorney who advised him that he was eligible to naturalize under the 3-year rule which applies only to persons living with their US citizen spouses. The USCIS denied his application, correctly finding that since he was not living with his wife, he was ineligible to naturalize under the 3-year rule.

Whenever he traveled abroad and returned to the US, CBP questioned him about whether his marriage was bona fide. The first time, the agent believed that it was and admitted him to the US. The second time, the agent questioned him, had him sign a written statement and confiscated his green card. He was scheduled for a Deferred Inspection Interview in Northern California.

He scheduled a consultation with me, and flew down to Los Angeles. Once we were satisfied that his previous marriage was indeed bona fide, we prepared the required paperwork, and I met with him and his ex-wife at the CBP office in Northern California. I advised him that it was possible that the officer would place him in a removal proceeding before an Immigration Judge.

While he and I waited for his interview and went into the agent’s office, my wife, who is a Filipina immigrant herself, chatted with my client’s ex-wife in the waiting room. She told my wife that she met her husband in the Philippines. He was slim, good looking and she had a crush on him. Years later, they reconnected in the US and got married.

He worked as a traveling nurse, she as a caregiver. Sometimes, for weeks or even months, their jobs required them to live with or near their clients. Finally, these periods of separation caused their marriage to deteriorate. However, they continued to remain close friends.

Given these lengthy periods of separation, it was understandable to me why certain government officials questioned the legitimacy of their marriage. However, in Northern California, the CBP officer determined that the marriage was bona fide and returned the green card to our client. Of course, our client was greatly relieved. He had been worried that he might be deported to the Philippines.

After his interview, my client and his ex-wife took my wife and I to lunch. After thanking me profusely, he told me why he had chosen his first attorney and how he found out about me:

“When I needed an attorney for my citizenship case, I checked Google to find a great immigration attorney. Your name came up again and again. However, I didn’t have much money, so I choose an immigration attorney who offered a free consultation. It was the worst mistake of my life. But as soon as the government took away my green card, I knew exactly who I needed to hire. You get what you pay for!”

5. Immigration Trivia Quiz: Immigrant Writers

This month’s Immigration Trivia Quiz is entitled:

Immigrant Writers

The first person to correctly answer our quiz (and supply their biographical information) wins a free legal consultation with one of our attorneys before the end of August.

6. EB-5 Investors: Questions to Ask an EB-5 Project

On July 28, the USCIS hosted the EB-5 Immigrant Investor Program: Stakeholder Engagement. Those of us who joined the meeting telephonically (the majority of attendees) could not hear most of what USCIS officers discussed due to poor acoustics. The officers’ prepared remarks will be posted on USCIS website in the near future but details from the actual “engagement” with stakeholders will largely remain a mystery.

A couple of points of note relate to the following:

Minors as I-526 Petitioners

Clients often ask us whether someone under 18 years of age can file an I-526 petition. Immigration attorneys have been unable to answer this question precisely as the regulations do not provide guidance on this topic. So we’ve turned to our colleagues who practice securities and contract laws, who largely feel that minors do not have the capacity to legally bind themselves into contracts that are required for filing I-526 petitions. USCIS weighed in on this topic during the July 28 call and stated the agency is unaware of any statutory bars to minors filing I-526 petitions but that USCIS perceives issues with such filings on account of a minor’s ability to enter into contracts required to present a valid EB-5 petition. More importantly, USCIS stated if such petitions are filed, it is the minor petitioner’s burden to establish with filing documents that the minor is in fact legally able to enter into and be bound by legal contracts that the minor has signed. USCIS did not elaborate as to what documents may establish such eligibility but at least the door is now open and we will once again turn to our contract and securities colleagues for guidance on preparing these documents.

Reporting Fraud in EB-5

IPO (USCIS’s Investor Program Office) Chief Nicolas Colucci discussed his office’s efforts in combating fraud in EB-5 cases. He urged the public to submit tips and any information pertaining to suspected EB-5-related fraud. The public can contact IPO through its website or call the Fraud Detection and National Security (FDNS) team directly at (202) 357-9326.

Chief Colucci’s remarks are welcome and I hope the EB-5 community becomes more vigilant about reporting the bad actors. Our EB-5 investor clients often ask how they can make sure to avoid potential fraud in EB-5. While there is no single answer to this question, our EB-5 attorney dedicates a significant amount of time to conducting immigration (and common sense) due diligence reviews of EB-5 projects into which our clients choose to invest. At the outset of considering a project, the EB-5 attorney and investor obtain and study the answers to the following questions:

Preliminary Questions to ask in Selecting a Regional Center-sponsored EB-5 Investment Project

      1. Is the Regional Center approved for the Project’s specific geographic area and industries or is an amendment being requested via Exemplar application or I-526 petition?
      2. Has an Exemplar been filed? If so, when?
      3. How many EB-5 projects has the Regional Center sponsored? Completed? What is the RC’s overall I-526 and I-829 approval rate? How many Projects closed out and how many investors received the return of their capital?
      4. How many I-526 petitions for this Project have been approved?
      5. How many investors will be allowed into this project? Is there a minimum number of investors required and have all those investors been obtained? How will the developer obtain requisite funding if an insufficient number of investors subscribe?
      6. What is the project’s capital stack? What is the Developer’s participation?
      7. TEA details.
      8. Job creation details. Construction jobs – direct or indirect/induced only? Job cushion? Tenant occupancy? Timeline? Are economic model inputs clearly identified? What is the job allocation formula at I-829 stage? Who will monitor project progress and job creation
      9. If the investors’ funds are loaned to the developer, is there a collateral for the loan?
      10. What is the exit strategy?
      11. What is the process for dealing with I-526 denials? How are the denied investor’s funds repaid?
      12. Does the business plan appear credible?
      13. Does the management team instill confidence? What is the managements’ experience with EB-5?
              14. Have the project materials been prepared by an experienced team of professionals (immigration attorney, economist, business plan writer and securities counsel)?

The single most important decision in an investor’s participation in EB-5 is choosing a project in which to invest. While an EB-5 immigration attorney cannot and should not give financial and investment advice to EB-5 investors, EB-5 immigration attorneys are often in the best position to prevent an investor from selecting a “bad” project. Our EB-5 attorney has studied and worked with hundreds of EB-5 petitions and in that process developed a keen sense for identifying project issues that led to problems for investors. In working with our EB-5 clients, we transfer this knowledge to you and make sure each of our clients is an educated consumer.

7. Ask Mr. Shusterman: Our New Phone-Friendly Website

A few weeks ago, we launched our new website.

For years, over 50,000 people around the world have accessed our website each month from their computers and tablets, a lesser number from their phones.

For the last 18 months we have worked hard to launch a website which would have as much value to people accessing the site from their phones as from their computers. We believe that our new website does so.

Our biggest challenge was to allow you to access our 1,000 pages of content and important links on a much smaller screen. We also decided to use the opportunity to help you discover our 60+ “how to” immigration videos, our Facebook and Twitter pages and join the 60,000 people who subscribe to our free monthly immigration newsletter.

What follows is a crash course on how to find what you are looking for on our new website from your phone:

The top blue part of the screen on your phone contains our contact information, search and menu icons and allows you to schedule a consultation (in person, telephonic or Skype) with any of our attorneys or to follow us on social media.

Use the search and menu icons on the upper left and right corners of your screen to search for the item that you are looking for on our site or to access the following menu items:

  1. Home
  2. About Us
  3. Site Map
  4. Newsletter
  5. Blog
  6. Temporary Visas
  7. Green Cards
  8. Citizenship
  9. Processing Times
  10. Marriage Green Cards
  11. Employers
  12. Deportation Defense
  13. Visa Bulletin

You will notice that items 6 through 13 have black triangles immediately to the right of the titles. Click on the triangle and a submenu will appear which allows you to refine your search.

Alternately, you can click on our Site Map to select any of the 70+ topics related to immigration laws and procedures.

The Breaking News bar allows you to see immigration news, the Visa Bulletin and the latest issue of our newsletter simply by clicking the “+” sign.

Next is the “Immigration Solutions” section which tells you about us, allows you to watch our introductory video and explains how to access the content on our website.

After that, there are videos about various immigration topics that you can watch on your phone. Can’t find what you’re looking for? Simply click on the “View More Videos” tab.

Below are the following features:

      1. Our Immigration News Ticker
      2. Subscribe to Our Immigration Newsletter
      3. Latest Immigration News (This appears on every page while Breaking News only appears on our home page.)
      4. A footer with more information.

We also want to mention that we have created a new intake sheet which allows you to schedule a consultation with any of our attorneys. You can attach important documents to the intake sheet or even use your phone to take a photo of a document that you need to show us.

We realize that immigration laws and procedures are complex and that trying to educate the public about this subject on the small screen of a phone poses a challenge.

We will link to this article from our Facebook page. Please explore our new website on your cell phones and let us know how we can improve your user experience.

We are listening!

8. Shusterman’s Upcoming Immigration Seminars

  • Child Status Protection Act
    Continuing Legal Education
    Portland, Oregon
    August 12, 2016
    Time: Noon
  • Global Mobility in the Age of Terrorism
    Omni Hotel, Los Angeles, CA
    November 4, 2016
    Time TBD

9. Jobs & Green Cards for RNs & MedTechs
Free Legal Help!

Are you a Registered Nurse or a Medical Technologist who is looking for a job in the US?

What if you could find a job, a work visa and green cards for you and your family in the US? And what if the cost to you for all of this was zero?

Hard to believe? Let me explain:

Our law firm represents over 100 hospitals across the country. And the nurse shortage is coming back.

Our hospitals are in need of hundreds of RNs as well as Medical Technologists and other healthcare professionals. They are looking for both US and foreign-born RNs, and they will pay all of our attorneys’ fees, USCIS filing fees and more!

We have a video and a web page for those who are interested in applying for employment and sponsorship.

If you are a foreign nurse or a medical technologist and need a job in the US and the job requires a work visa and/or green card, please do the following:

Send an e-mail message to egarcia@shusterman.com

In your message, please provide the following information:

1. Have you passed the NCLEX exam?
2. Do you have a current RN license in the US? If so, from what state(s)?
3. Have you taken and passed the IELTS or TOEFL exam?
4. Do you have a valid VisaScreen certificate?
5. Do you have any immediate family members accompanying you to the United States (spouse and children)?
6. Have you ever been petitioned by any US sponsor and hold an old priority date? If so, what is your priority date?
7. If you are present in the US, what is your current immigration status?
8. What is your RN background (area of expertise)?
9. What is your country of birth?
10. What is your country of citizenship?
11. What is your phone number?

If you are a CLS, please amend the above questions accordingly.

We will forward your response to our hospitals, and if they are interested, they will contact you. Please do not contact our law firm until after you hear from one of our hospitals.

We look forward to helping you!

10. Winner of Our June 2016 Immigration Trivia Quiz!

July’s Immigration Trivia Quiz was entitled: STEM Immigrants.

Below is the message we received from the winner:

            1. . Subrahmanyan Chandrasekhar was born in India. Subrahmanyan Chandrasekhar contributed to the contemporary understanding of stellar structure, white dwarves, stellar dynamics, radiative transfer, the quantum theory of the hydrogen anion, hydrodynamic and hydromagnetic stability, equilibrium and the stability of ellipsoidal figures of equilibrium, general relativity, mathematical theory of black holes and theory of colliding gravitational waves. Subrahmanyan Chandrasekhar was awarded the 1983 Nobel Prize for Physics.
            2. Albrecht Bethe was born in Strasbourg Germany. He was a German and American nuclear physicist who made important contributions to astrophysics, quantum electrodynamics and solid-state physics. Hans Albrecht Bethe won the 1967 Nobel Prize in Physics for his work on the theory of stellar nucleosynthesis.

“My name is Tudor Bitca. I am an immigrant from Moldova. Currently I live in Colorado and work for Superlative Concrete Seal building computer systems. I have been a subscriber to your newsletter for over 5 years and I use it for news and information.”

Congratulations, Mr. Bitca!

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California
Immigration and Naturalization Service (INS) Attorney (1976-82)
Member of AILA Board of Governors (1988-97)
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017
Phone: (213) 623-4592 x0, Fax: (213) 623-3720

“We didn’t raise the Statue of Liberty with her back to the world, we did it with her light shining as a beacon to the world. And whether we were Irish or Italians or Germans crossing the Atlantic, or Japanese or Chinese crossing the Pacific; whether we crossed the Rio Grande or flew here from all over the world — generations of immigrants have made this country into what it is. It’s what makes us special”

– President Obama

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August 1, 2016

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August 2016
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Executive Office for Immigration Review: 500,051 Immigration Cases Still Pending http://www.shusterman.com/executive-office-for-immigration-review-500051-immigration-cases-still-pending/ Fri, 22 Jul 2016 17:40:12 +0000 http://www.shusterman.com/?p=56437 The rising number of unaccompanied minors arriving in the U.S. from Central American nations has exacerbated an already severe backlog in immigration courts. More than half a million cases remain pending, and the resulting delay has real implications for immigrants, asylum-seekers and their families.

The post Executive Office for Immigration Review: 500,051 Immigration Cases Still Pending appeared first on Shusterman Law.

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The rising number of unaccompanied minors arriving in the U.S. from Central American nations has exacerbated an already severe backlog in immigration courts. More than half a million cases remain pending, and the resulting delay has real implications for immigrants, asylum-seekers and their families.

The post Executive Office for Immigration Review: 500,051 Immigration Cases Still Pending appeared first on Shusterman Law.

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Shusterman’s Immigration UpdateJuly 2016 http://www.shusterman.com/shustermans-immigration-update-july-2016/ Sun, 03 Jul 2016 09:00:53 +0000 http://newsite.shusterman.com/?p=52794 Volume Twenty One, Number Five SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 40 years of experience practicing immigration law. Published by the Law Offices […]

The post Shusterman’s Immigration Update
July 2016
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Volume Twenty One, Number Five

SHUSTERMAN’S specialized knowledgeIMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 40 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.

Subscribe to our Immigration Newsletter, join the conversation on our Facebook Page, follow our Blog Posts and subscribe to our “How-To” Immigration Videos.

TABLE OF CONTENTS:

1. Supreme Court Divided on DAPA/DACA
2. State Department Visa Bulletin for July 2016
3. Immigration Government Processing Times
4. Success Story: Keeping a Family United through CSPA
5. Immigration Trivia Quiz: STEM Immigrants
6. EB-5 Investors: Investor’s Options after an I-526 Denial
7. Ask Mr. Shusterman: Who Benefits from Section 245i?
8. Shusterman’s Upcoming Immigration Seminars
9. Jobs & Green Cards for RNs & MedTechs: Free Legal Help!
10. Winner of Our June 2016 Immigration Trivia Quiz!

Client Reviews

Professional and Knowledgeable Law Firm

“I’ve had a decade of experience with Mr. Shusterman’s law firm. I used them for my immigration needs from H1 to citizenship. It is safe to say this is one of the most competent, professional and knowledgeable law firms. If there is a firm that can handle any possible immigration case routine or otherwise; then this is it.”

- D. Chen, Phoenix, Arizona

Read More Reviews

Skype Consultations Available!

NEWS FLASHES:

  • Asylum Seekers File Class Action Lawsuit Against DHS – On June 30 2016, 4 persons seeking asylum filed a class action lawsuit against the Department of Homeland Security (DHS). The asylum seekers state that DHS did not properly inform them of the deadline to file asylum applications. The lawsuit also states that DHS and the Immigration Courts did not follow the proper procedures to ensure that they would have adequate time to apply for asylum.
  • USCIS Ombudsman U Visa Parole Recommendation – The USCIS Ombudsman has recommended that the agency adopt a policy that would facilitate parole for those eligible for U nonimmigrant visas. U status is granted to those who have suffered mentally or physically as victims of certain crimes and assist law enforcement in the investigation or prosecution of such criminal activity.
  • Draft Bill Would Increase H-1B Worker Pay – The High-Skilled Integrity and Fairness Act of 2015 aims at providing visa preference to companies willing to pay well above the prevailing wage. The prevailing wage is still dependent on the level of experience being provided and the geographical location in which the job is being filled. The bill would also eliminate the 7% per country cap for employment-based green cards.
  • EB-4 Visa Limit Reached for Special Immigrants from Mexico – Mexico has met its special immigrants visa limit for the 2016 fiscal year. Anyone born in Mexico who is applying for an EB-4 green card will not be able to do so before October 1, 2016 if their Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, was submitted on or after January 1, 2010.
  • Emma: Now Available in Spanish – Spanish speaking persons can now communicate with the USCIS website through the site’s virtual assistant, Emma . Her vocabulary was developed and tested through visitors to the USCIS’s Spanish site.
  • Extension of Status/Change of Employer Pending Petition Inquiries Petitioners who filed Form I-129’s for the extension of status or change of employer can now submit inquiries if their petition has been pending for 210 days or more.
  • Litigation for Business Immigration Practitioners – On June 3, the American Immigration Council issued a practice advisory entitled Litigation for Immigration Practitioners. The practice advisory is meant to assist immigration attorneys in determining whether they should file a lawsuit in federal court.
  • Wait Times Increase at US Consular Posts in India – The last 5 years have seen an 80% rise in Indians’ demand for US visas, resulting in backlogs and increased waiting times for appointments regarding non-immigrant visas (NIVs). The Department of State Liaison of the American Immigration Lawyers Association (AILA) is seeking the Indian government’s approval to increase the number of positions at US consular posts throughout India. This is necessary if backlogs are not to continue or worsen during the normally busy summer months.

1. Supreme Court Divided on DAPA/DACA

On June 23, the Supreme Court, in United States v. Texas, issued the following 9-word decision regarding President Obama’s Executive Order which would have granted over 4 million work permits for parents of US citizens (DAPA) and persons who were brought to the US as children (Expanded DACA):

“The judgment is affirmed by an equally divided court.”

The Supreme Court split 4 to 4 on whether to affirm or overturn a preliminary injunction on both the DAPA and the expanded DACA program which was imposed by a US District Court Judge in Texas in February 2015.

The bottom line is that the injunction blocking the implementation of these programs will probably remain in place for the next few years while the Federal Courts consider the merits of the case.

The principal issues do not concern immigration policy, but instead revolve around (1) whether Texas has “standing” to challenge the Executive Order in Federal Court, and (2) whether the President has the authority to shield certain undocumented persons from removal and allow them to apply for work permits.

It will probably take until 2018 for these issues to again reach the US Supreme Court.

Until the next President is sworn-in in early 2017, the Obama Administration is expected to continue their present policy of focusing on their immigration enforcement resources on persons convicted of crimes, frequent illegal border crossers and persons who fail to appear at their removal hearings.

The presidential candidates of the major parties are, like the Supreme Court, equally divided as to the fate of these programs. Hillary Clinton supports them while Donald Trump opposes them.

As far as Congress is considered, most Democrats favor a legalization program while most Republicans do not.

The November elections will determine which Presidential candidate prevails, and whether the Republicans are able to maintain their majorities in the Senate and the House of Representatives.

A couple of things to keep in mind:

One, persons who have received EAD work permits under the current DACA program are not affected by the Supreme Court’s decision. However, the next President could discontinue the DACA program.

Two, some persons who would have received benefits under DAPA and DACA+ may be eligible for other types of immigration benefits. The Administration is on the verge of announcing new and expanded programs which would benefit many immigrants. For example, we expect the USCIS to announce the expansion of the I-601A hardship waiver program within the next few weeks.

Ultimately, however, our present immigration system is broken and despite the efforts of Presidents Bush and Obama, Congress has failed to pass legislation to fix the system for over a dozen years. We need to elect Members of Congress who will do their jobs and enact comprehensive immigration reform.

2. State Department Visa Bulletin for July 2016

EMPLOYMENT CATEGORIES

The worldwide 1st, 2nd, 4th and 5th Employment-Based (EB) preference category remain current in July.

China EB-2 and EB-3 for professionals and skilled workers both fail to advance while China EB-3 for unskilled workers retrogresses by 6 years. China EB-5 remains frozen at February 15, 2014.

India EB-2 and EB-3 both advance by 4 weeks in July.

EB-3 for persons born in the Philippines moves forward by 3 1/2 months.

EB-4 for persons born in El Salvador, Honduras and Guatemala remains frozen at January 1, 2010 while Mexico EB-4 retrogresses to that date.

The following chart tells the story of the EB numbers in detail:

A. APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES– These dates are consistent with prior visa bulletin priority dates.

Categories World China El Salvador, Guatemala, Honduras India Mexico Philippines
1st Current Current Current Current Current Current
2nd Current 1-01-10 Current 11-1-04 Current Current
3rd 3-01-16 1-01-10 3-01-16 10-22-04 3-01-16 2-15-09
Unskilled 3-01-16 1-01-04 3-01-16 10-22-04 3-01-16 2-15-09
4th Current Current 1-01-10 Current 1-01-10 Current
Religious Current Current 1-01-10 Current 1-01-10 Current
5th Current 2-15-14 Current Current Current Current

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

Categories World China India Mexico Philippines
1st Current Current Current Current Current
2nd Current 6-01-13 7-01-09 Current Current
3rd Current 5-01-15 7-01-05 Current 1-01-10
Unskilled Current 8-01-09 7-01-05 Current 1-01-10
4th Current Current Current Current Current
Religious Current Current Current Current Current
5tt Current 5-01-15 Current Current Current

FAMILY-BASED CATEGORIES

The family-based categories in the visa bulletin are as follows:
visa bulletin

An applicant’s priority date is the day that the government received the I-130 Petition. For more on family-based visas and how you can shorten your application time, see Attorney Shusterman’s video near the top of this page.

VISA BULLETIN – FAMILY

The Worldwide Family-Based (FB) priority dates advance between 1 and 9 weeks in July except for the F3 category (Married Sons and Daughters of US Citizens) which remains fixed at December 1, 2004.

FB priority dates for persons born in Mexico remain frozen in July except for Mexico FB-1 inches forward by 2 weeks. The family categories for persons born in the Philippines advance between 1 and 5 weeks.

The FB-4 numbers for brothers and sisters of U.S. citizens born in China and India fail to advance in July after retrogressing 7 months and 2 1/2 years in June indicating a lack of available visas this fiscal year which ends on September 30, 2016.

The chart below tells the story in detail:

A. APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES– These dates are consistent with prior visa bulletin priority dates.

Categories World China India Mexico Philippines
1st 3-22-09 3-22-09 3-22-09 3-08-95 2-01-05
2A 11-15-14 11-15-14 11-15-14 9-01-14 11-15-14
2B 12-08-09 12-08-09 12-08-09 9-08-95 7-01-05
3rd 12-01-04 12-01-04 12-01-04 10-22-94 3-01-94
4th 9-08-03 1-01-03 1-01-01 4-15-97 1-01-93

B. DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

Categories World China India Mexico Philippines
1st 10-01-09 10-01-09 10-01-09 4-01-95 9-01-05
2A 10-15-15 10-15-15 10-15-15 10-15-15 10-15-15
2B 12-15-10 12-15-10 12-15-10 5-15-96 1-01-06
3rd 8-01-05 8-01-05 8-01-05 5-01-95 8-01-95
4th 5-01-04 5-01-04 5-01-04 6-01-98 4-01-93

3. Immigration Government Processing Times

We have included a link to various tables where you can access the immigration waiting times

  • USCIS Service Centers
  • National Benefits Center
  • EB-5 Immigrant Investor Program Office
  • USCIS’ 83 Field Offices

Search the Field Offices for the USCIS’ 83 District Offices and Sub-offices to look up the processing times for (1) Applications for Adjustment of Status (I-485) (2) Work Authorization (I-765); (3) Advance Parole (I-131); (4) Naturalization (N-400) and other types of applications. To access your immigration waiting time, what you need to know are:

  • The office where your petition has been filed or transferred to
  • The type of application or petition
  • The date on which the petition was filed

This information can all be found on the Notice of Receipt that was mailed to you by the USCIS. To begin, simply click on the Field Office or Service Center that interests you and click “Submit Query” and you will be directed to the current USCIS processing time table.

If your petition/application is on appeal, you can access the processing times of the Administrative Appeals Office (AAO).

If your PERM case or other type of application is pending at the DOL, we link to the Department of Labor Processing Times.

If you are applying for a visa abroad, we link to Visa Appointment and Processing Times at 100+ US Embassies and Consulates around the world.

If you have requested a copy of your file from the USCIS, you can check the status of your Freedom of Information Act (FOIA) request.

If you are applying for affirmative asylum you can check how the Asylum Division has prioritized applications for interview scheduling.

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

4. Success Story: Keeping a Family United through CSPA

This month’s success story explains how attorney Jennifer Cohn Rozdzielski was able to keep a family united by arguing the client was qualified for a visa under the Child Status Protection Act (“CSPA”). Our client Mohammad, a US citizen, had filed a family-based petition on behalf of his brother and his family in July 2003.

Mohammad’s brother and his family are from Jordan. Due to the long delay by the USCIS, the petition was not approved until 6 years later in August 2009. But although the petition was approved, the priority did not become current until April 2016. By this time, Mohammad’s oldest nephew Faris had turned 21 years of age.

In order to qualify as a derivative to a family-based petition a child must be under the age of 21. In Faris’ case the entire family including Faris’ mother, father, and 4 siblings were all issued visas from the US Embassy in Jordan, but the embassy refused to issue an immigrant visa to Faris. The embassy erroneously claimed that Faris was not protected under the CSPA. This is where attorney Jennifer Cohn Rozdzielski came in.

Upon receiving notification that the US Embassy in Jordan was refusing to issue a visa for Faris, she immediately contacted the Embassy. The CSPA was established for situations exactly like that of Faris where through no fault of his own, the delay caused Faris to age out. Jennifer Cohn Rozdzielski argued that Faris’ CSPA age was 15 years and therefore he is considered a child under the immigration law.

The CSPA is determined by subtracting the length of time that the I-130 visa petition was pending before being approved by USCIS. An aged-out child has one year from the date the visa becomes current to seek adjustment of status or an immigrant visa. Subtracting 6 years from Faris’ biological age of 21 makes his CSPA age 15.

Following Jennifer Cohn Rozdzielski’s demand, the US embassy in Jordan agreed Faris was in fact protected under the CSPA and immediately contacted Faris to issue his visa. Now the entire family is able to remain united and immigrate to the United States.

5. Immigration Trivia Quiz: STEM Immigrants

This month’s Immigration Trivia Quiz is entitled:

STEM Immigrants

The first person to correctly answer our quiz (and supply their biographical information) wins a free legal consultation with one of our attorneys before the end of July.

6. EB-5 Investors: Investor’s Options after an I-526 Denial

by Attorney Belma Demirovic Chinchoy

Belma ChinchoyLet me begin by saying that in my five years of working on EB-5 petitions – during which time I’ve seen hundreds of petitions – I have only seen two instances of I-526 denials. In one case, the investor client expected a denial due to his failure to provide adequate source of funds documents. Going against the attorney’s advice not to file I-526 petition, investor wanted to “take his chance” and filed a petition with inadequate support for lawful source of funds. After an unsuccessful response to a Request for Evidence, this investor’s I-526 petition was denied. The other I-526 denial was related to USCIS’s change in adjudications policy and (improper) retroactive application of changed policies. This investor, however, pursued relief in Federal Court and his I-526 petition was ultimately approved.

In recent weeks, I have heard from several investors whose I-526 petitions were denied or were about to be denied because the investor could not provide an adequate response to USCIS’ request for evidence. So I thought it timely to explore options for investors faced with I-526 denials.

Do Everything in Your Power to Avoid an I-526 Denial
Yes, this is an obvious point, but the best way to deal with an I-526 denial is to avoid it. As a matter of policy, USCIS will not outright deny an I-526 petition without issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). Investors must take seriously and RFE and NOID and do everything in their power to prepare an adequate and timely response. RFEs and NOIDs have strict response deadlines that cannot be extended so timely planning is essential.

Receiving a RFE or NOID gives investor a 2nd chance to perfect their I-526 petitions. If needed, they can obtain expert opinions, provide objective and credible evidence for why certain documents cannot be provided, argue in the alternative and get opinions from experienced EB-5 RFE attorneys. Do not leave any issue unadressed and provide the best evidence possible. The possibility of an RFE or NOID is why investors should stay in contact with project principals to make sure the project is progressing as planned.

Prevailing on an I-526 RFE or NOID means the past 12-16 months of I-526 adjudication time will not have been in vain and your immigrant application can move forward.

In some cases, investors may choose to withdraw an I-526 petition before they receive a denial in order to preserve their immigration record and pursue other immigration paths or start the process over as soon as possible. Such decision is individual and must be evaluated carefully by the investor’s attorney.

File a Motion to Reopen/Reconsider & Appeal, Start Over or Complain in Federal Court?
Investors faced with an I-526 denial have three choices: 1) Appeal the decision; 2) File a Complaint in Federal Court, and 3) Start the I-526 process over or pursue other immigration paths. Here is a closer look at each of these options.

Motion to Reopen or Reconsider
Filing a Motion to Reopen/Reconsider with USCIS is usually the next step in dealing with a denial from the USCIS. Unfortunately, this approach is rarely successful. A Motion to Reopen requires that the investor provide evidence which was previously unavailable. Given that an RFE and a NOID proceed nearly all I-526 denials, investors have generally had an opportunity to provide persuasive evidence to the USCIS. Receiving a RFE or NOID generally means that the investor does not have the evidence USCIS deems necessary to approve the I-526 petition.

A Motion to Reconsider is based on a legal argument which asks USCIS to reconsider an issue which they erroneously decided. Once again, following a response to an RFE and a NOID, it is difficult to imagine that new legal arguments remain to be raised. Furthermore, in terms of strategy, I would argue that it is usually better raise a legal argument in Federal Court than in a Motion to Reconsider.

If, upon review of a Motion to Reopen/Reconsider, USCIS decides to uphold its previous decision, it will forward the motion to the Administrative Appeals Office (AAO). Submission to the AAO is the outcome in nearly all MTRs. The AAO is the agency with jurisdiction over appeals of USCIS decisions. In vast majority of cases, however, the AAO upholds the USCIS’ decision. If a persuasive argument for interpretation of the evidence can be made, it is generally made and accepted before a case reaches the AAO. Nonetheless, USCIS sometimes errs in its decision and an appeal to the AAO may be an appropriate route for some investors. The AAO processing time is generally between 6 and 9 months.

Federal Court
Filing a complaint in Federal Court is the best option for some I-526 denials. In cases where USCIS erred in its application of EB-5 rules/regulations, failed to consider properly the evidence on file or acted arbitrarily or capriciously, it is best to take one’s argument to a Federal Judge. While filing a case in Federal Court is considerably more complicated and costly than pursuing options discussed above, we have had a very high success rate in Federal Court. Naturally, not all cases are good fits for Federal Court but an opportunity to be heard before a Federal Judge often has the best outcome for the EB-5 investor wronged by an erroneous USCIS decision.

Starting Over
In some cases, starting the I-526 process over or pursuing another path to permanent residence (where one exists) is the best way to proceed after an I-526 denial. In most cases, of course, this path assumes the investor can recover their previously invested EB-5 capital within a reasonable amount of time. It also assumes there are no other pressing eligibility issues, such as age-outs or unlawful presence.

I urge all of our EB-5 investor clients to stay in close contact with the project in which they invested during the pendency of the I-526 petition. (And I do the same). Knowing the project’s status allows the investor to not only plan for responding to an RFE or NOID, but it also helps them prepare for the possibility of capital return should it be required.

Investors whose I-526 denials were based on project issues are strong candidates for filing new I-526 petitions with a different project. Investors whose I-526 denials are caused by source of funds issues, however, most likely should not file a new I-526 unless they have access to a different lawful source of funds. Starting the EB-5 process can be demoralizing for many immigrants, especially now given the exceptionally long processing times by USCIS. However, permanent residence through EB-5 is still the best option for many foreign nationals who cannot access other immigration programs or who come from countries with huge backlogs in other employment and family-based categories.

7. Ask Mr. Shusterman: Who Benefits from Section 245i

Section 245i allows certain persons who are not otherwise eligible to adjust their status to permanent resident without having to leave the US. The law went into effect in 1994.

Section 245i allows the following persons to adjust their status in the US:

• Persons who entered the US without being inspected by a CBP officer;
• Persons who worked in the US without authorization;
• Persons who overstayed or otherwise violated their nonimmigrant status; and
• Persons whose nonimmigrant status does not permit them to adjust their status in the US. (Examples: Persons who entered the US with transit visas or by using the Visa Waiver Program, etc.)

Persons who had visa petitions (I-130, I-140, I-360, I-526) or PERM applications filed on their behalf on or before April 30, 2001 may be eligible to adjust their status in the US under Section 245i.

Section 245i requires immigrants who apply for adjustment of status to pay a fine (currently $1,000) in addition to normal USCIS filing fees.

Approvable When Filed

The PERM application or visa petition must be “approvable when filed”, even if it is not ultimately approved, is withdrawn or the petitioner ceases to exist.

In order to be considered “approvable when filed”, the petition/application must be

1. Properly filed
2. Meritorious in fact
3. Non-Frivolous

The original Section 245i expired on January 14, 1998. However, the LIFE Act extended 245i until April 30, 2001, but added the requirement that anyone applying for adjustment of status after January 14, 1998 must show that they were present in the US on December 21, 2000, the date that the LIFE Act was signed into law.

Section 245i also applies to spouses and children of the beneficiary of the PERM application or visa petition. Even if the spouse obtains a divorce, the spouse and his/her new family will be eligible to adjustment of status under Section 245i. The same rule applies to children who age-out and/or marry.

Grandfathered

Once a person qualifies under Section 245i, they are “grandfathered” as eligible for benefits for the rest of their lives. However, in the case of a divorce or an “age-out”, Section 245i is only applicable to new family members where the relationship existed before the principal beneficiary adjusted his or her status.

In order to be “grandfathered”, the relationship establishing the derivative spouse or child must have been in existence on or before April 30, 2001. Spouses and children who were born after that date or whose marriage took place after that date are classified as “after-acquired,” are not considered “grandfathered,” and thus cannot adjust under Section 245i. Nevertheless, if they are considered derivatives (“dependents”) of the principal beneficiary at the time he/she is adjusting under Section 245i, they may adjust their status in the US as a derivative with that parent or spouse. However they may not adjust their status under section 245i independent of that relationship.

8. Shusterman’s Upcoming Immigration Seminars

    Global Mobility in the Age of Terrorism
    Omni Hotel, Los Angeles
    November 4, 2016

9. Jobs & Green Cards for RNs & MedTechs
Free Legal Help!

Are you a Registered Nurse or a Medical Technologist who is looking for a job in the US?

What if you could find a job, a work visa and green cards for you and your family in the US? And what if the cost to you for all of this was zero?

Hard to believe? Let me explain:

Our law firm represents over 100 hospitals across the country. And the nurse shortage is coming back.

Our hospitals are in need of hundreds of RNs as well as Medical Technologists and other healthcare professionals. They are looking for both US and foreign-born RNs, and they will pay all of our attorneys’ fees, USCIS filing fees and more!

We have a video and a web page for those who are interested in applying for employment and sponsorship.

If you are a foreign nurse or a medical technologist and need a job in the US and the job requires a work visa and/or green card, please do the following:

Send an e-mail message to egarcia@shusterman.com

In your message, please provide the following information:

1. Have you passed the NCLEX exam?
2. Do you have a current RN license in the US? If so, from what state(s)?
3. Have you taken and passed the IELTS or TOEFL exam?
4. Do you have a valid VisaScreen certificate?
5. Do you have any immediate family members accompanying you to the United States (spouse and children)?
6. Have you ever been petitioned by any US sponsor and hold an old priority date? If so, what is your priority date?
7. If you are present in the US, what is your current immigration status?
8. What is your RN background (area of expertise)?
9. What is your country of birth?
10. What is your country of citizenship?
11. What is your phone number?

If you are a CLS, please amend the above questions accordingly.

We will forward your response to our hospitals, and if they are interested, they will contact you. Please do not contact our law firm until after you hear from one of our hospitals.

We look forward to helping you!

10. Winner of Our June 2016 Immigration Trivia Quiz!

June’s Immigration Trivia Quiz was entitled: Famous Foreign Films.

Below is the message we received from the winner:

  1. Bicycle Thieves
  2. Seven Samurai
  3. A Separation

About me:

“Hello,

I have seen all of these movies.

My name is Galia Avramov. I am an immigrant from Bulgaria. I enjoy reading your newsletter.

Sincerely,

Galia Avramov”

Congratulations Galia! I think we came up with a great solution to your immigration dilemma!

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California
Immigration and Naturalization Service (INS) Attorney (1976-82)
Member of AILA Board of Governors (1988-97)
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017
Phone: (213) 623-4592 x0, Fax: (213) 623-3720

“If we did not have immigration to this country we would not eat. Whether it’s documented or undocumented, we would not eat”

– US Secretary of the Interior Sally Jewell

Quick Links –

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July 7, 2016

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.

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July 2016
appeared first on Shusterman Law.

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SCOTUS Ruling Affecting Millions of Families http://www.shusterman.com/scotus-affect/ Mon, 27 Jun 2016 18:52:45 +0000 http://www.shusterman.com/?p=53758 The recent SCOTUS ruling will have a serious affect on millions of families. Both presidential candidates Hilary Clinton and Donald Trump weighed in on the decision and both have different stances on the matter. Read more here:  http://www.refinery29.com/2016/06/114819/supreme-court-immigration-reform-dapa-daca-ruling        

The post SCOTUS Ruling Affecting Millions of Families appeared first on Shusterman Law.

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The recent SCOTUS ruling will have a serious affect on millions of families. Both presidential candidates Hilary Clinton and Donald Trump weighed in on the decision and both have different stances on the matter.

Read more here:  http://www.refinery29.com/2016/06/114819/supreme-court-immigration-reform-dapa-daca-ruling

 

 

 

 

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Free Jobs & TN Visas for Canadian Nurses http://www.shusterman.com/free-jobs-tn-visas-for-canadian-nurses/ Sat, 25 Jun 2016 01:30:30 +0000 http://www.shusterman.com/?p=53616 One of our clients, Prime Healthcare, will be in Toronto, Canada on October 1st and 2nd to recruit Registered Nurses for jobs in the U.S. Not only will they pay your relocation costs and visa fees, but some RNs will qualify for a $10,000 bonus.    

The post Free Jobs & TN Visas for Canadian Nurses appeared first on Shusterman Law.

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One of our clients, Prime Healthcare, will be in Toronto, Canada on October 1st and 2nd to recruit Registered Nurses for jobs in the U.S.

Not only will they pay your relocation costs and visa fees, but some RNs will qualify for a $10,000 bonus.

 

prime
 

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Supreme Court to Rule on Landmark Immigration Case http://www.shusterman.com/supreme-court-to-rule-on-landmark-immigration-case/ Tue, 21 Jun 2016 16:48:51 +0000 http://www.shusterman.com/?p=53229 The Supreme Court is nearing a decision on the United States v. Texas case. If the Supreme Court rules in favor of Obama’s legislation, it would protect young immigrants that were brought to the United States as children from deportation.

The post Supreme Court to Rule on Landmark Immigration Case appeared first on Shusterman Law.

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The Supreme Court is nearing a decision on the United States v. Texas case.

If the Supreme Court rules in favor of Obama’s legislation, it would protect young immigrants that were brought to the United States as children from deportation.

The post Supreme Court to Rule on Landmark Immigration Case appeared first on Shusterman Law.

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Shusterman’s Immigration UpdateJune 2016 http://www.shusterman.com/newsletterusimmigrationjune2016/ Tue, 14 Jun 2016 22:25:53 +0000 http://newsite.shusterman.com/?p=52697 Volume Twenty One, Number Four SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 40 years of experience practicing immigration law. Published by the Law Offices […]

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June 2016
appeared first on Shusterman Law.

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Volume Twenty One, Number Four

SHUSTERMAN’S specialized knowledgeIMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 40 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.

Subscribe to our Immigration Newsletter, join the conversation on our Facebook Page, follow our Blog Posts and subscribe to our “How-To” Immigration Videos.

TABLE OF CONTENTS:

1. USCIS Proposes 21% Increase in Filing Fees
2. State Department Visa Bulletin for June 2016
3. Immigration Government Processing Times
4. Success Story: Options for an Extraordinary Employee
5. Immigration Trivia Quiz: Famous Foreign Films
6. Immigration for Families of Filipino WWII Veterans
7. Ask Mr. Shusterman: Good News For Physicians Who Want Green Cards
8. Shusterman’s Upcoming Immigration Seminars
9. Jobs & Green Cards for RNs & MedTechs: Free Legal Help!
10. Winner of Our May 2016 Immigration Trivia Quiz!

Client Reviews

Very Efficient and Professional!

“I would like to thank the team of Carl Shusterman’s Office who took care of my application for naturalization. Everything went well and very fast! Very efficient and professional!”

– Jennie Kil, San Francisco, CA

Read More Reviews

Skype Consultations Available!

NEWS FLASHES:

  • CRS Report on the EB-5 Immigrant Investor Visa Program – The Congressional Research Service has released a report regarding the EB-5 Immigrant Investor Program . The EB-5 program provides legal permanent residence to persons who invest $500,000 or $1 million dollars in a “new commercial enterprise”, thus creating an influx of jobs and revenue in the United States. This report gives an explanation of the program, lists the qualification requirements, discusses how the program affects the American Economy and refers to legislation and public policy issues in the 114th Congress.
  • Green Card Lottery Results for 2017 – USCIS has released a list of results for the 2017 Electronic Diversity Visa. This program allows 50,000 persons annually from countries which do not send a lot of immigrants to the United States to apply for permanent residence once they are chosen through a lottery. These persons must obtain their green cards between October 1, 2016 and September 30, 2017 either in the US or abroad.
  • Lawsuit Seeks Transparency in H-1B Lottery Process – The American Immigration Council and the American Immigration Lawyers Association (AILA) have brought a lawsuit against the U.S. Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) in order to create a system in which the H-1B lottery process is more transparent.
  • National Border Patrol Council Endorses Donald Trump for President – The National Border Patrol Council (NBPC) has endorsed Donald Trump for President of the United States even through the NBPC generally refrains from endorsing presidential candidates.
  • Nonimmigrants: Who Can Study in the US? – A chart released by the U.S. Immigration and Customs Enforcement (ICE) agency details which classes of nonimmigrants are eligible to attend school in the US.
  • Responding to a Request for Evidence – The American Immigration Council has published a step-by-step guide regarding how to respond to a Request for Evidence (RFE) for an employment-based petition.
  • Temporary Protected Status for Nicaragua and Honduras – Current TPS beneficiaries from Nicaragua and Honduras who want to extend their TPS must re-register during the 60-day re-registration period that runs from May 16, 2016 through July 15, 2016. USCIS encourages beneficiaries to re-register as soon as possible. Please see Temporary Protected Status (TPS) in the US.
  • Two Copies of I-589 Applications No Longer Required – The State Department no longer requires a copy of Form I-589, Application for Asylum. The USCIS has announced that they will now be the only agency which reviews the form for approval. Hence, applicants for asylum need only submit one I-589 form.
  • U.S. Uncovers $20M H-1B Fraud Scheme – A couple from Virginia has been indicted on account of running an H-1B visa-for-sale scheme. They created false companies with non-existent job vacancies where they hired workers on a contract basis and had them pay for their own H-1B petitions. They were able to collect around $20 million from this scheme.
  • USCIS Reaches H-2B Cap for Fiscal Year 2016 – The U.S. Citizenship and Immigration Services announced that the 2016 H-2B cap has been reached.
  • Visa Bulletin Lawsuit Dismissed – A Federal Judge has dismissed a lawsuit challenging USCIS’ failure to accept the earlier filing dates posted on the monthly State Department Visa Bulletin starting in October 2016.

1. USCIS Proposes 21% Increase in Filing Fees

Unlike most other government agencies, the USCIS is 95% financed by filing fees. And because the agency cannot charge fees for asylum applications, applicants for other types of immigration benefits are subject to a surcharge to subsidize the asylum offices.

This is why, on May 4, the USCIS issued a proposed rule to increase filing fees by an average of 21%. The last time that the agency raised its filing fees, we made some suggestions on how Congress could revamp the filing fee system to make it more equitable.

If the proposed regulations are adopted as is, the filing fees in the EB-5 investor sector would rise precipitously. The fee for an I-924 for organizations seeking to be designated as regional centers would increase from $6,230 to $17,795. And so the existing 790 regional centers won’t feel left out, the USCIS has decided to impose a filing fee of $3,035 on I-924As which must be filed annually in order to maintain their status as regional centers. The fee for investors filing an I-526 would rise from $1,500 to $3,675.

Okay, so nobody feels sorry for multi-millionaires. How about employment-based immigration?

The fee for I-129 petitions for H-1B and L-1 workers would increase 42% from $325 to $460, and as we all know that is just a small fraction of the total filing fees for such petitions. Companies which file a lot of such petitions and whose workforce is mostly made up of foreign workers will have to pay $4,000 for an H-1B petition and $4,500 for an L-1 petition.

In order to sponsor a foreign-born worker for a green card, an employer must file an I-140 petition.

The fee for an I-140 would rise from $580 to $700.

How would fee increases affect applications filed on an everyday basis by ordinary folks?

The fee for an application for adjustment of status (I-485) would rise by 16%, 8% for an I-765 for an EAD work permit, a whopping 60% for an I-131 Advance Parole and a 28% increase for an application to extend or change status (I-539).

For applications for naturalization, the cost of which was $15 when I worked as an INS Citizenship Attorney in the late 1970s, the filing fee would rise from $595 to $640 (plus another $85 for fingerprinting). However, for the first time, certain low-income persons would only have to pay $320 (yes, plus $85 for fingerprinting).

So while I am pleased that the government is trying to ameliorate the costs of obtaining at least one important immigration benefit for low income immigrants, I believe much more can and should be done.

Extending the section 245i adjustment of status program would have many positive immigration impacts and would raise between $100 million and $200 million in additional filing fees annually. Of course, this would require Congressional action. Okay, forget it.

But how about imposing a surcharge on I-485s filed under section 245k? Wouldn’t bring in much money? USCIS could impose a surcharge on immediate relative adjustments where the beneficiary is out of status. And allow a parole-in-place (with a fee) for DACA beneficiaries who entered the US without inspection and would now like to adjust their status.

Do you have alternatives to the USCIS’s proposed filing fees?

Remember, you can submit comments on this proposed rule until July 5. You may email comments directly to USCIS at uscisfrcomment@dhs.gov. Include DHS Docket No. USCIS-2016-0001 in the subject line of yout message.

2. State Department Visa Bulletin for June 2016

EMPLOYMENT CATEGORIES

The Worldwide Employment-Based (EB) Visa Preference Categories all are current (no backlogs) in June except for EB-3 professionals, skilled and unskilled workers which remains fixed at February 15, 2016.

Due to a lack of available visas, China EB-2 retrogresses 20 months while China EB-3 for professionals retrogresses 3 years and 7 months. India EB-2 retrogresses over 4 years. One should not expect any forward movement in China EB-2 or EB-3 until the beginning of the new fiscal year in October 2016. India EB-2 may advance slowly during the summer.

There is a slight forward movement in India EB-3 (3 weeks), China EB-5 (1 week) and an 11-month advance in EB-3 Philippines.

The USCIS has announced that it will not accept any applications for adjustment of status in June unless the person’s priority date has been reached.

The following chart tells the story of the EB numbers in detail:

A. APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES– These dates are consistent with prior visa bulletin priority dates.

World China (PRC) El Salvador, Guatemala, Honduras India Mexico Philippines
1st Current Current Current Current Current Current
2nd Current 1-01-10 Current 10-1-04 Current Current
3rd 2-15-16 10-01-10 2-15-16 9-22-04 2-15-16 11-01-08
Unskilled 2-15-16 4-22-07 2-15-16 9-22-04 2-15-16 11-01-08
4th Current Current 1-01-10 Current Current Current
Religious Current Current 1-01-10 Current Current Current
5th Non-Regional Center (C5 and T5) Current 2-15-14 Current Current Current Current
5th Regional Center (I5 and R5) Current 2-15-14 Current Current Current Current

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS– These dates indicate when immigrant applicants can send adjustment of status applications without having to wait for their priority dates to become current. The State Department failed to advance any of the filing dates in the June Visa Bulletin.

Categories Worldwide China (PRC) India Mexico Philippines
1st Current Current Current Current Current
2nd Current 6-01-13 7-01-09 Current Current
3rd Current 5-01-15 7-01-05 Current 1-01-10
Unskilled Current 8-01-09 7-01-05 Current 1-01-10
4th Current Current Current Current Current
Religious Current Current Current Current Current
5th Non-Regional Center (C5 and T5) Current 5-01-15 Current Current Current
5th Regional Center (I5 and R5) Current 5-01-15 Current Current Current

FAMILY CATEGORIES

The Worldwide Family-Based (FB) Priority Dates advance between 1 and 7 weeks in June except for the F3 category (Married Sons and Daughters of US Citizens) which remains fixed at December 1, 2004.

FB for persons born in Mexico and the Philippines advance slowly in June except for Mexico FB-2B which fails to advance and Philippines FB-1 and FB-4 which advance 11 and 8 weeks, respectively.

The FB-4 numbers for brothers and sisters of U.S. citizens born in China and India retrogress 7 months and 2 1/2 years respectively indicating a lack of available visas this fiscal year.

The USCIS has announced that it will not accept any applications for adjustment of status in June unless the person’s priority date has been reached.

The chart below tells the story in detail:

A. APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

Categories Worldwide China (PRC) Mexico Philippines
1st 1-15-09 1-15-09 2-22-95 12-22-04
2A 11-08-14 11-08-14 9-01-14 11-08-14
2B 10-22-09 10-22-09 9-08-95 6-01-05
3rd 12-01-04 12-01-04 10-22-94 2-01-94
4th 8-08-03 1-01-03 4-15-97 12-01-92

B. DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS– These dates indicate when immigrant applicants can send adjustment of status applications without having to wait for their priority dates to become current. Like the employment-based categories, the State Department fails to advance any of the family-based filing dates in June.

Categories Worldwide China (PRC) Mexico Philippines
1st 10-01-09 10-01-09 4-01-95 9-01-05
2A 10-15-15 10-15-15 10-15-15 10-15-15
2B 12-15-10 12-15-10 5-15-96 1-01-06
3rd 8-01-05 8-01-05 5-01-95 8-01-95
4th 5-01-04 5-01-04 6-01-98 4-01-93

3. Immigration Government Processing Times

We have included a link to various tables where you can access the immigration waiting times

  • USCIS Service Centers
  • National Benefits Center
  • EB-5 Immigrant Investor Program Office
  • USCIS’ 83 Field Offices

Search the Field Offices for the USCIS’ 83 District Offices and Sub-offices to look up the processing times for (1) Applications for Adjustment of Status (I-485) (2) Work Authorization (I-765); (3) Advance Parole (I-131); (4) Naturalization (N-400) and other types of applications. To access your immigration waiting time, what you need to know are:

  • The office where your petition has been filed or transferred to
  • The type of application or petition
  • The date on which the petition was filed

This information can all be found on the Notice of Receipt that was mailed to you by the USCIS. To begin, simply click on the Field Office or Service Center that interests you and click “Submit Query” and you will be directed to the current USCIS processing time table.

If your petition/application is on appeal, you can access the processing times of the Administrative Appeals Office (AAO).

If your PERM case or other type of application is pending at the DOL, we link to the Department of Labor Processing Times.

If you are applying for a visa abroad, we link to Visa Appointment and Processing Times at 100+ US Embassies and Consulates around the world.

If you have requested a copy of your file from the USCIS, you can check the status of your Freedom of Information Act (FOIA) request.

If you are applying for affirmative asylum you can check how the Asylum Division has prioritized applications for interview scheduling.

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

4. Success Story: Options for an Extraordinary Employee

Many immigration cases can be more complicated than they initially appear. For one fledgling digital entertainment venture, the path to bringing an essential foreign national employee to the United States was paved with unique immigration hurdles that required multiple creative solutions.

A prominent entertainment company in Los Angeles asked Immigration Attorney Nicole Black to help resolve a difficult problem: To keep up with the changing needs of content consumers, the company wanted to start a new-media production company to launch feature films, series, and entertainment shows on emerging digital platforms. A valuable Consultant located in the United Kingdom had been helping the company hone its ambitious strategy. Once the strategizing was complete, the company required the onsite services of its Consultant to ensure that the company’s ambitious new venture would be executed successfully.

Nicole first informed the company that although the Consultant was eligible for H-1B status, the application would be subject to the H-1B cap, and thus could not be filed until April 1. Moreover, even if the H-1B status was approved, the earliest date the Consultant could join the company would be the start of the new fiscal year, October 1. The company had no time to delay—the Consultant was needed immediately. That meant that H-1B was out.

Next, Nicole explained that another popular employment-based immigration option, L-1, required that the Consultant first work for at least one year for a company outside the United States with a qualifying corporate relationship (such as parent or subsidiary) to the U.S. prospective employer. The Consultant had never worked for such an entity; thus, L-1 was also out.

The company explained that the Consultant would remain an employee of his current employer outside the United States and would be paid by the foreign employer. The U.S. assignment would be temporary and would not last longer than 6 months—just enough time to make sure the new digital studio was established and running smoothly. The company asked Nicole, “Can’t we just have him visit the U.S. as a B-1/B-2 or ESTA visitor?” But after a discussion of the company’s needs, it was clear that the Consultant’s activities would not be restricted to those permitted for business visitors, and that he would instead be actively engaging in productive work on U.S. soil. The company agreed that it was not worth the risk to the company or the Consultant to have him enter the U.S. as a visitor and engage in prohibited productive work.

With the traditional options exhausted, it was time to get really creative! Nicole explained that an immigration option known as “B-1 in lieu of H-1B” was available to a temporary worker who qualifies for H-1B status, but has a permanent job with a company outside the U.S. and will make a short visit to the U.S. to complete an assignment for the benefit of his foreign employer. Even some immigration officers are unfamiliar with the unique B-1 in lieu of H-1B option, so a thoroughly prepared application package and detailed attorney guidance was essential to success. Just a few weeks later, the Consultant had a B-1 in lieu of H-1B visa in hand and was on his way to the United States.

At the conclusion of his assignment, the Consultant returned to his home and permanent employment in the United Kingdom. He had performed such valuable work during that assignment, however, that the U.S. company decided to offer the Consultant a position as an employee in the U.S. so that he could continue helping with the new venture—which meant his immigration saga would begin anew.

Since the company was already aware of the lengthy delay required for a cap-subject H-1B petition, the company asked Nicole if there was any way to get the potential employee back sooner. Realizing how valuable the Consultant had been to the company and how extraordinary his contributions would continue to be, Nicole suggested an O-1A petition, arguing that the Consultant was an Individual of Extraordinary Ability in Business. Generally, O-1A petitions on behalf of businesspersons can be an uphill battle, because proving “extraordinary ability” is a challenging standard to meet. (As one might expect!)

Nicole worked with the company and its prospective employee for weeks, gathering key documents and preparing stakeholders for the next steps in the process to avoid delays. That hard work paid off, as the distinguished reputation of the company and strong credentials of the Consultant won the day and the case was approved.

The results in this case underscore the importance of seeking advice from a qualified immigration attorney who understands the entire alphabet of immigration options available under U.S. immigration law. With creative strategy and thoughtful execution, even the most difficult case can become “extraordinary.”

5. Immigration Trivia Quiz: Famous Foreign Films

This month’s Immigration Trivia Quiz is entitled:

Famous Foreign Films

The first person to correctly answer our quiz (and supply their biographical information) wins a free legal consultation with one of our attorneys before the end of June.

6. Immigration for Families of Filipino WWII Veterans

Starting June 8, 2016, and continuing for a minimum of 5 years, certain family members of Filipino World War II Veterans who are waiting for their family-based priority dates to be current will be permitted to apply to be paroled into the US.

Who is Eligible to Apply?

Persons who are beneficiaries of approved I-130 relative petitions in the family-based preference categories. The petitioner must be either the veteran or his spouse. Beneficiaries include unmarried sons and daughters (F1), married sons and daughters (F3) or brothers and sisters (F4). Spouses and minor, unmarried children of these beneficiaries would be permitted to accompany them to the US.
The veteran or the petitioning spouse must be living in the US, or if they are deceased, the petitioner must have been living in the US at the time of his or her death.

Who Qualifies as a Veteran?

1. Individuals who are listed on the final roster prepared by the recovered Personnel Division of the US Army of those who served honorably in active duty status in the Philippine Army during the World War II occupation and liberation of the Philippines;
2. Individuals who are listed on the final roster prepared by the Guerilla Affairs Division of the US Army of those who received recognition as having served honorably in an active duty status within a recognized guerilla unit during the World War II occupation and liberation or the Philippines; or
3. Individuals who served honorably in an active duty status within the Philippines Scouts or within any other component of the US Armed Forces in the Far East (other than a component described above) any time beginning September 1, 1939 and ending December 21, 1945.

How Can I Apply?

You must submit a completed Form I-131, Application for Travel Document and Form I-134, Affidavit of Support plus the required filing fees on behalf of each beneficiary who is requesting to be paroled into the US. Documentation of the veteran’s qualifying military service must be included with the application.

USCIS will evaluate these requests on a case-by-case basis, and there is no appeal from a denial.

Example: If you are coming to the US to care for the veteran or his surviving spouse, this increases the chances that your request for parole will be granted.
The USCIS estimates that 6,000 requests for parole under this policy will be granted over the next 5 years.

7. Ask Mr. Shusterman: Good News for Physicians That Want Green Cards

Physicians who want Green CardsOn March 9, 2016, the USCIS designated Matter of H-V-P, I.D. 16270 (AAO) as a precedent decision. It provides that the physicians who are specialists who practice in a medically-underserved area for a minimum of 5 years are entitled to permanent residence in the US through a National Interest Waiver (NIW).

Is this really news? No, but the Director of USCIS’s Texas Service Center had denied that the physician’s NIW, holding that only primary care physicians are entitled to such waivers, this despite the fact that the USCIS has approved thousands of such NIWs for specialists over the past decade.

Some recounting of history is required to explain this:

The Law (1999)

On November 12, 1999, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999 (“Nursing Relief Act”), was enacted to encourage foreign-born physicians to practice in medically underserved areas of the US.

The law allows “all alien physicians” who practice for at least 5 years in a medically-underserved area to qualify a green card.

The Regulation (2000)

On September 6, 2000, to implement the statute, the Immigration and Naturalization Service (“INS”) published a regulation which restricted the applicability of the law to primary care physicians. The regulation also contained a number of other restrictive provisions not found in the law.

The Lawsuit (2002-2006)

On December 9, 2002, one Grumpy Immigration Attorney (Yours Truly) filed a lawsuit in Federal District Court challenging the various restrictive clauses contained in the regulation which contradicted the generous terms of the law.

On my birthday in 2004, the Federal Judge dismissed our lawsuit. Happy Birthday, Carl!

We appealed this decision to the US Court of Appeals for the 9th Circuit, and on June 7, 2006, in Schneider v. Chertoff, the Appeals Court unanimously ruled in our favor.

However, the Court declined to rule on one of the most important restrictions, that which prohibited specialists from qualifying for NIWs. Among the many physicians across the US who volunteered to be plaintiffs in our lawsuit, only one was a specialist. We made sure that his attorney filed an I-140 NIW on his behalf. The USCIS sent him a Request for Evidence (RFE) asking why he, as a specialist, was applying for an NIW since the regulations specifically prohibited this. Rather than respond to the RFE, his attorney simply failed to take action, and the I-140 was denied because of his failure to submit a timely response.

Hence, the Appeals Court declined to decide this issue on the ground that the specialist had no “standing” to challenge this section of the regulations since his NIW petition was denied for his failure to respond to an RFE, not because he was a specialist.

The Memo (2007)

Although I was thrilled to win the lawsuit, I was disappointed that the Court had not ruled on this important issue.

A couple of weeks later, I spoke at the Annual Conference of the American Immigration Lawyers Association (AILA) in Nashville, Tennessee.

It was there that I had a conversation with a top official of the USCIS. He was concerned that I was requesting attorney’s fees from the government for my 4 years of work in Schneider v. Chertoff under the Equal Access to Justice Act (EAJA). In turn, I expressed my concern about having to sue the government once again to resolve the issue of whether a specialist physician could qualify for an NIW.

We agreed that if I would drop my request for EAJA fees, he would include a clause in the upcoming USCIS memo stating that physicians who were specialists could qualify for green cards through NIWs.

On January 23, 2007, the USCIS issued a policy memo which declared that “though not mandated by the Schneider decision, USCIS is expanding the fields of medical specialty that may qualify physicians for NIWs by accepting petitions on behalf of physicians who provide specialty care.”

NIWs for Physician Specialists

Since 2007, our law firm has obtained green cards for thousands of physicians, many of them specialists, through the NIW process as well as through PERM, but apparently not all attorneys have been so fortunate. See below.

Matter of H-V-P (2016)

In Matter of H-V-P, the Director of the Texas Service Center denied an NIW petition on behalf of a Hematologist/Oncologist on the ground that he practiced in a HPSA/MUA, not in a Physician Shortage Area (PSA), and that only specialists who practiced in PSAs are eligible for NIWs.

The USCIS’s Administrative Appeals Office (AAO) rejected this argument citing the 2007 memo.

One month later, the USCIS designated Matter of H-V-P as a precedent decision, meaning that USCIS officers cannot deny NIWs to physicians simply because they are specialists.

Although this battle took almost 2 decades to resolve, I am very pleased to have fought the good fight, and to have forced the agency to follow the law.

8. Shusterman’s Upcoming Immigration Seminars

  • Physician’s Guide to U.S. Immigration Law
    Kaplan
    Pasadena, CA
    June 16, 2016
    6:00 pm
  • 2016 AILA Annual Conference on Immigration Law
    Las Vegas, NV
    June 22, 2016
    6:25pm
    Topic: Present Impact of Family Immigration History
  • Global Mobility in the age of Terrorism
    Omni Hotel, Los Angeles, CA
    November 4, 2016
    Time TBD

9. Jobs & Green Cards for RNs & MedTechs
Free Legal Help!

Are you a Registered Nurse or a Medical Technologist who is looking for a job in the US?

What if you could find a job, a work visa and green cards for you and your family in the US? And what if the cost to you for all of this was zero?

Hard to believe? Let me explain:

Our law firm represents over 100 hospitals across the country. And the nurse shortage is coming back.

Our hospitals are in need of hundreds of RNs as well as Medical Technologists and other healthcare professionals. They are looking for both US and foreign-born RNs, and they will pay all of our attorneys’ fees, USCIS filing fees and more!

We have a video and a web page for those who are interested in applying for employment and sponsorship.

If you are a foreign nurse or a medical technologist and need a job in the US and the job requires a work visa and/or green card, please do the following:

Send an e-mail message to egarcia@shusterman.com

In your message, please provide the following information:

1. Have you passed the NCLEX exam?
2. Do you have a current RN license in the US? If so, from what state(s)?
3. Have you taken and passed the IELTS or TOEFL exam?
4. Do you have a valid VisaScreen certificate?
5. Do you have any immediate family members accompanying you to the United States (spouse and children)?
6. Have you ever been petitioned by any US sponsor and hold an old priority date? If so, what is your priority date?
7. If you are present in the US, what is your current immigration status?
8. What is your RN background (area of expertise)?
9. What is your country of birth?
10. What is your country of citizenship?
11. What is your phone number?

If you are a CLS, please amend the above questions accordingly.

We will forward your response to our hospitals, and if they are interested, they will contact you. Please do not contact our law firm until after you hear from one of our hospitals.

We look forward to helping you!

10. Winner of Our May 2016 Immigration Trivia Quiz!

May’s Immigration Trivia Quiz was entitled: Immigrants in Fashion Design.

Below is the message we received from the winner:

  1. Liz Claiborne; Brussels, Belgium
  2. Kooan Kosuke; Himeji, Hyōgo, Japan
  3. Oscar De La Renta; Santo Domingo, Dominican Republic

About me:

Hello,

My name is Parag Devani and I work in the IT field in Phoenix, AZ.
I enjoy the trivia quiz and reading the new updates on your web site.
I had Google to help me find the answers.

Thanks & regards.

Parag

Congratulations, Parag! I think we came up with a great solution to your immigration dilemma!

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California
Immigration and Naturalization Service (INS) Attorney (1976-82)
Member of AILA Board of Governors (1988-97)
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017
Phone: (213) 623-4592 x0, Fax: (213) 623-3720

“Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime.”

– Justice Kennedy in Arizona vs. United States (2012)

Quick Links –

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May 30, 2016

The post Shusterman’s Immigration Update
June 2016
appeared first on Shusterman Law.

]]> Shusterman’s Immigration UpdateMay 2016 http://www.shusterman.com/shustermans-immigration-update-may-2016/ Sat, 14 May 2016 23:54:43 +0000 http://newsite.shusterman.com/?p=52780 Volume Twenty One, Number Three SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 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 […]

The post Shusterman’s Immigration Update
May 2016
appeared first on Shusterman Law.

]]>
Volume Twenty One, Number Three

SHUSTERMAN’S Los Angeles immigration lawyersIMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 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.

Subscribe to our Immigration Newsletter, join the conversation on our Facebook Page, follow our Blog Posts and subscribe to our “How-To” Immigration Videos.

TABLE OF CONTENTS:

1. Justices Appear Divided on DAPA/DACA Lawsuit
2. State Department Visa Bulletin for May 2016
3. Immigration Government Processing Times
4. Success Story: Fabio Becomes a US Citizen
5. Immigration Trivia Quiz: Immigrants in Fashion
6. EB-5 Investors: Advocacy Updates & Highlights from IIUSA’s Conference
7. Revised STEM OPT Program Will Take Effect May 10
8. Ask Mr. Shusterman: A Win-Win for Immigrants and Us
9. Jobs & Green Cards for RNs & MedTechs: Free Legal Help!
10. Winner of Our February 2016 Immigration Trivia Quiz!

Client Reviews

Professional and Knowledgeable Law Firms

“I’ve had a decade of experience with Mr. Shusterman’s law firm. I used them for my immigration needs from H1 to citizenship. It is safe to say this is one of the most competent, professional and knowledgeable law firms. If there is a firm that can handle any possible immigration case routine or otherwise; then this is it.”

- D. Chen, Phoenix, Arizona

Read More Reviews

Skype Consultations Available!

NEWS FLASHES:

  • EOIR Releases FY2015 Statistics Yearbook – The statistics on cases before the Immigration Courts, the Board of Immigration Appeals and OCAHO have been released by the Executive Office for Immigration Review.
  • E-Passports through Visa Waiver Program – Current Travel Security measurements are undergoing enhancements through the usage of e-passports by anyone traveling using the Visa Waiver Program. The e-passports were implemented on April 1, 2016 and anyone who wishes to travel must obtain one. They are being implemented in order to strengthen security, protect privacy, prevent theft, and make traveling more safe and efficient.
  • Filing an I-130 Petition for Petitioner in the U.S. Military – USCIS has made it easier for U.S. military personnel to sponsor relatives for green cards using form I-130 if they are stationed overseas. If the country where they are stationed does not have an USCIS office, the U.S. consular post or embassy can now accept and adjudicate these petitions.
  • Fiscal Year 2017 H-1B Cap Premium Processing to Begin May 12 – USCIS has announced that on May 12, 2016 they will begin the 15-day processing period for cap-subject H-1B premium processing. This also includes H-1B petitions that request an exemption on the basis of having obtained master’s degree or higher in the United States. H-1B’s that do not fall under the cap will begin the 15-day processing on the day that USCIS receives the petition.
  • Jay Peak and the EB-5 Program – The owner and the CEO of Jay Peak Resorts have both been charged with having misused more than $200 million dollars of EB-5 immigrant investments to finance what the US Securities and Exchange Commission (SEC) labeled “a massive and complex fraudulent enterprise”.
  • New Workload Transfer Updates Web Page – USCIS has created a page which tracks where workload transfers are happening between the 5 USCIS Service Centers. This is beneficial for customers in that they can find all of the transfers and additional information regarding their transfer on a single page.
  • Non-Precedent Decisions Search Tool USCIS has created a search tool for the non-precedent decisions issued since 2005. The Administrative Appeals Office (AAO) uses these non-precedent decisions as references or “binding policy guidance” for the personnel working on cases.
  • Relief Granted by Immigration Judges – The number of individuals granted relief from removal, has been decreasing at a steady rate since 2011. A chart lists the 10 states in which it takes the longest time for an Immigration Judge to grant relief from removal.
  • Three Tied to San Bernardino Gunman Are Indicted Attorney Shusterman was quoted in the New York Times regarding immigration criminal charges that were brought against the brother of the San Bernardino shooter, and two other individuals. Investigators claim that they do not believe these persons had any part in the shooting, but that their crimes came to the surface as a direct result of the investigation.
  • U.S. Army Expedited Citizenship Program (MAVNI) – The United States Army has created an expedited citizenship program (MAVNI). A variety of Healthcare and Linguistics jobs are provided in regards to qualified legal non-immigrant aliens that have been lawfully admitted and are permitted to be in the U.S.

1. Justices Appear Divided on DAPA/DACA Lawsuit

On April 18, the Supreme Court of the United States heard oral arguments in the case of United States v. Texas, the challenge to President Obama’s DAPA and DACA expansion programs.

The Deferred Action for Parental Accountability (DAPA) program would grant work authorization to over 4 million undocumented parents of the US citizen children while the expanded DACA program would do the same for an increased number of undocumented persons who entered the US as children.

The State of Texas has argued that it has “standing” to bring the lawsuit because the DAPA and DACA programs would increase the number of applicants for drivers licenses in Texas. At least 4 of the Justices (Ginsberg, Sotomayor, Kagan and Breyer) seem inclined to rule that this is not a sufficient ground to grant the state standing to sue in court to halt the federal programs. Indeed, Justice Breyer warned that if this were enough to grant a state standing to challenge a federal program that “every case of political disagreement where States disagree would come before the Court”.

The other major area of discussion was whether the Administration has the authority to grant employment authorization to millions of persons absent Congressional action. Here, Chief Justice Roberts pointedly asked whether the Administration has the authority to defer deportation “to every unlawfully present alien in the U.S. right now.” Minutes later, Justice Ginsberg opined that since there are over 11 million undocumented persons in the US, and since Congress has only approved enough funds to deport 400,000 annually, priorities must be set by the Administration.

The bottom line is that if the Justices split 4-4 on this case, the 2-1 ruling of the US Court of Appeals for the 5th Circuit will prevail and both of the Administration’s programs will remain enjoined.

However, if a single Justice (Roberts, Kennedy, Alito and/or Thomas) joins the 4 Justices who appear poised to dismiss the lawsuit, the Administration will be permitted to implement both programs. Here, Court watchers are focused on Justice Kennedy who suggested that rather than seek to invalid the DAPA program, Texas might instead have challenged regulations allowing beneficiaries to obtain work permits.

A decision by the Supreme Court is expected in June.

2. State Department Visa Bulletin for May 2016

EMPLOYMENT CATEGORIES


The worldwide employment-based visa numbers all remain current (no backlogs) in May with the exception of EB-3 (Professionals, skilled and unskilled workers) which has a 2 1/2 month backlog.

India EB-2 inches forward by 2 weeks and India EB-3 by 3 weeks.

China EB-2 and EB-3 for professionals and skilled workers both fail to advance in May. China EB-3 for unskilled workers moves forward by 7 weeks. China EB-5 inches forward by one week to February 8, 2014.

Philippines EB-3 moves ahead 5 months.

EB-4 special immigrants and religious workers from El Salvador, Guatemala and Honduras are now backlogged to January 1, 2010.

The following chart tells the story of the EB numbers in detail:

A. APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES– These dates are consistent with prior visa bulletin priority dates.

WW China (PRC) El Salvador, Guatemala, Honduras India Mexico Philippines
1st Current Current Current Current Current Current
2nd Current 9-01-12 Current 11-22-08 Current Current
3rd 2-15-16 8-15-13 2-15-16 9-01-04 2-15-16 8-08-08
Unskilled 2-15-16 4-22-07 2-15-16 9-01-04 2-15-16 8-08-08
4th Current Current 1-01-10 Current Current Current
Religious Current Current 1-01-10 Current Current Current
5th Non-Regional Center (C5 and T5) Current 2-08-14 Current Current Current Current
5th Regional Center (I5 and R5) Current 2-08-14 Current Current Current Current

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS – The USCIS has determined that the EB filing dates for May 2016 will be the same as those listed in the Visa Bulletin.

FAMILY CATEGORIES

The worldwide family-based preference categories advance between 0 and 10 weeks in May.

Philippines 1st preference (unmarried sons and daughters of US citizens) jumps again by 3 months while the other Philippine categories advance by 1 to 4 weeks.

The Mexico family-based categories either fail to advance in May or inch forward by 1 to 3 weeks.

The chart below tells the story in detail:

A. APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

Categories Worldwide China (PRC) Mexico Philippines
1st 11-22-08 11-22-08 2-08-95 10-01-04
2A 11-01-14 11-01-14 8-15-14 11-01-14
2B 9-01-09 9-01-09 9-08-95 5-01-05
3rd 12-01-04 12-01-04 10-08-94 1-22-93
4th 7-22-03 7-22-03 4-08-97 10-01-92

3. Immigration Government Processing Times

We have included a link to various tables where you can access the immigration waiting times

  • USCIS Service Centers
  • National Benefits Center
  • EB-5 Immigrant Investor Program Office
  • USCIS’ 83 Field Offices

Search the Field Offices for the USCIS’ 83 District Offices and Sub-offices to look up the processing times for (1) Applications for Adjustment of Status (I-485) (2) Work Authorization (I-765); (3) Advance Parole (I-131); (4) Naturalization (N-400) and other types of applications. To access your immigration waiting time, what you need to know is:

  • The office where your petition has been filed or transferred to
  • The type of application or petition
  • The date on which the petition was filed

This information can all be found on the Notice of Receipt that was mailed to you by the USCIS. To begin, simply click on the Field Office or Service Center that interests you and click “Submit Query” and you will be directed to the current USCIS processing time table.

If your petition/application is on appeal, you can access the processing times of the Administrative Appeals Office (AAO).

If your PERM case or other type of application is pending at the DOL, we link to the Department of Labor Processing Times.

If you are applying for a visa abroad, we link to Visa Appointment and Processing Times at 100+ US Embassies and Consulates around the world.

If you have requested a copy of your file from the USCIS, you can check the status of your Freedom of Information Act (FOIA) request.

If you are applying for affirmative asylum you can check how the Asylum Division has prioritized applications for interview scheduling.

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

4. Success Story: Fabio Becomes a US Citizen

While traveling in Southeast Asia in March, my wife showed me the following story on her phone: “The Hunk Who Loved Lady Liberty: Fabio Becomes a U.S. Citizen”.

This is a Success Story for America.

“This is one of the happiest days of my life” said Fabio. “Over the course of my career I’ve had the opportunity to travel the globe and America is still the greatest country on earth. There is no such thing as an Italian dream or an English dream but the American dream is alive and well.”

I remember the day when I went to Immigration Service with Fabio for his green card interview. The INS staff was so excited that I had to return the next day to give out dozens of signed photographs signed by Fabio to all of his fans.

Numerous ethnic newsletters and even the Wall Street Journal published the news of Fabio getting his green card on the front page.

Now, he is a US citizen. Congratulations, Fabio!

5. Immigration Trivia Quiz: Immigrants in Fashion

This month’s Immigration Trivia Quiz is entitled: Immigrants in Fashion

Immigrants in Fashion

The first person to correctly answer our quiz (and supply their biographical information) wins a free legal consultation with one of our attorneys before the end of May.

6. EB-5 Investors: Advocacy Updates & Highlights from IIUSA’s Conference

by Attorney Belma Demirovic Chinchoy

Belma ChinchoyThis fall, EB-5 investors face several filing deadlines in anticipation of new EB-5 regulations that are expected to change significantly the EB-5 program.
From April 20-22, EB-5 stakeholders gathered in Washington DC for Invest in USA (IIUSA) Ninth Annual EB-5 Advocacy Conference. For some time, IIUSA’s tag line has read “EB-5 is Working: For you. For America”. Last week, members of the EB-5 community – attorneys, lawmakers, developers, regional centers, regulators, and USCIS adjudicators – partook in a series of seminars and discussions to explore exactly how EB-5 is working. Here are the Conference’s highlights.

IIUSA’s EB-5 Advocacy in Washington DC

As most EB-5 stakeholders know, EB-5 is set to expire (again) on September 30, 2016. As last year’s Congressional efforts failed to produce viable EB-5 legislation to update the program (which runs largely based on 1990 regulations, five cases interpreting the regulations and a plethora of USCIS rules, memos and policy statements), all eyes are on possible regulatory changes that may take effect this year.

IIUSA, which is a regional center advocacy group, has issued its policy priorities which are under consideration by the organization’s membership. The following are IIUSA’s top 5 policy priorities:

  1. Extend EB-5 Regional Center program for at least 5 years;
  2. Increase visa capacity to enhance economic impact of EB-5 and address the backlog of investors currently waiting for visas to be available;
  3. Staff commercially viable processing system at USCIS that addresses existing backlogs and prioritizes predictability and length of processing times for EB-5 related petitions and applications;
  4. Avoid retroactive application of new law and reform to protect the existing EB-5 investors and their families and the billions of dollars in financial commitments and contractual obligations;
  5. Ensure all EB-5 investors with petitions currently filed, or at a later stage in the EB-5 process, are guaranteed adjudication (not approval) and eligibility for immigration benefits throughout the entire EB-5 process (I-526 petition, EB-5 visa issuance, and I-829 petition) regardless of future reforms, lapses or expiration of the program.

Securities Law Issues

Amidst the rising concerns over fraud and other securities laws violations in the EB-5 industry, the SEC has been increasingly involved in the EB-5 field. In fact, last week’s conference came on the heels of a major SEC legal action against a well-known Regional Center, Jay Peak. SEC’s allegations in the filed complaint against Jay Peak and its affiliates are chilling and have expectedly shaken the EB-5 industry. The SEC’s action against Jay Peak is evidence of SEC’s continuing efforts to regulate EB-5 industry and enforce securities laws.

SEC’s Stephanie Avakian, Deputy Director, Division of Enforcement, has made it crystal clear that EB-5 investments are securities and as such fall squarely under the SEC’s purview. Not only that, but EB-5 investments must also comply with FINRA rules and state SEC rules and regulations. While some in the EB-5 industry continue to claim that EB-5 investments fall under certain “exceptions” of SEC laws, Ms. Avakian made it clear that exceptions from registering with the SEC are not tantamount to exceptions from the law.

The Securities and Exchange Commission (SEC) is entrusted by the public to protect investors by investigating, and when necessary, enforcing federal securities law. The SEC is also concerned with protecting the US capital makers and maintaining a level playing field. Ms. Avakian emphasized that EB-5 investor’s location abroad is of minimal consequence for SEC. In fact, Ms. Avakian stated that EB-5 investors living abroad are in an even greater need of protection from SEC as EB-5 investors have access to limited information and are at whims of EB-5 promoters. Kavita Jain of FINRA joined Ms. Avakian in sending a clear message that those selling, marketing and otherwise promoting EB-5 investments must do so under valid SEC and FINRA registrations and licenses.

USCIS Adjudication of EB-5 Cases

With EB-5 I-526 petition adjudications taking 16.7 months, conference attendees were optimistic that Deputy Chief of USCIS Immigrant Investor Program Office (IPO), Julia Harrison, would shed light on how USCIS intends to improve and speed up adjudications. Unfortunately, Ms. Harrison’s updates provide limited hope for significant improvements in adjudication.

The IPO is currently staffed with 121 adjudicators. By the end of 2016, IPO intends to increase its adjudicating staff to 170. Unfortunately, even a 40% increase in adjudicating staff will not decrease the processing time to acceptable levels (i.e. 6 months or less).

Ms. Harrison also announced that the IPO had formed and staffed a new unit – Policy and Regulations Team. Streamlined policies may have a positive impact on speed of adjudications. The Policy and Regulations Team has been tasked with issuing a long-overdue policy memo regarding “sustainability of investment in regional center projects” (expected in July 2016) and proposing new EB-5 regulations. No one should hold their breath for new draft regulations as the rule-making process is bureaucratic and drawn-out, but this is a step in the right direction since EB-5 regulations need to be updated.

The stakeholders posed many questions for Ms. Harrison ranging from IPO site visits to regional centers, improved communication between NVC and IPO, impacts of RC termination on non-implicated projects and investors and postponement of adjudications of I-526 petitions affected by CSPA. Ms. Harrison took note of the issues raised and promised they would be addressed through the Policy team in the coming months.

EB-5 Visa Availability for Chinese Nationals

Updates regarding availability of EB-5 visas for Chinese nationals from Mr. Charlie Oppenheim, Chief of Visa Controls Office at the US Department of State did not shed any new light on the issue. Mr. Oppenheim did not address the expected impact of the over 21,000 pending I-526 petitions on visa availability. In the best case scenario, Mr. Oppenheim said that September 2016 EB-5 visa availability for Chinese nationals will advance to March 8, 2014; worst case scenario is Feb 22, 2014.

It is expected that “early filing” table of the visa bulletin for EB-5 visas will be available in October 2016 (most likely for a very short period of time).

7. Revised STEM OPT Program Will Take Effect May 10

A significantly revised and broadened STEM optional practical training (OPT) program will take effect on May 10 under a final regulation published in the Federal Register on March 11.

Under the new rule, more F-1 STEM students will be eligible for an extension of their OPT and those who qualify will be granted a longer period of employment authorization. But their employers will be subject to stringent new requirements, including the obligation to prepare a detailed training plan for each STEM OPT candidate, comply with more extensive reporting requirements and undergo worksite inspections conducted by U.S. Immigration and Customs Enforcement (ICE). These requirements apply only to extensions of OPT for F-1 students with a qualifying U.S. science, technology, engineering or math degree; the standard 12-month OPT program is unchanged.

The new regulation permits the program to continue without interruption following a federal court decision holding that current STEM OPT rules did not meet procedural requirements. The court stayed its decision to invalidate the current program and granted the Department of Homeland Security additional time to promulgate replacement rules. The lawsuit challenging the STEM OPT program is ongoing. The existing STEM OPT regulation will remain in place until May 9.

A summary of the key points of the revised STEM OPT program is below.

ELIGIBILITY FOR A STEM EXTENSION OF OPT

Under current rules, a 17-month extension of OPT is available to F-1 students who have earned a qualifying U.S. degree in a designated STEM field. The new regulation will broaden the eligibility criteria for a STEM extension of OPT and lengthen the duration of STEM employment authorization, as follows:

• A more extensive list of U.S. STEM and related degrees will qualify F-1 students for an OPT extension. As under prior rules, the F-1 student’s degree must be directly related to the STEM OPT job. The student must have completed all degree requirements to be eligible for a STEM extension, with the exception of any thesis or comparable requirement.
• The STEM extension of OPT will be 24 months in duration. Qualifying F-1 students will thus be eligible for a total of 36 months of OPT employment authorization, including the initial 12-month OPT period.
• Students who were granted a 17-month STEM OPT extension under earlier rules can seek a further 7 months of work authorization subject to the requirements and obligations of the new rules, as discussed below.
• F-1 students who earn an additional qualifying STEM degree can apply for a second 24 months of OPT, but this period cannot immediately follow the first STEM OPT extension. There must be an intervening degree and a period of 12-month OPT before the foreign national can obtain a second period of STEM OPT. No student can obtain more than 2 periods of STEM OPT.
• F-1 students with a previously obtained STEM degree can qualify for the OPT extension as long as their prior degree is directly related to the position. For example, an F-1 student whose most recent U.S. degree was an MBA could qualify for a STEM OPT extension on the basis of her U.S. bachelor’s degree in chemistry. The earlier degree must have been conferred within 10 years before the application for the OPT extension and have been issued by a U.S. school that is duly accredited and is certified by the Student and Exchange Visitor Program (SEVP) at the time of the application. Under previous rules, an OPT extension was available only to those whose most recent U.S. degree was in a qualifying STEM field.

NEW EMPLOYER OBLIGATIONS

Employers must meet significant new obligations in order to employ an F-1 student during the STEM OPT period.

Training plan. Before an application for a STEM OPT employment authorization document (EAD) can be filed, the employer and the F-1 student must prepare and sign a formal training plan and submit it to the student’s designated school official (DSO). DHS is expected to issue a new Form I-983, the Training Plan for STEM OPT Students, before the new regulation is implemented.

The plan must state the specific goals for the STEM OPT period and how they will be achieved; detail the specific knowledge, skills or techniques the employer will impart to the student; explain how the training is directly related to the student’s STEM degree; and describe how the student will be supervised and evaluated. The final rule clarifies that employers can rely on their existing training policies to satisfy the evaluation and supervision requirements, as long as their policies meet the requirements of the rule.

DHS originally sought to require employers to establish a formal mentoring process for F-1 students on STEM OPT, but dispensed with this requirement in the final regulation.

Employer attestations. Employers must certify the following in the training plan:

• The terms and conditions of the STEM OPT employment – including compensation – are commensurate with those provided to similarly situated U.S. workers. Compensation information must be disclosed in the training plan.
• The STEM OPT student will not “replace” a full- or part-time, temporary or permanent U.S. worker. The proposed regulation would have required the employer to attest that no U.S. worker would be terminated, laid off or furloughed a U.S. worker.
• The employer has sufficient resources and personnel to train the student in the position.
• The training is directly related to the STEM degree and the offered position will achieve the objectives of the training plan.

Evaluations. The employer and the F-1 student must complete a performance evaluation after the first 12 months of STEM OPT and at the conclusion of the STEM program. Evaluations must be signed by the student and employer, and the student must submit the evaluation to the DSO within 10 days after the conclusion of the review period. DHS originally planned to require evaluations every 6 months during STEM OPT, but opted for a reduced evaluation requirement in response to feedback from stakeholders.

Employment termination. The employer is required to notify the DSO within 5 business days if the F-1 student is terminated or departs the STEM OPT job; under prior rules, the employer had 48 hours to make this notification.

Changes in the training plan. Employers and students are obligated to notify the DSO “at the earliest available opportunity” if there are material changes to or deviations from the training plan. Material changes include a decrease in the F-1 student’s compensation that is not tied to a reduction in work hours; a significant decrease in work hours; any decrease in work hours below the minimum 20 hours per week (excluding time off pursuant to the employer’s leave policy); a change in the employer’s EIN due to corporate restructuring; or any change or deviation that renders the employer’s attestations invalid or the training plan inaccurate.

E-Verify. As under prior rules, employers must be enrolled and participating in E-Verify to employ an F-1 student in STEM OPT. The new regulation does not change this obligation but commentary to the rule specifies that the employer must participate in E-Verify at the location where the student will work.

AGENCY ENFORCEMENT

The new regulation gives U.S. Immigration and Customs Enforcement (ICE) the authority to conduct on-site reviews to verify whether employers are adhering to their training plans and otherwise complying with STEM OPT program requirements. The agency will give employers 48 hours’ notice of a site visit, unless the visit is triggered by a complaint or other evidence of noncompliance.

STUDENT OBLIGATIONS

All F-1 students on STEM OPT will be required to:

• Report to the DSO within 10 days after starting a new STEM OPT job. If there is a job change from the original STEM job, the student must submit the new employer’s training plan to the DSO, who must make a new recommendation for STEM OPT.
• Report to the DSO within 10 days of a change in their legal name, residence address, employer’s name and address or loss of employment.
• Report to the DSO any material changes to the training plan “at the earliest available opportunity,” as described above.
• Report to the DSO every 6 months to confirm the accuracy of information in their SEVIS record, including their legal name and residence address, employer name and address and the status of their current employment.

As under prior rules, F-1 students on STEM OPT are subject to limits on unemployment, but those limits will increase. The new rule allows STEM OPT students a maximum of 150 days of unemployment during their entire post-completion OPT period – 90 days for the initial 12-month grant and an additional 60 days once granted a STEM extension. Previously, F-1s granted STEM OPT were limited to a maximum of 120 days of unemployment during the post-completion OPT period.

APPLICATION PROCEDURES

USCIS will begin to accept applications for a STEM extension of work authorization under the new rule on May 10, 2016. Before an application can be submitted, the following steps must be completed:

• STEM OPT employer and the F-1 student must prepare and sign the training plan.
• The student must submit the training plan to the DSO.
• The DSO must review the plan to ensure that it is complete and signed and that it addresses program requirements.
• The DSO must approve the training plan and recommend STEM OPT extension by endorsing the F-1’s Form I-20.
• USCIS Form I-765, the application for employment authorization, and supporting documentation must be submitted during validity of F-1’s initial OPT EAD and within 60 days of the DSO’s recommendation. The training plan need not be submitted with the application, but USCIS has the authority to request for a copy of the plan.

If the current OPT EAD expires while the STEM extension is pending, the F-1 student’s employment authorization is automatically extended for up to 180 days while the application is adjudicated, as under current rules.

TRANSITIONAL RULES FOR STEM OPT APPLICATIONS FILED BEFORE MAY 10

Between now and May 9, 2016, USCIS will continue to accept STEM OPT EAD applications under existing rules. A STEM OPT EAD that is granted before May 10 will be valid for 17 months and will be subject to earlier program requirements. However, if the application is pending on or after May 10, USCIS will adjudicate it under the new regulations and will issue a request for a training plan that meets the new requirements. If approved, the EAD will be issued for 24 months.

TRANSITIONAL RULES FOR F-1 STUDENTS ALREADY ON STEM OPT

F-1 students who hold a valid 17-month STEM OPT EAD issued and valid before May 10, 2016 can continue to work through their EAD expiration, unless their EAD is withdrawn or revoked. They and their employers will be subject to earlier program rules.

F-1 students in a period of 17-month STEM OPT can file for a 7-month extension between May 10, 2016 and August 8, 2016, provided that the student has at least 150 days remaining on their current EAD at the time the application is filed and the requirements of the new regulation – including an approved training plan – are met. If the student’s OPT EAD expires while the new application is pending, he or she receives an automatic extension of work authorization for up to 180 days or until the application is adjudicated.

F-1 students who have completed their OPT period and are in the 60-day grace period are not eligible to file for a STEM extension under the new or current rules.

CAP-GAP BENEFITS FOR F-1 STUDENTS AWAITING A CHANGE OF STATUS TO H-1B

The new regulation maintains “cap gap” protections for F-1 students who are awaiting a change of status to H-1B. As under prior rules, an F-1 student who is the beneficiary of an H-1B cap petition and a request to change status to H-1B filed while his OPT EAD is valid receives an automatic extension of status and work authorization from the expiration of the EAD through October 1, the date that the change of status takes effect. A student in valid F-1 status without OPT or with an expired OPT EAD when the cap petition is filed receives an extension of stay only.

In commentary to the final regulation, the agency reaffirms that cap-gap protections are available only when the F-1 student is the beneficiary of an H-1B petition that is subject to the annual cap; a petition for cap-exempt H-1B employment will not confer these interim benefits. The agency also clarifies that F-1 students in the cap-gap period may change employers.

WHAT THE NEW REGULATION MEANS FOR EMPLOYERS AND F-1 STUDENTS

The rule broadens employment opportunities for F-1 STEM students, but the significant new obligations on students, employers and schools will require prompt planning. Employers and F-1 students who will pursue STEM OPT employment must act quickly so they can meet additional requirements in time to file applications when the new rule takes effect. Timely filing is particularly critical for those with an OPT EAD that expires soon, and for those who want to seek a 7-month extension of their current STEM OPT.

8. Ask Mr. Shusterman: A Win-Win for Immigrants and Us

One of our educational videos, Green Cards through Marriage, reached 300,000 views recently. Another video US Citizenship Through Naturalization is nearing 200,000 views.

We hope that the information provided in these and our other 60+ videos has helped many foreign-born persons cut through the red tape and become permanent residents and citizens of the United States.

Do we post these videos and other educational materials hoping that all viewers will become our clients? Of course, but if even a small fraction of 1% of our viewers retained our law firm to represent them, we would be completely overwhelmed.

We hope to educate both the public and younger immigration attorneys about the complexities in the immigration process. For 99% of our viewers, the process is purely educational. If a small fraction of 1% schedule consultations with us, we are happy. Very happy!

It all goes back to the 1970s when I worked as an attorney for the Immigration and Naturalization Service (INS). I started a program where INS attorneys volunteered to speak at Citizenship Classes throughout Southern California in the evenings. We spoke at over 50 classes each year.

Fast forward to 1995 and the birth of the internet. We created a web page, and in 1996, an e-mail newsletter which now has over 60,000 subscribers in more than 150 different countries.

Later, we started Facebook, LinkedIn and Google Plus pages as well as a YouTube video channel. I became so fanatic about posting the latest immigration news online that my wife calls herself a “web widow”.

One result of these efforts is our 7-attorney law firm which specializes exclusively in immigration law. We represent over 100 corporate and thousands of individual clients. But the more important outcome is that we have been able to educate millions of want-to-be immigrants to the United States.

It is clearly a win-win situation!

9. Jobs & Green Cards for RNs & MedTechs
Free Legal Help!

Are you a Registered Nurse or a Medical Technologist who is looking for a job in the US?

What if you could find a job, a work visa and green cards for you and your family in the US? And what if the cost to you for all of this was zero?

Hard to believe? Let me explain:

Our law firm represents over 100 hospitals across the country. And the nurse shortage is coming back.

Our hospitals are in need of hundreds of RNs as well as Medical Technologists and other healthcare professionals. They are looking for both US and foreign-born RNs, and they will pay all of our attorneys’ fees, USCIS filing fees and more!

We have a video and a web page for those who are interested in applying for employment and sponsorship.

If you are a foreign nurse or a medical technologist and need a job in the US and the job requires a work visa and/or green card, please do the following:

Send an e-mail message to egarcia@shusterman.com

In your message, please provide the following information:

1. Have you passed the NCLEX exam?
2. Do you have a current RN license in the US? If so, from what state(s)?
3. Have you taken and passed the IELTS or TOEFL exam?
4. Do you have a valid VisaScreen certificate?
5. Do you have any immediate family members accompanying you to the United States (spouse and children)?
6. Have you ever been petitioned by any US sponsor and hold an old priority date? If so, what is your priority date?
7. If you are present in the US, what is your current immigration status?
8. What is your RN background (area of expertise)?
9. What is your country of birth?
10. What is your country of citizenship?
11. What is your phone number?

If you are a CLS, please amend the above questions accordingly.

We will forward your response to our hospitals, and if they are interested, they will contact you. Please do not contact our law firm until after you hear from one of our hospitals.

We look forward to helping you!

10. Winner of Our February 2016 Immigration Trivia Quiz!

February’s Immigration Trivia Quiz was entitled: Films Through the Decades.

Below is the message we received from the winner:

  1. Alfred Hitchcock (Rear Window) – Born in Leytonstone, Essex, England
  2. Charlie Chaplain is director of the dictator – Born in London England
  3. Federico Fellini – director of La Dolce vita – Born in Rimini, Emilia-Romagna, Italy
  4. Jean-Luc Godard – director of breathless – Born in Paris, France

My name is Mr. Akins from Nigeria, 34 years old. I am a Registered Nurse living in Washington DC. I love to volunteer to help out the community. I have been a subscriber to the newsletter since Jan 2015 and I utilize the newsletter to keep updated on the immigration news in the United States. I was about to solve the quiz using google to find the names of the directors and their place of birth.

Thanks,

Mr Akins.

Congratulations, Mr. Akins! I think we came up with a great solution to your immigration dilemma!

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California
Immigration and Naturalization Service (INS) Attorney (1976-82)
Member of AILA Board of Governors (1988-97)
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017
Phone: (213) 623-4592 x0, Fax: (213) 623-3720

“As we hear commentary on U.S. v. Texas, we must set aside partisan opinions. Remember: Human lives will be affected by the ruling. We must recognize that regardless of their immigration status, those who would benefit from DAPA and expanded DACA are our brothers and sisters, our neighbors and often our friends”

– Archbishop Wester

A member of the U.S. Conference of Catholic Bishops’ migration committee
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May 1, 2016

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.

The post Shusterman’s Immigration Update
May 2016
appeared first on Shusterman Law.

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