Volume Nineteen, 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 35 years of experience practicing immigration law.
Published by the Law Offices of Carl Shusterman, 600 Wilshire Blvd, Suite 1550, Los Angeles, California, 90017. Phone: (213) 623-4592 x0.
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TABLE OF CONTENTS:
1. Wait, Wait, Don’t Tell Me: CIR, DHS, and CSPA
2. Employment Authorization for H-4 Spouses
3. Shusterman’s Upcoming Immigration Seminars
4. Naturalization Ceremony Speech: The American Dream
5. Success Story: Obtaining a U Visa for a Crime Victim
6. Trivia Quiz: Oscar Winning Actresses
7. State Department Visa Bulletin for June 2014
8. Immigration Government Processing Times
9. Ask Mr. Shusterman: Streamline Requests for Immigration Court Hearings?
10. Winner of Our May 2014 Trivia Quiz!
- Asylum Statistics for 2014 – The USCIS Asylum office has released statistics on its workload from January to March of this year, along with data sorted by fiscal year, applications filed by minors, NACARA cases, credible fear cases, and cases from foreign nationals of Afghanistan, Iraq, and Libya.
- Asylum and Credible Fear Claims for Mexico and Central America – A recent article released by the American Immigration Council, Mexico and Central America Asylum and Credible Fear Claims: Background and Context, counters the belief of critics that avoiding deportation through claiming credible fear is too easy and is thus abused. The article holds that many of these critics do not mention the rising violence in Mexico and Central America and the obstacles foreign nationals from those countries face when seeking asylum in the US.
- CBP Offers Historical Arrival/Departure Records – Customs and Border Protection (CBP) is now allowing non-immigrant visitors to the US to access their online arrival and departure records going back as far as 5 years. The agency hopes this will help eliminate the need of these non-immigrants to submit FOIA requests asking for this information.
- CBP Releases PERF Report and Training Handbook on Use of Force Policies – CBP has released a Police Executive Research Forum (PERF) report on CBP’s use of force policies as well as a revised Use of Force Policy, Guidelines and Procedures Handbook from CBP’s Office of Training and Development. In response to the PERF report, the handbook covers the guidelines on using lethal and less-lethal force, requiring more training on how to use safe tactics, and having CBP officer carry less-lethal devices.
- CLE Series on Representing Immigrants in Removal Proceedings – Esperanza Immigrant Rights Project is holding a CLE series for attorneys on representing clients in immigration court removal proceedings. Esperanza provides a list of their upcoming seminars on their website, which take place on Fridays from 8:30 to 12:00.
- DACA and Advance Parole Webinar – On May 20, the Catholic Legal Immigration Network, Inc. (CLINIC), along with other immigration service providers, held a webinar on DACA and Advance Parole, which is now available online. The webinar discusses the requirements for requesting travel authorization for educational, humanitarian, and employment purposes and provides guidelines, tips, and anecdotes about the process. Panelists further mention how returning to the US on advance parole impacts a DACA recipient’s ability to adjust status in the future through family-based petitions.
- DOL Releases Standard Operating Procedures for OFLC – The Department of Labor (DOL) has started releasing documents in response to a lawsuit against the DOL regarding PERM FOIAs. Among the first batch of documents they have released is the Standard Operating Procedures for PERM processing at the Atlanta National Processing Center.
- DV-2015 Applicants – The winners of the DV-2015 lottery have been selected and you can now check online to see if you are a winner. If you have been selected, you can apply for a green card beginning October 1, 2015. Please note that starting with DV-2015, all diversity visa applicants must submit the online form DS-260, Immigrant Visa Alien Registration Application.
- Escalating Requests for Prosecutorial Discretion – Per ICE advice, all prosecutorial discretion requests should first be made to the ICE Office of Chief Counsel (OCC) with jurisdiction over the removal proceedings. If the OCC denies your request, you can then escalate your case by seeking a review of this decision from the Deputy Director of Field Legal Operations. Note that requests should include all items submitted with the original request.
- Immigration “How-To” Videos – Our 50+ “How-To” Immigration Videos have been viewed over 640,000 times. Subjects include how to obtain a green card through employment, how to become a U.S. citizen, how to win your case in immigration court, how to select an immigration attorney and many other topics. Our video Green Cards through Marriage has been viewed over 200,000 times. We encourage you to take advantage of this free resource.
- L-1 Site Visit Program – USCIS’ Fraud Detection and National Security (FDNS) will soon begin a full-scale launch of their L-1 site inspection program, starting with worksite of L-1A managers and executives with extensions of stay approved by USCIS. USCIS will then move on to worksite of L-1B employees with USCIS-approved extensions. USCIS will select sites at random and make unannounced visits, during which officials will spend 30 to 90 minutes interviewing the employer and the beneficiary to ensure compliance.
- Medical Exam Validity Limited to 1 Year – As of June 1, USCIS is limiting the validity of immigration medical exams (Form I-693) to 1 year after submission and applicants should continue to submit their medical exams within one year of having these exams done. Further, USCIS will no longer require this report to be filed with the initial adjustment of status application and applicants can wait to submit Form I-693 once USCIS has sent a request.
- Motions to Reopen: 9th Circuit Court of Appeals Decision – In a recent decision by the US Court of Appeals for the 9th Circuit, Chandra v. Holder, Jr., the judges found that an applicant for asylum may qualify for an Untimely Motion to Reopen under the changed conditions exception in 8 C.F.R. 1003(c)(3)(ii), even if the change in the alien’s home country’s conditions are made more relevant due to changes in the alien’s personal circumstances. In particular, the court noted that the timing of one’s decision to change their religious affiliation should not limit one’s rights.
- MPI Report on the US Deportation System – The Migration Policy Institute (MPI) has published a report on removals, returns, and criminal prosecutions under the US deportation system. The report, The Deportation Dilemma: Reconciling Tough and Human Enforcement, discusses how this system has evolved over the past 20 years and identifies the main drivers of deportation policy, highly relevant as the DHS is currently reviewing its removal operations to ensure they reflect the administration’s enforcement priorities.
- President Obama Warns of Closing of Window to Pass CIR – President Obama has stated that he believes Congress, and more specifically the GOP-led House of Representatives, only has a 2-3 month window of opportunity to pass immigration reform before mid-term election politics take over. The President has also indicated that he is willing to compromise on immigration legislation, but remains convinced that a path to citizenship must be included in any final bill.
- Report Supports Providing Free Counsel in Removal Hearings – On May 28, a report was issued by NERA Economic Consulting and Wilmer Hale which advocates that free immigration attorneys be provided to indigent persons in removal proceedings. The report maintains that the benefits of doing so would outweigh the costs.
- Supreme Court Declines to Hear Nebraska Immigration Case – The Supreme Court has declined to hear an appeal filed against a Nebraska town’s ordinance that aims to decrease illegal immigration, by requiring potential tenants to declare their immigration status and pass police checks to obtain occupancy licenses prior to being able to rent, among other policies.
- USCIS’ Straight from the Source Newsletter for April and May 2014 – Straight from the Source is a newsletter from USCIS that provides helpful and important immigration news to subscribers. The April/May 2014 edition discusses the new N-400 form, which is now necessary to use, among other items.
1. Wait, Wait, Don’t Tell Me: CIR, DHS and CSPA
Who would have thought it would be June 2014, and Comprehensive Immigration Reform (CIR), the Department of Homeland Security’s (DHS) New Deportation Priorities and our nationwide class action lawsuit before the Supreme Court regarding the Child Status Protection Act (CSPA) would all be in a holding mode?
It has been almost one year since the Senate passed a bipartisan Comprehensive Immigration Reform act.
Yet, the House has yet to make a move in the direction of passing CIR. Why? Perhaps because had they done so, many GOP House members feared that this would have been used against them in the primary elections which stretched from March to June.
Now that they have won their primaries, will the House pass a CIR bill this summer? Perhaps. This is not an issue that is going to affect many House members in the general elections in November. However, if the GOP wants to increase their chances of electing a President in 2016, it is an issue that should not be ignored.
What’s more, there is considerable unease among the GOP that President Obama may put forth an Executive Order which may give work permits to many of the undocumented, which brings us to the next subject…
In March, under pressure from critics who began to refer to him as the “Deporter-in-Chief”, President Obama asked the new DHS Security Jeh Johnson to come up with a new policy on deportations. Critics were hopeful that DHS would announce that they were cutting back on the so-called Secure Communities program. Also, there is considerable support for protecting the parents of DACA kids from deportation.
Then, in late May, the President asked Secretary Johnson not to announce a new policy until the end of this summer. This delay was, presumably, designed to let Congress tackle CIR unimpeded by any new immigration policies from the Executive Branch.
Finally, there is our nationwide class action lawsuit regarding CSPA which is currently pending before the Supreme Court of the United States.
We have been litigating this issue since June 2008, almost 6 years ago. Oral arguments before the Supreme Court occurred on December 10, 2013. We have been eagerly expecting a decision for some time now.
However, since the Supreme Court session ends in June, we can now predict with complete certainty that a decision will be issued before the end of this month.
Hopefully, the Court will overturn the government’s restrictive interpretation of the law, and will allow nuclear families to immigrate to the United States without being forced to separate.
2. Employment Authorization For H-4 Spouses
On May 12, the Department of Homeland Security (DHS) published a proposed regulation which would, for the first time, permit certain H-4 spouses of H-1B professionals to apply for Employment Authorization Documents (EADs).
Under the proposed regulation, the following classes of H-4 spouses would qualify for EADs:
1. Where the H-1B spouse is the beneficiary of an approved I-140 EB visa petition; and
2. Where the H-1B spouse has been granted a post-6th year H-1B extension under AC-21 because a PERM application or immigrant visa petition has been pending for one year or more.
While this is great news for the H-4 spouses of H-1B visa holders who are currently in the green card process, it is not as broad as the regulations which allow all spouses of persons in E-2 and L-1 status to obtain EADs. Additionally, if the H-1B spouse has an approved I-130 family-based visa petition, his H-4 spouse will not be eligible to apply for an EAD.
My advice is make sure your employer submits a PERM application, or an I-140 if a PERM application is not required, for the H-1B spouse during the first year of his/her employment. This will not only put the family on track for permanent residence, but will accelerate the date when the H-4 spouse can be employed.
DHS estimates that 100,000 H-4 spouses would be eligible for EADs in the first year and that an additional 36,000 would become eligible in each subsequent year.
Another proposed regulation would allow persons in H-1B1 status (from Chile and Singapore), E-3 professionals (from Australia) and CW-1 workers (from the Commonwealth of the Northern Mariana Islands) the same benefits as H-1B professionals when they apply for a extension of stay. Currently, H-1B and L-1 workers are permitted to continue to be employed for 240 days simply by applying for an extension of stay. The proposed regulation would grant H-1B1, E-3 and CW-1 workers the same benefit.
The proposed regulation would also permit EB-1 Outstanding Professors and Researchers to submit evidence which is comparable to that which is listed in existing regulations.
3. Shusterman’s Upcoming Immigration Law Seminars
- American Immigration Lawyers Association (AILA)
Annual Conference on Immigration Law
Marriott Copley Place and Westin Copley Place
June 21, 2014
Topic: “Forever (Under) 21: The Latest on CSPA & K-2 Ageouts”
- The Michigan Recruitment and Retention Network
Immigration Law Seminar
September 17, 2014
Topic: “International Physicians and U.S. Immigration Law: What Hospitals and Medical Groups Need to Know”
- Pincus Professional Education
4. Naturalization Ceremony Speech: The American Dream
After most of his family was gassed to death in Nazi concentration camps, Mark Lipowicz was born in a displaced persons camp in Germany. Mark and I worked together in the early 1970s for Lawyers Committee for Civil Rights Under Law. Mark spoke about his experiences and the experiences of other immigrants at a Naturalization Ceremony in Philadelphia.
Good morning and congratulations. I first want to thank Judge Slomsky for inviting me to address such a distinguished audience on such an important occasion. It is truly a great honor for me to be here this morning, and in a few moments I think you will understand why.
As Judge Slomsky mentioned, some 40 years ago, I sat where you are sitting (although in a different courtroom in a different building), took the same oath that you just took, and became a citizen of the United States of America. It is something that I will never forget.
As of a few minutes ago, each of you is officially a citizen of the United States, with all of the privileges and responsibilities that come with it. It is a proud moment. It is a happy moment. It is a moment you too will never forget.
Think about it and smile – you are allowed to smile – you are now a citizen of the United States of America.
Justice Louis Brandeis, a famous Justice of the Supreme Court of the United States, who was almost as famous as Judge Slomsky, once said that “the only title in our democracy that is superior to that of President, is the title of citizen.”
As of a few minutes ago, you have that title, citizen, the most important title in our democracy.
As I look out among you, the fact that some 76 people as diverse as this group, from 37 different countries, have chosen to become citizens of the United States, a few blocks away from where our country was born, is a humbling experience for all of us. It speaks volumes about what is wonderful about this country.
Each one of you came to this country looking for a better life for you and your children. Perhaps you came to avoid religious persecution. Perhaps you came to avoid political persecution. Perhaps for the educational opportunity. Perhaps for the economic opportunity. Or perhaps, as simply put, to live in a free and democratic society.
But all of you came here, in one fashion or another, in pursuit of what we call the American Dream.
Now we know that things in this country are not perfect, and as far as I can tell, have never been perfect. But your presence here today, on this occasion, confirms that there is no better place on earth.
The American Dream is one of the cornerstones of our democracy. But what does it mean?
While the American Dream has been romanticized over the years, I believe that what the American Dream stands for, at its core, is that there are no limits to what you as a citizen can achieve in this country. No limits based on who you are, what you look like, where you came from, or who your parents are. The only limits are what’s up here in your head, and what is here in your heart.
The American Dream is a guarantee of opportunity for each of its citizens, a guarantee of opportunity for you and your children and your children’s children. It guarantees you nothing more and nothing less than an opportunity.
Let me tell you if I may, the American Dream story of one family – my family. My parents were born and raised in Poland. They were poor and uneducated. After Poland was invaded by Germany at the beginning of what would become WWII, they were captured by the Nazis.
My parents were survivors of the Holocaust. They were survivors of a series of concentration camps that were among the most infamous – Auschwitz, Bergen-Belsan and others. That they survived is itself a miracle. Except for one of my mother’s sisters who managed to leave Poland and come to the United States before the war, both my mother’s and my father’s entire families were killed. My mother’s and father’s parents, their brothers and sisters, cousins, nieces and nephews – – all killed. No one of their respective families survived except them.
I was born after the war, in a displaced person’s camp in Germany. When my parents arrived in this country – – they came with no money – – less than $100. We lived near 42nd and Parkside on Leidy Avenue. Maybe some of you know the neighborhood. My father got a job as a meat smoker, a job he would work at until he died. It was a miserable job, he worked 70 hours a week, and spent a lot of time in places where the smoke was so thick, that if you held your arm out straight in front of you, you wouldn’t be able to see your hand. Eventually the health problems from that job killed him.
One of my most vivid memories as a young boy, since I could read and write, was of helping my father prepare for his citizenship test. Who was the first president? I would ask and he would answer in his very broken English. Where was the first capital of the United States? Well my father, being my father – it took him several times before he passed. But he was so very proud when he finally passed and was sworn in as a citizen.
One of the recurring jokes in my house as I was growing up – and despite the unspeakable horrors my parents had lived through and seen, there was always humor in my house – was how my father was somehow able to become a citizen before my mother did.
Whenever my father had a day off from his meat smoker job, he would help my mother at a little convenience store that they opened in Oxford Circle and kept open 7 days a week.
But as hard as they worked, as difficult as their lives were, I never heard them complain. There was never any question that they were pursuing the American Dream: working tirelessly to create a better life for their children and their children’s children. Much like many of you are doing, and much like many of you will succeed, they succeeded.
I was the first one in my family to go to college, Temple University, a wonderful university a few miles from here that always had as its mission to provide affordable higher education to the children of the immigrants of this city. Then I went to Temple’s Law School, was an Assistant District Attorney in Philadelphia and now I am a partner in a large international law firm, Duane Morris, that has over 700 lawyers across the United States and several foreign countries.
As Judge Slomsky mentioned, the Chairman of my law firm, John Soroko, is here today, and I thank him for coming. And I’ve had some success as a lawyer, most of it the product of a little hard work and a lot of dumb luck.
But the story doesn’t end with me: the American Dream is a dream that is built with each successive generation, brick by brick by brick. Just like your American Dream story will not end with you – it will eventually be written by your children and your children’s children.
My wife, who is also a naturalized citizen, couldn’t be here this morning because coincidentally she is on jury duty in a criminal case a few blocks from here. She and I had two sons, who we are very proud of. One of my sons, David, while he was at Yale University, was selected as a White House Intern, working at the White House under then President Clinton.
The American Dream sometimes works in strange ways. Sometimes those of us who are fortunate enough to be living it take it for granted – so it was with me.
But my good friend and my law partner, Michael Mustokoff, who is also here, said to me one day, with almost a tear in his eye (he is probably sitting there teary-eyed right now), “think about it Mark – your family went from a Holocaust immigrant to working in the White House in one generation. What a country.”
And that made me stop and think. He was right, it was pretty amazing: from a displaced persons refugee camp in Germany to the White House in a single generation. It could only happen in one country. It could only happen in This Country.
So follow the American Dream, work hard, create a better life for your children and your children’s children and write your own American Dream story. Enjoy all of the many privileges of being an American citizen, but also embrace and honor the very important responsibilities that come with it. As new citizens, your new country needs you in many ways. Do not fail it.
Prior immigrants from the countries you represent came to this country and made a strong contribution. Today, in this courtroom, the torch of citizenship is passed to you, so that your contributions can ensure that this country, the United States of America, will remain a safe haven for those generations of immigrants yet to come.
Congratulations again to you and your families. Good luck and God Bless America.
5. Success Story: Obtaining a U Visa for a Crime Victim
This month’s success story is about how our office successfully established that our client, Jose, was eligible for a U visa. US immigration law provides for a limited number of visas annually for victims of certain crimes. Jose was the victim of a robbery and suffered substantial physical and emotional abuse as a result.
Jose, a citizen of Brazil, entered the United States without inspection in 1989, and has lived in this country for approximately twenty-five years. In 2011, Jose was approached by a man while he was walking down the street late at night. His assailant demanded that Jose give him his wallet, and when he refused, his assailant struck him in the chest and began choking him. The police were called and thankfully arrested his attacker, who turned out to be a known gang member with an extensive criminal record. Jose worked with the prosecution and testified at the trial which led to his assailant’s conviction. After the robbery, in addition to his physical injuries, he suffered from post-traumatic stress disorder (PTSD), and became paranoid, quiet, and easily irritated. Jose worried that he would be attacked again, and always looked over his shoulder to make sure that no one was going to hurt him.
A year after the incident, Jose retained our office for assistance in applying for a U visa under the Victims of Trafficking and Violence Protection Act of 2000. Under Immigration and Nationality Act (INA) section 101(a)(15)(U), an applicant may be granted a U visa if: (1) he suffered substantial physical or mental abuse as a result of having been a victim of criminal activity as described in the statute; (2) he possesses information concerning the criminal activity; (3) he has been helpful to law enforcement officials in investigating or prosecuting the criminal activity; and (4) the criminal activity violated the laws of the United States.
In order to establish that an applicant has been helpful in the investigation or prosecution of the crime, a certification from law enforcement officials must first be obtained. Senior Paralegal Elsa Garcia contacted the police department and was able to secure the required certification to go forward with Jose’s U visa application.
In order for Jose to qualify for a U visa, we argued that the robbery was analogous to felonious assault, which was the only criminal activity listed in the statute that correlated to Jose’s attack. We made this argument by noting that the definition of robbery under California law was equivalent to felonious assault because robberies in California are felonies and they include the use or threatened use of force. To establish that Jose met the other requirements for eligibility, we submitted a psychological evaluation by his doctor, who confirmed that Jose suffered from PTSD as a result of the attack. Further, we submitted documents establishing that he testified against his assailant, who was convicted for robbery and sentenced to prison.
Since Jose entered the US without inspection, he required a waiver of inadmissibility under INA section 212(d)(3). We argued that it was in the public interest to grant him a waiver, because the community benefited from the information and collaboration he provided to law enforcement, which resulted in the conviction and imprisonment of his attacker. Further, we noted how important it is to offer protection to undocumented victims of crimes who step forward to participate in the investigation and prosecution of their offenders. Finally, we pointed out that Jose was a very well respected member of his community.
In April 2014, the USCIS determined that Jose was eligible for a U visa. However, the statutory cap for U visas had already been reached for this fiscal year. Therefore, Jose’s petition was placed on a waiting list, and his application will be approved once new visas become available. In the meantime, Jose was granted deferred action, which permits him to live and work in the US.
6. Trivia Quiz: Oscar-Winning Actresses
This month’s Immigration Trivia Quiz is entitled:
7. State Department Visa Bulletin for June 2014
The June 2014 Visa Bulletin is nothing short of a disaster, particularly for those waiting in the employment-based (EB) categories.
Worldwide EB-3 retrogresses 18 months. China EB-3 retrogresses an unheard of 6 years for professionals and skilled workers and 9 years for unskilled workers. It is clearly time for many EB-2 professionals from the PRC to revert back to their proper category. India EB-3 inches forward by 2 weeks while Philippines EB-3 advances by 8 weeks.
Worldwide EB-2 remains current while China EB-2 advances 5 weeks. India EB-2 remains frozen at November 15, 2004.
The chart below tells the story in more detail:
The disaster that has engulfed the EB categories did not spare the family-based categories.
The worldwide 2A category (spouses and children of lawful permanent residents), after remaining frozen for most of the fiscal year, retrogresses 16 months. Do not expect any relief until October 2014 at the earliest.
Most of the other worldwide categories as well as the family-based categories for Mexico and the Philippines advance slowly, from 1 to 4 weeks.
There are, however, 3 bright spots: (1) Worldwide 2B (unmarried adult sons and daughters of lawful permanent residents) advances 8 weeks; (2) Mexico 2B moves ahead by 10 weeks; and (3) Philippines 1st (unmarried adult sons and daughters of U.S. citizens) springs forward by 4 months.
The chart below tells the story in more detail:
Predictions by the State Department
The cut-off date for the Family F2A category was advanced at a very rapid pace during fiscal year 2013 in an effort to generate demand to use all numbers available under the annual limit. Those movements have resulted in a dramatic increase in the level of applicant demand being received during the past seven months. This has required the retrogression of the Family F2A cut-off date for June in an effort to hold number use within the annual numerical limit. Further retrogression cannot be ruled out should demand by applicants with very early priority dates continue to increase.
Despite a previous retrogression, the level of demand has remained excessive, resulting in a further retrogression of this cut-off date to hold number use within the annual limit.
Employment Third, and Third Other Workers:
The unexpected and dramatic increase in demand being received from U.S. Citizenship and Immigration Service Offices during the past several months has resulted in number use approaching the annual limit for this category. As a result, it has been necessary to retrogress the Worldwide, China, and Mexico cut-off dates for the month of June.
Notices were included in several Visa Bulletins during the past year alerting readers to the possibility of such retrogressions. While corrective action in some categories has become necessary earlier than was anticipated based on the information available earlier, it is hoped that readers are not caught off guard by these retrogressions.
8. Immigration Government Processing Times
* Citizenship and Immigration Services (USCIS)
For your reference, we have included tables where you can access the processing times for the USCIS’ four Service Centers (California, Nebraska, Texas, and Vermont), the National Benefits Center, and the USCIS’ various 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; (2) Work Authorization; (3) Advance Parole; (4) Naturalization and other types of applications.
All 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.
Warning: Processing times may appear faster on the official lists than they are in reality.
To see how fast (or slow) your service center or local USCIS office is processing a particular type of petition or application, see the Government Processing Times Page.
Administrative appeals of most types of petitions and waivers denied by the USCIS are adjudicated by the agency’s Administrative Appeals Office (AAO) in Washington, DC. We link to the AAO’s most recent published processing times.
* Department of Labor
The Labor Department’s website contains a tab entitled “PERM Processing Times”. This enables you to see how long it is taking the Labor Department to complete its final review of standard PERM applications, audited cases, standard appeals and appeals where there are government errors.
* Department of State
The State Department’s website contains a “Visa Wait List” page, which permits readers to choose a particular U.S. consular post and learn how long it takes the post to process various types of temporary, nonimmigrant visas.
9. Ask Mr. Shusterman: Streamline Requests for Immigration Court Hearings
In August 2011, the Department of Homeland Security announced that it would review over 300,000 pending deportation cases to determine which might merit favorable exercises of prosecutorial discretion. Factors determining such discretion include length of time in the U.S., U.S. citizen or permanent resident relatives, age at entry into the U.S., and criminal history. The initiative was officially launched in November 2011, and many cases have since been closed.
When a case is administratively closed, it is indefinitely removed from the docket, or court calendar. However, administrative closure does not give the immigrant any lawful status or make them eligible for work authorization. The aim of this policy, rather, is to identify low-priority cases that can be administratively closed to help alleviate the current tremendous strain on Immigration Judges.
According to Syracuse University’s Transactional Records Access Clearinghouse (TRAC), over the past five years immigration court backlogs have increased 85% to over 350,000 cases and wait times have climbed to an average of 562 days. Meanwhile, there are only 57 Immigration Courts with 249 Immigration Judges, giving each judge a crushing case load. Of the 363,239 pending cases in the U.S., California has the highest number of pending cases at 77,539, with the longest wait times at 868 days. The Los Angeles Court has the most cases pending at 47,400.
In November 2013, the Los Angeles Chief Counsel announced that the Los Angeles office would institute “streamlining procedures” to accelerate the effort to improve docket efficiency. Under these procedures, if attorneys believe their case can be resolved quickly and without the need for a contested hearing in Court, they can send a request to the Chief Counsel. If the Chief Counsel agrees, they will file a motion with the Court. The government then has the option to agree in advance of the hearing to a streamline request for relief by filing a motion asking the Judge to grant it without the need for any testimony.
This streamlined process spares immigrants the stress and anxiety of testifying in Court and saves their family members from the burden of being witnesses. The government also benefits, as ICE has more time to focus on other more significant cases and Immigration Judges have more time to hear the other cases scheduled on any given day.
The request itself is fairly straight-forward, with a one-page form summarizing the case and explaining why the hearing should be accelerated. It should be noted, though, that an application cannot be considered if an applicant’s fingerprints have not been taken within the last 60 days.
Although this is a very new policy and not many government attorneys or even Judges have seen this type of request before, we have already had a judge resolve one of our cases within 5 minutes of the hearing due to our request. We also have colleagues who have reported similar experiences.
Hopefully this procedure will grow in practice and help to cut down on the staggering backlogs facing Immigration and Customs Enforcement (ICE) and the Immigration Courts. As well stated by former ICE Director John Morton, “It is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing the enforcement proceeding.”
10. Winner of our May 2014 Immigration Trivia Quiz!
May’s Immigration Trivia Quiz was entitled Out of This World: Sci-Fi Movie Stars.
Below is the message we received from the winner:
“Dear Mr. Shusterman.
My name is Meiri, I hold a duo citizenship: Brazilian and American (naturalized in 2005), I live in Ocala, Fl. I am retired. I’ve been a subscriber for more than 3 years. I solved this Trivia Quiz googling for more than 3 hours.
Born in Melbourne, Victoria, Australia
Movie: Star Trek
Hugh Michael Jackman
Born in Sydney, New South Wales, Australia
Movies: X-Men: Days of Future Past , The Wolverine , Real Steel , X-Men Origins: Volverine , X-Man: The Last Stand, X2, X-Men
Born in Beirut, Lebanon
Movies: The Matrix, The Day the Earth Stood Still, The Matrix Reloaded, The Matrix Revolutions, Bill & Ted’s Excellent Adventure, Johnny Mnemonic, A Scanner Darkly, Bill & Ted’s Bogus Journey, The Animatrix
Liam John Neeson
Born in Ballymena, County Antrim, Northern Ireland
Movies: Battleship , Batman Begins , Star Wars Episode I: The Phantom Menace
Congratulations, Meiri! I look forward to helping you!
Certified Specialist in Immigration Law, State Bar of California
Former Immigration and Naturalization Service (INS) Attorney (1976-82)
Served as 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 they don’t pass immigration reform then (by the end of August), the President will have no choice but to act on his own. We’d much rather pass legislation.”
– Senator Charles Schumer (D-NY)
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June 1, 2014
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.