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Free Subscription to SHUSTERMAN'S IMMIGRATION UPDATE
Back Issues of SHUSTERMAN'S IMMIGRATION UPDATE
Volume Thirteen, Number One
SHUSTERMAN'S IMMIGRATION UPDATE is the Web's most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 53,000 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 Boulevard, Suite 1550, Los Angeles, California, 90017. Phone: (213) 623-4592 x0
To subscribe, type in your name and e-mail address at http://shusterman.com/subscribe.html#subscribe and click on "Subscribe".
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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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SETTING THE BAR FOR EB-5 IMMIGRATION SINCE 2002 Attracted by the California Consortium for Agricultural Export’s (CCAE) thorough understanding of and appreciation for EB-5 requirements, over 80 immigrant investors from around the world have participated in a CCAE investment project. Approved by the USCIS as a Designated Regional Center in 2002, CCAE combines EB-5 expertise with unrivaled business acumen to provide immigration attorneys with the highest level of confidence that their client’s immigration and investment goals can be met. With the addition of a manufacturing investment in 2007, CCAE further expanded its portfolio of USCIS approved EB-5 qualifying investments. The Consortium expects the current investment to be fully funded in early 2008. Contact CCAE directly for the most up-to-date information regarding availability. Visit www.ccax.com for more information or contact a California Consortium for Agricultural Export representative by e-mailing jmccann@ccax.com or calling (213) 892-6367.
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Hello Miss Maria,Good Morning. JC here. You know what, we've been here in the States for a year now, and we never thought about thanking you for all the help that you extended us before back when we were still in the Philippines. We're so sorry about it. I would like to take this opportunity to sincerely thank you very, very much for all that you've done for me and my family. Being here in the States is a dream come true for us and we're appreciative of the fact that you helped us big time in realizing that dream. Again thank you so, so much. And also, let me wish you and the rest of Carl Shusterman Law Offices an advanced Merry Christmas and a Happy New Year.
The Visa Bulletin states that "it has been necessary to once again retrogress the India Employment Second preference cut-off date. This is a direct result of continued heavy applicant demand for numbers by CIS for adjustment of status cases despite the retrogression which occurred for December. It is likely that the annual limit for this category will be reached within the next few months, at which time the category would become "unavailable" for the remainder of fiscal year 2008."
To view the January 2008 Visa Bulletin, see our "Visa Bulletin" page at
In 2006, the Senate passed such legislation by a vote of 62 to 36, only to see the bill die in a House-Senate Conference Committee.
In 2007, the Administration drafted a bill behind closed doors which promised something to everyone: strict border and workplace enforcement coupled with a guest worker program and a long and difficult path for green cards for undocumented workers.
Anti-immigrant groups called this an "amnesty" bill and lobbied hard to defeat it. In the end, 16 Senators, mostly Republicans, switched sides and defeated the bill. See our "Immigration Legislation" page at
The DREAM Act, which would have provided a way for children of undocumented persons to legalize their status if they pursued their college education or joined the military, could not obtain the required 60 votes to ward off a filibuster in the Senate.
After the defeat of the DREAM Act, other legislation - the AgJobs bill, legislation to recapture unused immigrant visas for nurses and therapists and a bill to increase the H-1B cap never even came up for a vote.
In the absence of Federal action on immigration, many states and localities have adopted extreme anti-immigrant laws.
What, then, is the prospect for meaningful immigration reform legislation in 2008? One should be careful about predicting the passage of immigration legislation in an election year, particularly when the subject has become so highly charged.
Unfortunately, we are not optimistic about the prospects for a comprehensive immigration reform law or even the passage of piecemeal legislation like the DREAM Act this year. We fully agree with the editorial which appeared in the New York Times (December 30) which stated:
"The truth is this: Americans cannot expect immigrants to serve them - to make their beds and meals, feed their babies and ailing parents, and pick their crops - while living in fear and hopelessness."
We hope that most Americans will recognize that the "enforcement-only" approach is totally unrealistic, and will pressure their elected representatives to resolve the immigration question in a fashion which is fair to all parties concerned. We doubt, however, that this will occur in 2008.
We are, however, more hopeful for legislation which would fix parts of our broken legal immigration system. With starting salaries for registered nurses in places like Los Angeles topping $55,000 per year, and with over 150,000 RN vacancies nationwide, it would be sheer folly for Congress to dodge this issue in 2008. House leaders have indicated that a bill to recapture unused visas for registered nurses and physical therapists will be considered during the first quarter of this year.
Prospects for raising the H-1B cap which was reached in a single day in 2007 are still uncertain. So are efforts to reduce the retrogression in the EB-3 category and for Indian and Chinese workers with advanced degrees in the EB-2 category. When it takes eight years for an Indian physician working in a federally-designated medically-underserved area to obtain permanent residency, while a high school graduate who won the Visa Lottery can qualify for a green card within a few months, it is clear that something is terribly wrong with our present legal immigration system.
As we make it more difficult for the "best and the brightest" to work in the U.S., other countries seek to profit from our mistakes. The European Union recently announced that that they will offer "Blue Cards" for foreign-born highly-skilled workers starting in 2009. See "Blue Card: Don't Leave Home Without It?" at
The interesting fact is that all of the major Republican candidates have strong pro-immigration credentials: (1) former New York City Mayor Rudy Giuliani; (2) former Massachusetts Governor Mitt Romney; (3) Senator John McCain and (4) former Arkansas Governor Mike Huckabee. What happened during the debates? Are these candidates all suffering from short-term memory loss, or could it be that their advisors informed them that immigrant bashing is something that resonates strongly with Republican primary voters? If so, why was Tom Tancredo, the one true anti-immigrant zealot, polling in the low single digits before he dropped out of the race in late December? Perhaps because it was a little too obvious that his theme was blatantly anti-Hispanic while the other candidates' statements were a little more nuanced. You be the judge.
As a former INS prosecutor, I believe that I know a thing or two about immigration enforcement. It is clear that simply passing "tough" laws like the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Real ID Act of 2005 and the Secure Fence Act of 2006 have not stopped people from crossing the border without papers or from overstaying their visas.
Clearly, we are a very rich and prosperous country compared with most of the rest of the world. Even a job flipping hamburgers in the U.S. pays over 10 times what a similar job would pay in a third-world country. Building a multi-billion fence with Mexico and doubling the size of the Border Patrol may win votes from some disgruntled citizens in the Iowa caucuses, but it won't solve the problem.
Illegal aliens, or undocumented workers, call them what you will, are already here, over 10 million of them. Beefing up border enforcement will not affect them. Furthermore, consider that many of these workers did not enter the U.S. illegally. They came as tourists or students, got jobs and conveniently forgot about going home. It is important to remember that they came here for the same reason that our parents and grandparents did, to build a better life for themselves and their families. Most of our grandparents entered the U.S. before the era of numerical quotas began in the 1920s. Few of them would have qualified for green cards under today's immigration laws.
In my experience, an "enforcement-only" policy is doomed to failure. When I was an INS prosecutor, I would persuade the Immigration Judge to deport someone on a Friday, knowing that he would be back across the border, working in the U.S. the next Monday. What a colossal waste of time and money!
So if the "enforcement-only" policy advocated by the top-tier of our Republican candidates is misguided, what is the answer? In addition to being "tough", we must also be "smart".
Since we can't devote the entire federal budget to immigration enforcement, we must set priorities. It would be a waste of taxpayers' money to spend billions of dollars tracking down and deporting Mitt Romney's gardeners and others who came here to pursue the American Dream. Instead, we need to guard our country against serious criminals (murderers and rapists, not illegal border crossers), drug smugglers and would-be terrorists.
I predict that in the general election, one of the candidates will try to confuse voters concerning the connection between immigration and terrorism. Fact: None of the September 11th hijackers entered the U.S. illegally. None entered the U.S. through Mexico. Ahmed Ressam, who planned to bomb Los Angeles Airport in 2000, entered the U.S. through the Canadian border, yet not even Mr. Tancredo has proposed building a fence along that border.
Let's be honest. The immigration debate is not so much about law enforcement as it is about race and culture. We should admit that while there is such a tremendous income disparity between our country and the third world, there is no easy solution to the problem. However, a policy which combines stepped-up enforcement including strict enforcement of our labor laws with work permits, fingerprinting, requirements to file income taxes and learn English, will be far more effective in the long run than one which focuses exclusively on border enforcement and punishing employers. Establish some realistic rules, and then allow people who play by the rules pursue the American Dream.
I'm realistic enough to acknowledge that pandering to voters' fears about illegal immigration may be a good strategy in the 2008 election. However, this short-term strategy could turn into a long-term disaster for the party that adopts it. Governor Pete Wilson's (R-CA) embrace of anti-immigrant Proposition 187 helped him win reelection in 1994, but it turned California into a solid Democratic state afterwards. Hispanics are the fastest growing voting bloc in the country and an anti-Hispanic party is doomed to failure.
One more thing - if politicians are serious about addressing the immigration issue, they should move quickly to repair our broken legal immigration system. If our country is to remain number one in science and technology, educate our children and take proper care of our sick and elderly, caps must be raised for both temporary and permanent visas for scientists, engineers, computer professionals, physicians, nurses and teachers.
This year promises to be even tougher for H-1B applicants.
What do we advise? Become a citizen of Australia!
Back in May 2005, without any of the extended debate which occurs whenever the H-1B cap is discussed, a Republican-led Congress tacked on an amendment to an Iraq War appropriations bill to create the E-3 visa exclusively for professionals who are citizens of Australia.
Compare the E-3 and the H-1B categories, and you will wish you were born Down Under. If you are not that fortunate, don't give up hope. Remember that it's not too late to immigrate to Australia, become a citizen, and then apply for an E-3 visa to come to the U.S.
Our firm has been obtaining visas for Aussies for over 25 years. After attending the AILA Conference in Hawaii in January, I plan to head south to check out Australia and New Zealand. I may be returning to the U.S. together with some new E-3 visa holders.
For more information about E-3 visas and how you can get one, see our "Temporary Visas" page at
We'll put another shrimp on the barbie for you!
"Guidelines for I-9 Compliance and Employment Verification: A Guide to Hiring Foreign-Born Health Care Professionals"
An Audio Conference sponsored by Progressive Business Audio Conferences
For more information, see
Immigration Conference, State Bar of Texas For more information, see
AILA 2008 Spring Fundamentals of Immigration Law Conference
I will be the discussion leader of a panel entitled "The Road to Naturalization and Citizenship" on March 10th at 4:30pm.
For more information, see
Each year, over 7,000 immigrant children arrive in the United States without a parent or legal guardian. Many are fleeing persecution and seeking asylum. Others may simply wish to reunite with family living in the U.S. When such children are apprehended by immigration authorities, social workers or similar organizations will often contact the National Center for Refugee and Immigrant Children for assistance.
The Center - part of the U.S. Committee for Refugees and Immigrants - works to match unaccompanied immigrant children in removal proceedings with pro bono counsel. Since 2005, it has worked with over 1,200 attorneys and 1,800 children from 33 different countries.
Several years ago, one of our attorneys learned about the Center's work and wanted to be involved. After attending a brief training, she accepted her first pro bono case: two siblings (brother and sister) who fled their home in Central America due to horrific domestic violence. The Center's initial interview with the children revealed they may be eligible for Special Immigrant Juvenile Status (SIJS).
SIJS is a classification that allows certain children to obtain lawful permanent residency. A child under the jurisdiction of a juvenile or probate court who is eligible for long-term foster care due to abuse, abandonment or neglect may qualify for SIJS. If the U.S. Citizenship and Immigration Services approves the application for SIJS, the child may then submit an application for permanent residence.
Unfortunately, our older pro bono child turned eighteen shortly after our office accepted the case, and thus no longer qualified for SIJS relief. We have prepared and filed an application for asylum, and her case is still pending with the immigration court. However, with the assistance of another local public interest organization, we were able to obtain the necessary order from a probate court finding our younger client eligible for long-term foster care. A short time later we filed his I-360 application for SIJS with the local U.S. Citizenship and Immigration Services office. His application was quickly approved.
We were then able to obtain a fee waiver from the Immigration Judge and file his application for lawful permanent residence. The case was continued several times due to pending background checks, and then again when the visa numbers became completely unavailable earlier in the year. However, a few weeks ago, the Immigration Judge granted his application for permanent resident status. It was extremely rewarding to assist this young man on his path to legal status in the United States.
For our fellow attorneys thinking about New Year's resolutions, we'd encourage you to consider committing to pro bono legal service in the coming year. And for all our subscribers interested in learning more about the National Center for Refugee and Immigrant Children and the U.S. Committee for Refugees and Immigrants, we encourage you to visit their website which we link to from our "Immigration Organizations" page at
Does this sound a bit farfetched? It did to me until I personally experienced this a few weeks ago.
By coincidence, as a college student, I once read a related short story by the noted Argentinean author Jorge Luis Borges. The name of the story was "Tlon, Uqbar, Orbis Tertius", and in it, the narrator comes upon an article in an encyclopedia which turns out not to exist in any other copy of the same edition of the encyclopedia. I remember thinking to myself that the premise of the story was a little ridiculous.
However, something that I recently experienced in immigration law changed my mind.
I was working on the case of a client whose application for adjustment of status which was submitted by his former attorney was denied for reasons which I believe were erroneous. It was way too late to submit a Motion to Reconsider, and what's more, the USCIS has issued a Notice to Appear (NTA) placing the person in removal proceedings before an Immigration Judge. If this was not bad enough, since the visa numbers in the EB-3 category have retrogressed, our client's priority date was no longer current, so it was not simply a matter of resubmitting his application for adjustment of status before the Immigration Judge.
"There must be a way to get the case heard by the Judge", I thought. If the USCIS had not mistakenly denied the application, it would not be before the Judge at all. I conferred with Attorney Howard Hom who is Of Counsel to our law firm. Howard instantly gave me the answer that I was seeking, "Carl, I've got a case just like yours in Immigration Court. I am relying on a 1977 BIA decision which holds that despite the absence of a visa number, you can renew the case before the Judge. It's called Matter of Huang."
Relieved, I thanked Howard, and looked up Matter of Huang in Volume 16 of the Administrative Decisions of the Immigration and Nationality Law of the United States. It was there, but it held exactly the opposite of what Howard told me. Howard and I started working as INS Attorneys back in 1976, and I was sure that he would not make a mistake like this. I tried to call him on his cell phone, but he wasn't answering, so I was forced to leave a message. In the meantime, I consulted the Immigration Law Sourcebook, the "Bible" of immigration lawyers. There were two Matter of Huangs listed in the index, one from 1965 and the other from 1988, and neither one had anything to do with the 1977 version of Matter of Huang.
Becoming more and more frustrated, I was relieved when the phone rang and it was Howard. I explained the cul de sac that my research had led to. Howard laughed and replied that the BIA had reconsidered the "first" Huang and he had forgotten to tell me that the revised decision did not get printed in the books. "You have to get the decision online." This time, I asked Howard to remain on the phone while I searched for the online version of the decision. From our "Deportation" page, I clicked on
Not surprisingly, Matter of Huang held exactly what Howard said it did. The regulation that underpins the holding in the case still exists although it has been renumbered. Huang has never been overruled or modified, and it is a precedent decision so that the Judge is bound by its holding.
Given that the USCIS usually issues an NTA when it denies an I-485, the agency's restrictive interpretation of section 245(k) and the significant retrogressions that have occurred recently, Matter of Huang has gained tremendous importance, yet it can't be found in any book*, only on the web. Matter of Huang will save our client from deportation, and allow him to remain legally in the U.S.
Senor Borges, I beg your pardon. It's taken me 40 years to understand the significance of your story, but better late than never. A lot of immigrants stand to benefit from the elusive Matter of Huang.
Muchas gracias!
* One of the author's of Bender's excellent multi-volume treatise: Immigration Law and Procedure pointed out to me that the treatise refers to the revised version of Matter of Huang . My apologies! It would have been more accurate to state that it does not appear in any of the volumes of decisions published by the U.S. Government.
Do you have immigration questions of general interest to our readers? Send them to
If your question is neither short nor general, please schedule a 30- minute legal consultation with me at
The Immigration Service (USCIS) lists its processing times for immigration petitions and applications on their web site. Most immigration applications and petitions must be submitted to one of the following USCIS Service Centers: (1) Laguna Niguel, California; (2) Lincoln, Nebraska; (3) Mesquite, Texas; and (4) St. Albans, Vermont and (5) the National Benefits Center in Missouri.
These service centers periodically issue lists of their processing times for various types of petitions and applications. We link to the latest list issued by each service center.
Warning: Processing times may appear faster on the official lists than they are in reality.
To see how fast (or slow) your service center is processing a particular type of petition or application, see our Government Processing Times Page at
The AAO's most recent published processing times (August 29, 2007) may be found at
The State Department web site contains a "Visa Wait List" page which permits readers to choose a particular U.S. consular post and learn how long it takes the post to process temporary, nonimmigrant visas. See
Links to the transcripts of all of our chats are posted online on our "Chat" page at
We link to selected audio programs regarding immigration produced by National Public Radio at
Answers:
Maria Hinojosa (born in Mexico City, Mexico)
Sukanya Krishnan (born in Madras, India)
Max Frankel (born in Gera, Germany)
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Dear Mr. Shusterman,Chris - Congratulations on winning our quiz! We met, and fortunately, we have a solution to your case. We look forward to assisting you!My name is Chris, an immigrant from Korea. I'm a journalist working for a newspaper. I've been subscribing your news letter for several years now. I once covered immigration issues as a reporter and naturally got to know your name and website.
This month's quiz is tough enough, but I just wanted to try. Frankly, I'm not sure about Sukanya Krishnan because the photo in the quiz is kind of fuzzy. But I was able to come up with other journalists after a little bit of googling. I'd appreciate it if I can get a chance to see Mr. Shusterman.
Thank you.
Sincerely,
Chris
Carl Shusterman
Certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Trial Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, California 90017
"I am a foreigner; my people didn't get here until about 1710, and now I am asked to close the doors to people who came on a later ship. My ancestors came here to get a better chance, and I don't believe in closing the doors on people who would like to come for the same reason now."
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January 1, 2008