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Free Subscription to SHUSTERMAN'S IMMIGRATION UPDATE
Back Issues of SHUSTERMAN'S IMMIGRATION UPDATE
Volume Twelve, Number Six
SHUSTERMAN'S IMMIGRATION UPDATE is the Internet's most popular e-mail newsletter regarding U.S. immigration laws and procedures with almost 50,000 subscribers located in more than 150 countries.
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.
If your application for immigration benefits has been delayed for years due to an FBI name check, do not contact the CIS Ombudsman. His office will not be able to assist you since this is an FBI problem rather than a CIS problem. Instead, read our article "Why Wait When You Can Litigate?" at
Last year, 62 senators passed an excellent immigration bill which combined enforcement measures with a legalization program. It also increased employment-based immigration to keep America competitive. The fact that persons of extraordinary ability, those with approved NIWs, registered nurses and physical therapists would be able to immigrate to the U.S. in unlimited numbers was icing on the cake. See
The result was that after weeks of bitter wrangling, on June 28, not only couldn't the bill's proponents muster the required 60 votes to cut off the debate and proceed to a final vote, they couldn't even get a simple majority to vote in favor of the bill. Most of the Democrats voted to cut off debate and continue with the bill while most of the Republicans voted to kill the bill. See how your Senators voted from our "Immigration Legislation" page at
The anti-immigrant folks need a wake up call: Immigration is, and always has been, good for America. We desperately need more scientists, engineers, IT workers, health care professionals and teachers. And, by the way, those 12 million nannies, gardeners, construction workers and migrant farm workers are not going anywhere. They will remain hard at work on their jobs and in the shadows until we get serious about immigration reform.
Some members of the Senate are considering acting on portions of the "Grand Bargain" like the AgJobs bill and the DREAM Act. We wish them well and will continue to support these efforts.
Instead of another "Grand Bargain", we make the following "Modest Proposal": Let's come together and pass a series of smaller immigration bills regarding subjects on which most elected representatives and their constituents are in agreement. Let's bring in more immigrants who establish companies, create jobs, employ Americans and help us grow our economy. Let's also bring in skilled professionals including physicians, nurses, allied health care professionals and school teachers who are in short supply. Let's reward people who are on 10-20 year waiting lists to get green cards after having been petitioned by their citizen and permanent resident parents and siblings. Let's reform our outdated immigration laws so that husbands won't be separated from their wives and children for five years or more.
Just because the Senate failed to pass a bill which promised to do everything doesn't mean that we should sit back and do nothing.
We will continue to keep you informed on a daily basis.
Before we get tough on workplace enforcement, we need to have a national debate on the "sleeper" issue in this area: the creation of a National ID card with biometric features which must be carried by U.S. citizens and immigrants alike. Is this a smart way to enforce the law or is it the beginning of a "Big Brother" society? See an article entitled "National ID Cards, The Sleeper Immigration Issue?" (June 26) on our "Computer Professionals" page at
Recently, Stuart Anderson, former Counselor to the INS Commissioner, wrote a revealing report entitled "The Point System's Impact on Foreign Nurses and Other Potential Immigrants" in which he concluded that despite our country's growing nationwide shortage of nurses, the chances of a single RN getting a green card under the points system would be slim or none. Code Blue! See
Yet the U.S.A. remains Number One in science, engineering, high-tech and health care technology. Why? One reason is that we have imported the best and the brightest minds from abroad.
However, in the last couple of years, the employment-based (EB) part of our immigration system has hit a snag. The number of visas offered has not kept up with demand. The result is a series of backlogs so severe that an engineer from India has to wait over six years for a green card. This phenomenon is commonly referred to as the "retrogression". Worse yet, at the end of each year, over 10,000 EB visas are wasted, never to be recovered.
Now, a most amazing and unexpected thing has occurred: Because the CIS has issued green cards so slowly to EB immigrants, the State Department has temporarily wiped the slate clean and eliminated all EB-1 (Priority Workers), EB-2 (Persons with Advanced Degrees) and EB-3 (Professionals and Skilled Workers) backlogs during the month of July.
This presents a fantastic one-time opportunity for persons who have waited in line for years to finally get their green cards. This magic will be lost on the hundreds of thousands of persons waiting in perpetuity for their FBI name checks to clear except for those few intrepid souls who have challenged these delays in Federal Court. See "Why Wait When You Can Litigate?" at
This means that ten of thousands of persons who have been subject to the retrogression will obtain their green cards in July, and tens of thousands more will submit applications for adjustment of status, right?
Not so fast. As soon as we saw the July Visa Bulletin, we thought, if something seems too good to be true, it probably is. So we prepared hundreds of applications for adjustment of status for our clients, and express mailed them so that the USCIS would receive them on the morning of Monday, July 2nd.
What initially caught our attention was paragraph E in the July Visa Bulletin:
E. EMPLOYMENT-BASED VISA AVAILABILITY DURING THE COMING MONTHSAll Employment Preference categories except for Third "Other Workers" have been made "Current" for July. This has been done in an effort to generate increased demand by Citizenship and Immigration Services (CIS) for adjustment of status cases, and to maximize number use under the annual numerical limit. However, all readers should be alert to the possibility that not all Employment preferences will remain Current for the remainder of the fiscal year. Should the rate of demand for numbers be very heavy in the coming months, it could become necessary to retrogress some cut-off dates for September, most likely for China-mainland born and India, but also possibly for Mexico and Philippines. Severe cut-off date retrogressions are likely to occur early in FY-2008.
Last week, we called the State Department in Washington, D.C. and asked a few pertinent questions. The official that I spoke to asked that I not use her surname, but what follows is a summary version of our conversation:
Carl: Does the fact that the employment-based categories are "current" in the July Visa Bulletin mean that we can submit EB-1, EB-2 and EB-3 petitions along with applications for adjustment of status during the entire month of July?
DOS Official (Let's call her "Condi"): Probably not. It's hard to get the USCIS to estimate how many visa numbers are left until the end of the fiscal year which ends on September 30th. Therefore, we may have to revise the July Visa Bulletin to cut off new adjustment applications sometime before the middle of July.
Carl: Will this revision affect people from some countries more than others?
Condi: Yes. Persons born in India, mainland China and Mexico will be most affected. Persons born in the Philippines are probably better off than others since the recapture of 50,000 immigrant visas for RNs, PTs and family members in 2005 and 2006 cleared up some of the Filipino backlog.
Carl: Thanks for the advice, Condi. I think that you are going to see a lot of adjustment applications from our law office when you come to work on July 2nd. Just wanted to warn you!
Can USCIS stop accepting adjustment applications in spite of the Visa Bulletin? No one is sure.
The State Department's Visa Bulletin Guru, Charles Oppenheim, testified allow how visa numbers are allocated before the House Immigration on June 6, 2007. We link to his testimony from our "Department of State: Immigration Resources" page at
If this occurs, the situation could be a summer rerun of the H-1B debacle which occurred just after April Fool's Day earlier this year.
We do not want to appear smug, but we are sleeping well tonight because our adjustment applications were submitted to the government over the weekend. We hope yours were as well.
The attorney prepared an immigrant visa petition and an application for adjustment of status for Ms. Santos. Unfortunately, since the attorney was not familiar with immigrating RNs to the U.S., the posting notice that he advised SLC to sign and submit along with the petition was posted for ten consecutive days including weekends (since Ms. Santos worked on weekends). After 90 days, Ms. Santos received a work permit, and started working for SLC at a salary of $38,000 per year, ten times higher than her salary in the Philippines. Despite the long hours that she put in, she was very happy.
Then, a few months later, in 2004, SLC received a notice from the Immigration Service denying their visa petition for Ms. Santos because they had not posted the notice for ten consecutive weekdays. USCIS does not count the time that notices are posted on weekends. Based on this denial, the Immigration Service also denied Ms. Santos application for adjustment of status.
Ms. Santos immediately scheduled an appointment with her attorney. She was about to lose her job, and the opportunity to live and work in the U.S. The attorney assured her that this could be easily remedied. He would have SLC post another notice, this time for ten consecutive weekdays, and refile the petition and her application for adjustment of status. What's more, it would only cost her $2,000 plus some governmental filing fees.
Just as the attorney promised, the notice was reposted, new applications were submitted, and within 90 days, Ms. Santos received a new work card. Ms. Santos, a little poorer, was happy again.
Then, a few months later, the unthinkable occurred. The Immigration Service denied Ms. Santos' application for adjustment of status a second time, this time for reasons that neither SLC nor Ms. Santos' could understand. They said in the denial letter that Ms. Santos was ineligible for adjustment of status under "section 245(k)" because she had failed to maintain a valid nonimmigrant status for more than 180 days. She was shocked since she had never worked illegally in the U.S. for even one day, and because her attorney had assured her that everything would be alright.
However, when Ms. Santos visited her attorney once again, his only advice was that she immediately return to the Philippines, that he would immigrate her through the U.S. Embassy in Manila in 18-24 months, and that she could pay his new fee in installments.
At this point, Ms. Santos turned to the Internet to find an immigration attorney who specialized in getting green cards for foreign-born RNs. She typed in "nurses" and "immigration" and chose the first law firm whose name appeared: ours. She scheduled a telephonic appointment with me, and was able to talk with me the next day.
Her consultation form which she submitted online revealed that both of her parents resided in the Philippines. However, by questioning her about relatives living in the U.S., I learned that she had a citizen uncle who had applied for her mother 15 years ago, at which time Ms. Santos was a minor, and therefore, a derivative beneficiary of her uncle's visa petition for her mother.
This fact was very important. It meant that Ms. Santos was qualified to adjust her status in the U.S. under "section 245(i)" rather than 245(k).
I was also able to refer her to one of the 100 acute care hospitals that our law firm represents. Not only did the hospital agreed to sponsor Ms. Santos for permanent residence, they increased her salary to $56,000 per year. The icing on the cake was that we were able to retain the 2004 priority date from the second petition that SLC had filed for her.
The Happy Ending: A few weeks ago, Ms. Santos received a notice from the Immigration Service granting her application for a green card. Now we are working on bringing her husband and children from the Philippines. We expect to obtain green cards for them, and to reunite the family in the U.S. within the next few months.
Editor's Note: We do not agree with the Immigration Service's interpretation of section 245(k). The section, printed below, requires that the application be in "a lawful status", not in "non-immigrant status" as the Immigration Service maintains. If you are an RN (or a person in any other occupation) whose application for adjustment of status was denied on this ground, and are now in removal proceedings, we would be happy to help you by asking the Immigration Judge to make a decision about the true meaning of section 245(k). See below:
Section 245(k): An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)(C) , under section 203(b)(4) ) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if--
(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;
(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--
To read more of our Immigration Success Stories, see
If your application is employment-based, the law firm will ask you to supply important information, advertise the job, post notices, etc. It is important to the successful conclusion of your case that you do so, and that you fully comply with your attorney's instructions in a timely matter.
Take a simple matter like scheduling and preparing for an initial consultation with a prospective attorney.
The attorney may request that you complete a lengthy consultation form so that he or she can know the basics of your immigration situation. A good form should ask about you, your family, your immigration status, your employment, your education and any labor certifications, visa petitions or other immigration applications that have been submitted on your behalf.
See our consultation form at
If the person or his employer does not wish to complete the consultation form, he is putting himself at a disadvantage. If the attorney is not privy to all of the information requested on the form, he may not be able to properly evaluate the person's eligibility for the benefit sought.
Many persons only partially complete our consultation form. One frequently omitted item concerns the person's parents and their immigration status. It is not a rare occurrence for us to question the person about their parents and learn that a U.S. citizen aunt or uncle submitted a petition for the person's mother or father over ten years ago. If the person was a minor at that time, this often qualifies them to adjust their status using section 245(i), a very important fact. See
Once a person/employer has retained an immigration law firm to represent him, he will be asked to perform a number of tasks. For example, in Schedule A and PERM cases, employers must post a notice for a minimum of ten working days, weekends excluded. Some employers comply with the requirement and send their attorneys the posting notices immediately. Other employers have to be constantly reminded to do so. This has the effect of delaying the employee's progress toward a work permit and permanent residence.
Employers and employees are often required to submit income tax returns, payroll records, W-2s, diplomas, college transcripts and letters verifying work experience. To the extent that both employers and employees provide these documents to their attorneys in a timely manner, the application process is facilitated.
Take some advice from an attorney who spent six years working for the Immigration Service: The more effort that you expend assisting your attorney, the more likely it is that your immigration case will be successful.
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
Processing times at USCIS local offices may be accessed 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
Since 1999, we have served as the official immigration experts for About.com. We have participated in dozens of free chats since then. Our chats always focus on a particular subject.
Links to the transcripts of all of our chats are posted online on our "Chat" page at
Are your eyes getting tired from reading all of our information about immigration laws and procedures? Then sit back, close your eyes, and listen to any (or all!) of the following immigration audios:
We link to selected audio programs regarding immigration produced by National Public Radio at
Dear Mr. Shusterman,Hello, here are the answers to the quiz.
From Left to Right:
A) Katy Jurado (born María Cristina Estela Marcela Jurado García)
B) Dolores Del Rio (born Dolores Martínez Asúnsolo y López Negrete)
C) Rita Hayworth (born Margarita Carmen Dolores Cansino)
D) Salma Hayek (born Salma Hayek Jiménez)Katy Jurado (playing the character "Helen") makes that statement in Fred Zinnemann's classic film "High Noon".
I had to google for most of them, which was tough because all we had were pictures. I have seen "High Noon", but still had to google the quote and find matches (apparently the quote given was not exact - there were some words taken out), which were not immediately found. But when I found the quote I also had the identity of the actress in the first picture.
The middle two were difficult (of course, Salma Hayek was easy to answer), especially Rita Hayworth because I had assumed they were all at least born in Mexico. I was actually planning on watching "The Lady from Shanghai" this weekend - how appropriate.
I am an immigrant - I came to the country in 1995 at the age of 10 with my family from Pakistan. We are in NJ right now. I have a college degree (BA with Highest Honors in Chemistry) - unfortunately I am in removal proceedings due to the NSEERS program (for which my father and I volunteered). I have been accepted to a prestigious, top-10 medical school but had to defer admission due to my status. (I could really use a consultation with Mr. Shusterman...)
I really enjoy films and reading. I just subscribed recently, having only recently discovered this gem of a site.
Thanks,
SA
Dear SA,
Congratulations on winning our Immigration Trivia Quiz. You're quite correct. Helen, in "High Noon" says "I've always hated it, to be a Mexican woman in a town like this". However, I think that you may have read other parts of the quiz too quickly. It states that "most" (not all) of the actresses were born in Mexico. The exception, Rita Hayworth, was not an immigrant at all. She was born in Brooklyn, New York. Her birth name, "Margarita Carmen Cansino", derives from her Hispanic background. She is the daughter of Eduardo Cansino, a dancer from Sevilla in Spain.
I look forward to discussing your immigration predicament with you,
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
"The Senate bill would have introduced vast changes in the way we conduct our immigration business - without explanation, without talking to the American people about it."
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July 1, 2007