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Free Subscription to SHUSTERMAN'S IMMIGRATION UPDATE
Back Issues of SHUSTERMAN'S IMMIGRATION UPDATE
Volume Thirteen, Number Six
SHUSTERMAN'S IMMIGRATION UPDATE is the Web's most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 55,000 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
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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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Did you receive... .... a PERM Audit questioning Business Necessity? Silvergate Evaluations provides specialized expert letters which establish business necessity for an offered position. These letters demonstrate that "the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business, and are essential to perform the job in a reasonable manner", in accordance with regulations. .... an RFE on an H1-B petition questioning a Specialty Occupation? Our expert opinion letters establish an offered H1-B position as a USCIS Specialty Occupation, which requires the attainment of a Bachelor's Degree. These letters demonstrate that the "nature of the position's specific responsibilities and knowledge is so specialized and complex that knowledge required to perform these duties is usually associated with the attainment of a Bachelor's Degree", in accordance with regulations. .... an RFE on an L1-A petition questioning the executive or managerial capacity of an offered position? Expert opinion letters for L1-A cases assess an offered position's responsibilities and establish the position as Executive and/or Managerial. We clearly describe how the characteristics of the position match the four requirements of the USCIS for an Executive or Managerial position. Silvergate Evaluations is the preeminent provider of specialized expert opinion letters for immigration purposes, especially for those cases where you need 'just a bit more' than what an 'ordinary' credential evaluation service can provide. Please call our office today at 410.358.3588 for a free preliminary assessment.
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We link to the complete text of the report from our "Ombudsman" page at
However, Congress realized that despite their best efforts, some children would turn 21 ("age-out") despite CSPA, and, therefore, they inserted a provision in CSPA (the last sentence of section three) to allow these youngsters to promptly reunite with their parents and siblings. See
What does this provision mean in simple English? Consider the following real-life example:
Mrs. Rosalinda Cuellar de Osorio is a native of El Salvador. Her U.S. citizen mother filed an immigrant visa petition for her and her family in 1998. After patiently waiting and playing by the rules, she and most of her family were finally able to immigrate to the U.S. in 2006. All of the family members immigrated to the U.S. except for her son Melvin who was only 13 years old when the original petition was submitted, but who had turned 21 years of age just before he could receive his green card. The U.S. Embassy in El Salvador ignored the automatic conversion language in CSPA and determined that because Melvin had turned 21, he was no longer a "child" and, therefore, could not immigrate together with his family.
In 2007, Mrs. Cuellar de Osorio filed a visa petition for Melvin under the 2B category as the unmarried son of a permanent resident. Her attorney, Andrew Knapp requested that, under the Child Status Protection Act, Melvin's petition be "automatically converted" from the FB4 (sibling) to the F2B category (unmarried adult son of a lawful permanent resident) and that he be accorded the original priority date of 1998. This would have allowed Melvin to immediately immigrate and join his family in the U.S. However, the USCIS has not answered this request nor have they acted upon the petition.
In all probability, USCIS will, a few years from now, give Melvin a 2007 priority date under the family-based 2B category. This priority date will not be current for another eight years meaning that he will not be able to join his parents until 2016 at which time Melvin will be over 30 years old. Should Melvin marry before immigrating to the U.S., his mother's petition for him will be cancelled, and he will not be able to join his family in the U.S. despite scrupulously following U.S. immigration laws for almost 20 years.
The words of the CSPA are plain and unambiguous. Melvin is clearly entitled to "retain the original (1998) priority date". The government is required to "automatically...convert" his grandmother's 3rd preference petition to the "appropriate category" which is the family-based 2B category since Melvin is the unmarried adult son of a lawful permanent resident.
This would allow Melvin to immediately rejoin his family in the United States.
It is really very simple. Yet for the past six years, the USCIS and State Department have ignored this section of the law.
The government has never proposed an alternative interpretation of CSPA. They simply pretend that this section of the law is nonexistent, and deny thousands of potential immigrants the benefits that the law confers.
Yet, over two years ago, the Board of Immigration Appeals (BIA) issued a decision, Matter of Maria T. Garcia, which interprets CSPA properly, and in a manner which would entitle Melvin to immediately immigrate to the United States and rejoin his family. Unfortunately, since the decision was not designated as a precedent, it is not binding on the USCIS. We link to the complete text of this decision from our "CSPA" page at
Would you benefit if the government followed the letter of the CSPA law? We know that there are thousands of families that would. We link to the complete text of our complaint in our Federal Lawsuit, Cuellar de Osorio vs. Scharfen, from our "CSPA" page at
P.S. - Apparently, we are not the only ones who are "fed up, and not going to take it anymore." One business day before we filed our lawsuit in Federal Court, another law firm in Los Angeles filed a class action lawsuit based on USCIS' failure to follow the same section of CSPA. We presume that the two lawsuits will be heard before the same Federal Judge.
At that time, we hoped that the USCIS would start issuing multi-year EADs; not only to applicants for adjustment of status but for a host of other applications as well, and spend its energy reducing backlogs for other immigration benefits. Unfortunately, despite the regulation, USCIS continued to issue EADs for only a year or less.
On June 9, 2008, almost four years later, DHS Secretary Michael Chertoff announced the following change of policy: "I'm also pleased to announce that we will be extending the validity period of the employment authorization documents that we issue to individuals who are waiting adjustment of status to lawful permanent residence, or in colloquial phrase, the green card. Currently, adjustment applications are granted employment authorization documents with only a one year maximum validity. Beginning later this month, we'll start issuing these documents with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year. This, again, is eliminating a persistent source of frustration for workers who are here, who have a pending adjustment application but have to go and renew their employment documents every single year."
We link to USCIS's Press Release and Fact Sheet regarding two-year EADs from our "Adjustment of Status" page at
Generally no. Initial EAD filings will generally receive an EAD that is valid for one-year because they are usually submitted with the Form I-485 that can only be filed when there is an immigrant visa number immediately available to the individual. Applicants are only eligible for a two-year EAD if their immigrant visa availability date retrogresses (i.e., when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed. If an immigrant visa number is available, USCIS will grant the one-year EAD."
Not exactly change we can believe in...
The NAICS code was developed jointly by the U.S., Canada, and Mexico to provide new comparability in statistics about business activity across North America. An employer may look up its NAICS by following the links from our website. See the "NAICS Look-Up" from our "Employer Information Guide" at
Many employers find this registration requirement to be overly cumbersome and would prefer to have their immigration counsel register for them; however the DOL has specifically prohibited anyone other than the employer from making the initial PERM registration. In response to the question, "Can an attorney, agent, or law firm register to use the Permanent On-Line System?", the DOL responded "No, only an employee or owner of the employer entity may register to use the Permanent On-Line System because employers must make attestations required for the permanent application process and a PIN will only be assigned to an employer. The registration must be submitted by an individual with actual hiring authority for the employer." See DOL's 2nd PERM FAQ (4-06-05) from our "PERM Resources" page at
Additional guidance can be found at our step-by-step guide to registering on the DOL PERM system at
While we commend Senator Feinstein, it is a fact that less than 5% of all private bills are enacted into law. Since 1997, only 43 of 945 such bills introduced by members of the Senate and the House were signed into law.
Though the immigration laws keep getting tougher and tougher, we prefer to help our clients the old-fashioned way, by litigation and sometimes, by getting their cases featured in the media as well. See our "Photo Gallery" at
His Congressman referred him to our law firm after Miguel's bags were packed and he was ready to leave the U.S. for good. Suffice to say that we were able to find a way to win his immigration case. Today, Dr. Miguel Perez is a distinguished university professor.
See how this happened in a short video on our new "You Tube" page at
Her concern was not about herself, but about her daughter in the Philippines who would turn 21 in May 2008. Due to the backlog in priority dates, her husband and daughter had yet to get their green cards. The family had been separated for over five years and they were looking forward to a reunion. Her former attorney knew there was no issue with her husband's green card process. Sooner or later he would be joining her. But with her daughter, he was afraid that she would turn 21 before she could qualify for a green card.
According to the law, a spouse or a child of an immigrant is entitled to immigrant status if accompanying, or following to join, her spouse or parent. A child must be under the age of 21 and unmarried. If the child turns 21 prior to her interview, generally she cannot receive a green card. The nurse's former attorney had informed her that it looked like her daughter would "age out" before she could receive a green card.
Mrs. Suerte was desperate to do something to make sure that her daughter's case would be approved before she turned 21.
We asked Mrs. Suerte's former attorney to produce all documents relating to her immigrant petition. We reviewed the papers and found out that her employer had filed an immigration visa petition (I-140) on behalf of Mrs. Suerte in March 2004, but that the petition was not approved until June 2005, over 14 months later.
Since the petition was pending for a long time, we realized there was a possibility that the Child Status Protection Act ("CSPA") might be applicable in this case. The details of this law can be accessed from our "Child Status Protection Act" page at
We informed Mrs. Suerte that she had nothing to worry about since her daughter would have an extra 14 months after turning 21 to continue to be eligible for her green card.
We sent our attorney representation form to the U.S. Embassy in the Philippines, and we started keeping a very close watch on the State Department's monthly Visa Bulletin. See
At the interview, the officer did not approve her case since he was in doubt about her eligibility for a green card since she had already turned 21. However, instead of denying it outright, he gave our client one more chance to explain her eligibility.
The family called us in desperation from the Philippines. We provided them with the necessary papers to prove her eligibility.
The daughter went back to the Consulate and this time they agreed with us and approved her green card!
Mrs. Suerte is doubly blessed, for not only did her daughter receive her green card before her 21st birthday, but also before the EB-3 category "blacked-out" on July 1st.
To read more of our Immigration Success Stories, see
Their applications for adjustment of status are being denied for strange reasons, and often their attorneys do not know what to do. For example, in one case, the USCIS examiner called the Department of Labor and was told that no application for labor certification was submitted in April 2001 even though the client presented an acknowledgement letter from the State Workforce Agency (SWA). We immediately called the SWA and the representative not only confirmed that they had received a timely-filed application, but promptly faxed us a confirmation letter with her name, title and phone number. We submitted this information to the USCIS in the form of a Motion to Reconsider.
In another case, the person's attorney failed to accompany her to her adjustment interview. Again, the USCIS examiner refused to accept the SWA letter, denied the 245(i) application and issued a Notice to Appear (NTA) before an Immigration Judge in a removal proceeding with no date set. This was more troublesome since the person is in the EB-3 category and no visa numbers are available until October 1, 2009. However, despite the absence of EB-3 visa numbers this summer, it is still possible to renew the application for adjustment of status in front of an Immigration Judge. How? See our article "Win Your Case with a Decision that is Not in the Books" at
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 (April 23, 2008) 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
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
Dear Mr. Shusterman,The gentlemen in the photos are:
Phil Chess - Poland
Leonard Chess - Poland
Ahmet Ertegun - TurkeyI'm a US citizen currently living in South Africa and working for a local NGO on a fellowship. My husband is a Mexican citizen and our efforts to resolve his immigration issues so he can become a legal resident of the US (eventually, when our travels are done) led us to your newsletter - it helps us keep up to date on developments.
I solved the quiz by an internet search - I came on the Chess brothers early, since there were lots of clues, but it took me longer to find Ahmet Ertegun on the Rock and Roll Hall of Fame inductee list...
Alexis Jones
Alexis, it beats me how you found the Chess brothers "early" unless you read the recent obituary of rock legend Bo Diddley, who was managed by the Chess brothers. I rechecked the obit and this seems unlikely since he died a few days after you solved the quiz... How did you do it?
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
"It's as if we expect border control agents to do what a
century of communism could not: defeat the natural market
forces of supply and demand... and defeat the natural human
desire for freedom and opportunity. You might as well sit in
your beach chair and tell the tide not to come in."
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July 2, 2008