1. April 2000 State Department Visa Bulletin: EB Numbers Regress

Mad's copy was not completely legible because of damage caused by raw eggs which were thrown at her during her recent European trip, but here's what we know now...

For the Family categories, the priority dates continue to creep forward at a snail's pace. Worldwide numbers move forward from one to five weeks. India 4th advances one week while the Philippine 4th (brothers and sisters of U.S. citizens) is still lingering back in 1979, a wait of over 20 years!

The Employment categories have all been Current (with the exception of the unskilled worker category which advances three months to June 1, 1994) since August 1, 1999 due to the INS's failure to approve applications for adjustment of status in significant numbers.

However, starting April 1, 2000, the EB2 and EB3 categories for persons born in India will backlog to January 1, 1999 and January 1, 1997, respectively. Though we won't obtain the numbers for mainland China until Monday at the earliest, expect the EB numbers for China to regress significantly. According to the State Department's Charles Oppenheim, the regressions came about because the INS started approving I-485's in mass quantities during the past few weeks.

The April Visa Numbers (partial listing) can be found at

2. Latest Immigration Service Processing Times

Our web site contains the waiting times of each center and enumerates each state served by the center and any foreign offices within the center's jurisdiction.

The service centers periodically issue lists of their processing times for various types of applications. Our web site contains 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

We list Consular Post Processing Times at

3. H-1B Update: The Good, The Bad and The Just Plain Devious

The Good: On March 9, the Senate Judiciary Committee okayed S.2045 by a vote of 16-2. This bill would raise the H-1B cap to 195,000 annually for the next three years, eliminate discriminatory per country quotas, allow certain persons in H-1B status to extend their stay beyond the usual six years, etc.

The complete text of S.2045 (prior to the March 9th mark-up is available at

Sample letters and lists of e-mail addresses of Members of Congress may be found at

White House spokesman Jake Siewert also expressed support for the concept of raising the cap: "We are ready to support a reasonable increase in the number of H-1B visas as long as it reflects a balanced approach that protects and prepares the U.S. work force." However, what the White House considers "reasonable" and "balanced" remains to be seen. Mr. Siewert's choice of words seem to mirror those of Rep. Lamar Smith (See "The Oh-So-Ugly" below).

The Bad: The INS broke its long silence and announced that by February 15, 67,000 H-1B petitions subject to the cap had been approved, and that 44,000 H-1B petitions were pending. However, the agency has no idea how many of the 44,000 unadjudicated petitions are subject to the cap.

Meanwhile, the KPMG audit of the alleged undercount of H-1B's from the last fiscal year has yet to be completed. Senator Abraham (R-MI) wrote a letter to the INS Commissioner about the audit on February 25. He detailed how the entire counting methodology is seriously flawed. His letter demonstrates how the INS is actually overcounting the number of H-1Bs subject to the cap. See

When the S.2045 was first introduced by Senators Hatch (R-UT) and Abraham (R-MI) and a bipartisan group of 20 senators, Rep. Smith actually seemed ready to cooperate when he stated, "We are ready to support a reasonable increase in the number of H-1B visas as long as it reflects a balanced approach that protects and prepares the U.S. work force."

Then, on March 1, Rep. Smith and a few of his colleagues introduced the so-called "Technology Worker Temporary Relief Act" (H.R.3814), a bill that is anything but "reasonable" and "balanced". The bill would raise the H-1B cap by 45,000, but only for this year, and only if and when the Labor Department issues regulations to implement the 1998 H-1B law, and only for large employers, and only if these employers take certain steps required by Rep. Smith...

Under the Smith bill, the H-1B cap would fall starting on October 1, 2000, the discriminatory per country quotas would remain, as would the six-year maximum duration, etc., etc.

To us, the bill is a wolf-in-sheep's clothing, but please judge for yourself. Read the complete text of H.R. 3814 at

4. Amnesty 2000: AFL-CIO Labor Federation Backs New Amnesty

"Si, Se Puede!: The AFL-CIO may do an about-face on immigration. On October 11 in Los Angeles, some of the labor federation's fastest growing and most aggressive unions argued for an end to employer sanctions and for an amnesty for undocumented workers. Dolores Huerta of the United Farm Workers stated that 'our position is that we should give undocumented workers amnesty...'" Still, I had to pinch myself when I picked up the Los Angeles Times the other day and read about the unanimous approval that the AFL-CIO gave to a resolution calling for a new amnesty for undocumented workers. For too many years, many labor unions looked upon immigrants as little more that "cheap foreign labor", direct competition with union labor. Rather than try to organize foreign-born workers, they demanded their exclusion. As far back as the 1880's, union opposition to Chinese laborers working for pennies an hour to build our railroads led to the infamous "Chinese Exclusion Act". Organized labor supported "Operation Wetback", the giant round-up and deportation of thousands of Latinos, immigrants and U.S. citizens alike, in the 1950's. Labor union support for sanctions against employers who hired undocumented workers helped pass the Immigration Reform and Control Act of 1986.

Seen in this context, the ALF-CIO's call for a new amnesty and an end to employer sanctions represents a 180-degree turnabout for organized labor. The labor federation has learned the hard way that it is only possible to organize workers who are legally present in the U.S. This is because there are some unscrupulous employers who are all too eager to exploit illegal aliens. When a union tries to organize them, the employer "suddenly discovers" that it needs to fire these workers on the ground that they would be violating the I-9 laws by keeping them on the payroll.

How likely is it that the AFL-CIO's resolution will result in legislation during the current legislative session? Not likely at all considering the present makeup of the Congress. Representative Lamar Smith (R-TX), the Chairman of the House Subcommittee on Immigration, issued a terse press release in response to the AFL-CIO's resolution entitled "Union Bosses Sell Out Workers".

Other Congressional leaders were adamant that the AFL-CIO's proposals would not see the light of day. Even the Clinton Administration declined to comment on the proposal.

However, Rep. Lucille Roybal-Allard (D-CA), the Chairwoman of the Congressional Hispanic Caucus, said the caucus members would "look forward to working with the AFL-CIO and the business community to reform our immigration policy...we believe that these immigrants have made impressive contributions to our work force and to our nation."

The AFL-CIO's press release, the text of their resolution, Rep. Smith's response and much more may be found at

5. Derivative Citizenship: Using The Law To Perform "Miracles"

Although the laws pertaining to this area of law were (and are) sufficiently complex and obscure to make the whole exercise somewhat interesting, I always had the feeling that my mastery of these laws, like my knowledge of high school algebra, would be almost totally useless as a private attorney.

Well, it ain't necessarily so!

During the past few years, a number of people, some of whom had read my article about derivative citizenship at

Example #1: After a half dozen other attorneys had turned them away, the parents of a young man incarcerated for a criminal conviction in Nevada, retained me to represent their son. I explained to them that because their son had become a permanent resident of the U.S. as a child, and since both parents had naturalized prior to his 18th birthday, their son had become a U.S. citizen "by operation of law". I'll never forget the Immigration Judge words, spoken during the telephonic "removal" hearing, "Well Mr. Shusterman, it seems that you have no defense and that your client is subject to deportation." I answered that unless the INS had been given the authority to deport U.S. citizens, I thought that my client had a perfect defense. Two weeks later, the judge terminated the removal proceedings on the ground that my client was a citizen of the U.S.

Example #2: A woman seeking to come to the U.S. called me from the Cayman Islands. After inquiring about her U.S. citizen father, I determined that despite being born abroad, she was a citizen of the U.S. She now holds a U.S. passport.

Example #3: Of all the recent derivative citizenship cases that I have handled recently, the one I'm proudest of involves a man born in Canada named Brian Olsen. Brian's wife was born in one of the former Soviet Republics, and he needed to prove that he was a U.S. citizen in order to obtain a green card for her so that they could both move to the U.S.

Like the young man in Nevada and the woman in the Cayman Islands, I was able to prove that Brian was a U.S. citizen without ever meeting him in person. Brian had tried on his own to obtain a Certificate of Citizenship from the INS in Montana. He was told that he was not a citizen, and that it was a waste of his time to even apply! The problem was that neither Brian, his parents, nor his grandparents were born in the U.S.

However, Brian is not the kind of person who takes "no" for an answer, especially when he thinks he's right. I went back five generations to before the Civil War to prove Brian was a U.S. citizen before obtaining a U.S. Passport for him. Explore the laws of derivative citizenship by reading Brian's story at

6. Immigration Trivia Quiz: Immigrant Achievement Awards

The winner of this month's trivia quiz will be the first person (other than an immigration attorney) who sends an e-mail message to carl.shusterman@gte.net answering each of the questions posed at

7. Chat Schedule and Online Transcripts: Amnesty Chat

This coming Monday, on March 13th at 6pm PST (9pm EST), we will have a chat entitled "H-1B's: What Happens When The Cap Is Reached?" Our most recent chats were:

• New Amnesty? Reaction to Labor's Proposal (March 6)
• Nurses: H-1C's, TN's and Permanent Residence (February 21)
• Raising the H-1B Cap (February 14)

For a list of upcoming chats and transcripts of past chats, see

8. Budget: Administration Proposes Building on Past Initiatives

In the President's budget, submitted in February, are several immigration-related initiatives that build on those begun in recent years. Some were proposed last year, but were rejected.

English and Civics. $75 million is proposed to fund programs that provide English language instruction linked to civics and life skills. (A knowledge of English and an understanding of the history and government of the U.S. are prerequisites for naturalization, for the most part.) Last year, Congress allocated approximately $25 million for this program. Non-profit community organizations have been eligible for grants under this program, as well as state educational agencies, institutions of higher learning, and local educational agencies.

Improving INS Services. First the good news. The Administration proposes $127.3 million for an Immigration Services Capital Investment Account(ISCIA). The INS will use this money to fund infrastructure improvements, system upgrades, and to reduce the various backlogs in immigration services. This new dedicated account is separate from the Examinations Fee Account(EFA)--the account that is funded by fees collected from immigrants applying for benefits. Up to now, new infrastructure and system upgrades have been paid for out of the EFA, which has been unable to pay for both the upgrades and the adjudications of ever-increasing applications for immigration benefits.

The bad news? A lot of dominoes have to fall before this funding comes through. $34.8 million of the proposed ISCIA comes from direct appropriations. The remainder, $92.5 million, assumes two things: that there is a restoration of 245(I), and that there is a new "Premium Service Fee" of $1,000 for business-related applications which will guarantee a 15-day turnaround time. All proposals require separate legislation.

245(I), to refresh your memory, is a section of the immigration law which allowed the adjustment of status of persons otherwise eligible for an immigrant visa but here illegally, after payment of a $1,000 penalty fee. It is this penalty fee that the administration is counting on for the ISCIA. After a hard-fought battle, Congress eliminated Section 245(I) three years ago, for all but those who had petitions pending as of January 14, 1998, and it is unclear that it is ready to fight the battle again. Any attempt to restore 245(I) would likely be fought to the death by House Immigration Subcommittee Chair Lamar Smith (R-TX), who saw the provision as a loophole for other enforcement provisions in the law. On the other hand, new voices are entering the immigration debate, including businesses that are very interested in stabilizing their workforce. Section 245(I) has also been attractive to appropriators in Congress, who see the $1,000 penalty fee as an important revenue generator.

The $1,000 premium fee for business applications is contemplated to be used in part for the special processing of these applications. Leftover funds would be used to fund the ISCIA. The premium for business applications does not exactly have immigrant advocates jumping up and down. There is some skepticism that the fee would actually go to reducing family immigration and naturalization backlogs. In a meeting with advocates in February, the INS could not say how funds collected from this fee would translate into reducing other backlogs.

Restoration of Benefits. The Administration again proposes to restore public safety net benefits eliminated by the 1996 welfare reform law. The benefits restoration would amount to $2.5 billion over the next five years, and include the following:

• SSI and Medicaid eligibility would be restored to legal immigrants who entered the U.S. after the enactment of the welfare law (8/22/96), who have been in the U.S. for five years, and who become disabled after entry ($1.2 billion).

• Food Stamp eligibility would be restored to legal immigrants who were in the country on or before 8/22/96 and subsequently reach age 65 ($135 million). Adult legal immigrants who entered the U.S. on or before 8/22/96, and who are living in households with Food Stamp-eligible children, would also have eligibility restored ($430 million).

• States would be given the option of providing Medicaid or the State Child Health Insurance Program (SCHIP) for legal immigrant children and pregnant women regardless of their date of entry ($687 million). Adult legal immigrant parents of children covered by SCHIP or Medicaid would also be covered in a proposed family coverage program ($513 million).

Congress has had hearings on many aspects of the budget, but it is too early to guess the fate of any of these proposals. The final decisions on budget matters generally aren't made until just before Congress adjourns (if not before the end of the Fiscal Year at the end of September). This year, Congress anticipates adjourning in early October.

9. Web Site: Executive Office For Immigration Review (EOIR)

We link to the EOIR homepage at

• Special Report - Evaluation of the EOIR-Funded Rights Presentation Pilot Project

• Q & As on the New Streamlining Procedures at the BIA

• BIA: Practice Manual and Questions and Answers

(A) Practice Manual: Guides attorneys and representatives on practice before the BIA.

The Practice Manual is a 148-page document which contains 13 chapters on the following subjects: (1) The BIA; (2) Appearances before the BIA; (3) Filing with the BIA; (4) Appeals of Immigration Judge Decisions; (5) Motions before the BIA; (6) Stays and Expedite Requests; (7) Bond; (8) Oral Argument; (9) Visa Petitions; (10) Fines; (11) Forms; (12) Freedom of Information Act; and (13) Other Information. The Practice Manual also contains the following eight appendices: (A) Mailing Addresses; (B) Directory; (C) Organizational Chart; (D) Deadlines;(F) Forms; (G) Sample Proof of Service and (H) Sample Certificate of Translation.

(B) Q & A's On Proceedings: Answers questions often asked by people with cases before the BIA.

The Questions and Answers on Proceedings Before the Board is a 57-page document which contains the following five chapters: (1) General Questions; (2) Appeals Procedures; (3) Motions Procedures; (4) After An Appeal or Motion Is Filed; and (5) Helpful Information including a Glossary, Sample Cover Page and Directory of Important Phone Numbers.

(C) Q & A's On Oral Argument: Guides attorney and representatives through the oral argument process.

The Questions and Answers on Oral Argument is a 10-page document containing 31 questions and answers.

All three of the above documents are in PDF format, were scanned into the website, and were last updated on November 1, 1999.

Although these documents are extremely useful to attorneys and to the general public, the BIA-Immigration Courts section of the EOIR website leaves much to be desired. Here are a few ideas for what needs to be done:

• Forms: The EOIR website does not allow persons to download BIA forms. To do so, one must visit a private website. See
  http://www.shusterman.com/ctforms.html
  When the INS placed their forms online last year, over one million forms were downloaded within the first two months. This is clearly a service which the public desires.

• Court Listings: The EOIR publishes a nationwide list of Immigration Courts, Court Administrators, Judges, Addresses and Phone Numbers. Although it never seems to be current, it is still useful. We post it at
  http://www.shusterman.com/toc-dpt.html#8
  Why doesn't EOIR?

• Local Operating Procedures: A number of local immigration courts have published their own operating procedures. They often include such important items as filing procedures, motions to change venue, withdrawal or substitution of representation and continuances. We post local operating procedures at 15 locations around the U.S., from Arlington, Virginia to San Francisco, California at
  http://www.shusterman.com/toc-dpt.html#8
  We understand that the Immigration Court in Seattle, Washington has recently proposed new operating procedures.

  Shouldn't all existing and proposed operating procedures be listed on EOIR's website? Actually, the existing operating procedures are listed on the EOIR web site, but are buried so deeply that it is easier to find the Lost Continent of Atlantis than the local operating rules.

• Precedent Decisions: During the last half of the 20th Century, the BIA, the Attorney General and the INS have published over 3,400 precedent decisions. These decisions are vitally important in determining the rights of aliens under U.S. immigration laws. The EOIR website has done a good job in posting new decisions since October 1996. However, what about pre-October 1996 decisions? The INS website posts many, but not all, precedent decisions rendered between 1953 and 1998. See
  http://www.shusterman.com/toc-dpt.html#6
  We hope that the EOIR will soon post a complete database of precedent decisions, and indicate which have been reversed, and which are still in force.

10. Answers to the Trivia Quiz: "Lennon Read A Book Of Marx"

Another immigration attorney, Careen Brett Shannon (with a little help from a friend), has adapted the lyrics of a Lennon-McCartney song in a way that may tickle the funny bones of some of our subscribers who work in the IT industry. See

Here is his winning entry:

"The answers to this months quiz as best as I can tell are:

A. John Lennon

B. 9 October 1940, Liverpool, England

C. Julia, John Lennon/Plastic Ono Band

D. Please click on the link below for the answer to D

http://uscis.gov/cgi-bin/folioisa.dll/interim.nfo/query=lennon/doc/{@5099}/words=4? (Link is no longer operational.)

or alternatively the path from your website is:

Click on BIA on the Alphabetical site index on the left.

Click on Decisions of the Board of Immigration Appeals under the heading "Board of Immigration Appeals"

Click on Query

Search "Lennon"

Clicking on the hotlink above is easier!!

warmest regards, hari"

"Thanx and it sure is nice to win something for a change!

Since I am a fan of the Beatles and loved 'American Pie', I knew instantly that the person you were referring to had to be John Lennon. The answers to B and C were relatively easy too since there are a multitude of sites devoted to the Beatles. In this instance, the rollingstone.tunes.com website had a pretty good biography of Lennon. The tough part as you know was the answer to D. I had to spend a good deal of time trying to get to the exact decision of the BIA. Finally after some creative searches, I got to a decision that mentioned the Lennon decision and since my wife was hollering at me to go to bed, I decided that this would be my best effort answer and sent off the e-mail.

About myself, I am a native of Malaysia and got my engineering degree at the National University of Singapore. Came to the Bay Area three years ago after being posted here by the Tokyo based company I work for. I am an engineer in the optical networking field and am currently on an L1 temporary work visa.

Your website/newsletter is a tremendously useful resource which I use to educate myself on immigration issues.

I have already filled in the consultation questionnaire on the website and scheduled the appointment. Look forward to talking to you on Friday.

warmest regards,
hari"

Carl "How Come No One Said the 'White Album'?" Shusterman
March 11, 2000

P.S. - Next month, SHUSTERMAN'S IMMIGRATION UPDATE, in a desperate move to attract new subscribers will premier its first annual swimsuit issue!