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Free Subscription to SHUSTERMAN'S IMMIGRATION UPDATE
Back Issues of SHUSTERMAN'S IMMIGRATION UPDATE
Volume Eleven, Number Two
SHUSTERMAN'S IMMIGRATION UPDATE is the most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 43,000 subscribers located in more than 120 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.
The 6th FAQ provides answers to the following questions: (1) How can corrections be made to a filed application?; (2) If my application for certification is denied, how long do I have to wait to reapply?; (3) When does the DOL consider a request for review to be pending with BALCA, and how will DOL process such appeals?; (4) The Prevailing Wage Determination provided by the State Workforce Agency was incorrect or incomplete. What do I do?; and (5) I need to enter the years of experience, education or training on my ETA Form 9089. How do I do this? What if it's a range?
The 7th FAQ relates primarily to questions and answers concerning posting requirements.
We link to both FAQs from our "Department of Labor: Immigration Resources" page at
We link to the American Immigration Lawyers Association's (AILA's) summary of the Talent Act from our "Immigration Legislation" page at
To the extent that any, or all, of these provisions are enacted into law, we will discuss, in detail, how to qualify for these immigration benefits in a future newsletter. However, our readers should bear in mind that all of these amendments to the law are still in a very preliminary stage. They will be considered by the Senate Judiciary Committee starting tomorrow, March 2. By March 27, the full Senate will debate the bill that emerges from the Judiciary Committee. If and when the Senate passes a bill, it will need to be reconciled with the "enforcement-only" bill which passed the House of Representatives. Some of the House leaders are on record as opposing any guest worker program, labeling it an "amnesty".
Former Senator Alan Simpson, a co-author of the 1996 anti-immigrant law, got it right when he stated that "it's going to be an extraordinary debate filled with fear and guilt and racism and xenophobia."
One of the opening salvos was fired by Representative Tom Tancredo (R-COLO), the leader of the anti-immigration forces in the House of Representatives: "Words almost fail to describe the threat this bill poses to our national and economic security...By legalizing the millions upon millions of illegal aliens in the U.S., Specter makes a mockery of our laws and crushes our already strained legal immigration system. The American people will not stand by idly as this unmitigated disaster makes its way through the Senate."
Pro-immigration organizations have stated that the bill would "create a permanent underclass" of workers who would be unable to attain permanent residence in the U.S. Many believe that a guest worker program which does not lead to permanent residence would be useless. Why would a person who is working without permission in the United States sign up as a guest worker unless they are given a chance to legalize their immigration status? Simply so they could be deported when their legal status expires?
While passage of the guest worker and conditional nonimmigrant provisions of the bill remains highly uncertain, we believe that those sections of the bill which increase the EB and H-1B caps have a better chance of being enacted into law since they benefit only those who have complied with U.S. immigration laws.
Since we represent many companies across the U.S. which employ foreign-born persons in legal nonimmigrant status, some of whom are in the process of applying for permanent residence, we plan to follow the progress of this bill very closely. As additional information becomes available, we will highlight it on a daily basis in our "News Ticker" and in the "U.S. Immigration News" box on our homepage at
We link to both the Specter bill and AILA's Section-by-Section summary of the of bill from our "Immigration Legislation" page at
The Immigration Service (CIS) 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 25, 2005) may be found at
To check the Official Processing Times of your Department of Labor Regional Office and your State Workforce Agency (SWA), see
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
To create a PERM account, an employer needs to take the following steps:
Assuming the above information is provided correctly, the employer will soon receive two confirmation e-mails from the DOL. The first confirms the employer's username and temporary password, while the second provides a PIN Number.
See
The Department of Labor had offered guidance on how to avoid this:
To register a legal representative as an authorized user (i.e. create a sub-account):
At this point, the attorney will receive an e-mail containing the username, temporary password and PIN (See http://shusterman.com/pdf/perm-3.pdf ), and can begin preparing and submitting PERM applications for the employer.
Imagine the couple's surprise when their applications for permanent residence were denied and they were ordered by the CIS to leave the U.S. immediately!
What their attorney forgot, or did not realize, was that since Dr. P had been a J-1 medical resident and his wife a J-2 dependent, both were subject to the two-year home residency requirement. Although Dr. P had obtained a "J waiver" and he and his wife were both employed in H-1B status, they were barred from applying for adjustment of status until Dr. P had completed three years practicing in a medically-underserved area. Making things worse, both Dr. and Mrs. P had obtained EAD work permits after applying for adjustment of status, and gave up their H-1B status.
In desperation, Dr. and Mrs. P scheduled a consultation with our office. They had a lot of questions: Since the H-1B quota had been reached for the year, and their I-485 applications were denied, did they have to return home to India immediately? If so, when could they return to the U.S.? If Mrs. P wanted to reapply for permanent residence, did she need to work for her initial employer who had sponsored her labor certificate? What would happen to them if the rumors were true, and the EB-3 category for India was about to experience a multi-year backlog?
First, we informed Dr. and Mrs. P that the 65,000 H-1B cap did not apply to them since they had yet to complete their six years in H-1B status. We advised their current employers to submit new H-1B petitions using premium processing. Their petitions were approved, they returned to India, obtained new H-1B visas, and returned to their jobs in the U.S., all within a few weeks.
Then came the task of re-applying for permanent residence. Since Mrs. P's I-485 had been denied, she needed to start her permanent residence application from the very beginning. At the time, PERM had recently replaced the cumbersome old labor certification system. Even so, Mrs. P's PERM application generated an audit. Fortunately we were able to easily address the audit and Mrs. P's PERM application was approved by the Labor Department.
At this point, we had both good and bad news to contend with. The good news was that Dr. P had completed his three-year medical service requirement. Normally we would immediately submit an I-140 for his wife, and I-485s for them both. However, the bad news was that the EB-3 priority date for persons born in India had backlogged far beyond Mrs. P's priority date.
Despite our hard work in obtaining an H-1B visa and a PERM approval for Mrs. P, she was still depressed over this unfortunate turn of events. Even the best law firm cannot alter the priority dates. However, we were able to offer Dr. and Mrs. P some encouraging news: When a person is the beneficiary of an approved I-140, and then, for whatever reason, must file a new I-140, INS regulations dating from when I worked for the agency, entitle the person to retain their original priority date! This news seemed to bring a smile to Mrs. P's lips (We don't really know since Mrs. P, like most of our clients, lives a couple thousand miles away from our law offices, and we have never met her in person.), but, even so, her priority date was still many months away from being "current".
A couple of weeks later, in early February, the State Department posted the March 2006 Visa Bulletin on its web site much earlier than usual. The Indian EB-3 category had advanced an entire year, and Mrs. P's priority date was suddenly current!
When we informed her of this wonderful news, she was elated. This week, we will submit an I-140 on her behalf, and I-485s for her and her husband. We expect their applications to sail through the bureaucracy this time, but just as insurance, we have advised them to forgo working on their EADs, and to retain their H-1B status.
This month's Immigration Trivia Quiz, entitled "The Real World Series" is about some of the foreign-born players who excel in our nation's "National Pastime".
To take part in the quiz, click on
Of course, with the additional layers of complexity to RN immigration added by the PERM regulations last year, no guide can really be called "simple", but I have done my best to simplify the process as much as possible.
With the help of my staff, I have created the following four charts:
I have posted these charts online at
My answer is simple: Each hospital should select one law firm which they trust to handle all of their immigration matters. If possible, they should select a law firm which has invested in a data base program which allows both the HR manager and the nurses to check the progress of each case as it moves through the immigration system. We use a system called the Immigration Tracker to do this. Every HR manager and every nurse, whether she resides in the U.S. or abroad, is given an ID and a password to access our database. Better yet, our database links with the CIS database so that the manager or nurse can monitor the progress of their case(s) at the appropriate CIS Service Center 24/7/365.
Some good news and some bad news about the immigration of RNs: The good news is that, on January 24, it was announced that the NCLEX-RN licensure exam would be expanded internationally this year. New test sites will be established in Australia, India, Japan, Canada, Germany and Taiwan.
We link to the NCLEX news release from
Finally, on February 14, the same day that I gave the seminar referred to above, the CIS issued a 10-page revision to their Adjudicator's Field Manual dealing with Schedule A (mostly registered nurses and physical therapists) petitions filed before and after the implementation of the PERM regulations on March 28, 2005. We believe that some of the revisions are contrary to the regulations. For example, the PERM regulations require notices be posted for 10 business days. Although all hospitals that we work with are open for business seven days a week, the revisions mandate that business days are Monday to Friday only. Fortunately, we warned all of our hospitals long ago that this was likely to be CIS' position on this issue. Other parts of the revisions are very useful, especially the CIS' "Sample Notice of Posting". We link to the new 10-page revision from
Due to the change in time zones, we went to sleep in our Mumbai hotel after midnight, and awoke at 6:00am. I opened the curtains and saw, through the smog (The Mumbai smog makes Los Angeles look like a tropical paradise!) and the high rise buildings, a bright red sun beginning to dominate the sky. Every few seconds, the sun expanded and, although I was busy snapping photos from our air-conditioned room, I could literally see how the sun was beginning to take over the city. Here we were, in the dead of winter, and the Sun God was already letting us know who the boss was. Well before noon, the temperature was in the 90's.
Our hotel featured a sumptuous buffet with an ever-present background of American songs from the 1960s and 1970s. I had expected to listen to ragas a la Ravi Shankar or soundtracks from Bollywood films, but as I munched on my omelette, speakers around the room sang in unison: "I feel it in my fingers, I feel it in my toes..." It was a bit surreal. I couldn't change the music, but by day number two, I had forsaken the omelettes for dal, garlic nan, chaipatha, mattar, masala and vindaloo.
After breakfast, I ventured out of the hotel, and roamed the streets by myself. It was a neighborhood of small shops selling everything from clothes to vegetables. Everyone was quite friendly and I spent an hour or so meandering through the bustling streets and along the bay.
Later, we accompanied the Indian side of our family to a clothing store which on the outside looked fairly plain, but on the inside, looked like we had suddenly been transported to Rodeo Drive in Beverly Hills. Hour after hour, the women looked at one beautiful sari after another. I filmed some of the action with my newly- purchased camcorder. I tried on an Indian suit for my daughter-in-law's brother's wedding. It was charcoal black with a collar and a strip down the front in gold. Later in the day, I saw a photo of former President Bill Clinton in Mumbai wearing the exact same outfit - good taste, Bill!
While the shopping marathon continued, my wife, my son and I hired a driver and an English-speaking guide to show us around Mumbai. We took a boat ride from the Gate of India to Elephanta Island where we toured fabulous cave temples carved out of stone and dedicated to Shiva. The temples were carved from a rocky cliff in the 6th Century.
Back on the mainland, we toured Hindu and Jain temples, mosques, churches and synagogues. We saw schools and hospitals established by the Parsis (Persians who follow the Zoroastrian faith and who migrated to India over a thousand years ago.) community. We saw the gated villas of Bollywood stars (including Shah Rukh Khan) and slums which stretched for miles and miles. I read a story about life in the slums where everyone knows everyone and tight communities are formed. One woman whose husband got a good job which enabled the couple to move out of the slums and into an apartment (Mumbai real estate prices are higher than those in New York and London!), became so depressed at the lack of community, that after a few months, she and her husband moved back to the slums.
Every afternoon, we escaped from the beggars and the hawkers who congregate around the tourist-congested Gate of India, and had lunch at the gorgeous Taj Mahal Hotel overlooking the Arabian Sea. I became somewhat of an expert in dodging in and out of the traffic in front of the hotel. Once inside the hotel, the heat, the traffic and the "hello, hello, hello" of the beggars disappeared, and we were transported into the lap of luxury. Well-dressed businessmen at adjoining tables regularly checked their Blackberries and negotiated multi-million dollar business deals. We could have been part of the Indian-version of the last days of Louis XVI and Marie Antoinette except that the beggars showed no anger whatsoever and would have been delighted to "eat cake". I saved some of my lunch for them.
My son and I decided that the Mumbai traffic could only be abated by the creation of a rail transit system. However, when we visited the beautiful Victoria Terminus late in the day, we discovered that Mumbai is the home to one of the most extensive rail transit systems of any city in the world. As we stood in the middle of one of the platforms, commuter trains arrived and departed every couple of minutes. As each train arrived, thousands of men ran to secure a place standing on the train. The sari-clad women had separate cars where no men, except rifle-totting police guarding them were allowed to enter.
Mumbai is the home to many diverse groups of peoples who supply every kind of service imaginable. Among them are the Dabbawallahs who distribute lunches prepared at over 100,000 suburban homes to office workers who spend an average of four hours daily commuting to and from Mumbai. We visited the Dhobis, laundrymen, who collect your dirty clothes, wash them, and return them neatly pressed to your doorstep. Their "laundries" are called "ghats": row upon row of concrete wash pens, each fitted with its own flogging stone. The clothes are soaked in sudsy water, thrashed on the flogging stones, then tossed into huge vats of boiling starch and hung out to dry. Next, they are ironed, piled into neat bundles and returned to their owners for a small fee. The Mumbai skyline has more highrises than Manhattan but one piece of land along the sea is noticeably free of tall buildings. This is because the original inhabitants of Bombay sued in court to preserve their way of life. The Koli people are fisherman and their patron Goddess Mumbadevi has given Mumbai its modern name. (When we began our web site in 1995, Mumbai was known by its Portuguese name Bombay, a contraction of "Bom Bahia" or "Good Bay".) We walked through the Koli's single- story village on the Arabian Sea. Through narrow passageways, we could see well- maintained, small homes, some with marble floors and televisions. The men were busy building fishing boats while the women used exotic-looking knives to chop squid and shrimp.
In the evening, we drove down Marine Drive to Chowpatty Beach where we passed dozens of food stalls and politely declined offers of low-cost massages on the beach.
Mumbai is well on its way to becoming the largest and most expensive city in the world. It is certainly a lot to assimilate for an American tourist who has only a couple of days to experience the city. My memories of Mumbai will stay with me for a long time.
Late at night, we returned to our hotel, and prepared for our flight to Goa the next day. We had only been in India for two days, and already, my view of the world was beginning to change.
To see the laundrymen, or dhobis, at work, click on
8:30 - 9:30am 281 So. Figueroa Street
Immigration Legal Assistance Program
Topic: "Introduction to Immigrant Visas"
For program and registration information, please see
7:00 - 8:00am
Pennsylvania Convention Center Location: 113 C
American College of Physicians
Topic: "Visa and Immigration Issues for IMGs"
For more information, see
10:00am - Noon, CDT
Texas Hospital Association
Topic: Immigration and Health Care Staffing
We will link to more information about these important teleconferences in our April 2006 newsletter.
10:00 – 11:00am St. Jude Hospital
Pacific Coast Association of Health Care Recruiters
Topic: "Immigration of Nurses and Allied Health Care Professionals" For more information, see
6:30 - 8:30pm
Henry B. Gonzalez Convention Center
American Immigration Lawyers Association
Topic: "Doctors and Healthcare Workers"
For more information, 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
Hello,A big thank you for Mr. Biswas! I look forward to speaking with you,My name is Tamal Biswas and I am originally from India and came to USA for graduate studies. Right now I am working in Phoenix, AZ.
I found the answer to the quiz in the http://www.travel.state.gov/ website. Please let me know if I qualified for the free consultation :)
The answer to the quiz is:--
The name of this nonimmigrant visa is Fianc?(e) Visa (K-1). The basic requirements for obtaining it are:
In general, the two people must have met in person within the past two years. The Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS) grants some exceptions to this requirement. For example, it may be contrary in some traditions for a man and woman to meet before marriage.
Sometimes the USCIS considers a person a "fianc?(e)" even though a marriage contract has been concluded. In such cases, the American citizen petitioner and his/her spouse have not met, and they have not consummated the marriage.
Suppose you are an American citizen and you want your foreign fianc?(e) to travel to the United States to marry you and live in the U.S. You must file, Petition for Alien Fianc?(e) in the United States.
You must file the Petition for Alien Fianc?(e), Form I-129F with the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS) office that serves the area where you live. See the Department of Homeland Security's USCIS Field Offices for information on where you can file the petition. Note: You cannot file this petition at an embassy, consulate or U.S. immigration office abroad.
After the USCIS approves the petition, it sends the petition to National Visa Center for processing, prior to being sent the embassy or consulate where your fianc?(e) will apply for a K-1 nonimmigrant visa for a fianc?(e).
The consular section at the embassy or consulate where you, the fianc?(e) of an American citizen, will apply for a visa tells you of any additional specific requirements, such as where you need to go for the required medical examination. The following is required:
- A passport valid for travel to the United States and with a validity date at least six months beyond the applicant's intended period of stay in the United States.
- Birth certificate
- Divorce or death certificate of any previous spouse for both the applicant and the petitioner
- Police certificate from all places lived since age 16
- Medical examination (vaccinations are optional, see below)
- Evidence of financial support (Form I-134, Affidavit of Support may be requested.)
- Two Nonimmigrant Visa Applications, Form DS-156 (A Form DS-156, prepared in duplicate.)
- One Nonimmigrant Fianc?(e) Visa Application, Form DS-156K
- Two nonimmigrant visa photos (each two inches 50 X 50 mm square, showing full face, against a light background)
- Evidence of a fianc? relationship
- Payment of fees, as explained below.
The K-1 visa allows a fianc?(e) to enter the United States one time only. If you leave the United States after entering on a K-1 visa, you may not re-enter on the same visa. If you want to leave and re-enter the United States, you should apply with Form I-131 Application for Travel Document to the USCIS office that serves the area where you live for advance parole to return to the United States. See Emergency Travel for information on how to get a travel document that allows you to return to the United States.
Certain conditions and activities may make an applicant ineligible for a visa. Examples of these ineligibilities are:
- Trafficking in Drugs
- Having HIV/AIDS
- Overstaying a previous visa
- Practicing polygamy
- Advocating the overthrow of the government
- Submitting fraudulent documents
Tamal Biswas
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
"Government is not reason, it is not eloquence, it is force. Like fire, it is a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action."
March 1, 2006
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