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Back Issues of SHUSTERMAN'S IMMIGRATION UPDATE
Volume Nine, Number Four
SHUSTERMAN'S IMMIGRATION UPDATE is the most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 40,000 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
To subscribe, type in your name and e-mail address at http://shusterman.com/subscribe.html#subscribe and click on "Subscribe".
To unsubscribe, type in your e-mail address at http://shusterman.com/subscribe.html#unsubscribe and click on "Unsubscribe".
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.
1. June 2004 State Department Visa Bulletin
2. Official Immigration Government Processing Times
3. Democrats Introduce Comprehensive Immigration Reform Act
4. Deportation: Winning Your Case in Immigration Court
5. Immigration Trivia Quiz: All is Not Fair in Love and War
6. VisaScreen: Teleconference Regarding RN Immigration
7. Tracking the Status of Hundreds of Immigration Cases
8. USCIS: Streamlining Operations at the Service Centers?
9. Chat Schedule, Transcripts, Audios & Videos
10. Winner of the April 2004 Immigration Trivia Quiz
For program and registration information, see
Caveat: The letter states that "during the pilot program...there are no fees associated with receiving the requested records on a CD." This seems to imply that there will be a cost to this program in the future.
We have included a copy of the letter and the cover of the compact disk, in PDF format, on our "FOIA" page
You can read "Inside ICE" online at
The Miami District includes Miami, Jacksonville, Orlando, Tampa and West Palm Beach. The Dallas District includes Jacksonville, Orlando, Tampa and West Palm Beach. The Los Angeles District includes Los Angeles, Santa Ana and San Bernardino.
We link to InfoPass from our homepage at
Movement in the worldwide family categories was dismal. The worldwide family categories either failed to advance or moved forward between three and four weeks except for the 2A category (spouses and children of permanent residents) which sprinted ahead 7 weeks!
Movement in the beleaguered Philippine family categories was slow to nonexistent. The 1st preference (unmarried sons and daughters of U.S. citizens), the 3rd preference categories (married sons and daughters of U.S. citizens) failed to advance. The 4th preference category (brothers and sisters of U.S. citizens) moved forward one week to March 22, 1982, a wait of more than 22 years!
The India 4th preference category advanced 6 weeks.
None of the Mexican family categories advanced more than 2 weeks with the exception of the 2A category (spouses and minor children of permanent residents) which moved forward 2 months.
The Visa Bulletin creates false expectations. Unless a category advances at least four weeks each month, the waiting period listed on the bulletin cannot be relied upon. Unless Congress acts to reform the family-based system, the millions of persons waiting to immigrate to the U.S. based on approved family- based petitions should consider other options for immigrating.
The above paragraph has been a staple of our newsletter for years. Finally, Congressional Democrats have seized the initiative and are proposing positive changes to the preference system which would assist those persons who are playing by the rules in attempting to immigrate their relatives to the U.S. See Topic #3 below.
All of the employment-based numbers remain current. The time to apply for your labor certification or visa petition is now before the PERM program makes labor certification obsolete later this year.
The June 2004 Visa Numbers can be found at
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
Administrative appeals of most types of petitions denied by the USCIS are adjudicated by agency's Administrative Appeals Office (AAO) in Washington, DC.
The AAO's most recent published processing times (February 10, 2004) may be found at
The proposal would grant permanent residence to millions of undocumented workers who have resided in the U.S. for a minimum of five years and who have worked in the U.S. for two years. Spouses and minor children of the principal applicant would be allowed to adjust status as well. Other undocumented workers who do not meet the five and two-year requirements would be permitted to obtain temporary status initially, and then permanent residence when these requirements are met. All applicants would be required to meet background and medical checks.
Persons in removal proceedings and those under deportation, exclusion or removal orders would be eligible for earned adjustment.
Like President Bush's plan, the Democrats would allow U.S. employers to import foreign-born guest workers into the country if they demonstrate that no U.S. workers were available. However, the Democrat's plan differs from the President's plan in a number of significant respects: (1) U.S. employers would be required to pay the guest workers at the "prevailing wage"; (2) The number of guest workers would be capped at 350,000 annually; (3) Guest workers would be permitted to change employers after three months, obtain travel permits and become permanent residents.
Unlike other legalization bills, the SOLVE Act would offer assistance to persons who are in legal status as well. Substantial changes would be made to assist more than three million persons who are beneficiaries of family-based visa petitions.
Spouses and minor children of permanent residents would be placed within the "immediate relative" category, and would be exempt from numerical quotas.
The bars (three-year, ten-year and permanent) on the re-entry of persons with unlawful presence in the U.S. would be repealed retroactively.
In a significant departure from both the President's plan and the 1986 amnesty law, the plan would allow persons with approved family-based visa petitions who have been waiting in line for five years to immediately apply for permanent residence. Such persons would be exempted from per-country and worldwide limits on immigrant visas.
The numerical limitations on each of the family-based preference categories would be raised substantially.
Unused immigrant visa numbers would be available for "recapture" after the end of the fiscal year. This would apply to the family-based, employment-based and DV-based categories.
Spouses and children of immediate relatives would be considered derivative beneficiaries of the visa petition.
Affidavit of support requirements would be lowered for 125% to 100% of poverty income level.
The age of eligibility for derivative citizens would be raised from 18 to 21 years of age.
We link to the complete text of the SOLVE Act as well as numerous articles analyzing the bill and comparing it to other legislation from our "Immigration Legislation" page at
Recently, we represented a young Chinese, Christian man who requested asylum from an Immigration Judge in San Francisco. The problem with his case was that although he had suffered discrimination in his native Indonesia, this was not severe enough to qualify as "past persecution" under the law. What follows is a short guide for immigrants and immigration attorneys alike in preparing a case before an Immigration Judge:
Play It As It Lays
Take the time to find out all of the pertinent facts in the case. Our client had experienced a number of extraordinary incidents in Indonesia which illustrated why he was afraid to return. On one occasion, a man with a sword attacked him shouting anti-Chinese epithets. Another time, he was robbed by a gang of hoodlums while an Indonesian policeman stood by and watched and did nothing. These and a number of other personal incidents clearly showed why our client had a subjective fear of persecution and laid the basis for demonstrating that his objective fear of persecution was well-founded.
Preparation, Preparation, Preparation
Amy Prokop, one of our attorneys, researched the situation of Chinese Christians in Indonesia using the Internet including the "Asylum" page on our web site at
Amy spent many hours documenting the types of abuses that our client might face should he be compelled to return to Indonesia.
Can I Get a Witness?
Although nominally a Christian in his native country, our client had become a devout, "born-again" Christian in the U.S. Amy persuaded his pastor to testify on his behalf.
In addition, she contacted a number of organizations seeking the services of an expert witness. Most of these organizations demanded $2,000 to $3,000 upfront in order to "look" for a witness. Amy also phoned and e-mailed a number of university professors hoping to locate a suitable expert witness. Finally, a little over a week before the hearing, she located an expert witness in Seattle who testified on our client's behalf. The good news was that he refused to accept any fee whatsoever for his services. The bad news was that he could not come to San Francisco to testify in person.
He did, however, review our client's application, and he submitted a multi-page declaration regarding the treatment of Chinese and Christians in Indonesia. He also agreed to serve as a witness if his testimony could be taken telephonically.
Here Come D'Judge!
The Immigration Judge granted our motions to admit our expert witness's declaration into the record and to allow him to testify telephonically.
She obviously had experience with Chinese and Christian asylum cases, but it sounded like she usually found that these people had suffered discrimination rather than persecution, and that she usually denied their Requests for Asylum.
Nevertheless, we pressed forward with our case. Our first witness, the pastor, testified that our client was a fervent, evangelical Christian who believed that it was his obligation to spread the Gospel of Christ.
Then, our client testified about a number of incidents that had occurred in Indonesia. He had been harassed and even threatened with death due to his ethnicity. However, his attackers were always private individuals rather than government officials. Once, however, a police officer had watched passively while a gang of Indonesian youths stole his wallet and roughed him up.
Clearly, if we had a chance to win his case, a lot depended on the testimony of the expert witness.
With a Little Bit of Luck
One should never discount the importance of luck in winning a case in Immigration Court. We have noticed that the more we work on a case, the luckier we get.
This case was no exception. We spent almost 100 hours pouring over reports and articles, typing notes, speaking with the witnesses over the phone and preparing our client for both his direct and cross-examinations.
A key point in the questioning occurred when I asked our expert witness about the recent "Christmas Eve Church Burnings" in Indonesia. He quickly corrected me explaining that these were actually "bombings" rather than "burnings". He went on to explain that the bombed churches were made of concrete and that the type of explosives used indicated that the perpetrators included members of the Indonesian Army.
The Judge questioned the witness on this point, and incorporated his testimony in her decision. In doing so, she cited 9th Circuit Court of Appeals cases which require that asylum be granted to certain individuals even where they had not established that they would be "singled out" for persecution. They were required to show that they were members of certain "disfavored groups". Then the Court examined the "risk level" of membership in those groups, and the alien's "individual risk level". The more serious and widespread the threat of persecution to the group, the less individualized the threat of persecution needs to be.
Based on these precedent decisions, the Judge ruled that our client had established a "well-founded fear" of persecution, and granted his Request for Asylum.
Editor's Note: Requests for Asylum can also be submitted affirmatively, before the Immigration Service. One of our attorneys, Elif Keles, Esq., prepared such an application for our client, a young Moslem man who was a political dissident in Bangladesh. Last week, our client was granted asylum.
The teleconference will provide information to immigration attorneys, hospital HR managers and recruiters regarding how to comply with the VisaScreen requirement, English examinations, licensing requirements and other aspects of hiring and retaining foreign-born nurses and allied health care professionals.
The teleconference is scheduled to take place at 3pm Eastern Time (Noon, Pacific Time). It will feature: Barbara Nichols, the CEO of the Commission for Graduates of Foreign Nursing Schools (CGFNS); Carl Shusterman, Esq., former Chairman of AILA's Committee on Health Care Professionals; Carla Luggiero, Senior Associate Director for Federal Relations of the American Hospital Association (AHA); and Darlene Burgess, Vice President of Corporate Governmental Affairs, Henry Ford Medical Group, probably the most heavily impacted hospital in the U.S.
For program and registration information, see
Immigrants and their attorneys and employers should be aware that the system allows tracking and e-mail notification of cases pending in Service Centers, but not at USCIS District Offices. This means that it is possible to track most employment-based cases, but not family-based matters.
We established our first portfolio on April 23 and, three days later, we received an e-mail message that the application was approved. See
The USCIS's Case Status Online Portfolio System enables customers, employers, attorneys, and community-based organizations to monitor up to 100 pending cases through a single account, all of which are tracked with a unique user ID and Password. The system will send e-mail notifications automatically to registered applicants whenever there is a change in the status of a pending application in either English or Spanish.
The system provides great advantages to persons wishing to keep track of the status of multiple cases such as pending I-140/I-485/I-765/I-131s for entire families. If you wish, the USCIS will notify you via e-mail whenever the agency takes action on any of the cases on your list.
The procedure is as follows:
When you are done, you will have a chart containing the following seven columns: (1) A box entitled "Select"; (2) The USCIS Receipt Number; (3) Your Internal Tracking Number (e.g., "Kumar/Spouse/I-765"); (4) E-Mail (Check whether or not you wish to be notified by e-mail whenever the USCIS takes action on a particular application/petition.); (5) Date Last Updated; (6) USCIS Form #; and (7) Form Title.
The program allows you to sort the information based on any of the columns. For example, you may choose to sort the matters in alphabetical order or you may want to sort them by date.
Whenever you login, you will be asked for your ID and password. Caveat: The ID and password are case sensitive.
The system is of limited utility for law firms because only 100 receipt numbers can be linked to a single e-mail account. Attorneys with large case loads must create a new portfolio with a different related e-mail account for every 100 case numbers. Note, however, that as cases are approved, they can be removed to make room for new ones within an existing portfolio. To cope with this limitation, we have established multiple e-mail addresses for the attorneys and paralegals in our law firm and arranged for USCIS's e-mail messages to be forwarded to a single address for each member of our office.
We urge the USCIS to further enhance this excellent service by removing the 100 cases per e-mail address limitation. Also, this service is only as efficient as the government contractors who input the information online. We have already experienced numerous cases where we receive approvals via "snail mail" before the online information is updated.
Read the USCIS FAQ, press release and fact sheet about the new system on our "USCIS" page at
For example, consider the fellow whose employer submitted both a labor certification and a national interest waiver (NIW) for him in 1999. When the INS approved the NIW, the employer simply withdrew the labor certification since it had become an unnecessary exercise. However, the fellow continued to work on his H-1B status until his six years expired and then his EAD while he waited for the Service Center to finally get around to approving his application for adjustment of status. A few months ago, rather than approve his adjustment application, the Immigration Service revoked his NIW (after all these years!) on the ground that it should never have been approved under the standards of their own 1998 decision in Matter of New York State Department of Transportation.
Readjudicating previously approved petitions eliminates an immigrant's ability to rely on any decision of the Immigration Service since the next officer who looks at an approved petition can simply decide that the first officer's decision was erroneous and revoke the petition, at a time when it is too late for the immigrant to recover from this change of mind/heart. If things worked this way in the criminal courts, I'm sure OJ would be sweating profusely as he tees up on the back nine at Rancho.
Now, an April 23, 2004 policy memorandum by William Yates, the Associate Director for Operations for USCIS attempts to halt the practice of "routine" questioning of prior Service determinations. The Yates memo provides that prior adjudications should be given deference on extensions and readjudication will only be allowed with specific authorization from the Deputy Center Director where there was a material error, a substantial change in circumstances, or there is new material information which adversely impacts eligibility for a benefit.
The complete text of this memo is available at
For those readers fortunate enough never to have experienced one, the term RFE is short for Request for Evidence. These days, it seems like every second or third petition or application submitted to a Service Center is returned with an RFE. All too often, the material requested is either unnecessary to adjudicate the application or has already been included with the petition.
Not only are RFEs being issued with increasing frequency, like snowflakes on a winter's day in Vermont, but they are growing longer and more onerous. We received a ten-paged RFE the other day.
Yates' memo sets standards for the issuance of an RFE. It also instructs adjudicators to cease sending RFEs in cases of clear ineligibility. Where the record is considered complete, issuance of an RFE is said to be discretionary, and the adjudicator may deny without an RFE.
While we sincerely hope that the Yates memo solves the RFE problem, we are a bit apprehensive. Beware of what you wish for, your wish may be granted in a way that you did not expect! What if the elimination of these odd and assorted RFEs results in thousands of denials instead? One can only hope for the best.
Mr. Yates' memo on RFEs may be accessed at
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.
Our most recent chat was held on March 22. It is entitled "H-1B Cap Reached: Strategies for Coping."
Links to this chat and 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,- Congratulations, Adrian. I look forward to speaking with you!Here are the answers to the April 2004 Immigration Trivia Quiz entitled "Feminine Mystique" at
http://shusterman.com/0404quiz.html Who are the three individuals depicted below? Describe the field of endeavor of each.I'm Adrian Teh from Singapore. I am currently in the process of changing jobs. I am starting a job as a Business Development Manager for the Far East region in May. I used Google to help solve the above quiz. I began subscribing to your newsletter about 2 years ago. I have a keen desire in migrating to the USA one day, and have been reading up your newsletter regularly on anything that might be useful.
- Gayatri Chakravorty Spivak
- postcolonial theorist
- post structural literary criticism
- Dr. Kalpana Chawla
- NASA astronaut
- first Indian American to fly US space shuttle
- Anita Desai
- writer
- novels shortlisted for Booker Prize
Why do they appear together?
- All of them were born in India
- All of them have immigrated to the United States
- All of them are famous Indian-American women
Thank you,
Adrian Teh
May 13, 2004
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
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