Our phone number (213) 623-4592, e-mail addresses and all other contact information remain the same.

NEWS FLASHES:

• Adjudicator's Field Manual - Ever wonder what standards guide an Immigration Examination in deciding your application for immigration benefits? Unless you worked for the Immigration Service as I did (an unlikely possibility unless you are a U.S. citizen), the process is probably a complete mystery to you. Not any more! The U.S. Citizenship and Immigration Service (CIS) has posted a redacted version of its Adjudicator's Field Manual online. We link to the Manual from our "CIS" page at
  http://shusterman.com/ins.html#1

• Business Immigration Newsletter - Periodically, the American Immigration Lawyers Association (AILA) publishes "Connect!" a newsletter devoted to business-related immigration developments. We link to this newsletter from
  http://shusterman.com/toc-busimm.html

• Deportation - On October 19, the U.S. Court of Appeals for the 9th Circuit updated the portion of its web site regarding its latest decisions concerning immigration law. We link to this update from our "Deportation" page at
  http://shusterman.com/toc-dpt.html#10a

• FBI Name Checks - During the past year, the CIS has requested 1.5 million name checks from the FBI. The number of name checks which are still pending is 233,000. If your application cannot be granted because a name check is pending, you may want to call the National Name Check Office at (202) 324-2399. If you cannot get through or if you get a recording, you may wish to contact the office via e-mail at fbinncp@ic.fbi.gov Be sure to provide your full name, date of birth, alien number and e-mail address.

• H-1B and L Status - A new precedent CIS decision states that only time that a person is physically present in H-1B or L-1 status in the status counts toward the maximum duration of their stay (5 years for L-1Bs; 6 years for H-1Bs; and 7 years for L-1As). Any time outside of the U.S. may be "recaptured". We link to the complete text of the decision at
  http://uscis.gov/graphics/lawsregs/admindec3/d2/2005/sep0205_02d2101.pdf

• NIV Appointments in Mexico for Third-Country Nationals (TCNs) - Beginning on October 17, a new web site was created to allow TCNs to apply for visas in Mexico. We link to this new web site from our "Temporary Visas" page at
  http://shusterman.com/toc-temp.html#5

• PERM-Related Issues: CIS Memo - On September 23, the CIS issued a memo regarding how PERM will affect labor certification eligibility; 7th year H-1B requests; and duplicate labor certification requests. We have posted the complete text of this memo on our "Department of Labor: Immigration Resources" page at
  http://shusterman.com/toc-dol.html#3A

• Physicians' Lawsuit - Our law firm represents physicians across the U.S. in challenging CIS' regulations which restrict the use of National Interest Waivers by physicians who work in federally-designated medically-underserved areas. On December 5, the U.S. Court of Appeals for the 9th Circuit has scheduled an oral argument in our case, Schneider vs. Gonzales. For more information about this case, see our "Physicians" page at
  http://shusterman.com/toc-phys.html#3

• Republican Voters Polled on Immigration Policy - On October 17, the Manhattan Institute, a nonprofit think-tank released a poll detailing what 800 Republican voters think about our country's policy toward illegal immigration. According to the poll, 78% of likely Republican voters favor immigration reform that includes increased border security, tougher penalties for employers who hire illegal workers, a policy that allows illegal immigrants to come forward and register for a temporary worker program that eventually places them on a path to citizenship.

  We link to the news release at

  http://www.manhattan-institute.org/html/immigration_pol_pr.htm

• Representative Edward Roybal, Rest in Peace - On October 24, former Congressman Edward Roybal passed away. Rep. Roybal, who served in Congress from 1963 to 1993 was the first Latino to represent California in Congress in the 20th Century. I had the honor of knowing Congressman Roybal since 1976. When I worked as an attorney for the INS, my office was in the same building as his, and I visited his office frequently. One day, after I had entered private practice, I was surprised to receive a phone call from Washington, D.C. from the Congressman. One of his constituents, a citizen of the U.S., had been detained by INS agents who doubted the validity of his California birth certificate. With the help of one of the Congressman's aides, we demonstrated to the government that his birth certificate was genuine, and he was released from custody. Representative Roybal, a champion of the poor, the aged and the immigrant, is survived by his wife and three children, one of whom, Lucile Roybal-Allard, serves in the House of Representatives.

• Schedule A Petitions under PERM - On September 23, the CIS issued a revised memo regarding how Schedule A petitions should be prepared to comply with the PERM regulations. One significant change is that it is not necessary to list the address of the CIS Director on the posting notice. To read the complete text of the revised memo, see our "Nurses" page at
  http://shusterman.com/toc-rn.html#1

• Supreme Court - On October 31, the Supreme Court granted a Writ of Certiorari to review a decision of the U.S. Court of Appeals for the 10th Circuit in Fernandez-Vargas v. Gonzales, which held that an alien who had been deported, returned to the U.S., and married a U.S. citizen, all before the enactment of IIRIRA was barred from adjusting his status in the U.S. under section 241(a)(5) of the INA. The 10th Circuit held that this section of law which reinstated Fernandez-Vargas' deportation order, and prohibited him from adjusting his status, was not impermissibly retroactive. We link to the complete text of the 10th Circuit's decision from
  http://www.kscourts.org/ca10/cases/2005/01/03-9610.htm
  There is a split in the circuits regarding this issue. In 2001, in Castro- Cortez v. INS, the U.S. Court of Appeals for the 9th Circuit held that section 241(a)(5) does not apply to aliens who reentered the U.S. prior to IIRIRA's effective date. We link to the complete text of the 9th Circuit's decision from
  http://www.ca9.uscourts.gov/coa/newopinions.nsf/263191E1E29345EB882569DD005F8C69/$file/9970267.pdf?openelement

• U Visa Lawsuit - On October 17, a group of nine illegal immigrants, sued the Department of Homeland Security (DHS) in a Federal Court in Los Angeles demanding that they be considered for "U" visas. The U visa was created by a law enacted in 2000, but the DHS has never issued regulations to implement the law, and has yet to issue a single person a U visa. The law provides that illegal immigrants who are victims of certain violent crimes and who assist law enforcement authorities in solving these crimes may be granted U visas and, after three years, may apply for permanent residence.

• USCIS Today - We link to the most recent issue of "USCIS Today", CIS newsletter, from our "CIS" page at
  http://shusterman.com/ins.html#2A

• Washington Update - Periodically, the American Immigration Lawyers Association (AILA) publishes its "Washington Update" which brings readers the most up-to-date news about legislation, regulations, congressional hearings and other immigration-related developments from inside the Beltway. We link to "Washington Update" from
  http://shusterman.com/toc-advocacy.html

CONTENTS:

1. EB Retrogression: Will Congress Come to the Rescue?

We link to Mr. Oppenheim's excellent explanation of the retrogression entitled "Employment Preference Visa Availability" in Section D of the November 2005 Visa Bulletin at

Fortunately, there is. In fact, there seems to be a double rainbow emerging from the Senate Judiciary Committee. As part of the budget reconciliation process, the Senate Judiciary Committee recently passed a proposal to provide relief from the H-1B visa blackout and the employment-based immigrant visa backlogs, in exchange for increased fees on some petitions. This proposal must be reconciled in a Conference Committee with the House of Representative's budget reconciliation bill.

On October 20, the Senate Judiciary approved several measures which, if enacted into law, would turn both the EB and H-1B pathways from congested thoroughfares into free-flowing highways:

1. One provision would allow the recapture of 90,000 unused EB numbers from 2001-04. This measure alone would increase the number of available EB numbers in FY2006 from 150,000 to 240,000, over a 50% increase.

2. An even more important change would be to exempt EB visas given to spouses and children from counting against the EB cap. This is similar to the way that the H-1B cap is computed. H-4 spouses and children do not count against the cap. This would provide relief not only in FY2006 by allowing 80,000-90,000 family members to immigrate outside the cap, but would effectively increase the number of EB immigrants by 50-60% each year.

3. The Committee also voted to recapture 300,000 unused H-1B numbers lost over the past 10 years, at the rate of 30,000 per year. Since the H-1B cap is presently 65,000, this would amount to just under a 50% increase annually.

4. Finally, the law would be amended to allow persons with EB priority dates which are not current to apply for adjustment of status, and EAD work permits and advance parole (travel permits). Of course, these applicants would not be able to adjust their status until their priority dates become current.

Why this sudden burst of generosity on behalf of H-1B and EB immigrants?

We can think of several reasons. First, current immigration laws are heavily weighted in favor of non-EB immigrants. Less than 10% of persons who immigrate to the U.S. do so on the basis that they are filling a job for which no qualified U.S. worker is available. Second, despite these small numbers, our economy is increasingly dependent on foreign-born workers, not just for low-paying jobs, but for professional employment in the fields of science, engineering, information technology, business, education and health care. For example, the shortage of registered nurses is projected to increase from 150,000 today to 800,000 by 2020. More U.S.-born nurses retire each year than graduate from U.S. nursing schools. Finally, there is the matter of money. The budget surpluses of the 1990s have turned into the worse deficits in our country's history. For the current administration, ending the war in Iraq or repealing the trillion-dollar plus tax cuts are not options. And now that billions of dollars must be spent to cope with the ravages of Hurricanes Katrina, Rita and Wilma, members of the President's own party are justifiably nervous about where the money is going to come from to pay for these reconstruction efforts.

Oh, did we forget to tell you that each of the immigration reforms mentioned above comes with a substantial price tag? A premium processing H-1B already costs $3,185, but for a company employing a professional with a recaptured H-1B, the fee will be $3,685. All recaptured H-1Bs are subject to a $500 surcharge.

How about L-1 petitions? They will be subject to a $750 surcharge (which must be paid for by the employer) for a total fee of $1,440. Or if the version passed by the House of Representatives becomes law, the surcharge would be $1,500 for a total fee of $2,210.

Recaptured green cards would also be subject to a $500 surcharge.

And, of course, if persons with backlogged priority dates can submit their applications for adjustment of status now instead of when their priority dates become current years from now, the government gets their money upfront.

If you have read this far, I assume that these are important issues for you. Make your voice heard in Congress by visiting our "Immigration Legislation" page at

2. Official Immigration Government Processing Times

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

3. Web Page: Department of State' Business Visa Center

The primary type of visa for business travelers to the United States is the "B-1" visitor for business. The aim of the new web page is to assist businesses in obtaining B-1 visas and in communicating with U.S. Embassies and Consulates abroad. The BVC does not accept applications for visas. Rather, it is an "information portal" for U.S.-based businesses.

DOS's Bureau of Consular Affairs maintains a list of "Upcoming Conferences" which expect a large number of foreign visitors. In order to list a particular conference, the DOS must receive advanced notice from the U.S. organizer of the conference.

Both the BVC and the conference list can be accessed via e-mail at BusinessVisa@state.gov and by phone at (202) 663-3198. Although e-mail is the preferred means of contact, the BVC may be reached by telephone on weekdays from 8:30am to 5:00pm, EST.

The BVC also maintains a list of Frequently Asked Questions (FAQ), not only about B-1 visas, but also about E, H, L, O, P and TN visas online.

We link to BVC, their press release and their FAQ both from our "Employers' Guide" and our "Department of State: Immigration Resources" page at

4. Immigration Success Story: It Never Hurts to Ask

Mrs. M, a native of the Philippines, planned to adjust her status to permanent resident as a Registered Nurse working at a hospital that submitted an I-140 Immigrant Visa Petition on her behalf. However, we discovered that she had engaged in unauthorized employment for over 180 days since she was last admitted to the U.S., and was, therefore, ineligible to adjust her status under section 245k of the law.

In addition, she was not in possession of a VisaScreen certificate which is required for an RN to immigrate to the U.S through her employment. In order to obtain her green card, Mrs. M would have to obtain such a certificate and would also be required to return to the Philippines and apply for Consular Processing at the U.S. Embassy in Manila. This would cost her a great deal of time and expense.

Looking for an alternative strategy, we asked Mrs. M a series of questions about the nationality and the immigration status of her relatives. Initially, we were not optimistic about the results of such an inquiry since her parents, brothers and sisters, and even her husband, resided in the Philippines, although he was presently visiting her in the U.S.

However, Mrs. M volunteered that her father-in-law was a naturalized U.S. citizen residing in the United States. Further, she revealed that her father- in-law had, years ago, filed I-130 petitions on behalf of each of his sons - including Mrs. M's husband - on the off-chance that one of them might decide, at some later date, that they wanted to reside in the United States.

Through her husband, Mrs. M was able to produce her husband's 15-year-old Form I-130 Notice of Approval containing his priority date. This information turned the entire case around: based on Mr. M's I-130 approval, we were able to submit applications for Applications for Adjustment of Status for both Mr. M and his wife, enabling her to obtain an EAD card and work legally while her application was pending. Since she was adjusting her status through a relative petition, she was exempt from the VisaScreen requirement.

Shortly thereafter, however, we received some devastating news: Mr. M's father had been diagnosed with a serious illness and was not expected to live much longer. This news also had terrible implications for Mr. and Mrs. M's adjustment of status applications. Were Mr. M's father to pass away before their applications were approved, their applications would be denied.

Quick action was necessary. We immediately made a request to the CIS District Office to expedite Mr. and Mrs. M's applications based on exigent circumstances. The District Office granted our request and in one week approved both Mr. and Mrs. M's cases!

Things worked out for Mr. and Mrs. M because we took the time to look at all the available options, and asked both our clients and the CIS a few timely questions. It just goes to show that in immigration, it never hurts to ask.

5. Immigration Trivia Quiz: In a Class of their Own

6. EB Numbers Retrogress: Developing a Winning Strategy (Part II)

* Alternate Chargeability - The retrogression in the EB-1 and EB-2 categories only affect persons born in either India or China. Section 202(b) of the Immigration and Nationality Act provides that some persons may be "charged" to a country other than the country of their birth, thereby avoiding the country backlogs. Section 202(b) provides as follows:

Rules for Chargeability. - Each independent country, self-governing dominion, mandated territory, and territory under the international trusteeship system of the United Nations, other than the United States and its outlying possessions, shall be treated as a separate foreign state for the purposes of a numerical level established under subsection (a)(2) when approved by the Secretary of State. All other inhabited lands shall be attributed to a foreign state specified by the Secretary of State. For the purposes of this Act the foreign state to which an immigrant is chargeable shall be determined by birth within such foreign state except that-

(1) an alien child, when accompanied by or following to join his alien parent or parents, may be charged to the foreign state of either parent if such parent has received or would be qualified for an immigrant visa, if necessary to prevent the separation of the child from the parent or parents, and if immigration charged to the foreign state to which such parent has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year;

(2) if an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year; (3) an alien born in the United States shall be considered as having been born in the country of which he is a citizen or subject, or, if he is not a citizen or subject of any country, in the last foreign country in which he had his residence as determined by the consular officer; and (4) an alien born within any foreign state in which neither of his parents was born and in which neither of his parents had a residence at the time of such alien's birth may be charged to the foreign state of either parent.

If you find this language confusing, consider the second law of "alternate chargeability" which is the most commonly unused. You have an approved I-140 and wish to apply for adjustment of status, but since you are born in India or China, the backlogs keep you from doing so. However, if your spouse is born in any other country in the world, the rules of alternate chargeability may allow you and your spouse to apply for adjustment of status immediately.

Its not always the law that helps you avoid the ill-effects of backlogs. Sometimes, it's a regulation. Consider 8 CFR 204.5:

(e) Retention of section 203(b)(1), (2), or (3) priority date. -- A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.

Difficult to understand? Again, a couple of examples are useful. We once represented an architect born in the Philippines at a time when the appropriate EB category had more than a 10-year backlog. After obtaining his immigration file using the Freedom of Information Act, we discovered that he had an approved labor certification and I-140 from an old job, and that his priority date was in 1968. We obtained a new labor certification, and immediately submitted an application for adjustment of status using combined processing. The Immigration Act of 1990 has made this regulation even more useful. If you had an EB-1, EB-2 or EB-3 priority date in the past, and now you qualify under one of these three EB categories, remember that you never lose your first EB priority date even though you are now qualified through another job or under another category.

7. Becoming a U.S. Citizen Through Your Parents

Most immigration attorneys and quite a number of our readers understand the first two categories. We link to extensive information regarding the naturalization process from our "Citizenship" page at

I am very fortunate in this regard. During the 1970s when I was employed by the Immigration and Naturalization Service (INS), I served as a General Attorney (Nationality). Simply put, this means that I spent two years interviewing applicants for naturalization, and another two years interviewing applicants for U.S. citizenship through their parents.

I can assure you that when it comes to developing an expertise in this area, there is no substitute for conducting thousands of such interviews and writing decisions on these applications.

The "derivative charts", a series of tables which guided us in determining whether a person was, in fact, a citizen through their parent(s) were tremendously helpful tools in this complex area. I still use my old government charts in my law practice. The reasons that I have never posted them on my web site are three: (1) The law has changed numerous times since the l970s making my charts somewhat out-of-date; (2) My hope that the CIS web site would post updated charts on their web site, thereby reliving me of this considerable chore; and (3) pure laziness.

I did post articles about derivative citizenship on our site including the popular "Obtaining Citizenship Through Parents" at

First, I googled the charts hoping that some governmental agency had placed them online. I found charts three and four on the CIS web site. However, I tried in vain to locate charts one and two. Maybe, they are somewhere on the CIS web site, but I could not locate them. So, I created the charts myself.

Now, all four "National Charts" are online on our "Citizenship" page at

If you had a parent who was a U.S. citizen at the time of your birth or while you were a minor, you may want to spend some time reading these charts. You may be a U.S. citizen without realizing it!

8. Schedule of Upcoming Immigration Law Seminars

1. November 17, 2005               San Francisco, California 9:00 - 10:00am

   Topic - Return to the Virtual Border: Update from the Department of State and the Department of Homeland Security

   Practising Law Institute's 38th Annual Immigration and Naturalization Institute

   For program and registration information, see

   http://www.pli.edu/product/program_detail.asp?ptid=511&stid=3&id=EN00000000021724 (Link is no longer operational.)

2. June 7, 2006               Orange County, California 10:00am - Noon

   Topic - Hiring Foreign-Born RNs and Allied Health Care Professionals

   Pacific Coast Association of Health Care Recruiters

9. Chat Schedule, Transcripts, Audios & Videos

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

Immigration Audios

• Welcome To Our Web Site!
  http://shusterman.com/audio/welcome.ram

• Understanding the H-1B Cap Law: AC-21
  http://shusterman.com/audio/h1bcapla.ram

• Temporary Visas to Visit, Study or Work in the U.S.
  http://shusterman.com/audio/temp.ram

• Obtaining A Green Card To Live and Work in the U.S.
  http://shusterman.com/audio/gc.ram

• How to Become a Citizen of the U.S.
  http://shusterman.com/audio/usc.ram

• IMG's and Canadian Physicians
  http://shusterman.com/audio/md.ram

We link to selected audio programs regarding immigration produced by National Public Radio at

Immigration Videos

• Physicians: J Waivers, H-1B and O-1 Visas
  http://shusterman.com/video/img100302_p1.ram

• Physicians: Obtaining Permanent Residence
  http://shusterman.com/video/img100302_p2.ram

• Physicians: Questions and Answers
  http://shusterman.com/video/img100302_qa.ram

10. Winner of our October 2005 Immigration Trivia Quiz

Dear Mr. Carl Shusterman,

As a subscriber to your newsletter and as an individual currently undergoing the immigrant process I choose to enter the Immigration Trivia Quiz as a participant. The identity of the individuals shown on your trivia page are -

1. Emilio T. Gonzalez (President Bush's nominee for Director of the Bureau of Citizenship and Immigration Services) Mr Gonzalez currently serves as Sr. Managing Director of Global and Government Affairs for Tew Cardenas, LLP. Prior to that, he was Director of Western Hemisphere Affairs for the National Security Council. Earlier he had also served in the U.S. Army for 26 years. During his military service he served at 2 U.S. embassies and directed the Office of Special Assistants for the Commander-in-Chief of the U.S. Southern Command.

2. Julie L. Myers (White House nominee to lead the U.S. Immigration and Customs Enforcement)

Her most relevant previous experience was managing 170 employees and a $25 million budget in the Commerce Department. Her previous work had some bearing on the ICE.

3. Robert C. Bonner (first Commissioner of U.S. Customs and Border Protection) Mr. Bonner was nominated by President Bush to serve as Commissioner of the United States Customs Service in June 2001. He was sworn in as the 17th Commissioner in September 2001. Since March 1, 2003 he has served as Commissioner of U.S. CBP.

Prior to his service as Commissioner, Mr. Bonner served as the U.S. Attorney for the Central District of California, as a U.S. District Judge, and as the Administrator of the Drug Enforcement Administration (DEA).

A brief introduction to myself:

My name is T.M. Unnikrishnan and I am relatively new to California. Having finished my masters in Michigan I moved to Los Angeles to join my wife who had moved to L.A. earlier and is presently employed at UCLA. Both of us have petitioned for permanent residency with my wife being the primary applicant. I am on an H-4 with an EAD. My wife had petitioned for permanent residency under the NIW category last year. We had received an RFE on the same this June and had sent a response to the same in September when news of the impending retrogression became known. We are having considerable anxiety and I hope to win the immigration quiz so that we could benefit from your advice.

Yours Sincerely,
T.M. Unnikrishnan

Dear Mr. Carl Shusterman,

I am delighted at being chosen as the winner of the October 2005 Immigration Trivia Quiz. Your newsletter and more importantly your web site, have been of immense help to me as they enhanced my understanding of current immigration procedures and associated developments aimed at modifying the same. The content of your website is formidable and I would like to thank you for your efforts in assisting prospective immigrants like me by making such knowledge freely available. I have no doubt that my words will find substantiation in similar comments by many of your subscribers the world over.

I thank you again for the services and help you have rendered all of us and I look forward to meeting you at your convenience.

Yours Sincerely,
T.M. Unnikrishnan

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

November 1, 2005

"(Enforcement-only) probably won't work to seal the border - it hasn't in the past. It won't put an end to the foolish denial at the heart of our current immigration policy: denial of the workers we need to keep the economy growing."

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