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Free Subscription to SHUSTERMAN'S IMMIGRATION UPDATE
Back Issues of SHUSTERMAN'S IMMIGRATION UPDATE
Volume Twelve, Number Ten
SHUSTERMAN'S IMMIGRATION UPDATE is the Internet's most popular e-mail newsletter regarding U.S. immigration laws and procedures with almost 52,000 subscribers located in more than 150 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.
I will participate on a panel entitled "Advanced Citizenship Issues" on November 10 at 8:30am with attorneys Kathrin Mautino and Steven Seick.
Ellen Ma Lee, Esq. of our law firm, will participate on a panel entitled "Local USCIS and NBC Panel" together with the District Directors of the USCIS offices in Los Angeles, San Francisco, San Diego and San Jose.
For more information, see
Hi Alison,
Just wanted to thank you for the help you provided...for me this visa extension case was really very crucial & I couldn't have done it without your support...it was really very kind of you & may your kindness return to you in the same way it was offered...I will always be grateful to you.
Take care & once again thank you very much for everything.
Ms. Ellen Lee,
I want to thank you too for all your assistance...you were really very calm, supportive & helpful...because of you my work was done smoothly & faster which wouldn't have been possible otherwise...it was really very kind of you.
I will scan & send you my I-94 copy soon for your records.
Once again thanks for everything.
Regards,
AV
The primary amendment (H.AMDT. 3404) was introduced by Senators Charles Schumer (D-NY) and Kay Bailey Hutchison (R-TX) to increase the domestic supply of nurses and physical therapists by recapturing approximately 61,000 unused green cards from the years 1996 and 1997. Before the Schumer- Hutchison amendment was passed, it was amended by Senator Durbin's (D-ILL) second-degree amendment (H.AMDT. 3449) which attempts to increase the number of nursing faculty and students in the United States, encourages global health care cooperation, and creates a $1,500 training fee for a recaptured green card from the underlying amendment. Some health care providers, such as those in Health Professional Shortage Areas (HPSAs) will be exempt from this training fee. The Durbin amendment also requires that the healthcare worker attest that he or she has satisfied any outstanding commitment to work in his or her home country.
The Senate voted 75-19 to approve the bill.
We link to the text of these amendments from our "Registered Nurse" page at
Failure to allow U.S. employers to employ foreign-born nurses who are licensed in the U.S. would add to the ever-increasing nursing shortage. RN job vacancies at hospitals now number between 100,000 and 200,000. By 2020, as the vast majority of baby boomers reach retirement age, the nursing shortage will pass one million!
U.S. universities are slowly waking up to what threatens to become a national disaster. My alma mater, UCLA joined dozens of universities nationwide in terminating its undergraduate nursing program several years ago. Now that it has reinstated its program, it is slated to graduate 50 RNs per year starting two or three years from now.
Such incremental measures will not solve the RN shortage. Before the visa numbers retrogressed for RNs on November 1, 2006, our law firm obtained an average of over 500 green cards for nurses every year since 1982.
On January 1, 2008, hospitals in California will be subject to increasingly strict nurse-to-patient ratios. See
For more information, see our "Nurse" page at
The report is a useful resource for anyone undergoing removal proceedings.
TRAC enables you to obtain individual reports regarding over 200 Immigration Judges serving across the U.S. Find out their biographical information; their educational and employment history; the percentage of asylum cases they approved or denied; how these percentages compare with other Immigration Judges in the Court where they serve and nationwide; how they compare with other Judges when deciding the asylum claims of applicants who are unrepresented by an attorney, and the nationality of the applicants who appear before them.
Table One is a one-page ranking of all Immigration Judges across the U.S. which enables you to learn how many asylum cases were decided by each Judge, how many were denied and rankings of each Judge in terms of the percentage of cases denied. For example, one Judge in Miami denied over 97% of more than 1,300 asylum cases while another Judge in Miami denied less than 22% of more than 1,100 cases.
Table Two enables you to learn the numbers of asylum cases decided by Immigration Judges in various cities across the U.S.; the number of Judges in each locality; the disparities between the Judge in each city with the lowest denial rate and the Judge with the highest denial rate and the range between them. For example, unlike Miami, in Atlanta, the range between the Judge with the lowest denial rate (79%) and the Judge with the highest denial rate (82%) is very slight (3%), far different from the disparity in Miami (82%). Before you apply for asylum, you may wish to see Table Six (Asylum Denial Rates by Nationality, 2001-2006). If you are applying for asylum from Jamaica, be aware that over 93% of cases decided by the 296 Jamaicans who applied before Immigration Judges between 2001 and 2006 were denied.
However, at the other end of the spectrum, only a little over 26% of asylum cases submitted by Burmese during the same period were denied. Study the statistics for your nationality before you apply for asylum.
Table Seven allows you to see the percentage of asylum cases for persons of particular nationalities which were denied in different Immigration Courts across the U.S.
What does TRAC conclude from their massive and in-depth study? "The wide range of disparities in how asylum matters are decided - regardless of the perspective from which they are examined - points strongly to a dysfunctional system where the law is not the law. As TRAC previously documented, these disparities have existed for many years and have outlived the tenure of any number of individual judges. This strongly suggests that when it comes to decision disparity, individual judges do not appear to be the primary source of the problem. An attempt to deal with this failure by focusing only on individual judges - even those judges whose asylum decisions fall at either extreme - will in the long run do little to guarantee a fairer and more effective system without wider systemic reforms."
Of course, applicants may find the disparities which exist in the present system quite useful. When applying for asylum, applicants may wish to bear in mind the lyrics of an old Bob Dylan song:
For more information, see our "Asylum" page at
For many years, immigration attorneys simply told the surviving widows (or widowers), "When your spouse dies, so does the petition. You must leave the U.S."
Then, a few years ago, Congress amended the definition of "immediate relative" to include, in addition to spouses, parents (if their son or daughter was 21 years of age or older) and children of U.S. citizens, certain widows of U.S. citizens.
Section 201(b)(2)(A)(i) of the Immigration and Nationality Act states as follows:
"Immediate relatives. - For purposes of this subsection, the term "immediate relatives" means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. In the case of an alien who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen's death and was not legally separated from the citizen at the time of the citizen's death, the alien (and each child of the alien) shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen's death but only if the spouse files a petition under section 204(a)(1)(A)(ii) within 2 years after such date and only until the date the spouse remarries. For purposes of this clause, an alien who has filed a petition under clause (iii) or (iv) of section 204(a)(1)(A) of this Act remains an immediate relative in the event that the United States citizen spouse or parent loses United States citizenship on account of the abuse."
But what happens if the marriage is less than two years old when the citizen spouse dies?
Carla was a J-1 au pair from South Africa when she wed her husband, Bob Freeman, in 2001. He filed an I-130 visa petition for her and she submitted an I-485 simultaneously. Tragically, Bob was killed in a car accident in 2002 while Carla's application was still pending. Fortunately for Carla, she met a very skilled and determined immigration attorney named Brent Renison in Oregon in 2004.
Although the Immigration Service denied her application and was ready to send her back to South Africa, Brent brought a federal lawsuit, and prevailed in the U.S. Court of Appeals for the Ninth Circuit in 2007. See Carla Freeman vs. Alberto Gonzales at
Following the publication of this article, I have seen the Senate immigration bill fail, and along with it, our widow penalty fix provision. With the failure of immigration reform, I have been forced to resort to litigation again - a class action lawsuit was filed in Los Angeles on August 30, 2007, seeking nationwide class action status. Senator Bill Nelson (D-FL) is considering introducing legislation once again to fix the problem. For more information on the on-going efforts to end the widow penalty, visit
The vote was 52-44 in favor of allowing a debate on the Development, Relief and Education for Alien Minors Act also known as the DREAM Act. Twelve Republicans joined 38 Democrats and two Independents to vote in favor of proceeding with the debate while eight Democrats joined 36 Republicans to block the measure from moving forward.
The DREAM Act has been introduced in Congress by a large bipartisan coalition in each of the past five years. It was part of the Comprehensive Immigration Reform package that was supported by the Bush Administration earlier this year.
However, this time around the Administration flip-flopped and issued a strong statement urging Senators to vote against the bill. See
"I believe in this bill passionately," said Sen. Richard J. Durbin (D-Ill.). "Some of their stories are heartbreaking. Many know no other country, know no other language, and now they are being told to leave by our government."
"Children should not be penalized for the actions of their parents," said Senate Majority Leader Harry Reid (D-NV). "Many of the children this bill addresses came here when they were very young. Many don't even remember their home countries or speak the language of their home countries. They are just as loyal and devoted to our country as any American."
Although some Republicans supported the DREAM Act, most Republican Senators voted to kill the bill.
"Even though there's merit in the goal of the Dream Act, I feel this should be part of a comprehensive approach," said Sen. Jon Kyl (R-AZ) who previously had supported the DREAM Act as part of the Comprehensive Reform package.
Other Republicans were unequivocal in their opposition to the bill. "This is amnesty," said Sen. James Inhofe (R-OK). "It's a slap in the face to all of those who came in here legally."
Tom Tancredo (R-CO), a member of the House of Representatives, and a candidate for the Republican nomination for President, stirred the anti-immigrant right by calling on the Immigration and Customs Enforcement (ICE) to conduct a raid on students appearing at Senator Durbin's press conference in favor of the bill. Senator Durbin accused Representative Tancredo of "bigotry and hatred" and stated that none of the students who appeared together with him at the press were illegal.
I scanned the names of the students who appeared with Senator Durbin, and noticed that one is a recent UCLA graduate who I met with last year. I was moved by her courage in appearing at Senator Durbin's press conference. I would be happy to represent her on a pro bono basis.
In light of the crushing defeat of the DREAM Act, I urge all immigration attorneys to "adopt" one or more students who would have benefited from the passage of the DREAM Act and represent them on a pro bono basis.
Those wishing to learn more about the DREAM Act can do so by accessing our "Immigration Legislation" page at
Mr. P first arrived in the United States from Europe on a business visitor visa in 1992. It was on this visit that he met his future wife, Ms. C, a citizen of the U.S. Five years after they met, they got married, and planned to live in the U.S. happily ever after, or so they thought.
Ms. C submitted a visa petition on behalf of her husband. Simultaneously, Mr. P filed his application for permanent residence. The following year, the Immigration Service interviewed the couple and requested additional evidence. Because of an old criminal charge for a business-related matter in his native country, the Immigration Service temporarily withheld adjudication of Mr. P's application.
Over the next several years, the couple was interviewed two more times, and each time, the Immigration Service requested additional evidence. Over the years, the government asked for documentation regarding the criminal charge, updated financial information for both Mr. P and Ms. C, and for updated photographs.
Eventually, the Immigration Service approved the I-130 petition. However, year after year, they failed to decide Mr. P's application for adjustment of status. Specifically, because the criminal charge was never brought to trial, there was no final disposition. In 2002, the criminal court finally issued its judgment on the 15-year-old charge, terminating the matter because the case was never brought to trial and the statute of limitations had run. A certified translation of this final judgment was provided to the Immigration Service.
Nonetheless, the Immigration Service inexplicably continued to withhold adjudication of Mr. P's green card application.
At this point, the couple retained our law firm. We made numerous inquiries with the Immigration Service over an eight-month period. Still, the Immigration Service refused to provide any reason or basis for its failure to adjudicate Mr. P's green card application.
As the couple got ready to celebrate their ten-year anniversary, we advised them to pursue a mandamus action in Federal Court against the Immigration Service.
Earlier this year, we submitted a complaint in District Court challenging the USCIS' unreasonable delay in adjudicating Mr. P's application. Soon after we filed the complaint, the USCIS made still another request for additional evidence (RFE) requesting for a new affidavit of support and a copy of Mr. P's admission stamp from 1992.
Just four months after we filed the mandamus action, the USCIS finally granted Mr. P's adjustment application.
The couple's persistence, and our submission of a complaint in Federal Court, proved effective in resolving this long- delayed matter. It took ten years, but the couple can now live together happily ever after. To read more of our Immigration Success Stories, see
See
The following example is instructive:
Mr. Kumar was a computer professional at Infotech in Pennsylvania when he scheduled a telephonic legal consultation with me earlier this year. In June 2004, his employer submitted a labor certification application on his behalf which was approved in 2006. Then, Infotech filed an I-140 petition which was approved under the EB-3 category.
Because Mr. Kumar was born in India, the retrogression prevented him from adjusting his status for several more years. In the meantime, because of the skills that he had acquired at Infotech, he had become a hot commodity in his chosen profession. Computerworks in Georgia had offered him an offer of employment which far exceeded his $60,000 salary at Infotech. He knew that he could use AC-21 to change his H-1B employer and to extend his status past the usual six-year limit. However, he was loathe to start the PERM process and wait three more years for his priority date under EB-2 (Computerworks required a B.S. degree and five years of professional experience as the minimum entry requirement for the job.) to become current.
For weeks, he agonized and consulted with numerous friends, posted inquiries on various message boards and asked attorneys what to do. Everyone told him that changing jobs at this juncture would result in a lost priority date, an immigration disaster.
By the time he scheduled a consultation with me, he had all but given up hope. My first question to Mr. Kumar was what would he do if he were a U.S. citizen. Without hesitation, he replied that he would take the job at Computerworks since it was a significant promotion and his salary would increase almost 50%.
I then informed him about an important Immigration Service regulation found at 8 CFR 204.5(e):
"(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."
This regulation allows a person with a priority date under the EB-1, EB-2 or EB-3 categories to retain their priority even after they change employers as long as they obtain the approval of a new I-140, or in Mr. Kumar's case, the approval of a PERM application and an I-140 petition.
He asked a number of questions (Example: Had we ever used this regulation and been successful in the past? Answer: Yes, at least 100 times over the past 25 years since I left the INS and entered private practice.) Before the end of our 30-minute consultation, he gave me the go ahead to begin a new PERM application on his behalf.
Even though Mr. Kumar's original priority date was under the EB-3 category, when we submitted a PERM application and an I-140 on his behalf, we did so under the EB-2 category. Because of the above regulations, he was able to retain his 2004 priority date and upgrade his category to EB-2.
In July, we submitted an I-485 on his behalf. Today, he is close to becoming a permanent resident and he was able to switch to his "dream" job.
Talk about a "win-win" situation!
Do you have immigration questions of general interest to our readers? Send them to
If your question is neither short nor general, please schedule a 30-minute legal consultation with me at
The Immigration Service (USCIS) lists its processing times for immigration petitions and applications on their web site. Most immigration applications and petitions must be submitted to one of the following USCIS Service Centers: (1) Laguna Niguel, California; (2) Lincoln, Nebraska; (3) Mesquite, Texas; and (4) St. Albans, Vermont and (5) the National Benefits Center in Missouri.
These service centers periodically issue lists of their processing times for various types of petitions and applications. We link to the latest list issued by each service center.
Warning: Processing times may appear faster on the official lists than they are in reality.
To see how fast (or slow) your service center is processing a particular type of petition or application, see our Government Processing Times Page at
The 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
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
Dear Mr. Shusterman,Works of Art
- Art Piece Number One is called "High Noon, New York, 1986" created by a painter named Chen Chi, born In Wusih, Kiangsu, China in 1912. Chen Chi Came to the United States in 1947, and became an American citizen in 1964. His type of painting is called watercolor. He was quoted as stating that his generation wanted more modern painting. He said that he was used to the Chinese tradition of painting, but wanted to direct himself more on the Modern style. His paintings before 1940 were considered Impressionistic. He was often known for mod landscape and urban imagery.
- Art Piece Number Two is called "Bicycle Wheel" by Marcel Duchamp. Marcel Duchamp was born in Blainville-Crevon, France on July 1887. He became a United States citizen in 1955. He is known for the Dada and Surrealism Movements. His early work is associated with Post- Impressionist styles. He was also known to have experimented with Cubism and Fauvism. He was known for being in the Field of Painting, Sculpture, and Film.
- Art Piece Number Three, was known as "No. 61 (Rust and Blue) 1953", by Mark Rothko. Mark Rothko was born Marcus Rothkowitz on September 25, 1903 in Latvia. Considered an Abstract Expressionist Artist, he would often deny and/or reject this and say he did not consider himself an abstract painter at all. Fearing that his sons would be drafted into the Czarist Army, he came to the United States in 1913.
- Art Piece Number Four is called "Familia". Made in 1995 by Simon Silva, his paintings portray farm workers in the fields and valleys, working under the radiating heat of the sun. He explains that he wants to portray the pride and dignity in these type of workers by showing their pain and hard work. His work is considered Contemporary Art.
- Art Piece Number Five is called "Woman 1" by Willem de Kooning. He was born in Rotterdam in The Netherlands. His form of painting is called Abstract Expressionist. This form or style was opened up to the world in the Post World War 2 Era. He entered the United States as a stowaway on a British freighter. He eventually found his way to Hoboken where he settled.
- Art Piece Number Six is called "Music And Literature" by William Michael Harnett. William was born in Ireland on August 10, 1848. His style of painting was called Trompe l'oeil, which is also known to mean "Fool the Eye". His paintings of Still Normal Objects that are usually arranged hanging from a nail or on the ledge are painted in a manner that the painting is mistaken for the objects themselves.
Well, I have finished the quiz. It took me almost an hour, but I did it and the hints really helped, thank you. I originally tried it when it first came out, but I figured hundreds had answered it correctly and I would be a needle in a hay stack, but when I read that only three people answered and none were correct, I stayed up an extra 45 minutes to finish this quiz. I tried to describe the artists and their form of painting with as much detail but not too much writing because I want my answers to come out clear and direct.
I am 19 years old from New York. I am a Bolivian immigrant. I came here when I was 3 years old with my mother on a visitor's visa. Throughout elementary, middle and high school, I did well in school. I always stayed out of trouble. When I turned 16, I remember I was trying to get a job in school and they had asked me for my Social Security number. I figured that I had one and told them that I would tell my mom to give me the number. When I asked her, she told me that I did not have one and that my immigration status was very different from all my friends. I guess that's when all my troubles started. I was no longer a normal teenage boy like I thought I was. I was illegal and, furthermore, I realized then that my life would never be the same as anyone else that I knew and was friends with. The sad part is that I'm not a gang member and I don't get into trouble. I don't want trouble because being illegal is enough trouble as it is. The reason I decided to enter this contest is because I know first hand how it is to be a DREAMER, and how it feels to want something so bad that most people I know take for granted, to be able to drive, to be able to work, to just be able to say "I am part of this country". How can I go back to my country of birth, when I don't know anything about it or how life is over there in the first place? I think one good thing came out of my ordeal, and that is I learned how to appreciate the simple things so much more. To me, a green card is like winning a million bucks. It's that far away and close to impossible to me, sometimes I feel like I will never get there, like I will never see it. But I do have one solution and that is the main reason why I joined this quiz. In 1998, my mother applied for the 245i through her brother, her priority date is January 1998, and at the moment they are processing priority dates of April 1997. I am 19 and this November I will be 20. I will be fortunate enough to make it before I turn 21 if the visa bulletin moves as it has been moving or faster. My fear is what if something goes wrong? What if our lawyer slacks off, and we don't apply by the time I turn 21. My lawyer doesn't even call us or keep us informed about anything. When I go to visit him, he is never available. I'm so scared because I've lived with this fear for 4 years now. Every time a reform was supposed to happen it didn't. Every time the Dream Act was supposed to be attached or to pass, it didn't. I've been let down so many times in life that I no longer am as positive as I should be. This is why I seek your help Mr. Shusterman. I have subscribed to your newsletter for a few months now, and always am thankful for all the help you have provided. I was willing to pay the money for a consultation with you but I had to pay my college tuition. I am currently going to a 2-year school hoping to transfer to a 4-year college. I am not a bad person. I just want to be normal. I'm tired of life passing by and me standing there just watching it do so. I hope that I win this quiz. I hope that you can help me. If I knew for certain that my mom's petition would go through perfectly through you, I would save up all the money I could and pay for your services. I just need some type of hope. I think that you are the only lawyer I know I can truly trust, and I hope you can help me... Hope to hear back from you.
Mickey
Mickey - I'm impressed. This was one of our most difficult quizzes, and your personal story shows why Congress needs to pass the DREAM Act. I enjoyed speaking with you. I am very glad that we were able to come up with a solution to your immigration problems.
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
"To turn on these children and treat them as criminals is an indication of the level of emotion and, in some cases, bigotry and hatred, that is involved in this debate."
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November 1, 2007