SHUSTERMAN'S IMMIGRATION UPDATE
(November 1999)

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Learn how to benefit from United States immigration laws and procedures from a former INS Attorney (1976-82) with over 30 years of experience. SHUSTERMAN'S IMMIGRATION UPDATE is must reading for potential immigrants, employers, human resources managers, immigration attorneys, reporters and policy makers. Join over 55,000 persons in more than 150 countries in subscribing to our FREE monthly e-mail newsletter. E-Mail Address: Your Name:

Volume Four, Number Eleven

Published by the Law Offices of Carl Shusterman, 600 Wilshire Boulevard, Suite 1550, Los Angeles, California, 90017. Phone: (213)623-4592, Fax: (213) 623-3720, E-Mail: carl@shusterman.com, WWW Home Page: http://www.shusterman.com

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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.

CONTENTS:

* NEWS FLASHES

1. December 1999 State Department Visa Bulletin

2. Latest Immigration Service Processing Times

3. Physicians and Nurses: New Law Offers Some Relief

4. Unlawful Presence: Hypotheticals and Answers

5. Litigation: Lawsuit to Compel INS to Reduce Processing Times

6. Immigration Trivia Quiz: Foreign-Born First Ladies

7. Chats: Transcripts Online for All October and November Chats

8. Website: Don't Get Lost in the Rain in Juarez

9. Recent Improvements on the INS Website

10. Answer to October's Immigration Trivia Quiz

NEWS FLASHES:

• URGENT ACTION ALERT: Possible last minute deal between White House and Congress to split the INS. Call the Capitol Switchboard at (202) 224-3121 and express your strong opinion that one person be held accountable for the immigration function in the Justice Department and that the enforcement and service branches of the new agency which emerges continue to coordinate with each other. It is the service and benefits branch/agency which could be in mortal danger!

• Administrative Denaturalization: Recently, a 3-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld the validity of administrative denaturalization by a 2-1 margin. Now the Court has decided to rehear the case en banc with an 11-judge panel.

• Chennai Mailing List: Interested in what's going on in the American Consulate in Chennai, India? Then sign up for their free mailing list at
  http://www.sphynx.com/madrasus/ (Link is no longer operational.)

• Information Technology Page: If you are an employer or an employee in the IT industry, you already realize the tremendous role that foreign-born (particularly Indian and Chinese) computer professionals have in this burgeoning sector of the economy. Now, from the pages of ComputerWorld magazine, get the inside scoop on how present and proposed immigration laws would affect you and your industry. See
  http://www.shusterman.com/toc-it.html

• Temporary Protected Status: The Attorney General has renewed the TPS status of residents of Sudan, Burundi and Sierra Leone for another 12-month period until November 2, 2000.

1. December 1999 State Department Visa Bulletin

For the Family categories, the priority dates continue to advance slowly. Worldwide numbers moved forward from two to five weeks. Visa numbers for persons born in the Philippines were, for the most part, motionless. The Philippine family-based first, third and fourth preference categories all failed to move forward as did the Mexican 2B category. The 4th preference category for persons born in India advances 4 weeks.

The Employment categories all remain Current with the exception of the unskilled worker category which advances 6 weeks to September 1, 1993.

Visa Lottery (December, January and February Numbers)

Section 203(c) of the Immigration and Nationality Act provides 50,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. DV visas are divided among six geographic regions. Not more than 3,500 visas (7% of the 50,000 visa limits) may be provided to immigrants from any one country.

For December, immigrant numbers in the DV category are available to qualified DV-2000 applicants chargeable to all regions/ eligible countries as follows. When an allocation cut off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut off number: AFRICA (12,704); ASIA (4,940); EUROPE (14,200) except Albania (4,501); NORTH AMERICA (Bahamas)(15); OCEANIA (753); SOUTH AMERICA, CENTRAL AMERICA, and the CARIBBEAN (1,650).

For January, immigrant numbers in the DV category are available to qualified DV-2000 applicants chargeable to all regions/ eligible countries as follows. When an allocation cut off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut off number: AFRICA (12,800) except Ghana (6,040) and Nigeria (5801); ASIA (4,940); EUROPE (14,200) except Albania (5,100); NORTH AMERICA (Bahamas)(15); OCEANIA (753); SOUTH AMERICA, CENTRAL AMERICA, and the CARIBBEAN (1,650).

For February, immigrant numbers in the DV category are available to qualified DV-2000 applicants chargeable to all regions/ eligible countries as follows. When an allocation cut off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut off number: AFRICA (13,000) except Ghana (6,040) and Nigeria (6,340); ASIA (5,001); EUROPE (14,200) except Albania (6,455); NORTH AMERICA (Bahamas)(15); OCEANIA (753); SOUTH AMERICA, CENTRAL AMERICA, and the CARIBBEAN (1,650).

For an explanation of what the categories, dates and symbols listed below mean, see

and

For the State Department's official version, complete with information about the movement of family, employment and lottery numbers, see

2. Latest Immigration Service Processing Times

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

The service centers periodically issue lists of their processing times for various types of applications. Our web site contains the latest list issued by each service center.

Warning: Processing times may appear faster on the official lists than they are in reality.

To see how fast (or slow) your service center is processing a particular type of petition or application, see

Processing times at INS District Offices may be accessed at

You can also click on

and

to check the processing times of your Department of Labor Regional Office and your State Employment Service Agency.

3. Physicians and Nurses: New Law Offers Some Relief

The most significant immigration law to be passed in 1999 was the "Nursing Relief for Disadvantaged Areas Act of 1999" which, despite its title does a lot more to help physicians than it does to assist hospitals and nurses.

PHYSICIANS

Section 5 of the law restores the ability of physicians working in medically underserved areas to obtain National Interest Waivers (NIW's). According to our reading, the law benefits not only IMG's with J waivers, but also IMG's who did their residencies/fellowships using H-1B visas. Some Canadian physicians may also obtain NIW's. To qualify a physician needs to work in a HPSA/MUA (or for the VA) for a period of five years, obtain a letter from a Federal agency or a department of public health in any State that the "physician's work in such an area or at such facility was in the public interest".

As a matter of strategy, the NIW petition can, and should, be submitted immediately upon the law's enactment, especially for physicians from countries like India where the EB-2 category is likely to backlog soon. Once the physician obtains the approval of an NIW, he/she should immediately apply for adjustment of status and an EAD. Upon receiving an EAD, there is no reason to be concerned about H-1B issues such as the LCA, the numerical cap or 6-year maximum duration limitation. Also, the physician's spouse and children may qualify for EAD's and advance parole.

For a brief summary of Section 5, see

To read the text of Section 5, see

Interested in participating in a free online chat regarding what the new law means to you? We will display information on the date and time of this chat of our homepage and news ticker in the near future.

REGISTERED NURSES

For hospitals in medically underserved areas who are unable to hire RN's because of the national nursing shortage, the enactment of this law promises to be as effective a cure as a dose of aspirin for a cancer patient :-(

The law, which is patterned after the Immigration Nursing Relief Act of 1989 (INRA), guarantees that those hospitals which qualify to petition for H-1C temporary visas for foreign-born RN's will need an experienced law firm to complete massive "attestations" required to be submitted to the Labor Department.

Our law firm successfully completed over 100 such attestations under INRA, and the requirements under the new law are essentially the same with a few interesting new restrictions: (1) No more than 500 RN's may obtain H-1C visas in a single year, with a per-state cap of 50 for large states and 25 for small states; (2) Only hospitals in Health Professional Shortage Areas (as of March 31, 1997!) may qualify as petitioners; (3) A maximum of 33% of the hospital's RN's may be H-1C visaholders; (4) The hospital must have at least 190 licensed acute care beds, 35% Medicare patients and 28% Medicaid patients.

What does a qualifying hospital have to attest to? Using both the wording of the law and the regulations under INRA as guides: (1) the hospital will have to pay all RN's the higher of the "prevailing wage" in the area or the "actual wage" paid to other nurses at the facility, (2) the hospital must show that it is taking "timely and significant steps" to recruit and retain U.S. nurses, (3) there is no strike, lockout or layoff, (4) all RN's are to be informed whenever the hospital petitions for an H-1C nurse, etc., etc.

How difficult will it be to submit an attestation which is not only approvable, but which limits the legal liability of the attesting hospital? We won't know until the Labor Department issues regulations to implement the new law. The law provides that DOL must issue interim or interim final regulations within 90 days of the of the law's enactment, but don't hold your breath. The 1989 law gave DOL far more time to issue regulations, yet DOL failed to do so until four months after the due date!

With a 500 RN cap per year, hospitals would be well-advised to begin the arduous process of documenting their attestations well in advance of the DOL's regulations. I devoted an entire issue of the Immigration Law Review of the Hospital Council of Southern California detailing how to successfully complete an attestation under the 1989 law. This explanation may prove helpful to hospitals wishing to begin preparing their attestations now. To receive a copy of my article, please send me an 8 1/2" by 11" stamped ($1.04 in postage) self-addressed envelope, and I'll send you a copy of my article gratis.

If you would be interested in participating in a free online chat regarding how to complete an attestation, please include your business card (with your e-mail address). If we receive at least 50 such requests, we will schedule an "RN Attestation Chat".

We look forward to hearing from you!

4. Unlawful Presence: Hypotheticals and Answers

Then there is adjustment of status, which is not necessarily available to all aliens who are not deportable, excludable or removable. Failure to maintain status, even on a prior visit to the U.S., may result in ineligibility for adjustment of status. However, exceptions exist for "immediate relatives" and for those adjusting under section 245(i) and 245(k).

In 1986, a law was enacted to impose sanctions on employers who hire "unauthorized aliens". Unauthorized aliens are not necessarily illegal. They are simply persons who are not permitted to work for a particular employer.

Then, in 1996, the twin concepts voiding one's visa by overstaying (section 222g) and becoming inadmissible for three or 10 years (or permanently) for accumulating "unlawful presence" were written into the law.

How the concepts of removability, eligibility of adjustment of status, unauthorized aliens and those subject to visa cancellation and the 3/10 year/permanent bars are to be construed and harmonized is enough to tax the brain of a law professor, never mind an immigration attorney or a would-be immigrant trying to understand the laws in order to comply with them.

Think we are exaggerating? Try your luck with the following hypotheticals at

and after recording your responses, check your Immigration IQ by comparing your answers with ours at

A few Members of Congress designed this incredibly complex scheme of laws over a number of years. We developed this set of hypotheticals and answers as part of a panel presentation at the annual California Chapters Conference of the American Immigration Lawyers Association which was held in San Diego on November 4th and 5th.

5. Litigation: Lawsuit to Compel INS to Reduce Processing Times

Over the past few years, as backlogs have continued to grow, a number of people have sued the INS demanding that their applications be processed within a reasonable amount of time. When the INS approved their applications/petitions, they also dropped their lawsuits.

Meanwhile, the problems of processing delays have gone from bad to worse. Adjustment of status applications which, in 1994, took two to three months to process now take two to three years. Employment-based visa petitions which are supposed to take 60 days to process according to INS Headquarters take almost one year in three of the four Service Centers. The list goes on and on. Nationwide, there are nearly 4.5 million pending applications at the INS. Processing delays have resulted in the issuance of nearly 500,000 green cards less than the legal limit between 1995 and 1999 despite the fact that over 3.5 million persons are waiting to be reunited with family members in the U.S.

What makes matters worse is that last year, INS substantially raised filing fees with the promise that service improvements would soon follow. What happened to the extra cash? Much of it was diverted to law enforcement purposes.

Now, there is an organization which is contemplating bringing a nationwide class action lawsuit on behalf of immigrants and their sponsors to reduce INS processing delays. The organization is the American Immigration Law Foundation (AILF) and AILF's ace litigator, Nadine Wettstein, is looking to litigation to solve the overall problem, not just for those persons who can afford to pay an attorney to fight their case in the Federal Courts. Ms. Wettstein explains that "it is fine for the people who have attorneys -- they get their applications processed, they are happy, they got what they wanted...but the larger problems at the INS don't get resolved."

By the way, AILF is a non-profit, tax-exempt foundation which depends on donations to carry out its mission. If you would benefit from a lawsuit to reduce processing delays, you should consider making a donation to AILF. Even donations of under $100 (or even $10!) are acceptable. Send your check to American Immigration Law Foundation, 1300 Eye Street, N.W., Suite 490 East, Washington, D.C. 20005.

While you are thinking about it, go to AILF's website at

and subscribe to AILF's free monthly e-mail newsletter.

6. Immigration Trivia Quiz: Foreign-Born First Ladies

And, I almost forgot to mention...her husband is Bill Bradley, candidate for President of the U.S. If he becomes the next President, Dr. Schlant would make history, but not for being our first foreign-born first lady.

Although it is not widely known, the U.S. has already had a foreign-born first lady.

To win this month's Immigration Trivia Quiz, you must be the first person to identify (1) the name of our country's first foreign-born first lady; (2) the name of her husband; (3) her country of birth; and (4) her citizenship at birth.

Send your answers (one per person) to carl.shusterman@gte.net The winner will receive a free 30-minute immigration consultation.

7. Chats: Transcripts Online for All October and November Chats

October 11 - "The Visa Bulletin: Outlook for the New Year"

October 18 - "Immigration Forms - Filling in the Blanks" with Claudia Gregorian, Legal Assistant

October 25 - "No Foreign Prince or Potentate: Becoming a U.S. Citizen"

November 1 - "Alphabet Soup: Understanding Temporary Visas" If you missed a particular chat, but would like to read the transcript, see

8. Website: Don't Get Lost in the Rain in Juarez

Of course, most of our clients have never been within a hundred miles of El Paso, Texas or Juarez. Wouldn't it be convenient if someone met them at the airport in El Paso, booked a hotel room for them, obtained a visa for them to enter Mexico, and then picked them up after they crossed back into the U.S. and drove them back to the El Paso airport? And did all of these things for a reasonable fee?

Their are several small organizations who perform these services, thereby considerably easing the trauma of persons applying for visas in Juarez.

Recently, I stumbled on the website of one of these services. Since I had never used the services of this particular organization, I asked them for a reference, and they referred me to my friend Jim Mayock, an attorney in San Francisco, who had nothing but nice things to say about them.

Their names are Victor and Marco Garcia, and here is what they have to say about themselves and their website:

"This site is for people going the US Consulate in Ciudad Juarez to apply for a multiple entry visa (H1B, F-1, J-1 etc). A lot of people went to Ciudad Juarez used Victor Garcia's help (Victor and Marco Garcia has been helping people getting multiple entry visa for the last 6 years). For $40, he will obtain a 3-day entry permit to Mexico, pick you up from a hotel, drop you off at the US Consulate, pick you up from US-Mexico border after you get the visa, and drop you off back to your hotel.

This site details all the information you need to apply for a visa from Ciudad Juarez: planning how to make an appointment, what information to send to Victor Garcia (the spanish letter), what documents to bring with you for your interview, the trip to El Paso and lodging hotel information, what to expect once inside the Consulate and common interview questions, and what to do at the US INS building."

Check out Victor and Marco Garcia's website by clicking on

and scrolling down to "Planning Your Trip to the U.S. Consulate in Juarez Mexico".

9. Recent Improvements on the INS Website

Here is a message that I received from INS webmaster Gregg Beyer on October 22, 1999 detailing a number of improvements on the INS site:

Carl,

We have really been pleased with the fact that so many people have been downloading so many forms from our Website. That's good news for us. But, based on anecdotal feedback we received from a few customers and staff, we found that some people were having trouble identifying the correct fees and filing locations for forms downloaded from the INS Website. As a consequence, some were showing up with the wrong fees, or were coming to file a form in the wrong place (as in going to an INS District Office with a form that should be filed at a Service Center). While part of the problem sometimes came from people not reading carefully the Instructions on the forms themselves, especially the "Where Do I File?" section when there is one (which is in almost all cases), we decided there was perhaps a little more we could do to make their job easier. So we created a new "Forms, Fees and Filing Locations Chart" that consolidates information previously on our Forms Download Chart, the Fees Chart and the Direct Mail Chart.

This new chart can be found at

http://uscis.gov/graphics/formsfee/forms/formsinstr.htm

It can also be accessed from the "Hot Topics" box and the headlines blurb on the front page of our Website.

We hope that this form simplifies the task of finding the right forms, preparing for payment of the correct fees, and filing applications at the correct locations.

We also published some new content under the Lawful Permanent Residency topic of the Immigration and Services section of our Website at

http://uscis.gov/graphics/services/residency/index.htm

And finally for this week, we published "A Quick Guide to 'Public Charge' and Receipt of Public Benefits" at

http://uscis.gov/graphics/publicaffairs/summaries/Public.htm

Gregg

10. Answer to October's Immigration Trivia Quiz

Foreign born SNL players and country:

1. Dan Aykroyd - Canada
2. Peter Aykroyd - Canada
3. Robin Duke - Canada
4. Phil Hartman - Canada
5. Norm Macdonald - Canada
6. Mark McKinney - Canada
7. Mike Myers - Canada
8. Tony Rosato - Canada
9. Martin Short - Canada
10. Horatio Sanz - Chile
11. Christopher Guest - U.K. (born in NY)
12. Paul Shaffer(band) - Canada
13. Howard Shore (band) - Canada
14. Pamela Stephenson - New Zealand

http://www.saturday-night-live.com/snl/faqs.html#anchor2859043 (Link is no longer operational.)

and

ftp://rtfm.mit.edu/pub/usenet/news.answers/tv/sat-night-live/quick-bios

Chevy Chase's real name - Cornelius Crane Chase
Source (http://www.geocities.com/Hollywood/9298/aboutcc.html) (Link is no longer operational.)

(Shusterman's Note: By the way, for the curious, SNL's Christopher Guest who played the rock star "Nigel Tufnel" in the movie "This is Spinal Tap" is the Fifth Baron Haden-Guest of Saling in the County of Essex in the Peerage of the United Kingdom since April 15, 1996. Not bad for a kid born in New York!)

When I wrote back to Srini informing him that he was the winner if he could prove that Horatio Sanz was foreign-born, I received the following letter:

Hello Carl

Here is the URL for Horatio Sanz's biography:

http://www.saturday-night-live.com/snl/cast-bios/sanz.html (Link is no longer operational.)

I might have forgotten to add the URL in my previous email. Sorry about that.

I am from Bombay, India. I have been living in the United States for the past four years. I came to the U.S. as a graduate student. I have a Masters degree and I now work in a N.Y. based software company on an H-1B visa. My company is processing my Green Card and I am now at the second stage (I-140).

I arrived in the U.S. at about the same time that the Internet was just beginning to gain popularity. Educating myself about the immigration process became a hobby of mine back in 1996. I stumbled upon your definitive website on immigration and I have been hooked ever since.

Although I have seen many other immigration-related websites since, none in my opinion match up to your site. I visit your site at least 4 times a week to keep abreast of the latest immigration-related developments. I am probably one of the earliest members of your newsletter. Your site has helped me become an immigration guru in my own right among other immigrant friends. I regularly dish out immigration advice and information thanks to the information available on your site. Keep up the excellent work!

This is the first time I have been able to answer consecutive quizzes correctly. I got last month's quiz right which was really easy since I am from Bombay. I was obviously late last month. I am really excited to finally win a free legal consultation. Thank you very much! I would like to take a rain-check on it though if that is okay with you.

Again, thank you very much for the excellent website and the opportunity to win a free legal consultation!

Best regards,
Srini Srivatsa

- Okay, Srini, one rain check coming up! (Who said, "It never rains in California"?)

Carl Shusterman
Maui, Hawaii :-)
November 10, 1999