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Free Subscription to SHUSTERMAN'S IMMIGRATION UPDATE
Back Issues of SHUSTERMAN'S IMMIGRATION UPDATE
Volume Twelve, Number Nine
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.
On a personal note, I had the privilege of meeting with Mr. Carliner in 1977. At that time, I was employed as an INS General Attorney (Naturalization). Mr. Carliner had just authored the "Rights of Aliens" for the ACLU. I purchased 10 copies which I distributed to my colleagues at the INS.
Rest in peace, Mr. Carliner.
Dear Mr. Shusterman:P.S. We would especially like to thank two people who were always there for us: Alison Walters and Susan Zhang.My wife and I would like to thank you for an excellent work that you and your staff have done on our case.
When we first contacted your firm we were very suspicious and not very confident about the positive outcome of our immigration process. Before that, we had really bad experiences with other law firms when people who were handling our case were unprofessional and often ignorant to our needs.
But with their good work and professionalism your team was able to win our trust back. Our case wasn't an easy one and things didn't always go as smoothly as we wished them to go but with your help we were able to achieve our dream.
And we are very thankful for your and your staff's hard work and dedication.
Sincerely,
SD
USCIS examiners will select ten questions and the applicant must answer 60% correctly in order to pass. If the applicant fails the test, he or she is entitled to retake the test at a later time. However, if the applicant fails the test on the second try, he or she must reapply for naturalization and pay the filing fee a second time.
Agency officials claim that, in their test group, the passing scores were higher on the new test than on the old one, and that the new test measures understanding of our system of government rather than simple memorization. We let you decide whether you agree with the government.
As a former INS General Attorney (Naturalization) from 1976 to 1979, permit me to select ten questions for you. Ready for your test?
Check our "Citizenship" page at
Caveat: As a former INS Citizenship Attorney, I offered to provide USCIS with 100 questions and answers for free which would have saved the agency $6.5 million and six years of hard work (and would probably have saved you from paying the new, higher filing fees). But alas, after seeing my proposed Question #10 above, they decided to reject my application even though I was the low bidder on the contract, and not to use any of my questions :) For those of you who failed on Question #10, the answer is Woody Guthrie. For more information about the song lyrics quoted above, see the Wikipedia entry at
Coming attractions: Several senators said that the English test which is administered at the time of the naturalization interview should do more to make immigrants prove knowledge of English. Nine senators, all Republicans, said in a letter to President Bush that the current method of dictating sentences to be written doesn't really test an immigrant's abilities.
The Visa Bulletin lists the backlogs in applying for permanent residence for persons in the family-based, employment-based and lottery-based categories. If your place in line ("priority date") is before the date listed in the Visa Bulletin, you can apply for a green card.
For some persons, the October Visa Bulletin allows them to apply for adjustment of status to permanent resident immediately. For others, the line is long, but not insurmountable. For many others, the waiting times show no signs of abating, and may even be getting worse.
The October Visa Bulletin provides some good news for persons in the family-based categories: "During recent months the cut-off dates in several of the Worldwide Family preference categories have moved very quickly. It is expected that such cut-off date movement will continue during the first quarter of fiscal year 2008. Should the level of demand begin to increase at a significant rate, it may be necessary to slow or stop such movements at some point later in the fiscal year."
There is also good news for persons in most of the employment-based (EB) categories: The Visa Bulletin contains no backlogs for EB-1 priority workers, for EB-2 advanced degree workers (except for those born in China and India), for EB-4 special immigrants and for EB-5 investors.
The worldwide EB-3 category for professionals with bachelor's degrees and skilled workers has retrogressed to August 1, 2002, over a five-year wait. This is bad news for computer, business and healthcare professionals and their employers although if the workers are presently in H-1B status, many of them can extend their status past the six-year maximum.
The EB-3 unskilled workers category is now backlogged six years, bad news for nannies and their employers.
For persons born in India and China, many of whom have been waiting in line for many years, the priority dates are moving in the wrong direction. It now takes longer for a university-degreed computer programmer from India, China or Mexico to obtain a green card than it does for an unskilled worker.
Hospitals seeking help in coping with the nurse shortage are out-of-luck. Not only are there very few temporary visas available for registered nurses, despite being designated by the Labor Department as a shortage occupation, the wait to become a permanent resident ranges from five years and two months to six and one-half years.
Unless Congress steps up to the plate and reforms the legal immigration system, our economy will be damaged significantly over the next few years.
We link to the October 2007 Visa Bulletin from our "Visa Bulletin" page at
The article revealed that "nearly 320,000 people were waiting for their name checks to be completed as of August 7, including more than 152,000 who had been waiting for more than six months, according to the U.S. Bureau of Citizenship and Immigration Services. More than 61,000 had been waiting for more than two years."
The American Civil Liberties Union (ACLU) has filed a lawsuit in federal court regarding this issue. The Times article quotes an ACLU attorney who stated that "there is nothing in immigration law that says that a citizenship application should take two, three, four years. That's absurd. People who have not been any sort of threat ... have been caught up in this dragnet."
Applicants for adjustment of status, citizenship, extensions of stay and many other immigration benefits have taken days off work to visit USCIS offices only to be told that the USCIS can do nothing since the name check process is in the hands of the FBI.
Nor do letters and meetings with Senators and Members of Congress yield results. They receive polite letters from the USCIS' Congressional Liaison Unit to the effect that "Sorry, but this is FBI's problem, not ours."
DHS Secretary Chertoff announced that his Department is meeting with the FBI (which is part of the Department of Justice) to work out a more efficient system of processing these name checks, but so far, the number of people waiting for results from the FBI continues to grow and grow.
The problem exists for applicants from a wide variety of countries and affects Christians, Moslems, Hindus, Sikhs, Jews, etc.
Our solution is to sue both the USCIS and the FBI in Federal Court. Most Federal Judges are not reluctant to order the FBI and the USCIS to complete their name checks and application processing by a date certain.
Many applicants have turned to litigation as the one and only method of solving the name check problem. The numbers of such lawsuits have increased from just 680 in 2005 to 2,650 in 2006 to over 4,100 this year. Although there is no guarantee of success, our law firm has yet to lose one of these cases in Federal Court.
The Times article concludes with a quote from me:
"There is only one thing that works, and that is suing them in federal court."
We link to the Times article, "Caught in a Bureaucratic Black Hole" from
We are honored to have been invited by Congresswoman Grace Napolitano (D-CA), former Chair of the Congressional Hispanic Caucus to address the LWV.
For more information, contact LWV President Margo A. Reeg at
I will participate in the "Ask the Experts" panel on October 19th at 8:00am
and
on a panel entitled "Using the Internet to Stay Current with Immigration Laws, Procedures, and Agency Interpretations" along with Eugene Flynn, Esq. at 2:45pm
For more information, see
My topic will be "Immigration Challenges Faced by Employers" with an emphasis on how employers can avoid liability under ICE's new "No-Match" letter regulations.
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. from 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
When we started the case we told him that it would take a few years before he could even apply for adjustment of status since no visas were currently available, and that patience would be his best friend in this long and complex journey. At least this is how things looked back in April 2007 when it all began. Waiting was the name of the game. We are seasoned players and thus prepared our rookie engineer for the game, but the best-laid plans of mice and men often go astray - as the summer would show.
As many of you are aware, this summer became particularly interesting for immigrants when the State Department announced in June that all employment-based visa numbers would become current on July 1st. It was the moment many of us had been waiting for. The news broke out quickly, and everyone scrambled and geared up to file as early as possible. But then all of the sudden, out of nowhere, came a curve ball: On July 2nd the State Department announced that it was rescinding its July Visa Bulletin - that no more visas were available and that no one could apply.
After threatened class action lawsuits, the government backed-down and announced that they would accept all employment-based applications for adjustment of status until August 17th. The only restriction was that applicants needed to have a priority date on or before July 31 - that is, their labor certification or I-140 had to be filed by July 31. Furthermore, the immigration fees were going up on July 31 more than double the old rate, and while we had been given until August 17 to file the I-485 under the old fees; the I-140 petition was subject to the new fees. Stress, anxiety, an avalanche of applications to complete - and then we had our engineer. Things changed significantly.
His PERM labor certification was due to be filed on or around July 21st. So it looked like he was going to be eligible to file for his green card application much sooner than we had originally thought. The PERM application was filed according to plan. We monitored the process closely sometimes checking at least twice a day. It needed to be approved before we could submit an I-140 petition to the USCIS.
Fortunately, his PERM application was approved in just six days. Then, we were faced with the dilemma about how we were going to get the next two stages of his case filed with USCIS - we really were so late in the game. Also, where possible we wanted to make sure he was not subject to the additional fee.
The answer was to file the I-140 online. This way we could get a receipt for the I-140 immediately and forward the supporting documentation for the I-140 separately. Additionally, because we now had an I-140 receipt number we could file his I-485 immediately! His I-140 was filed on July 27th which allowed us to submit his application for adjustment of status before August 17.
Much to our amazement, the I-140 was approved August 17th two weeks after filing. This was lightning quick considering that I-140s cannot be submitted using premium processing.
Now Mr. B has to exercise some considerable patience. We advised him to sit back and relax and wait for USCIS to approve his I-485 which will only occur after his priority date becomes current. However, this is much better than what we had originally prepared him for. He is at the final stage of the green card process, and will be eligible under the 180-day portability rule in early 2008. The best-laid plans of mice and men often go astray - and, in this case, bravo! - in normal times, it could have been many years before he could get this far in the process.
To read more of our Immigration Success Stories, see
See
Persons who are "immediate relatives" of U.S. citizens may resubmit their I-485s as many times as they wish. So may persons who qualify under section 245(i). See
In 1997, Congress amended the law to allow certain persons not currently in legal status to apply for employment-based adjustment of status under section 245(k). Section 245(k) reads as follows:
"An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)(C) , under section 203(b)(4) ) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if--Section 245(k) would seem to permit a person to resubmit an application for adjustment of status as long as (1) he does so within 180 days of his I-485 being denied plus (2) any time that he was not in lawful status or engaged in unauthorized employment prior to filing his initial I-485 must be added to the 180 days.(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;
(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of the alien's admission."
At least, this was USCIS' position prior to 2005. And it makes sense. The status requires that a person maintain "a lawful status". The period of time that a person is waiting for the USCIS to adjudicate form I-485 is clearly lawful since the person is permitted to reside in, and be employed in, the U.S.
Sometime in 2005, the USCIS started to deny resubmitted I-485s filed by registered nurses on the ground that the period of time that the RN's previous I-485 was pending was a "period of stay authorized by the Attorney General", but not a "lawful status". Huh? See
First, the applicant has no control over how long the government takes to adjudicate an application for adjustment of status. If the government decided on the application negatively within 180 days, the applicant clearly could reapply under section 245(k). However, since the USCIS seldom decides such applications within this timeframe, they then argue that, in effect, their slowness bars applicants from refiling under section 245(k)! This seems a wee bit self-serving on USCIS' part. Delay adjudicating the I-485 for months or even years, and then penalize the applicant for the government's delay.
RNs have been disproportionately affected by this interpretation because there is no general nonimmigrant visa category that they qualify for. Did we mention that the USCIS would have no problem with RNs refiling their I-485 if they maintain their valid nonimmigrant status? Unfortunately, it is nearly impossible for an RN to maintain a nonimmigrant status during the pendency of the I-485.
The USCIS decided back in 2000 that a pending application for adjustment of status tolls a person's "unlawful presence" in the U.S. for purposes of avoiding the three and ten-year bars. Yes, somehow, the USCIS makes a distinction between a person being lawfully present in the U.S. and being in "a lawful status" under section 245(k).
The bottom line, in our opinion, is that the USCIS is attempting to amend section 245(k) by adding a modifier: the person must be in "a lawful (nonimmigrant) status". The word "nonimmigrant" does not appear in the statute. The problem for the USCIS is that it is not part of the legislative branch of the government, and therefore is not able to amend laws written by Congress. The USCIS is part of the executive branch and its duty is to enforce the law. Trust me on this. It's on the naturalization exam.
Ten years after the President signed the law, the USCIS has yet to issue regulations interpreting section 245(k). They have not even issued a precedent decision justifying their interpretation, or written a policy memorandum on this subject.
However, this does not prevent the agency from issuing I-485 denials based upon this dubious logic. And we predict that given the 300,000 persons who submitted I-485s from mid-July to mid-August this year coupled with the retrogression of the EB numbers in the October 2007 Visa Bulletin, a lot of persons besides RNs will be negatively affected by USCIS' overly restrictive interpretation of section 245(k) in the future.
We hope that if the reasons for the denial can be cured, one intrepid applicant will seek to resubmit his or her I-485 and, thereby, challenge the government's argument that the law bars him from doing so. A favorable ruling would benefit not just the applicant, but thousands of other would-be immigrants.
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 AAO's most recent published processing times (April 10, 2007) may be found 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
Hi Mr. Shusterman,I hope you are doing well. I'm a Boston, MA based Pakistani immigrant. I'm a financial auditor by profession and I've been a subscriber of your newsletter for little over a year now. My primary use of www.shusterman.com and your newsletter is to keep myself updated with the latest and greatest on the immigration scene. I'm a news junkie and I love to keep up with events in the world of politics and finance. This is my second try at the "quiz" and I hope to break SA's winning streak! :) Below are my answers.
Best,
Syed.
A -- 4 Born in India (Deepak Chopra)
B -- 5 Born in Mexico (Norma Elia Cantu) Teaches at UT San Antonio
C -- 6 Born in India (Bharati Mukherjee) Teaches at UC Berkeley
D -- 3 Born in Romania (Elie Wiesel)
E -- 2 Born in Russia (Vladimir Nabokov)
F -- 7 Born in Saint Lucia (Derek Walcott)
G -- 1 Born in Russia. (The province he was born in is a
part of Belarus now.) (Isaac Asimov)
Dear Syed,
Congratulations! You broke SA's winning streak. He answered the quiz before you, but he forgot to mention the university where one of the author's teaches. You both can "duke" it out with our other subscribers in the October Immigration Trivia Quiz!
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
"President Bush disowned his commitment to comprehensive reform and offered an executive-branch crackdown. States and local governments began whip-cracking. The country has made its bed and will have to sleep in it awhile, but a few developments suggest getting tough may not be as simple as advertised."
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October 1, 2007