Back Issues of SHUSTERMAN'S IMMIGRATION UPDATE
Volume Eight, Number Nine
SHUSTERMAN'S IMMIGRATION UPDATE is the most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 40,000 subscribers located in more than 120 countries.
Published by the Law Offices of Carl Shusterman, 600 Wilshire Boulevard, Suite 1550, Los Angeles, California, 90017. Phone: (213) 623-4592
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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.
1. October 2003 State Department Visa Bulletin
2. Latest Government Processing Times
3. H-1B Cap Set to Sink Back to 65,000 Starting in October
4. DV-2005 Green Card Lottery: You Must File Online
5. Immigration Trivia Quiz: The Write Stuff
6. WebCasts: Watch Immigration Legislative Hearings Online
7. 180-Day Portability Rule: The New BCIS Memorandum
8. Schedule of Upcoming Immigration Law Seminars
9. Chat Schedule, Transcripts, Audios & Videos
10. Answers to the August 2003 Immigration Trivia Quiz
Dr. Nancy Chornick, National Council of State Boards of Nursing (NCSBN); Leonard J. Hausman, American HigherEd, Inc.; Dr. Kathleen Scoble, The Institute for Nursing Healthcare Leadership; and Catherine Walsh, Mercy Hospital and Medical Center, Chicago, Illinois.
Early registration deadline for this meeting is October 15, 2003. To register for this timely and important meeting, and for hotel reservation information, please click on the following link:
http://www.hospitalconnect.com/aone/edandcareer/conferences_seminars.html
If you are interested in exhibiting or sponsorship opportunities, or if you have questions, please contact AONE at 202/626.2250 or aone@aha.orgCall the Office with your complaint at their toll-free number at (888)-587- 0557. The Office does not care whether you are legal or illegal. Its job is to crack down on phony "immigration experts" and con artists who are preying upon newcomers to the U.S. and taking their money in fraudulent schemes.
We link to California's Office of Immigrant Assistance's at
If you reside in a state other than California, and have the URL of a web site of a similar governmental organization in your state, please send it to us at
On September 5, California Governor Gray Davis signed the bill into law and stated "Right now, let's not kid ourselves: People are driving to work. They're driving without demonstrating they know the rules of the road. They're driving without insurance. Everyone benefits by having drivers on the road know the rules of the road and presumably be a safer driver."
We link to the Governor's press release at
Stay tuned!
Starting on September 11, 2002, certain nonimmigrant males from Iran, Iraq, Libya, Sudan and Syria and selected persons from other countries were subjected to "port of entry special registration" upon their entry to the U.S. These persons are required to re-register within one year of their initial entry.
Between November 6, 2002 and April 25, 2003, certain nonimmigrant males from Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Jordan, Kuwait, Lebanon, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Tunisia, United Arab Emirates, and Yemen were required to report for "call-in special registration". These persons must re-register within one year of their initial registration.
In addition, special registrants must register with the Department of Homeland Security whenever they depart or re-enter the U.S., and when they change addresses, jobs or schools.
Failure to comply with the registration or re-registration requirements could result in deportation, criminal penalties or both.
We link to the DHS's Special Registration page from our "September 11th" page at
We have posted the TSC's new Request for Expedite form online at
The government is implementing these requirements for security reasons. The problem is that these new requirements amount to an unfunded mandate. The State Department is in the position of having to process hundreds of thousands of additional applications for visitors visas without extra funding.
The predictable result will be long lines and lengthy processing times for all nonimmigrants, not just visitors, seeking to obtain visas to enter the U.S.
Nonimmigrants to the U.S. are not the only ones concerned the implementation of these new initiatives. In a recent letter from the Travel Business Roundtable (TBR) to DHS Secretary Ridge and DOS Secretary Powell seeking to delay the implementation of MRP requirement, the TBR expressed hope that the government "will implement this policy change in a manner that will minimize disruption to the travel and tourism industry". The letter states that tourism to the U.S. supports 18 million jobs, contributes almost $100 billion in tax revenues annually and that international visitors spend over $500 billion per year in the U.S. We link to this letter at
Movement in the worldwide family categories was slow but steady, as is usual for October, the first month of the fiscal year. All of the worldwide family categories advanced between three and six weeks.
The Philippine family categories continued their rapid advance. The 4th preference category (brothers and sisters of U.S. citizens) advanced over 2 months while the 3rd preference category sprinted ahead over 4 months and the long-dormant 1st preference (unmarried sons and daughters of U.S. citizens) advanced over 3 months!
The India 4th preference category moved ahead over 7 months.
None of the Mexican family categories advanced more than 6 weeks.
The Visa Bulletin creates false expectations. As long as a category advances less than four weeks each month, the waiting period listed on the bulletin cannot be relied upon. Unless Congress acts to reform the family-based system, the 3.5 million persons waiting to immigrate to the U.S. based on approved family-based petitions should consider other options for immigrating.
All of the employment-based numbers remain current. The time to apply for your labor certification or visa petition is now.
The September 2003 Visa Numbers can be found at
These service centers periodically issue lists of their processing times for various types of petitions and 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. These processing times are not recognized as official by the CIS in Washington, D.C. and are not posted on the official CIS web site.
To see how fast (or slow) your service center is processing a particular type of petition or application, see our Government Processing Times Page at
Administrative appeals of denials of most petitions denied by the CIS are adjudicated by CIS's Administrative Appeals Office (AAO) in Washington, DC.
The AAO's most recent published processing times (July 2003) may be found at
Among the more interesting statistics contained in the report is one which demolishes the widely-held myth that most H-1B petitions are submitted on behalf of persons employed in the computer industry.
While in FY2001, this was true, by FY2002, only 25% of new H-1B petitions were for computer professionals. This number was eclipsed by the combined total of educational professionals (teachers) and medical professionals (physicians, nurses, therapists, etc).
Congress should consider the negative implications of a sudden reduction of H-1B workers in these areas at a time when hospitals and school districts are experiencing severe shortages of health care professionals and teachers.
We link to the new DHS report at
From 1952 to 1990, employers were allowed to sponsor foreign-born workers for temporary "H-1" visas on an annual basis. There were no limitations as to the number of H-1 petitions which could be submitted, the number of years that H-1 workers could remain in the U.S., nor even the wages that such workers were paid. Basically, the market controlled each of these factors, and yet, there were few complaints about the program.
Then, with the passage of the Immigration Act of 1990, a numerical cap of 65,000 "H-1B" petitions per year was imposed upon employers, H-1B employees were limited to six years in the U.S. and Labor Department was given the authority to regulate employers via the Labor Condition Application (LCA) process.
The 1990 changes turned the H-1B category into a "political football" with Congress amending the law in 1998 and 2000 to raise the numerical cap, create exceptions to the 6-year maximum duration on H-1B visaholders and impose new limitations on "H-1B dependent" employers.
The end result of all of this government intervention is that instead of the market controlling the program, Congress is constantly besieged by both employer and labor groups to change various aspects of the system.
The current law, the "American Competitiveness in the 21st Century Act of 2000" (AC-21) is due to expire at the end of this month.
What this means is that the present numerical cap of 195,000 H-1B petitions per year will suddenly fall to 65,000 on October 1st. This will leave many employers in a bind since, on August 26, CIS announced that 57,000 H-1B petitions subject to the cap were used in the first nine months of the current fiscal year. Allowing the cap to fall to 65,000 could mean that employers will be unable to submit new H-1B petitions next summer. The situation could spell disaster for thousands of foreign-born graduates of U.S. universities who were granted optional practical training this summer. They should seek to change their status to H-1B as soon as possible. This would also be bad news for patients in U.S. hospitals and school districts since there will be a "black- out" period for petitioning new H-1B teachers, nurses, therapists and other professionals in short supply.
Will Congress pass still more legislation affecting the H-1B category before the end of September? Probably. If not, the $1,000 fee that employers must pay to train U.S. workers will expire and the law and regulations relating to H-1B dependent employers will sunset. Will Congress allow the numerical cap to fall back to 65,000? Again, the answer is probably yes. Calling for more visas for foreign-born workers at a time when the unemployment rate is at a nine-year high, and both parties are gearing up for the 2004 elections would not be a popular thing to do.
Wouldn't it be great if the Congress simply abolished the cap and allowed the market to determine the number of H-1B workers? Don't hold your breathe!
We link to the largest amount of H-1B information on the web, including the 1998 law (ACWIA) and regulations, the 2000 law (AC-21) for which we still waiting for implementing regulations, and the August 26, 2003 CIS press release on H-1B usage from our "H-1B Visa Page" at
In interim regulations published on August 18, 2003, the State Department would require that all applications, complete with digital photos, be submitted online on a special governmental web site.
Obviously, e-filing is the wave of the future. However, not accepting paper filing seems a bit elitist to us. Wouldn't the interim regulations prevent many of the 11 million applicants who participated in the DV-2004 visa lottery, particularly those from Third World countries, from participating in this year's visa lottery? Imagine if the CIS suddenly published regulations requiring that all immigration petitions and applications be filed online. "Let them eat code!"
While the State Department's press release cites "security" and "efficiency" in attempting to justify the interim regulations, it is difficult for us to see how accepting applications online is more secure than accepting them by mail. What's to stop a person from establishing 100 different HotMail accounts and making multiple online applications?
Also, isn't the government giving aid and comfort to the ever-growing ranks of immigration consultants (aka "rip-off artists") who charge fees to gullible persons eager to "increase their chances" of winning the lottery? Have Laptop and Scanner, Will Travel!
Our comments on the interim regulations were printed in several dozen newspapers including USA Today, the Washington Post, Newsday and internationally. We link to the USA Today article at
This year's green card lottery is set to begin on November 1 and end on December 31, 2003. Generally, persons born in CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, EL SALVADOR, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PHILIPPINES, RUSSIA, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM are not eligible to apply. However, persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.
We link to the official instructions, the interim regulations, the State Department press release and more from our "Lottery" page at
Do you need an attorney to apply for the lottery? We don't think so. See the transcript of our online chat "How to Enter the Green Card Lottery... Without Paying an Attorney" at
Do you need an attorney if your application is selected? It is a good idea since of the 100,000+ "winners" notified by the State Department, only 50,000 can actually become permanent residents under the law. We would be pleased to assist any of tml5. Immigration Trivia Quiz: The Write Stuff This month's Immigration Trivia Quiz can be found at
Two years ago, we featured our first video. In May 2001, after I testified before the Senate Subcommittee on Immigration, I found that even though the Senate videotaped all of its legislative hearings, it did not make them available for viewing on its web site. So we purchased the video and a portion of it available on our web site at
The topics and dates of these hearings are as follows:
This memo answers some, but not all, of the questions that have been plaguing immigrants and their attorneys regarding the 180-Day rule during the past three years. It provides guidance to the CIS Service Centers and to the public.
By way of background, §106(c) ("The 180-Day Portability Rule") of AC-21 provides as follows:
(c) INCREASED JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS- (1) Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following new subsection:
(j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE- A petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.'.
(2) Section 212(a)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A)) is amended by adding at the end the following new clause:
(iv) LONG DELAYED ADJUSTMENT APPLICANTS- A certification made under clause (i) with respect to an individual whose petition is covered by section 204(j) shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the certification was issued.'.
With the huge amount of layoffs and terminations, particularly in the information technology sector, which occurred after the enactment of AC-21 in 2000, a host of questions were raised as to how this section of the law should be interpreted.While the CIS still has not issued regulations to implement the law, it has published policy memoranda which have clarified how the agency interprets the 180-Day Portability Rule.
The first of these memoranda was issued on June 19, 2001. Pages 7-9 of this 11-page memo discuss the 180-Day Portability Rule. The memo states that when an applicant with a pending I-485 decides to change jobs and/or employers, he should notify the Immigration Service of his change of intent. The Service should ask the employer to demonstrate that the new job is in the same or a similar occupation as the initial job. The employer letter should contain the job title, the job description and the salary of the new job. To determine whether the new job is the same or similar to the old job, the Immigration Service will consult the Labor Department's Dictionary of Occupational Titles (DOT), the online O*NET classification system or similar publications.
The memo prohibits CIS officers from denying I-485s based on failure to demonstrate that the new job is in the same or a similar occupation as the initial job unless they have consulted, on a case-by-case basis, with CIS Headquarters.
We link to the June 19, 2001 memo from our "Green Card" page at
Questions remained as to the effect of the 180-Day Portability Rule where the visa petition was withdrawn, denied or revoked.
The August 4, 2003 CIS memorandum attempts to answer these questions.
The memo provides that where an I-140 is withdrawn by the employer on or after the 180-day period after the I-485 is filed, and the applicant has not submitted evidence of the new qualifying offer of employment to the CIS, the agency will issue a Notice of Intent to Deny (NOID) the I-140. If the applicant answers the NOID by submitting evidence of a new qualifying offer of employment, the I-140 will remain valid and the I-485 will receive regular processing.
However, if the applicant fails to establish that the offer of employment is in the same or a similar occupation, or if he does not respond to the NOID, the I- 485 may be immediately denied.
If the I-140 is either withdrawn or revoked before the I-485 has been pending for 180 days, the BCIS may deny the I-485. If the I-140 is revoked because of fraud, the CIS may deny the I-485 immediately.
The memo reminds Service Center Directors that there is no requirement that the applicant be employed by the petitioning employer or be the subsequent employer in order to qualify for adjustment of status.
We link to the August 4, 2003 memo from our "Green Card" page at
American Immigration Lawyers Association
Interactive Workshop on Occupations
My topic is "Allied Health Care Professionals".
Ellie Najfabadi, Esq. from our law firm will discussing "Doctors".
For program and registration information, see
Immigrant Legal Assistance Project
Los Angeles Country Bar Association
My topic is "Introduction to Immigrant Visas".
For program and registration information, see
American Immigration Lawyers Association (AILA)
New England Chapter 2003 Conference
"Advanced Immigration Solutions for Health Care and Bio-Tech"
My presentation will concern the Immigration of Foreign-Born Physicians
For more information, see
27th Annual Conference in Immigration and Nationality Law
University of Texas School of Law
My presentation is entitled "Using the Web to Practice Immigration Law".
For program and registration information, see
Practising Law Institute
36th Annual Immigration & Naturalization Institute
For more information, see
Association of Nursing Executives (AONE)
"Foreign Nurse Recruitment: Getting It Right"
My topic is "Immigrating Foreign Nurses - Is the Door Opening?" I will also participate in a general Q & A with several presenters, including Barbara Nichols, the Chief Executive Officer of the CGFNS.
See the agenda at
Since 1999, we have served as the official immigration experts for About.com. We have participated in dozens of free chats since then. Our chats always focus on a particular subject.
Our latest chat, "Understanding the 180-Day Portability Rule: The New BCIS Memo" took place on August 25. The chat transcript and those of our previous chats are posted online on our "Chat" page at
On August 11, 2003, at 7:12am, we received the following message:
Dear Mr. Shusterman,The answers to the August 2003 Immigration Trivia Quiz are as follows:
Mexico Mel Almada 09-08-1933 Greece Al Campanis 09-23-1943 Jamaica Chili Davis 04-10-1981 Japan Masanori Murakami 09-01-1964 Korea Chan Ho Park 04-08-1994 Philippines Bobby Chouinard 05-26-1996 Sierra Leone Tomas de la Rosa 07-17-2000 Thanks!
L-Z- (A computer professional born in the PRC.)
September 15, 2003
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
"In the absence of that immigration, you simply could not have generated the economic growth that the U.S. produced (in the 1990s)."
- Paul Harrington, Northeastern University, June 2003 (Mr. Harrington is a population expert. His quote followed the publication of a report that the U.S. birthrate had fallen to its lowest level since 1909.)
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