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Volume Eleven, Number Eight

SHUSTERMAN'S IMMIGRATION UPDATE is the most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 45,000 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 X0

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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.

TABLE OF CONTENTS:

NEWS FLASHES:

• AILF Clearinghouse Newsletter - On August 10, the Legal Action Center of the American Immigration Lawyers Foundation (AILF) published their latest Litigation Clearinghouse Newsletter. This issue discusses class action lawsuits challenging delays in the processing of naturalization applications; immigration officials refusing to follow a Ninth Circuit precedent; and a resource for attorneys litigating gender-based asylum claims. See
  http://www.ailf.org/lac/litclearinghouse/litclr_newsletter_81006.pdf

• Cubans - On August 11, the Department of Homeland Security (DHS) announced measures to assist families separated by the Castro regime to reunite. See
  http://www.dhs.gov/dhspublic/interapp/press_release/press_release_0979.xml
  On the same day, the DHS also announced additional measures to combat alien smuggling of Cubans. See
  http://www.dhs.gov/dhspublic/interapp/press_release/press_release_0978.xml

• Deportation - The CIS web site has been enhanced to include the following pages related to removal proceedings:

  1. Immigration Benefits in EOIR Removal Proceedings

  2. Post-Order Instructions for Individuals Granted Relief or Protection from Removal by Immigration Court

  3. Q&A - DHS Procedures for Implementation of EOIR Background Check Regulations for Aliens Seeking Relief or Protection from Removal
  We link to each of these pages from our "Deportation" page at
  http://shusterman.com/toc-dpt.html#A

• Immigration Tracker Newsletter - To law firms who use Immigration Tracker as their online database and provide web access to their client, we link to their August 2006 newsletter at
  http://www.immigrationtracker.com/_newsflash/2006august.html

• Nurses and Physical Therapists - The State Department (DOS) reports that the Schedule A category will remain current in the October 2006 Visa Bulletin. However, DOS estimates that there will be no more than 1,000 green cards available for RNs and PTs come November. In fact, this announcement may result in all visa numbers for RNs, PTs and their family members being used up by the end of October. Health care employers and employees are advised to submit their applications and petitions before the 50,000 immigrant visas are used up, and RNs and PTs become subject to the five-year EB-3 retrogression.

  What effect will this have on the ability of U.S. health care facilities to provide proper care to patients? One has only to read the excellent testimony presented to the Senate Subcommittee on Immigration on August 31 by Phyllis Norman, Vice President of Patient Care Services at Harris Methodist Fort Worth Hospital to see that our country's RN shortage is not going to go away, and that Congress needs to take immediate action to insure the continued supply of foreign-born nurses. See

  http://judiciary.senate.gov/testimony.cfm?id=1801&wit_id=5708

• Passports - On August 14, to enhance border security and to facilitate travel, the Department of State (DOS) began issuing Electronic Passports (e-passports) to U.S. citizens. Production has started at the Colorado Passport Agency and will be expanded to other facilities over the next few months. See the DOS media note at
  http://www.state.gov/r/pa/prs/ps/2006/70433.htm

• PERM Appeal - On July 18, the Board of Alien Labor Certification Applications (BALCA) decided the first PERM appeal against the Department of Labor. The Board found that the Certifying Officer (CO) abused his discretion in denying the application based on a non- material typographical error where the employer, in its motion to reopen, was able to present clear evidence that was in existence at the time the application was filed demonstrating that it was in full compliance with the relevant law. BALCA had erroneously relied on one of its online Frequently Asked Questions (FAQs) rather than on published regulations. The employer, HealthAmerica, due to a typographical error in its online PERM application, had indicated that one of its two required Sunday advertisements had run on a Monday. The electronic PERM program automatically denied the application. When the employer submitted a Motion to Reopen, showing copies of the advertisements, both of them showing that they ran on Sunday, the DOL Certifying Officer rejected the motion. However, BALCA reversed the decision of the Certifying Officer.

  On August 2, the DOL wrote to BALCA requesting that BALCA remand those PERM cases which were held in abeyance pending the decision in Matter of HealthAmerica.

  We link to both the decision in Matter of HealthAmerica and the August 2nd letter from our "Labor Department: Immigration Resources" page at

  http://shusterman.com/toc-dol.html#3A

• Social Security Numbers - The Social Security Administration (SSA) has issued guidelines which permit E-1, E-2 and L-2 spouses to obtain Social Security Numbers without having to first obtain Employment Authorization Documents (EADs) from the CIS. They must show proof that that their spouse is in E-1, E-2 or L-1 status, and present a valid marriage certificate. However, before they are authorized to work, they must obtain an EAD. The new SSA guidelines are online at
  https://s044a90.ssa.gov/apps10/poms.nsf/lnx/0100203500!opendocument

• Special Immigration Status for Civilian Translators - A section of a law recently passed by Congress provides for green cards for Afghan and Iraqi nationals working as civilian translators with the U.S. military. On August 3, the CIS issued a Fact Sheet detailing the requirements and the procedures for applying for such status. See
  http://www.uscis.gov/graphics/publicaffairs/factsheets/Translators_080306FS.pdf

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

• Visa Bulletin - To view the September 2006 Visa Bulletin, see our "Visa Bulletin" page at
  http://shusterman.com/vb.html
  This visa bulletin is noteworthy in that despite September being the last month in the fiscal year, all of the worldwide family-based categories advanced as did the worldwide EB-3 category (by five months) and both the EB-1 and EB-3 categories for India.

• Western Hemisphere - DHS/DOS Announce New Travel Requirements - On August 11, the Department of Homeland Security (DHS) and the Department of State announced proposed requirements, with some exceptions, for citizens of the United States, Canada, Mexico, and British Overseas Territory of Bermuda to present a passport to enter the United States when arriving by air or sea from any part of the Western Hemisphere beginning on January 8, 2007. See
  http://www.dhs.gov/dhspublic/display?content=5797

CONTENTS:

1. Premium Processing Extended to Some I-140 Beneficiaries

The premium processing form (I-907) was modified to reflect this change, and prior versions of the form will not be accepted.

The question is, with the EB-3 category backlogged between four and five years, who will want to spend an extra $1,000 to have their I-140s adjudicated in 15 days only to wait months or years to be able to submit their I-485s?

We believe that very few people will take advantage of this new benefit. However, the following people may wish to consider doing so:

1. Persons with approved labor certifications or PERM applications whose 6th year in H-1B status will expire soon, but whose priority dates are far from current. In order to receive a three-year extension of their H-1B status, they need to have their I-140s approved. Of course, if their labor certifications or their I-140s were pending over one year, they can already obtain one-year extensions of their H-1B status. However, with the cost and hassle of extending their H-1Bs each year, a three-year extension would seem like the way to go. Be advised that even if the I-140 is currently pending, an I-907 can be filed to force the government to adjudicate the petition within 15 days.

2. Persons who have already filed their I-140s and I- 485s before the retrogression, and who want to preserve their ability to change jobs under the 180-day portability rule. Unless and until their I-140s are approved, this is a risky thing to do.

3. Persons with approved labor certifications or PERM applications who are contemplating changing jobs, but whose I-140s are not yet approved. Once their I-140s are approved, they have the ability to change jobs, and apply again under PERM and have new I-140s filed on their behalves. However, without the approval of the first I- 140, they will lose their initial priority dates. Once the I-140 is approved, they will be able to retain the initial priority date.

2. Proposed Reforms for Immigration Courts and the BIA

The AG also promised to give Immigration Judges more resources including more training and additional law clerks.

The union that represents the Judges, the National Association of Immigration Judges, is clearly worried about the implications of the new policies. The same week that the AG announced his recommendation, the union ratified their first labor contract with the government.

Denise Slavin, the union's president worried that performance reviews might compromise the independence of the judges. Dana Marks, the vice president of the union, stated that "performance evaluations are utterly inappropriate in judicial settings. We are unaware of any other judges that are subject to evaluations."

Brian Roehrkasse, a spokesman for the Justice Department, countered that "performance evaluations will not be used to tell judges whether to grant or deny relief, but will focus on their professionalism, reasoning and courteous manner."

Several of the U.S. Courts of Appeals have been sharply critical of many decisions of the Immigration Judges. One reason for this is that the Board of Immigration Appeals (BIA) was largely stripped of members who tended to be sympathetic to immigrants. In his much-criticized "streamlining" regulations, ex-Attorney General John Ashcroft, reduced that the membership of the BIA from 23 to 11, encouraged the issuance of the "affirmances without opinions" by a single member of the Board, and direct the Board to clear out their huge backlog of cases as quickly as possible. As a result, the Federal Appeals Courts have been deluged with immigration opinions to review, many of which are poorly reasoned and/or written.

Although the AG would reverse his predecessor by adding four additional members to the BIA, his recommendations do little to solve the problems that "streamlining" has engendered.

AILA was sharply critical of this omission. In addition, the ACLU's Lucas Guttentag complained that "this report does not address the fundamental problem of poorly reasoned or intemperate immigration judges and the Board of Immigration Appeals' role in dealing with those decisions."

AG Gonzales continues to refer to streamlining as a "success". His plan would provide a complaint process against judges, and would allow judges to sanction lawyers for misconduct. Hopefully, the sanctions will apply not just to private attorneys, but also to government attorneys.

The Justice Department published a list of 22 "Measures to Reform the Immigration Courts and the Board of Immigration Appeals".

We link to Justice Department's press release and the 22 measures from

The Attorney General also requested that the Chief Immigration Judge and the EOIR Director review the recent TRAC study which highlighted huge disparities in the granting of asylum applications, and "if appropriate", make recommendations regarding this issue. See the next topic.

3. Asylum: New Survey of Decisions of Immigration Judges

Generally, a person who has a "well-founded fear of persecution" on the basis of their (1) political opinions; (2) religious beliefs; (3) nationality; (4) race; or (5) membership in a particular social group may apply for asylum in the United States.

The person may apply directly to the Citizenship and Immigration Service (CIS) where an Immigration Examiner may either grant their case, or if they are not in legal immigration status, refer the matter to an Immigration Judge.

Normally, a person must apply for asylum during the one- year period which begins when he enters the U.S. although there are many exceptions to this rule. Those who have been convicted on a particularly serious crime or who have persecuted others are ineligible for asylum.

The new study, which was conducted by the Transactional Records Access Clearinghouse (TRAC) of Syracuse University found wide disparities among the more than 200 Immigration Judges across the U.S.

Although each case is different, and one would hardly expect Immigration Judges to approve and deny exactly the same percentage of asylum applications, the TRAC study found vastly different percentages of approvals and denials, even among Immigration Judges in the same city for applications submitted by persons of the same nationality.

For example, examining the results of decisions in New York City involving nationals of the Peoples Republic of China (PRC), the study found that one Judge denied 94.5% of such applications while, at the other end of the spectrum, another Judge denied only 6.9% of asylum applications submitted by PRC nationals.

The study provides valuable biographical information about each Immigration Judge in the country, details the percentage of asylum applicants who appear before each Judge according to nationality and ranks each Judge according to the percentage of asylum applications that he or she denies.

This information will undoubtedly be of interest to asylum applicants and their attorneys.

The study does not examine the facts of any individual cases nor the percentage of each Judge's cases which were reversed by either the Board of Immigration Appeals or by the Federal Appeals Courts.

A considerable number of Federal Appeals Court decisions have harshly criticized the practices and decisions of individual Immigration Judges. This may be exacerbated by the lack of proper oversight by the Board of Immigration Appeals, especially in recent years.

Sending a person with a valid asylum claim back to his country may result in his persecution or even his death. It is important that each applicant receive a full and fair hearing, and that the result in his case not be predetermined simply by the nature of the Immigration Judge before whom he appears. Neither should it be determined solely by the experience and the skill of the attorney who represents him.

It stands to reasons that blatantly unfair and incompetent Immigration Judges, members of the BIA and attorneys should be disciplined.

The TRAC statistical study is only a starting point. There is no particular percentage of asylum applications that an Immigration Judge should approve or deny. The Judge's decision should be based on the facts of the case, and on whether the "well-founded fear" standard was met.

This requires that the transcripts of individual hearings be analyzed. It also requires that there be a full and fair administrative and judicial appeals process.

The TRAC study deals solely with asylum, and strongly suggests that there are significant injustices with the present system. One wonders how much greater the problems with the Immigration Court system are with respect to discretionary applications where Congress has eliminated the right of the applicant to judicial review.

We link to the results of the TRAC study from our "Deportation" page at

4. Success Story: Saving a Scientist's NIW from Revocation

We did not share Dr. F's optimism. Five weeks after his NIW was approved, a landmark case (Matter of New York State Department of Transportation) completely altered the rules according to which waivers had been granted. In this case, the Immigration Service established very strict rules which prohibited many people from obtaining NIWs. See

We warned Dr. F of this possibility prior to his interview and, sure enough, the immigration officer refused to make a decision and returned Dr. F's green card case back to the INS Service Center. We cautioned Dr. F that this was not a positive development, and that he should consider pursuing a green card through an alternate route in the likely scenario that the INS would revoke his NIW. Dr. F took our recommendation under advisement, and let us know he would pursue other green card avenues through his current employer and their own counsel.

Time passed by, and we did not hear from either Dr. F or the INS/CIS.

Finally, in January 2006, we received a Notice of Intent to Revoke from the CIS. The news got worse from there: when we contacted Dr. F about the matter, he confessed that his employer had failed to follow through and pursue permanent residency for him. If his NIW was revoked, he would no longer have any legal grounds to obtain a green card, and no nonimmigrant status to allow him to remain in the U.S. while restarting the green card process. We had precisely one month to respond to the notice and convince the Immigration Service not to revoke his NIW!

We approached this problem from two different angles. First, we argued on technical grounds, that revocation of Dr. F's waiver was inappropriate, as certain notification requirements established by a related, 2004 decision by the U.S. Court of Appeals for the Second Circuit (Dr. F lived and worked in New York.) had not be complied with. This ruling had not been followed by the Immigration Service. While it was our contention that this ruling pertained to Dr. F's case, such an interpretation would ultimately fall to the adjudicating officer, and it was therefore risky to base our response solely upon this argument.

We also argued, in the alternative, that Dr. F fully met the requirements for obtaining an NIW as enunciated in Matter of New York State Department of Transportation. We demonstrated with copious evidence that (1) Dr. F's field of endeavor was "national in scope" (High-energy physics); (2) Dr. F was employed in an area of "substantial intrinsic merit" (The Notice of Intent to Revoke expressly admitted "that the activities of a researcher in [Dr. F's field] met the requirements of 'substantial intrinsic merit'"); and that (3) It would "adversely affect the national interest" if Dr. F's employer was forced to pursue a PERM application. PERM applications are filed for positions that may be filled by U.S. workers who meet the minimum requirements for the job. In this case, no U.S. scientists were expert in Dr. F's precise area of high- particle physics. He had been performing his very specialized scientific research for over a decade. Moreover, it would be obviously in our country's interest to keep someone like Dr. F, rather than have his expertise used to advance space technology or even weaponry in another country; and (4) that Dr. F possessed a degree of expertise "significantly above that ordinarily encountered" in the sciences. His scientific achievements had received attention in the national press, he was widely published in his field and his work was widely cited in top scientific journals.

In other words, we pulled out all the stops to demonstrate that even despite the 1998 NIW guidelines imposed retroactively on Dr. F, he nevertheless met all of the criteria for obtaining a waiver. The CIS agreed, did not revoke his NIW and instead approved his green card!

To read more of our Immigration Success Stories, see

5. Immigration Trivia Quiz:

Her first stimulating and irreverent offering is entitled "Animation Immigration" and can be found at

6. BIA Rules In Favor of Children Who Aged-Out Despite CSPA

But what about the children who aged-out despite CSPA?

CSPA provides a remedy for these children, but the CIS has failed to explain the meaning of an important provision of the law for the past four years. Now, in an unprecedented decision, the Board of Immigration Appeals (BIA) has interpreted the law in a way that will benefit many thousands of aged-out children whose parents have waited in line many years to obtain permanent residence.

The law amended section 203(h)(3) of the Immigration and Nationality Act to provide as follows:

"RETENTION OF PRIORITY DATE- If the age of an alien is determined...to be 21 years of age or older..., the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition."

On June 16, the BIA, in the case of Maria Garcia, provided guidance as to what this statute means.

Maria and her family are citizens of Mexico. Maria's aunt (her mother's sister) was a U.S. citizen who submitted a 4th preference petition for her mother and the rest of their family back in 1983 when Maria was just 9 years old. Due to the long waiting times in this category, Maria's priority date for a green card did not become "current" until June 1996 at which time Maria was 22 years old, and therefore too old to obtain a green card along with the rest of her family. Her mother, upon becoming a lawful permanent resident, submitted a petition for Maria under the 2B category (unmarried adult sons and daughters of lawful permanent residents). The 2B category also has a backlog of many years.

When the Immigration Service attempted to deport Maria back to Mexico, her attorney, Lawrence Rushton, argued that Maria should be allowed to adjust her status under CSPA. The Immigration Judge disagreed and held that she was removable.

The Judge's decision was reversed by the BIA.

The BIA looked at the language of section 203(h)(3) of the law, and held that the "appropriate category" mentioned in the law refers to the 2B family-based preference category since Maria, now 32, is still the unmarried daughter of a lawful permanent resident. It also held that the law permits Maria to retain the 1983 priority date when her U.S. citizen aunt petitioned for her mother and the rest of her family. Because this makes her eligible to adjust status under section 245(i), the BIA remanded the case to the Immigration Judge to consider Maria's application for adjustment of status under CSPA.

We hope that the BIA will designate this important decision as a precedent, and that the CIS will issue a memorandum agreeing that the BIA's interpretation of this section of the statute is correct.

We link to the full text of the BIA's decision in this case from our "Green Card" page at

7. Official Immigration Government Processing Times