SHUSTERMAN'S IMMIGRATION UPDATE
(September 1997)

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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 Two, Number Nine

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

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CONTENTS:

NEWS FLASH: DV-99 Visa Lottery Starts October 24, 1997

1. October 1997 State Department Visa Bulletin

2. Latest Processing Times for INS and Labor Department

3. H-1B Cap Reached - What Happens Now?

4. Immigration Law One Year Later: Looks Like A Lemon

5. Health Care Workers: Consumer Protection or Pork Barrel?

6. Immigration Trivia Quiz: Actress and Inventor

7. Finding Certified Immigration Specialists on the Internet

8. Physicians: Federal Gov't to Pay Hospitals Not to Train MDs!

9. Physicians II: New USDA List, Update on HUD, VA and USDA

10. Answers to August and September's Immigration Trivia Quizzes

1. October 1997 State Department Visa Bulletin

Most of the Family categories moved forward three weeks or less, with the exception of the worldwide family 1st preference category (adult, unmarried sons and daughters of U.S. citizens) which advanced over ten months to January 1, 1995 after regressing three years in August. However, the Mexican family first preference category regressed ten months. All in all, not very encouraging news for the first month of the fiscal year.

Most of the Employment categories remained "current" (no backlogs) except for the unskilled category which advanced from 1988 to January 1, 1990. For housekeepers worried about the three-year entitlement bar this may be a case of too-little, too- late. Similarly, while the quota for religious workers returns to "current", the category is schedule to expire on September 30. The India 2nd preference category (persons of exceptional ability and advanced-degreed professionals) regresses 22 months to December 1, 1995 while the India 3rd preference category (professionals and skilled workers) stays put at December 8, 1995.

The State Department has the following discouraging words for Chinese and India employment-based applicants:

"In recent weeks, INS has used very large amount of Employment preference visa numbers for adjustment of status cases for CHINA- mainland born and INDIA Employment preference applicants. If visa number use continues at the current heavy level, the CHINA- mainland born chargeability may become oversubscribed as early as November, with visa cut-off required for some or all or the Employment FIRST, SECOND and THIRD preference categories.

The INDIA Employment Second preference category has become oversubscribed for October with a cut-off date of 01DEC95. The establishment of a cut-off date for the INDIA Employment First preference at some future point cannot be ruled out. A retrogression of the INDIA Employment Second and Third preference cut-off dates during the coming months is also possible , if the current heavy demand for visa numbers continues."

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 Processing Times for INS and Labor Department

The lists containing the waiting times of each center include 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 page 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

You can also click above to check the processing times of your local INS District Office, your Department of Labor Regional Office and your State Employment Service Agency. These waiting times are compiled by volunteer attorneys and are usually posted two to three months after the fact.

3. H-1B Cap Reached - What Happens Now?

Although the "moratorium's" duration this year is only one month, the event made front-page news in the Wall Street Journal and USA Today. Computerworld did a thoughtful article on the subject, realizing the disproportionate effect that the future periods of visa unavailability would have on the high-technology sector.

With thousands of H-1B petitions being submitted to INS during September, it seems likely that next year the cap may be reached as early as June or July.

With a national unemployment rate of less than 5% and many of the best and brightest computer scientists, researchers and professionals graduating from U.S. universities being foreign- born, wouldn't this be an excellent time to scrape the inflexible 65,000 cap?

4. Immigration Law One Year Later: Looks Like A Lemon

A. Entitlement Bars

The new law requires aliens who have been unlawfully present in the U.S. for a consecutive period of 180 days starting on April 1, 1997, who departed the U.S. after the 180 days, and who seek to return to the U.S., be barred from doing so for a period of three years. Although the entitlement bars start to affect lives on midnight, September 27, 1997, INS regulations have yet to be published. Even so, the bar expands to ten years on April 1, 1998 for persons who have been unlawfully present for one year or more. What constitutes "unlawful presence" is not as simple in reality as it sounds on paper and INS has changed their opinion regarding this issue on numerous occasions. Yet, just days before the first anniversary of the law, the INS has yet to implement regulations on this subject.

The law, if interpreted literally by INS, would require the separation of husbands from wives and parents from children for periods ranging from a few months to five years or more. Though one influential Congressman predicted the largest voluntary departure of "illegal aliens" in history from the U.S. before September 27, INS officials have yet to notice a substantial increase in potential immigrants exiting the country.

B. Section 245(i)

Last year's immigration law carefully sidestepped the issue of extending section 245(i), the section of law which penalizes persons who have qualified for green cards but who would otherwise be barred from adjusting their status in the U.S. because they overstayed their visas or who otherwise violated the law. Both INS and the State Department strongly support a permanent extension of section 245(i) which is due to expire on September 30, 1997.

Hundreds of thousands of immigrants who overstayed their visas or violated immigration rules in order to reside together with their families but who are seeking to normalize their status may lose their places in line (Waiting times vary from a few months to over 19 years.) if section 245(i) is not extended. Most of those affected are spouses, parents and children of U.S. citizens or permanent residents. Until this matter is resolved, hundreds of thousands of potential immigrants remain unsure whether they should leave the country, or stay and pay the fine ($1,000). Ironically, many of these people would be forced to abandon their parents, children or spouses should they leave, while millions of illegal aliens who are not working through the system and are breaking the rules face no such dilemma.

The Senate approved a permanent extension of section 245(i), a measure which raises $200 million annually for immigration enforcement, several weeks ago but the House of Representatives under the spell of extremists like Immigration Subcommittee Chairman Lamar Smith may refuse to sign off on the extension.

C. Affidavits of Support

The new law requires family members petitioning for relatives to sign binding affidavits pledging to financially support such relatives to ensure that they do not become dependent on government assistance. Though regulations implementing the program were to be released by the INS in December 1996, none have been forthcoming. The program, therefore, cannot be enforced.

D. The Health Care Worker Boondoggle

The new law prohibits foreign-born health care workers such as nurses and therapists from obtaining temporary visas or green cards until they can prove they are as qualified as U.S.-born workers. The private organization designated to assure compliance is located in the home state of the senator who sponsored this provision of the bill. The INS has yet to release regulations implementing this section. The law, which was to have become effective immediately on enactment (September 30, 1996) is ambiguous as to which health care workers are covered. Consequently, no health care workers have been granted green cards since the bill was passed. In addition, even foreign nationals who trained in U.S. schools and are currently licensed and treating patients in the U.S. are required to complete the credentialing process. Even though the program is not in place, hundreds of health care workers have already paid the organization $325 or more for credentialing packages. Will they get their money back if their professions are not covered?

See Topic #5 below for a more complete update of this subject.

E. Workplace and Border Enforcement

In 1986, Congress decided to address the problem of illegal immigration by punishing the employers of illegal immigrants. Yet, in the eleven years since, not a single employer has gone to jail for hiring illegal laborers. The 1996 law places much greater emphasis on patrolling the border with Mexico, while sanctions against employers of illegals remain minimal. The result? Border points of entry continue to shift away from highly patrolled areas to less patrolled areas. Incidents of violence and death have increased. Tensions with Mexico mount. The tide of immigration goes unstemmed, while taxpayer costs to enforce the law double and triple.

When it comes to immigration, Congress is like a speeding driver whose car is careening out of control, but never checks his rearview mirror to assess the damage he may have caused. Immigrants may not be a powerful political constituency, but given our heritage, they deserve to be treated fairly. Now that a year has passed, I believe it is time to reassess our immigration policy to make sure it is both efficient and equitable.

5. Health Care Workers: Consumer Protection or Pork Barrel?

The main effect of the law has been to severely restrict the ability of those immigrants who play by the rules to achieve permanent residence in the U.S.

A perfect example of this is section 343 which provides that health care workers must be proficient in English and that their education be equivalent to U.S.-trained health care workers. Who could argue with such laudable objectives? Well, to be honest, I had a few reservations about the new requirements from the beginning.

Why? Isn't it the responsibility of the states, not the federal government, to license health care workers? Hasn't this system of state licensure worked well?

My skepticism turned to outright cynicism when I learned that the agency designated to assure compliance with the new federal requirements (the Commission on Graduates of Foreign Nursing Schools - "CGFNS") was located in the state of the senator who sponsored the legislation.

The legislation did not seem to be very well thought out. Firstly, it became effective immediately upon the enactment of the law on September 30, 1996. Didn't it stand to reason that INS and the Department of Health and Human Services (HHS) would need some time to issue regulations? Second, the law was less than clear on a number of points - Would U.S. trained and licensed health care workers already employed in the U.S. be subject to the new requirements? Which occupations would be covered? How about health care professionals trained in the U.S.?

INS largely ignored the new requirements until early in 1997. See

Applications for permanent residence for all health care workers (with the exception of physicians - Why did the law exempt physicians?) were to be held "in abeyance".

I wrote a letter to INS expressing some of my concerns on March 20, 1997. See

INS's reply to my letter on April 11, 1997

did little to alleviate my concerns.

I flew to Washington, D.C. and together with a group of other immigration lawyers, meet with top officials concerning this and other issues. When would regulations be issued? Soon, we were promised.

In June, INS announced that the affected occupations would be as follows: 1. Nurses, 2. Physical Therapists, 3. Occupational Therapists, 4. Speech Language Pathologists, 5. Medical Technicians, and 6. Physicians Assistants. See

This memorandum promised that "the Service will issue a rule in the near future" on this subject.

However, nothing much happened until August 25, 1997 when the International Commission on Healthcare Professions (ICHP), a division of CGFNS, unilaterally announced they would begin to accept applications under this section of law, all in advance of any INS regulations. See

From ICHP's detailed packet, not included on our web page, I made a few unsettling observations: (1) How could ICHP collect a fee of $325 or more from health care workers when the government had not issued any rules? Would the fee be refunded if the rules did not turn out to be as ICHP expected?; (2) The ICHP list included not six, but 19 occupations, more than triple the number enumerated in INS's June memo. Under what authority could ICHP charge money to unlisted occupations such as Social Workers, Chiropractors, Pharmacists and Dental Hygienists?; and (3) ICHP promised a price break to those health care workers who had their evaluations done by "ICHP-approved education evaluation agencies". We followed their instructions and called them at (215) 349-6721 to get a list of these agencies. We were informed that, at the present time, there were only two approved agencies: ICHP and CGFNS!

Two days later, on August 27, INS issued a memo stating that it would NOT ACCEPT certifications issued by CGFNS until INS had issued appropriate regulations. See

Yet, two days after the INS memo, ICHP announced that they were going ahead with their program, "since INS has promised to issue regulations as soon as possible". See

Maybe Congress should amend the law to study the need for such a program before ICHP and INS go to the mat again. This whole "mountain out of a molehill" scenario would be a hoot if the program had not halted the issuance of green cards for health care workers since the beginning of 1997. Many U.S. hospitals, U.S. patients, and thousands of health care workers have been victims of the law. Who really stands to benefit from the law?

6. Immigration Trivia Quiz: Actress and Inventor

See how many clues it takes for you to guess her identity:

A. She was born Hedwig Eva Maria Kiesler in 1913 in Vienna.

B. As a teenage actress, she became the "trophy wife" of a millionaire arms merchant.

C. Knowing that his wife was opposed to his arms sales to the Nazis, his household servants kept her under virtual house arrest.

D. In order to escape, she placed sleeping pills in her maid's coffee, and caught a train to London.

E. A famous and notorious actress, she starred in films opposite Spencer Tracy and Clark Gable.

F. In 1942, she and composer George Antheil were awarded patent #2,292,387 for a "Secret Communication System" which was the first instance of spread-spectrum communications based on frequency-hopping techniques.

G. Her role in "frequency-hopping" was ignored for decades. However, the same technology was developed by other scientists, and forms the basis for the anti-jamming techniques now used in the U.S. military's $25-billion Milstar communications satellite system.

H. Although she offered her services as an inventor to the U.S. government, she was advised instead to use her celebrity status to sell war bonds.

I. Now that she is 82-years-old and living in Florida, she is finally being recognized by inventor's groups. She has received numerous awards for her invention which appears on various Internet web sites.

Who is she? Give up? See Topic #10.

7. Finding Certified Immigration Specialists on the Internet

To become a Certified Specialist by the State Bar of California Board of Legal Specialization, an attorney must pass a written examination, demonstrate experience based on the performance of a variety of activities related to the area of law in which he or she specializes, participate in continuing education activities in that area of law, and be favorably evaluated by other attorneys and judges familiar with the attorney's work.

Now, visitors to the Legal Specialization home page on the California State Bar web site are able to search for a Certified Specialist in a number of fields, including Immigration and Nationality Law, online. There are presently 129 Certified Specialists in Immigration and Nationality Law in California.

To learn who the Certified Specialists are, their location, and how to contact them, see

Scroll down to "Certified Immigration Attorneys in California".

Click on "Specialist Search" and again on "Legal Specialists Search". You will see a county map of California. Click on the appropriate county, pick a specialty area from a pull-down menu, and click on the word "submit" and you will see an alphabetic list of Certified Legal Specialists in Immigration in the county of your choice.

Both Texas and Florida have similar programs.

8. Physicians: Federal Gov't to Pay Hospitals Not to Train MDs!

As recently as May 30, 1997, the Federal Government (Department of Health and Human Services) published a 140-page listing of medically underserved areas across the U.S. See

Now, hidden deep within the new federal budget agreement is an item which authorizes the federal government to begin paying hundreds of millions of dollars NOT to train physicians!

In late August, the Washington Post revealed some of the details of the agreement. Since the mid-1960's, Medicare has picked up the tab for the training of residents in all of the nation's 1,025 teaching hospitals. However, earlier this year, the federal government embarked on an experiment to pay teaching hospitals in New York State $400 million while they gradually reduced the numbers of young physicians who they trained.

This plan drew an outcry from teaching hospitals across the country which were not located in New York State. So Congress responded by making the program nationwide.

Hospitals which reduce their residency programs by 20% to 25% over the next five years will have the financial blow cushioned by Medicare. For the first two years, Medicare will reimburse the hospital for the entire salary of the non-existent resident. Over the next three years, the payments will taper off.

In essence, the agreement forbids hospitals to increase the size of their residency programs.

Since there has not been a single new medical school accredited in the U.S. for more than 20 years, one can't resist the implication that the new spending program is aimed at reducing the number of IMGs in residency programs.

What does this new program have to say to the huge medically underserved population in the U.S.? "Let them take aspirin!"

9. Physicians II: New USDA List, Update on HUD, VA and USDA

Then, at the end of May 1997, we published an updated version of HPSA's issued by the Department of Health and Human Services (HHS). See

Now, USDA has updated it's list of fully-served HPSA's. See

There is a lot of good news at USDA concerning IMGs. First and foremost, USDA has announced that it has recommenced sponsoring IMGs for employment in Medically Underserved Areas (MUAs).

The new MUA process will work as follows:

A. The J-1 waiver application will be submitted to USDA.

B. If the facility is located in a MUA, USDA will mail a MUA update form.

C. Upon completion, the MUA update form must be sent both to USDA and to HHS.

D. Within approximately 30 to 90 days, HHS will notify USDA as to the need for the waiver. Also, USDA has currently reduced the number of pending J-1 waiver requests to under 100.

In addition, considerable progress has been made concerning the restoration of the J-1 waiver program at two other governmental agencies:

A. A Senate bill has been introduced which would restore the waiver program at the Veterans Administration. There is a possibility that the bill may be passed and enacted into law within the next two months.

B. Senator D'Amato continues to press the Department of Housing and Urban Development (HUD) to restore its waiver program. See

10. Answers to August and September's Immigration Trivia Quizzes

To review the questions, and see the answers (including some interesting biographical information and the country of origin of each of the immigrants), see

and

The answer to this month's Trivia Quiz is femme fatale Hedy (not Hedley!) Lamarr.

Carl Shusterman
September 10, 1997

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