Volume Eighteen, Number Three
SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 40,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 30 years of experience practicing immigration law.
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Newsletter US Immigration Update March 2013
TABLE OF CONTENTS:
1. What Will Comprehensive Immigration Reform (CIR) Look Like?
2. Are You Ready for H-1B Filing Season?
3. Shusterman’s Upcoming Immigration Law Seminars
4. Congress Extends Violence Against Woman Act (VAWA)
5. Success Story: Saving a Client’s Job
6. Immigration Trivia Quiz: California Landmarks Designed by Immigrants
7. State Department Visa Bulletin for March 2013
8. Immigration Government Processing Times
9. Ask Mr. Shusterman: Supreme Court Rules that Padilla is Not Retroactive
10. Winner of Our February 2013 Trivia Quiz!
- AAO Backlogs Continue to Decrease – An AAO processing report shows that as of February 1, 2013 processing times for appeals have decreased to 14-16 months for I-140s for Skilled and Professional Workers (EB-3) and to 7-8 months for I-601 waivers.
- CSPA Updates: Extension to Respond – On January 25, the Justice Department filed a Petition for a Writ of Certiorari to have the Supreme Court review our CSPA victory in the 9th Circuit. On February 22, the Supreme Court granted us an extension to file a response until May 3.
- ICE Releases Detainees Due to Sequester – Due to impending federal budget cuts, ICE released immigrants from detention facilities across the country on February 25, although these individuals’ cases have not been dropped and ICE will still deport them if ordered by an immigration judge.
- Immigration “How-To” Videos – Our 40+ “How-To” Immigration Videos have been viewed over 380,000 times. Subjects include how to obtain a green card, become a U.S. citizen, win your case in immigration court and select an immigration attorney. Our video Green Cards through Marriage has been viewed almost 150,000 times. We encourage you to take advantage of this free resource.
- LCA System Enhancement – On February 25, the Department of Labor debuted an enhancement to its iCERT Labor Condition Application (LCA) online system that allows authorized users to reuse previously filed LCAs to create new cases in an effort to help save time and money.
- Napolitano on ICE Detainee Release – Following the release of hundreds of immigration detainees by ICE in the last week of February, Homeland Security Secretary Napolitano said she wishes the release of these low-risk individuals could have been more spread out to avoid concerning the public and Congress.
- Public Inquiry Form for U.S. Embassy in Montreal – The US Embassy in Montreal, Canada now only accepts inquiries submitted via the online public inquiry form on its website.
- Provisional Waiver Program Starts March 4 – Beginning on March 4, thousands of immediate relatives of US citizens who entered the US without inspection or are otherwise ineligible to adjust their status will be able to obtain I-601A provisional waivers before leaving the US for their green card appointments abroad.
- Top H-1B Users Are Offshore Outsourcers – According to recent government data, the largest number of H-1B users are offshore outsourcing firms, either based in India or based in the U.S. with most of their employees located overseas.
- Qualifying as Executives or Managers for L-1 Visas – Recruiting Trends recently published an article I wrote about what recruiters need to know regarding sponsoring multinational executives and managers for L-1 non-immigrant visas.
1. What Will Comprehensive Immigration Reform (CIR) Look Like?
President Obama, the Senate, the House of Representatives, the Democrats, the Republicans, business and labor all have their own ideas about what comprehensive immigration reform should look like. For the next 6-7 months, expect dozens, or even hundreds, of different ideas to be presented to the public. If you want to have an impact on policy, it’s time to join in the debate.
President Obama has made immigration reform one of the key issues of his second administration. He has vowed not to sign any immigration bill that fails to offer a “pathway to citizenship” for the undocumented. He also believes that reform of our broken legal immigration system is an essential part of fixing our economy. He has stated that “real reform means fixing the legal immigration system to cut waiting periods and attract highly-skilled entrepreneurs and engineers that will create jobs and grow our economy.” The President’s backup immigration bill was made public in February.
In addition to attracting more STEM workers to our country, let’s not forget that 30 to 40 million more Americans will have health insurance come January 1, 2014 under the Affordable Care Act. Where are the doctors and nurses who will treat them? Let’s not wait until 2014 to increase the number of physicians, nurses and therapists that we will need to treat our fellow countrymen and women. CIR should include both a Schedule A category and an expansion of our existing J waiver programs.
Both the Senate Judiciary Committee and the House Judiciary Committee held hearings on immigration reform in February. The Senate’s “Gang of Eight” has announced certain general principles and will introduce a CIR bill in the Senate in March or April. The House will probably refrain from taking action until the Senate approves a bill. A large number of House GOP members are uncomfortable with a pathway to citizenship, even if the pathway is 8-years-long as proposed by the President.
There is, however, wide support for offering work permits (“provisional lawful status”) to most of the 11 million undocumented persons in the U.S., a pathway to citizenship for the DREAMers, a faster path to green cards for STEM grads and work permits for agricultural workers. Expect also that E-Verify, or something like it, will become mandatory on a nationwide basis.
The U.S. Chamber of Commerce and the AFL-CIO have agreed on certain general principles with regard to immigration. When business and labor can agree on immigration reform, you can expect to see a new law enacted before the end of the year.
Consider also that a number of standalone immigration bills have been introduced in Congress since the beginning of the year. Some of these have bipartisan support, and could be incorporated into the final CIR bill.
The Immigration Innovation (I-Squared) Act (S. 169) has 16 sponsors, both Republicans and Democrats, and would increase the number of H-1B and employment-based immigrant visas. The Fairness for High-Skilled Immigrants Act of 2013 (H.R. 633), another bipartisan bill would eliminate per-country quotas for the employment-based preference categories.
I participated in a meeting with a Member of Congress and some of my fellow immigration attorneys this past week. I felt a little sorry for the Representative as the attorneys tossed out one idea after another, most of them worthwhile, but probably incomprehensible to a non-immigration attorney. Let’s junk the permanent bar, allow crewmen to adjust status, allow Federal Courts to review agency decisions, bring back section 245(i), etc., etc.
It’s going to be an interesting year. To get the latest information on CIR on a daily basis, you may wish to join the conversion either on our Facebook page or join the Immigration Forum, our new Google+ community.
2. Are You Ready for H-1B Filing Season?
By April 1st, the U.S. Citizenship & Immigration Services (USCIS) will begin accepting new petitions for H-1B professionals. Since there is an annual numerical cap of only 85,000 H-1B visas (65,000 for the general cap, and 20,000 for those with advanced degrees in the U.S.), it is very important that a properly completed H-1B Petition be submitted to the USCIS on a timely basis. A properly completed H-1B Petition will include the following documents:
- A certified Labor Condition Application (LCA) showing that the employer agrees to meet or exceed the prevailing wage for the position;
- Evidence that the occupation requires a minimum of a bachelor’s degree in the field of specialty; and
- Evidence that the H-1B professional’s educational credentials and/or experience are sufficient to meet the requirements of the position.
Upon approval of the H-1B Petition, the professional will be able to commence his or her employment on October 1, 2013. The initial period of employment in H-1B status is granted for up to three years and may be extended for an additional three years. H-1B professionals whose employers have take timely steps to apply for permanent residence on their behalf may receive post-6th year extensions. Once an H-1B professional has been counted towards the H-1B cap, he or she can obtain H-1B extensions and change employers without regard to the cap.
While most H-1B professionals are foreign-born and foreign-educated, some are educated in the U.S. These persons obtained their undergraduate or graduate degree while in F-1 Status. F-1 students obtain Optional Practical Training (OPT) upon graduation and are able to work for their H-1B employer prior to obtaining approval of an H-1B Petition. They may also be able to extend their OPT between April 1st and October 1st using the USCIS’ “cap-gap” rule.
A properly completed and timely filed H-1B Petition makes all the difference between getting one of the coveted H-1B visa numbers or getting your H-1B Petition rejected or denied. However, in the event that the numbers run out by the time that you are able to find an employment opportunity, don’t despair! Certain jobs are exempt from the H-1B numerical caps. These include employment “at” universities, at “affiliated” or “related” organizations or at non-profit or governmental research institutions.
Both employers and professionals should keep in mind that while the H-1B cap was not reached until December 22 in 2011, last year the cap was reached on June 11. This year, the cap could be reached even earlier, perhaps in April or May. As usual, we will be posting H-1B cap updates as information is released for this year’s filing season. Should the cap be reached during the first 5 days of April, the USCIS will conduct a lottery to determine which H-1B petitions will be considered.
3. Shusterman’s Upcoming Immigration Law Seminars
- Immigration Legal Assistance Project
Immigration Law Training Course
Los Angeles County Bar Association Offices
Los Angeles, California
March 21, 2013
Topic: “Immigrant Visas”
- Federal Bar Association (FBA)
Immigration Law Seminar
University of Memphis Law School
May 17-18, 2013
Topic 1: “The Child Status Protection Act”
Topic 2: “Immigration for Physicians”
For more information, please see the conference brochure.
- American Immigration Lawyers Association (AILA)
Hilton San Francisco Union Square
San Francisco, California
June 29, 2013
Topic: “Informational Marketing Techniques to Start and Grow Your Practice”
- Professionals in Human Resources Association (PIHRA)
California HR Conference
Anaheim Convention Center
August 26-28, 2013
Topic: “Employer’s Responsibilities under the New Immigration Law”
To attend this event, register online.
4. Congress Extends Violence Against Women Act (VAWA)
by Veronica Montagnese
There are many definitions of domestic violence. Some are in the statute or regulations, others are definitions used in practice, but all include patterns of coercive conduct used by one person to control and subordinate another in an intimate relationship. These behaviors may consist of physical, sexual, emotional, and economic abuse.
Domestic violence is a serious and long-standing problem in the United States as well as in many other parts of the world. Approximately one of every five women in the U.S. is raped at least once in her lifetime and one in four is a victim of a violent attack by an intimate partner. These are the alarming statistics released by a study by the Centers for Disease Control and Prevention. According to the research, almost 80% of female victims were raped for the first time before reaching 25. Moreover, one in 71 men said he was raped sometime in his lifetime, and nearly 28% of these victims said they were raped when they were 10 years of age or younger. In addition, many domestic violence cases go unreported, sometimes out of dependence or fear of reprisals, and some illegal immigrant victims stay silent out of fear of deportation.
Some abused noncitizens stay in abusive relationships because their abusive spouse holds a vital key to their immigration status in the United States. Some spouses use the family visa process to control the undocumented partner and refuse to file the family visa petition. Others threaten to withdraw the petition or even call the ICE to deport a spouse who leaves, objects, or calls the police to report the abuse.
Congress did not want US immigration laws to be used as a weapon in an abuser’s arsenal, so in 1994 it passed the Violence Against Women Act (VAWA) in order to permit victims in these dangerous situations to obtain lawful status without having to rely on abusive spouses to either start or complete the process.
In the words of the National Domestic Violence Hotline, “The VAWA is a landmark piece of legislation that improved criminal justice and community-based responses to the problem of domestic violence, dating violence, sexual assault, and their consequences in the United States.” Under VAWA’s major provision, an abused spouse or child of a United States Citizen or Lawful Permanent Resident can self-petition for lawful status in the United States.
Unfortunately, even in 2013, the status quo is still unacceptable. That is why the Justice Department has proposed the reauthorization of the law including important updates and improvements to VAWA.
In 2011, the law expired and, in 2012, the law was up for reauthorization in Congress: Different versions of the legislation have been passed along party lines in the Senate and House.
Last April, the legislation reauthorizing VAWA was passed in the Senate (S. 1925) and succeeded in strengthening programs to assist victims and survivors of domestic violence, dating violence, sexual assault, and stalking. The Senate version consolidated programs to ensure that the limited resources were going to be used to help as many victims as possible; in particular, VAWA assigned funds for the support of essential services for victims, such as shelters and rape crisis centers, hotlines and legal services. The bill also sought to respond to the high rate of violence against women in tribal communities by strengthening concurrent tribal criminal jurisdiction over sexual perpetrators in Indian lands.
Moreover, one of the components included in S. 1925 is the need to address the fact that college students experience sexual violence more than other demographic groups, and for this reason it set out a clear framework to promote transparency and accountability, and it addressed the need for education and awareness in the campus community.
The Senate bill also introduced important changes to the U Visa regulations, adding stalking to the list of qualifying crimes and making available unused U Visas from previous years. Other improvements concerned training law enforcement, victim service providers, and court personnel regarding how to identify and manage high-risk offenders and the referral of high-risk victims to crisis intervention services.
Unfortunately, the House version of the bill (H.R. 4970) stripped many of these necessary improvements, including programs for immigrant, LGBT, and Native American victims. The House version of VAWA prioritizes some victims over others and reverses the progress that the Senate’s version made. H.R. 4970 limits U Visa programs, and bars the use of unused visas and limits the U Visa certification process, discouraging victims from coming forward to cooperate with law enforcement.
Moreover, the House’s VAWA fails to address the crisis of violence against American Indian women by not recognizing tribal court authority to hold perpetrators accountable. It undermines the strength of the lifesaving housing protections in VAWA and does not include fundamental provisions needed to reduce violence against women.
Time went by, the two bills were pending reconciliation, and a final bill never reached the President’s desk in 2012.
On February 11, 2013, the Senate easily passed the Violence Against Women Act reauthorization bill. Interestingly, a number of Republicans who voted against the VAWA bill last year ended up voting for it this year. The bill authorizes $659 million over five years for VAWA programs. It also expands VAWA to include new protections for LGBT and Native American victims of domestic violence, to give more attention to sexual assault prevention and to help reduce a backlog in processing rape kits.
President Obama said in a statement, “It’s now time for the House to follow suit and send this bill to my desk so that I can sign it into law.”
Domestic violence is a serious and widespread problem that needs to be confronted. In order for this to take place, we need legal instruments suited to punish offenders and hold them accountable, appropriate tools to keep communities safe while supporting victims, as well as cultural change: a sensitization about the seriousness of such crimes and their severe consequences on both victims and communities.
During the past 18 years, VAWA has made incredible inroads to end sexual assault and domestic violence. It doesn’t make sense to undo the progress made. What does make sense is to immediately strengthen programs that assist victims and provide law enforcement with appropriate tools in order to break the cycle of violence and promote a cultural change, because, in the words of Vice President Joe Biden, “delay isn’t an option when three women are still killed by their husbands or boyfriends every day. Delay isn’t an option when countless women still live in fear of abuse, and when one in five have been victims of rape, […] this issue should be beyond debate — the House should follow the Senate’s lead and pass the Violence Against Women Act right away.”
We are pleased to add to the above article that, on February 28, the House passed the bipartisan version of the VAWA Reauthorization and that the bill is headed to the President’s desk for his signature.
5. Success Story: Saving a Client’s Job
As the boss of a 7-attorney law firm, I don’t usually hear from our clients unless there is a problem.
A few weeks ago, the HR manager of one of the hospitals that we represent sent me an e-mail message about a particular registered nurse for whom the hospital had retained us to obtain permanent residence back in 2007. Because the wait in the Philippines EB-3 category is over 6 ½ years in length, the nurse was still waiting for her priority date to be current in order to get her green card.
The person in our office who was handling this matter was in an Immigration Court hearing in another city and could not be reached. I opened our case tracking system, and searched for the nurse’s name. Her file revealed that we had submitted her I-485 in the summer of 2007, and that her priority date was almost current. Ever since 2007, we had obtained multiple EADs for her to stay in the U.S. and be employed by the hospital.
However, this year, she delayed having us apply for her EAD until 3 ½ weeks before the expiration date. We had requested an expedite for her, but had not heard back from the USCIS. Her EAD had expired the day before the HR manager called me.
We invite the HR managers of our corporate clients to I-9 seminars to make sure that they remain in compliance with federal immigration laws and that they avoid employer sanctions. This HR manager knew that she had no choice but to terminate the nurse’s employment, but she wanted to run this past me first.
I called the HR manager back. Yes, you’re correct, I told her, you must terminate the nurse. You can only hire her back when she receives a new EAD. The manager thanked me, and told me that she would terminate the nurse on the following day. Even though I knew that it was the nurse’s fault, I felt terrible for her.
The next morning, back in the office, I spoke with the person assigned to the nurse’s case. She told me how the nurse ignored our messages and come in to renew her EAD until only a few weeks before it was scheduled to expire. We had called USCIS to request an expedite, but had not heard back.
And just then, the mailman arrived. And…you guessed it. We received a notice from the USCIS that the nurse’s new EAD had been approved.
I quickly called the HR manager, and instructed her to update the nurse’s I-9 form, and not to terminate her employment.
And in another stroke of luck, the nurse’s priority date will be current in March, so neither she nor her employer will have to worry about renewing her EAD again.
6. Immigration Trivia Quiz:
7. Visa Bulletin for March 2013
The Visa Bulletin for March 2013 shows no great advances beyond the family-based 1st preference category for the Philippines which moves forward over 7 months.
Other than that anomaly, all of the family-based categories advance from 1 to 6 weeks.
Most of the employment-based categories continue to be “current”. The EB-2 category for China advances 4 weeks while the EB-2 category for India remains frozen at September 1, 2004. The worldwide EB-3 category advances 6 weeks, 9 weeks for China, and 1 week each for India and the Philippines.
The State Department’s prediction for India EB-2 is glum indeed (and certainly calls for Congressional action to add more visas and eliminate the per-country quotas):
<em>”No movement. Despite the established cut-off date having been held for the past five months in an effort to keep demand within the average monthly usage targets, the amount of demand being received from U.S. Citizenship and Immigration Services (USCIS) Offices for adjustment of status cases remains extremely high. Should the current rate of demand continue, it is likely that at some point the cut-off date will need to be retrogressed in an effort to hold demand within the FY-2013 annual limit.”</em>
The charts below tell the story in more detail:
8. Immigration Government Processing Times
* Citizenship and Immigration Services (USCIS)
The Immigration Service (USCIS) lists its processing times for immigration petitions and applications on their website. 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 or local USCIS office is processing a particular type of petition or application, see Government Processing Times Page.
Administrative appeals of most types of petitions and waivers denied by the USCIS are adjudicated by the agency’s Administrative Appeals Office (AAO) in Washington, DC.
We link to the AAO’s most recent published processing times.
* Department of Labor
The Labor Department’s website contains a tab entitled “PERM Processing Times”. This enables you to see how long it is taking the Labor Department to complete its final review of standard PERM applications, audited cases, standard appeals and appeals where there are government errors.
* Department of State
The State Department’s website 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 various types of temporary, nonimmigrant visas.
9. Ask Mr. Shusterman: Supreme Court Rules that Padilla is Not Retroactive
The petitioner in Chaidez is a long-time lawful permanent resident of the United States who was charged with mail fraud. Her attorney advised her to enter a guilty plea; she was convicted under Federal law and ordered to pay restitution in the amount of $26,000. Unbeknownst to her, a conviction to a fraud crime where the loss exceeds $10,000 constitutes an “aggravated felony” under the Immigration and Nationality Act (INA), which results in near automatic deportation.
When the USCIS learned of her conviction, they sought to remove her from the United States. Chaidez then sought to have her conviction vacated because her criminal attorney failed to advise her regarding the immigration impact of her guilty plea. She argued that the failure to provide her with such advice was in violation of her Sixth Amendment right to effective assistance of counsel.
While Chaidez’s case was pending, the Supreme Court issued its decision in Padilla v. Kentucky. In Padilla, the Supreme Court determined that advice regarding immigration impact of a criminal plea is a requirement under the Sixth Amendment to the U.S. Constitution. This decision appeared to be good news for Chaidez and for similarly situated individuals who received improper advice from criminal counsel (or no advice at all) regarding the immigration impact of their criminal convictions.
And indeed, Chaidez’s fraud conviction was initially vacated due to ineffective assistance of counsel. However the government appealed arguing that the Supreme Court’s decision in Padilla was not retroactive to convictions that were final before the Court’s decision. In Chaidez’s case, her criminal conviction was final in 2004. The Supreme Court decided Padilla on March 31, 2010. Thus the government argued that she could not benefit from the Padilla ruling.
In Chaidez, the Court examined whether the Padilla ruling applies retroactively to people whose convictions were final before the decision was issued. A majority of the justices held that it does not.
The Court first explained that when it announces a new rule, individuals whose convictions are already final may not benefit from the new rule. After examining the lower federal and state court decisions dealing with ineffective immigration advice, the Court determined that Padilla had, in fact, announced a new rule.
Before Padilla, lower courts had routinely determined that advice about deportation was outside the scope of the Sixth Amendment’s right to counsel because it involved only a “collateral consequence” of the criminal conviction. Padilla, in effect, created a new obligation on criminal attorneys when it held that the failure to advise regarding immigration consequences of a conviction violated the Sixth Amendment.
Because Padilla announced a new rule, only individuals whose convictions became final after the Court’s decision can benefit from the ruling.
The dissenting judges argued that Padilla did nothing more than apply the general rule regarding ineffective assistance of counsel “in a new setting.” The dissent argued that the Court’s focus should not be on the decisions of lower courts, but instead on the development of professional standards governing attorneys. They argued that professional norms had required criminal attorneys to provide advice on the deportation consequences of a plea for at least fifteen years prior to Padilla, and that the decision therefore did not announce a new rule. Unfortunately, their reasoning did not carry the day.
What does this mean? For Chaidez, it means that her conviction stands notwithstanding the lack of advice regarding the immigration consequences of her guilty plea. After 35 years as a lawful permanent residence, she faces removal from the United States and separation from her U.S. citizen children and grandchildren.
For other permanent residents with criminal convictions final before March 31, 2010, it means that they cannot rely on the holding of Padilla v. Kentucky to vacate their convictions based on ineffective assistance of counsel. The Court’s holding in Chaidez may present a significant hurdle to these individuals, particularly under ICE’s directive to focus on removal of noncitizens with criminal convictions.
However, those individuals with pre-Padilla convictions may not be completely out of options. The Chaidez decision left open the issue of whether the bar on retroactivity of a new rule applies only when the conviction is federal as opposed to a state conviction. Certain states (for instance, California) have previously held that a failure to advise, or affirmative mis-advice, regarding deportation consequences constitutes ineffective assistance of counsel. Thus, in those states, attorneys may continue to bring arguments of ineffective advice regarding immigration consequences in post-conviction relief challenges, even where the conviction was final prior to Padilla.
Given the complexity of this area of law, noncitizens should seek competent criminal counsel who is familiar with post conviction relief for immigration purposes to determine whether they may have a viable claim.
The Chaidez case is yet another example of why comprehensive immigration reform is needed. Under our current immigration laws, broad categories of convictions, including many non-violent offenses and cases where individuals never serve any jail time are, nevertheless, considered “aggravated felonies.” Such convictions usually result in deportation regardless of how long the individual has lived in the United States; regardless of how much hardship will result to the U.S. citizen spouse, children or parents; and regardless of how the person has since reformed him or herself and contributed to the community. Immigration reform should seek to bring back some measure of discretion, so that Immigration Judges can determine whether deportation is warranted on a case-by-case basis.
10. Winner of our February 2013 Immigration Trivia Quiz!
Certified Specialist in Immigration Law, State Bar of California, Former Immigration and Naturalization Service (INS) Attorney (1976-82),
Served as Member of AILA Board of Governors (1988-97)
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550, Los Angeles, CA 90017, Phone: (213) 623-4592 x0, Fax: (213) 623-3720
“The time has come for common-sense, comprehensive immigration reform. Now’s the time.”
– Barack Obama
President of the United States
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