Volume Fourteen, Number Four
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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.
Published by the Law Offices of Carl Shusterman, 600 Wilshire Blvd, Suite 1550, Los Angeles, California, 90017. Phone: (213) 623-4592 x0.
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Newsletter US Immigration Update April 2009
TABLE OF CONTENTS:
- Legislation: Obama Gives Green Light to Immigration Reform
- Child Status Protection Act: A Tale of Two Families
- Schedule of Shusterman’s Upcoming Immigration Law Seminars
- Labor Department to Revamp PERM and LCA Online Systems
- Success Story: Bringing A Deported Spouse Back to the U.S.
- Immigration Trivia Quiz: What’s Behind Nursery Rhymes?
- Ask Mr. Shusterman: One Way Around the Retrogression
- Immigration Government Processing Times
- Employers: Remember to Use New I-9 Form Effective April 3
- Winner of March 2009 Immigration Trivia Quiz
- AILA’s Executive Director Resigns – On March 18, Jeanne Butterfield, the Executive Director of the American Immigration Lawyers Association (AILA) tendered her resignation. Charles Kuck, AILA President, announced the resignation saying “She leaves us but not the issue. She intends to continue to be part of the broader campaign for immigration reform that is so important to AILA and its members, although she has not yet decided in what new capacity she will continue to serve.”
- Computer Professionals – Everyday, for the past seven years, we search the online computer magazines and link to the most important immigration developments related to computer professionals. See our “Immigration for Computer Professionals” page at
- H-2A Farmworker Visas – On March 13, the U.S. Department of Labor’s Employment and Training Administration (ETA) announced the proposed suspension for nine months of a final rule implementing changes to the H-2A program, which allows U.S. agricultural businesses to employ foreign workers in temporary or seasonal agricultural jobs. The department’s proposed action is open for public comment for 10 days.”Because many stakeholders have raised concerns about the H- 2A regulations, this proposed suspension is the prudent and responsible action to take,” said Secretary of Labor Hilda L. Solis. “Suspending the rule would allow the department to review and reconsider the regulation, while minimizing disruption to state workforce agencies, employers and workers.”The proposed suspension of the final rule will appear in the Federal Register on March 17. The final rule appeared in the Federal Register on December 18, 2008, and took effect on January 17, 2009.The H-2A nonimmigrant program is designed to provide agricultural businesses with short-term foreign agricultural labor when there are not enough domestic workers. Receiving an H-2A labor certification is the first step in the employment-based immigration process to work on a farm.In 2008, the department granted North Carolina, Georgia, and Florida the largest numbers of H-2A labor certifications.The Labor Department’s Office of Foreign Labor Certification will continue to accept and process H-2A applications during the proposed suspension period. Any final action on the proposed suspension will appear in a future Federal Register notice.
- Investors – On March 11, the Immigrant Investor Pilot Program was extended through September 30, 2009 when President Obama signed the “Fiscal 2009 Omnibus Appropriations Bill” into law.
- Liberians – President Obama extended Deferred Enforced Departure of 3,600 Liberian citizens until March 31, 2010. In turn, on March 26, the USCIS automatically extended their EAD work permits until September 30, 2009. See
and a Q & A at
- National Public Radio– Everyday, for the past five years, we link to the most important stories in the immigration world from our “NPR” page. See
- Occupational and Physical Therapists – Recently, immigration lawyers have been forced to appeal numerous I-129 and I-140 denials for Occupational and Physical Therapists licensed to practice in the state of intended employment (many of them already practicing on H-1B visas) who possess B.S. degrees. The denials cite the Occupational Outlook Handbook (OOH) for the proposition that an M.S. in Occupational and Physical Therapy is the minimum educational requirement for entry into these professions. Lawyers looked on in dread as the April 1st beginning of the H-1B submission period loomed. Then on February 19, the Foreign Credentialing Commission on Physical Therapy (FCCPT) wrote to DHS explaining that their reliance of the OOH was misplaced and that a B.S. in Physical Therapy could be sufficient for entry in the professional. On March 6 and again on March 10, the National Board for Certification in Occupational Therapy (NBCOT) wrote two letters to DHS explaining that a B.S. in Occupational Therapy was the minimum educational entry requirement to the profession. On March 26, CGFNS International weighed in concerning Physical Therapists. CGFNS cited USCIS regulations which hold that it is the state’s licensing standards which control the minimum educational requirements for entry into a profession. FCCPT’s, NBCOT’s and CGFNS’ opinions carry a lot of weight since these are the organizations that are designated by the USCIS to determine whether Occupational and Physical Therapists have the necessary education and training to qualify for temporary and permanent visas to the United States. Hopefully, the letters will be accepted as definitive by the USCIS.
- Registered Nurses – In early March, responding to a question from Congresswoman Lois Capps (D-CA), President Obama stated “The notion that we would have to import nurses makes absolutely no sense.” He continued, “and there are a lot of people who would love to be in that helping profession, and yet we just aren’t providing the resources to get them trained, that’s something that we’ve got to fix. That should be a no-brainer. That should be a bipartisan no- brainer, to make sure that we’ve got the best possible nursing staffs in the country. And when it comes to nurse faculty, they get paid even worse than active nurses. So what happens is, is that it is very difficult for a nurse practitioner to go into teaching, because they’re losing money.”The obvious questions raised by the President’s statement are how and when are we going to be able to train hundreds of thousands of RNs?Even if Congress and the President appropriated enough funds to do so in 2009, it would take several years to hire nursing instructors, educate the student nurses and for the new RNs to receive the necessary experience. In the meantime, thousands of American patients are suffering, and many are dying, due to the nursing shortage. The only way to increase the supply of nurses immediately is to reopen the door to foreign-born RNs. This doesn’t cost U.S. taxpayers a nickel. Furthermore, the bipartisan “Emergency Nursing Relief Act” which was introduced in Congress in 2008 would not only help relieve the nursing shortage by creating a special immigration category for RNs and PTs, but would raise millions of dollars for training RNs in the U.S. paid for by the hospitals which sponsor them for visas.We link to both a March 16th article in HealthLeaders Media and a March 23rd article in Modern Healthcare where I was interviewed regarding the increased waiting times for U.S. hospitals to sponsor foreign-born RNs. We also link to a response to President Obama written by the American Association for International Healthcare Recruitment from our “National Shortage of Nurses” page at
https://www.shusterman.com/nurseimmigrationguide/#1 (Link no longer operational.)
- Visa Bulletin – The April 2009 Visa Bulletin was a disaster for persons in the EB-3 category and their employers. The waiting times for professionals and skilled workers on the waiting list to immigrate increased from four to over six years. To view the April 2009 Visa Bulletin, see our “Visa Bulletin” page at
- YouTube “How to” Immigration Videos – Over 20,000 persons have viewed one or more of our “How To” YouTube videos on immigration. One of our recent videos, “Green Cards through Marriage” has been viewed over 7,000 times. In March, we rolled out a new series of videos regarding how to obtain permanent residence in the U.S.: (1) Obtaining Permanent Residence through Adjustment of Status; (2) Obtaining a Green Card using Section 245(i); and (3) Qualifying for Immigration Benefits under the Child Status Protection Act (not yet online). We also “embedded” all 20 of our videos into our web site. We will film more YouTube videos in April. Obtain free information about how you may qualify for immigration benefits by viewing our videos at
1. Legislation: Obama Gives Green Light to Immigration Reform
Will Comprehensive Immigration Reform be passed by Congress and signed into law in 2009?
The answer to this question seems to depend on who you are listening to.
On March 18, President Obama met with the Hispanic Caucus about immigration reform. What did he say? “The president said more than any of us expected him to say,” said Rep. Luis Gutierrez, D-Ill. “He was clear, eloquent and determined in letting us know that we’re all together on the route to comprehensive immigration reform.”
House Democratic Caucus Vice Chairman Xavier Becerra (D-CA) said, “The signal was clear to Congress that we can be instrumental in getting things going. Now, from the practical side, the question is, How do we set the table to move this forward?”
House Speaker Nancy Pelosi (D-CA) is hopeful that the House of Representatives will consider Comprehensive Immigration Reform bill in 2009.
Meanwhile, others are skeptical. “If you’d picked any issue that’s not on the front-burner right now, you’ve picked it,” said Sen. Jon Kyl (R-AZ) “Nobody’s thinking about it because we’ve got all these emergencies on our hands. Let’s get these emergencies resolved and then we can turn to other things.”
The New York Times questioned the president’s commitment to immigration reform. They pointed out that the president had quietly withdrawn the nomination of Thomas Saenz, a former MALDEF litigator to be head of the Civil Rights Division of the Department of Justice after another newspaper dubbed him an advocate of “open borders”.
I have known Tom since 1994 when we debated Ron Prince, the author of the infamous Proposition 187. Unless he has radically reshaped his views, he was slandered by this accusation. The Times questioned whether the withdrawal of his nomination indicated the lack of a strong commitment to immigration reform by the Obama Administration.
In any case, there will be a bill and a White House Summit on Immigration Reform sometime this May. Whether there will be a serious push for reform or whether this is merely political posturing, only time will tell. We will continue to cover this important issue.
Many members of Congress and the public are calling on the Obama Administration to immediately halt the much-publicized ICE raids. As discussed in the March issue of our newsletter, ICE has shifted its focus from arresting criminals and absconders to arresting and deporting people who have overstayed their visas or entered the U.S. without inspection. In light of the violence engendered by the drug cartels along our southern border, this policy seems to squander limited enforcement resources.
Meanwhile, a number of immigration programs which were extended by Congress until March 2009 were again extended until September 30, 2009. These include the E-Verify program, the EB-5 Regional Center program and the Non-Minister Religious Worker program.
The Conrad 30 program for physicians has yet to be extended. Also, we expect legislation to enable hospitals to hire and obtain permanent residence for much-needed registered nurses to be introduced in Congress during the next few weeks.
Yesterday, March 26, 2009, Senators Richard Durbin (D-IL) and Richard Lugar (R-IN) introduced the Development, Relief and Education for Alien Minors (DREAM) Act (S.729) in the Senate while Representatives Howard Berman (D-CA), Lucille Roybal-Allard (D-CA) and Lincoln Diaz-Balart (R-FL) introduced the DREAM Act (H.R. 1751) in the House. We link to the complete text of the DREAM Act from our “Immigration Legislation” page at
The bill would provide a path to U.S. citizenship for undocumented immigrants who entered the country more than five years ago while they were under the age of 16 and who complete two years of college or 2 years of military service.
“The issues addressed in the American Dream Act”, stated Congressman Berman, “are just a fraction of the problems in our immigration system. This bill came about because our immigration laws are, and have been for some time, broken. It is my great hope that we will put together a comprehensive immigration reform package that includes the Dream Act as it was introduced today, and it is my intention to work for and pass that comprehensive immigration reform package this year.”
The DREAM has been introduced in Congress on numerous occasions over the past six years. This time, the President of the United States is on record in strongly supporting this legislation.
Sign the petition to urge Congress to pass the DREAM Act at
2. Child Status Protection Act: A Tale of Two Families
On August 6, 2002, the Child Status Protection Act (CSPA) was enacted into law in order to insure that families immigrating to the U.S. would not be needlessly separated due to the lengthy process (up to 22+ years) that it takes to receive a green card. Frequently, while parents are waiting for their priority date to become current, one or more of their children “ages-out” by turning 21 years old, and is separated from his or her parents for many years. The goal of CSPA is to prevent such separations and keep families together.
Two important CSPA cases are presently in the process of being decided by the Board of Immigration Appeals. The cases are essentially identical except that the first one involves a family-based petition while the second involves an employment-based petition.
Both cases involve the interpretation of Section 3 of CSPA which provides as follows:
(3) RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), 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.’.
* Matter of Wang
The first case concerns the Wang family from the People’s Republic of China, specifically Xiuyi Wang who was born on November 6, 1982.
When she was ten years old, her aunt who was a U.S. citizen sponsored the family for green cards under the family-based 4th preference (sibling) category. Not until 2005, almost 13 years later, did the Wang family become eligible to immigrate to the U.S. However, since Xiuyi was over 21 years old by this time, her parents were forced to leave her behind when they immigrated to the U.S.
In 2006, Xiuyi’s father, then a lawful permanent resident of the U.S. sponsored his daughter for a green card under the family-based 2B category (unmarried adult daughter of a permanent resident). Under the pre-CSPA law, this process would result in an eight-year separation of Xiuyi from her parents. Should Xiuyi get married during this period, she would lose her eligibility for permanent residence.
However, under the section of CSPA cited above, her family requested that the USCIS accord his daughter “the original priority date issued upon receipt of the original petition” which was in 1992. They also requested that the 4th preference petition “automatically be converted to the appropriate category” which, since she is an adult, unmarried daughter of an LPR father, should be the 2B preference category. This would allow Xiuyi to immediately reunite with her parents thus ending their four-year separation.
Despite the fact that the USCIS has not issued regulations, or even a memorandum, interpreting this section of CSPA for well over six years, they refused to grant her a 1992 priority date, and have argued before the BIA that she must return to the end of the line, and essentially, endure an eight-year separation from her parents.
* Matter of Patel
The second case pending before the Board of Immigration Appeals involves the Patels, an Indian family.
Vishalkumar Patel was born on October 10, 1984.
When he was 13 years old, on January 16, 1998, his mother’s U.S. employer submitted a labor certification for her. It was approved in 2000 when he was 15 years old. Not until 2003, when he was 18 years of age did the priority date become current, entitling his mother to apply to adjust her status to permanent resident in the U.S.
Not until January 2006, shortly after her son’s 21st birthday, did the government grant his mother permanent residence in the U.S. Immediately, she submitted a 2B visa petition for her son, and under CSPA, requested that her son be granted the “original priority date” of January 16, 1998. This would have enabled her son to immediately join her in the United States. Despite CSPA, the USCIS refused to accord her son the original priority date, thereby subjecting the family to an eight-year period of separation and prohibiting him from marrying during this period.
* Federal Court Cases
While these two cases remain pending before the BIA, a number of similar cases have been filed in Federal Court seeking to compel the USCIS to follow the law, and reunite families which have been needlessly separated because of the agency’s failure to accord them the benefits guaranteed by section 3 of CSPA. Two of these cases were filed by our law firm.
A Federal Judge has placed these cases “on hold” waiting for the BIA to issue precedent decisions in Matter of Wang and Matter of Patel.
In 2006, the Board of Immigration Appeals issued a nonprecedent decision in Matter of Garcia in which the facts were almost identical to those in Matter of Wang. One can only wonder why the government failed to appeal the decision in Matter of Garcia to the Federal Court of Appeals if they disagreed with the reasoning in that decision.
We are hopeful that the BIA will soon render precedent decisions in both Matter of Wang and Matter of Patel. When they do, we believe that the Board will follow the clear language of the law as they did in Matter of Garcia. It is our hope that many thousands of sons and daughters will, at last, be able to reunite with their parents in the United States.
We link to both the plaintiffs’ and the government’s briefs in Matter of Wang and Matter of Patel from our “Child Status Protection Act” page at
- April 6, 2009
American Immigration Lawyers
2009 AILA Midwest Regional CLE Conference
Topic: Child Status Protection Act
- April 15, 2009 6:00pm
277 South Lake Avenue
Pasadena, California 91101
Call (626) 584-9613 to reserve a seat.
Topic: “Immigration Workshop for International Doctors and Nurses”
- June 3-6th, 2009
Las Vegas, NV
American Immigration Lawyers
2009 AILA Annual Conference on Immigration Law
Topic: Law Practice Management
- June 17th, 2009
Hospital Association of Southern California
4. Labor Department to Revamp PERM and LCA Online Systems
The Department of Labor (DOL) has announced changes to the existing online systems used for H-1B, H-2B, and E-3 labor condition applications (LCAs), as well as for PERM labor certifications. The new online portal system of DOL is called iCert. The new iCert system will require employers or attorneys to create a user account, from which they will be able to file both LCAs and PERM applications. All employers and attorneys or agents will have to set up new accounts in the iCERT system as no current LCA or PERM login data will be transferred to the new system.
The new LCA Form (ETA-9035) will be available for use starting April 15. However, the current version of the form will still be accepted through May 14. Starting on May 15, LCAs may be filed only through the iCERT system. DOL will disable the existing online system, but employers/attorneys will continue to have online access for case status checks and LCA withdrawals.
The most notable thing about the new LCA system is that DOL advises users to expect processing times for LCAs to increase up to 7 business days as there will be an official review and DOL certification of each LCA submitted. Employers and attorneys will need to plan accordingly.
The DOL will start accepting the new PERM Form ETA-9089 for processing on July 1. Again, the current version of the ETA-9089 will be accepted through July 31. Starting on August 1, PERM applications may be filed only through the iCERT system. DOL will disable filing functionality in the existing online system, but will continue to provide online access for case status checks and PERM application withdrawals.
The iCert portal will enable employers and attorneys or agents to set up sub-accounts for multiple users, called “associate accounts,” and assign different levels of privileges (filing, withdrawal, etc.). Each associate account user can have an individual username and password. This is a big change from the existing system where only the employer can set up a new sub-account. DOL designed the new system as an “open” system where any individual can set up an account or multiple accounts as either the “employer” or “attorney or agent”. There are some concerns that the new system does not have controls like those available in the current LCA or PERM systems.
We link to the Labor Department’s announcement of the new iCert portal from our “PERM Resources” page at
Below are some of the salient features of the new forms:
LCA Form ETA 9035
- The new form requires you to write the SOC (ONET/OES) code and the SOC (ONET/OES) occupation title for the job.
- It asks if the job is for
- New employment;
- Continuation of previously approved employment without change with the same employer;
- Change in previously approved employment;
- New concurrent employment;
- Change of employer;
- Amended petition.
- It allows the employer to indicate the Trade Name/doing business as (DBA), if applicable.
- It requires more details about the employer’s contact information such as full contact’s name, contact’s job, contact’s address, contact’s telephone number, and contact’s e-mail address.
- Additional details regarding the law firm are required. The details include law firm/business name, law firm/business FEIN, state bar number, and state/name of highest court where attorney is in good standing.
- More details regarding the place of employment (address, city, state, county, and postal code) are required. Further, you can add up to three work locations.
PERM Form (ETA 9089)
- The new PERM form allows the employer to indicate the Trade Name/doing business as (DBA), if applicable.
- It requires details about employees currently on the employer’s payroll in the area of intended employment (not their total employees).
- Additional information about the attorney is required including his state bar number; state of highest court where the attorney is in good standing; name of the highest court where attorney is on good standing.
- If the PERM beneficiary is a roving employee, the new PERM form allows you to input more than one location (up to five (5) Metropolitan Statistical Areas can be listed).
- The new PERM form allows you to input two educational degrees and three sets of alternative education degree requirements. The current form has only one set of requirements regarding education and no provision for providing details of alternative degree requirements.
- The new form specifically asks if the employer is willing to accept any suitable combination of education, experience or training (“Kellogg’s language”).
- DOL seeks specific details of the Specific Vocational Preparation (SVP) level assigned to the occupation. If the SVP level exceeds the requirement, then business necessity justification for the occupation needs to be provided.
- The new form allows the employer to provide for details of layoff (if any) and the methods of the layoff.
- It allows for substitution of the employer’s signature, and attorney/agent signature in case the original signer/employer or attorney/agent is no longer available or authorized to sign the form.
We link to the new LCA form (ETA-7035) and the new PERM form (ETA-9089) and all other Department of Labor immigration- related forms from our “Labor Department Forms” page at
As of the end of 2008, DOL had a total of over 53,000 pending PERM applications. Slightly over 25% of these cases remain in the audit queue.
Due to the present economic downturn, DOL is making increased use of “supervised recruitment”. This adds approximately six months to the processing time of a PERM application.
Mrs. Sharma (not her real name) is a US citizen whose husband was arrested and deported from the USA in October 2007.
In 1997, Mr. Sharma filed an application for asylum with the assistance of an attorney. An Immigration Judge denied his asylum application and his attorney took an appeal to the next administrative body, the Board of Immigration of Appeals, which, in 2002, affirmed the Judge’s decision. A further appeal was taken to the U.S. Court of Appeals which, in 2003, also dismissed his case. However, his attorney neglected to tell Mr. Sharma that he now faced forced removal from the U.S.
Mr. and Mrs. Sharma were married in November of 2003 and began to establish a family. They had two children. Mrs. Sharma worked as a pharmacist while her husband remained at home to care for their children.
In October of 2007, ICE agents came to their home and arrested Mr. Sharma and removed him to India.
After an immediate relative petition was approved on his behalf, Mr. Sharma was interviewed at the U.S. Consulate in New Delhi with regard to his application for permanent residence.
A Consular officer informed him that he would have to submit two types of waivers: (1) A waiver for permission to reapply for admission to the U.S. after deportation (Form I-212); and (2) a second waiver for the years that he spent unlawfully in the USA (Form I-601). The second waiver required that Mr. Sharma prove extreme hardship to his wife if he were not allowed to return to the USA.
The law permits USCIS to consider eight factors in deciding whether or not to grant the first type of waiver for someone who has a deportation order:
- The basis for the deportation;
- Length of residence in the United States;
- Moral character of the applicant;
- His respect for law and order;
- Evidence of reformation and rehabilitation;
- His family responsibilities;
- Any inadmissibility to the United States under other sections of law; and
- Hardship to himself and others.
Our office prepared documents to prove that Mr. Sharma had equities and ties to the USA. To establish the eight factors we provided the following: Appeal papers concerning his application for asylum; his residence in the USA since 1997; his lack of any criminal history; affidavits from his wife, his wife’s employer, and leaders of the community attesting to his fine character and sense of volunteerism; psychiatric evaluation of Mrs. Sharma; and news articles about the country conditions in India.
Another waiver is required for persons who were unlawfully present in the U.S. for over one year and now wish to return. This waiver requires the applicant prove “extreme hardship” to certain family members who are either U.S. citizens or permanent residents. Among the factors that the USCIS may look at to determine whether extreme hardship has been established are the following:
- Age of the subject;
- Family ties in the United States and abroad;
- Length of residence in the United States;
- Condition of health;
- Conditions in the country to which the alien is returnable – economic and political;
- Financial status – business and occupation;
- The possibility of other means of adjustment of status;
- Level of special assistance to the United States or community;
- Immigration history; and
- Position in the community.
See Matter of Cervantes-Gonzalez, 22 I&N Dec 560, 566 (BIA 1999),
aff’d Cervantes-Gonzales v. INS, 244 F.3d 1001, 1005 – 06 (9th Cir. 200
In Mr. Sharma’s case, our office submitted the following documents: Evidence that his wife’s entire family resides lawfully in the USA, including her mother, father, two sisters and brother; evidence Mrs. Sharma had lived in the U.S. for nearly 20 years; letter from Mrs. Sharma’s employer and members of the community; medical report and photos of Mrs. Sharma whose mother suffers from elephantiasis; monthly family expense report; and news reports about India.
Our office sent the waiver package to U.S. Consulate on July 15, 2008. The Consulate forwarded the waiver package to the nearest USCIS overseas office.
Six months later, we were informed that the USCIS had approved both waivers which we had submitted on behalf of Mr. Sharma.
In February 2009, a very happy Mr. Sharma was permitted to reenter the U.S. and be reunited with his wife and children.
Like the Sharmas, we were overjoyed!
To read more of our Immigration Success Stories, see
Do you have immigration questions of general interest to our readers? Send them to
This month, we were deluged with questions about the retrogression which manifested itself in the April Visa Bulletin.
The waiting times for a green card for a professional or a skilled worker under the EB-3 category lengthened from four to over six years, and may become unavailable this summer.
Fortunately, if you are on an H-1B visa and have an approved labor certification/PERM application/immigrant visa petition which was submitted over one year ago, you can keep extending your H-1B status until you qualify for permanent residence no matter how long this takes.
But what if you are a registered nurse? There are over 100,000 vacancies for RN jobs at U.S. hospitals. The hospitals are all hiring. However, it is next to impossible for an RN to qualify for an H-1B visa. Also, it is not always easy to find a hospital to sponsor you for a job that you cannot start until the year 2015!
Usually, your only choice is to keep trying until you find a hospital willing to submit a visa petition on your behalf while you wait abroad for your priority date to be current. (If you are lucky enough to have a boyfriend who is a U.S. citizen, you may want to consider getting married.)
However, sometimes the facts are such that you may be able to qualify to work in 90 days and get a green card before the end of the year! Would you like an example?
Consider the case of an RN who became our client just last week. Back in November 2000, when she was a Licensed Vocational Nurse (LVN), she came to the U.S. as a visitor. She hired an attorney who submitted a labor certification on her behalf. Although the labor certification and an I-140 were approved on her behalf, the nursing home where she was working closed before she could qualify for a green card.
In the intervening years, she became an RN. A hospital wants to sponsor her for a green card, but they do not want to wait for six years to employ her.
My first question to her was “When did the attorney submit the labor certification application?” She did not know, so I e-mailed the attorney, and he sent me the application. The filing date was April 26, 2001. This meant that she was qualified to adjust her status in the U.S. under section 245(i). For more information about how you can benefit under this section of law, see our “Section 245(i)” video on our “Free Legal Advice on YouTube” page at
But wouldn’t she still have to wait six years before she could apply to adjust her status to permanent resident? Fortunately, she is eligible to apply for adjustment of status immediately! How is this possible?
Consider USCIS regulations at 8 C.F.R. 204.5(e):
Retention of section 203(b)(1) , (2) , or (3) priority date. — A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date…
In plain English, this means that we can use her EB-3 priority date as an LVN which is April 26, 2001 when we file her new visa petition as an RN. Since this priority date is “current”, we can simultaneously submit her application for adjustment of status (I-485) and her application for an EAD work permit (I-765).
When I told her this, she started to cry. Fortunately, these were tears of joy!
Keep in mind that this regulation applies not only to RNs, but to anyone with an I-140 approved under the EB-1, EB-2 or EB-3 categories.
Each month we choose one question to answer in our newsletter. To be considered, questions should be general in nature, and should be short and to the point (no more than 20-30 words).
If your question is neither short nor general, please schedule a 30-minute legal consultation with me at
We link to the most recent immigration waiting times for each of the four USCIS Service Centers, the National Benefits Center and the Administrative Appeals Office. We also link to the processing times of all of the 83 USCIS District Offices and Sub-offices. We link to the Labor Department’s page entitled “Processing dates for labor certification applications”. Finally, we link to the State Department’s “Visa Wait Times” page.
Effective April 3, employers must use a revised Employment Eligibility Verification form (“I-9”) which is dated February 2, 2009. We link to the new I-9 from our “Immigration Forms” page at
Until then, employers must continue to use the I-9 form dated June 5, 2007.
The most significant changes in the new form are:
a) Only unexpired documents will be acceptable. For example, where presently an expired driver’s license is acceptable as proof of identity, starting April 3, this will no longer be true;
b) Several new documents have been added to List A (Documents which prove identity and employment authorization) including:
i) Passport Cards;
ii) Passports issued by foreign countries which contain a permanent residence notation printed on a machine-readable immigrant visa;
iii) Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and FSM or RMI.
c) The following are no longer acceptable List A documents: Obsolete versions of the Employment Authorization Document (EAD) – Forms I-688, I-688A and I-688B. The current version of the EAD (I-766) is still an acceptable List A document.
d) The new I-9 revises Section 1 to differentiate between U.S. citizens and “noncitizen nationals of the United States”. The latter category includes persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands (Northern Mariana Islands) and certain children of noncitizen nationals born abroad.
In addition to using the new I-9 forms, employers should be careful not to run afoul of the antidiscrimination and document abuse sections of the law.
Employers who need additional guidance in complying with the changes in the form and the regulations may wish to read USCIS’ “Handbook for Employers: Instructions for Completing Form I-9 (Revised 4-03-09).
We also advise employers to have their immigration counsel audit their I-9 forms on a periodic basis in order to assist them in complying with the law and avoiding fines and other penalties.
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)
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550, Los Angeles, California 90017, Phone: (213) 623-4592 Fax: (213) 623-3720
Newsletter US Immigration Update April 2009 – Quick Links
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March 29, 2009