Volume Nine, Number Twelve
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 December 2004
TABLE OF CONTENTS:
- 1. New Legislation: H-1B and L Bills Soon to Become Law
- 2. Immigration Government Processing Times
- 3. President Revives “Guest Worker” Program – An Amnesty?
- 4. EB Numbers Will Backlog in January – Strategic Planning
- 5. Immigration Trivia Quiz: Green Cards through Investment
- 6. Deportation: Courts Issue Two Important Decisions
- 7. Employment and Family Based Immigration: Success Stories
- 8. Direct Mail Submissions of I-485s, I-765s and I-131s
- 9. Chat Schedule, Transcripts, Audios & Videos
- 10. Winner of the November 2004 Immigration Trivia Quiz
America’s Growing Nurse Shortage
A report issued on November 17, 2004 by researcher Peter Buerhaus and posted on the Health Affairs web site warns that, despite an increasing number of U.S. workers becoming registered nurses, our nation faces a shortage of 600,000 RNs by the year 2020. We link to this report from our “Registered Nurses” web page at
- AAO Proposes Fee Hike– A little Christmas present from the CIS’s Administrative Appeals Office is on its merry way. Yesterday, the AAO, which has jurisdiction over appeals from denials of I-129s, I-140s, I-601s, etc. proposed to raise its filing fees for appeals and motions to reopen and reconsider from $110 to $385. If you wish to make any comments on this proposal, you can e-mail them to
Be sure to include “Docket No. DHS-2004-0021” in the subject line of your message. Rumors are that your money will be used for a good cause – to finance a generous retirement package for outgoing DHS Secretary Tom Ridge ;-) We have posted the proposed regulations online for your perusal at
Written comments must be received on or before December 30, 2004.
- Backlog Reduction– Getting tired of waiting for your immigration petition/application to be approved? Do not despair, help may be on the way! The government reports that it is making progress in paring down its long backlogs.However, if the wait seems interminable, hiring a good immigration attorney may be just what the doctor ordered. We obtained the approval of a naturalization petition in just a few weeks for an immigrant residing in San Francisco who had been making inquiry after inquiry for over two years!
- Business Immigration Newsletter– Periodically, the American Immigration Lawyers Association (AILA) publishes “Connect!” a newsletter devoted to business-related immigration developments. We link to this newsletter from
https://www.shusterman.com/toc-busimm.html (Link is no longer operational.)
- Cabinet Secretaries Resign – Three members of President Bush’s cabinet, each of whom have some authority of over the workings of the immigration system, have resigned since the election. They are Attorney General John Ashcroft, Secretary of State Colin Powell and, yesterday, Secretary Tom Ridge of the Department of Homeland Security. How will this affect the workings of the immigration system? One can only guess, although so far their replacements seem to have a strong personal loyalty to the President, and may be inclined to follow the President’s lead. The President probably wishes that he had the same authority in the House of Representatives where two powerful Republican Committee Chairmen are currently blocking the passage of the legislation to implement the recommendations of the 9/11 Commission. One of issues concerns whether the Federal Government should block the states from issuing drivers licenses to illegal aliens.
- H-1B Report– What is the average salary of an H-1B worker? What percentage of all H-1B workers are in the computer industry? What are the countries of birth, by percentage, of H-1B workers? Find out the answers to these and many other questions in DHS’s newly-released 23-page report entitled “Characteristics of Specialty Occupation Workers (H-1B): Fiscal Year 2003.” We have posted the report online on our “H-1B Page” at
- H-2B Cap Update– On November 17, the USCIS issued a press release which indicates that on November 1, just four weeks into the new fiscal year, over 50% of the 66,000 H-2B visas had already been used. We link to the press release at
http://www.uscis.gov/files/pressrelease/H2BFY2005_111704.pdf (link is so longer operational)
- LCA Online– Yesterday afternoon, the Labor Department posted the new version of the Labor Condition Application online. Do not try to submit an H-1B petition or extension using an old LCA application. If you do, and it is rejected, you might find yourself paying an extra $2,000 in government filing fees.
- Physicians– The bill (S. 2302) which would extend and expand the J waiver program for physicians which we reviewed in our October 2004 newsletter at
was recently approved by both Houses of Congress and is on its way to the President’s desk for his expected signature.
- RIR Labor Certification– The requirements for Reduction-in-Recruitment (RIR) labor certificates vary according to the region of the U.S. Department of Labor where the job is located. The American Immigration Lawyers Association (AILA) has published a handy chart detailing these regional differences.
- Washington Update– Periodically, the American Immigration Lawyers Association (AILA) publishes its “Washington Update” which brings readers the most up-to-date news about legislation, regulations, congressional hearings and other immigration-related developments from inside the Beltway. We link to “Washington Update” from
https://www.shusterman.com/toc-advocacy.htm (Link is no longer operational.)
Although the bill has yet to reach President Bush’s desk, both the Senate and the House of Representatives have approved legislation which would increase the number of H-1B cap-exempt visas by up to 20,000 per year, place certain restrictions on the use of L visas, increase the enforcement powers of the government over these two nonimmigrant visa categories, and send H-1B filing fees through the roof!
These changes will not all occur immediately after President Bush signs the bill into law, although the fee increases will. Some of the changes will be phased in after 90 days (like the increase in the number of H-1B visas) and others after 180 days (like the restrictions on the L visas). Well-informed employers and employees can save thousands of dollars in extra filing fees and a lot of grief by learning the details of the legislation.
In addition, the FAQ links to the following two related pages:
- Complete Text of the H-1B/L Bill
- Summary of New H-1B and L Bill
The bills were both added as amendments to the Omnibus Appropriations bill (H.R.4808) which was passed in two slightly different versions by the Senate and the House of Representatives. We expect the House to put its final stamp of approval on the Senate language next week, and for President Bush to sign the bill into law in mid-December.
Employers paid a huge price in order to petition for up to another 20,000 cap- exempt H-1B workers per year. Such workers would have to have Masters or Doctorate degrees from U.S. institutes of higher education in order to qualify under the law. The law does not specify that the job being offered to the worker must require such a degree
Although the cap-exempt visas does not become available until 90 days after the bill is signed into law, the higher filing fees for H-1B petitions will go into effect as soon as the law is signed. Since these filing fees could be $2,000 higher than existing fees, savvy employers may wish to submit H-1B petitions and extensions prior to the bill’s signing
These and other restrictions regarding the prevailing wage requirements and increased enforcement powers for the Labor Department are discussed in the FAQ.
The amendments to the L visa category are restrictive and do not become effective until 180 days after the bill is signed into law. The $500 “anti- fraud” fee applies to L petitions and visa approvals under blanket L petitions (as well as to H-1B petitions). Since the increased filing fees become effective as soon as the bill is signed into law, employers of L-1 workers may wish to submit their petitions and visa applications (where there is a blanket L visa) prior to the bill’s signing.
The restrictions which deal primarily with “job shops” who farm-out L-1B special knowledge workers to various employers, and the re-imposition of the one-year prior foreign experience requirement for those seeking to enter the U.S. on blanket L petitions, are discussed in the FAQ.
Employers who submit L-1 petitions prior to the end of the 180-day period may gain certain advantages, not all of which are financial, over employers who do not. See the FAQ, the Section-by-Section Summary and the Complete Text of the law for additional information.
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.
In a press conference immediately after the election, President Bush resurrected his “guest worker” program.
On November 21, the President met with Mexican President Vicente Fox at a multinational conference in Santiago, Chile. While President Bush reiterated his support for a guest worker program, he was vague about the details of the program. See
http://www.cnn.com/2004/WORLD/americas/11/21/apec.ap/ (Link is no longer operational.)
Since announcing his program in a nationally-televised speech on January 7, 2004, the President has rarely spoken about the proposal, and no legislation embodying his plan has been introduced in Congress.
During the campaign, the candidates seldom addressed immigration issues.
Is the President’s plan simply a “guest worker” program, or will it include an opportunity for the guest workers to obtain permanent residence in the U.S.?
The President’s January 7, 2004 speech clearly indicated that he was proposing that Congress allocate an unspecified number of immigrant visas which could be used by the guest workers to obtain green cards. During the last Congress, no less than seven immigration bills were introduced which included an amnesty component. One was introduced by Senator John McCain (R-AZ) who the President met with following the election in order to discuss immigration issues.
The problem for the President is any guest worker program which provides for temporary visas without opening a path to permanent residence would be viewed as a sham, and would not be used by many illegal workers out of fear that they would be deported when the program ended. On the other hand, the President has been careful not to utter the dreaded “A” word – amnesty.
Why is this when amnesty, or as the Democrats like to say “earned legalization”, is so central to his program?
The simple fact is that most of the opposition to such a program is expected to come from the President’s own party. Representative Tom Tancredo (R-COLO), the leader of the Congressional (Anti-) Immigration Reform Caucus doesn’t mince words in criticizing the President’s proposals: “An amnesty by any other name is still an amnesty, regardless of what the White House wants to call it.” Tancredo uses strong language to criticize President Bush’s plans: “Their amnesty plan was dead on arrival when they sent it to the Congress in January, and if they send the same pig with lipstick back to Congress next January, it will suffer the same fate.”
We link to an audio program aired on November 25 by National Public Radio entitled “Bush’s ‘Guest Worker’ Plans Face GOP Dissent” from our “NPR” page at
Many House Republicans, including Majority Leader Tom Delay share Tancredo’s anti-immigration views. However, there are other House Republicans who do not. Two of them, Jim Kolbe (R-AZ) and Jeff Flake (R-AZ) are sponsoring the McCain bill in the House.
In the final analysis, however, President Bush will have to reach across the aisle to secure Democratic votes for his proposal. Forget about the Red states and the Blue states. This is what real Presidential leadership is all about.
Sometime within the next few days, the State Department (DOS) will post the January 2005 Visa Bulletin online. The DOS has already announced that the employment-based 3rd (EB-3) preference category for persons born in mainland China, India and the Philippines will regress. By how much is anyone’s guess.
Last time that the EB-3 numbers were backlogged was in June 2001. Mainland China was backlogged for 10 months and India for 2 1/2 years. We predict that the new backlogs will date back to 2001 or 2002.
What will the new backlogs mean for you?
First, the regressions will only affect you if you were born in one of the “Axis of Anxiety” countries (mainland China, India or the Philippines) and you qualify to obtain permanent residence in the employment-based third preference (EB-3) category (professionals and skilled workers).
Here are some possible scenarios
* If your employer has not yet submitted a labor certification on your behalf or if your labor certification is pending, how much the coming backlogs will affect you may depend upon where your job is located. How does this work?
Assume that the EB-3 numbers will backlog for two to three years. In many states, it takes 2-3 years to obtain the approval of an RIR labor certification (e.g., California, 2+ years; New York, 3+ years). Since the filing of your labor certification establishes your priority date, by the time that the labor certification is approved, your priority date may be current, and you can proceed to file your application for adjustment of status (I-485) concurrently with your employer’s visa petition (I-140).
However, if your job is located in a state where RIR labor certifications are processed more rapidly (e.g., Illinois, Minnesota, Ohio, Kansas, Missouri, Nebraska – all in a little over one year), your current advantage over people who work in California and New York will disappear since even after your labor certification is approved, you may have to wait another year or two to apply for adjustment of status.
What if PERM is finally enacted, and you are granted a certificate by the Labor Department within a few months?
Time to pop open the champagne? Not if you were born in one of the “Axis of Anxiety” countries (For those of you who haven’t been following this discussion closely, that would be mainland China, India or the Philippines). You would have to wait another two to three years in order to apply for adjustment of status.
* You have a pending I-485 application
Since it may take two or three years for you to adjust your status, by the time the government is ready to make a decision on your application, your EB-3 visa number may be current. However, if the CIS speeds up its adjustment of status processing times, you would have to wait much longer for your I-485 to be approved than you would if you were born another country (e.g., Monaco or Canada). You would still be able to change jobs after your I-485 had been pending 180 days assuming that your I-140 was approved.
Persons with pending applications for adjustment of status are entitled to Employment Authorization Documents (EADs), and may be able to keep working in the same or a similar occupation as that which was listed on their labor certifications until they are approved for permanent residence.
* If you are immigrating from abroad
Here’s where the big trouble starts. Even if PERM is implemented, and the CIS reduces I-485 processing times to 90 days (or to 90 minutes!), it’s still going to take you up to three years to immigrate to the U.S. because of the EB-3 backlogs. Frankly, how are you going to find an employer who is willing to wait that long to employ you unless your favorite uncle has a job opening at his company?
* If you are a nurse or a physical therapist
Our sincere regrets! You could be in VERY bad shape
See the article “Visa Caps Seen Adding to RN Staffing Woes” which links to the American Hospital Association News issued on November 29. This article quotes me and several other attorneys.
By way of background, 20+ years ago, the Labor Department established “Schedule A” which is a list of shortage occupations. These days, the list includes just two occupations: physical therapists and registered nurses.
Persons in both of the these occupations must pass certain examinations, have an immigration visa petition (form I-140) approved on their behalf, take English examinations and obtain various other documents including a health care certification. In countries like the Philippines, these procedures may take between 18 and 24 months. A significant backlog in EB-3 visa numbers may extend this process to two to three years.
Physical therapists may work in the U.S. by obtaining H-1B status although since the H-1B numerical cap has been reached for this fiscal year, this may be no easy task. However, most RNs are ineligible for H-1B visas since the average nursing job does not require that a nurse have a four-year university degree in order to practice her profession in the U.S.
* What’s a nurse to do?
The American Hospital Association took a survey a couple of years ago, and found that there were 126,000 RN vacancies in hospitals alone. This doesn’t include RN vacancies in skilled nursing facilities, convalescent homes and the like. Now, a new study predicts that because of the demand for nursing services caused by the aging baby boomer population, the number of job vacancies for RNs may reach 600,000 by 2020. For articles and studies about the growing shortage of nurses in the U.S.
Where do nurses come from? Contrary to popular belief, they are not delivered by storks. They usually make their way to the U.S. on jumbo jets departing from Manila and landing in San Francisco and Los Angeles, often on their way to New York City, Chicago, Dallas or Miami. Over 50,000 nurses have done so in the past few years.
Even if you are an RN who has a pending application for adjustment of status, you may be forced to wait much longer to adjust your status to permanent resident. Where the California Service Center adjusts the status of many RNs in a little over one year, this period of time could double or even triple depending on the length of the backlogs. Meanwhile, you may continue to work while your application is pending using your EAD.
But what if you are an RN who has recently arrived in the U.S. on a tourist visa? Are you visiting Disneyland or the Grand Canyon? Perhaps, but my guess is that you have also registered to take a state licensing examination (NCLEX- RN). If you apply in a state like California, it will take you over six months to sit for the examination. By this time, your six-month tourist visa will be about to expire and you will probably request an extension for an additional six months. However, when the EB-3 backlogs hit the California coast like a tsunami on January 1st, what good will the extra six months do?
The cruel reality is that most RNs will be forced to return to their home countries for two to four years and then immigrate from abroad. Failure to return home in a timely manner could subject you to the 3/10 years bars to returning to the U.S. Despite the severity of the national shortage of nurses in the U.S., we will begin to develop a backlog of RNs who are licensed in the U.S. and have job offers here, but must remain abroad until Congress rewrites our immigration laws.
* Necessity for Congressional Action
One more time, why are the EB-3 numbers going to backlog in January?
The simple answer is that the Immigration Service approved too few applications for adjustment of status in the last few fiscal years. Over 100,000 immigrant visa numbers were lost because of bureaucratic inertia. Now that the government is approving hundreds of thousands of applications in order to decrease backlogs, the quotas imposed by the law force the State Department to establish backlogs in the EB-3 category in order that the number of green cards granted this fiscal year do not exceed legal limits.
Of course, Congress could easily amend the law in order to allow the Immigration Service to “recapture” visa numbers lost in prior years. This would be identical to what was done in the “American Competitiveness in the 21st Century Act of 2000” when Silicon Valley was hard-up for computer programmers and analysts. Also, given the growing need for registered nurses, Congress would be wise to re-establish a temporary category for RNs. Such a category existed and worked well between 1952 and 1995 when congressional inaction allowed the category to wither and die. I testified before the Senate back in 2001 that re-instituting a temporary visa program for nurses would be a good idea, and I haven’t changed my mind on this issue one iota. See a video of my testimony at
https://www.shusterman.com/video/carlsenate.ram (Link no longer operational)
We will post the January 2005 Visa Bulletin online as soon as it is issued by the DOS. This will probably occur within a week or two. Check our “Visa Bulletin” page at
If you are in the U.S., were born in one of the Axis of Anxiety countries, and are qualified to submit your I-485 application before the end of December, we highly recommend that you do so!
* Is Drunk Driving an Aggravated Felony?
On November 9, in a unanimous decision, Leocal v. Ashcroft, the U.S. Supreme Court, in a decision authored by Chief Justice Rehnquist, held that a conviction for driving under the influence of alcohol, where serious bodily harm results is not a “crime of violence” under 18 U.S.C. 16. This prevents the Immigration Service from deporting long-time immigrants as “aggravated felons” which effectively deprives them of applying for relief from removal despite that the fact that many such persons have spouses, parents and children in the U.S. who are U.S. citizens.
* Reinstatement of Removal
On November 18, the 9th Circuit Court of Appeals stuck down government regulations which allowed an Immigration Officer to deport a person who had previously been removed from the U.S. and had re-entered illegally. The Court ruled that only Immigration Judges have the right to order a person to be removed from the U.S. unless the law provides otherwise. The person accused has the right to a hearing before a Judge, may be represented by an attorney and may present evidence on his behalf.
The U.S. Court of Appeals for the Ninth Circuit ruled in Morales-Izquierdo v. Ashcroft on November 18, that the government must go back to the drawing board and craft a new regulation which allows re-instatement of removal orders only by Immigration Judges.
As a continuing feature, we summarize recent cases successfully handled by our law firm involving employment-based and family-based temporary visas, green cards and citizenship.
* Reversing a Rush to Judgment
In the early 1990s, Ms. H committed the very serious error by entering the United States with a fake passport. Although her transgression was not initially discovered, it eventually came to light during her green card interview, as she had in the meantime married a U.S. citizen and was requesting permanent residency.
Ms. H had only one option to avoid the denial of her permanent residency application: the filing of an application for a waiver of inadmissibility (form I-601). The Immigration Service may grant such a waiver if extreme hardship would result to a spouse or parent who is a U.S. citizen or lawful permanent resident. Without this waiver, Ms. H would not be able to obtain her green card. Ms. H’s request for a waiver was quickly denied by the Immigration Service. She was given 30 days to appeal this decision.
Two days before her appeal deadline, Ms. H approached our office. A review of her prior waiver application and the denial revealed how little consideration the Immigration Service had actually given Ms. H’s case. In fact, the denial did not mention any of the favorable factors that she had presented. Instead, it merely discussed the legal standard and judicial decisions regarding extreme hardship waivers, and summarily concluded that she was not eligible for such relief. We promptly filed an appeal requesting that the Immigration Service address each specific issue of Ms. H’s case. We stressed that a denial of this application would most certainly lead to extreme hardship for Ms. H’s family: Her husband suffers from a chronic and debilitating back condition which requires on-going therapy. As a nurse, Ms. H is able to provide much-needed assistance to her husband on a daily basis. Her stepdaughter has been diagnosed with a severe hearing impairment, in addition to developmental delays. Ms. H is a hard-working person who contributes positively to her community. She also has a close relationship with her numerous sisters, brothers, nieces and nephews who live close by. In our appeal, we reminded the Immigration Service of their obligation to consider all of these factors together in making their determination
Three months later, Ms. H’s waiver had been granted on appeal. She is now a lawful permanent resident of the United States.
* The Power of Perseverance
Obtaining approvals of petitions and applications submitted to the Immigration Service is more an art than a science. Even the strongest case may encounter unexpected resistance as a result of the personal quirks of an individual officer. Take, for example, Mr. P, who had been hired as Online Managing Editor for a popular extreme sports magazine. We filed a request to classify Mr. P as a Multinational Manager/Executive. Mr. P’s qualifications were undeniable. However, the government demanded additional evidence to prove that his employer, an affiliate of a prominent publishing conglomerate, was a bona-fide corporate entity.
We submitted payroll documentation, corporate balance sheets, copies of the employer’s lease agreement, photocopies of the various magazines published by Mr. P’s employer and even photocopies of the business premises, but to no avail: the officer still doubted the legitimacy of the company!
This sort of back-and-forth with the Immigration Service culminated in a Notice of Intent to Deny, where the officer required that we submit numerous corporate documents relating to the parent company, most of which were either redundant with documentation we had already submitted or in no way relevant to the issue at hand. Nonetheless, we waded through stacks of documents and spent many hours on the phone and at the fax machine negotiating and organizing the transfer of all the documents requested by the Immigration Service. In the end, our perseverance paid off, and Mr. P’s green card was approved.
On November 19, the CIS posted a notice in the Federal Register mandating, that as of December 1, 2004, certain I-485s/765s/131s be filed exclusively with the “Chicago Lockbox” rather than with CIS District Offices.
According to the CIS Press Release, this will enable the agency “to more efficiently process applications, deposit fees and provide enhanced customer service.”
These forms must be mailed to one of the following two addresses:
* U.S. Citizenship and Immigration Services
P.O. Box 885807
Chicago, Illinois 60680-4120
* For non-U.S. Postal Service (USPS) deliveries (e.g.,private couriers) to
U.S. Citizenship and Immigration Services
427 S. La Salle – 3rd Floor
Chicago, Illinois 60605-1098
The direct mail program will be implemented in the following two phases:
PHASE ONE: Will begin on December 1, and will affect certain aliens filing I- 485s/765s/131s who live in any of the following states: Alabama, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia, Wisconsin, Wyoming, as well as the District of Columbia, Guam, Puerto Rico, and the Virgin Islands of the United States.
PHASE TWO: Will begin on April 1, 2005, and will affect certain aliens filing I-485s/765s/131s who live in any of the following states: Alaska, California, Idaho, Iowa, Kansas, Maryland, Missouri, Montana, Nebraska, New Mexico, Oklahoma, Oregon, Texas, and Washington.
The Direct Mail program applies to a wide variety of applications filed under the family-based categories, the DV lottery and various other non-employment- based categories.
Caveat: It may be some time before the addresses of the Chicago Lockbox are included on forms I-485, I-765 and I-131.
During the first 30 days, other USCIS offices will forward to the Chicago Lockbox address any filings of Form I-485, Form I-765, and Form I-131 they receive that are covered by the new procedures. Applications forwarded from the other USCIS offices will be considered properly filed when receipted at the Lockbox.
After the 30-day transition period, any application-type included in the new procedures, received at a location other than the Lockbox address will be returned with an explanation directing the applicant to mail the application directly to the Chicago Lockbox address for processing.
Here is the message that we received from the winner:
Dear Mr. Shusterman,
Here are the answers I hope:
My name is Stephanie, I am an American citizen married to a Salvadoran who has been unable to adjust his status through me.
I hope we are the first ones this time.
Although over 60 subscribers submitted answers during the first 24 hours after we e-mailed the quiz, you were indeed the first to do so. Congratulations – I look forward to speaking with you!
December 1, 2004
Certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Trial Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, California 90017
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