Volume Thirteen, Number Eleven
SHUSTERMAN’S Newsletter US Immigration December 2008 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.
Disclaimer: This newsletter is not intended to establish an attorney-client relationship. All information contained in this newsletter is generalized. Any reliance on information contained herein is taken at your own risk.
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Newsletter US Immigration December 2008
TABLE OF CONTENTS:
- 1. Predicting President-Elect Obama’s Immigration Agenda
- 2. USCIS Issues New Regulations Regarding Religious Workers
- 3. Schedule of Shusterman’s Upcoming Immigration Law Seminars
- 4. Visa Issuance and Reciprocity: An Immigration Primer
- 5. Success Story: Receiving a U.S. Passport through an Absent Father
- 6. Immigration Trivia Quiz: Toys From Overseas
- 7. Ask Mr. Shusterman: Test Your Family-Based Immigration IQ
- 8. Immigration Government Processing Times
- 9. Chat Transcripts, Audios, Videos and WebCasts
- 10. Winner of November 2008 Immigration Trivia Quiz
Newsletter US Immigration December 2008 – NEWS FLASHES:
- CSPA – As mentioned in previous newsletter, litigation challenging the government’s refusal to implement the all-important “automatic conversion” rule in the Child Status Protection Act which protects many children who have “aged-out” is going on both before the Board of Immigration Appeals (BIA) and in Federal District Court. We will discuss this litigation in more detail in a future newsletter. Meanwhile, we have updated our “Child Status Protection Act” page to allow you to read the legal briefs in Matter of Wang and Matter of Patelbefore the BIA and our answer to the government’s motion to dismiss in Federal District Court which was submitted last week. See
- Database on All State Immigration Legislation– The Migration Policy Institute hase stablished a database to track state immigration legislation. This is a free, searchable tool designed to generate information about all immigration-related bills and resolutions introduced in state legislatures. We link to the database from our “Immigration Legislation” page at
- E-Verify– Most federal contractors will be required to use the government’s “E-Verify” program by January 15, 2009. Those subject to the rule will be required to enroll in E-Verify within 30 days of being awarded a federal contract. Within 90 days after enrollment, they must comply with E- Verify for all new hires. There are, however, certain exceptions to this rule. Among these are
- Contracts that include only commercially available off-the-shelf (COTS) items (or minor modifications to a COTS item) and related services;
- Contracts under $100,000;
- Contracts to be performed in less than 120 days; and
- Contracts involving work performed exclusively outside the United States.
There are also partial exemptions for state and local governments, universities and Indian tribes.
All this is explained in the “Federal Acquisition Regulation (FAR)” which was published on November 14.
- ESTA Authorization for Visa Waiver Program Travelers– Starting January 12, 2009, eligible citizens or nationals from the countries participating in the Visa Waiver Program (VWP) must obtain approval through the Electronic System for Travel Authorization (ESTA) at least 72 hours before initiating travel to the United States.ESTA requires travelers to input basic biographical and passport information as well as eligibility to travel to the U.S. on VWP. A traveler must reveal any arrests or convictions, previous visa denials or communicable diseases. ESTA approval is valid for up to two years, or when a person’s passport expires, whichever occurs first. ESTA approval does not guarantee that a person will be admitted to the U.S. under the VWP.Persons planning to visit the U.S. under the VWP may wish to register for ESTA now while it is not mandatory in order to avoid the backlogs that will probably develop starting January 12, 2009 when ESTA approval become mandatory.For more information about ESTA, or to register for ESTA online, see our “Temporary Visas” page at
- FOIA Request Status Check– The USCIS has added a feature to their website which allows persons to check the status of their requests for file information under the Freedom of Information Act (FOIA).and from our “Freedom of Information Act” page at
- ICE Chief Julie Myers Resigns– On November 5th, the day after the election of President-Elect Barack Obama, ICE Chief Julie Myers resigned. According to Ms. Myers’ Wikipedia page, “some sources suspect that Myers had a role in the illegally leaked information about the immigration status of one of Obama’s relatives, and have speculated that her resignation is related to a DHS investigation of the leak.” We link to the story in the Washington Post regarding her departure from our “ICE” page at
- Immigration through Investment: Canada and the U.K.Have you ever thought about immigrating to Canada? To qualify as an immigrant investor to Canada, you must have at least 2 years of business experience, a net worth of C$800,000, and must make an investment of C$400,000 to the Canadian government for 5 years.Hong Kong Shanghai Bank Corporation (“HSBC”) provides 3 financing options to assist qualified applicants in making the C$400,000 investment:
- You take a C$400,000 loan as your investment and pay a non-refundable interest of C$120,000 to HSBC;
- You deposit C$200,000 with HSBC and take a C$200,000 loan. At the end of the 5 year investment period, you receive approximately C$100,000 back;
- You provide the full C$400,000 to HSBC. After arriving in Canada, HSBC provides you with a C$300,000 personal line of credit at the prime rate of interest. After the investment period expires, you receive the C$400,000 back less any balance owing on the line of credit.
Immigrating to UK via Investment
Or perhaps you may be interested in immigrating to the UK? To qualify as an immigrant investor to the UK, you must deposit £1,000,000 into your HSBC (UK) account or make an out-of-pocket one-time non-refundable payment of £170,000 and have a net worth of £2,000,000.
If you are interested in either of these programs, kindly schedule a consultation with me at
- International Adoptions– Kudos to the Office of Children’s Issues (DOS) for establishing a new website for International Adoptions. The new site contains sections for (1) Their Office; (2) About Adoption; (3) News and Statistics; (4) Country Information; (5) Hague Convention; and (6) Visas. We link to this website from our own “International Adoptions” page at
- Physicians– Need to access the most up-to-date information on immigration laws impacting IMGs? Check out my most recent article in the American College of Physicians’ Hospitalist Magazine entitled “A Legal Primer for IMGs and Their Employers”. We link to the article from our “Physicians” page at
- SuperLawyers – We are very pleased to announce that four of our attorneys were selected by their peers as “SuperLawyers” for 2009.
- TPS Re-Registration Period Extended for Hondurans and Nicaraguans – The re-registration period for temporary protected status for Hondurans and Nicaraguans has been extended from December 1 to December 30 by the USCIS.
- Visa Bulletin– In the December Visa Bulletin, the priority dates for the first three employment categories remain unchanged. To view the December 2008 Visa Bulletin, see our “Visa Bulletin” page at
- Visa Lottery – If you were planning to apply for the Green Card Lottery, but have not gotten around to doing so, you had better move fast. The DV-2010 lottery application period expires at noon, Eastern Standard Time, December 1st.You can still apply online without having to pay an attorney from our “Green Card Lottery” page at
- Visa Waiver Program– On November 17, the Visa Waiver Program was expanded to include an additional seven member countries – the Czech Republic, Estonia, Hungary, Latvia, Lithuania, the Republic of Korea, and the Slovak Republic. We link to the Visa Waiver Program from our “Temporary Visas” page at
Perhaps a more fitting title to this topic would be “The Perils of Predicting President-Elect Obama’s Immigration Agenda”.
With all eyes focused on our rapidly sinking economy, no one should expect President Obama to outline his immigration agenda before he takes office on January 20th. However, I was fortunate enough to meet then-Senator Obama last February. See
I am firmly convinced that he intends to implement comprehensive immigration reform. The only question is when.
In a previous issue of our newsletter, we linked to candidate Obama’s answers to 36 questions regarding his positions on important immigration issues. See
Senator Obama discussed, in some detail, positions that he had taken in the Senate on important immigration issues:
“I participated in the immigrant marches, have attended naturalization workshops, introduced legislation to make the naturalization process more affordable and accessible, and worked with a bipartisan group of Senators to support comprehensive reform in the Senate.”
We believe that the fact that Hispanics and Asian-Americans voted two-to-one to elect Senator Obama, and supported many other pro-immigration legislators, the new administration and Congress will take steps to acknowledge this support including passage of the DREAM Act and other long-stalled legislation.
President-Elect Obama was not specifically asked his positions on easing immigration restrictions on high-skilled workers. However, just after the election, Computerworld magazine had this to say about Obama’s likely policies concerning H-1B visas:
“President-Elect Barack Obama has supported the H-1B visa program and wants to make changes to green cards that would help tech firms. There wasn’t much said about this issue during the presidential campaign, especially after Wall Street collapsed. It also never came up in the debates between Obama and Republican John McCain. Now we’re in a recession and unemployment is rising. Can Obama push ahead on tech-related immigration issues at this time? He might, and in this FAQ, here’s an explanation of how that might happen.”
Google’s CEO Eric Schimdt, an economic adviser to Obama would clearly like to see the H-1B program expanded according to Computerworld:
“Schmidt laid out a wish list for legislation in the next Congress, with patent reform and loosened standards for allowing foreign graduate students to stay and work in the U.S. at the top of the list. Schmidt’s call for allowing more foreign workers to come to the U.S. may conflict with Obama’s; the president elect has been cool to the idea of expanding immigration programs such as the H-1B skilled worker program.
The U.S. should want the best and brightest workers to remain here, Schmidt said. Making foreign students go home after educating them is ‘bizarre, it’s disgusting,’ Schmidt said.”
Significantly, President-Elect Obama’s choice of Arizona Governor Janet Napolitano as the new DHS Secretary may be good news for foreign-born professional workers. Governor Napolitano is clearly in favor of expanding the H-1B program. She signed on to a bipartisan letter to President Bush supporting the expansion of the H-1B program. As Arizona’s Governor, she expressed reservations about the building of a fence along the U.S.-Mexican border. She famously stated that deporting 11 million workers was a “joke” and was not “reality-based”. However, Napolitano’s immigration views are more nuanced than can be explained in a single paragraph. See an excellent analysis of her views at
Generally, Democrats in Congress have been more supportive of programs which would speed and increase the number of highly- skilled workers who could achieve permanent residence than they have been for expanding temporary worker programs. This could bode well for legislation to “recapture” unused green cards and to establish a Schedule A preference category for registered nurses and physical therapists.
In general, we remain hopeful that President Obama will make immigration reform a priority. His two top immigration advisors in his transition team are Professors Tino Cuellar (Stanford Law School) and Alex Aleinikoff, Dean of the Georgetown University Law Center.
On a personal note, I was impressed by Professor Aleinikoff’s views when he paid a visit to our law firm after he was named INS General Counsel in the Clinton Administration, and answered questions from a group of immigration attorneys.
Professor Cuellar is 36 years old and was raised in Calexico, California, which is on the border between the U.S. and Mexico. “He’s brilliant beyond his years,” said John Trasviña, president of the Mexican American Legal Defense and Educational Fund, who met Cuéllar when he was a law student at Yale and encouraged him to go to work in Washington.
The fact that President-Elect Obama has selected advisors like Professors Cuellar and Aleinikoff, CEO Schmidt and has nominated Governor Napolitano to be the new DHS Secretary indicates that we can expect significant changes in immigration policy to take place in the new administration.
Of course, immigration reform must be initiated by Congress, and Senate Majority Leader Harry Reid (D-NV) is optimistic that Congress will take up immigration reform in 2009. See
http://www.freep.com/article/20081123/NEWS07/811230493/1009 (Link no longer operational)
We promise to keep you up-to-date on developments, large and small, as soon as they occur.
On November 26, the USCIS published a final regulation for both special immigrant (permanent) and nonimmigrant (R-1) religious workers.
The following is a summary version of the new regulations:
A) Petitioning Requirements
A petition (I-129 for R-1s and I-360 for immigrants) is required in all cases. All petitioning employers are required to complete an “attestation” contained within the petition verifying the worker’s qualifications, the nature of the job offered, and the legitimacy of the organization.
B) Onsite Inspections
USCIS may conduct onsite inspections of organizations seeking to employ religious workers. Inspections are intended to increase detection of fraudulent petitions. If the inspection yields derogatory information not known by the petitioner, the USCIS will issue a Notice of Intent to Deny (NOID), and the petitioner will be given an opportunity to rebut the NOID. If the petition is ultimately denied, the petitioner will be given the opportunity to appeal to the Administrative Appeals Office (AAO).
C) Evidentiary Requirements for Petitioning Organizations
All petitioners must submit a currently valid determination letter from the IRS establishing their tax-exempt status. Petitioners that are not classified as “religious organizations” by the IRS must establish the religious nature and purpose of their organization. They must also certify that they are affiliated with a religious denomination that is tax-exempt by completing the Religious Denomination Certification which is contained in the revised petitions.
D) Nonimmigrant Religious Worker Classification
The initial period of stay for an R-1 religious worker is reduced from 36 to 30 months. One extension of 30 months may be granted.
E) Special Immigrant Religious Worker Classification
The regulation expands the interpretation of qualifying prior work experience to include work that is not in the exact same position as the job offered. It also allows for a short break in the continuity of the required two-year religious work experience if the beneficiary was engaged in further religious training or was on a sabbatical.
F) New Definitions & Proposed Changes to Existing Definitions
The regulation redefines the terms: (1) Religious Vocation; (2) Religious Occupation; and (3) Minister; and defines (4) Denominational Membership and (5) Religious Denomination.
G) Compensation Requirements
Compensation can include either salaried or non-salaried compensation, and must be demonstrated by verifiable evidence. The only exception to the compensation requirement is for certain R-1 workers who are participating in an established program for temporary, uncompensated missionary work within the petitioning organization, which is part of a broader, international program of missionary work sponsored by the denomination.
H) Revocation Procedures and Appeal Rights
The regulation establishes procedures for the revocation of the approval of R-1 petitions. As with immigrant petitions, the revocation may be automatic or may require notice depending on the grounds for revocation. Only a petition that is revoked on notice may be appealed.
I) Extension of Non-Minister Categories Affected by the Sunset
On October 10, President Bush signed into law a bill which extends the special immigrant non-minister religious worker program until May 6, 2009. However, this law only took effect when the USCIS regulation was published in the Federal Register on November 26.
J) Pending Non-Minister Cases Affected by the Sunset
Non-Minister special immigrant and nonimmigrant religious worker cases that have been held in abeyance will be adjudicated in accordance with the final rule. Requests for Evidence will be issued for any evidence required as per the new regulations if such evidence was not initially submitted and was not contained in the record.
We link to the new regulation, the USCIS Fact Sheet and to USCIS’ Questions and Answers regarding the new regulation from our “Religious Workers” page at
and from our “Temporary Religious Workers” page at
- December 4, 2008
University of California, Los Angeles (UCLA)
Topic: Cancellation of Removal and Asylum
- January 22nd, 2009
Kennedy Webinar Event
Interactive Seminars for Professionals
Topic: Immigration and Employment Law of Foreign-born Professionals
- February 3, 2009
American Immigration Lawyers Association (AILA)
Webinar Keeping Families Together – Update on CSPA
- June 3-6th, 2009
Las Vegas, NV
American Immigration Lawyers Association (AILA)2009
AILA Annual Conference on Immigration Law
Topic: Law Practice Management
- June 17th, 2009
Hospital Association of Southern California
Most non-diplomatic and non-official visas issued by United States consular officers abroad are subject to both a visa application fee and a visa issuance fee. The visa application fee (also known as the machine-readable visa, or MRV, fee) was increased from $100 to $131 on January 1, 2008. Most visa applicants (visitors, students, temporary workers, etc.) are charged this $131 visa “application” fee to recover the costs associated with manufacturing, processing, and printing of the visa. The fee is charged even if the visa is denied.
Nonimmigrant visa issuance fees are based on “reciprocity.” Reciprocity is a policy between countries by which corresponding advantages or privileges are granted by each country to the citizens of the other.
As a result of reciprocity, visa issuance fees are based on what another country charges a U.S. citizen for a similar type of visa. The United States strives to eliminate visa issuance fees whenever possible; however, when a foreign government imposes such fees on U.S. citizens for certain types of visas, the United States will impose a “reciprocal” fee on nationals of that country for similar types of visas.
We wrote about the “Visa Reciprocity and Country Documents Finder” in the May 2000 issue of our newsletter at
It is important to note that while many immigration benefits are based on the country of birth of the applicant, the reciprocity schedule is based on the country of one’s citizenship.
There are other important factors that reciprocity also affects, including how many entries one can make pursuant to a particular visa stamp and how long the stamp will remain valid.
Once you have followed the links to the State Department’s webpage titled “Reciprocity by Country”, you can scroll down the list of countries until you have selected your country of citizenship. The reciprocity schedule includes an alphabetical list of all nonimmigrant visas from A-1 to V-3. For example, you will see that for H-1B applicants who are citizens of India, it includes the following information:
|H-1B||None||Multiple||60 Months |
The “None” in the Fee column indicates that based on reciprocity there is no visa issuance fee for Indian citizens applying for H-1B visa stamps.
The “multiple” in the Number of Applications column indicates that the applicant may make multiple entries to the United States pursuant to the H-1B visa stamp.
The “60 months” in the Validity Period column indicates that the maximum amount of time that the visa can be issued for is 5 years. However, please note that the  refers to footnote #3 which reads,
“The validity of H-1 through H-3, L-1, O-1 and O-2, P-1 through P-3, and Q visas may not exceed the period of validity of the approved petition or the number of months shown, whichever is less. Derivative H-4, L-2, O-3, and P-4 visas, issued to accompanying or following-to-join spouses and children, may not exceed the validity of the visa issued to the principal alien.”
So, by referring to the reciprocity schedule, one can determine that an Indian citizen applying for an H-1B visa stamp is subject only to the visa application fee of $131 and is eligible for an H-1B visa valid for multiple entries to the United States for the duration of his or her H-1B status provided it is no longer than 60 months.
Note that, currently, there are no visa issuance fees for any U.S. visas for citizens of India.
Compare this to the reciprocity schedule for citizens of China.
|H-1B||None||Two||3 Months |
You can see that a Chinese citizen is subject to only the visa application fee of $131, but will be issued an H-1B stamp valid only for 2 (two) entries to the United States and will be valid for no more than 3 months (or for the length of his H-1B approval, whichever is less).
All nonimmigrant visa applications now require an appointment at a U.S. Embassy or Consulate abroad. We suggest that you schedule a consultation with an experienced immigration attorney before scheduling a visa application appointment. This will permit you to explore all of your options under U.S. immigration laws, including a discussion of the reciprocity schedule and how it may affect your case.
To schedule a consultation with one of our attorneys, see
I will never regret that during two of the six years that I worked for the INS (1976-82), I interviewed thousands of persons born abroad who were seeking to obtain U.S. citizenship through their U.S. citizen parent(s). The “derivative” citizenship laws of the U.S. are very complex and ever-changing as the following story exemplifies.
Chris was born in Canada over 40 years ago to a single mother who gave him up for adoption.
Chris’ mother, a Canadian who had been studying in the U.S., had a relationship with his US Citizen biological father and became pregnant. She returned to Canada after the relationship ended and gave birth to Chris.
Chris wanted to know if he could acquire U.S. citizenship despite the fact that his mother and biological father were never married and he did not even know the identity of his father. Fortunately, Canadian law permitted Chris to unseal his adoption records so he could learn his father’s identity.
Chris’ first attorney submitted an application for an American Passport for Chris at a U.S. Consulate in Canada. The application was denied.
The authorities acknowledged that Chris’s biological father was a U.S. citizen. However, they stated that under the Canadian law, Chris was never “legitimated” because he was born out of wedlock.
In desperation, Chris contacted our office.
We reviewed the documents submitted by Chris’ former attorney and learned that he had failed to provide a legal theory as to how Chris was legitimated.
Proving the father-child relationship for transmitting U.S. citizenship is much more complex in out-of-wedlock cases than when the child’s parents were married when he was born.
We are well-aware that immigration laws relating to transmitting citizenship to children born abroad to U.S. parents have undergone many changes over the years. These changes affect a person’s eligibility for U.S. citizenship depending upon (1) his date of birth; (2) when his citizen parent(s) resided in the U.S.; and (3) when a new law becomes effective, and whether it is retroactive. Further complications arise if the parents never married.
In Chris’ case, our first step was to determine which United States Immigration laws applied to a child born abroad in 1965 to a U.S. citizen father.
For a child born between 1952 and 1968, former section 309 of the Immigration and Nationality Act (“Act”) was applicable. This provision was amended and liberalized in 1986. However, since Chris was born abroad before November 11, 1968, former section 309 applies to him.
Under the former section 309, paternity must be established before the child reaches 21 years of age. Further, legitimation may be determined under the law of either the father’s or the child’s residence/domicile.
Another requirement is that the father must be physically present in the U.S. for 10 years prior to his child’s birth, five years of which much occur after the parent reaches the age of 14.
We researched the United States Immigration laws in Washington D.C. where Chris’ father resided when Chris was born. D.C. law establishes that “a child born out of wedlock is the legitimate child of its father and mother and is the legitimate relative of its father’s and mother’s relatives by blood or adoption…” Thus, D.C. law treated children born in or out-of-wedlock exactly the same. Therefore, Chris was considered “legitimate” at the time of his birth.
We were off to a good start!
Next, we collected evidence that Chris’ father had indicated to authorities that Chris was his child. We also collected documents to prove that Chris’s father physically resided in the U.S. for more than 10 years prior to Chris’ birth, including five years after the father’s 14th birthday. In total, we collected 20 different documents to supplement Chris’ Passport Application.
We assembled these documents as exhibits and explained in our cover letter that Chris was legitimate and that he had “acquired” U.S. citizenship through his biological father. We submitted the new, and improved, application to the U.S. Consulate in Canada.
It did not take long for the Consulate to reverse their previous decision and grant Chris a U.S. passport!
Each month, we give our readers the opportunity to see how much they know about immigration laws and procedures by taking one of our Immigration IQ Tests.
So far, our IQ Tests have measured your skills in the following areas:
- Employment-Based Immigration
For links to each of our Immigration IQ Tests, see
This month’s test measures your Immigration IQ with regard to Family-Based Immigration.
Think that you understand how Family-Based Immigration works?
Test your Immigration IQ on our Family-Based Quiz (Quiz Removed)
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.
Here is the letter that we received from our winner:
Hi Mr. Shusterman,
- Kabob loghmeh – Iran
- Chiles Rellenos – Mexico
- Pancit Bihon Guisado – Philippines
- Aloo Sabzi – India
- Panettone – Italy
- Papa a la Huancaina – Peru
- Nasi Goreng – Indonesia
- Berbere – Ethiopia
- Har Gau – China
- Pad See Ew – Thailand
I am a citizen living in Los Angeles, a counselor, but I would like to win a consultation for my good friend Luis Avila from El Salvador, who is fighting his deportation case in pro per in the 9th Circuit. He is a very good and hard- working man and was recently helped to win a temporary stay of deportation. Meanwhile, he is struggling to pay child support and legal fees on a salary from Jiffy Lube. I hope that I win and you can help him.
The quiz was easy – I answered all 10 questions and then checked on Google. I was right off the bat on 8 out of 10 of them and I only had to change 2 answers. I have been receiving your newsletter for several years, at least the last 6-8 years, and I really appreciate all the information and education I get from it. Thanks so much for all your hard work.
Rosemarie, Great job on the quiz! Carl Shusterman Congratulations on winning our quiz!
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
“The GOP won’t be a majority party if it cedes the young or Hispanics to Democrats. Republicans must find a way to support secure borders, a guest-worker program and comprehensive immigration reform that strengthens citizenship, grows our economy and keeps America a welcoming nation. An anti-Hispanic attitude is suicidal.”
– Karl Rove, November 15, 2008
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December 1, 2008