Newsletter US Immigration Update February 2009
Volume Fourteen, Number Two
Special Message: With increased privacy and security concerns around the inbox, mostly due to viruses and spam, delivering our monthly newsletter to your e-mail address presents many challenges. Sometimes you don’t receive our newsletter. However, if you add our e-mail address to your address book or safe list, this should insure that our newsletter will not end up in your junk mail.
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.
Subscribe to our E-Mail Newsletter, join the conversation on our Immigration Facebook Page, follow our Blog Posts and subscribe to our “How-To” Immigration Videos.
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.
Very Efficient and Professional!
“I would like to thank the team of Carl Shusterman’s Office who took care of my application for naturalization. Everything went well and very fast! Very efficient and professional!”
– Jennie Kil, San Francisco, CA
Read More Reviews
Zoom Consultations Available!
Newsletter US Immigration Update February 2009
TABLE OF CONTENTS:
- Immigration Legislation: CIR, E-Verify and Private Bills
- New Procedures for Obtaining Green Cards in Juarez, Mexico
- Schedule of Shusterman’s Upcoming Immigration Law Seminars
- Attorney General Rules No Right to Effective Legal Counsel
- Success Story: Saving a Science Superstar from Deportation
- Immigration Trivia Quiz: Immigrants in the Cinema
- Ask Mr. Shusterman: Using CSPA Retroactivity to Benefit Your Kids
- Immigration Government Processing Times
- Immigration Audios, YouTube Videos and WebCasts
- Winner of January 2009 Immigration Trivia Quiz
- Citizenship for U.S. Soldier – Last week, I received a letter from a U.S. Soldier, Dennis Sarsozo, originally from the Philippines who now resides in North Carolina, informing me that he had been sworn-in as a U.S. Citizen that day. He included a beautiful photo of him with his family. His letter was very moving to me and my associate attorney, Amy Prokop, Esq. For years, we had kept Dennis from being deported while the lawyer for his company worked on his green card application. We will tell Dennis’ inspiring story in a future newsletter. In the meanwhile, we are proud to feature Dennis and his family together with the letter that he sent to us last week in our “Photo Gallery” at
- E-Verify – On January 8, the USCIS announced that 100,000 employers (including our law firm, although this wasn’t mentioned in the press release) had enrolled in the “E- Verify” program. What the news release omitted was that, because of a pending Federal Lawsuit against the requirement that Federal Contractors enroll in the program by January 15, the government delayed this requirement until February 20, and again, by press time, to May 21. See Topic #1 below.
- H-2B Cap Reached – On January 8, the USCIS announced that the cap on H-2B nonprofessional workers had been reached for the second half of fiscal year 2009.
- Physicians and Therapists – In a sudden break from tradition, the USCIS began denying EB-2 petitions submitted on behalf of some IMGs with MBBS degrees. This issue usually arose where an educational credentials evaluation was submitted and the ETA 9089 requirements were for an M.D. degree or an equivalent “MBBS” degree.Fortunately, on January 9, the Administrative Appeals Office (AAO) reversed the USCIS’ denial of a hospital’s EB- 2 petition for an IMG hopefully putting this issue to rest. Caveat: This is, however, a non-binding decision. See
Now, the USCIS has started to deny H-1B petitions and I-140s for physical and occupational therapists who lack Masters degrees despite the fact that they possess both state licenses and health care certifications. Here we go again!
- Poverty Income Guidelines – The Department of Health and Human Services (HHS) has published new poverty income guidelines. Persons filing Affidavits of Support (Form I-864) must show that their household income is at least 125% of the current poverty income guidelines according to the number of persons in their household. For Affidavit of Support purposes, the new guidelines will be effective as of April 1, 2009. Our site links to the annual HHS Poverty Income Guidelines from 1996 to 2009. See our “Affidavit of Support” page at
- Visa Bulletin – There were few surprises in the February Visa Bulletin. The worldwide EB-3 category failed to move even a day forward. There were, however, advances in some of the other categories. To view the February 2009 Visa Bulletin, see our “Visa Bulletin” page at
- YouTube “How to” Immigration Videos – Over 10,000 persons have viewed one or more of our “How To” YouTube videos on immigration. We will bring several more immigration videos online during February. Subscribe now by clicking on “Subscribe to carlshusterman’s videos” at
1. Immigration Legislation: CIR, E-Verify and Private Bills
* Comprehensive Immigration Reform (CIR)
With our economy sinking from a recession into a possible depression, the first order of business for Congress and the Administration is to stimulate the economy.
Is there a chance that Comprehensive Immigration Reform will be enacted into law given the sinking economy? Although some people would like to use the economic downturn as an excuse to deport undocumented immigrants and even to compel companies to lay off workers on temporary visas, we see the situation differently. As a former INS prosecutor, it is very plain to me that mass deportations of millions of workers would be impossible to carry out and would do immense damage to our economy.
What if the government required the 10-12 million people without papers who live and work in the U.S. to pay Federal and State Income Taxes as a condition of being put on “a path to citizenship”, wouldn’t this help to pay for the economic stimulus package? Why should U.S. citizens and permanent residents have to shoulder this burden on their own? Comprehensive immigration reform bills all require that payment of income taxes is a prerequisite to applying for legalization.
We link to the CIR bills that were introduced in the House of Representatives and the Senate in January from our “Immigration Legislation” page at
They are the “Save America Comprehensive Immigration Act of 2009” (H.R.264) introduced in the House by Representative Sheila Jackson-Lee (D-TX) and the “Stronger Economy, Stronger Borders Act of 2009” (S.9) introduced in the Senate by Majority Leader Harry Reid (D-NV) along with a dozen co- sponsors.
Two Republican Congressmen introduced amendments to the economic stimulus bill in the House of Representatives which would require any company which receives government “bail-out” money to enroll in the controversial “E-Verify” program. The program requires employers to run potential employees names and social security numbers through the DHS and the Social Security Administration. The stimulus bill containing these amendments was approved by the House last week, but without a single Republican vote. Go figure!
The Senate is now considering the economic stimulus bill, and has rebuffed efforts to add an E-Verify requirement.
If the Senate passes a stimulus bill without the E-Verify requirement, the differences between the two bills will have to be resolved by a joint House-Senate Conference Committee in February.
P.S. – The unprecedented mandatory and retroactive requirement that all federal contractors enroll in the E-Verify program starting on January 15 was derailed when the U.S. Chamber of Commerce and a number of other business organizations challenged the requirement in Federal Court. The Bush administration then postponed the requirement until February 20, and the Obama Administration recently postponed the requirement a second time until May 21.
P.P.S. – The requirement that employers start using the new I-9 form on February 2 was also postponed until April 3.
* Private Bills
What happens when a Senator or Representative feels strongly that a person should be permitted to stay in the U.S. for humanitarian reasons even though there is no legal remedy in their immigration case? The Member of Congress may, in the most compelling cases, introduce a private bill. If passed by Congress, and signed into law by the President, the person may become a lawful permanent resident of the U.S.
Over the years, many of our clients have been fortunate enough to have private bills introduced on their behalf. See our YouTube videos telling the stories of Miguel Perez (El Salvador) and Guy Taylor (Canada) at
Also, see our story about the Cabrera (Mexico and Guatemala) family (Thank you Senator Feinstein and Congresswoman Lucile Roybal-Allard!) at
We are very pleased to announce that, in January 2009, Congresswoman Napolitano introduced a private bill for the Desai family (India) and Congressman Filner introduced a private bill for Flavia Cahoon (Philippines), both of whom we represent. We link to the text of these bills from our “Immigration Legislation” page at
* Piece-Meal Immigration Reform
What is the future of immigration reform in the new 111th Congress? No one knows for sure.
What we do know is that a number of important immigration programs are scheduled to expire on March 6, 2009. These include the popular Conrad 30 program for physicians, the EB- 5 Regional Center program for investors and the religious workers program.
Also, in the waning days of the 110th Congress in 2008, the House Immigration Subcommittee voted to approve legislation to ease the shortage of registered nurses and physical therapists in the U.S. as well as to recapture hundreds of thousands of immigrant visas lost due to governmental inefficiency. We trust that Representative Zoe Lofgren, the Chair of the House Immigration Subcommittee will again visit these bills so that the full House and Senate will have the opportunity to vote to approve these needed pieces of legislation early in 2009.
2. New Procedures for Obtaining Green Cards in Juarez, Mexico
There is only one U.S. Consulate in Mexico where people can apply for immigrant visas (aka green cards). This Consulate is located in Ciudad Juarez (CDJ). The DHS in CDJ issues both I-601 and I-212 waivers. As you may guess, this huge volume of work places an incredible burden on the consular and immigration officers stationed in Juarez.
Recently, one of our attorneys attended a seminar given by the chiefs of the consulate describing the most up-to-date procedures for obtaining benefits in Juarez.
Here are her notes:
The DOS and the DHS are now in the same building; applicants do not have to go to a different building to submit their I-601 applications.
In general, when an applicant enters the Consulate (for either an NIV or an IV interview), he will be given a number and directed to a waiting area. There are monitors that will display his number and the window that where he will be assisted. (There are 89 windows!)
Fees – The government does NOT accept cash and strongly discourages applicants from bringing cash because of crime in the surrounding areas. Better to bring a money order, a cashier’s check or a credit card.
Non-immigrant visa issues:
They will be switching to an electronic application system. The form is DS-160 and will be filed on-line. Accuracy is critical. If the applicant makes even a simple mistake on the form (wrong gender, wrong date of birth, etc.), there is no way to correct the information when they appear for the interview. This means they will be forced to re-start the whole process (file a new DS form; pay the fee again, etc).
K-1 and K-3 visa applicants are treated like immigrants; they do not file the DS-160.
Unlawful presence bars & minors:
In the past, CDJ had a policy that a minor could not be subject to the “permanent bar.” (This is the bar for 1 year of unlawful presence or deportation/removal followed by a subsequent illegal re-entry or attempted re-entry).
This policy has changed. They will now apply the permanent bar to a minor who has more than 365 days (cumulative) of unlawful presence (or an order of removal/deportation) and then enters or attempts to re-enter the US without authorization. (Shusterman’s comment: I believe that this policy is not in compliance with the clear language of the statute.)
The regular 3/10 year bars for unlawful presence are, of course, not applicable to minors since the statute explicitly says that no time accrued in the U.S. while the applicant is under 18 years of age shall be considered unlawful presence.
False claims to citizenship & minors:
Beware! The government will apply inadmissibility ground for a false claim to citizenship to minors. In other cases of misrepresentation, they will not find the applicant inadmissible if s/he was under 16 at the time of the misrepresentation.
Immigrant Visa Processing:
NVC will be doing all the document review; so when the case is transferred to CDJ, it should be 100% complete and accurate (including the I-864).
Inquiries to the Consulate should be made on their web inquiry form.
There are presently 3 full time I-601 adjudicators, and 2 staff who are on detail. There is a backlog of 9,000 I-601 applications. They are discussing opening an office in Los Angeles where they will only work on those backlog cases.
The applicant has to make his I-601 appointment through the Call Center. He can call to make his I-601 appointment as soon as he knows when his IV interview will take place (He just has to make his I-601 appointment for a date after his IV interview).
When an applicant arrives for his or her appointment, a clerk will take the I-601 packet. It is given to an adjudicator who spends approximately 10-15 minutes reviewing it. The adjudicator does not speak with the applicant.
The applicant is then told to pay a fee of (80) pesos at a kiosk inside the facility. This fee pays for the DHL delivery of the preliminary I-601 decision. The next day, the applicant can go to the DHL office (which is close to the Consulate) and pick up the preliminary decision.
He will either be informed that the I-601 was granted, and given instructions on how to obtain the actual immigrant visa, or he will receive a letter telling him that he has 30 days to submit additional information to support his I-601 application.
If his case is not granted right away, he can supplement the I-601 at any time up to the day he receives a decision. New information can be mailed, or sent via e-mail to the USCIS. This is good for people who prepared an I-601 without an attorney. If they hire an attorney later on, the attorney can file the supplemental documents even if it has been more than 30 days since the case was referred to the backlog. They do not need to file a new I-601.
Between 50% and 60% of I-601 waivers are approved upon filing. There is no information on what percentages of referred cases are ultimately approved. The cases in the “backlog” are taking about 13 to 15 months to decide!!
They will consider expediting an I-601 for serious medical issues. This excludes mental/psychological conditions that have come about due to the separation. If you have a physical medical condition, or a pre-existing mental condition, you can request an expedited decision on your waiver via e-mail.
If your client has any arrests or convictions, you must fully document and disclose them even if the charges were never filed or were dropped. They have been asking for police reports and juvenile records too! Even issues that would not make someone inadmissible can be considered for discretion. They want this information up-front from the applicant.
If an I-601 is denied, the applicant may appeal the denial. While the appeal is pending, it is possible to request a new I-601 appointment. The applicant should first contact the call center. They are required to submit a new immigrant visa application, new fees, have a new medical, etc. Basically they have to repeat the whole IV process. However, there is no need to file a new I-130 visa petition. After the new IV interview, they can schedule a new I-601 appointment.
The applicant does not have to withdraw a pending I-601 appeal before submitting a new I-601.
Tips for the attorney cover letter:
- The consulate will follow BIA case law, so citing cases from a Court of Appeals is a waste of time.
- The less legalese the better; if you are going to include any, save it for the end of the letter.
- Start off your letter with a summary of the case. It is helpful to have a bullet point list of the documents you are submitting.
- Do not bother including country condition evidence since the adjudicators live in Mexico!
The government only adjudicates I-212 applications (Application for Permission to Reapply for Admission into the United States after Deportation or Removal) in conjunction with an I-601 waiver application. So if your client does not need an I-601 waiver, CDJ will not accept their I-212 applications. These applications must be filed in the U.S.
They adjudicate the I-601 first. Because the I-601 standard is higher, if the I-601 is granted, approval of your I-212 is pretty much a given.
Additional information regarding visa processing at the U.S. Consulate in Ciudad Juarez, Mexico is available from their web site at
We link to the websites of all U.S. Embassies and Consulates from our “State Department: Immigration Resources” page at
3. Schedule of Shusterman’s Upcoming Immigration Law Seminars
- February 3, 2009
American Immigration Lawyers Association (AILA) Webinar
Topic: “Keeping Families Together – Update on CSPA”
- April 6, 2009
American Immigration Lawyers Association (AILA)
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) 584-9813 to reserve a seat.
Topic: “Immigration Workshop for International Doctors and Nurses”
- 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
4. Attorney General Rules No Right to Effective Legal Counsel
On January 7, in Matter of Compean, 24 I&N Dec. 710 (A.G. 2009), outgoing Attorney General Mukasey, in a 34-page decision, ruled that since persons in removal proceedings have no constitutional right to an attorney, they have no constitutional right to effective legal representation. Since removal proceedings are civil rather than criminal, many constitutional protections given to suspected criminals are not available to persons charged with being removable.
His ruling overturns two precedent decisions of the Board of Immigration Appeals, Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and Matter of Assaad, 23 I&N Dec. 553 (BIA 2003). Both of these decisions held that when an attorney makes an “egregious” mistake in a removal proceeding which results in “prejudice” to his client, and the client timely files a motion to reconsider, he is entitled to a new hearing if it is likely that, but for the mistake, the result of the hearing would have been different.
Most attorneys felt that the Lozada standard was overly harsh. In addition to meeting the standards stated in the previous paragraph, it required that a complaint be filed against the former attorney with the State Bar. Immigration laws and procedures are complex and ever changing and many attorneys make mistakes which should not affect their ability to practice law. Attorney General Mukasey, however, feels that the Lozada standard was too lenient although he does not believe that a complaint must be filed against the attorney who made the error.
Although he does not believe that an alien is entitled to a new hearing under the Due Process clause of the 5th Amendment to the Constitution, he states that under the right circumstances, an Immigration Judge or the Board of Immigration Appeals (BIA) may wish to reopen the case and grant the person a new hearing where there are “extraordinary” circumstances. However, under Matter of Compean, the decision to grant a new hearing is strictly a matter of “discretion” and a “matter of administrative grace”.
What is the practical effect of having the Compean standard replace the Lozada standard? Simply put, it’s the difference between a monarchy and a democracy.
In 1996, a law was enacted which prohibits the Federal Courts from reviewing discretionary decisions of the BIA. Under Lozada, a person can petition to have a Federal Appeals Court review the decision of the BIA not to reopen a removal proceeding where the issue is ineffective assistance of counsel. Under Compean, the decision of the BIA is final and nonreviewable.
Effectively, General Mukasey’s decision insulates such BIA decisions from judicial review.
Of course, it is likely that Matter of Compean and its two companion decisions, Matter of Bangaly and Matter of J-E-C, will be challenged in Federal Court.
Numerous Federal Appeals Courts have issued decisions which are at odds with Matter of Compean. A recent decision of the U.S. Court of Appeals for the 9th Circuit stated that “vulnerable immigrants are preyed upon by unlicensed notarios and unscrupulous attorneys who extract heavy fees in exchange for false promises and shoddy, ineffective representation.”
Reaction to Matter of Compean from organizations committed to immigrant rights was both swift and negative:
“This order will have a tremendous negative impact on countless people who will be deported simply because they had the bad luck to be represented by the wrong immigration attorney,” said American Civil Liberties Union Immigrants’ Rights Project Deputy Director Lee Gelernt. “This is a dangerous move away from the U.S. tradition of fairness and due process. Losing your case because your lawyer missed a deadline or made some other egregious error can never be considered a fair process.”
“We are outraged by this action” said Nadine Wettstein, the Director of AILF’s Legal Action Center. “With this ruling, the Administration is attempting to undermine an immigrant’s right to a fair hearing on whether he should be thrown out of the country. It is yet another in a long line of midnight changes and an example of this Administration’s disregard for fundamental principles of due process of law. It is also part of an ongoing attempt to eviscerate the federal courts’ role in protecting against Constitutional abuses by the immigration agency. We strongly disagree with the Attorney General’s pronouncements and are confident that federal courts eventually will reject this action.”
Is there any possibility that the new Administration will overturn Matter of Compean?
Perhaps there is. President Obama is currently reviewing all 11th hour regulations and decisions made by the previous Administration.
5. Success Story: Saving a Science Superstar from Deportation
Getting a green card is just a bunch of paperwork, right? If a reasonably intelligent person takes the time, studies how to prepare his case, questions attorneys who offer free consultations and participates in online discussion groups, he can prepare and submit immigration applications by himself and save a few thousand dollars in attorneys’ fees, correct?
If you answered “yes” to these questions, consider this cautionary tale.
A few months ago, we were approached by a young Professor of Physics who we will call “Dr. Sharma” (not his real name).
Dr. Sharma had been employed by various universities in the U.S., always in H-1B status. He had published many papers in prominent professional journals and these papers had been cited thousands of times.
In 2005, without the aid of an attorney, Dr. Sharma had applied for a national interest waiver. Simultaneously, he and his wife submitted applications for adjustment of status. In 2006 the USCIS denied both the national interest waiver and the adjustment of status applications.
Undeterred, Dr. Sharma again applied again for a national interest waiver and for adjustment of status for himself and his wife. While the petition (form I-140) and the applications (forms I-485) were pending, the couple moved to Southern California. Dr. Sharma logged into the USCIS website in order to notify the government of the couple’s change of address.
In 2007, USCIS denied the second national interest waiver and the two applications for adjustment of status and sent these denials to the Sharmas.
In 2008, Dr. Sharma and his wife moved to Texas where a university had submitted a change of status application from H-1B to O-1 (person of extraordinary ability) to the USCIS on his behalf in order to employ him as a Professor.
The university received a Request for Evidence (RFE) which stated that Dr. Sharma and his wife had been ordered removed from the U.S. by an Immigration Judge in Los Angeles in December 2007 and, therefore, USCIS could not approve his change of status application until he resolved the issue with the Judge.
An immigration attorney in Texas recommended that Dr. Sharma contact our office. He could not understand why he and his wife were ordered removed in 2007 since his H-1B status was valid until October 3, 2008. Furthermore, neither he nor his wife had ever received any notice of the removal proceedings.
We immediately reviewed the couple’s files at the Immigration Court in Los Angeles to obtain more information about what had happened. Upon reviewing their files, it became clear that the USCIS had committed an error. The notices summoning Dr. Sharma and his wife to the Immigration Court were sent to the couple’s former address which was listed on their first applications for adjustment of status.
Therefore, on September 18, 2008, we submitted a Motion to Reopen their cases and to rescind the orders of removal against them. Our Motion included documentation that Dr. Sharma and his wife did not receive notice of their removal proceedings in Immigration Court. Also, the Motion was accompanied by evidence that they were still in valid H-1B and H-4 status, and therefore, were not removable from the United States. On October 2, the Immigration Judge granted our Motion to Reopen, but did not terminate removal proceedings.
We researched the law and the issues in the case and appeared in Immigration Court on October 31 with Dr. Sharma and his wife. They had arrived from Texas the day before to attend this hearing with their new- born child. We submitted a Motion to Terminate the removal proceedings to the Immigration Judge informing her that they had been in H status until October 3, 2008 and that an application for a change of status had been submitted in a timely fashion and was still pending.
Our Motion to Terminate stated that the deportability of an alien on a “remained longer” charge cannot be sustained where the charge was brought prior to the expiration of the alien’s authorized period of stay. See Matter of Siffre, 14 I. & N. Dec. 444 (BIA 1973).
Since Dr. Sharma was eagerly waiting to begin his employment in Texas, he and his wife hoped that the Judge would immediately grant their Motion to Terminate, and that the USCIS would expeditiously grant their applications to change their status.
As a former INS prosecutor (1976-82), I know that things do not always move swiftly in Immigration Court. As I had warned Dr. Sharma before the hearing, the Immigration Judge gave the government attorney until December 15, 2008 to respond to our Motion to Terminate. She then scheduled the next hearing to be held on January 21, 2009. Mr. M and his wife returned to Texas. If he was not granted permission to work within a few weeks, Dr. Sharma resolved to return to his home country or to accept one of the many offers of employment that he had received from universities in Canada. There was no possibility that he would remain unemployed until January or February of 2009. I remember thinking what a sad loss this would be for our country.
We called the government attorney to try to get him to agree with our Motion to Terminate. On November 19, he filed a response to our Motion to Terminate. He wrote that the Department of Homeland Security did not oppose terminating the removal proceedings against Dr. Sharma and his wife. We were elated!
We immediately began drafting a motion to ask the Immigration Judge to advance the January 2009 hearing date. Before we had the chance to submit our motion, on November 20, we received the Immigration Judge’s written decision in which she ordered the proceedings against our clients terminated.
We immediately faxed the Judge’s order to Dr. Sharma. The university in Texas submitted the Judge’s order to the USCIS, and his change of status to O-1 was approved within a few days.
We were delighted. However, we were positively ecstatic when we received the following e-mail message from Dr. Sharma:
“I don’t know how to express gratitude enough except to say in my journey as a Physics Professor, I will pause and thank you both at my every major achievement. Thank you for saving my career.”
We are hoping that someday, Dr. Sharma will win the Nobel Prize in Physics. It would be fantastic to be mentioned in his acceptance speech in Stockholm!
Read more of our Immigration Success Stories.
6. Immigration Trivia Quiz:
7. Ask Mr. Shusterman: Using CSPA Retroactivity to Benefit Your Kids
For nearly six years (2002-08), the government maintained that the Child Status Protection Act (CSPA) did not apply to children who had “aged-out” prior to the enactment of CSPA unless they had immigrant visa petitions or applications for permanent residence “pending” on August 6, 2002, the day that CSPA was signed into law.
The only trouble with the agency’s position was that the law clearly says otherwise. In 2008, the USCIS finally accepted the fact that the law does not require a pending petition or application. The agency’s new interpretation of the law renders it retroactive in many thousands of cases.
How can you benefit from the agency’s new interpretation?
Consider an actual case of one of our clients who I will call Dario.
Dario entered the U.S. as an F-1 student in 2000. He was planning to attend medical school after he obtained his undergraduate degree.
Our law firm submitted an immigrant visa petition (I-140) for Dario’s mother, a registered nurse, on December 31, 2001. At that time, the INS did not permit concurrent filing of I-140s and I-485s. The petition was approved near the end of March 2002. On April 1, 2002, Dario turned 21 years old and, therefore, he was no longer eligible to adjust his status together with his parents.
If the INS had allowed concurrent filing, we probably could have obtained permanent residence on his behalf before his 21st birthday. Now, he was out of luck. However, because of situations like Dario’s, the Child Status Protection Act (CSPA) was signed into law on August 6, 2002.
I read the law very carefully to see whether it would benefit clients like Dario. The first paragraph of “Section 8” of the law states that
The amendments made by this Act shall take effect on the date of the enactment of this Act and shall apply to any alien who is a derivative beneficiary or any other beneficiary of–
(1) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) approved before such date but only if a final determination has not been made on the beneficiary’s application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition;
In plain English, this means that because Dario was “a derivative beneficiary” of an immigrant visa petition approved before CSPA, and no “final determination” had been made on an application for adjustment of status, Dario could submit an I-485 under the new law.
Our law firm prepared and submitted an I-485 on Dario’s behalf on October 8, 2002. The INS accepted the I-485 and issued Dario an EAD (work permit). Later, the agency renewed Dario’s work permit.
However, more than two years later, on November 23, 2004, the INS denied Dario’s I-485. The denial stated
“Thus, on August 6, 2002, you had already turned 21 and you had neither a petition nor application pending before the Service. In view of the foregoing, the provisions of the CSPA do not extend to your case…”
The INS decision was clearly erroneous since Section 8, paragraph 1 of CSPA (quoted above) does not require that a petition or application be “pending” on August 6, 2002. However, the agency took the position that despite the clear language of the law, paragraph 1 required that an application for permanent residence be pending on August 6, 2002. In a memo dated February 14, 2003, the INS maintained that there was a requirement that an application for permanent residence be pending on August 6, 2002 even where an immigrant visa petition had been approved prior to the enactment of CSPA.
Unfortunately, there is no provision in the law for one to appeal the erroneous denial of an I-485. Dario could have retained our law firm to challenge the denial in Federal Court, but he elected to continue with his studies, and not to challenge the erroneous INS decision.
Three years later, the Board of Immigration Appeals, in Matter of Avila-Perez, 24 I&N Dec. 78 (BIA 2007), ruled that there was no requirement that an I-485 be pending on August 6, 2002 if an immigrant visa petition had been approved before this date. Over a year later, the USCIS issued a memorandum (on April 30, 2008) reversing the “pending” requirement in the agency’s 2003 memo, and allowing applicants whose I-485 had been improperly denied due INS’ erroneous guidance in 2003 to submit motions to the agency to have their cases reopened and approved.
On July 23, 2008, we did just that on behalf of Dario. We did not receive an instant response, but on January 6, 2009, the USCIS approved Dario’s application for permanent residence and stated
“WELCOME TO THE UNITED STATES OF AMERICA This is to notify you that your application for permanent residence has been approved. It is with great pleasure that we welcome you to permanent resident status in the United States.”
We link to Matter of Avila-Perez and to the erroneous INS memo of 2003, the corrected USCIS memo of 2008 and the complete text of the law from our “Child Status Protection Act” page at
What does Dario’s case mean to you and your children?
It means that if you would be considered to be a child under CSPA, and a visa petition of your behalf or on behalf of one of your parents was approved prior to August 6, 2002, you may be able to benefit from CSPA retroactively, and apply for a green card immediately!
What happens if you were included in the petition filed on behalf of your mother or father, but you clearly “aged-out”? We believe you still may be able to benefit under CSPA. See “How CSPA Works with Respect to “Age-Outs” at
Do you have immigration questions of general interest to our readers? Send them to
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
8. Immigration Government Processing Times
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.
9. Immigration Audios, YouTube Videos and WebCasts Immigration Audios
10. Winner of the January 2009 Immigration Trivia 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)
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550, Los Angeles, California 90017, Phone: (213) 623-4592 Fax: (213) 623-3720
“We shouldn’t have litmus tests as to whether or not you can be a Republican. And we should be open-minded about big issues like immigration reform, because if we’re viewed as anti-somebody — in other words, if the party is viewed as anti-immigrant — then another fellow may say, ‘Well, if they’re against the immigrant, they may be against me.’ ”
– President George Bush January 12, 2009
Newsletter US Immigration Update February 2009 – Quick Links
Back Issues of Our Newsletter
Schedule a Legal Consultation
Subscribe to Our Newsletter
February 1, 2009