Volume Fifteen, Number Two
SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 40,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 30 years of experience practicing immigration law.
Published by the Law Offices of Carl Shusterman, 600 Wilshire Blvd, Suite 1550, Los Angeles, California, 90017. Phone: (213) 623-4592 x0.
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Newsletter US Immigration Update February 2010
TABLE OF CONTENTS:
- 1. Comprehensive Immigration Reform: Don’t Hold Your Breath!
- 2. EB-5 Regional Center Program: The Fast Lane to Permanent Residence
- 3. Schedule of Upcoming Immigration Law Seminars
- 4. Family Detained for No Reason 75 Miles from the Border – Why?
- 5. Success Story: Green Card for a Person of Extraordinary Ability
- 6. Immigration Trivia Quiz: From Page to Screen
- 7. Ask Mr. Shusterman: Becoming a U.S. Citizen Through Your Parents
- 8. Immigration Government Processing Times
- 9. Federal Courts May Review I-751 Hardship Waiver Denials
- 10. Winner of our January 2010 Immigration Trivia Quiz
- Bender’s Immigration Bulletin – I am pleased to announce that starting today, I will be writing a column in Bender’s Immigration Bulletin entitled “Practice Pointers”, advice for immigration attorneys. I am excited to join such luminaries as Stanley Mailman, Stephen Yale-Loehr and Dan Kowalski in this endeavor.
- BIA – On January 20, the Board of Immigration Appeals ruled in, Matter of Neto, 25 I&N Dec. 169 (BIA 2010) that Immigration Judges have authority to determine whether the validity of an alien’s approved employment-based visa petition is preserved under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2006), after the alien’s change in jobs or employers. Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), overruled. See
- Blog– Our weekly blog is entitled “Nation of Immigrants”. To read our blog, which deals with current immigration issues, or to receive a free subscription, see
We welcome your comments!
- Computer Professionals– For the past seven years, we have searched online computer magazines and linked to the most important immigration developments related to computer professionals. See our “Immigration for Computer Professionals” page at
- H-1Bs– On January 8, the USCIS issued a memo entitled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements”. Depending on how strictly USCIS Service Centers interpret the provisions of this memo, some “job shops” which place H-1B workers at remote sites may no longer be able to utilize the H-1B program. We link to the USCIS memo and to the agency’s Q&A regarding the memo from our “H-1B” page at
- Haitians Granted TPS– On January 21, the USCIS began accepting applications for Temporary Protected Status (TPS) for nationals of Haiti. Haitians in the U.S. must apply for TPS before July 20, 2010. They will be granted work permits valid until July 22, 2011. The message is posted on the USCIS website at
- Immigration Videos– Over 70,000 persons have viewed one or more of our 29 videos regarding various immigration laws and procedures. In January, we posted three videos online: Two concern how your family may benefit from the Child Status Protection Act. The other video explains how you may be eligible to obtain U.S. Citizenship through your parents and grandparents. One of our videos, “Green Cards through Marriage”, has been viewed well over 25,000 times. We now feature this video in three languages: English, Spanish and Chinese. Obtain free information about various aspects of U.S. immigration laws and procedures by viewing our instructional videos at
- Online Nonimmigrant Visa Application– It is now possible to use form DS- 160, the Nonimmigrant Visa Electronic Application to apply for nonimmigrant visas at certain U.S. Embassies and Consulates abroad. We link to a new State Department FAQs about this online system from our “Temporary Visas” page at
- Prevailing Wage Determinations (PWD)– On January 21, the National Prevailing Wage and Helpdesk Center (NPWHC) of the Department of Labor (DOL) began accepting electronic requests for PWDs online in conjunction with PERM application and petitions for E-3, H-1B, H-1B1 and H-2B status. These requests must be submitted through DOL’s iCert portal. Employers and their attorneys must activate iCert’s prevailing wage portal before submitting prevailing wage requests online. Since it may take up to 60 days to receive a response to your request, our advice is to apply early. We link to the iCert Portal, to the iCert Prevailing Wage Quick Start Guide and to the iCert Portal User Guide from our “PERM” page at
- Supreme Court Rules on Judicial Review of Motions to Reopen – On January 10, the Supreme Court held, in a unanimous decision in Kucana v. Holder, 558 U.S. ____ (2010), that the law at 8 U.S.C. 1252(a)(2)(B)(ii) does not bar Federal Courts from reviewing rulings by the Board of Immigration Appeals on motions to reopen a petition for asylum. We link to this important decision from our “Immigration and the Supreme Court” page at
- USCIS Blog– On January 21, the USCIS started a blog entitled “The Beacon”. We applaud the USCIS on this new venture, and hope that this will increase communication between the agency and the public. We link to The Beacon from our “USCIS” page at
- Visa Bulletin– We link to the February 2010 Visa Bulletin and to past Visa Bulletins from
- Web Site Redesign– After 15 years of being the webmaster on one of the world’s ugliest (but we hope informative) websites, we have decided to have our website redesigned. The new website will not only be more pleasing to the eye, but we hope that it will be even more helpful to our readers. If you have ideas about how our website can be improved, let us know by contacting us at
I listened intently to President Obama’s State of the Union speech last week. The President is clearly a gifted orator. He stressed the need for cooperation between Democrats and Republicans on the big issues facing our country: the economy, climate change and health care reform, but did he forget to mention immigration?
Finally, after the President was over one hour into his speech, I heard the word “immigration”. One sentence… It came and went so fast that if you turned to your spouse and said, “Okay, here comes the President’s plan for immigration reform”, you would have missed the whole thing.
Here are the 38 words in the speech which relate to immigration:
“And we should continue the work of fixing our broken immigration system — to secure our borders, enforce our laws and ensure that everyone who plays by the rules can contribute to our economy and enrich our nation.”
Has Congress been at work “fixing our broken immigration system”? If so, I must have missed it. Maybe it happened the same day that Scott Brown won Kennedy’s Senate seat in Massachusetts, and the story appeared on page C23 of the New York Times below a Bloomingdale’s bra ad. I’ll have to check the back issues of the newspaper.
Of course, since the President did not actually mention “Congress”, maybe he was talking about the Administration’s immigration policies. The DHS did grant TPS to the Haitians, a good thing that even some of the anti-immigrant folks agree with. Also, ICE announced that it was going to reform immigration detention shortly after the agency released a list of 107 detainees who have died while in ICE custody. This is certainly a welcome, if long overdue, development.
Even before the speech, I was skeptical about the possibility that Comprehensive Immigration Reform would occur before this year’s elections. See “CIR: You Can’t Always Get What You Want (When You Want It)” at
Now, following the State of the Union address, I can see that getting Congress to pass immigration reform legislation in a year of double-digit unemployment is far down on the list of the Administration’s priorities.
I, for one, am not holding my breath.
Congress created the EB-5 immigrant investor program in the early 1990s, and set aside 10,000 visas per year for this program, in order to encourage foreign-born persons to invest money in the U.S. economy and to create jobs for U.S. workers. The program requires persons to invest $1 million in a business and to hire a minimum of 10 U.S. workers. If the person invests in a rural area or in an area with high-unemployment, the amount of investment is $500,000.
During the first few years, the program failed to attract a large number of investors so, in 1993, Congress amended the law to create the Regional Center Pilot Program. This program which was recently extended until 2014, permits private and governmental entities within the U.S. to establish regional centers and allows foreign investors who invest $500,000 and create, either directly or indirectly, 10 jobs, to qualify for permanent residence in the U.S. Thirty percent of the 10,000 EB-5 numbers are reserved for investors in regional centers.
The procedure for all EB-5 cases requires that an investor who has met the requirements of the law submit an Immigrant Petition by Alien Entrepreneur (Form I-526) to the USCIS. Immediately upon approval of the petition, the investor and his family may apply for adjustment of status or for immigrant visas if they are residing abroad. Similar to marriage cases, EB-5 investors receive two-year conditional green cards. Prior to the expiration of the two- year period, the investor is required to submit a Petition by Alien Entrepreneur to Remove Conditions (Form I-829) after which the USCIS issues a ten-year green card.
Until recently, less than 1,000 persons per year were granted permanent resident status in the EB-5 category. Yet, despite the low numbers, a 2003 report by the government’s General Accounting Office (GAO) estimated that EB-5 immigrants had invested over one billion dollars in U.S. businesses.
However, in fiscal year 2009, the number of green cards which were granted under the EB-5 program almost tripled from the year before from 1,443 to 4,218. Although this was a dramatic increase from previous years, it represents less than half of the 10,000 visas allocated to the EB-5 program annually. We expect a large increase in EB-5 usage in this fiscal year. Why? Compared with most other family-based and employment-based categories where the backlogs often range from a few years to more than 20 years, those qualifying under the EB-5 category can obtain permanent residence very rapidly.
The number of government-designed regional centers has also expanded recently. A 2007 list published by the USCIS contained 20+ regional centers. The latest list which was last updated on the USCIS website on January 5, 2010 lists almost 80 regional centers in more than 20 states. Indeed, there are over 20 government-designated regional centers in the State of California alone. We link to the USCIS Chart listing all approved regional centers from our “Green Cards through Investment” page at
During our present economic downturn, the EB-5 program has created thousands of jobs for U.S. workers in a wide variety of industries. On December 31, 2009, National Public Radio broadcast a segment entitled “Recession Fuels Spike in Foreign Investment Visas”.
Investors are justifiably concerned about whether their I-526 and I-829 petitions will be approved. In the past, the EB-5 program was subject to much controversy and even to federal lawsuits. In 1998, the federal government suddenly, and without advance notice, changed the rules making it more difficult for investors to qualify for green cards under the EB-5 program. Four years later, Congress passed legislation to help investors who were victims of the new rules. The legislation provided that implementing regulations were to be issued in 2003. To date, the USCIS has yet to promulgate these regulations.
Despite this checkered history, those who have invested in regional centers during the past few years are gaining permanent residence at a record pace. The USCIS, in a meeting with the American Immigration Lawyers Association held on December 14, 2009, revealed that of the most recent I-526s and I-829s decided by the agency, over 80% had been approved. Some of the regional centers have perfect or near-perfect approval rates.
Investors should not depend solely upon immigration attorneys to guide them in selecting from among the myriad of approved regional centers. Law school did not train us to evaluate investment opportunities. However, once you have selected a regional center to invest in, let your immigration attorney guide you in complying with applicable immigration laws and procedures.
If you can afford it, the EB-5 Regional Center Program may be your fast lane to a green card.
- February 10 Seattle, Washington
American Immigration Lawyers Association
Topics: “Child Status Protection Act”
- February 23 Torrance, California
International Marketing Mixer
South Bay Association of Realtors
Topic: “Assisting International Clients”
For more information, call Anita Rodal at (310) 536-0046
- March 18 Los Angeles, California
Los Angeles County Bar Association
Topic: “Introduction to Immigrant Visas”
- June 30 – July 3 Suburban Washington, D.C.
American Immigration Lawyers Association Annual Conference
Topic: “Child Status Protection Act” (Discussion Leader)
On arriving at my office on Monday, December 28, 2009, I was informed that one of my clients and her family were being detained by CBP Officers at an inland checkpoint. I immediately called her on her cell phone, and spent the rest of the day in an effort to explain to the CBP that both my client and her family were legally present in the U.S. and should immediately be released from custody. Below is the story as told by my client. I hope this will inspire the CBP to better train its officers, to treat immigrants with respect and to open the lines of communication with immigration attorneys:
I am a Registered Nurse who has a pending application for adjustment of status for permanent residency in the U.S. I have been working in El Centro Regional Medical Center which sponsored me over 2 years ago. My family and I reside in El Centro, CA, a small city near the border of Mexico. It is very common for us to be checked by the Border Patrol when we go out of town, because anywhere we go there is a checkpoint. One checkpoint is located to the East if we are going towards Yuma, AZ, one is to the West if we are going to San Diego, CA, and another one is located in Indio, CA, if we are heading north.
As far as I know, you need to present a valid identification document if you are asked to prove that you are legally allowed by the U.S. Immigration Service to stay in the U.S. We had been in and out of our town several times and there has never been a single problem that we encountered when being checked by a Border Patrol agent as part of the routine inspection process.
On December 28, 2009, my family planned to go to Palm Springs, CA, to celebrate my husband’s birthday. We were all excited, especially my kids. We woke up early and headed towards Highway 86. We were very much aware that we were going to pass the checkpoint at Indio, CA. We carried our identification documents with us.
Around 8:30 am, we were checked, and sure enough, we were asked for our identification. We showed our EAD cards (for me and my husband) and Philippine passports for my 2 sons. The lady officer asked for some more documents and we showed papers from immigration that we had a pending adjustment of status for permanent residency. They instructed us to park on the side of the road, because they said that they still need to make some phone calls and check on their computer to verify something.
We were wondering why at this time, it took them quite a while to check whatever they needed to verify about our status. We saw the lady border officer approaching our car and, we were hoping that she would let us proceed on our family trip. Instead, she said that our kids were illegally staying in the US because they had an expired I-94s. My husband tried to explain that we all had pending applications for adjustment of status for permanent residency, so the I-94s had nothing to do with our status right now. The lady officer insisted that we were all wrong, and that whoever we got that information from doesn’t know anything. She emphasized that what she stated was correct because this was her job. She informed us that we could renew our I-94s at the nearest US border office for $6.00 each.
Another officer approached us and said he would need to check his computer. So, we waited again inside our car.
At that time, I knew I needed help because this was not the usual type of check that we had encountered before. There was something wrong going on.
I called my lawyer’s office and told the person who answered the phone the problem. She said to let the border officer check everything and not to worry because we had our legal documents and everything was good. She also said that Carl Shusterman would be in his office soon and that she would inform him about our situation.
While still on the phone, the lady officer approached us and said that I was not allowed to use my phone. I told her that I was merely asking my lawyer for help, but she insisted that I not make any calls.
After a while, the border officer who said he needed to do more checking came back. He said that the computer showed that our kids had overstayed their visas. He even questioned us as to why we sent them to school. He said that it was illegal for them to go to school without student visas. He also said that we could be charged with smuggling, and that our car could be taken away from us. The situation was getting worse, and the more me and my husband tried to explain, the more they got irritated. I informed them that it would be better if they spoke with my lawyer and that way he could explain more because he knows about our status. The lady officer replied that our lawyer doesn’t know more about immigration legalities than they do. She also commented in an irritated voice that we were facing deportation for illegally staying in the US with expired I-94s. She wanted us to cooperate and do everything they wanted us to do for our benefit in order to ease the process.
I was so confused as well as my husband because we could not believe what was going on at that time. It seemed that the border officers did not understand and did not know what they were doing. They were accusing us for nothing since we had done nothing wrong.
I received a phone call from Carl Shusterman, and told him everything that was going on. A lady officer approached us again in our vehicle and said that I really don’t understand that I am not allowed to use my phone. I informed her again that I was talking with my lawyer. I asked her if she could speak with him and I also told her that he could send them papers they needed to prove that we were not illegally staying in the US. She refused, and said they had their own system of checking which they can verify by themselves. She said that they were certain that we were all illegal, and then she left.
At around 11:00 am, 3 border officers approached our vehicle and they instructed us to step out from our car because we were being arrested for illegally staying in the US. I grabbed my phone again and tried to call back my lawyer. I was so hesitant to step out from our car. The lady officer said not to use my phone, but I told her that I just needed to inform my lawyer what was happening at that moment. My husband said that we had to follow their orders and just do whatever they wanted us to do and not to create any further problems. So, we all got out from our car, while I was still trying to get hold of our lawyer over the phone. I asked the lady officer to give me a few seconds to talk to my lawyer, but she was so aggressive and even tried to push me to move faster inside the detention area. One of the officers said that our lawyer would not be helpful and that usually they do not know about immigration, and that they only want our money.
According to my lawyer’s advice, we had to follow the procedure they wanted us to do and call him back afterwards.
Inside the detention area, more questions were asked, we were fingerprinted, and our pictures were taken. They had us sign papers. They called the Philippine consulate for us to talk, but they just left a message because they said there was no one available at that time.
They informed us as follows:
- We were illegally staying in the US with expired I-94s.
- It was illegal for us to apply for adjustment of status for permanent residency being B1/B2 visaholders when we came here. They said that our lawyer should know this.
- Illegal for letting our kids go to school in the US without proper visas. They informed us that we should have applied for student visas for our kids.
- Smuggling for owning a car in America.
- Illegally working in US, we should be carrying an H1C visa to be able to work in the US.
- Even though we had our EADs, we were illegally in the US because we didn’t have valid visas.
- Although we had “pending” applications for adjustment of status, there was no approval yet, so they said that we should be out of the country, and wait for the decision in the Philippines.
From all of these accusations they were telling us, it is clear that these Border Officers did not have any knowledge at all. Yet, they were trying to be smart and act like they knew everything.
They keep on telling us that our lawyer did not know the legalities of immigration, and that we had been informed incorrectly about our status.
We still managed to be patient and cooperate with them. They let our friend take our car instead of towing it. They informed us that we would be staying overnight in the detention area and would be transported to San Diego the following morning to go to a hearing before an Immigration Judge.
I asked them if I could make a phone call, because it was nearly 5:00 pm and I knew the offices would be closed soon and I might not be able to speak with my lawyer anymore. However, they did not allow us to make any phone calls because they said they still finishing some paperwork.
My husband and I kept ourselves calmed and composed, and were very respectful when dealing with the officers.
Since we couldn’t make any phone calls to reach for help even from our relatives in the US, I never had a wasted moment, because I kept on praying and told my sons that we should be praying for a miracle and let our Lord work to show His love and care for us.
We never ate our meals the whole day, but they were kind enough to give us crackers, juice (with an expiration date of 08/11/09) and water to drink from a dirty water jug. We needed to use our empty juice plastic container so we could drink the water as instructed by one of the border officers.
They let us stay inside the detention room together as a family, for which we were very thankful, but the room was not kept clean.
I told myself that we didn’t deserve being in this kind of situation and what was happening was not real. We were comforting our sons and asked them to be patient, and told them that it would be over soon.
At around 6:00 pm, an officer named Supervisor Gonzales asked my husband to step out from the detention room. He talked to my husband and said he just spoke to our lawyer. Our lawyer sent documents via fax and proved that all our papers were legitimate. When my husband returned inside the detention room, he told us that we were free to go.
I can’t explain what I felt at that moment. I was so relieved from the stress of the day, I was so happy, but was so exhausted and mad. I wanted to say something bad and curse all those Border Officers who apprehended us, degraded us and did not gave us a chance to prove that we did not do anything illegal at all. Instead, I just cried and hugged my husband and sons.
While we were waiting for our friend to pick us up, it was already 7:00 pm at that time, my phone rung and it was Carl Shusterman, our lawyer. I am so very thankful that he really worked hard all day to help us. I have never met him personally and had never spoken to him before. On that day that we were having a problem, I spoke to him for the first time and I felt his sincerity. No words were enough to thank our lawyer and all his staff. I am wishing more power to our lawyer and his office.
Looking back over and over again, if only the border officers agreed to talk to our lawyer and had allowed him to send all the documents they needed to verify our status from the very start of the event, there would never have been such a waste of time and a spoiled day for all of us especially on my husband’s birthday.
We witnessed how those Border officers worked hard doing their paperwork, although it turned out to be useless, nonsense and a waste of trees. All this paperwork will be shredded according to Supervisor Officer Gonzales, and all the information from the computer will be deleted. I hope they will do this after all.
To all the Border Officers working on that day at Indio, California, R Kearney, K Christoff, B Patterson, M Rucker, K Shurtleff and all the officers I can’t recall their names, I hope you had an experience that you will never forget and that you will learn from your mistakes.
I hope that in the future, the government will assign Border Officers who have knowledge of our immigration laws and who will be humanitarian enough to treat all individuals as equal.
In November 2008, our office was retained by a film-maker who was in the United States in temporary nonimmigrant status. The project for which he was in the United States to work on was experiencing issues that gave the film- maker concerns as to whether he would be able to maintain his temporary nonimmigrant status and sought our advice on his chances of being granted a green card as an alien of extraordinary ability in the EB-1 preference category. See
An individual of extraordinary ability is one who belongs to that “small percentage” who has “risen to the very top of the field of endeavor”. Since the film-maker’s accomplishments were prestigious but not necessarily overwhelming, we explained that it would be a tough case, but certainly one that was worth pursuing.
Persons of extraordinary ability may become US permanent residents without undergoing the labor certification process. In fact, such persons do not need an employer to submit a petition to the USCIS on their behalf since they are permitted to self-petition.
To be granted a green card as an alien of extraordinary ability in the arts, sciences, education, business or athletics, one must meet at least three of the following ten criteria, though these elements are difficult to define and the USCIS exercises a great deal of scrutiny in determining whether the alien has met the criteria needed for the EB-1 classification.
- Documentation of the alien’s receipt of lesser nationally or internationally- recognized prizes or awards for excellence in the field of endeavor;
- Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
- Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
- Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
- Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business- related contributions of major significance in the field;
- Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
- Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases;
- Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
- Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
- of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
In January 2009, our office assisted the film-maker in preparing and filing his self-petitioned I-140 immigrant visa petition and at the same time, we prepared and submitted Immigration form I-485 applications for him and his wife to adjust status. This allowed them to receive employment authorization documents i766 that allowed them to work in the U.S. while their I-485 applications were pending. See
In July 2009, the USCIS issued a Request for Evidence in response to the I-140 immigrant visa petition asking for additional documentation demonstrating that the film-maker met the criteria as an alien of extraordinary ability. Our office worked with the film-maker to gather additional information and prepared a response to the USCIS on his behalf. One month later, the I-140 was approved.
Then, in September 2009, the USCIS issued a Request for Evidence regarding the I-485 application to adjust status asking for evidence that the applicant was “engaged in his field of endeavor.” We were able to provide evidence of his ongoing film projects that were sufficient to meet the USCIS’s concerns and our client was granted lawful permanent residence in November 2009.
While it was not an easy case, we were happy to be able to help the film- maker and his wife achieve lawful permanent residence within one year of retaining our law firm.
To read more of our Immigration Success Stories, see
This month, we posted a new video online entitled “How to Obtain Citizenship Though Your Parents and Grandparents”. See
The laws regarding obtaining U.S. citizenship for a person born outside the U.S. through their parents/grandparents are both complex and ever changing.
Fortunately for me, deciding such applications was my job in 1978 and 1979 when I worked as an attorney for the U.S. Immigration and Naturalization Service.
Besides the video mentioned above, we provide four charts which allow persons to determine whether they may have “acquired” citizenship at birth or “derived” citizenship as a minor though their parents and grandparents. We link to these Nationality Charts through our “Obtaining U.S. Citizenship” page at
Many persons, most of them from Canada, Mexico, Israel and the Philippines, do not even realize that they are U.S. citizens until they are adults.
We have stopped persons from being deported and assisted those who would have had to wait many years to obtain green cards simply by proving that they were U.S. citizens through their parents.
Derivative citizen applications may be submitted to the USCIS, to the Passport Office or to U.S. Embassies and Consulates abroad.
Do you have immigration questions of general interest to our readers? Send them to
If your question is neither short nor general, please schedule a 30-minute legal consultation with me at
We link to the most recent immigration waiting times for each of the four USCIS Service Centers, the National Benefits Center and the Administrative Appeals Office. We also link to the processing times of all of the 83 USCIS District Offices and Sub-offices. We link to the Labor Department’s page entitled “Processing dates for labor certification applications”. Finally, we link to the State Department’s “Visa Wait Times” page.
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) which severely restricts the ability of Federal Courts to review decisions of the Board of Immigration Appeals (BIA), especially those which are “discretionary” determinations. Many of these discretionary decisions involve whether “extreme hardship” or “extraordinary and extremely unusual hardship” exists in a specific case.
We, therefore, are interested in Federal Court decisions where it is determined that the Courts have the ability to review a ruling by the BIA, particularly where it is determined that the judiciary retains jurisdiction to review administrative decisions regarding whether the required degree of hardship exists.
In a recent decision by the U.S. Court of Appeals for the Ninth Circuit, Singh v. Holder, No. 07-73792 (January 8, 2010), the Court held that it had jurisdiction to review a BIA determination as to whether there was “extreme hardship” in the context of an I-751 waiver petition. Although the Court ultimately dismissed the petition for review, its holding is significant.
Here are the facts:
Mr. Singh became a conditional permanent resident through marriage to a U.S. citizen. Nearly two years later, the couple submitted a joint petition to remove the two-year condition. However, at the interview, the citizen wife alleged that the marriage was fraudulent and withdrew from the joint petition.
Mr. Singh was placed in removal proceedings where he submitted an I-751 waiver petition based on “extreme hardship”. Although the Immigration Judge found Mr. Singh to be credible, he denied his I-751 after finding that he did not meet the “extreme hardship” standard. The BIA affirmed.
The Appeals Court discussed whether they had jurisdiction to review the BIA’s finding that the “extreme hardship” standard had not been met. The Court examined the text of Section 216(c)(4), INA, the I-751 hardship waiver provision. First, the statute provides that the BIA must determine whether the petitioner meets one of three alternative criteria required to establish that “extreme hardship” exists. Second, if the petitioner satisfies any of these criteria, the BIA “may” grant the waiver.
The Court held the question of whether the petitioner has demonstrated “extreme hardship” is a legal standard, and therefore, is reviewable by the Court. Once this standard is met, however, the question as to whether to grant the waiver is purely discretionary, and is not reviewable in Federal Court.
The Court then proceeded to examine whether the BIA failed to find extreme hardship because as the petitioner contended, the Board: (1) did not consider the hardship to other family members; (2) did not define the period of time for which hardship was relevant; and/or (3) failed to consider the hardship factors in the aggregate. However, the Court found no legal errors in the BIA’s decision.
Nevertheless, the holding in Singh v. Holder is important because it states that under the pertinent statute, Federal Courts have jurisdiction to review extreme hardship determinations in the context of I-751 waiver applications. It should be noted, however, that the Court did not extend this review authority to hardship determinations to applications for suspension of deportation or for cancellation of removal for nonpermanent residents.
Still, immigrants and their attorneys should be encouraged that the Court recognized that despite the 1996 IIRAIRA law, some hardship determinations are reviewable in the Federal Courts.
We link to Singh v. Holder from our “Green Cards Through Marriage” page at
We received the winning entry on January 7th. Below is the message that we received from the quiz winner:
Dear Mr. Shusterman,
The answers to the Immigration Trivia Quiz are as follows:
- Ignatius Rusli
Badminton coach – Indonesia
- Fernando Clavijo
Soccer – Maldonado, Uruguay
- Liang Chow
Gymnastics – China
I am from the Philippines and a beneficiary of 245i from a family-based petition. I have been checking your website for almost a year. My girlfriend is the one who is the subscriber to your newsletter and also one of your clients.
Dear Mr. Morales,
Certified Specialist in Immigration Law, State Bar of California (1988 – present)
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
“And we should continue the work of fixing our broken immigration system — to secure our borders, enforce our laws and ensure that everyone who plays by the rules can contribute to our economy and enrich our nation.”
– President Obama, State of the Union Address, January 2010
Newsletter US Immigration Update February 2010 – Quick Links
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February 1, 2010
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.