Volume Six, Number One
SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 40,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 30 years of experience practicing immigration law.
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Newsletter US Immigration Update January 2001
This month’s issue contains the following topics:
- February 2001 State Department Visa Bulletin
- Latest INS/State Dept/Labor Dept Processing Times
- § 245(I) – A Simple Guide To A Much Misunderstood Benefit
- H-1B: New Regulations Issued By The Labor Department
- Immigration Trivia Quiz: The Agency From Hell?
- Legislation: President Signs LIFE Amendments Into Law
- Web Site: DOL’s “Foreign Labor Certification” Site
- Nurses: Will This Be Another Bad Year For Patients?
- Chat Schedule, Transcripts, Audios & LegalElite
- Answers To December’s Immigration Trivia Quiz
- Citizenship:The U.S. Supreme Court heard oral arguments yesterday in Nguyen v. INS, a case that seeks to strike down part of the federal citizenship law on grounds that it violates the Fifth Amendment’s equal protection provisions by making it harder for U.S.-citizen fathers to get their foreign-born children naturalized.The case concerns whether a child born in Vietnam acquired citizenship at birth through his mother’s husband who is a U.S. citizen, but is not his father. Requiring fathers to take more steps than mothers to pass U.S. citizenship to their children is a violation of equal protection of the law according to a brief filed with the Court by the National Organization of Women’s Legal Defense and Education Fund.
- Detention Regulations:On December 21, 2000, the INS published final regulations regarding detention for persons who have been ordered deported. See
- EOIR:Statistical Yearbook 2000 – What are your chances, statistically, of winning your appeal before the Board of Immigration Appeals? Find out by reading EOIR’s Statistical Yearbook for 2000, a 47-paged (PDF) document released on January 9, 2000. The yearbook contains numerous interesting facts. For example, although less than half of all respondents in removal proceedings were represented by an attorney, two-thirds of all those who filed appeals were represented. See
- LCA FaxBack System:The Labor Department’s up-again, down-again LCA FaxBack System is currently up and running. In fact, it is processing LCAs submitted today. If you filed an LCA prior to today, and have yet to receive it back, sent it in again. See
- New Form:The new form I-129W (used when filing an H-1B petition) is available on online from our free forms download page at
The INS prefers that you use the new version of the I-129W although the agency does not yet have sufficient supplies of the new form on hand to require its use. The INS’s Tracy Renaud states that use of the new form “will speed processing” of your H-1B petitions.
- Prosecutorial Discretion Guidelines:Before she resigned as the INS Commissioner, Doris Meissner issued a detailed memorandum on prosecutorial discretion in deciding whether to place someone under removal proceedings. The INS issued a fact sheet regarding the memo at
The memo itself is available as a PDF file at
- Vehicle Seizures:For years, the INS has been seizing vehicles of persons suspected of transporting illegals across the border, even when the agency does not bring charges against the owner. If you had a car (or plane or yacht) seized by the INS during the past ten years, you may be interested in the recent settlement of a Federal lawsuit, Gete v. INS.
- Walters v. Reno:This proposed class action settlement would vacate final orders issued against persons found to have violated section 274C document fraud provisions who were provided faulty information regarding their rights to contest the charges. A hearing is scheduled on the proposed settlement on February 22, 2001.For a brief background of this case, see our profile of Attorney Linton Joaquin’s National Immigration Litigation Center and their victory in Walters v. Reno in the U.S. Supreme Court at
For the Family categories, the movement of priority dates slowed to between one and two weeks, with worldwide first preference (unmarried sons and daughters of U.S. citizens) marking time for the second month in a row. India 4th (brothers and sisters of U.S. citizens) advanced two weeks. Some FB numbers are currently unavailable. They will be posted on our web site soon.
On the Employment side, only the worldwide and Indian numbers are available. We hope to post the complete January 2001 Visa Bulletin online within the next 24 hours. With the exception of unskilled workers, all worldwide EB numbers remain current (no backlog). The Indian EB-2 and EB-3 numbers moved slowly, one week and two weeks, respectively. Because of the “recapture” provisions of the new H-1B law, we expect that within six to twelve months, the backlogs in the EB-2 and EB-3 categories will disappear. The priority date for unskilled workers advanced three months to August 1, 1996.
For an explanation of what the categories, dates and symbols listed below mean, see
APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES–
|5th Non-Regional Center (C5 and T5)||Current||Current||Current||Current||Current|
|5th Regional Center (I5 and R5)||Current||Current||Current||Current||Current|
APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES– These dates are consistent with prior visa bulletin priority dates.
Most immigration applications and petitions must be submitted to one of the following INS Regional Service Centers: (1) Laguna Niguel, California; (2) Lincoln, Nebraska; (3) Mesquite, Texas; and (4) St. Albans, Vermont.
Our web site contains the waiting times of each center and enumerates each state served by the center and any foreign offices within the center’s jurisdiction.
The service centers periodically issue lists of their processing times for various types of applications. Our web site contains the latest list issued by each service center.
Warning: Processing times may appear faster on the official lists than they are in reality.
To see how fast (or slow) your service center is processing a particular type of petition or application, see
Processing times at INS District Offices may be accessed at
3. 245(I) – A Simple Guide To A Much Misunderstood Benefit
Is it an amnesty? Does it protect you from deportation? Does it give you a work permit? Is it a quick route to a green card? And if it is none of the above, which is true for most people, then what good is it?
When Congress reauthorized section 245(I) on Friday, December 15, we deemed this development so significant that we posted a section 245(I) FAQ on our site the next day at
and an audio about section 245(I) the day after that at
Link to audio no longer available
On December 17, we sent out an e-mail Special Alert regarding section 245(I) and the other amendments to the law. We hired a former INS officer to conduct 15-minute interviews regarding section 245(I) eligibility. There is so much interest in the benefits of this section of law that her schedule has been continuously booked up.
Yet, despite all this effort, many of our readers remain confused about what section 245(I) is, and whether it applies to them.
So, let us try to explain section 245(I) as simply as possible:
Most persons obtain permanent residence either in the U.S. by a process called “adjustment of status” or at a U.S. Consulate abroad where they are issued an “immigrant visa”.
Beginning in the 1970’s, Congress placed a number of restrictions on qualifying for adjustment of status. In general, it is not available to persons who: (1) entered the U.S. without being inspected by an immigration officer (in most cases, they snuck across the border); (2) overstayed their authorized stay in the U.S.; or (3) violated their status in the U.S. (Example: by working on their tourist visa.) Although there are certain exceptions to this rule (Example: “Immediate relatives” of U.S. citizens may adjust status even if they overstayed or violated their status.), most of these people are ineligible for adjustment of status in the U.S., and must return home to apply for an immigrant visa at a U.S. Consulate abroad. Are you with me so far? Good!
This worked fine until 1997 when a law passed by Congress the year before became effective. The law provides that a person who was “unlawfully present” in the U.S. for over 180 days, or over one year, after April 1, 1997, is barred from reentering the U.S. for three years or ten years, respectively. Waivers of the bars are available where the person can prove their U.S. citizen or permanent resident spouses or parents would suffer “extreme hardship” if they were not allowed to return to the U.S. This proved to be a major disincentive to leaving the U.S. even to apply for an immigrant visa abroad. Still with me? Okay.
Fortunately, for everyone, Congress had already enacted section 245(I), which took effect on October 1, 1994.
*** Section 245(I) simply allows a person who is eligible for a green card and who is present in the U.S., but who would otherwise be ineligible to adjust his status, to pay a $1,000 fine and do so.***
That’s all there is to it! It’s not an amnesty, doesn’t protect illegals from deportation, doesn’t provide you with a work card, and doesn’t speed up your green card.
Then why is it so important? To simplify: Congress ended the first section 245(I) on January 14, 1998. However, most persons with either labor certifications or either employment-based or family-based visa petitions filed by that date remain 245(I)-eligible. If you are 245(I)-eligible, can you immediately apply for a green card? No! You must wait until your priority date is “current” (See
) before you can apply for adjustment of status. When you apply for adjustment of status, you can also apply for a work permit, but probably not for a travel permit (Remember the three and ten-year bars? They still apply until you become a permanent resident.)
What if you missed the January 14, 1998 deadline? You, and hundreds of thousands of other people, were out of luck. If you could not adjust status either because you entered the U.S. illegally or you overstayed your visa, you probably could not return home to get your green card because of the three and ten-year bars. You were in a “Catch-22” situation!
That all ended on December 15, 2000 when Congress reauthorized section 245(I). The new law, however, has a couple of catches. One, to qualify for the new section 245(I), you have to prove that you were in the U.S. on the day that the President signed the law. This occurred on December 21, 2000. Two, your (potential) employer or your relative must file an application or a petition by April 30, 2001 for you or your spouse to qualify for a green card.
I think that a few of you are still not 100% clear about section 245(I), so let me give you a few examples of how section 245(I) works:
EXAMPLE #1: The wife is a U.S. citizen. The husband entered the U.S. illegally across the Mexican border more than one year ago. Normally, the husband would not only have to return to Mexico to apply for an immigrant visa, but would have to get a waiver to avoid the ten-year bar to return to the U.S. Although most waivers are granted, the husband would be forced to wait in Mexico for 10 to 12 months while the INS approved his waiver. Our law firm represents a couple in Ohio with a case exactly like this one. The husband was supposed to fly to Mexico on December 16, apply for his green card, and be separated from his wife for approximately one year. However, as soon as Congress passed the section 245(I) amendment on December 15, we called him and told him to cancel his flight. We are now applying for adjustment of status and a work permit for him. Paying $1,000 to the INS is a small price for being able to remain together with his wife.
EXAMPLE #2: Raj is a computer programmer in his third year of college in Georgia. Unfortunately, he is not in legal status. When he finishes school, he will not be able to go abroad (not even to Canada or Mexico) to obtain an H-1B visa because he is subject to the 10-year bar. However, Raj’s wife’s sister is a U.S. citizen. She has never bothered to apply for Raj’s wife because the waiting time from sister-to-sister petitions for persons born in India exceeds 12 years. Last week, we prepared and submitted a visa petition for Raj’s wife. Since we did so before April 30, 2001, this made both Raj and his wife 245(I)-eligible. So what, you say, who wants to wait 12 years to get a green card?
The solution to this is for Raj to have a potential employer sponsor him for permanent residence after he graduates in June 2002. But since this will be after April 30, 2001, won’t that be too late? Not at all. Raj is 245(I)-eligible because his sister-in-law’s petition was filed (although not approved) by April 30, 2001. Once the petition is filed, Raj became 245(I)-eligible for LIFE. This is true even if his sister-in-law has a change of heart and withdraws the petition prior to approval. It’s true even if (God forbid!) Raj’s wife dies or they are divorced (and remarry) before the approval of the petition.
EXAMPLE #3 – Let’s assume that you visited the U.S. on the Visa Waiver Program and spent the month of December 2000 here. At this time, you have no intention of remaining in the U.S. However, your spouse’s parents live in the U.S., and they prepared and submitted a visa petition on her behalf during January 2001, just because they read our “Section 245(I) FAQ”.
In the year 2006, you and your wife are both living and working in the U.S., quite illegally. The visa petition filed in January 2001 is nowhere near current. In desperation, you apply for the green card lottery and win!
Normally, because you are illegally in the U.S., you are ineligible for adjustment of status. You can’t go home to apply for a green card because you are subject to the 10-year bar. What do you do? You can adjust your status under the lottery by paying a fine since the petition filed in 2001 made you 245(I)-eligible for life!
Got it? I hope so! If you think that you may be able to establish 245(I) eligibility by April 30, 2001, see
and no matter where you live in the U.S., we will be glad to assist you in qualifying under this wonderful section of the law. Don’t wait too long. The clock is ticking!
The new “interim final” DOL regulations implement the American Competitiveness And Workforce Improvement Act of 1998″ (ACWIA). That was the law which increased the H-1B cap from 65,000 to 115,000 annually. It also placed a number of restrictions upon employers who hired H-1B workers, particularly “H-1B dependent” employers.
To refresh your memory, the complete text of the 1998 law is at
and a section-by-section summary of the law, prepared by the American Immigration Lawyers Association, is available at
Two years ago, the DOL proposed regulations to implement ACWIA, raising 59 questions as to the proper interpretation of the law. see
Finally, on December 20, 2000, the DOL published lengthy regulations to implement the 1998 law. see
The new regulations are not an easy read. Unless you are an immigration attorney, I recommend that you instead read the two excellent summaries of the regulations prepared by the American Immigration Lawyers Association (AILA). The first AILA summary which may be accessed at
discusses provisions of general applicability including:
- The New Three-Page LCA Form (must be used starting January 19, 2001). For more information on the new form and filing procedures, see
https://www.shusterman.com/lca-new01.html (Link no longer operational)
Both the new LCA form (ETA-9035) and the nine-page instruction form (ETA-9035CP) may be downloaded from our free forms download page at
- H-1B Portability
- Corporate Reorganizations
- Traveling Employees
- Prevailing Wage – Service Contract Act Wages
- Prevailing And Actual Wage When A New Prevailing Wage Is Obtained
- Actual Wage Documentation
- Prevailing Wage For Employees In Higher Education Or Governmental Or Nonprofit Research Institutions
- Attorneys Fees
- The “No Penalty” Penalty
- Notice Requirement
- Complaints By Non-Aggrieved Parties
- New Violations And Penalties; Investigations
- Key Dates: Most of the provisions of the regulations are effective on January 19, 2001. Comments on the regulations are due by February 20, 2001.
The other AILA Summary is specifically concerned with the portions of the regulations applicable to “H-1B Dependent Employers”. See
For the record, an employer is considered to be H-1B Dependent if:
- he employs 25 or less “full-time equivalent (FTE) employees”, at least 7 of whom are in H-1B status;
- he employs between 26 and 50 FTE employees, at least 12 of whom are in H-1B status; or
- he employs more than 50 FTE employees, at least 15% of whom are in H-1B status.
H-1B dependent employers, unlike other employers, must attest to both the Displacement and Recruitment attestations on the new LCA form.
6. Legislation: President Signs LIFE Amendments Into Law
On December 21, 2000, President Clinton, unable to get his LIFA amendments through Congress, signed the Republican-sponsored LIFE amendments into law.
For AILA’s excellent summary of the LIFE amendments, see
The LIFA amendments would have been a boon to immigrants, advancing the registry date to 1986, permanently restoring section 245(I) to the law, and granting parity to hundreds of thousands of Central Americans under NACARA.
The LIFE amendments will do far less. It is important to emphasize that it will not be possible to apply for a “V” visa, a “K” for spouses of U.S. citizens, or for permanent residence under the “late amnesty” amendments until INS issues regulations implementing the LIFE amendments. Because of space limitations, we will analyze only the new “V” and the expanded “K” visa category in this issue:
A. The “V” Visa: Lawful permanent residents who have applied for spouses and children under the family-based 2A category must wait over four and one-half years for them to immigrate to the U.S. If the beneficiaries are born in Mexico, the wait exceeds six years. During this time, the spouses and children are supposed to remain in their home countries waiting for their immigrant visas. If they remain illegally in the U.S., the spouses are usually subject to the 10-year-bars of inadmissibility when they return to their home countries to apply for immigrant visas. There, they can apply for waivers based on “extreme hardship” to their permanent resident spouses. The waiver process usually results in the spouses being separated for an additional ten months to one year. Forcing spouses and children to remain separated for years at a time makes a mockery of the claim that our country believes in family values.
We believe that treating spouses and children of permanent residents as “immediate relatives” is what is needed to insure family unity. see
and scroll down to “Family Values For Immigrants?” The goals of the “V” visa are much more limited. The “V” visa is a work visa for spouses and children who have been waiting abroad for a minimum of three years after 2A visa petitions were filed on their behalf. Alternately, if the spouse and children have been waiting in the U.S., legally or illegally, it enables them to change to “V” at the end of the three-year period. These persons will be able to adjust their status under §245(I) upon payment of a fine when their priority dates are current, thereby keeping the family intact during the two to three year period while they await their interviews for adjustment of status.
Importantly, only spouses and children who were petitioned under the 2A category by December 21, 2000 may be eligible for “V” visas. Persons present in the U.S. on that date who were petitioned after December 21, 2000, but on or before April 30, 2001, can establish eligibility not for a “V” visa but for §245(I).
B. Expanded “K” Visa Category – In the past the “K” visa was limited to fiancees of U.S. citizens. see
The new law expands the definition of the “K” visa to include spouses and children of U.S. citizens.
In order for a spouse of a U.S. citizen to qualify for a “K” visa, the U.S. citizen must have submitted an immigrant visa petition on behalf of the spouse. The U.S. citizen must then file a “K” petition for the spouse and any children residing abroad. Upon receiving “K” visas abroad, the spouse and children may enter the U.S., begin working, and immediately apply for adjustment of status to permanent residence.
Unlike the “V” visa, there is no limitation upon when the U.S. citizen may petition for his or her spouse and children. Also, spouses and children of U.S.citizens who are present in the U.S. may not change to “K” status.
Like the “V” visa, no “K” visas will be issued to spouses and children of U.S. citizens until after the INS and the State Department issue regulations implementing the new law. This may not occur for several months.
In an upcoming issue, we will analyze LIFE benefits to late amnesty filers (CSS, LULAC and Zambrano) and the new “premium processing fee”. Again, these provisions of law require INS regulations to be issued before they are implemented.
The U.S. Department of Labor (DOL) has the authority to regulate the ability of U.S. employers to hire foreign-born workers and sponsor them for permanent residence or a growing numbers of temporary, nonimmigrants visas.
The DOL devotes a portion of its web site to informing employers regarding the following programs involving “foreign labor certifications”:
- A. Permanent Labor Certification
- B. H-1B Specialty (Professional) Workers
- C. H-1C Nurses in Disadvantaged Areas
- D. H-2A Temporary Labor Certification
- E. H-2B Temporary Labor Certification
- F. D-1 Crewmembers Certification
For each program, the DOL provides a summary of what the agency’s function is, and gives employers information about what forms to file, where to file them, how to file, program regulations, how to find wage information, etc.
To access the DOL’s “Foreign Labor Certification” site, click on
and scroll down to “Foreign Labor Certification”.
All the relevant DOL forms may be downloaded (as PDF files) for free from our web site at
Included among these forms is the new three-page Labor Condition Application (ETA-9035) form which must be used starting January 19, 2001 and the nine-page instruction sheet for completing this form.
Scroll down a little farther on
and you will come to “Foreign Labor News”. Click here to find such items as
- Information Regarding Upcoming Changes To The H-1B Program
- The Current State of The LCA Fax-Back System
- Fact Sheet Describing The Status Of The LCA Fax-Back System
A District Court Judge in Washington, DC has ruled that the Department of Labor exceeded its authority in promulgating a regulation under the Immigration Nurse Relief Act of 1989 (INRA) which requires health care providers to pay foreign-born H-1A registered nurses at the “prevailing wage” in the facility’s geographic area. Beverly Enterprises Inc. v. Herman, No. Civ. A. 97-2475-SSH, 2000 WL 1693741 (D.D.C. Oct. 26, 2000) Since INRA expired in 1995, the issue would be purely of historical value. However, on August 22, 2000, the Labor Department issued interim final regulations containing the same “prevailing wage” requirement that was struck down by the court. The regulations were promulgated to implement the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDDA).
I have more than a passing interest in this issue, having authored the comments on the regulations for the American Immigration Lawyers Association on both INRA and NRDDA (Note: Our law firm represents hospitals across the U.S.).
I am pleased that AILA objected that the prevailing wage requirement in DOL’s regulations had no statutory basis. See Comment #3 – “The Law Does Not Impose A Prevailing Wage Requirement Upon Hospitals”.
Hopefully, the Labor Department, in its final regulations, will delete this requirement.
In other immigration news relating to nurses, the INS has, after 14 months, still not published regulations implementing the NRDDA, Lamar Smith’s joke-of-a-law which would permit 14 hospitals in dire need of nurses to obtain temporary H-1C visas for them. In a little informal survey that I did last week among my AILA colleagues, it is apparent that no H-1C petitions for nurses have been approved.
As the nurse shortage increases in severity, an increasing number of patients have died, according to an excellent series of articles in the Chicago Tribune, because nurses are expected to care for more patients than is reasonable. To prevent death and disability caused by the nursing shortage, granting temporary visas to foreign-born nurses is clearly warranted.
In May 1999, we pioneered the concept of free online chats on various immigration topics. Our chats are always focused on a particular subject. Together with About.com’s Immigration Guides, Jennifer and Peter Wipf, we have conducted over two dozen chats on a wide variety of subjects, all related to immigration laws and procedures.
Our most recent chat was held on December 22, 2000, and was entitled “Section 245(I) And Other Immigration Benefits”.
For a list of chat transcripts, see
Due to a thousand questions that we have been receiving about the temporary reauthorization of section 245(I), we have added a new audio message entitled “Qualifying Under The New Section 245(I) Amendments”. Listen to this, and our other audios at https://www.shusterman.com/audiosvideoswebcastsusimmigration.html
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
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January 10, 2001