Newsletter US Immigration Update January 2007
Volume Twelve, 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 2007
TABLE OF CONTENTS:
- Immigration Legislation: The Outlook for 2007
- Restoring Sanity to Immigration Laws & Fees: A Modest Proposal
- Employers: How to Avoid Immigration Penalties and Raids
- Success Story: Helping an Immigrant Overcome Attorney Error
- Immigration Trivia Quiz: Three Strikes and You’re Out!
- Ask Mr. Shusterman: How CSPA Works with Respect to “Age-Outs”
- H and L Status: New CIS Memorandum Provides Important Benefits
- Deportation: Supreme Court Rejects Interpretation of Drug Law
- Chat Schedule, Transcripts, Audios & Videos
- Winner of the December 2006 Immigration Trivia Quiz
There will be no February 2007 issue of SHUSTERMANS’ IMMIGRATION UPDATE. We will be enjoying ourselves traveling in Central and South America!
- Asylum – On December 27, the CIS issued a two-page Fact Sheet regarding the laws and regulations which determine whether applicants for asylum, asylees and persons who have become permanent residents through asylum may travel outside the United States. Particularly interesting are the rules which govern whether such persons may visit their home countries without losing their asylee or permanent residence status. We link to the Fact Sheet from our “Asylum” page at
- DOL Labor Certification Backlog FAQ #6 – On December 22, the Department of Labor (DOL) posted another Labor Certification Backlog FAQ on its website. It announced the beginning of a “hold harmless” time period ending January 20, 2007 during which employers may notify DOL of their intention to convert a traditional to an RIR labor certification application. DOL will not deny the request solely based of the fact that the employer has started recruitment activities. However, it will deny the employer’s request if DOL has issued a “Recruitment Report Instructions Letter” or if the employer has received a Notice of Findings.See this and all other DOL Labor Certification Backlog FAQs on our “Department of Labor: Immigration Resources” page at
- J Waivers – On December 19, the CIS issued a public notice explaining that waivers of the home residency requirement for certain exchange visitors will be adjudicated in its Vermont and California Service Centers (VSC and CSC). The VSC decides waivers applications based on no objection letters and requests from interested government agencies while the CSC decides waivers based on exceptional hardship and persecution. We link to the public notice from the “Related Links” section of our “Exchange Visitor” page at
- Physician I – To follow-up on our victory for physicians seeking permanent residence through National Interest Waivers (NIWs) in Schneider v. Chertoff in June 2006, we filed a motion for a declaratory judgment to be heard by the Federal District Court on December 4. Shortly before the matter was to come before the Judge, our final two physician plaintiffs were granted permanent residence by the CIS. Congratulations, Drs. Mamuya and Schneider!One issue which remains unresolved is whether specialists practicing in medically-underserved areas are eligible to obtain permanent residence through NIWs. We believe that if a group of specialists wishes to challenge the regulation that currently prohibits them from being granted NIWs, they will be successful in Federal Court.Another unresolved issue is whether the CIS will change its regulations, thereby adopting the holding in Schneider v. Chertoff on a nationwide basis, or whether the ruling is only binding within the jurisdiction of the U.S. Court of Appeals for the 9th Circuit which includes the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.For more information about Schneider v. Chertoff, see our “Physicians” page at
- Physicians II – On November 30, the Government Accountability Office (GAO) released a report of a study in which it examines the number of waivers requested by state and federal agencies for J-1 physicians; the practice specialties, settings and locations of physicians granted waivers and the extent to which waiver physicians are accounted for in HHS’ efforts to address physician shortages. We link to the GAO report from our “Physicians” page at
- Processing Times – We link to government processing times at CIS Service Centers, District Offices, the Administrative Appeals Office, DOL Backlog Elimination Centers and Consulates abroad from our “Immigration Processing Times” page at
- USCIS Today – We link to the most recent issue of “USCIS Today”, CIS’ newsletter, from our “CIS” page at
- Visa Bulletin – To view the January 2007 Visa Bulletin, see our “Visa Bulletin” page at
1. Immigration Legislation: The Outlook for 2007
The lame duck Congress all but ignored pressing immigration issues. However, it did accomplish the following:
- Congress reauthorized the Nursing Relief for Disadvantage Areas Act of 1999 (NRDAA) for an additional three years. This law allows certain hospitals in medically-underserved areas to hire a total of 500 RNs per year on temporary H-1C visas. In reality, less than a dozen hospitals meet the law’s rigorous requirements, and less than 250 RNs are hired each year. Read the text of the new law at
- Congress extended the Conrad 30 J waiver program for physicians for an additional two years. Read the text of the new law at
and read about the Conrad 30 program from our “Physicians” page at
- Congress passed the Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry (COMPETE) Act of 2006 (S. 3821) which allows certain minor league athletes and ice skaters to be included in the P-1 nonimmigrant category. Read the text of the new law at
However, the lame duck Congress deferred consideration of larger immigration issues to the 110th Congress which convenes later this week. All bills introduced in the 109th Congress, including those relating to comprehensive immigration reform and the SKIL Bill for highly-educated workers, expired in December and need to be reintroduced in the next Congress.
Leaders of both parties including Senators Edward Kennedy (D-Mass), the incoming Chairman of the Senate Immigration Subcommittee and Senator John McCain (R-Az) started plotting strategy for a comprehensive immigration reform law even before Congress adjourned in early December.
However, issues like legalization and guest workers are highly contentious. We believe that Congress will, nonetheless, pass a comprehensive immigration reform bill in 2007 which provides for strong enforcement and for a workable immigration system. We predict that such a bill will be signed into law by President Bush.
Senators Kennedy (D-MASS) and McCain (R-AZ) plan to introduce their comprehensive immigration reform bill in the Senate when Congress reconvenes this month. Senate passage is expected by March or April. Meeting in December with Senators Kennedy and McCain to draft the legislation were Congressmen Jeff Flake (R-AZ) and Luis Gutierrez (R-IL). According to Congressman Flake, many House Republicans learned from the mid-term elections that anti-immigrant policies do not resonate with a majority of voters.
In the House of Representatives, former immigration attorney Zoe Lofgren (D-CA) is expected to chair the Subcommittee on Immigration, Border Security and Claims. Not only are House members expected to sign on to the comprehensive bill, but there is a strong possibility that the 700-mile fence project, enacted into law in 2006 but not funded, will be reconsidered. House passage of comprehensive immigration reform legislation is expected early this summer.
We hope that skilled workers seeking temporary visas and permanent residence will be granted short-term relief in advance of the enactment of a comprehensive reform law. One vehicle for insuring that this occurs would be the passage of the “Securing Knowledge Innovation and Leadership” (SKIL) bill. We link to the SKIL bill from our “Immigration Legislation.”
2. Restoring Sanity to Immigration Laws: A Modest Proposal
Recently, the Director of the Immigration Service announced that in April 2007, the fees for applying for naturalization and for green cards would rise “significantly”. The Director stated: “We’re a business. We’re not allowed to be deficient.”
True, but applicants for naturalization already pay $400 in filing fees and costs, up from just $90 in 2000. A “significant” fee increase would price many folks out of the market, and prevent them from applying for citizenship. Is this what we want? A permanent class of green card holders who live in the U.S., but have not sworn their allegiance to this country?
Isn’t there a better way to balance the books at the Immigration Service without penalizing immigrants who play by the rules?
Last week, I was visited by a husband and his pregnant wife. She is a U.S. citizen. Several years ago, he crossed the border without papers seeking work. Under current law, he is barred from applying for a green card in the U.S. Instead, he must apply for his green card in Mexico. This is a bit of a risky proposition since he would have to apply for a “waiver” based on his lengthy period of unlawful presence in the U.S. Also, he would have to convince the government that his wife would suffer “extreme hardship” if he were not allowed to return to the U.S. This is not an easy task.
Even if his waiver is granted, he would be forced to remain in Mexico, separated from his wife, for several months while the government processes his paperwork. Who will support his wife and child during this period? If his waiver is denied, he must remain outside the U.S. for a minimum of 10 years! Will his wife and child go on welfare? Current immigration laws ignore these issues.
My proposal is to junk the present unrealistic system, and allow him and thousands like him to obtain their green cards in the U.S., but only after paying a penalty. On top of the regular filing fees of several hundred dollars, he would need to pay a thousand dollar fine in order to obtain permanent residence.
During the 1990s, Congress passed laws allowing such a fine system for persons who entered the country without papers or who overstayed their visas. However, after 2001, Congress did not extend these laws.
This is a shame. The fine laws raised hundreds of millions of dollars for the beleaguered Immigration Service. See
The new Congress should return to a system that worked, and they should do so before fee increases take effect in April.
3. Employers: How to Avoid Immigration Penalties and Raids
On December 12, Immigration and Customs Enforcement (ICE) raided six meat processing plants owned by Swift & Co. and arrested over 1,200 undocumented workers.
Sound familiar? Aren’t there millions of persons working illegally in our country, and doesn’t ICE periodically arrest and deport them? And punish the offending employer to boot?
The twist here is that Swift & Co. has been participating in ICE’s “Basic Pilot” since 1999, a voluntary program where the company only hires workers whose employment documents have been cleared by ICE.
In other words, Swift has been cooperating with the government all along. ICE raided Swift, but is not seeking criminal or civil penalties against the company. In fact, Swift was fined $200,000 by the Justice Department not for employing illegal workers because a job applicant proved that the company was trying a little too hard to weed out them out. Swift apparently crossed the legal line and discriminated against a potential worker because of his ethnicity.
So, if Swift was cooperating with ICE, and new hires had their paperwork precleared by the government, why did ICE raid Swift? Is this a case of “damned if you do, damned if you don’t”?
For one thing, ICE contends that a small group of Swift’s workers engaged in “identity theft”, and has brought criminal charges against them. But why wasn’t this caught by the Basic Pilot? Apparently, when a worker steals, or purchases, the identity of someone and uses his driver’s license and social security number, all the Basic Pilot does is verify the number on the social security card belongs to a particular person. If the worker claims to be that person, the Basic Pilot has no way to alert the employer that the job applicant is not that person.
The government wants to expand the “Basic Pilot” so that more employers are enrolled, but judging from Swift’s experience, ICE should not expect a lot of phone calls from employers begging to participate in the program. A more likely reaction from employer would be: “No thanks, but we’d rather not be raided.”
What can employers do to protect themselves?
They should complete an I-9 Employment Verification form in a timely fashion for all newly-hired employees. They should make photocopies of both the identity documents and the employment-authorization documents of these employees. Unlike Swift, they should not try to be amateur ICE officers. If they ask for more documents than are required by law, or if they question Juan Sanchez more than they do John Smith, they could be in big trouble with the Justice Department under “document abuse” and “anti-discrimination” laws. Wise employers will periodically audit their I-9 forms, or have an experienced immigration law firm do so for them.
Take a few minutes and read an article that we wrote entitled “INC vs. INS”, portions of which appeared in the National Law Journal.
4. Success Story: Helping an Immigrant Overcome Attorney Error
A diligent immigration attorney must ensure that he or she stays updated and aware of deadlines, procedures, rules, and most importantly, the law. In the ever-changing world of immigration, these tasks require attention to detail and tenacious alertness. Unfortunately, many hard-working individuals seeking immigration representation have found themselves in a situation where their lawyer proved more harm than good. One of our clients, Ms. J, found herself in a terrible predicament due to her former attorney’s numerous mistakes.
Ms. J is a Registered Nurse who was sponsored for permanent resident status by a large hospital. Initially, Ms. J’s case went smoothly. The hospital’s immigrant petition was approved within a matter of months and CIS then requested several documents from Ms. J in connection with her application for adjustment of status, including her “VisaScreen” Certificate.
The VisaScreen Certificate is issued by the Commission on Graduates of Foreign Nursing Schools (CGFNS), a non-profit organization charged with evaluating the credentials of foreign-born nurses. The VisaScreen Certificate is issued to a Registered Nurse only after the CGFNS verifies that the nurse’s education, license, training and experience are comparable to that of American healthcare workers. Testing services verify that a nurse has reached the required level of competence in spoken and written English. Until a nurse obtains a VisaScreen certificate, she cannot adjust her status nor obtain an immigrant visa through employment.
At the time CIS’ Request for Evidence was issued, Ms. J. had already begun the process of obtaining her VisaScreen Certificate. She had passed the English language exam and the CGFNS had verified her foreign degree and license. The only remaining step was for the CGFNS had to create the certificate and mail it to Ms. J. This is where things became increasingly difficult for this talented Nurse. Ms. J’s deadline to respond to CIS was fast approaching. By calling the CGFNS daily, she discovered that the CGFNS had created the certificate prior to the deadline to respond, but it was apparent that she would not receive it in time to respond to the CIS in a timely manner.
Her prior attorney, (We’ll call him Attorney B.), replied to the Request for Evidence before the deadline, sending in all other evidence with an explanation regarding the status of Ms. J’s VisaScreen certificate. Attorney B assured Ms. J that the certificate would be mailed in to the CIS as soon as she received it. Much to her dismay, however, Ms. J received a denial of her adjustment application several weeks later. The denial stated that she had failed to provide the VisaScreen certificate. It is unclear whether her attorney ever followed up on his promise to send her certificate to the CIS.
Attorney B filed a Motion to Reopen the case including the VisaScreen certificate with the motion. However, several weeks later, the motion was returned because of insufficient postage. Attorney B had miscalculated the postage on this very important document! By the time Attorney B re-sent the package with correct postage, the 30-day deadline for Motions to Reopen had expired. However, rather than break the news to his client, Attorney B repeatedly assured her that all would be well, and that she needed to wait patiently for CIS to process the Motion.
After several months with no word from the CIS, Attorney B recommended that Ms. J file a new I-485 application. However, he then proceeded to file the new application with the wrong filing fees! Ms. J only learned of this mistake when the entire package was rejected.
By this time, Ms. J had serious doubts about the quality of Attorney B’s representation, and rightfully so. She took matters into her own hands, and went to the bank to personally obtain a cashier’s check for the correct filing fees. She then mailed the application to the CIS herself.
Still, Attorney B continued to assure her that all was well. When CIS requested evidence regarding Ms. J’s non-immigrant status, he informed her that she need not be concerned. Unfortunately, he was wrong again. The CIS again denied Ms. J’s application because she was not in valid non-immigrant status when the application was filed.
Finally, Ms. J came to our office. Considering her immigration history, we could think of only two possible options for Ms. J. Go home to her native country and apply for her immigrant visa at the U.S. Consulate, or attempt to have her first adjustment application re-opened and approved. Both options had serious risks. With the impending backlog in the Registered Nurse category, it was unclear if she departed the country when Ms. J would receive an immigrant visa and be able to return to the U.S. If she chose to remain in the U.S., and file a Motion to Reopen her first application, there was no guarantees that CIS would actually grant the motion and approve her case. That would mean that she would continue to accrue unlawful presence.
Ms. J chose to file a Motion to Reopen her first adjustment application. We assisted her with preparing a declaration explaining her story, the delay in receiving her VisaScreen certificate, and the numerous mistakes made by her prior attorney. We attached proof of Attorney B’s errors, including copies of the rejected Motion mailed with insufficient postage, and the I-485 application that was rejected for incorrect filing fees.
We argued that Ms. J was in fact eligible for permanent resident status before the CIS denied her first application. CGFNS created a VisaScreen certificate prior to the denial of her application. We pointed out that she had been in lawful nonimmigrant status when she submitted that initial application. And importantly, her prior attorney’s numerous mistakes were clear and seriously harmed her case. We asked the CIS to exercise its discretion to reopen that first adjustment application, and approve it.
Fortunately, our request did not fall on deaf ears. Less than three weeks later, we received an ecstatic phone call from Ms. J. She had just received an approval notice for her first adjustment application!
We are pleased that the CIS agreed with us, and that we were able to achieve a favorable outcome for our client.
5. Immigration Trivia Quiz:
6. Ask Mr. Shusterman: How CSPA Works with Respect to “Age-Outs”
This month, we received several questions from our subscribers regarding the complex provisions of the Child Status Protection Act (CSPA) including its effect on children who turn 21 before the parent receives his or her green card based on an employment or a family-based petition. Sometimes, CSPA protects children from aging out, and it is not unusual for a 22-year-old to adjust status because his “immigration age” remains below 21. Other times, a child who ages-out despite CSPA may be able to obtain permanent status through another section of CSPA which confers benefits on sons and daughters who have “aged-out”.
Example #1 – Mr. Kumar was born in India. He came to the U.S. as an H-1B computer professional in 1999. In March 2001, his employer submitted an application for labor certification on his behalf. This application was approved in 2004. On June 30, 2004, his employer filed an immigration visa petition (form I-140) for him. Simultaneously, he, his wife and his daughter Krishna all applied for adjustment of status (forms I-485). His son Rakesh is a senior at the London School of Economics. He would like to immigrate to the U.S. as soon as possible.
The CIS approved the I-140 on December 30, 2004 and the I-485s for Mr. Kumar, his wife and his daughter on October 15, 2006. His son Rakesh turned 21 years of age on October 2, 2006.
The general rule is that only the principal, his spouse and his unmarried children who are under 21 years of age may obtain permanent residence at the same time as their parent or may follow-to-join their parent in the U.S. at a later time. Since Rakesh was already 21 years old when his father obtained his green card, does CSPA prevent him from aging-out?
Analysis: CSPA requires a three-part analysis in the case of “derivative beneficiaries”. Mr. Kumar is the principal beneficiary since he is immigrating through his employment. Rakesh is a derivative beneficiary since he is immigrating through his father’s job.
- Step #1 – Determine Rakesh’s age on the date that his father adjusted his status. His age was 21 years and 13 days.
- Step #2 – Subtract from Rakesh’s age the amount of time that his father’s I-140 was pending. Since Mr. Kumar’s employer filed an I-140 on his behalf on June 30, 2004 and it was approved on December 30, 2004, this period of six months is subtracted from Rakesh’s age making his “immigration age” 20 years, 6 months and 13 days. Since this is less than 21 years, this means that Rakesh is considered a “child” under CSPA.
- Step #3 – Rakesh must apply for an immigrant visa within one year of the date of his father’s adjustment of status. The easiest way to start the application process would have been for Mr. Kumar to file form I-824 for Rakesh with his application for adjustment of status. If he failed to do so, he has one year beginning on the date that he adjusted his status to submit the I-824. If he does so, Rakesh may follow-to-join his family as a permanent resident no matter what his age when his immigrant visa is granted. His age, for immigration purposes, is frozen at 20 years. However, should he marry even one day before he arrives in the U.S., he would no longer be considered a child, and would lose this opportunity to follow-to-join his family in the U.S.
Example #2 – Mrs. Lee was born in the Philippines. On September 15, 1983, her sister, a citizen of the U.S., submitted a visa petition (form I-130) on her behalf. The petition was approved on February 15, 1984.
In 1985, Ms. Lee married a man born in the Philippines. They have three children: Ramon born in 1984, Malou born in 1987 and Dino born in 1990.
Ms. Lee obtained an H-1B visa and came to the U.S. in 1992 together with her family who entered the U.S. on H-4 visas. She lost her job and fell out of status in 1994, but stayed in the U.S. waiting for her priority date to be current. Since her priority date is September 15, 1983, Ms. Lee and her family are eligible to adjust status under section 245(i). See
However, since Ramon was born on April 1, 1984, he was 21 years and nine months old in January 2006, the month that his priority date became current. Applying the three-step test for derivative beneficiaries under CSPA in Example #1 (above) does not result in Ramon being classified as a child. Since the I-130 for his mother was approved in five months, Ramon’s “immigration age” is 21 years, nine months (his actual age) less five months (the amount of time that the I-130 for his mother was pending) or 21 years, four months. Since his immigration age is over 21 years old, he cannot be classified as a child.
Is there any way that Ramon can benefit from CSPA? Fortunately, yes.
Section 3 of CSPA added section 203(h)(3) to the Immigration and Nationality Act (INA) which provides as follows:
“RETENTION OF PRIORITY DATE – If the age of the alien is determined under section (1) to be 21 years of age or older for purposes of subsections (a)(2)(A) and (d), the alien’s petition shall be automatically converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”
The CIS has never explained how the agency interprets this section of law. However, we believe that the “appropriate category” is the family- based 2B category (unmarried adult sons and daughters of lawful permanent residents). This is because since Ramon is now over 21 years of age and his mother is a lawful permanent resident, this is the only category that she could use to petition him. What is the “original priority date”? We believe that it is September 15, 1983, the day that his aunt petitioned from his mother and her family.
If Ramon’s 2B priority date is September 15, 1983, he is immediately able to adjust his status under section 245(i) since the current priority date for persons born in the Philippines in the 2B category is currently in the fall of 1996.
Since the CIS has yet to give their opinion as to this section of law, would the agency reject Ramon’s application for adjustment of status? We think not. On June 16, 2006, the Board of Immigration Appeals (BIA), in an unpublished decision entitled “In re: Maria T. Garcia“, interpreted section 203(h)(3), INA exactly this way in a case where the facts mirror those in this example. See
https://www.shusterman.com/pdf/mariagarcia-childstatusprotectionact.pdf (link no longer operational)
Do you have immigration questions? Send them to my assistant, Sonya Canton at
email@example.com (e-mail address no longer operational)
and each month we will choose one question to answer in our newsletter. 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, you may wish to schedule a 30-minute legal consultation with me at https://www.shusterman.com/schedule-immigration-consultation/
7. H and L Status: New CIS Memorandum Provides Important Benefits
On December 5, the CIS issued a memo which provides guidance to its officers in determining periods of admission for persons in H and L status.
The memo clarifies certain portions of the American Competitiveness in the 21st Century Act of 2000 (AC-21) in ways which are beneficial to persons in H and L status and to their employers:
A) Periods of time spent in the U.S. as H-4 or L-2 dependents do not count against time limitations.
Persons in H-1B status are generally limited to a period of stay of six years plus extensions delineated in AC-21. Persons in L-1A (executives and managers) and L-1B (persons with specialized knowledge) status are limited to seven and five years maximum duration in the U.S., respectively.
How about their H-4 and L-2 spouses and children?
Suppose that an H-1B software engineer arrives in the U.S. with his H-4 spouse in 2001. His application for a labor certificate which was filed in 2003 is still languishing in a DOL Backlog Elimination Center. Although AC-21 clearly allows him to extend his H-1B status past the six-year limit in 2007, prior CIS policy would have condemned his wife to perpetual H-4 nonworking status after the end of their sixth year in the U.S. Let’s assume that his wife is a physician who is admitted to a medical residency in 2007. Under the new CIS memo, the time that she spent in H-4 status will not count toward her six-year maximum duration of H-1B status. She will be able to change her status to H-1B in 2007 and complete both her residency and fellowship programs while she and her husband wait for his labor certification and I-140 to be approved and for their priority dates to be become current!
B) A former H-1B nonimmigrant need not be in H-1B status, nor even in the U.S., to request a period of H-1B stay beyond six years.
For example, an H-1B accountant enters the U.S. in 2000 and leaves the country when his company declares bankruptcy exactly six years later in 2006. His labor certification has been pending since 2004. In 2007, three months after he leaves the U.S., he is offered a job as the Chief Financial Officer of another company in the U.S. Under section 106 of AC-21, the employer may submit an H-1B petition for him for one year, and upon approval of the petition, he may apply for a new H-1B visa. Thereafter, he may apply for extensions of H-1B status in one-year increments.
Another example: An H-1B architect from India enters the U.S. in 2000, has a labor certification approved on her behalf in 2004 and an I-140 approved in 2005. In 2006, her employer transfers her abroad. A few months later, her company wants to transfer her back to the U.S. Under section 104 of AC-21, they may submit a new H-1B petition on her behalf for a period of three years. Upon the approval of the H-1B petition, she may obtain an H-1B visa for three years, and re-enter the U.S. to work and to wait for her priority date to become current.
C) Persons who have been in the U.S. in H-1B status for less than six years and who have been outside the U.S. for more than one year may choose to use the “remainder” of the initial six-year period, or may elect to start a new six-year period.
For example, a scientist enters the U.S. in H-1B status (subject to the cap) in 2002. However, due to a family emergency, he returns to his country in 2005 and stays there for over one year. Now, he is ready to return to the U.S. Since he has remained outside the U.S. for over one year, the employer may submit a new H-1B petition on his behalf. However, since there are presently no H-1B numbers subject to the cap this fiscal year, he would not be able to start a new six-year period in H-1B status in the U.S. until the new fiscal year which starts on October 1, 2007. Alternately, he may elect not to start a new six-year period, but to work in the U.S. in H-1B status for the remainder of his present six-year period. Since he has already worked in the U.S. in H-1B status for three years (2002-2005), as soon as a new H-1B petition and visa are approved on his behalf, he may immediately return to work in the U.S. in H-1B status for another three years without waiting until October 1, 2007.
We commend the CIS for interpreting AC-21 in a way which benefits thousands of U.S. employers and persons in H and L status. We link to the new memo from our “H-1B Page” at https://www.shusterman.com/h1bvisaguide.html#3
8. Deportation: Supreme Court Rejects Interpretation of Drug Law
On December 5, the Supreme Court ruled, 8 to 1, that a person with a drug conviction which is a felony under state law, but which would be misdemeanor under federal law, cannot be deported as an “aggravated felon”. The Court interpreted the statutory language “felony punishable under the Controlled Substances Act” which is a federal law. The case is Lopez v. Gonzales, No.05-547, 549 U.S. ___ (2006).
Jose Antonio Lopez became a lawful permanent resident of the U.S. in 1990. In 1997, he pled guilty to aiding and abetting another person’s possession of cocaine. He was sentenced to five years imprisonment and was released for good conduct after 15 months.
He was placed under removal proceedings, and charged with being an aggravated felon, a status which precludes him from seeking relief from deportation. The Immigration Judge ruled that he was an aggravated felon because his conduct, though a misdemeanor under the federal Controlled Substances Act, constituted a felony under state law. Mr. Lopez appealed the Judge’s decision.
The Board of Immigration Appeals (BIA) affirmed the Judge’s decision and ordered him deported. Mr. Lopez filed a petition to have his case reviewed by the U.S. Court of Appeals for the 8th Circuit. However, that Court too affirmed the decision to deport him.
Although Mr. Lopez has already been deported, the Supreme Court accepted jurisdiction over his case in order to resolve a conflict between different Circuit Courts of Appeals.
The Supreme Court ruled the phrase “a felony punishable under the Controlled Substances Act” means exactly that. It rejected the government’s argument that any drug conviction which is a felony under state law, but not under the Controlled Substances Act, would make a person an aggravated felon.
The Court’s decision does not mean that Mr. Lopez is not subject to deportation, only that he is eligible to apply for cancellation of removal before an Immigration Judge. Mr. Lopez is married and has two children. He has no other criminal record.
For an explanation of how a permanent resident qualifies to apply for cancellation of removal, see our article entitled “How to Avoid Deportation” at
9. Chat Schedule, Transcripts, Audios & Videos
10. Winner of our December 2006 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)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, California 90017
“The immigration system is dysfunctional in the sense that you can try to do everything correct and you’re locked in the system four, five, six, seven, eight, nine, 10 years before any decision is made. And then, often it’s, ‘Well, they lost the file.’ I don’t condone illegal behavior, but in many ways it is no surprise that people come to this country illegally because when they try to come legally they are caught in the system for a decade.”
– Congressman Jerry Moran (R-KS)
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