Volume Seventeen, Number One
Newsletter US Immigration Update January 2012 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 35 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 January 2012
TABLE OF CONTENTS:
1. A Better Way to End Employment-Based Country Quotas
2. Bill Would Help Supply Doctors to Rural & Inner City America
3. Schedule of Shusterman’s Upcoming Immigration Law Seminars
4. Fines on Employers Who Do Not Complete Section 2 of Form I-9
5. Success Story: Humanitarian Parole Reunites Displaced Family
6. Immigration Trivia Quiz: Immigrant Government Officials
7. State Department Visa Bulletin for January 2012
8. Immigration Government Processing Times
9. Ask Mr. Shusterman: How to Process PERM for a Roving Employee
10. Winner of Our December 2011 Immigration Trivia Quiz!
- AIC Practice Advisory – The American Immigration Council (AIC) issued a practice advisory regarding the implications of the recently decided U.S. Supreme Court decision in Judulang v. Holder which rejects the BIA’s “comparable grounds” test for § 212(c) relief, and offers strategies for lawful permanent residents and others who may be affected by it.
- AIC Sues U.S. Immigration Agencies – The American Immigration Council’s Legal Action Center has filed a nationwide class action lawsuitagainst the USCIS and the EOIR for widespread problems with the asylum “clock”, a system used by the government to determine when immigrants with pending asylum cases are eligible to receive authorization to work in the United States.
- CBP Commissioner Resigns – On December, 22, Customs and Border Protection (CBP) Commissioner Alan Bersin announced his resignation. Deputy CBP Commissioner David Aguilar took over as acting Commissioner. Bersin’s resignation was not a surprise, since he was a “recess appointment” with a history of alleged personal immigration violations, and in our opinion, had virtually no chance of having his appointment confirmed by the Senate.
- Child Status Protection Act (CSPA) – The reply brief to the Petition for a Rehearing En Banc filed by the government challenging the 5th Circuit Court of Appeals decision in Khalid v. Holder is due on January 4. We will post this brief as soon as it is filed with the Court. Meanwhile, both the Petition for a Rehearing En Banc and the reply brief in the nationwide class action CSPA lawsuit ,DeOsorio v. Napolitano have been filed with the 9th Circuit Court of Appeals and are posted online.
- DOJ Finds Sheriff Arpaio Engaged in Misconduct – The U.S. Department of Justice found reasonable cause to believe that the Maricopa County Sheriff’s Department led by outspoken Sheriff Arpaio has been engaging in a pattern of misconduct and racial profiling. The report found that the department violated civil rights laws through discriminatory policing practices including unlawful stops, detentions and arrests of Latinos.
- Far Fewer Enter Illegally From Mexico – As our legislators and political candidates furiously debate the issue of undocumented immigration, the number of people entering from Mexico illegally have fallen to the lowest levels in four decades. The Border Patrol with well over twice as many agents as 7 years ago apprehended 340,252 people along the U.S.-Mexican border in fiscal year 2011 compared with over 1.6 million people in fiscal year 2000. Falling birthrates in Mexico and greater opportunities in the country relative to the weak U.S. economy are factors in the fall of undocumented immigration.
- GAO Recommendations Regarding Overstays of VWP Participants – The House Judiciary Committee held a hearing on December 7 regarding the security risks involved in Visa Waiver Program Overstays. Shortly afterward, the Government Accountability Office published a report with recommendations regarding overstay enforcement.
- ICE Detainee Deaths – Immigration and Customs Enforcement (ICE) has published a report regarding the 100+ individuals who have died while in the agency’s custody since 2003.
- ICE Hotline for Detainees – On December 29, Immigration and Customs Enforcement (ICE) announced the creation of a toll-free hotline for detainees. The number is (855) 448-6903. It can be used by persons with ICE “holds” who are in state or local custody who “believe that they may be U.S. citizens or victims of a crime.”
- Immigration “How-To” Videos – Our 30 “How-To” Immigration Videos have been viewed well over 240,000 times. Subjects include how to obtain a green card, how to become a U.S. citizen, how to win your case in immigration court, how to survive an I-9 audit and how to select an immigration attorney. Our video “Green Cards through Marriage” has been viewed over 95,000 times. We encourage you to take advantage of this free resource.
- Inadequate Legal Representation in Immigration Court – The New York Immigrant Representation Study authored a 64-page report entitled Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings regarding the representation for immigrants in Immigration Court. The New York Times published an article on the report that details the fact that most immigrants are receiving “inadequate” representation, if any at all, in removal proceedings.
- Numerous States to Implement E-Verify in 2012 – Effective January 1, 2012, five states (Alabama, Georgia, Louisiana, South Carolina and Tennessee) began requiring many employers within their states to use the federal government’s E-Verify system to check the eligibility of newly-hired employees.
- State Department Fee Increase – On December 6, the Department of State implemented changes made to their fee schedule for certain consular services. Services that saw fee increases were nonimmigrant visas and border crossing cards (BCCs). The fee for most non-petition-based nonimmigrant visas and adult BCCs increased from $131 to $140, while the fees for BCCs for Mexican citizens under the age of 15 increased slightly from $13 to $14.
- USCIS Developing Online Filing System – USCIS is developing a simplified, Web-based system that will allow customers to submit and track their applications online and enhance USCIS’ ability to process cases with greater accuracy, security and timeliness. We link an USCIS video which shows how a customer will be able to set up an online account and submit a request to extend or change nonimmigrant status using the new system. The video also highlights the proposed design and key features of the new system.
- U.S. Supreme Court to Rule on Arizona Immigration Law – On December 12, the U.S. Supreme Court agreed to rule on whether Arizona’s controversial immigration statute interferes federal law. Justice Elena Kagan has decided to recuse herself from the case because she served as the Solicitor General when the administration filed the original lawsuit against the State of Arizona. This raises the possibility of a 4-4 split. If this should occur, the ruling of the U.S. Court of Appeals for the 9th Circuit striking down Arizona’s law would remain in effect. The Arizona law, S.B.1070, requires, among other things, that local law enforcement officials arrest people that they stop if they suspect that they lack authorization to be in the U.S.
1. A Better Way to End EB Country Quotas
Limiting each country in the world to 7% of the 140,000 employment-based (EB) green cards granted each year is just plain stupid!
Because the future of our country depends on attracting the world’s most talented people to our shores. Advances in disease prevention, information technology and in many other fields are accomplished by these people. These people start-up companies which employ hundreds of thousands of U.S. workers. A person’s intelligence and ability to innovate is not determined by their country of birth. Sergei Brin of Google, Andy Grove of Intel, Jerry Yang of Yahoo and Vinod Khosla of Sun Microsystems are just a few of the thousands of immigrants who came to the U.S. and established companies that now employ hundreds of thousands of U.S. workers.
There are no country quotas for H-1B professionals. Neither are there limits on the number of spouses and children of H-1B professionals. When the H-1B caps were raised by Congress, it made sense to review and revise the number of EB-2 and EB-3 professionals who were allowed to immigrate to the U.S. However, this issue was ignored by Congress and the result is our present massive EB backlogs, particularly for those born in India and China.
As 2012 approaches, there are over 100,000 persons waiting in line for green cards whose employers have demonstrated that they are filling jobs for which there are no qualified U.S. workers. The waiting times stretch from 6 years for EB-3 engineers, therapists and teachers from over 190 countries worldwide to much longer waits for professionals born in China and India. Since over 50% of those on the EB-3 waiting list are born in India, the 7% country-quota means that many of these people will still be waiting for their green cards in 15 to 20 years, or else they will simply give-up and go home. If they do, it is our country which will be deprived of their talent.
What is the answer to this problem?
On November 29, the House of Representatives passed the “Fairness for High Skilled Immigrants Act” by a lopsided majority. The bill would phase out the 7% country quotas over the next 3 years. If the bill is enacted into law, persons born in China and India could use up to half of the EB-2 and EB-3 numbers during the next 3 years and an unlimited number after that. As a result of this approach, the worldwide EB-2 category would instantly develop a backlog, and the nearly 6-year EB-3 backlog would quickly grow to 7 to 10 years or more. And guess what? If the worldwide EB numbers retrogress, persons from India and China, professionals from the countries that the bill is trying to help, will also suffer.
Only by providing more EB visas can such a disaster be averted.
Congress is adverse to raising the number of EB visas. However, Congress has, in the past, made available (“recaptured”) some of the many thousands of EB green cards that were lost in the past due to bureaucratic delays. Congress may also wish to consider exempting immediate family members (spouses and children) of EB immigrants from the 140,000 cap on EB green cards, similar to the way that they are exempted from the cap on H-1B visas.
However, because of our current high-unemployment rate, there is a natural tendency of legislators to shy away from providing additional green cards. Therefore, I propose that Congress should consider suspending the visa lottery for 2 years, and use the 100,000 visas which would have been given to lottery winners to those stuck in the EB backlogs.
Lottery winners are chosen at random and are not required to have job skills that are useful to our economy or even family ties in the U.S. Clearly, encouraging professionals whose skills are in short supply and who are already working lawfully for employers in the U.S. is more important than allowing people to immigrate randomly.
The Senate will shortly take up the “Fairness for High Skilled Immigrants Act”. Let’s hope that in addition to abolishing country quotas, they will amend the bill to eliminate the huge backlogs which would occur if they simply ratify the existing legislation.
P.S. – Senator Grassley’s Hold – On November 30, Senator Grassley placed a hold on H.R. 3012, the Fairness for High-Skilled Immigrants Act, the bill which would end country-quotas for employment-based employment and raise them for family-based immigration. He citied his “concerns about the impact of this bill on future immigration flows.” Also, Senator Grassley stated: “I am concerned that it does nothing to better protect Americans at home who seek high-skilled jobs during this time of record high unemployment.” On December 15, the Senator filed an amendment that would drastically change the bill in order for him to lift his hold. His amendment was rejected in the Senate. Now, Senator Scott Brown (R-MASS) is sponsoring an amendment to H.R.3012 in the Senate which would provide 10,500 E-3 temporary professional visas per year exclusively for citizens of Ireland. It is unlikely that the Senate will vote on H.R.3012 in the near future unless Senator Grassley can be persuaded to lift his hold on the bill.
2. Bill Would Help Supply Doctors to Rural & Inner City America
On December 13, Senators Kent Conrad (D-ND) and Jerry Moran (R-KS) introduced the S.1979, the “Conrad State 30 Improvement Act”.
This bipartisan bill would make it easier for physicians educated in other countries to obtain temporary visas and permanent residence in the U.S. if they obtain offers of employment in medically-underserved areas of this country.
Senator Conrad, who has announced that he will retire from the Senate in 2012, sponsored a law that was enacted back in 1994 which, for the first time, permitted states to sponsor up to 20 physicians annually for J waivers if these doctors found employment in such areas. The number of waivers available to each state was increased to 30 in 2002.
For the past 17 years, the Conrad program has permitted states to sponsor over 9,000 foreign-born physicians to work in underserved areas. However, this program is not a permanent part of the law. It must be renewed every 2 or 3 years. Also, since the early 1990s, more and more physicians have obtained H-1B status, rather than J status, in order to pursue their medical residencies and fellowships in the U.S. These physicians lack a legal incentive to work in underserved areas.
Among other things, S.1979 would do the following:
- Make the Conrad program a permanent part of the law;
- Allow physicians who work in underserved areas to immigrate under the EB-1 category rather than the EB-2 category;
- Allow physicians who pursue their medical residencies in H-1B status and agree to work in underserved areas to restart the maximum 6-year duration of their H-1B status;
- Increase the number of physicians that states can sponsor annually to 35 under certain circumstances; and
- Make it easier for physicians in H-1B status who are working in underserved areas to change employers.
The passage of this legislation would be a boon for rural and inner city America since over 20% of our country suffers from a shortage of physicians. This shortage is slated to rise to over 200,000 by 2020.
Since the EB-1 category is “current” for all countries, the bill would aid Indian and Chinese physicians who are presently disadvantaged by backlogs in the EB-2 category.
Also, the bill would, for the first time, aid physicians who complete their medical residencies and fellowships in H-1B status. This is important because the number of J-1 medical residents and fellows who are eligible to participate in the Conrad State 30 program has been steadily decreasing, much to the disadvantage of rural and inner city America. Typically, because of the 6-year maximum duration of H-1B status (with limited exceptions under AC-21), these physicians must scrabble to attempt to secure permanent residence in the U.S. before their H-1B status can no longer be extended. S.1979 would solve this problem for those physicians who work in underserved areas.
As Senator Moran stated in his press release, “S. 1979 provides additional incentives for more doctors to participate in the program. Also, the bill provides a method for states to increase the number of waivers available to work in underserved communities.”
We will follow the progress of S.1979 as it moves through the legislative process.
3. Schedule of Shusterman’s Upcoming Immigration Law Seminars
- South Florida AILA Chapter
South Florida AILA Conference
February 9-10, 2012
Topic: Understanding the Child Status Protection Act
- Immigration Boot Camp
Los Angeles, California
March 16, 2012
- FBA 8th Annual Immigration Law Seminar
Federal Bar Association
May 18-19, 2012
Topic: Child Status Protection Act
- 2012 AILA Annual Conference on Immigration Law
American Immigration Lawyers Association
June 13-16, 2012
Topic: The Truly Mobile Law Practice: Tools and Technology Tips to Help You Be Productive Anytime from Almost Anywhere
Please visit the conference website for more information
4. Fines on Employers Who Do Not Complete Section 2 of Form I-9
Continued from last month’s study of I-9 Part 1.
The OCAHO Judge in the Ketchikan Drywall Services, Inc. (KDS) case also considered whether the employer’s failure to properly complete Section 2 of form I-9 resulted in violations which were substantive or merely procedural:
1. No Employer Attestation
In several cases, KDS failed to sign Section 2 even though the employees produced the required documents and these documents were made available to the government in a timely fashion. Nevertheless, the Judge held that the employer’s failure to sign was a substantive violation.
2. Incomplete Information Recorded
In many cases, KDA failed to properly record information about the List A, B and/or C documents that it examined. In some cases, it also failed to attach and produce legible copies of these documents in a timely fashion:
a) No Issuing Authority for Driver’s License
Where KDS failed to record the issuing state of a driver’s license, and did not timely produce a copy of the license, the Judge found this to be a substantive violation of the law. However, in the same situation where KDS timely produced a copy of the license, the Judge held this to be merely a technical or procedural violation.
b) Insufficient Information
Where KDS failed to indicate the state that issued a birth certificate or the document number, and also did not timely produce a copy of the birth certificate, the Judge found this to be a substantive violation of the law.
Where KDS failed to record any information at all about a document, the Judge found that even the timely production of the document did not cure the substantive violation.
c) Missing or Improper Documents
Failure to record a proper List A document, or List B and C documents, constitute a substantive violation of the law.
Examples: (1) A visa issued by a U.S. Embassy is not an identity card issued by the Federal, State or Local Government, and therefore is not a List B document; (2) Where KDS wrote “Social Security Letter” and did not timely produce a copy of a Social Security Card, this is not a List C document; (3) A Social Security Card containing the notation “Valid for Work Only with INS Authorization” is not, in itself, a valid List C document; (4) A “Social Security Number Verification” is not a valid List C document.
3. Conflicting Alien Numbers
In one case, the alien number used by the employee in Section 1 next to the “Lawful Permanent Resident” box conflicted with the alien number listed by the employer in Section 2. However, since the employer timely produced a copy of the Alien Registration Card that it saw, and the number matched what the employer recorded in Section 2, the Judge held that this was not substantive violation.
5. Success Story: Humanitarian Parole Reunites Displaced Family
We are in the business of helping immigrants. If we had it our way, all of our clients would be reunited with their families. We are elated when we receive an approval for an immigrant visa or green card and every time we can prevent one of our clients from being deported. This past month, we were especially excited to reunite the family of a U.S. citizen and decorated US Army veteran, Mahmoud (not his real name) and his mother and minor sister. Mahmoud’s mother and sister fled Iraq to Syria where they were confined to a refugee camp. As conditions in Syria became increasingly dangerous, Mahmoud became more desperate to bring his mother and sister to the U.S.
It was relatively easy for us to obtain an immigrant visa for Mahmoud’s mother as a parent of a US citizen. Despite the turmoil in Syria, we were able to obtain an interview for her at the sometimes-open-and-sometimes-closed U.S. Embassy in Damascus. However, the wait for a U.S. citizen to obtain an immigrant visa for a sibling exceeds 10 years. Mahmoud’s mother was not about to leave her daughter alone in a Syrian refugee camp. Yet, the mother was required to enter the U.S. with her immigrant visa within six months. What to do?
When the brutal government crackdown on protestors intensified in Syria, we decided to apply for humanitarian parole for Mahmoud’s sister. Humanitarian parole is used sparingly to bring someone who is otherwise inadmissible into the United States for a temporary period of time due to a compelling emergency. With no other way to bring his teen-aged sister to the U.S. as a green card holder, we believed that this was a compelling emergency.
Our application for a humanitarian parole included both a letter from Mahmoud and another from Attorney Ellen Ma Lee of our law firm explaining the dire situation.
We were concerned that the request might be denied because the Immigration Service might think that Mahmoud’s sister would not leave the U.S. when her parole expired, or that she might apply for asylum as soon as she arrived. Neither course of action is permissible under humanitarian parole. Attorney Lee assured the officer that she intended to do no such thing. Rather, this was simply a temporary and last-ditch effort to save a family.
Fortunately, the Immigration Service approved our application on behalf of Mahmoud’s sister. Generally, humanitarian parole is granted for one year, but thankfully, Mahmoud’s sister was granted two years of stay. Mahmoud’s family was reunited just in time for the holiday season, and we have two years to formulate our next step to keep Mahmoud’s sister safe and their family united.
6. Immigration Trivia Quiz
7. State Department Visa Bulletin: January 2012
The January 2012 Visa Bulletin was issued by the Department of State on December 9. The EB-2 priority dates for India and China move forward by almost 10 months. Most other family and employment categories advance only a few weeks.
8. Immigration Government Processing Times
We link to the most recent immigration waiting times for each of the four USCIS Service Centers, the National Benefits Center and the Administrative Appeals Office. We also link to the processing times of all of the 83 USCIS District Offices and Sub-offices. We link to the Labor Department’s page entitled “Processing dates for labor certification applications”. Finally, we link to the State Department’s “Visa Wait Times” page.
9. Ask Mr. Shusterman: How to Process a PERM Application for a Roving Employee
Most likely, if you are an employer or a foreign-born employee, you have heard of the PERM application process.
Prior to petitioning for a green card for a worker based on employment, the sponsoring employer must first test the job market to demonstrate that it could not identify a qualified U.S. worker (U.S. citizen, permanent resident, refugee or asylee) willing to accept the position and that the employment of the foreign national will have no adverse effects on the wages and working conditions of similarly-employed U.S. workers.
Before submitting a PERM application, an employer must run two Sunday advertisements in a newspaper of general circulation in the area of intended employment and place a job order with the appropriate State Workforce Agency for 30 days. Generally, if the job requires experience or an advanced degree, a professional journal is used to advertise the job opportunity.
For professional occupations, the employer must take 3 additional recruitment steps from among the following alternatives: (1) job fairs; (2) employer’s website; (3) job search website other than the employer’s; (4) on-campus recruiting; (5) trade or professional organizations; (6) private employment firms; (7) employee referral program with incentives; (8) campus placement offices; (9) local and ethnic newspapers; or (10) radio and television advertising.
Employers must also post a notice of the job opportunity at the location of employment for ten consecutive business days or, if the job is covered by a collective bargaining agreement, provide a notice to the union representative at the location of intended employment.
The notice must also be published in any and all in-house media in accordance with the normal procedures used for the recruitment of other similar positions.
This process can become complicated when it involves an employee who may be assigned to work at several different worksite locations. These are sometimes referred to as “roving employees”.
The proper procedure to apply for PERM for a roving employee is less than crystal clear. Since job markets vary from region to region, how can an employer sufficiently test the job market for employees who will work at several different locations? The U.S. Department of Labor (DOL) has indicated in published FAQs that for Schedule A employees (registered nurses and physical therapists), when it comes to labor condition applications (LCAs), if an employer does not know at which client site the employee will be working, it must post a notice at each client site. The DOL has also indicated that for Schedule A applications in which the employee works for a staffing agency and may be assigned to various locations, the prevailing wage determination (PWD) can be issued for the area of the staffing agency’s headquarters.
Therefore, some immigration lawyers believe that an employer can file a PERM application for a roving employee after obtaining a PWD and conducting a recruitment campaign only for the area of the company’s headquarters, provided that a notice is posted at each possible worksite.
We believe that this approach subjects the employer to unnecessary risks. Let’s say that the employer is a company located in a rural area. It employs a roving IT consultant in a major metropolitan area. It is likely that the prevailing wage would be higher and the number of U.S. workers seeking employment in that occupation might be much greater than in the metropolitan area than where the company’s headquarters are located. Has the employer in this hypothetical really tested the job market?
There has been at least one decision (Amsol, Inc., 2008-INA-00112) by the Board of Alien Labor Certification Appeals (BALCA) that confirms that in some situations, a PERM application should be approved when the employer obtains a PWD and tests the job market in the area where the company’s headquarters are located even if the roving employee will be working at unknown client sites elsewhere. However, the prevailing wage for the area where the company was headquartered in Amsol was higher than the prevailing wage in the area where the employee was actually working. Also, the employer in Amsol had advertised the job in a national magazine.
Another option would be to conduct recruitment at all known client locations. However, this is unrealistic given that the employee might have numerous clients across the country, and that the costs of conducting simultaneous recruitment campaigns for each possible worksite location would be prohibitive.
Our approach is to obtain a PWD and test the job market for the headquarters and also at the location where the foreign employee is currently working. For example, if the headquarter of the employer is Tulsa, Oklahoma, and if the employee is currently working at Sunnyvale, California, we advise the employer to conduct recruitment which includes print ads, a 30-day job posting with the SWA, etc. at both locations. We have been successful in obtaining the PERM approvals using this strategy.
When filing a PERM application for a roving employee, analysis is required on a case-by-case basis to determine the best strategy regarding how to conduct a proper test of the job market and determine the prevailing wage.
10. Winner of our December 2011 Immigration Trivia Quiz!
This month’s correct answers and winner:
1. Ang Lee, Taiwan
2. Frank Oz, England
3. Mike Nichols, Germany
4. Billy Wilder (Birth name: Samuel Wilder), Poland (Before known as Austria-Hungary)
I’m Mexican and live in Los Angeles, CA. I’m an accountant and love Information Technology, exercising (not too much lately), and my wife. I solved the quiz by searching the image in Google, looking for the movie directors bio in wikepedia and the internet. I’ve been a subscriber to your newsletter since August 2011. I found your website very helpful in regards with the latest immigration news, I personally like your facebook page better since I’m a little of a facebook addict.
Certified Specialist in Immigration Law, State Bar of California (1988-Present)
Former Immigration and 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, CA 90017, Phone: (213) 623-4592 x0, Fax: (213) 623-3720
“The lack of any right to appointed counsel in removal proceedings might come as a surprise to those uninitiated into the field of immigration law. A noncitizen arrested on the streets or New York City for jumping a subway turnstile of course has a constitutional right to have counsel appointed to her in the criminal proceedings she will face, notwithstanding the fact that it is unlikely she will spend more than a day in jail. If, however, the resulting conviction triggers removal proceedings, where that same noncitizen can face months of detention and permanent exile from her family, her home, and her livelihood, she is all to often forced to navigate the labyrinthine world of immigration law on her own, without the aid of counsel. This is the current state of the law and has been for over a century.”
– New York Immigrant Representation Study
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