Volume Six, Number Six
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 June 2001
This month’s issue contains the following topics:
- July 2001 State Department Visa Bulletin
- Immigration Government Processing Times
- INS Implements New Premium Processing Program
- Nurses/Physicians: Senate Hearing Examines The Shortage
- Immigration Trivia Quiz: Three Routes To The INS Website
- BIA Defines Hardship Standard For Cancellation Of Removal
- Green Card Program Begins For Late Amnesty Applicants
- Case Management Software: Pearl’s Immigration Tracker
- Chat Schedule, Transcripts & Audios
- Answers To May’s Immigration Trivia Quiz
- Employment Opportunities At Our Law FirmWe are still expanding! Due to rapidly increasing demand for our services, we have expanded the number of our employees by over 30% during the past two months. The Law Offices of Carl Shusterman is seeking the services of additional Senior and Junior Legal Assistants. Applicants must be strongly-motivated, have excellent writing and social skills, and previous business-related immigration experience. In return, we offer you a terrific salary and benefits package, opportunities for professional growth, and a congenial working environment. For details, see our “Career Opportunities” page at
https://www.shusterman.com/careers.html (Link no longer operational)
- EOIR Response To Negative Newspaper ArticlesDuring the past year, two different newspapers (The San Jose Mercury News in October 2000 and the Los Angeles Times in April 2001) have published scathing articles critical of the way requests for asylum are decided by Immigration Judges. When we reported on the Los Angeles Times story in the May 2001 issue of SHUSTERMAN’S IMMIGRATION UPDATE, we invited the Executive Office for Immigration Review (EOIR) to submit information to rebut allegations contained in the Times’ article.EOIR sent us two letters to the editor, both authored by Chief Immigration Judge Michael J. Creppy, the first responding to the San Jose Mercury News story and the second to the articles in the Los Angeles Times. Judge Creppy maintains that the newspaper articles are “one-sided” and that the standard of well-founded fear of persecution “is applied uniformly by every immigration judge in every immigration court”.We are happy to reprint Judge Creppy’s letters at https://www.shusterman.com/pdf/creppy1.pdf (PDF File) and https://www.shusterman.com/pdf/creppy2.pdf (PDF File) and let our readers decide for themselves whether the asylum process is fair or is in need of reform.
- GAO Report On INS BacklogsIn May, the General Accounting Office issued a 120-page report to the House of Representatives entitled “Immigration Benefits: Several Factors Impede Timeliness Of Application Processing”.According to the GAO, the number of applications pending at the INS increased approximately 400% between 1994 and 2000 to almost four million. Between 1999 and 2000, while the naturalization backlog diminished, the backlogs grew in the following areas: (1) adjustment of status; (2) replacement green cards; and (3) relative visa petitions.According to Mark Krikorian, Executive Director of the Center for Immigration Studies, “It’s no doubt partly a function of INS failures internally, but largely, it’s a legacy of congressional neglect.”Access the complete report from our “INS Page” at https://www.shusterman.com/uscitizenshipandimmigrationservices.html scroll down to “Processing Delays”, and click on “GAO Report On INS Processing Delays…”
- H-1B Count: Will The Cap Be Reached This Year?The INS reported that, as of May 23, 117,000 H-1B petitions subject to the cap had been used, and that another 40,000 such petitions were pending.This means that 65% into the fiscal year, 75% of the cap of 195,000 has been used, making it likely that the H-1B cap will be reached by early September.
- Nurses: INS Issues H-1C RegulationsEarlier today, INS issued interim, final regulations implementing the H-1C nurse law which was enacted in November 1999.The law would allow at least four hospitals in the country to petition up to 500 RNs annually.
- Section 245i Extension?Recently, the House of Representatives passed legislation to extend §245i for an additional four months (H.R. 1885).On June 14, the Senate Judiciary Committee is expected to consider a bill which would extend §245i for 12 months, and would eliminate the provision in the House bill that the family or employment relationship exist as of April 30, 2001.The Senate bill, S.778, is being co-sponsored by a bipartisan coalition of 22 Senators ranging from Senator Edward Kennedy (D-MA) to Senator Jesse Helms (R-NC).
- Senate: Impact Of Change In Leadership Yet To Be SeenOn June 6, the Senate leadership, including all committee and subcommittee chairmen, changed from Republican to Democrat. The new Chairman of the Judiciary Committee is Senator Patrick Leahy (D-VT) while the new Chairman of the Subcommittee on Immigration is Senator Edward Kennedy (D-MA).
On June 11, we posted the July 2001 Visa Bulletin before the State Department posted the dates on their web site.
The Family categories look like they were hit by a freight train. The worldwide FB numbers for three of the five categories moved backward instead of forward. And the numbers regressed not by weeks or months, but by years! The FB-3 category (married sons and daughters of U.S.
On the Employment side, it was the best of times. All of the EB categories, including those for unskilled workers, became current. Of course, backlogs will develop in the EB numbers within a few months, but for now, it is time for hard-pressed professionals from India and China to pop open the champagne!
The July 2001 Visa Numbers can be found at https://www.shusterman.com/statedepartmentvisabulletin/ For an explanation of what the categories, dates and symbols listed below mean, See https://www.shusterman.com/greencardsthroughrelatives.html and https://www.shusterman.com/waitingtimesusimmigration/#4
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.
On June 1, the INS issues regulations to implement the Premium Processing Program enacted into law on December 21, 2000.
Under the program, the INS agrees to respond to certain employment-based petitions within 15 days if a Request For Premium Processing Service (Form I-907) and a check for $1,000 is submitted together with, or following, the original I-129 petition.
The regulations designate the following types of nonimmigrant petitions to be included in the initial program:
- E-1 Treaty Traders
- E-2 Treaty Investors
- H-2A Agricultural Workers
- H-2B Temporary Workers
- H-3 Trainees
- L-1 Intracompany Tranferees
- O-1/O-2 Persons of Extraordinary Ability
- P Athletes and Entertainers
- Q International Cultural Exchange Visitors
On July 30, the following petitions will be added to the program:
- H-1B Special Occupation Workers
- R-1 Religious Workers
- TN Trade NAFTA Professionals
Even before the regulations were published, we established a page entitled “Premium Processing Service: A Complete Guide” at https://www.shusterman.com/premiumprocessingimmigration.html
This page includes the complete text of both the law and the regulations, a link to Form I-907, as well as various news releases, facts sheets and FAQs about the new service.
The new program has generated a great deal of interest in the press. We were quoted in a front page story which appeared in the Washington Post on May 31. We were interviewed by a number of newspapers, periodicals, wire services and radio talk shows.
On June 7, we conducted a free online chat entitled “Paying Your Way To The Front Of The Line”. See
The May 22 hearing before the Senate Subcommittee on Immigration on “Rural and Urban Health Care Needs” was summarized by the American Immigration Lawyers Association (AILA) as follows:
Senator Sam Brownback, who served as the chair of the Senate Immigration Subcommittee, scheduled a hearing on May 22 to review rural and urban health care needs. Given that Senate floor votes were occurring at the same time, the Senator convened a truncated hearing. AILA member Carl Shusterman, Martha Hegarty (on behalf of the American Health Care Association) and Diane Sosne from the Service Employees International Union (SEIU) were scheduled to testify along with others representing the Kansas and American Hospital Associations, the American Psychological Association, and the American Health Care Association.
Carl Shusterman’s testimony focused on the severe nationwide nursing shortage, undersupply of primary care physicians, and the fact that large areas of our county are medically underserved. He noted also that current immigration laws contribute to the crisis by creating “protectionist walls that make it difficult for U.S. employers to hire foreign-born nurses.” Shusterman called on Congress to restore the system of temporary visas for registered nurses that was in place between 1952 and 1995. He also called for laws that encourage the immigration of primary care physicians to the U.S., as well as expanding programs that allow international medical graduates who are trained in the U.S. to remain in this country.
Editor’s Note: The complete text of Mr. Shusterman’s testimony may be accessed online at https://www.shusterman.com/shustermantestimonysenate.html
A video of Mr. Shusterman’s testimony can be seen at https://www.youtube.com/watch?v=Wd4H9Rs45gw
Martha Hegarty’s testimony (for the American Health Care Association) highlighted the critical shortage of caregivers in long term care, and the important role reforming our nation’s immigration laws must play in helping to solve the problem. She called on Congress to enact a new immigration program that is responsive to the care needs of our frail, elderly, and disabled citizens.
Diane Sosne’s testimony (for SEIU) noted both the union’s pride in their immigrant members working in home healthcare, nursing homes, and hospitals and problems that have resulted from inadequate staffing. She noted that because the root cause of the nursing shortage is not lack of nurses, but working conditions, immigration is a band-aid that would cover up the real problem. She added that SEIU does not oppose immigration as one approach to solving the nursing shortage, but the priority needs to be to attract and retain health caregivers through improved working and quality patient care conditions. She called shortsighted bringing in more health caregivers from around the world because “Regardless of nationality, the working conditions are driving health care givers away from these jobs. We should not exploit immigrant workers because conditions in this country may be better than from where they came.” She also cautioned against selectively adapting our immigration policies to “cater to one particular industry” and called for broad reforms of our immigration laws, including allowing undocumented workers already in this country to legalize their status…
See the list of all the witnesses on our “Immigration Legislation” Page at https://www.shusterman.com/legislationusimmigration.
Scroll down to “U.S. Senate” and click on “Legislative Hearing – Immigration Policy: Urban and Rural Health Care Needs (5-22-01)”.
For a short summary of my testimony, access our “Photo Gallery” at https://www.shusterman.com/greencardsthroughemployment/
In a “News Flash” in the May issue of SHUSTERMAN’S IMMIGRATION UPDATE, we noted that the Board of Immigration Appeals (BIA) in Matter of Monreal defined the term “exceptional and extremely unusual hardship” for purposes of qualifying for cancellation of removal under the 1996 immigration law.
By way of background, the 1996 law substituted removal proceedings in place of deportation proceedings, and “cancellation of removal” for “suspension of deportation”. Cancellation of removal is a means of relief from deportation for certain persons who can demonstrate a certain number of years of continuous physical presence in the U.S., good moral character, and hardship to qualifying family members. See https://www.shusterman.com/howtoavoiddeportationremoval.html and scroll down to “Cancellation Of Removal For Non-Permanent Residents”.
Among other things, the 1996 law increased the minimum period of continuous physical presence from seven to ten years, and imposed a “stop-time” rule that provides that any physical presence that accrues after the initiation of removal proceedings can not be considered in determining eligibility for cancellation of removal.
The 1996 law also increased the standards for demonstrating hardship, another requirement for establishing eligibility for cancellation of removal. No longer can the hardship to the person undergoing removal proceedings be considered, only the hardship to his U.S. citizen or permanent resident spouse, parents or children.
In addition, the standard was increased from “extreme hardship” to “exceptional and extremely unusual hardship”. For almost five years, Immigration Judges, INS attorneys and private attorneys have all had to struggle with what constituted “exceptional and extremely unusual hardship.” Now, the BIA in Matter of Monreal has attempted to define the standard.
Francisco Monreal entered the U.S. over 20 years ago in 1980 at the age of 14. (Note: Although BIA’s decision does not state whether he entered the U.S. legally, the inference is that he did. Otherwise, he would have been eligible for legalization.) Since that time, he has never left the U.S. He is married, and has three children, all of whom are U.S. citizens, one of whom is an infant, and the others are 12 and 8 years of age. In addition, his parents are both lawful permanent residents of the U.S. Finally, 7 of Mr. Monreal’s siblings are lawful permanent residents of the U.S.
Unfortunately, Mr. Monreal’s wife, who was not eligible for cancellation of removal, “voluntarily departed” the U.S. for Mexico along with their infant child. This factor considerably weakened his hardship claim since the Immigration Judge, by ordering him to return to Mexico was reuniting him, rather than separating him, from his immediate family. Although the BIA’s decision is unclear as to the reason why his wife departed the U.S., reading between the lines, it looks as though she left the U.S. not because she wished to return to Mexico, but because she was ordered to do so by either the INS or an Immigration Judge.
Mr. Monreal has been gainfully employed in the U.S. since the age of 14, and is the sole support of his two U.S. citizen children in this country, and probably of his wife and U.S. citizen infant in Mexico. The government did not dispute that Mr. Monreal meets the physical presence and good moral character requirements of the law. Nevertheless, the Immigration Judge denied his application for cancellation of removal for failure to meet the new heightened hardship requirements. The BIA upheld the Judge’s decision, denied Mr. Monreal’s application for cancellation of removal and ordered him to return to Mexico.
The BIA quoted from the legislative history of the 1996 law to find that “exceptional and extremely unusual hardship” means that a person undergoing removal proceedings must provide evidence of hardship to his qualifying spouse, parent or child which is “substantially beyond that which would be expected to result from the alien’s deportation.”
The BIA rejected the standard contained in the 1952 law that “exceptional and extremely unusual hardship” means that the effect of the deportation must be “unconscionable”.
The decision reaffirms the continued validity of Matter of Anderson, 16 I&N Dec. 596 (BIA 1978) which lists factors to be considered in assessing a hardship claim. However, the BIA cautions that factors which relate only to the applicant cannot be considered, and that the other factors must be weighed against the higher standard of hardship contained in the 1996 law.
Finally, the BIA’s decision lists a number of factors that must be considered in assessing whether a person’s application for cancellation of removal meets the hardship standard:
For cancellation of removal, we consider the ages, health, and circumstances of qualifying lawful permanent resident and United States citizen relatives. For example, an applicant who has elderly parents in this country who are solely dependent upon him for support might well have a strong case. Another strong applicant might have a qualifying child with very serious health issues, or compelling special needs in school. A lower standard of living or adverse country conditions in the country of return are factors to consider only insofar as they may affect a qualifying relative, but generally will be insufficient in themselves to support a finding of exceptional and extremely unusual hardship. As with extreme hardship, all hardship factors should be considered in the aggregate when assessing exceptional and extremely unusual hardship…
To read the BIA’s 23-page decision in Matter of Monreal (Interim Decision #3447, May 4, 2001), click on our Deportation Page at https://www.shusterman.com/deportationdefense scroll down to “Relief From Deportation” and click on “BIA Defines Exceptional and Extremely Unusual Hardship’ for Purposes of Cancellation of Removal in Matter of Monreal…”
The decision in Matter of Monreal should be must reading for all members of Congress. Deporting Mr. Monreal, who is a model “citizen”, to a country where he hasn’t lived for over 20 years, effectively deporting his 12 and 8-year-old U.S. citizen children, and separating both he and his children from their grandparents, aunts, uncles and cousins strikes us as unduly harsh.
In our opinion, the law should be changed to restore the hardship standard to what it was prior to the 1996 law, to apply it to the applicant as well as to his family members, to repeal the “stop-time” rule and to reduce the physical presence requirement to 7 years. This is not only equitable, but places Mr. Monreal on an equal footing with NACARA applicants. U.S. immigration laws should not treat Mr. Monreal and his family less generously simply because he was born in Mexico rather than in Nicaragua, El Salvador or Poland. To the extent possible, immigration laws should treat all persons the same, not according to their country of birth. This is especially important in removal proceedings where a person’s ability to remain in the U.S. with their U.S. citizen children, and permanent resident parents and siblings is at stake.
After 15 years of battle, the government has declared a truce in the form of a green card program for late amnesty applicants. For a look at some of the battles fought in the course of this 15 Years War, see our “Amnesty Page” at https://www.shusterman.com/amnestyusimmigration.html
The LIFE Amendments, which were enacted on December 21, 2000, provided that INS would issue regulations to establish a year-long period whereby late amnesty applicants would be able to apply directly for permanent residence.
On June 1, 2001, the INS issued the most-awaited regulations. See the complete text of the regulations at https://www.shusterman.com/lateamnestyregulations.html
The regulations provide that late amnesty applicants may apply for permanent residence between June 1, 2001 and May 31, 2002.
To be eligible, for what has been dubbed “LIFE Legalization”, applicants must:
- Have filed with the Attorney General a written claim for class membership, with or without a filing fee, in one of the following legalization lawsuits before October 1, 2000: CSS, LULAC or Zambrano;
- Have entered the U.S. prior to January 1, 1982, and resided continuously in the U.S. in an unlawful status since that date through May 4, 1988;
- Have been physically present in the U.S. from November 6, 1986 to May 4, 1988;
- Be admissible to the U.S.;
- Have no conviction for a felony or for three or more misdemeanors committed in the U.S.; AND
- Demonstrate basic citizenship skills or be pursuing a recognized course of study to achieve basic citizenship skills.
INS estimates that 440,000 individuals may be eligible to apply for LIFE Legalization.
For additional information, see our “LIFE Act Page” at https://www.shusterman.com/lifeactof2000.html
Finally, there are database software programs for sale to immigration law firms!
A few years ago, only those law firms that spent $50,000 to $100,000 had immigration case management programs that gave electronic reporting to clients.
One of those firms developed ImmigrationTRACKER (“Tracker”), which is like the Rolls Royce of immigration case management software — for the price of a Camry. Tracker was launched by AILA members Julie Pearl and Kelly McCown, whose firm files thousands of cases each year for Silicon Valley clients like Applied Materials, Electronic Arts & Polycom.
A few months ago my law firm started using Tracker. In making our decision, we first ruled out the ASP models being wary of having our client information residing in cyberspace or on any other company’s server. However, the ASP software programs are often the least costly for firms with less than five users.
We then compared the top-two software packages that let us keep all the data at our law firm on a secure server, including Tracker. We examined each of the following factors:
- RELIABILITY: Since 1998, Tracker has been in stable use without crashes. The other software was released in early 2001.
- FEATURES: Both software programs have the modern features on everyone’s wish list, from status-expiration reminders and timekeeping to forms generation and web functionality.
- ELEGANCE & EASE OF USE: Other software programs make you open several screens to start a new case. Tracker takes you to just one well-organized screen, where data gets entered with minimal effort – no typing is needed for most action fields.
- USEFULNESS OF REPORTS: All software programs offer reports, but Tracker’s reports do more (e.g., sort by any field with one keystroke) and give tools for the law firm’s whole management system – from client reports to internal metrics.
- LOWER COST WEB ACCESS: For firms with more than a handful of users, Tracker’s web component costs less than prices charged by competing software, which either require expensive SQL server licenses or charge a per-record fee (e.g., 1,500 client names in the database of an established 10-person firm times $1 per month = $18,000 per year, in addition to the base software price!). By contrast, Tracker’s built-in proprietary software allows for a reasonable one-time price.
- QUALITY OF WEB FIELDS: All the new software programs boast web access for clients and others. Tracker’s web-data is the most consistent and useful, given the sophistication of the underlying database’s customized process screens.Seeing it live once is all it takes to recognize why Tracker is a superior case management software for immigration law firms and their corporate clients.
For a demo CD or more information on ImmigrationTracker call Immigrationlaw.com: (866) 211-3952
ImmigrationTRACKER will be on display at the AILA Conference in Boston near the Exhibit Hall entrance (Spot #113)
AILA Members only can call: Julie Pearl (415) 771-7500 x263
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, 213) 623-4592 Fax- (213) 623-3720
“Power never yields without a demand. Never did, never will.”
– Frederick Douglass
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June 11, 2001