Volume Thirteen, Number Five
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 2008
TABLE OF CONTENTS:
- Three Bills Affecting EB Immigration Proposed in House
- Emergency Nursing Supply Relief Act Proposed in Congress
- TNs: USCIS’ Proposed Regulation for Three-Year TN Status
- Employment-Based Green Card Issues Examined: Ability to Pay
- Success Story: Establishing That a Job Offer is Permanent
- Immigration Trivia Quiz: I Love Rock ‘n Roll
- Ask Mr. Shusterman: New Guidance on Child State Protection Act
- Immigration Government Processing Times
- Chat Transcripts, Audios, Videos and WebCasts
- Winner of May 2008 Immigration Trivia Quiz
- Board of Immigration Appeals– On May 30, the Attorney General appointed five new members to the Board of Immigration Appeals. We link to the news release which contains the names and short biographies of each of the new members from our “Board of Immigration Appeals” page at
- Detention– On May 1, Rep. Zoe Lofgren (D-CA) introduced the “Detainee Basic Medical Care Act of 2008” (H.R.5950) in the House of Representatives. The same day, the bill (S.3005) was introduced in the Senate. We link to the bill from our “Immigration Legislation” page at
According to a four-part series of articles which appeared in the Washington Post in mid-May, since the creation of ICE in 2003, 83 persons have died while in custody. The Post states that 30 of these deaths occurred under “questionable” circumstances. For example, one man in the San Pedro detention facility had a large tumor on his penis, yet the government physician refused to let him see an outside specialist. As a result, the tumor grew and his penis had to be amputated. Later, the cancer spread to his other organs and he died. A Federal Judge characterized the government’s handling of this matter as “beyond cruel”. Nor was this an isolated case. We link to a letter of resignation written by a nurse who was formerly employed at the ICE detention center in Eloy, Arizona which describes the substandard care at that facility. See
For subscribers who wish to read the Washington Post articles entitled “Careless Detention” which ran from May 11 to 14, see
The New York Times and “60 Minutes” also ran stories criticizing ICE for providing substandard healthcare in detention facilities.
ICE fought back a number of press releases and fact sheets including “Detainee Health Care: The Rest of the Story” which we link to from
http://www.ice.gov/pi/detention_health_care.htm (Link no longer operational)
On June 1, reporter Sandra Hernandez wrote in the Los Angeles Times that “unlike federal and state prisons, immigrant detention centers, many of which are run by private contractors, are not legally mandated to abide by any healthcare standards when it comes to treating sick immigrants.”
For a fictionalized, but very accurate, version of what it is like to be held in an ICE detention center, subscribers should not miss seeing the excellent film, “The Visitor”, which is currently playing in over 100 cities across the U.S.
- Labor Department– Starting June 1, the Department of Labor centralized all PERM applications at the Atlanta National Processing Center (NPC). Temporary applications (e.g., H-2As and H-2Bs) were centralized at the Chicago NPC. For additional information about PERM, see our “PERM Resources” page at
- Mandamus Lawsuits – Since the USCIS and the FBI agreed to speed-up the name check process, all of our pending mandamus lawsuits have been settled in our clients’ favor. Thanks to the USCIS and the FBI for solving this long-festering problem!
- OPT Rule Lawsuit– In late May, a group of organizations opposed to the H-1B visa category filed a lawsuit against the Bush Administration’s rule which allows certain foreign-born graduates of U.S. universities to obtain an additional 17 months of Optional Practical Training. We link to the story from our “Students” page at
- Physicians– In May, the House of Representatives voted to extend the current Conrad 30 J waiver program for physicians for another five years. When Congress reconvenes on June 3, we will turn our attention to the Senate. The Conrad 30 Improvement Act (S.2672), which is pending in the Senate, would increase the number of waivers granted, and would permit IMGs who do their training in H-1B status to be exempted from EB numerical caps if they practice in medically underserved areas for three years. This would be a significant benefit for physicians born in India and mainland China. We link to the complete text of the Senate bill from our “Immigration Legislation” page at
- USCIS States “We’re Listening”– On May 14, former USCIS Commissioner Emilio Gonzalez took to the Internet to dispute a recent New York Times editorial which criticized the agency for not foreseeing the enormous backlog that was created last summer when the USCIS received an enormous amount of new applications, and despite the huge fee increases which were supposed to improve service to the public, has been unable to cope with the new backlogs. Commissioner Gonzalez has resigned his position, but his posting “generated more interest from readers than any other Leadership Journal entry to date, both in terms of the numbers of readers and posted comments” according to Acting USCIS Director Jonathan “Jock” Scharfen. If you would like to read Director Scharfen’s comments or to let the USCIS know how the backlogs have affected you.
- Visa Bulletin– The June Visa Bulletin was a disappointment to persons who have been “playing by the rules” and waiting in long lines to get their green cards. For those in the EB-3 category, do not be surprised if this category retrogresses or even becomes unavailable later this summer. To view the June 2008 Visa Bulletin, see our “Visa Bulletin” page at
Since comprehensive immigration reform does not appear possible in an election year, the answer seems to be to try to fix the legal immigration in a piecemeal fashion. Three important bipartisan bills were introduced in April and May which would remedy some of the more egregious faults with the present immigration system, thereby eliminating penalties for those persons who “play by the rules”:
A) On April 23, the Rep. Zoe Lofgren (D-CA) and Rep. James Sensenbrenner (R-WS) introduced H.R. 5882, a bill which would “recapture employment-based immigrant visas lost to bureaucratic delays and to prevent losses of family- and employment-based immigrant visas in the future”. Under the present law, visa numbers not used for employment-based immigration, due to bureaucratic inefficiency, expire at the end of the federal fiscal year on September 30, and cannot be used in subsequent years. The bill would permit approximately 225,000 immigrant visas to be “recaptured”, 93,000 of which are family-based and the rest are employment-based.
Since the number of employment-based green cards is limited to 140,000 annually, and includes not only workers but their spouses and children, passage of the bill would dramatically shorten waiting times for EB applicants.
On the other hand, since over 4,000,000 persons are waiting in line for 226,000 family-based green cards annually, the addition of 93,000 recaptured visas would not substantially shorten the waiting times which presently range from five to twenty-two years.
Still, we believe that the bill is a step in the right direction.
In addition, the bill would amend the law so that green card numbers lost at the end of the fiscal year could be used in succeeding years.
B) On April 29, Rep. Lofgren (D-CA) and Rep. Goodlatte (R-VA) introduced the “High Skilled Per Country Level Elimination Act”.
This bill, H.R. 5921, would “eliminate the per country level for employment-based immigrants and…end the spill-over of unused immigrant visa numbers between employment-based and family-sponsored categories.”
Presently, no more than seven percent of employment-based or family-based visa numbers may be allocated to persons born in a single country. This means that high-population countries like India and China (and high-immigration countries including Philippines and Mexico) are limited to the same amount of green cards as are low-population countries which send few workers or family members to the U.S. This unfairly punishes persons who are born in countries which send many immigrants to the U.S.
The bill would remove all per-country limitations from the employment-based categories, and increase the per-country limitations in the family-based categories from seven to ten percent.
C) On May 13, Rep. Lofgren and 19 co-sponsors introduced H.R.6039 in the House. The bill would exempt foreign-born persons with Masters or higher degrees from U.S. universities in science, technology, engineering and mathematics (STEM), and who have an offer of employment from a U.S. employer in a field related to such degree, from the 140,000 annual cap on employment-based green cards.
We link to all three bills from our “Immigration Legislation” page at
Will Congress pass these bills this session?
Ever since Congress allowed the temporary visa program for registered nurses to expire in the mid-1990’s, it has become increasingly difficult for U.S. hospitals to hire foreign-born RNs. I testified before the Senate Immigration Subcommittee on this issue in 2001, but since then, the nurse shortage has only become increasingly severe.
To help alleviate this growing problem, on April 29, Representatives Robert Wexler (D-FL) and James Sensenbrenner (R-WS) introduced the Emergency Nursing Supply Relief Act (H.R. 5924) in the House of Representatives.
Presently, RNs are in the Employment-Based Third (EB-3) category. Due to quota restrictions, it can take between two and five years for a hospital to immigrate an RN to the U.S.
This despite the fact that both RNs and physical therapists have been certified for many years as shortage (Schedule A) occupations by the U.S. Department of Labor. See
H.R. 5924 would create a new Schedule A category to allow 20,000 RNs and PTs to obtain permanent residence in the U.S. each year until 2011.
Spouses and unmarried children of these RNs and PTs would be permitted to immigrate to the U.S. without quota restrictions.
In order to raise money to train RNs and nursing faculty in the U.S., employers would pay the government a surcharge of $1,500 for each sponsored foreign-born RN. This fee would be waived for employers located in areas affected by Hurricane Katrina and for employers located in federally-designated Health Professional Shortage Areas (HPSAs). To determine whether you are located in a HPSA, see our “Medically- Underserved Areas” page at
The bill mandates that the USCIS give priority treatment to Immigrant Visa Petitions (I-140s) submitted on behalf of RNs and PTs. Presently, it takes the agency up to one year to approve such petitions. The bill provides that DHS “shall provide a process for reviewing and acting upon such petitions…not later than 30 days after the date on which a completed petition has been filed.”
On May 16, the American Hospital Association (AHA) wrote a strong letter in support of the legislation to Representatives Wexler and Sensenbrenner. The AHA predicts that the RN shortage in our country will reach ONE MILLION by the year 2020. It states that “in 2006, nearly 150,000 qualified U.S. RN applicants were turned away from domestic nursing schools because of a lack of available classroom slots and faculty.”
We link to the complete text of bill and to the AHA letter from our “Immigration Legislation” page at
We will update you as to the progress of this bill on our website and in future newsletters.
On May 9, the USCIS published a proposed regulation which would allow persons in Trade NAFTA (TN) status to work in the U.S. for up to three-years at a time, and to extend their TN status for up to three years.
In addition, their TD dependent spouses and children would also be able to renew their status for three-years at a time.
Presently, TNs and TDs must renew their status on an annual basis, thereby creating a tremendous amount of extra work for the USCIS. The proposed regulation, if adopted in final form would allow the agency to concentrate its resources on more pressing matters.
To qualify for TN status, the worker must be a citizen of either Canada or Mexico, and must be sponsored by an employer in the U.S. to work in one of several dozen enumerated professions. For a list of such occupations, and a comprehensive guide to working in the U.S. under NAFTA, see our “Free Trade Agreement” page at
and click on “Mexican and Canadian NAFTA Professional Workers”.
The proposed regulation would also eliminate the present requirement that all TN petitions and applications be submitted to the Nebraska Service Center.
In a related matter, what happens if a TN worker wishes to apply for permanent residence in the U.S.?
This process is not as simple as it may seem. TN workers are permitted to be present in the U.S. only as long as they intend to depart the U.S. at the end of their authorized stay plus any extensions. Therefore, once a U.S. employer submits an I-140 petition to sponsor a TN worker for permanent residence, the chances that the worker will be able to extend his or her TN status, or depart and attempt to re-enter the U.S., are slim indeed.
Given the present one-year duration of TN status, it is impossible for most TN workers to immigrate to the U.S. through employment. If an employer requests our law firm to obtain permanent residence for a TN worker, our usual course of action is obtain a change of status for the worker from TN to H-1B if possible. However, given the H-1B numerical cap and impossibility of obtaining H-1B status for many TN workers including management consultants and registered nurses, we are often forced to tell the U.S. employer or the TN worker than this cannot be done.
However, once the duration of TN changes from one to three years, obtaining permanent residence for a TN worker becomes a possibility. For example, a registered nurse in TN status may be petitioned by her employer. At present, the Visa Bulletin shows a waiting time under three years for a Canadian RN (although the waiting time for a Mexican RN exceeds five years). If the U.S. employer petitioned for a Canadian nurse early in her tenure, if the waiting times do not increase and if the RN does not travel outside the U.S. after the I-140 is filed, she may be able to achieve permanent residence in the U.S. That’s a lot of “if’s”, but given the benefits, some Canadian RNs no doubt will elect to start the permanent residence process.
In any case, we applaud the USCIS for issuing the proposed rule since it will allow the agency to decrease mounting backlogs in other areas. We link to the proposed regulations from our “Temporary Visas” page at
An important issue to consider when beginning an employment-based immigrant visa (“green card”) case is whether an employer has the ability to pay the offered wage throughout the sponsorship process.
When filing the Form I-140 Immigrant Visa Petition, the sponsoring employer must provide evidence demonstrating that it had the ability to pay the wage from the time the priority date was established (when the I-140 or the PERM application, if one was required, was filed) and continuing until the worker obtains lawful permanent resident status.
As provided at 8 CFR 204.5(g)(2), when filing an I-140, the employer must provide copies of one of the following:
- Annual reports;
- Federal tax returns; or
- Audited financial statements.
Alternately, if the prospective employer employs 100 or more workers, USCIS may accept a statement from a financial officer of the organization to establish the prospective employer’s ability to pay the offered wage.
According to an often-cited May 4, 2004 memo from Associate Director of Operations, William R. Yates, to the Service Center Directors, “if the record is complete with respect to all of the required initial evidence, USCIS adjudicators are not required to issue an RFE (request for evidence) to obtain further documentation to support a decision based on the record or establish the petitioner’s ability to pay.” See the memo which we link to from our “Adjustment of Status” page at
Thus, it is very important for an employer sponsoring an alien worker for legal permanent resident status to be prepared to provide one of the three required forms of initial “ability to pay” evidence at the I-140 filing stage. While the memo allows that, in certain instances, USCIS may, at its discretion, consider additional evidence (e.g., profit/loss statements, bank account records, or personnel records) to document the ability to pay the offered wages, an employer should not rely on the USCIS’s willingness to accept additional or alternative evidence. As the Yates Memo states, “If the CIS adjudicator exercises discretion to accept either the financial statement or additional financial evidence, that evidence must clearly establish the petitioner’s ability to pay. If the CIS adjudicator has any doubts about whether the additional documents establish the petitioner’s ability to pay, the CIS adjudicator may deny the petition and not RFE for additional evidence to further clarify the discretionary evidence that was accepted.” The memo also reminds CIS adjudicators that when an I-140 is filed with the required initial evidence, the “adjudicators should make a positive ability to pay determination” if the initial evidence demonstrates that the employer’s net income or net current assets are as much as or greater than the offered wage, or that the employer is already employing the beneficiary and paying him or her as much as or more than the offered wage.”
In practical terms, this presents two options in cases where the worker may already be working in the position in which the employer intends to permanently employ him or her. If the employer has been paying the worker the offered wage (or more) since the time the priority date was established, copies of the employee’s pay-stubs and W-2 forms can be used as additional evidence of the employer’s ability to pay because they demonstrate that the employer is already paying the offered wage. However, if the worker is already employed in the offered position but is earning less than the offered wage, the employer may still be able to demonstrate its ability to pay if it can provide evidence that its net income or net current assets are as much as or greater than the difference between the worker’s earnings and the offered wage. In any event, at the time that the worker is granted legal permanent resident status, the employer must be paying him or her as much as, or more than, the offered wage.
Before beginning any employment-based green card case, a thorough discussion of these issues is necessary to make sure an employer understands that the burden of proof is on him to demonstrate the legitimacy of the permanent job offer being made to the worker. It is not only important that the employer have the ability to pay the wage offered on the I-140 immigrant visa petition, but also that it can provide the evidence required to document the ability to pay that wage.
For more information regarding how to obtain permanent residence through employment, please see our “Green Cards through Employment” page at
For specific guidance, please schedule a legal consultation at
One of the fastest paths to get a green card is through filing of an EB-1 petition which among others is available to Outstanding Professors and Researchers. No PERM application is required and the visa availability is current for all countries.
Dr. S consulted us in order to explore the feasibility of filing under EB-1 category. In order to qualify under this category, the regulations require that the researcher or professor be “internationally” recognized for excellence in the academic field, and have at least three years of research or teaching experience in the field. The regulations also require that the foreign national meet two of the following six criteria:
- prizes or awards in the field;
- membership in associations requiring excellence;
- articles about the person in professional publications;
- participation as a judge of the work of others;
- original scientific or scholarly research contributions;
- authorship of scholarly books or articles in the field.
For more information, see our “Outstanding Professors and Researchers” page at
The regulation also imposes a condition that a job offer from a university must be in a tenured or in a tenure track position if it involves teaching, or for an indefinite period if it is a research position.
After carefully examining the credentials of Dr. S, we submitted a well-prepared package to the USCIS. In spite of this, the Immigration Service challenged the I-140 petition. The USCIS did not question Dr. S’s qualifications since our paperwork substantially proved that he met the criteria mentioned above and that he was internationally recognized. Rather, the Immigration Officer questioned the “permanency” of the position being offered to Dr. S, stating that “a search of the petitioner’s website indicates such positions are temporary in nature as they are limited to two years in duration.”
We questioned the employer about this and we were informed that university or research centers cannot offer “permanent” employment simply because all of these positions are heavily dependent upon outside funding which must be renewed periodically. The position is permanent as long as funding is available, but in order to avoid employment lawsuits, the employer is not able to confirm employment beyond the date of available funding. Still, the employer desperately wanted us to do something to make sure that Dr. S could continue his research.
Given the reality of the situation, we did some research to address the “permanent” nature of the position being offered to Dr. S. Our research indicated that the USCIS had released guidance in an interoffice memo addressing the definition of “permanent employment” when adjudicating EB-1 petition filed on behalf of outstanding professors and researchers.
In the light of the memo, we asked Dr. S’s employer for the relevant documentation to clarify that the duration of his position is indefinite even though each appointment is of a specific term. We highlighted the importance of the research and provided evidence that there was a reasonable expectation that the funding would continue even though the research position was funded by grant money received on a yearly basis. In addition, we submitted evidence to prove Dr. S’s critical role in the ongoing research activities of the premier biomedical research organization which employed him. By careful documentation and highlighting the specific memo, we demonstrated the employer has the necessary intent to continue to seek funding and that there was a reasonable expectation that funding would continue into the foreseeable future.
Two weeks after receiving our response, the USCIS approved the I-140 petition.
Dr. S., who was born in India, and who is now in his 6th year of H-1B status, is elated. He expects to get his green card very soon.
On April 30, the USCIS issued a nine-page memo which puts the agency in compliance with the decision of the Board of Immigration Appeals (BIA) in Matter of Avila-Perez, 24 I&N Dec. 78 (BIA 2007). On May 6, the USCIS posted online a three-page Fact Sheet instructing the public how to take advantage of their new policy. We link to both documents from our “Child Status Protection Act” (CSPA) page at
In Avila-Perez, the BIA ruled that where a visa petition for a child was filed before his 21st birthday and approved before the effective date of CSPA, but where the beneficiary did not apply for adjustment of status until after the enactment of CSPA and after his 21st birthday, he is still permitted to retain his status as a “child” for purposes of immigrating as an “immediate relative”.
This holding is based on part one of Section 8 of CSPA which states as follows:
The amendments made by this Act shall take effect on the date of the enactment of this Act and shall apply to any alien who is a derivative beneficiary or any other beneficiary of– (1) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) approved before such date but only if a final determination has not been made on the beneficiary’s application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition.
The BIA rejected the government’s argument that a visa petition, an application for adjustment of status or an application for an immigrant visa must be “pending” on the date of CSPA’s enactment, August 6, 2002, for an individual to benefit from CSPA. The government decided not to challenge the BIA’s decision in Federal Court, and therefore, the decision is binding on the USCIS. We link to Matter of Avila-Perez at
The USCIS Fact Sheet, issued on May 6, answers the question “Who benefits under the new CSPA guidance?” as follows:
“The new guidance allows aliens who had an approved immigrant visa petition prior to the enactment of the CSPA, but had not yet applied for permanent residence (either an application for adjustment of status or an immigrant visa) on the date of enactment to benefit from the CSPA. Under prior guidance, the CSPA did not apply to such applicants. The new guidance includes many aliens who, subsequent to the enactment of the CSPA, never filed an application for permanent residence and aliens who filed an application for permanent residence but such application was denied solely based on the applicant’s age.”
Almost six years after CSPA became a law, the agency has yet to issue regulations to implement the statute.
We are in the final stages of preparing a complaint on behalf of a number of plaintiffs who, although they have “aged-out”, are entitled to benefits under the last sentence of section 3 of CSPA:
(3) RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.’.
We link to the complete text of CSPA at
I will be discussing the lawsuit at the Annual Conference of the American Immigration Lawyers Association (AILA) later this month. I am the discussion leader of a panel featuring Attorneys Rachel Ullman and Ari Sauers in Vancouver, Canada. For those of you who are not immigration attorneys, I will post a copy of our complaint on our website as soon as it is filed in Federal Court.
Do you have immigration questions of general interest to our readers? Send them to
firstname.lastname@example.org (Link no longer operational)
Each month we choose one question to answer in our newsletter. To be considered, 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, please schedule a 30-minute legal consultation with me at
We link to the most recent immigration waiting times for each of the four USCIS Service Centers, the National Benefits Center and the Administrative Appeals Office. We also link to the processing times of all of the 83 USCIS District Offices and Sub-offices. We link to the Labor Department’s page entitled “Processing dates for labor certification applications”. Finally, we link to the State Department’s “Visa Wait Times” page.
Here is the letter that we received from our winner:
Dear Mr. Shusterman,
Here are the answers to the Immigration Trivia Quiz:
- Leandro Barbosa – Brazil – Phoenix Suns
- Predrag “Peja” Stojakovic – Serbia – New Orleans Hornets
- Emanuel “Manu” Ginobili – Argentina – San Antonio Spurs
- Mikael Pietrus – France – Golden State Warriors
- Pau Gasol – Spain – Los Angeles Lakers
I’m a naturalized Canadian citizen. I’m being petitioned by my husband, who just got his green card recently. I live in Arizona. I’m not working.
I like basketball, I only had a hard time with Pietrus, I knew him, but I couldn’t recall his name. I went to nba.com, clicked on the international players, I went over through the names, and once I saw his name I was sure that it was him, having compared the pictures.
I have subscribed with your site since 2000. I used your site to get up-to-date with immigration news.
Definitely, a three-point shot, Alicia!
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 country … needs to make sure it doesn’t keep out immigrants who make the country stronger. Every year, Congress shuts the door to hundreds of thousands of doctors, scientists, engineers and artists from around the world who want to come here. This is the greatest case of national self-sabotage and attempted suicide that I can imagine.”
– New York City Mayor Michael Bloomberg
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