Volume Twelve, Number Two
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 March 2007
TABLE OF CONTENTS:
- Immigration Reform Bills to Be Introduced Later This Month
- CIS Proposes Massive “Surge” in Immigration Filing Fees
- Employers May Start Submitting New H-1B Petitions on April1st
- Physicians: CIS Implements Our NIW Victory Nationwide
- Success Story: Cabrera Family Wins Right to Remain in U.S.
- Immigration Trivia Quiz: No Religious Test
- Ask Mr. Shusterman: Getting ‘Round the Retrogression
- CIS Implements Online Change of Address System
- Galapagos – Our Journey to the Middle of the World
- Winner of our January 2007 Immigration Trivia Quiz
- Asylum – The State Department has released the Country Rights Reports on Human Rights Practices for the year 2007. Why spend over real money to buy the report when you get it online for free? See
and click on “2006 State Department Country Reports on Human Rights Practices (March 2007)”. We also have links to previous reports starting from 1997.
- CSPA – In a new decision, the Board of Immigration Appeals (BIA) ruled on the effective date of the Child Status Protection Act. CSPA was enacted into law on August 6, 2002. On February 9, 2007, in re: Matter of Rodolfo 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 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 decision, if combined with Matter of Garcia, a 2006 nonprecedent decision of the BIA regarding aged-out derivative beneficiaries could help thousands of immigrant families across the U.S.We will discuss both decisions in the next issue of our newsletter.We link to the complete text of Avila-Perez and Garcia from our “Green Card” page at
- Deportation – On January 17, the Supreme Court overturned a 9th Circuit decision and ruled that the term “theft offense” which is an aggravated felony for deportation purposes includes the crime of “aiding and abetting”. See Gonzales v. Duenas-Alvarez at
- Direct Filing – On March 5, the CIS announced that as of April 2, all I-129 petitions and I-539 applications must be submitted directly to the Service Center where they will be adjudicated. This the same day that the CIS will begin to accept new H-1B petitions. See the CIS Press Release at
http://www.uscis.gov/files/pressrelease/I129_I539Filing030507.pdf (Link is no longer operational)
- DNA Sampling of Immigrants? – Last year, a law was passed which would permit the federal government to take DNA samples from suspected criminals in order to create a database to help solve serious crimes in the future. The problem is that the large majority of those in the database would be persons apprehended because they are illegal immigrants. Many people view this as an invasion of privacy. Deborah Notkin, former AILA President, states “It’s so broad, it’s scary. It is a terrible thing to do because people are sometimes detained erroneously in the immigration system.” Many think that the inclusion of over one million persons apprehended by immigrant agents would overwhelm the entire system, and that the DNA of convicted felons would not be entered into the system.
- FBI Name Checks – Hundreds of thousands of applicants for immigration benefits have been stuck in the queue for months or even years awaiting the results of FBI name checks. These people are not terrorists or criminals, but are simply caught in a system that does not work. On February 20, the CIS issued an update entitled “CIS Clarifies Criteria to Expedite FBI Name Check”. Caveat: Few applicants are eligible for such expedites. See
We have a better solution, one that actually works. Sue the CIS and the FBI in Federal Court. If enough people sue the government, they will have to give increased priority to completing name checks. See our article, “Why Wait When You Can Litigate?” at
- FOIA – The CIS receives over 110,000 requests for information annually under the Freedom of Information Act (FOIA). It usually takes about 15 months to receive the requested information from the agency. On March 30, the agency will open an expedited Notice to Appear track for persons under removal proceedings. For more information, see the “CIS” section of our “Freedom of Information Act” page at
- Juarez – We thank AILA member Victor Nieblas for his excellent summary of the new procedures for submitting I-212s and I-601s to the CIS at Ciudad Juarez, Mexico:At the Northwest Regional AILA Conference in Portland on March 1, Warren Janssen, USCIS OIC at the USCIS office in Ciudad Juarez, announced a new pilot program for waiver processing at Ciudad Juarez. Mr. Janssen will start the following process for new incoming waiver cases beginning Tuesday, March 6. (Please note that due to the mode of implementation, you cannot re-file cases already pending under this new pilot.) This pilot is an effort to come up with new ways to use available resources with limited staff to shorten waiver processing times. Pilot description:
- When a consular officer makes a determination of inadmissibility at the time of the immigrant visa interview and a waiver application may be submitted under 8 CFR 212.7, the applicant will be given a USCIS waiver letter, which indicates that the applicant may go on-line via INFOPASS to make an appointment to come back to the Consulate in Cd. Juarez to submit an I-601 or I-212, as applicable, with a fully documented waiver packet.
- These INFOPASS appointments may be scheduled prior to the immigrant visa interview, but they must NOT be made for the day of the immigrant visa interview. For those with waiver packets fully documented and ready for adjudication, the earliest such a waiver review appointment should be made is a day after the immigrant visa interview. A better approach may be to wait at least two days to make sure that the fingerprints taken on the date of the immigrant visa interview have cleared. * In order to set up this process, Mr. Janssen had to find staff to be able to do fingerprint intake on the date of the immigrant visa interview as well as to accept the G-325.
- When the waiver applicant comes back to the consulate with the COMPLETE and FULLY DOCUMENTED waiver application, a USCIS employee will review the packet (not interview the applicant), and if the case is a clean one and clearly approvable, the waiver application may be approved that day. Then, the Consulate will either approve the immigrant visa that day or within the next one to two days.
- If the submitted packet is not clearly approvable, then the application will go into the regular processing waiting line (10 to 11 months) and the applicant will be instructed to provide additional supporting documentation to USCIS. Thus, using this process, the applicant will get a second chance for review versus exposure to a denial at the time of the first review.Ways to put this new program in danger of termination:
- DO NOT USE INFOPASS TO MAKE A WAIVER APPOINTMENT UNDER THIS NEW SYSTEM FOR PENDING CASES OR FOR ANY OTHER PURPOSE THAN AN INITIAL WAIVER REVIEW. NOTE: NO WAIVER REVIEW MAY OCCUR BEFORE THE IMMIGRANT VISA INTERVIEW AT THE CONSULATE.
- DO NOT WASTE APPOINTMENT SLOTS FOR WAIVER SUBMISSIONS, WHICH ARE NOT FULLY DOCUMENTED AND READY FOR FINAL CONSIDERATION.Mr. Janssen will continue to try to reduce the backlog of pending cases. The hope is that reducing the level of growth of the backlog by using this pilot will eventually result in an overall reduction of the waiver processing times. Although no program is ideal, and, as with any new endeavor, Mr. Janssen expects to have to make modifications, if this works, our clients could benefit from a reduction from the 8-to-9 month wait for waiver application review. Our sincere thanks to Mr. Janssen for trying to improve a very difficult situation.
- Naturalization – In January, the CIS issued an updated, 65-page version of “A Guide to Naturalization”. We link to the guide from our “Citizenship” page at
- NCLEX in Manila – On February 9, the National Council of State Boards of Nursing (NCSBN) announced that the organization plans to offer the state RN licensing examination (NCLEX) in Manila, Philippines for the first time. This is significant since most foreign-born RNs who immigrate to the U.S. are citizens of the Philippines.How did the NCLEX finally come to the Philippines? See
http://www.abs-cbnnews.com/storypage.aspx?StoryId=66459 (Link is no longer operational)
- Poverty Income Guidelines – The Department of Health and Human Services (HHS) has published its new poverty income guidelines. Persons filing Affidavits of Support (Form I-864) must show that their household income is at least 125% of the current poverty income guidelines according to the number of persons in their household. For Affidavit of Support purposes, the new guidelines are effective as of April 1, 2007. Our site lists the annual HHS Poverty Income Guidelines from 1996 to 2002. See our “Affidavit of Support” 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
- SuperLawyers 2007 – This year, 15 immigration lawyers in Southern California were chosen by their peers as “SuperLawyers”. We are proud that three lawyers from our law firm were among those selected: Ellen Ma Lee, Curtis Pierce (of counsel) and I. To view the entire list of SuperLawyers, see
- Asylum – The State Department has released the Country Rights Reports on Human Rights Practices for the year 2007. Why spend over real money to buy the report when you get it online for free? See
- Visa Bulletin – To view the March 2007 Visa Bulletin, see our “Visa Bulletin” page at
The stage is set for Congress to take up the topic of comprehensive immigration reform this year… almost.
On February 28, the Senate Judiciary Committee held its first hearing of the year on this subject. Testifying for the Bush Administration were DHS Secretary Michael Chertoff and Commerce Secretary Carlos Gutierrez. We linked to the WebCast of this hearing from our website in order to permit our readers to watch it live.
Here is how the National Immigration Forum described the hearing: Secretary Gutierrez, speaking of the future, said that “without people to fill the jobs it creates, our economy will not continue to grow.” He stated that immigrants have been an essential part of our labor force growth, accounting for half of labor force growth in the last 10 years. He noted that immigrants are taking jobs in agriculture, hospitality, and construction where employers can’t find American workers.
Temporary Worker Confusion Unfortunately, both he and Secretary Chertoff were stuck on the rhetoric of “temporary worker,” even though many of the jobs the Secretary said were being filled by immigrants were permanent ones. While the Secretaries did not resolve this internal inconsistency in their testimony, they seemed to leave room for resolution while being questioned by Senators.
When asked by Senator Leahy (D-VT) about the need for a path to citizenship to lure undocumented immigrants to participate in whatever program Congress ultimately passes, Secretary Gutierrez said that the incentive will be first, legal status, and that not everyone would want to stay permanently. True enough, but many will.
The Secretaries never expressed opposition to accommodating those who would want to stay. In fact, Secretary Gutierrez spelled out the President’s “principles” for resolving the legal status of undocumented immigrants without “amnesty.” They include, “undergoing a criminal background check; paying a meaningful penalty; paying taxes; requiring them to wait their turn in line; learning English; and having a job.”
So while the written testimony included a condition that undocumented immigrants “wait their turn” (presumably for an immigrant visa-generally what is meant by not permitting the undocumented to get “ahead” of those waiting to migrate legally), their answers to Senators were a bit more cagey. But not much. (In part, this may be due to the fact that, at every level of the immigration debate, whether it is in the press, or between Members of Congress and Cabinet Secretaries, there is some confusion about “temporary worker program.” The term is used to describe a program for increasing legal channels for workers to come in the future, and for workers who are already here, albeit not in legal status, even though these are entirely different problems proposed to be solved by a comprehensive reform package.)
The Amnesty Label On the issue of “amnesty,” the Secretaries were clear, when questioned directly by Senator Graham (R-SC), that the administration would not consider legislation “amnesty” if conditions were placed on legalizing the undocumented. “If there are penalties,” said Secretary Gutierrez, “it is not amnesty.” “If there are penalties and they are enforced,” echoed Secretary Chertoff, “it is not amnesty.”
Workability In other observations, Senator Feinstein (D-CA), a supporter of the comprehensive bill last year, opined that perhaps the Senate tried to reach too far last year; that perhaps immigration reform should instead be accomplished in “trunches” (sic); and that perhaps this year’s “trunches” should be AgJOBS and the DREAM Act. Last year, the Senator objected to the Senate bill’s three-tiered legalization program as unworkable. In the hearing last week, she said that perhaps we should apply some sort of “point system” to those seeking legalization through comprehensive reform. When Senator Feinstein asked about using a “point system” in the legalization program, Secretary Gutierrez replied that “it comes down to workability. As we add variables, [the program] becomes more complex.” The workability issue was also addressed by Secretary Chertoff’s testimony. Speaking as head of the agency that would have to implement the program, he said that “we need to have clear and consistent application standards that will protect the applicant, guide those reviewing and granting each application, and defend against fraud. … The more confusing or complicated the process is, the less likely it is that applicants will seek to enter the program, and the more likely it is that the system will be abused.”
Why weren’t comprehensive immigration reform bills introduced in the Senate and the House of Representatives as many predicted in early March? We were told by sponsors of the bills that they needed approximately 70 Republican House members to support the legislation. To insure their support, the bill will include greatly enhanced immigration enforcement measures, the strong support of President Bush and pressure from the public for the Congress to resolve the immigration questions this year.
We link to an article where Chairman Leahy states that his committee will not mark up a bill “until the president gets involved strongly and personally”. What can you do to help insure the passage of comprehensive immigration reform legislation?
We expect bills to be introduced in Congress later this month. As soon as they are, we will post them online and analyze the various provisions of each bill Remember that in order to win maximum support, the bills must address: (1) immigration enforcement; (2) increased numbers for H-1B, employment and family-based immigration; (3) a guest worker program; and (4) a workable plan to legalize the millions of undocumented workers and students in the United States.
Barring some unforeseen impediment, the CIS will raise filing fees for immigration benefits, including naturalization, by an average of 86% starting as early as this June. This subject requires a little historical background: When the INS raised its filing fees in 1998, we were shocked. See
The filing fees for I-130 relative petitions rose from $75 to $110; for I-485 adjustment of status applications from $130 to $220; and the cost of applying for naturalization more than doubled from $95 to $225. Since 1998, the agency has increased its fees periodically and started charging for services like fingerprinting. Now, the CIS is proposing fee increases which dwarf those of 1998. The agency gingerly refers to them as “adjustments” rather than “fee increases”. The following are a few examples of these adjustments: I-130s will cost $355, I-485s $905 (This is NOT a misprint. However, CIS points out that it will not charge extra for EADs and Advance Paroles filed together with I-485s.) and N- 400s will cost $595. What if your naturalization application is denied? You can always appeal. However, the new appeal fees will more than double to $605. CIS does grant “fee waivers” to some of those who apply, but the agency admits that such waivers are only granted to less than a tenth of one percent of those who file petitions and applications with the CIS. In a proposed regulation consisting of over 100 pages filled with numerous charts and grafts, the CIS promises that the fee increase will result in more and better service. A chart containing the proposed fee increases is located on page 86. The DHS will accept written comments on the proposed fee increases until April 2, 2007. You may submit comments, identified by DHS Docket No. CIS-2006-0044 by one of the following methods:
- Federal e-Rulemaking Portal:
Follow the instructions for submitting comments.
- E-mail: OSComments@dhs.gov Include the docket number in the subject line of the message.
- Facsimile: Federal eRulemaking portal at 866-466-5370
- Mail: Director, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW, 3rd Floor, Washington, DC, 20529. To ensure proper handling, please reference DHS Docket No. USCIS-2006-0044 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions.
- Hand Delivery/Courier: Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW, 3rd Floor, Washington, DC, 20529. Contact telephone number (202) 272-8377.
On February 14, the House Immigration Subcommittee conducted an oversight hearing on “The Proposed Immigration Fee Increase”.
to view the webcast of the hearing.
Congressman John Conyers (D-MI), Chair of the House Judiciary Committee stated that “many in the immigrant community see the increase for what it is — increasing the cost of the American dream, telling those least fortunate among us they probably need not apply.”
Representative Zoe Lofgren (D-CA), Chair of the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law, offered the following statement on the proposed fee increases: “Although I want to ensure that USCIS has the necessary resources to carry out its mission, the scope and scale of this fee increase on immigration applications raises many questions for me. I plan to carefully examine the USCIS’s new study and the justification for this increase with my colleagues on the Immigration Subcommittee before its implementation. Changes in the current fee structure must be fair and reasonable.”
The CIS is seeking to finance virtually the entire cost of running their vast bureaucracy by user fees. Representative Luis Gutierrez (D-Ill) reminded CIS Director Gonzalez that the agency has the authority to seek funding from the federal government, and has received over $4 billion in federal funds over the past decade. The fee increases are necessary only because the CIS has elected to request only $30 million in federal funding this year, perhaps to assist the Administration in seeking to balance the budget during wartime without a general tax increase.
Most of the Republicans on the Subcommittee voiced their support of the fee adjustments, referring to naturalization to U.S. citizenship as “priceless”.
Although we believe that U.S. citizenship is, indeed, priceless, we are not blind to the reality that for many new immigrants, the unprecedented fee increase for naturalization will keep them from applying. They will, therefore, be deprived of their right to vote. This is appalling considering that thousands of their sons and daughters are serving and putting their lives on the line in our Armed Forces.
We do not believe that the proposed fee adjustments encourage immigrants to “play by the rules”. The forms are longer and more complex than ever. The “new and improved” CIS website is neither, and it is written entirely in English. It is difficult, often impossible to navigate through the CIS bureaucracy without having to retain legal counsel.
Could the filing fee increase have political overtones? The CIS says no, but some of us remember how a former President was accused of playing politics by creating a program to naturalize more immigrants. Now, some critics suspect that President Bush and some Republicans may be using the fee increase to slow down the number of new Democratic voters.
Some organizations including the Migration Policy Institute (MPI), a non-partisan, independent think-tank, are particularly incensed about the huge rise in naturalization fees. In a nine-page pamphlet, the MPI proposes alternatives to the proposed fee adjustments. See
Also, see the National Immigration Forum’s press release entitled “USCIS Fee Increases: Pay More, Get Less” at
Based on my experience as an INS General Attorney (Naturalization) in the late 1970s, I am afraid that not much can be done to stop the fee increases.
If possible, file your applications and petitions immediately in order to avoid paying higher fees.
Also, in the interests of accuracy, I suggest that the portion of the poem on the base of the Statute of Liberty which says “Give me your tired, your poor…” be “adjusted”.
Maybe, the CIS could adopt the same approach that we do at our office: Allow you to pay your fees in monthly installments. Just a thought!
Currently, there is a 65,000 cap on the number of H-1B petitions which may be approved in a fiscal year. Fiscal year 2008 starts on October 1, 2007 and ends on September 30, 2008. The CIS will begin accepting H-1B petitions for FY2008 at the beginning of April 2007. Based on last year’s experience, we are afraid that petitioners who do not submit H-1B petitions during the first week or two of April may have to wait until next year to do so.
Last year, 65,000 approvable H-1B petitions were submitted to the agency by May 26. This year, numerical cap may be reached even sooner. We have advised our corporate clients to have us prepare their H-1B petitions prior to the end of March so that they may be submitted to the CIS by Monday, April 2. Filing such petitions a week or even a day later may be too late.
There is a second numerical cap of 20,000 where a potential employee possesses a Masters degree from a university in the U.S. There is, however, no requirement that the job offered require a Masters degree. This past year, the 20,000 cap was reached on July 26.
We also advise employers to submit H-1B petitions subject to the 20,000 cap as early as possible. Not all H-1B petitions are subject to these numerical caps. For example, where an employee already is the beneficiary of an approved H- 1B petition, a petition which requests an extension of stay or a change of employers is not subject to the cap. Also exempt from both the 65,000 and the 20,000 caps are H-1B petitions submitted by institutions of higher learning, affiliated research organizations, nonprofit research organizations, government research organizations and for physicians with J waivers.
Further, 6,800 of the 65,000 cap are reserved for employees who are nationals of Singapore (5,400) and Chile (1,400).
For more information about H-1B visa and the petitioning process, see our “H-1B Page” at
On January 23, the CIS issued an interoffice memorandum which implements our June 7, 2006 court victory for international physicians seeking permanent residence in the U.S. through National Interest Waivers (NIWs). See Schneider v. Chertoff at
The memo also takes a huge step forward and allows physicians who are specialists who practice in federally-designated underserved areas to become permanent residents through National Interest Waivers (NIWs). For a summary of the Court’s holding in Schneider v. Chertoff, see
The memo amends the Adjudicators’ Field Manual to conform with the Court’s holding. It also promises to revise the CIS interim regulations which were the subject of the Court’s decision. The memo is long (22 pages) and complex, and it raises issues which may generate additional litigation. For example, although the CIS may not revoke an approved I-140 simply because the physician fails to satisfy the five-year service requirement within a six-year period, the memo gives adjudicators considerable leeway in deciding when to revoke an approved petition:
“USCIS adjudicators should not revoke an approved I-140 solely because the required medical service has not been completed. However, adjudicators may revoke a petition if the adjudicator determines that the physician who is the beneficiary of the I-140 does not intend to complete the NIW requirements, that he or she never intended to complete the requirements, or for any other applicable bases for revocation of a petition as permitted under section 205 of the INA and enumerated in 8 CFR 205.”
Suppose a J physician, after obtaining a waiver of the home residence requirement and completing three years of service in a HPSA decides to pursue a multi-year medical fellowship before returning to an underserved area to practice medicine. On what criteria can an adjudicator decide whether the physician intends to complete the NIW requirements? Or what if a female physician becomes pregnant midway through the five-year requirement, and decides to stay at home with her child for four or five years before returning to practice medicine in an underserved area? What are the criteria upon which an adjudicator determines the intentions of the physician?
Similarly, although Schneider v. Chertoff prohibits the CIS from requiring that the physician meet the five-year service requirement within six years, the memo attempts to accomplish the same objective by limiting the physician’s ability to obtain an extension of his EAD: “NIW physicians seeking employment authorization based on a pending adjustment application may be served with an RFE, requesting evidence of meaningful progress toward completing the NIW employment obligation or of plans to use the EAD for the purpose of completing the medical service obligation.” What constitutes “meaningful progress”? The CIS reserves the right to deny advance parole or even adjustment of status if it believes “that the physician is using the pending adjustment of status application solely as a means for employment in areas or occupations other than medical service in the designated shortage areas.”
What relief does the memo provide for physicians who were denied permanent residence due to the CIS’ failure to adhere to the law? The memo provides that physicians who were denied adjustment of status “solely” because they did not complete their 3/5 year medical service requirement within 4/6 years have until January 23, 2008 to submit motions to reopen “with appropriate fees”, but only if the physician (1) is currently in the U.S. pursuant to a lawful admission; (2) is maintaining a lawful immigration status; (3) has not been the subject of removal proceedings or a final order of removal; and (4) has not already acquired lawful immigration status. How a physician denied permanent residence due to CIS’s mistake reading of the law will be able to satisfy all of these conditions is beyond us, and we do not expect that there will be a plethora of physicians lining up to file MTRs. On the other hand, CIS is to be commended for allowing specialists serving in Physician Scarcity Areas (PSAs), HPSAs and MUAs/MUPs to obtain permanent residence through NIWs. The memo instructs that “to determine if a geographic area is a PSA, access the HHS’ Centers for Medicare and Medicaid Services website at
and search under “Specialty Care PSA Zip Codes.” There are over 16,000 such zip codes. To learn whether a particular area in located in a PSA, a HPSA or an MUA/MUP, see our “Physicians” page at
After fighting us tooth and nail in Court for four years, it is gratifying to see that the CIS has not only decided to extend our victory in Schneider v. Chertoff nationwide, but to include specialists in the class of “all alien physicians” as we had contended in our original complaint in 2002. We continue to believe that the agency lacks the authority to force physicians to complete their service requirement within a specified period of time in the absence of statutory language supporting this position. We also believe that the memo’s insistence that the CIS will not accept public interest letters from local health department contradicts the clear language of the statute. If the CIS is unhappy with the clear language of the law, they should lobby Congress to amend the law. Despite these errors, CIS’ January 23rd memo is a giant step forward for international physicians practicing medicine in the poorest areas of the U.S. and for their patients.
In the next issue of our newsletter, we will provide examples of how such physicians may benefit from applying for permanent residence through NIWs.
We have been fighting to keep the Cabrera family from being deported for several years.
Mr. Cabrera is a native of Mexico who came to the U.S. as a teenager some 20 years ago. Mrs. Cabrera is a native of Guatemala who also came to the U.S. over 15 years ago. They both came to the U.S. to seek a better life. They married in the U.S. and are the parents of two fabulous U.S. citizen daughters, both honor students, the oldest being on scholarship since age 11 from Johns Hopkins University. In addition, Mr. and Mrs. Cabrera have three parents who reside in the U.S. All are lawful permanent residents. Mr. and Mrs. Cabrera own their own home, pay their taxes and are exemplary citizens in every possible way but one: they are undocumented. Fortunately, there is a remedy under the law for people like the Cabreras to become lawful permanent residents.
Cancellation of removal requires that they be placed in removal proceedings before an Immigration Judge. They must fulfill each of the following requirements:
- Be continuously present in the U.S. for the past 10 years;
- Be persons of good moral character during that period; and
- Their removal must result in “exceptional and extremely unusual hardship” to their parents, spouses or children who are U.S. citizens or permanent residents.
Here, their eligibility for cancellation of removal hinged on the “hardship” requirement. Fortunately, they have five “qualifying relatives” – two U.S. citizen daughters and three permanent resident parents. Given the extraordinary hardship which would befall their daughters and their parents should they be deported, Immigration Judge Bruce Einhorn, in a 15-page decision, granted the Cabreras cancellation of removal in March 2002. The government appealed the Judge’s decision, and in 2003, in just two pages, the Board of Immigration Appeals (BIA) reversed this decision and ordered the Cabreras to depart the U.S. See
We appealed the BIA’s ruling to the U.S. Court of Appeals. After the Los Angeles Times detailed the plight of the Cabreras, both Senator Dianne Feinstein (D-CA) and Representative Lucile Roybal-Allard (D-CA) took the extraordinary step of introducing private bills in Congress requesting permanent residence for the Cabreras should our litigation be unsuccessful. At first, things looked glum. Our motion to the BIA to reconsider their decision was rejected. In Federal Court, the government attorney claimed that the Court had no jurisdiction over the case, and asked the court to dismiss our lawsuit. By 2005, the government attorney agreed with us that the Court did have jurisdiction over the case and that the BIA had no authority to order the Cabreras to leave the U.S. in the first instance. He asked the Court to remand the case back to the BIA. The Court agreed. See
The BIA then remanded the case to Judge Einhorn. Since there were many additional hardship factors present that did not exist at the time of the initial hearing, we submitted a motion to Judge Einhorn requesting that he rehear the case on its merits. The Judge agreed and in October 2006, attorneys Elif Keles, Amy Prokop and I questioned Mr. and Mrs. Cabrera, their two daughters and their three parents. In early 2007, the Judge issued a new decision granting the Cabreras permanent residence through cancellation of removal. This time, the government did not appeal the Judge’s decision, and at long last, Mr. and Mrs. Cabrera became lawful permanent residents of the United States. See
We feature the Cabreras in our “Photo Gallery” at
7. Ask Mr. Shusterman: Getting ‘Round the Retrogression
This month, we received several questions from our subscribers regarding how to speed up their green card process despite the retrogression. There is no “one size fits all” solution to this problem, but here are a few tips that I have learned over the past 30 years:
- Alternate Chargeability – Whether you are immigrating through an employment-based or a family-based category, what determines how long it will take you to be able to apply for permanent residence often depends on your country of birth. And, of course, it is impossible to change your country of birth, or is it?Example: Shah is a computer engineer who was born in India and educated in the United Kingdom where he is now a citizen. He is also a landed immigrant of Canada. Both his labor certification and his I-140, under the EB-2 category have been approved, and his priority date is January 4, 2004. The problem is that the EB-2 category has retrogressed beyond this date for persons whose country of chargeability is India. Generally, a person’s country of chargeability is the same as their country of birth, so the fact that Shah is a citizen of the U.K. and a landed immigrant of Canada is irrelevant.However, section 202(b) of the Immigration and Nationality Act provides a limited number of exceptions to the general rule. Shah’s fiancée was born in Sri Lanka, and she is present in the U.S. in H-1B status. If they marry, they can both use Sri Lanka as their country of chargeability, and they may immediately apply for adjustment of status!
- Charging Categories – Persons are not restricted as to the number of relatives who may apply for permanent residence on their behalf. It is also possible to change categories to speed one’s progress toward becoming a permanent resident.Example: Ramon was born in the Philippines. In 1986, his U.S. citizen sister submitted a visa petition on his behalf. In 1990, his mother achieved permanent residence and immediately filed a visa petition for Ramon. Ramon was told not to marry until after he became a permanent resident.This, however, is a half-truth. If he marries while his mother is a permanent resident, her petition for him will die. However, if he marries after his mother naturalizes, her petition will automatically change from the F2B (single son of a permanent resident) to the F3 category (married son of a U.S. citizen), and Ramon will retain his original priority date!Since F3 priority dates prior to 1991 are “current” for Filipinos, Ramon and his wife may immediately apply to adjust their status in the U.S.
- Changing Employers – Labor certifications and PERM applications belong to the employer, not the employee. If an employee changes employment after his labor certification or PERM is filed, he is compelled to start the green card process from the beginning. This remains true even after the labor certification or PERM application is approved.However, what if an employee waits until both his labor certification or PERM application and an I-140 immigrant visa petition are approved on his behalf? Does he have to restart the process from the beginning? Not necessarily.Example: Yougang is an MBA who was born in the PRC. He gained his MBA while he was working for Employer A. In 2004, Employer A submitted an application for a labor certification on Yougang’s behalf. After it was approved, an I-140 was approved for him under the EB-3 category. He could not apply for permanent residence because his priority date was not current. He opted to take a higher-paying management job for another company through transferring his H-1B to Employer B.Does Yougang have to restart the green card process and does he lose his 2004 priority date? Yes and no. Since the labor certification and I- 140 are employer-specific, he must restart the entire process of becoming a permanent resident. However, he may retain his 2004 priority date.In 2006, Employer B submits a PERM application on his behalf and a couple months later, it is approved. Unfortunately, the priority date for the EB-2 category for persons born in the PRC has retrogressed into 2005. Fortunately, however, CIS regulations allow Yougang to recapture his 2004 EB-3 priority date and use it under the EB-2 category. This means that Yougang can immediately submit his application for adjustment of status simultaneously with his employer’s I-140!
On January 12, the CIS implemented an online change of address system to satisfy the requirements of section 265 of the Immigration and Nationality Act. Under section 265, all permanent residents and most nonimmigrants are required to notify the CIS within ten days of any change of address. Currently, the CIS receives over one million AR-11 change of address forms annually. Many persons wrongfully assume that by submitting an AR-11 form, the CIS enters their new address into the agency’s database, and changes their address on all pending immigration petitions and applications. This is untrue. The person must not only file form AR-11, but must take additional steps to notify the CIS of their new address for purposes of updating their petitions/applications. See “How Do I…Change My Address with USCIS” (May 2006) at
http://www.uscis.gov/files/article/G3_English.pdf (Link is no longer operational)
Unfortunately, CIS’ new online change of address system only satisfies the AR-11 requirement, and does not relieve one of their obligations to notify the CIS of a change of address for other purposes. Fortunately, this is only phase one of the online system. This May, the CIS plans to launch an online system for persons with pending applications for naturalization who wish to notify the agency of their new address. See the CIS memo dated January 12 at
Until phase two is launched, the CIS advises naturalization applicants to continue to contact the agency by telephone at 1-800-375-5283 to report address changes. Still, this is a step in the right direction. One can only hope that in the near future, the CIS will save itself and its customers a lot of hassle and unnecessary paperwork by developing a centralized database which will enable a person to change their address one time for all purposes and do so online. See the memo, dated June 9, 2006, from the CIS Ombudsman to the CIS Director recommending such a system:
Those who do not wish to utilize the online system may continue to submit the AR-11 form which may be downloaded from our “Immigration Forms” page.
All others may simply click the red button entitled “Change Address Online” at
Have the following information ready: a) CIS receipt number(s) if you have a case pending with the agency; b) New and old addresses; c) Names and biographical information for relatives for whom you have filed petitions; d) Date and location (port of entry) of your last entry into the United States. There is no charge for this service. We recommend that you print and keep a copy of your completed Electronic AR-11 form.
I had always dreamed of visiting the Galapagos Islands in South America, but not until the American Immigration Lawyers Association scheduled their winter conference in Costa Rica did my dream become a reality.
From Costa Rica, it is a relatively short flight to Ecuador, the country which has sovereignty over the Galapagos Islands. The Galapagos consist of a couple of dozen volcanic islands which straddle the Earth’s equator. (The word equator in Spanish is “Ecuador”.)
It was in the Galapagos in 1835 that Charles Darwin made his observations which latter became the Theory of Evolution. We flew from Costa Rica to the capital of Ecuador, Quito (a very lovely city perched 9,200 feet in the Andes Mountains), and from Quito to the Galapagos Islands, over 600 miles west in the middle of the Pacific Ocean.
In an amazing stroke of good fortune, my wife and I were the only paying passengers on the normally-full, eight-cabin yacht, the “Integrity”. We were joined by a naturalist and her daughter, the son of the owner of the Integrity and his family and a young travel agent. Usually, people visit the Galapagos in groups of 100 or more, and it takes a lot of time just to organize the passengers to reach each island, to hear what the naturalist is saying, and to arrange kayaking and snorkeling trips. In contrast, we felt like the Kennedys or the Rockefellers on our own private yacht with gourmet meals and a Jacuzzi on the top deck.
The Galapagos contain the most amazing and unusual assortment of animal and plant life that we have ever seen. Snorkel around and you may soon be joined by playful sea lions who quickly become your underwater buddies. The water is warm and brightly-colored fish along the reefs invite you into their tropical paradise. If you are lucky, you may see some dolphins. You will also see sharks and beautiful manta, leopard and sting rays. The deal is, you don’t bother them and they won’t bother you.
Then, there are the penguins. What are penguins doing on the equator? The Humboldt Current which flows north from Antarctica up the western coast of South America makes the Galapagos a perfect habitat for these creatures.
Darwin’s Theory of Evolution was built upon his observations of finches, but finches look pretty drab when compared with the boobies (blue-footed, red-footed and masked), pelicans, flightless cormorants, yellow-crowned night herons and mockingbirds. The skies are constantly filled with graceful red-billed tropicbirds and their piercing cries. Best of all are the pirate ships of the air, the giant black frigatebirds. When the males are ready for mating, they display a huge, heart-shaped bright-red, balloon-like sac on their necks.
We visited a lovely lagoon where hundreds of pink flamingos feasted on the shrimp diet that accounts for their beautiful color.
Back on land, the creatures form a virtual United Nations of reptiles, birds and mammals. Sometimes, you can barely set your foot on land, there are so many sea lions to greet you. On the black igneous rocks, you can snap photos of hundreds of orange and blue Sally Lightfoot crabs all moving in different directions.
The ever-present land and marine iguanas reminded me of dinosaurs roaming around while little lava lizards darted between them.
And, of course, there are the gigantic and ancient Galapagos tortoises that live mostly on Santa Cruz Island. Once there were tens of thousands of tortoises, but sailors killed most of them for food. Today, the Charles Darwin Foundation is working hard to increase the population of tortoises and return them to their native habitats. These huge creatures move slowly, are vegetarians and some of them were born in the 19th century!
I could tell you about the prickly pear cactus and the various other types of plants and animals which make their home in the Galapagos, but why spoil the fun of discovering these on your own?
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
“If we are to remain competitive, we need a workforce that consists of the world’s brightest minds. Two steps are critical. First, we must demand strong schools so that young Americans enter the workforce with the math, science and problem-solving skills they need to succeed in the knowledge economy. We must also make it easier for foreign-born scientists and engineers to work for U.S. companies.” – Bill Gates “Immigration reform is a complex subject with major implications for the federal courts, particularly the Ninth Circuit where we have seen our administrative appellate caseload rise nearly 500 percent in the past six years. We are particularly concerned that federal legislation provide for adequate intermediate review of initial immigration judge decisions. It is important that Congress and the courts cooperatively ensure that new immigration law operates fairly and efficiently, without congestion and delay.”
– Chief Judge Mary M. Schroeder
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