Volume Four, 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 May 1999
Subscribers to SHUSTERMAN’S IMMIGRATION UPDATE: 22,756
This month’s issue contains the following topics:
Table of Contents
- 1. May 1999 State Department Visa Bulletin
- 2. Immigration Government Processing Times
- 3. Human Resource Managers: How to Fix the H-1B Cap Problem
- 4. Section 245(i): INS Adopts An “Alien-Based” Approach
- 5. Immigration Trivia Quiz: Literary Immigrants
- 6. Health Care Workers: Finally, Relief for Physical Therapists
- 7. Free Immigration Chat Is Huge Success; Transcript Available
- 8. Physician’s Self-Examination: What is Your Immigration IQ?
- 9. EOIR Imposes Moratorium on Suspension/Cancellation Approvals
- 10. Answers to April’s Immigration Trivia Quiz
Detention: What happens to persons who are ordered deported by the INS, but whose countries refuse to accept them back? Do they remain locked up at taxpayers’ expense forever? Hopefully not. See the new mandatory review policy for long-term INS detainees announced on April 30, 1999:
Hubbing: The INS, Central Region hatched the idea that detaining removable aliens from Mexico and Central America in Texas and all other nationalities in Chicago would be the most efficient use of their resources. Unfortunately, maximum efficiency may sometimes eliminate minimal fairness.
Far from their families, their witnesses and their lawyers, persons wishing to seek relief from deportation would be forced to fight to vindicate their rights with one arm tied behind their backs. Representative Sheila Lee Jackson, the ranking Democrat on the House Immigration Subcommittee, stated that “this plan would separate the detainee from his attorney, effectively hampering his right to petition the detention”. Rep. Luis Gutierrez (D-Ill) minced no words, proclaiming that “It’s almost like the INS has forgotten they’re people and not packages.”
The INS, which had scheduled the hubbing plan to start in May, has postponed the start date indefinitely, and now seems to have developed some reservations about “hubbing”.
Labor Certifications: The Department of Labor stated in a recent meeting with the American Immigration Lawyers Association that it plans to reduce the backlog of pending labor certifications at DOL offices by 50% by July 1999! This backlog reduction would not, however, affect the processing times at State Employment Security Agencies. To approximate what this would mean to you, see the last chart at
Naturalization: New INS Software now permits you to download form N-400, an Application for Naturalization, and complete it online. To download the new software, click on
and again on “Download N-400 2D Barcode Application Software (4.6MB)”.
Physicians: The Michigan Conrad State 20 Program is currently accepting applications from employers wishing to sponsor international medical graduates (IMG’s) for J waivers in fiscal year 2000 starting October 1, 1999.
Visa Lottery: We have learned from Greg Gourley of Seattle, Washington that the DV-2001 visa lottery will not begin on October 1, 1999 and end on October 31, 1999, but will start instead on the first Monday of October (October 4th) and end 31 days later on Wednesday, November 4th. This way, the visa lottery will not end on a weekend when the offices are closed, and less applicants will be disqualified for filing late. Of course, the best advice is to file as early as possible after October 4. In other lottery news, winners of the DV-2000 visa lottery are currently being notified by mail.
On April 14, 1999, we posted the May 1999 Visa Bulletin, the same day that the State Department posted the dates on their web site.
For the Family categories, the priority dates moved forward a little more than usual. The numbers moved forward, when they moved at all, between one and six weeks. The 1st and 2B categories for persons born in Mexico failed to move at all.
Most of the Employment categories remain “current” (no backlogs). The unskilled workers category advanced six weeks to September 15, 1992 while the investor (EB-5) category jumped ahead four months and one week to September 1, 1998.
For persons born in the Peoples Republic of China, the employment categories advanced more rapidly than usual. The first, second and third categories for China moved ahead six weeks, ten weeks and nine weeks, respectively. However, for persons born in India, the situation was a little less encouraging. Unless country quotas are eliminiated (See Topic #9), it is a virtual certainty that many U.S. companies will lose the services of needed professional workers. The second and third categories for Indians advanced five weeks and four weeks respectively.
Visa Lottery (May, June and July Numbers)
Section 203 (c) of the Immigration and Nationality Act provides 50,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. DV visas are divided among six geographic regions. Not more than 3,500 visas (7% of the 50,000 visa limit) may be provided to immigrants from any one country.
For May, immigrant numbers in the DV category are available to qualified DV-99 applicants chargeable to all regions/eligible countries as follows: AFRICA (30,351), ASIA (8,510, except BANGLADESH: 7,140), EUROPE (18,700, except Albania: 13,290); NORTH AMERICA (Bahamas: 24); OCEANIA (845); SOUTH AMERICA, CENTRAL AMERICA and the CARIBBEAN (2,460).
For June, immigrant numbers in the DV category are available to qualified DV-99 applicants chargeable to all regions/eligible countries as follows: AFRICA (33,500), ASIA (10,000), EUROPE (20,460, except Albania: 16,290); NORTH AMERICA (Bahamas: 24); OCEANIA (950); SOUTH AMERICA, CENTRAL AMERICA and the CARIBBEAN (2,600).
For July, immigrant numbers in the DV category are available to qualified DV-99 applicants chargeable to all regions/eligible countries as follows: AFRICA (38,180), ASIA (11,970), EUROPE (22,340, except Albania: 18,900); NORTH AMERICA (Bahamas: 24); OCEANIA (1,012); SOUTH AMERICA, CENTRAL AMERICA and the CARIBBEAN (2,850).
For an explanation of what the categories, dates and symbols listed below mean, see
For the State Department’s official version, complete with information about the movement of family, employment and lottery numbers, see
http://travel.state.gov/visa_bulletin.html (Link is no longer operational.)
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.
The H-1B cap will, no doubt, be reached before the end of May. Because of the huge backlogs at the INS’s California Service Center, the other three service centers have been ordered to stop approving new H-1B petitions. Congress, having raised the H-1B numerical cap in October 1998, is in no mood to address the issue in the current session. What is to be done?
The following is the best idea that I have seen so far for dealing with the H-1B cap problem. It provides needed relief for employers without requiring Congress to raise the numerical cap. The author is not an attorney, but her innovative approach to this problem has taught this attorney a thing or two.
I have an idea about the H-1B cap problem: to ask Congress to exempt from the cap employers who are institutions of higher education or related or affiliated nonprofit entities, and nonprofit or governmental research organizations.
This class of employers was introduced by the “American Competitiveness and Workforce Improvement Act of 1998” in section 415, by adding INA section 212(p)(1)(A) and (B).
ACWIA accorded this class of employers three benefits. In INA section 212(p)(1), this class of employers is permitted to use prevailing wage levels taking into account only similar employers (giving us a “Hathaway fix” in the INA). Second, this class is excluded from the $500 fee imposed on H-1B employers in INA section 214(c)(9)(A) [ACWIA section 414]. Third, this class is granted authorization to pay academic honoraria to holders of B status under certain circumstances, in the new INA section 212(q) [ACWIA section 431].
In creating this class of employers, Congress recognized that the American people benefit differently from the employment of H-1B holders by universities and nonprofit research institutes than they do from private sector employment. Exemption from the H-1B cap would be a further recognition of the great benefit to the U.S. of such employment, and also the great harm of the prevention and disruption of employment caused by the application of the H-1B cap.
ACWIA section 411 provided for increasing the cap by amending INA section 214(g). To exempt 212(p)(1) employers from the H-1B cap, INA could be changed something like this:
Exemption from Limitation on Numbers of Skilled Nonimmigrant Workers.–
Paragraph (1)(A) of section 214(g) of INA is amended by adding at the end the following:
(5) Aliens who are beneficiaries of petitions filed by institutions or organizations described in section 212(p)(1) are not subject to the numerical limitations of paragraph (1).
8 CFR could be changed something like this (additions between asterisks **). (See
https://www.shusterman.com/h1bfees.html (Link no longer operational)
for the recent interim regulations.)
Section 214.2 is amended by revising paragraph (h)(8)(I)(A) to read as follows:
Sec. 214.2. Special requirements for admission, extension, and maintenance of status.
(h) * * *
(8) * * *
(I) * * *
(A) Aliens classified as H-1B nonimmigrants, excluding those involved in Department of Defense research and development projects or coproduction projects, *and those who are beneficiaries of petitions filed by institutions or organizations described in section 212(p)(1),* may not exceed:
(1) 115,000 in fiscal year 1999;
(2) 115,000 in fiscal year 2000;
(3) 107,500 in fiscal year 2001; and
(4) 65,000 in each succeeding fiscal year.
Recently (a colleague) wrote a piece giving reasons for advocacy for a new visa category for researchers and professors. He stated, “It is now clear that we will hit the cap this year — possibly as early as May. In subsequent years, universities and nonprofit research-institutions will lose the H-1B as an effective visa. . . . The current cap levels were determined through difficult political negotiation with Congress and the levels were not based on any evaluation of expected program usage. It is highly unlikely that Congress will revisit these levels before FY01 — the last year of the temporary increase in numbers of new H-1B visas.”
Creating a new visa category is an excellent idea which has been advocated in various forms for some years. However it will require negotiations among institutions, associations, labor unions, and government legislators. Realistically, it cannot provide relief this year.
ACWIA section 416 authorizes an improved count of H-1B holders, including a report of the number of those “provided nonimmigrant status pursuant to petitions filed by institutions or organizations described in section 212(p)(1).” Simple numerical counts are supposed to be submitted quarterly, beginning at the latest on 12/1/98 (I haven’t seen the first report if it was issued.) A more elaborate report on countries of origin, educational levels, and compensation will be required on those who acquired H-1B status “60 days or more after the date on which final regulations are issued on section 412”, the recruitment and no-layoff attestation provisions. As we know from past history, final regulations can take many years, so this more elaborate report will not be issued any time soon.
We can’t wait to get some relief from our problems. It is difficult to convey to those who don’t have direct experience the extreme difficulties faced by universities because of the H-1B cap. Professors and researchers who play critical roles in research programs must postpone their initial employment, or leave their ongoing employment, for many months. In the spring of this year, at the very time that job offers are being made to prospective faculty members, the H-1B category is not available to authorize their employment by the time classes start in September. Many of our prospective H-1B holders are involved in crucial medical research. The fact that funding for the majority of research programs comes from government agencies such as the National Institutes of Health clearly shows that the research goals are in the national interest.
We in the international offices are handling scores of individual cases affected by the cap, each one important in its own department. At UCLA I estimate that 60 to 80 current and prospective employees will be affected this year. A certain number qualify for O-1 status, but this is very costly for universities as the cases are referred to private attorneys for preparation of the petitions. In this office we don’t have the resources to prepare O-1 petitions, and I assume that’s true for most international offices.
I don’t have time to do much advocacy. I hope that others can use these ideas, or any modification of them, to bring the relief that we need in the universities.
Sylvia Ottemoeller, Immigration Counselor, UCLA
Section 245 of the immigration law allows certain aliens to adjust their status in the U.S. provided that, among other things, they have been admitted or paroled into the country and have not engaged in unauthorized employment. “Immediate relatives” of U.S. citizens may adjust their status despite their having engaged in unauthorized employment.
Prior to October 1, 1994, aliens who did not meet these requirements were generally ineligible to adjust status, and had to apply for immigrant visas abroad. Often, they were separated from their families and jobs for weeks or even months. Mortgage and tuition payments were missed, and the only beneficiaries of the system were foreign airlines and hotels.
To remedy this situation, Congress wrote section 245(i) into the law in 1994. Section 245(i) provided that such aliens who qualified for permanent residence in the U.S. could adjust status upon payment of a fine to the INS. The amount of the fine was originally $650 per individual, and was raised to $1,000 by the 1996 immigration law.
Section 245(i) was enacted for a three-year period ending on September 30, 1997. In 1997, rather than renew section 245(i) to prevent family separation and to continue to raise hundreds of millions of dollars for the INS, Congress discontinued section 245(i) as of January 14, 1998. However, Congress decided that persons who were eligible for adjustment of status under section 245(i) on or before that date would not lose their eligibility to adjust their status in the U.S. Their section 245(i) status was “grandfathered” because their priority date was before the cut- off date for section 245(i).
This section of the 1997 law raised many thorny legal questions. Chief among these was whether section 245(i) status was attached (1)to a particular petition/application filed on or before January 14, 1998 or (2) to the alien on whose behalf the petition or application was submitted.
For example, if an overstayed alien’s U.S. citizen brother submitted a visa petition on his behalf in 1995 and, in 1999, he won the diversity visa lottery, could he adjust status under section 245(i) or does the law require him to wait until his priority date under his brother’s petition becomes “current” years from now?
The INS, in a memorandum dated April 14, 1999, adopts an “alien- based approach” to section 245(i). In the example cited above, the alien himself is grandfathered under section 245(i) because of his brother’s petition submitted before 1999, and therefore, may adjust status under the visa lottery.
The memorandum applies section 245(i) grandfathering to aliens whose pre-January 15, 1998 applications/petitions have been “denied, revoked or withdrawn” as long as the original application/petition was “approvable when filed”.
Of course, when an application/petition is denied, revoked or withdrawn, there may be considerable disagreement as to whether it was approvable when filed.
The memo instructs that where the application/petition was denied, revoked or withdrawn because of a change of circumstances (e.g., where an employer goes out of business, the alien’s petitioner dies, or a derivative child “ages out”), the filing is “likely” to have been approvable when filed.
Alternately, when a petition was denied because it was submitted without a fee, because it was fraudulent or because it had no basis in fact, it can not be used to grandfather an alien under section 245(i).
The memo recognizes that further guidance is necessary. It promises that the INS will do so in the case of employment-based petitions.
May a grandfathered alien whose priority date is not yet current be deported by the INS? Although this is not expressly prohibited, the following language in the memo is meant to discourage INS enforcement personnel against pursuing such a course of action under normal circumstances:
Once the Service encounters an alien who is the beneficiary of a grandfathering immigrant visa petition or application for labor certification, the fact that the alien is such a beneficiary is not a bar to the commencement of removal proceedings. The fact that the alien is the beneficiary of a grandfathering petition which may ultimately allow him or her to seek adjustment of status is, however, an important factor to be considered in determining whether Service resources are best utilized by commencing proceedings against that particular alien.
The full memorandum may be found at
More than two years after the enactment of the 1996 immigration law, the INS issued regulations, on October 14, 1998, detailing how registered nurses (RN’s) and occupational therapists (OT’s) could qualify for green cards. It remains uncertain whether the government has granted permanent residence to any RN or OT under these regulations.
More recently, on April 30, 1999, the INS issued regulations which, as of June 29, 1999, will permit physical therapists (PT’s) to qualify for green cards.
The interim regulations designate two organizations to certify that the education, training and licensure of foreign-born PT’s are equivalent, under section 343 of the 1996 immigration law, to those of U.S. physical therapists.
These two organizations are:
A. CGFNS (Commission on Graduates of Foreign Nursing Schools)
The regulation grants the CGFNS authority to certify occupational and physical therapists on a temporary basis only. The regulations do not explain, however, when this temporary authority expires.
The CGFNS may be contacted online by clicking on
and again under “Registered Nurses” on “The Commission on Graduates of Foreign Nursing Schools (CGFNS)” or by either snail mail, phone (Good Luck!) or e-mail at
3600 Market Street, Suite 400
Philadelphia, PA 19104-2651
Telephone: (215) 222-8454M
B. FCCPT (Foreign Credentialing Commission on Physical Therapy)
The FCCPT may be contacted at
P.O. Box 25827
Alexandria, VA 22313-9998
Telephone: (703) 684-8406
Facsimile: (703) 684-8715
In addition to the credentials evaluation, most PT’s are subject to an English examination. For exemptions to the English requirement, see
The only organization designated to test PT’s for English proficiency is the Educational Testing Service (ETS).
The ETS may be contacted online by clicking on
and again under “English Tests” on “Educational Testing Service”.
Passing scores for the English examinations are the same for physical therapists as for occupational therapists: Test of English as a Foreign Language (TOEFL): Paper-Based 560, Computer-Based 220; Test of Written English (TWE): 4.5; Test of Spoken English (TSE): 50.
The regulation is silent concerning the remaining four health care occupations covered by section 343: (1) Speech language pathologists, (2) Medical technologists; (3) Medical Technicians and (4) Physician’s Assistants. Foreign-born workers in these fields have been laboring in the U.S. for almost three years, sometimes more, without the opportunity to obtain green cards or change jobs. Once their children become 21 years of age, they are no longer able to obtain permanent residency along with their parents. Yet these professionals continue to work, pay taxes and wait for the INS to issue regulations. Does anyone really care about their plight?
CareerPath.com, the Internet’s leading career management site with the largest and most current job listing database, is currently hosting the “World”s Largest Virtual Job Fair” from April 25 to May 16, 1999.
I was very pleased to be selected to host a free, online chat entitled “Worker Visas: How To Get One — How to Keep One” on May 11 at 4:00pm PST (7:00pm EST).
The daily schedule of live chats may be found at
Photos and biographies of the various chat leaders are available at
Our immigration chat attracted an unusually large number of participants, and many of you asked very pertinent questions. For those of you who missed the chat, a transcript of the immigration chat is available at
Because the chat attracted such a huge audience, over ONE THOUSAND questions went unanswered. If any organization has the interest and the capacity to hold chats involving over 100 simultaneous users on it’s website, I would gladly volunteer my time again. The CareerPath.com chat was a blast!
Despite language posted on our homepage that we lack the capacity to answers questions online, over 100 people ignore these warnings every day. Each of them receives a “cut & paste” answer requesting that they make an appointment, either telephonic or in-person.
However, saying “No!” to 100 people each day makes me feel guilty. Not just guilty, but a bit irritable since 99% of the questions could be answered if the questioner simply took the time to read the proper topic on our website.
A new feature appearing in our website this month will (eventually) answer most of the commonly-asked questions, and absolve me of all guilt. The feature is the Immigration Self- Examination, a ten-question multiple choice test about a particular area of Immigration Law and Procedure.
This month’s Exam is designed for physicians and physician recruiters. Here is how it works: Each Exam is like an open-book test. There is a link to the study materials where you can find most or all of the answers. Then you select an answer to each of the ten questions, and click the button “Submit Test”. A box will instantly appear at the middle of the screen informing you of your score. Click on “OK” button below your score, and one of the following three screens will emerge to give you further instructions: (1) One for the “immigration-challenged”, those who are unable to answer even six of the ten questions correctly; (2) Another for those who are able to answer six to nine of the questions correctly; and (3) One for those with perfect scores.
Those who answer at least six of the ten questions correctly will be provided with answers, explanations and links to additional information.
If you are unable to answer six questions correctly on your first try, do not become discouraged! Reread the materials and take the test again.
Ready? You can perform the self-examination by clicking on
https://www.shusterman.com/physiciansimmigrationiqtest.html (Link no longer operational.)
Not a physician or a physician recruiter? Not to worry. Exams about temporary working visas, permanent residence, deportation and one about those pesky I-9 forms for HR Managers are already in the works!
In accordance with regulations published on September 30, 1998,
https://www.shusterman.com/suspregs.html (link no longer operational)
the Executive Office for Immigration Review (EOIR) issued instructions on May 3, 1999 certifying that the annual cap of 4,000 approvals of applications for suspension of deportation and cancellation of removal is within 200 approvals of being reached and that neither the Immigration Judges (IJ’s) nor the Board of Immigration Appeals (BIA) may grant any applications for suspension/cancellation until the next fiscal year which starts on October 1, 1999.
Suspension of deportation is a form of relief from deportation which is available to would-be immigrants who meet the following general requirements:
A. They had seven years of continuous physical presence in the U.S. before they were served with an Order to Show Cause (OSC) which placed them in deportation proceedings;
B. They are persons of good moral character; and
C. Their deportation would result in “extreme hardship” to them or to their U.S. citizen or permanent resident parents, spouses or children.
The 1996 immigration law abolished the remedy of suspension of deportation for persons who were not placed in deportation proceedings prior to April 1, 1997, and provided for a different remedy, cancellation of removal, for persons who were placed in “removal” proceeding on or after April 1, 1997 and who meet the following requirements:
A. They had ten years of continuous physical presence in the U.S. before they were served with a Notice To Appear (NTA) which placed them in removal proceedings;
B. They are persons of good moral character; and
C. Their removal from the U.S. would result in “exceptional and extremely unusual hardship” to their U.S. citizen or permanent resident parents, spouse or children. Hardship to the applicant may be considered.
The 1996 law also limited the number of applicants who could qualify for suspension/cancellation to 4,000 per fiscal year. Prior to the 1996 law, there was no numerical limitation.
The NACARA law, passed in 1997, allows certain persons born in El Salvador or Guatemala or in former Soviet Bloc countries to apply for the pre-1996 version of suspension of deportation in removal proceeding commenced after April 1, 1997, and exempts them both from the 4,000 cap and from other restrictive features too complex to be discussed here. For details, see
The 1996 law raised, but did not answer, a nagging question: “After the 4,000 cap is reached, what happens to additional applicants for suspension/cancellation?”
This question was answered by the joint INS and EOIR regulations issued on September 30, 1998, and by detailed EOIR procedures dated April 14, 1999. See
https://www.shusterman.com/susp499.html (Link no longer operational)
In brief, the EOIR decided that applicants who qualified for suspension/cancellation after the 4,000 cap was reached would have their cases carried over until the next fiscal year, and each fiscal year after that, until they could be granted without exceeding the cap.
A remaining question concerned how to make sure that the number of cases granted during a particular fiscal year do not exceed the numerical cap. The April 14, 1999 memorandum establishes a mechanism to insure that this will not happen. When the EOIR ascertains that 3,800 suspension/cancellation cases have been granted, both IJ’s and the BIA will be prohibited from granting additional applications for the balance of the fiscal year. Instead, the IJ’s will render decisions immediately after the conclusion of the hearing, but will not inform the parties whether the case was granted or denied. Both the BIA and the IJ’s will reserve all decisions except in certain types of cases where the applicant is obviously ineligible for the relief sought. See
https://www.shusterman.com/reserve.html (Link no longer operational)
Of the final 200 cases, the BIA will be allowed to grant 20 and the IJ’s 180. The EOIR, in accordance with the September 30, 1998 regulations, will decide which of these applications will be granted before the end of the fiscal year on a “first-in-time” basis in the order that they are adjudicated.
The May 3, 1999 news release entitled “EOIR Begins Special Procedures to Comply with Annual Cap on Suspension of Deportation and Cancellation of Removal” may be read by clicking on
and again on “EOIR Press Release Regarding Handling the Cap on Suspension/Cancellation Cases (5-3-99)”.
Newsletter US Immigration Update May 1999 – Quick Links
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Disclaimer: This newsletter is not intended to establish an attorney-client relationship. All information contained in this newsletter is generalized. Any reliance on information contained herein is taken at your own risk.
May 14, 1999