Volume Eleven, Number Four
SHUSTERMAN’S Newsletter US Immigration May 2006 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.
Published by the Law Offices of Carl Shusterman, 600 Wilshire Blvd, Suite 1550, Los Angeles, California, 90017. Phone: (213) 623-4592 x0.
“After wasting thousands of dollars on other lawyers, Mr. Shusterman was life saver. I recommend him hands down!”
- Mukta Mohan, Buffalo, New York
Read More Reviews
Zoom Consultations Available!
Newsletter US Immigration Update May 2006
TABLE OF CONTENTS:
- 1. Comprehensive Immigration Reform: Congress Needs a Push
- 2. Immigration Government Processing Times
- 3. PERM: Employer’s Recruitment Report and Documentation
- 4. Success Story: Overcoming Backlog Elimination Centeritis
- 5. Immigration Trivia Quiz: Immigration Homesick Blues
- 6. Litigation: Public Access to Court Electronic Records
- 7. My First Visit to India: Welcoming the New Year in Goa
- 8. Schedule of Upcoming Immigration Law Seminars
- 9. Chat Schedule, Transcripts, Audios & Videos
- 10. Winner of the April 2006 Immigration Trivia Quiz
- Asylum– On March 20, the CIS Ombudsman submitted a proposal to the CIS Director that asylum applications by persons who are not in valid non- immigrant status be submitted to, and adjudicated by, ICE rather than by CIS. The proposal would also, for the first time, charge fees to asylum applicants. We link to both the three-page proposal and the 92-page draft from our “Asylum” page at
- Deportation– On April 9, the docket fees for submitting a petition for review to challenge an order of removal in all of the U.S. Courts of Appeals or a decision of a U.S. District Court increased from $250 to $450. Congress imposed this fee increase as part of the Deficit Reduction Act of 2005, Pub. L. 109-171, § 10001 (Feb. 8, 2006).Individuals who are unable to pay the fee may apply to appear in forma pauperis. Federal Rule of Appellate Procedure 24 sets forth the requirements and procedures for proceeding in forma pauperis. Affidavit forms are available on the courts’ web sites (which assumes that paupers have access to computers).
- Interior Enforcement– On April 20, DHS and ICE unveiled an immigration interior enforcement strategy which embodies the following goals:
- Identify and remove criminal aliens, immigration fugitives and other immigration violators;
- Build strong worksite enforcement and compliance programs to deter illegal employment; and
- Uproot the criminal infrastructures at home and abroad that support illegal immigration, including human smuggling/trafficking organizations and document/benefit fraud organizations.
- Labor Department – We understand that Bill Carlson, the “father of PERM” will be returning to his former position as Foreign Labor Certification Division Chief. Many AILA members hope that Mr. Carlson will be successful in making the Backlog Elimination Centers operate in an efficient manner.
- Litigation – On April 12, the U.S. Supreme Court adopted an amendment to Rule 32.1 of the Federal Rules of Appellate Procedure. The rule states that starting on January 1, 2007, unpublished opinions by Federal Court issued starting on that date may be cited on appeal.
- USCIS Today– We link to the most recent issue of “USCIS Today”, CIS newsletter, from our “CIS” page at
- Visa Bulletin– To view the May 2006 Visa Bulletin, see our “Visa Bulletin” page at
As things stand now, President Bush, Senate Majority Leader Bill Frist (R-TN) and Senate Minority Leader Harry Reid (D-NV) all support Senate passage of a comprehensive immigration bill before the end of May. So does the business community, most labor unions and religious organizations. Public opinion polls indicate that a majority of Americans would like to see a legalization program coupled with strong enforcement of our immigration laws.
Editor’s Note: The bill before the Senate is far from perfect. It contains a number of virulently anti-immigrant provisions which should be removed from the legislation before the final vote. See
http://www.nationalimmigrationproject.org/IDP_3_pager_040206_final.pdf (Link no longer operational)
So why isn’t the enactment of such a law a fait accompli? Probably because a small, but extremely vocal, minority of our citizenry and their allies in the media and in Congress are busy trying their best to scare the living daylights out of Americans who are afraid that our country is being “invaded” by illegal aliens.
Make no mistake about it, this debate is about race, about prejudice and about fear of the foreigner. And truth be told, every new wave of immigration to the United States has always been accompanied by such fears.
Not long after the United States was founded, the Alien and Sedition Acts of 1798 were enacted for political purposes. See
When the first Irish immigrants started arriving in the U.S., people founded the openly anti-Catholic “Know Nothing” party which flourished in the 1850s. See
Then, after the transcontinental railroad was completed due to the efforts of thousands of Chinese laborers, and Chinese men where being lynched in California for working for law wages, Congress passed the Chinese Exclusion Act of 1882 which effectively halted most Chinese immigration to the U.S. for over seventy years.
In 1908, the U.S. reached the so-called “Gentlemen’s Agreement” with Japan to restrict Japanese workers from entering the U.S. See
After an influx of immigration from Southern, Central and Eastern Europe starting in the 1880s, a detailed study of the “immigration problem” ordered by the U. S. Senate and conducted under its auspices reported to the American people in 42 data-laden volumes in 1911. The Dillingham Commission (which included a number of professors from Ivy League Universities) took three years, employed a staff of 300, and spent a million dollars to develop a “Dictionary of Races,” and to conclude that “the recent immigrants as a whole . . . present a higher percentage of inborn socially inadequate qualities than do the older stock.” As a result, Congress passed the National Origins Act of 1921 and the Immigration Quota Act of 1924 which severely restricted the number of Italians, Jews and Poles who were permitted to enter the U.S. These acts also made Asians “racially ineligible” to become naturalized citizens of the U.S.
The Supreme Court of the United States in U.S. v. Bhagat Singh Thind, 261 U.S. 204 (1923), found that while Indians were indeed anthropologically Caucasian, the framers of the Constitution could never have intended letting them enter the country and be naturalized. Justice Sutherland stated that while “it may be true that the blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity, the average man knows perfectly well that there are unmistakable and profound differences between them today.”
Again, in 1934, the Supreme Court interpreted the Naturalization Law of 1790 to define “white peoples within the meaning of the statute (as) members of the Caucasian race as defined in the understanding of the mass of men. The term excludes the Chinese, the Japanese, the Hindus, the American Indians, and the Filipinos.”
Also, in 1934, to effectively stop Filipino immigration to the U.S., Congress passed the Tydings-McDuffie Act which reclassified Filipinos from U.S. nationals into “aliens” and capped the number of Filipinos eligible to immigrate to the U.S. at 50 per year. See
Today, Hispanics are the immigrant group being demonized. This is not a new phenomenon. Mexican agricultural laborers were brought into the U.S. under the inhumane and exploitive Bracero program from 1942 to 1964.
At the same time, tens of thousands of Mexicans and their U.S. citizen children were deported from the United States under the infamous “Operation Wetback” program in the late 1940s and early 1950s. See
It is clear that race, religion and nationality have always figured prominently in U.S. immigration policy.
Tomorrow, on May 1st, there will be marches and rallies in cities across the United States. We, at the Law Offices of Carl Shusterman, will participate, and we urge the readers of this newsletter to do so as well. We hope that Congress will remain true to our nation’s ideals and pass the comprehensive immigration reform bill now pending in the Senate. The sight of millions of people demonstrating in favor of the bill tomorrow may help our elected representatives see the light.
In response to the efforts of a radical fringe which would deny legalization to today’s undocumented workers, we reply to them with the words of the man who became the 40th President of the United States, Ronald Reagan:
“America stands unique in the world, the only country not founded on race, but on a way – an ideal. Not in spite of, but because of our polyglot background, we have had all the strength in the world. This is the American way.”
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.
Next to the ETA-9089 application form, the employer’s recruitment report and a well-maintained set of supporting documentation constitute the key to a successful PERM application. These must be carefully prepared and must be immediately available to the Department of Labor in the event of an audit. The supplementary material to the regulation indicates that fraud prevention and detection is an important component of the PERM process. This documentation does not have to be filed with the application, but must be available on request for five years from the date that the PERM application is filed with the Department of Labor.
As a basic guide, the following documents should be kept in the recruitment file to ensure a quick and easy response to an audit letter:
- Employer’s signed recruitment report.
- Prevailing wage determination.
- Posting Notice posted for at least 10 consecutive business days, plus print-outs (where applicable) that the employer has used any and all in-house media, electronic or printed, to advertise for similar positions in the organization.
- Recruitment documentation must include the following: Original and/or copies of tear sheets for the 2 Sunday print ads or relevant journal advertisements. Dated print-out documenting a job order was placed with the appropriate State Workforce Agency (SWA) for a period of 30 days
- If the employer is recruiting for a professional position, there should be documentary evidence showing proof of three other forms of recruitment, such as:
– Dated copies of print-outs of pages from the employer’s web site and other internet sources.
– Proof of attendance at job fairs such as attendee list, registration papers or invoice.
– Proof of attendance at an on-campus recruitment such as itinerary, registration papers or invoice.
– Copy of employee referral program.
– Originals or copies of tear sheets from ethnic newspapers where a foreign language is required for the position.
– Proof of on-campus placement office recruitment in the form of confirmation letters or posting.
– Copy of contracts with private employment firms.
– Verification letters or posting from trade or professional associations documenting job opportunity.
- All resumes and job applications received arranged by the reason for rejection.
- Business Necessity documentation justifying the need for a foreign language, that the position requires a Masters or any other unusual job requirements
* Recruitment Report
The final recruitment report should describe the recruitment steps taken, the number of resumes received, the number of people hired and the number of U.S. workers rejected. The employer must categorize the lawful job-related reasons for rejection in each category such as no degree or unrelated qualifications. An extreme example would be a bookkeeper applying for a position as a computer programmer. The recruitment report does not have to specifically identify the individual U.S. workers who applied for the job opportunity.
The employer cannot reject a U.S. worker if the individual could acquire the skills necessary to perform the position through a reasonable period of on-the-job training. A reasonable period is not defined in the PERM regulations because this clearly depends on numerous factors, such as the occupation, industry and the nature of the job.
The employer must always sign the recruitment report prior to filing the application and have it available upon request.
* Prevailing Wage Determination
A copy of the prevailing wage determination should be kept and be given to the Certifying Officer in the event of an audit.
It is permissible to use the same prevailing wage determination for more than one application provided that it is for the same occupation, job duties and skill level, the same wage source is applicable and the same area of intended employment is involved.
* Posting Notice
As with both regular labor certification and reduction in recruitment filings, employers must give notice of the planned filing of the labor certification to the employees’ bargaining representative in the area of intended employment if one exists. If there is no bargaining representative, employers are required to post a notice for at least 10 consecutive business days at the job location. The notice can be posted any time during the 30-180 day period before filing. However, the last day of the posting must fall at least 30 days prior to the filing in order to provide enough time for interested parties to submit any documentary evidence in this regard.
The notice must state that it is being posted as a result of a filing of an application for permanent labor certification for the position described. It should invite any person to provide documentary evidence bearing on the application to the Department of Labor and clearly state how to contact the Certifying Office and give the appropriate address. The notice must also contain all of the key elements of the job advertisement and a rate of pay. The notice can contain a wage range as long as the lower level of the stated range is at or above the prevailing wage.
The Department of Labor does not view the posting notice as a form of recruitment. In fact, the purpose of the notice requirement is to provide a way for current employees and other interested parties to make comments and submit documentation about an application for labor certification.
In addition to the printed posting notice, the employer must publish the job opportunity in all in-house media no matter what format (i.e. printed or electronic). The position must be posted for the same duration as any other comparable positions posted in that medium.
* Recruitment Documentation
Documents must show that the recruitment was actually conducted within the specified time frame. If no original documentation is available then secondary evidence should be provided. For example, if there is no tear sheet available, the employer should provide copies of the invoice for the advertisement and affidavits of publication for said advertisement.
* Resumes and Job Applications
After reviewing the employer’s recruitment report, the Certifying Officer may request the U.S. workers’ resumes or applications, sorted by the lawful job-related reasons the applicants were rejected. These must be readily available. This information would be requested in a second audit if the Certifying Officer was not satisfied with the documentation provided in the first audit.
If all this information is immediately available when the Department of Labor requests an audit, the employer will be easily able to satisfy DOL’s request well within the 30-day response time.
To read more about the PERM process, see our “Department of Labor: Immigration Resources” page at
Mr. V and Mr. E are both foreign nationals who work for the same software development company. Having resided in the U.S. for many years, they were becoming increasingly nervous about their immigration situations. Experienced Systems Architects, they were both in the 7th year of H-1B status. They were granted their extensions based upon long-pending Labor Certifications filed on their behalf by their previous employer. They, and 350,000 others, are victims of Backlog Elimination Centeritis, a severe form of anxiety.
Such anxiety is clearly warranted: on top of the years-long Labor Certification backlog, the EB-3 priority date backlog lengthens the green card queue for a few more years. And what if their Labor Certifications were denied? Goodbye Houston, hello Tehran! They were waiting indefinitely for approvals from the Backlog Elimination Center for an employer for which they no longer worked. Although this would make a great plot for “Waiting for Godot, Part II – Revenge of the Feds”, it was not much of an immigration strategy.
A few months ago, the hapless duo called us wondering if there was anything we could do to improve their chances of getting green cards.
It didn’t take a Rocket Scientist to figure out that their immigration salvation lay in the following four letters: PERM.
The nifty thing about filing under PERM was that their current employer could submit new applications without disrupting their long-pending Labor Certifications. This was important since it was the pendency of these golden oldie applications which enabled them to keep extending their H-1B status year after year.
Even better, the senior level of their present jobs required the many years of experience that they had acquired working for their prior employer. On top of their Bachelors degrees, the two Systems Architects now possessed at least five years of progressively more complex professional experience. Just as a beautiful butterfly emerges from an ugly cocoon, the wrinkled old EB-3s with their accompanying five-year backlog had morphed into stunning, and current, EB-2s.
We would be less than honest not to disclose that things did not move forward without a couple of glitches. Due to a computer error, the initial PERM applications were denied (Although recruitment was conducted within the 30-day window allowed under the regulations, the system failed to recognize this and issued erroneous denials).
However, the second PERM applications, which were submitted just a few days later, resulted in both cases being approved. Now, we have submitted I-140s and I-485s for both Mr. V and Mr. E and, with a little bit of luck, they will get their green cards before the end of 2006!
Public Access to Court Electronic Records (PACER) is an electronic database which allows registered users to search case and docket information from the U.S. Appellate Courts, District Courts, and Bankruptcy Courts.
The PACER system can be an important case management and tracking resource for attorneys. It allows attorneys to monitor the docket in their pending cases, and ensure that all filings from opposing counsel and orders of the Court have been received. It can also be used as a legal research tool, as many jurisdictions provide copies of documents that are filed in federal cases.
The PACER system is not restricted to attorneys, however. Perhaps you are a layperson considering whether to hire an attorney to handle federal court litigation on your behalf. You can use the PACER system to find out how many cases your attorney has handled in federal court.
* How do I register for PACER?
Although the PACER system is available to attorneys and non- attorneys alike, you must be a registered user in order to access the PACER database. This useful information is not free; there is a user fee of $.08 per page. Our office has found this minimal charge to be a worthwhile investment.
The registration form requests basic information such as your name and address. In order to register, you will also need to provide credit card information for billing purposes. After your registration form is processed, you will be issued a login and password. This will enable you to access the PACER database.
* How does PACER work?
Once you have registered and received your login and password, simply visit the PACER login page.
From the login page, enter your login number and password. You will then be taken to the PACER web-links page, which allows you to select the database for the U.S. Court of Appeals, U.S. District Court, or the U.S. Bankruptcy Court of your choice. The PACER database also contains a link to the webpage for the United States Supreme Court at
You will see that the information available in the PACER database varies depending on which particular Court you choose.
* PACER database for the U.S. Courts of Appeals
The PACER database for the U.S. Courts of Appeals contains a listing of all courts for each appellate Circuit. You must first select which Circuit’s database you which to search. When searching the PACER database for the U.S. Courts of Appeals, you may search by party name, attorney name, or by case number (if known).
For example, if you search the Ninth Circuit Court of Appeals by attorney name and enter “Shusterman, Carl,” you will see a list of all Appeals and Petitions for Review where I am the attorney of record. Want to see the latest status for our lawsuit challenging the National Interest Wavier rules for physicians? Just click on the case number for Schneider, et al. v Ridge, et al, and you will see that the Court heard oral arguments on this matter on December 5, 2006, and has taken the case under consideration.
The Court of Appeals docket information is essentially a time line, listing all filings, motions, orders and other activity in a given case. If you’re an attorney, you may want to use the PACER database to ensure that you have received all briefs and motions from opposing counsel, or all orders from the Court. It is also a quick and easy way to verify that your filings have been received and accepted by the Court.
* PACER Database for the U.S. District Courts
The PACER database for the U.S. District Courts contains a listing of each District Court, in every jurisdiction. You must select which specific District Court database that you wish to search. You may search by attorney name, party name, case number, or filing date.
The District Court database often contains more information than what is available through the Circuit Court PACER database. In addition to viewing the docket for an individual case, many jurisdictions allow you to view and print documents which have been filed, or orders issued by the Judge.
The ability to view documents can be a valuable research tool for attorneys, who may find it helpful to review memoranda or court orders in cases which later became precedent decisions. The minimal costs associated with viewing such documents can make the PACER system a practical alternative to more expensive legal research tools.
For example, search the PACER database for the California Central District Court. When you select the Central District link, you will be taken to a welcome page with a list of links at the top of the screen. Select the “Query” link in order to begin your search.
If you search by attorney name, and enter “Shusterman, Carl,” you will be provided with a list of 16 cases where I am listed as the attorney of record. In order to view the details of a particular case, simply click on the case number. You will then have the opportunity to search for case status, case summary, or view the docket report for the case you have chosen. When viewing the docket report, items that are underlined and in blue (hypertext links) are available to open and print, if desired.
We have found the PACER database to be a valuable resource for case status information, and a relatively inexpensive legal research tool.
Exhausted from the shopping extravaganza in Mumbai (See our March 2006 newsletter.), my Indian family, my wife and I flew to Goa for a little rest and relaxation, and to celebrate New Year’s Eve.
Goa is a tiny state on the west coast of India which was colonized by the Portuguese in 1510. Even after the British left India in 1947, the Portuguese stayed on in Goa.
I still remember reading in American newspapers in 1961 how the brilliant Indian Defense Minister Krishna Menon persuaded Prime Minister Nehru to send India troops into Goa, forcing the Portuguese to relinquish their 400+ year hold on this part of the Indian subcontinent. When he was accused of aggression by the West, he retorted that “colonialism itself is a permanent aggression”.
After a short flight down the west coast of India from Mumbai, we landed at the Goa airport. The bus trip from the airport to our hotel took about an hour. The scenery looked like a Caribbean island, and the music blaring from the speakers was distinctively reggae. I had heard about all the hippies who settled in Goa in the 1960s. It all seemed right.
Goa is a beachgoer’s dream. We stayed in a small hotel near the beach. Every morning, after an outdoor Indian buffet breakfast, I would head for the beach. The sand was pristine, without a single piece of trash. I would jog for a couple of miles, then jump into the beautiful Arabian sea in order to cool down.
Goa is filled with tourists, most of them Europeans, primarily from Eastern Europe and Russia. I challenged an 11-year-old boy to a game of table tennis, and got thrashed. My son and I made friends with his father, a stocky man from Canada of Indian origin. He had brought his three sons to India to acquaint them with their heritage. He explained to me that he was an Ismaeli Muslim and a follower of Aga Khan, the billionaire philanthropist. I learned that the Ismaelis had broken away from the Shiites in the 7th century. He was very friendly, and told me about all of the hospitals and schools and other good works financed by the Ismaelis.
Hindus, Moslems and Catholics seem to live harmoniously together in Goa. We visited the Basilica de Bom Jesus in Old Goa where we viewed the tomb of St. Francis Xavier, a 16th century Portuguese missionary.
We also took a tour which ended with a river cruise.
Mostly, we ate seafood delicacies, listened to music, watched dancers and acrobats, and enjoyed a fantastic New Year’s fireworks display.
After a couple of days of R&R, we bid our relatives goodbye, and flew to New Dehli in the north of India.
Not so fast!
Our son and the Indian portion of our family flew back to Mumbai, but our flight on “Spice Air” was delayed for more than four hours. To pass the time, I visited the airport bookstore where I purchased a book about India by V.S. Naipul. Mr. Naipul is a Nobel Prize winner in literature who, though born and raised in Trinidad, is of Indian origin. He had visited India in the early 1960s and again in the late 1990s. He was amazed at the economic progress that India had made. Some of his observations were quite interesting. He told of a civil servant who spent the equivalent of his 20 months salary to finance his daughter’s wedding. I also learned about Dr. Ambedkar, a lawyer who help draft India’s constitution. Dr. Ambedkar is held in high regard by India’s dalits (literally “broken people”) who are more commonly known as “untouchables”. Millions of dalits have become Muslims, Christians and Buddhists in an effort to escape from the bottom rung of India’s caste system. Dr. Ambedkar himself converted to Buddhism, a religion which originated in India, and he encouraged the dalits to do the same.
Below are links to two of my photographs from
Our first week in India had proven to be quite interesting.
What adventures awaited us in New Delhi and in Rajasthan?
*** TO BE CONTINUED ***
- May 10 & 17
10:00am – Noon, CT
Texas Hospital Association
Topic: Immigration and Foreign Health Care Professionals
- May 11
2:00 – 3:30pm, ET
American Immigration Lawyers Association
Topic: Nurses and Health Care Workers
- June 7
10:00 – 11:00am
St. Jude Hospital
Pacific Coast Association of Health Care Recruiters
Topic: “Immigration of Nurses and Allied Health Care Professionals”
- June 21
San Antonio, Texas
6:30 – 8:30pm
Henry B. Gonzalez Convention Center
American Immigration Lawyers Association
Topic: “Doctors and Healthcare Workers”
- October 9
Los Angeles, California
9:45 – 11:15am
National Business Institute
Immigration and Employment: Legal Aspect of Hiring Foreign Workers
The following is the winning answer:
The Picture is of Cardinal Roger Mahoney of Los Angeles.
He called on the priests to ignore the H.R.4437 bill if it passes to become a law. He is also an outspoken critic of the bill.
My name is Muhammad Ali. I am an immigrant from Pakistan and live in Los Angeles.
I read know the answer to the quiz from the news.
I have recently subscribed to your very informative newsletter.
Thank you. Editor’s Note: To read an interesting article entitled “Bishops United on Immigration”, see
http://ncronline.org/NCR_Online/archives2/2006b/042106/042106h.php (Link no longer operational)
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
“Our entire system of justice for immigrants is complicit in a process that takes advantage of a vulnerable population and results in fundamentally unfair proceedings… To remove a person whose only guides have been notarios and appearance attorneys is to secure a cheap victory at the cost of fairness… Something must be done to motivate IJs and government attorneys to ensure that immigrants are not represented by attorneys who have known their clients for five minutes. Because prejudice is inherent in this notario system, I would grant the petition solely on the basis of egregious violations of Petitioners’ constitutional right to due process.” Angeles Castro v. Gonzales, 9th Cir. No. 03-73120, Apr. 20, 2006.
– Judge Pregerson’s Dissent
Newsletter US Immigration May 2006 – Quick Links
Back Issues of Our Newsletter
Schedule a Legal Consultation
Subscribe to Our Newsletter
May 1, 2006
Disclaimer: Newsletter US Immigration May 2006 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.