Volume Two, Number Eleven
SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 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 November 1997 contains the following topics:
- 1. November 1997 State Department Visa Bulletin
- 2. Latest Processing Times for INS and Labor Department
- 3. Congress Debates Fate of Section 245(i)
- 4. Ghost of Christmas Future: New Affidavit of Support Rules
- 5. DV-99 Lottery: Applications Must be RECEIVED by November 24
- 6. Immigration Trivia Quiz: Section 245(i)
- 7. MCI Launches “Conexion Latina!” – Bilingual Web Site
- 8. Physicians: New Law Facilitates VA Sponsorship of J Docs
- 9. Congress Takes Action on Suspension of Deportation
- 10. Answers to Immigration Trivia Quiz
On October 9,1997, we posted the November 1997 Visa Bulletin before the State Department posted the dates on their web site.
All of the Family categories moved forward six weeks or less. The Mexican 2B category remained unchanged at May 1, 1991.
Most of the Employment categories remained current (no backlogs). The unskilled workers advanced three months to April 1, 1990 while the religious workers category which was recently extended for three years (See topic #10.) regressed an entire year to November 1, 1996, effective October 6, 1997. The India second preference category remained unchanged at December 1, 1995 while the India third preference category regressed one year to December 15, 1994.
Immigrant visas for winners of the DV-98 lottery are current for all countries and all regions.
For an explanation of what the categories, dates and symbols listed below mean, see https://www.shusterman.com/greencardsthroughrelatives.html and https://www.shusterman.com/greencardsthroughemployment/
Most immigration applications and petitions must be submitted to one of the following INS Regional Service Centers: (1) Laguna Niguel, California; (2) Lincoln, Nebraska; (3) Dallas, Texas; and (4) St. Albans, Vermont.
The lists containing the waiting times of each center include each state served by the center and any foreign offices within the centers jurisdiction.
The service centers periodically issue lists of their processing times for various types of applications. Our web page contains the latest list issued by each service center.
Warning: Processing times may appear faster on the official lists than they are in reality.
To see how fast (or slow) your service center is processing a particular type of petition or application, see https://www.shusterman.com/waitingtimesusimmigration/
You can also click above to check the processing times of your local INS District Office, your Department of Labor Regional Office and your State Employment Service Agency. These waiting times are compiled by volunteer attorneys and are usually posted two to three months after the fact.
According to the National Immigration Forum, the House and Senate worked through the weekend on remaining appropriation bills that must be completed before members leave for the holiday season. The Senate took all of the remaining appropriations bills: (A) State/Justice/Commerce; (B) District of Columbia; and (C) Foreign Operations and bundled them into one bill. Over the weekend they passed this umbrella bill. The House has not acted on it, recessing until November 12. Since work has not been completed on the appropriations bills, another Continuing Resolution has been passed, giving Congress until Monday (November 17) to complete its work.
BATTLE TO PERMANENTLY EXTEND SECTION 245(i) APPEARS TO BE LOST; FINAL DECISION NOW NOT EXPECTED UNTIL LATER THIS WEEK
Continuing a trend that began last week, it appears that members of the House and Senate are set to agree on a grandfathering compromise on Section 245(i). The compromise will allow 245(i) adjustment for family-based immigrants whose sponsors have filed a petition for them by the cutoff date. For employment-based immigrants, the cutoff date would apply to labor certifications filed. Still undecided is when the cutoff date will be, that is, the date by which petitions or labor certifications must be filed. We have heard that Rep. Rogers may agree to allowing petitions to be filed by 30 days after the date the bill is signed by the President(date of enactment). The Senate bill passed over the weekend has the cutoff date as date of enactment.
Employment-based immigrants who temporarily overstay their visas will be able to adjust their status under a separate provision of law, if they had not been out of status in the U.S. for more than 180 days.
The other issue that is in play is “derivatives.” That is, if a petition is filed for an immigrant spouse, it is not clear that her children would be covered by the petition, as is usually the case. If not, immigrant spouses would be faced with being able to adjust, while their children would be forced to leave the country and thus subject to the three- or ten-year bars.
Remaining Advocacy: The ball is now in the House’s court, and advocates are pressuring appropriators to push the cutoff date to 180 days after the date of enactment, and to clarify that derivatives will be covered.
Advocates are urged to contact their member of Congress and urge him or her to weigh in with the appropriators to:
- (A) allow for a 180-day period for filing of petitions; and
- (B) to make clear that derivatives are covered.
Once the bill returns to the Senate (so that the Senate can modify or approve changes made by the House), the target for advocacy on the cutoff date will shift back to that body.
NOTE: In anticipation of the possibility that the cutoff date is “date of enactment,” the INS has sent out a notice saying that, to accommodate last-minute filings, it will allow the filing of immigrant visa petitions and applications for Section 245(i) at any District Office or Service Center through the close of business Friday, November 14.
Charles Dickens would have been tickled by the timing. This year, Uncle Scrooge, the ultimate in Big Government, enters stage right, just six days before Christmas.
The new affidavit of support regulations which were issued by INS on October 20 become effective on December 19, 1997. Primarily, but not exclusively, these rules apply to family-based applications for adjustment of status (form I-485) applications submitted in the U.S. starting December 19 and immigration visa applications which are submitted or previously-submitted applications which remain undecided on or after this date.
Each relative petitioner must submit an contractually-binding affidavit of support establishing that his income level equals or exceeds 125% of the poverty level and that he pledges to support his family members until (1) the family member pays into the Social Security System for 40 quarters; (2) naturalizes as a U.S. citizen or (3) permanently leaves the U.S. or (4) dies. Divorce does not do the trick.
125% of the poverty level for a family of five in the continental U.S. is $23,463. Each sponsored alien is counted as a member of the family. Suppose that the breadwinner of a family of four is sponsoring his sister, her husband and their two children. In this case, the family is considered to have eight members, and 125% of the poverty level for a family of eight is $33,663.
If the petitioner’s income is not adequate to support the relative(s), he can ask his rich uncle or someone else to be his co-sponsor. The co-sponsor becomes “jointly and severally responsible” for support of the relative. Both you and the co- sponsor must submit separate forms I-864. If assets owned by a member of your household are required to meet the minimum income requirement, that person or the intending immigrant must complete form I-864A, Affidavit of Support Contract Between Sponsor and Household Member.
Sponsors can be sued by the government if any means-tested public benefits are bestowed on the alien relative (e.g., Food Stamps, Supplemental Security Income, Medicaid, Temporary Assistance to Needy Families – formerly known as AFDC, etc.). The sponsors may also by sued by the needy relative. Remember, before you sign one of the new Affidavits of Support, that if you are petitioning for your new spouse, divorce does NOT remove your responsibility to provide for him or her (and the children or step-children). If five years after the green card is issued, and after the divorce is final, he or she decides not to work, but to join a religious cult, read trashy novels from dawn ’til dusk or work full-time on his or her tan, you are still obligated to support your ex.
The INS will not sue you, but will supply a copy of your affidavit of support and your present address to the government agency which is supplying assistance to your relative (or ex- relative). Sponsors must notify the INS within 30 days of their new address each time they move (using form I-865), or face fines which could run into the thousands of dollars.
To download a copy of the new Affidavit of Support Regulations from the INS web site, see
scroll down to “New Affidavit of Support Requirements” and click on “Download New Affidavit of Support Regulations (10-20-97)”.
Caveat: The regulations (and the instructions on the forms) are long and written in a style that is not destined to place them on the best seller list. The mood, however, is sure to delight Stephen King fans.
To educate sponsors about the new requirements, INS has published a New Affidavit of Support Fact Sheet in English and in Spanish. Read the Fact Sheet at https://www.shusterman.com/formsusimmigration/
Do any of these requirements sound a tad onerous or overintrusive?
The public may submit written comments regarding the new affidavit of support regulations on or before February 17, 1998, in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street NW., Room 5307, Washington, DC 20536. To ensure proper handling, please reference INS No. 1807-96 on your correspondence.
Want to immigrate to the U.S., but don’t have a family member or an employer to sponsor you? Is that what’s got you down, bunky?
Well, did you know that the U.S. government gives away 55,000 green cards to folks whose applications are drawn at random. Pretty swell considering that this allows you to cut in line ahead of over three million folks who have already had their petitions approved by the INS. Due to the vagaries of the immigration laws, some of them may not live long enough to reunite with their family members in the U.S.
But why worry about them? You may be able to benefit from this legal lunacy, but only if the government receives your application by November 24th. And what’s more, you don’t need to pay an attorney, fill out a government form or pay a filing fee to apply. And to top it off, you are exempt from the new affidavit of support requirement! (See topic #4 above.)
It does help to read the instructions.
Last year, we obtained green cards via the visa lottery for an Armenian family which had been ordered deported, and the year before we did the same for a Russian couple whose asylum application had been denied by INS.
So hurry up and apply if you haven’t already done so!
MCI, the telecommunications company, now provides a web site devoted to all things Hispanic at http://www.conexionlatina.com . The site can be viewed in English or in Spanish.
Among the topics covered are: (1) Sports and Entertainment, (2) Travel, (3) Latin Kitchen, (4) Immigration (written by Yours Truly), (5) MCI Newsroom, (6) Community, (7) Business Place, (8) Kid’s World and (9) Meeting Place.
Conexion Latina! is part of MCI’s continuing efforts to respond to the needs of various ethnic communities in the U.S.
In addition, all three MCI sites may be accessed by clicking the icons on our home page: https://www.shusterman.com
No one is lower on the immigration food chain than foreign-born physicians doing their residencies or fellowships in the U.S. on J-1 (exchange visitor) visas.
So precarious is their situation that I actually accept brief phone calls from J-1 physicians all across the U.S. Our law firm has obtained dozens of “interested government agency” waivers for primary care physicians. However, if the physician utters the “S” word during our conversation, all bets are off.
The “S” word is, of course, “Specialist”. I immediately am forced to warn hundreds of anesthesiologists, pathologists, urologists, surgeons, etc.: “Partner, here in the U.S., we (the AMA?) don’t like your kind!”
There is, however, one government agency willing to sponsor medical specialists, the Veteran’s Administration (VA). A recently enacted law (Public Law 10565 signed on October 27, 1997) provides that VA facilities may sponsor physicians for J-1 waivers even if the facility is not located in a HPSA or a MUA.
Meanwhile Conrad 20 and USDA slots continue to fill up for primary care physicians.
When the 1996 immigration law placed a cap of 4,000 on the number of persons eligible for suspension of deportation and cancellation of removal in a single fiscal year, it stimulated a rush of applicants turning themselves into the INS in order to receive these benefits.
Our firm represents a dozen of such clients some of which have been residing in the U.S. since they were one or two years old, whose parents are legal, who are university graduates and successful professionals, who speak English at least as fluently as Yours Truly, who have no other country to go “home” to, and no other way to legalize their status.
So many people applied for suspension of deportation that by February 1997, a little over four months into the fiscal year, over 3,900 persons had received benefits. That was when the Chief Immigration Judge and the Chairman of the Board of Immigration Appeals (BIA) pulled the plug. Immigration Judges and the BIA were ordered not to grant additional applications.
The agency was promptly sued, a preliminary injunction was issued and the whole system shifted from drive into neutral. Some applicants have been given “conditional grants” by Immigration Judges. Others, like one of my clients who came to the U.S. in the mid-1970s at the age of two, have had their hearings delayed until 1999!
What is Congress doing to alleviate this situation? According to an update issued on November 10, 1997 by the National Immigration Forum, here is the latest word on the legislative front:
“VICTIMS OF COMMUNISM RELIEF ACT” NEAR COMPLETION — White House to issue promising signing statement on implementation for Salvadorans and Guatemalans.
The Senate passed on Sunday night the appropriations bill for the District of Columbia (as part of a larger appropriations package). Attached to the bill was the act formerly known as the “Victims of Communism Relief Act.” This is the bill agreed to several days ago by Representatives Diaz-Balart, Smith, Gingrich and Senators Abraham, Mack and Lott. The House of Representatives is expected to take the bill up this week and final passage should happen by Friday.
What’s in the Bill?
Though we have not seen final language, the major components of the bill are as follows:
- Amnesty for Nicaraguans and Cubans – Any Nicaraguan or Cuban in the U.S. as of 12/1/95 is eligible for adjustment of status provided they apply prior to April 1, 2000. The spouses, children, or unmarried sons or daughters of eligible Nicaraguans may also apply. These relatives are eligible only if they are Nicaraguan or Cuban nationals and were in the U.S. as of 12/1/95.
- Old Rules for Salvadorans, Guatemalans – Salvadorans and Guatemalans who applied for asylum before 4/1/90 whose cases were pending when the 1996 Immigration Act became law, as well as members of the ABC class, will have their cases reviewed under the “old rules” for Suspension of Deportation–that is, seven years physical presence in the U.S., good moral character, and the less onerous “extreme hardship” standard.
- Old Rules for Former Eastern Block Nationals – Nationals of any republic of the former Soviet Union or specified Warsaw Pact countries who entered the U.S. on or before 12/31/90 and filed an application for asylum on or before December 31, 1991 will also have their cases reviewed under the old suspension standards. This includes nationals from the Soviet Union, Russia, any republic of the former Soviet Union, Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former Yugoslavia.
**Haitians Get Letter Of Support From Democrat and Republican Senators
In the final days leading up to the Senate passage of the bill, Senator Carol Moseley-Braun (D-IL) worked hard to have Haitians added to the legislation. Though she was not successful (the bill as passed out of the Senate does not include Haitians), she was able to make some progress in getting the plight of the Haitians on the radar screens of several Senators. A letter was sent to the White House from Senators Bob Graham (D-FL), Ted Kennedy (D-MA), Carol Moseley-Braun, Connie Mack (R-FL), Spencer Abraham (R-MI), and Dick Durbin(D-IL), urging the White House to “ease the fears of deportation” faced by the Haitian community. The letter notes that legislation aimed at remedying the concerns of the Haitian population will be introduced in the final days of the Congressional session. On Sunday, Sen. Bob Graham introduced legislation that would give Haitians the same relief awarded to Nicaraguans and Cubans in the “Victims of Communism Relief Act.” A companion House bill has not been introduced as of this writing.
**Salvadorans and Guatemalans Await White House Word on Suspension Process
The White House has indicated that it will make a statement at the time of the signing of the appropriations bill to point out the inequity in treatment between Nicaraguans and Guatemalans and Salvadorans. According to our sources, the statement will include a promise to direct the Attorney General to ensure that in the final outcome of the process, there is as close to equal treatment of the groups as possible. That is, the process will be such that Salvadorans and Guatemalans should easily be able to show that they meet the requirements for Suspension of Deportation.
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