Newsletter US Immigration Update November 2009
Volume Fourteen, Number Ten
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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 November 2009
TABLE OF CONTENTS:
- Immigration Legislation: Extension of Certain Programs and a CIR Proposal
- New Law Will Protect “Surviving” Family Members Including Widows
- How to Select an Excellent Immigration Attorney
- CSPA Decision to be Appealed to the 9th Circuit Court of Appeals
- Success Story: Winning an Important Case before the U.S. Court of Appeals
- Immigration Trivia Quiz: Immigrants in the News
- Ask Mr. Shusterman: The Importance of Degree Equivalency
- Immigration Government Processing Times
- We Give the New USCIS Web Site a “B-“
- Winner of our September 2009 Immigration Trivia Quiz
- Blog– Our weekly blog is entitled “Nation of Immigrants”. To read our blog, which deals with current immigration issues, or to receive a free subscription, see:http://shusterman.typepad.com/nation-of-immigrants/We welcome your comments!
- Detention– The Department of Homeland Security (DHS) and the Immigration and Customs Enforcement (ICE) have embraced a series of recommendations to their immigrant detention policies which includes improved management, new standards, better medical care, and expanded access to basic rights such as legal materials and counsel, visitation and religious practice. However, they do not plan to release more people on their own recognizance. When implemented, these recommendations will improve the security and efficiency of the detention system and the health and safety of those in custody. The announcement clearly indicates that DHS no longer plans on treating those in detention for civil immigration law violations as criminals. Read more about this matter in “DHS’s Plan to Reform U.S. Immigration Detention System a Good Start” by Mary Giovagnoli of the Immigration Policy Center. We link to this article from our “Detention” page at: https://www.shusterman.com/detentionusimmigration.
- E-Verify– On September 8, the E-Verify program became mandatory for federal contractors with contracts valid for over 120 days which are valued at more than $100,000 and for subcontractors where the value of the subcontract is over $3,000. In late October, the USCIS updated its “E-Verify Supplemental Guide for Federal Contractors” to include a FAQ on the new requirements.
- H-1B “Surge”– On October 25, the USCIS announced that it has approved 52,800 H-1B petitions subject to the 65,000 cap. This represents an increase of over 6,000 petition approvals during the last 30 days.
- HIV Ban Lifted– On October 30, President Obama announced that the ban on HIV-positive persons entering the U.S. would soon come to an end. A new rule will be published in the Federal Register on Monday, and will become effective following a 60-day waiting period. We link to an advance copy of the new regulations from: http://edocket.access.gpo.gov/2009/pdf/E9-26337.pdf
- Lottery– The DV-2011 green card lottery began on October 2 and will end on noon, EST on November 30. We link to the instructions and the online application form from our “Green Card Lottery” page at: https://www.shusterman.com/greencardlottery.html#1You can apply online for free. If you follow the instructions carefully, there is no need to hire an immigration attorney to assist you.
- National Public Radio– For the past five years, we have linked to the most important stories in the immigration world from our “NPR” page. See https://www.shusterman.com/nationalpublicradiousimmigration2010.html
- Naturalization– Since October 1, all applicants for naturalization have been required to take the new, more difficult, history and government examination. Instead of questions like “Who was the first President of the U.S.”, applicants can expect questions like “What is the rule of law?” There is a new vocabulary test as well. USCIS reports that the pass rate for the new exam is 91%.
- “No-Match” Letters– On October 8, the DHS formally withdrew its “no-match” letter regulation. The regulation was successfully challenged in Federal Court in 2007, and had never been implemented.
- O and P Petitions– These non-immigrant petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. On October 7, the USCIS issued a Memo and a Fact Sheet which would restrict the ability of “agents” to submit such petitions in certain situations. We link to the Memo and the Fact Sheet from both our “O” and “P” pages at https://www.shusterman.com/o1extraordinaryability.html and https://www.shusterman.com/p1entertainersathletes.html
- Physicians– With H-1B numbers still available, this is a rare opportunity for physicians who completed their medical residencies and fellowships using H-1B visas. See my article in Recruiting Trends entitled “A Rare Opportunity to Recruit H-1B Physicians”.Also, see an article entitled “Medical Emergency” which deals with the shortage of primary care physicians and with the difficulties faced by IMGs in getting into U.S. medical residency programs. I am quoted in this article which appeared in Forbes magazine on October 29.We link to both articles from our “Physicians” page at: shusterman.com/physiciansusimmigration.html#4
- Refugees– On September 30, President Obama signed Presidential Determination 2009-32 which provides for the admission of 80,000 refugees during fiscal year 2010. We link to this determination from our “Asylum” page at: https://www.shusterman.com/asylumusimmigration/#3
- Section 287(g)– This section of law allows state and local police agencies to arrest certain categories of illegal aliens and turn them over to ICE. Since the law was enacted, over 1,000 police officers in more than 60 local law enforcement agencies have been trained to enforce federal immigration laws. Over 130,000 illegal immigrants have been identified under the program. However, the program has been used in the past by some local officials such as Sheriff Joe Arpaio of Maricopa County in Arizona to unlawfully arrest Mexican nationals. On October 16, the U.S. Immigration and Customs Enforcement (ICE) agency announced that it would continue with this program, but under increased Federal supervision. ICE Assistant Secretary John Morton said that Sheriff Arpaio’s sweeps were inconsistent with ICE’s priorities, and that under ICE’s revised guidelines, only serious criminals would be identified. Read the news release entitled “ICE Announces Standardized 287(g) Agreements with 67 State and Local Law Enforcement Partners” which we link to from our “ICE” page at: https://www.shusterman.com/immigrationandcustomsenforcement.
- USCIS – We congratulate Roxana Bacon, Chief Counsel, United States Citizenship and Immigration Services (USCIS). She assumed the duties of USCIS Chief Counsel on October 21, 2009. Former General Counsel of AILA and AILF, and on President Clinton’s short list for INS Commissioner, Ms. Bacon practiced immigration and employment law from 1970 to 2004. She is the first woman to serve as a lawyer representative to the Ninth Circuit Judicial Conferences, and to be elected President of the Arizona State Bar Association. She was also an Adjunct Professor at ASU Sandra Day O’Connor College of Law for 25 years, chaired the American Immigration Lawyer’s Association’s (AILA) Enforcement Liaison Committee, and served on the Editorial Board of the Association of International Educator of NAFSA (National Association of Foreign Student Advisors), the International Women’s Forum, and the Board of Directors of the Arizona Town Hall. Ms. Bacon is the former President of the Board of Visitors of the University of Arizona College of Law and has served on the Board of Directors of the National Law Center, dedicated to implementing NAFTA. In 2001, Ms. Bacon was the recipient of the Sarah Herring Sorin Award. Ms. Bacon was honored with the State Bar of Arizona’s “Distinguished Service Award,” being the third person to ever receive this award. In 2007 she received the ABA Margaret Brent award for lifetime achievement and became the Executive Director of Phoenix-based Western Progress, a non-profit think tank. She has climbed Mt. Kilimanjaro three times.
- Visa Bulletin– On October 9, we posted the November 2009 Visa Bulletin online. The EB-2 category continues to be current worldwide, remains at January 22, 2005 for persons born in India and moves forward one week to April 1, 2005 for persons born in China. The EB-3 category worldwide remains at June 1, 2002 which is a slight advancement for persons born in Mexico and a more significant move forward for persons born in China. We link to the November 2009 Visa Bulletin and to past Visa Bulletins from: https://www.shusterman.com/statedepartmentvisabulletin/
- YouTube “How to” Immigration Videos– Over 50,000 persons have viewed one or more of our 26 YouTube videos regarding various immigration procedures. One of our videos, “Green Cards through Marriage”, has been viewed well over 18,000 times. We now feature this video in three languages: English, Spanish and Chinese. Obtain free information about various aspects of U.S. immigration laws and procedures by viewing our videos at: https://www.shusterman.com/videosusimmigration.html
1. Immigration Legislation: Extension of Certain Programs and a CIR Proposal
On October 28, President Obama signed into law legislation (H.R. 2892) which extends the following immigration programs for three years until September 30, 2012:
- Conrad 30 J Waiver Program for Physicians
- EB-5 Investor Pilot Program for Regional Centers
- Non-Ministerial Religious Worker Program
- E-Verify Pilot Program
We link to H.R. 2892 from our “Immigration Legislation” page at: https://www.shusterman.com/legislationusimmigration.
We also link to additional information regarding each of these programs from the following pages on our website:
- Conrad 30 Program
- EB-5 Investor Program
- Religious Worker Program
Congress also amended the immigration laws to abolish the “widow penalties” and to preserve the rights of beneficiaries and derivative beneficiaries to adjust their status to permanent residents even after the death of the petitioner or principal beneficiary of the petition. For an explanation of these amendments, see Topic #2 below.
Meanwhile, what is happening with comprehensive immigration reform?
On October 13, at a rally in Washington, D.C., Congressman Luis Gutierrez (D-IL) outlined the “core principals” in the comprehensive immigration reform legislation that he will soon introduce in the House of Representatives. They are as follows:
- Pathway to Legalization for Undocumented Workers
- Professional and Effective Border Enforcement
- Smart and Humane Interior Enforcement
- Verification Systems
- Family Unity as a Cornerstone of our Immigration System
- Future Flows of Workers
- DREAM Act
- Promoting Immigrant Integration
We link to Rep. Gutierrez’s press release from our “Immigration in the Media” page at
We will analyze Congressman Gutierrez’s bill as soon as it is introduced in Congress.
2. New Law Will Protect “Surviving” Family Members Including Widows
On October 28, President Obama signed the DHS Appropriations bill (H.R. 2892) into law. In addition to extending certain vital immigration programs (See Topic #1 above.), the law will, for the first time, enable surviving family members to obtain permanent residence in the U.S. despite the death of the petitioner or the principal beneficiary.
We link to the new law from our “Immigration Legislation” page at
In the past, the law provided that when the petitioner or the principal beneficiary died, so did the petition. Typically, if the beneficiaries were present in the U.S., their applications for adjustment of status were denied and they were placed in removal proceedings.
There were few options for surviving relatives:
For example, there is a section of the law which provides that a surviving spouse of a U.S. citizen can self-petition for permanent residence, but only if the marriage occurred at least two years before the petitioner’s death. There is also a regulation which provides that where the petitioner of a family-based petition dies before the beneficiaries of the petition became permanent residents, the beneficiaries may request that the USCIS reinstate the petition for “humanitarian” reasons.
The new law is much more generous.
* WHO WILL BENEFIT FROM THE NEW LAW?
Not only does the new law eliminate the infamous “widow penalty”, it does so much more.
When either the petitioner or the principal beneficiary dies in a wide variety of instances, the law acts to protect the following surviving family members:
- Parents, spouses and children of a U.S. citizen with pending or approved petitions;
- Beneficiaries, principal or derivative, of pending or approved family-based petitions;
- Beneficiaries, principals or derivative, of pending or approved employment-based petitions;
- Beneficiaries, principal or derivative, of pending or approved asylees/refugee relative petitions;
- Nonimmigrants entitled to “T” (trafficking victims) or “U” (crime victims) status.
Since the waiting times for family-based and employment-based preference categories can range up to 22 years, it is not uncommon for petitioners and/or principal beneficiaries to die before all the beneficiaries of the petition can obtain permanent residence.
How the new law will operate? Consider the following examples:
* EXAMPLE #1 – Family-Based Petition, Adjustment of Status
Ms. Santos was born in the Philippines. Her sister, a citizen of the U.S., petitioned for her over 20 years ago. At that time, her children were four, two and one year of age. Ms. Santos and her husband work in the U.S. and live together with their children. By the time their priority date became current, her children were 24, 22 and 21. The INS took two years to approve the visa petition. Since the length of time that the visa petition was pending can be subtracted from the age of the children under the Child Status Protection Act, the “immigration ages” of the children are 22, 20 and 19. Therefore, the youngest two are still considered to be children for purposes of adjustment of status while the older child must wait for a final resolution of the proper interpretation of CSPA’s “automatic conversion” clause. (See Topic #4 below.)
Ms. Santos, her husband and their two youngest children all applied for adjustment of status under section 245(i). However, shortly before their interview took place, her U.S. citizen sister died. Under prior law, Ms. Santos’ only remedy would have been to apply for “humanitarian” reinstatement of her petition from the USCIS, a very “iffy” proposition. Under the new law, she and her family (except possibly her oldest child) would be protected as “survivors” and would be allowed to continue with their applications for adjustment of status despite the death of her sister.
Assuming that Ms. Santos and her family members are otherwise eligible for adjustment of status, the only way their applications can be denied is if the USCIS denies the visa petition by determining that its approval “is not in the public interest”.
Also, since Ms. Santos’ sister has died, another sponsor for an affidavit of support is needed.
* EXAMPLE #2 – Same Scenario as Above, but Ms. Santos and her Family are Abroad
If Ms. Santos and her family are abroad on the day that her sister dies, the petition will be revoked by the USCIS. The family’s only recourse is to request a reinstatement of the visa petition on “humanitarian” grounds.
* EXAMPLE #3 – Adjustment of Status, but Ms. Santos, not her Sister, Dies
If Ms. Santos dies before she and her family are able to adjust status, the new law provides that the petition remains approved unless the USCIS determines that this “is not in the public interest”. Her husband and the youngest two children can adjust their status to permanent residents. This represents a clear departure from previous laws which would have resulted in the denial of adjustment of status applications for her husband and children, and placing them in removal proceedings.
Is there any remedy for the family under this scenario if Ms. Santos’ family had remained abroad? Unfortunately, the answer to this question is “no”.
* EXAMPLE #4 – Employment-Based Petition
Dr. Kumar is a physician born in India. His wife and daughter reside with him in the U.S. He is in H-1B status and his wife and daughter are in H-4 status. Dr. Kumar completed his medical residency in the U.S. on a J-1 visa. Then, for three years, he worked in a medically-underserved area in H-1B status. In 2006, his employer submitted a PERM application on his behalf. It was approved in the spring of 2007. In July 2007, when all the employment-based numbers became current, Dr. Kumar’s employer submitted an EB-2 visa petition on his behalf. Simultaneously, Dr. Kumar, his wife and daughter all applied for adjustment of status. Then his priority date retrogressed. In 2009, Dr. Kumar was killed by a drunk driver. Under prior law, the visa petition would have been revoked. Under the new law, Dr. Kumar’s wife and daughter are permitted to continue with their applications to adjust status. The visa petition can only be revoked if the USCIS determines that its continued approval would not be “in the public interest”.
* ELIMINATION OF THE “WIDOW PENALTY”
The new law also eliminates the “widow penalty”, but here the law and procedures are different from the treatment accorded to other surviving relatives.
What follows is some advice for widows and their children under the new law:
* How Can I Benefit from the New Law?
Under the new law, all surviving spouses can self-petition for themselves and their children for green cards. The new law eliminates the two-year marriage requirement for self-petitions.
If you are physically present in the U.S., file an I-360 self-petition together with an I-485 application for adjustment of status.
If you reside abroad, file an I-360 self-petition and follow the normal immigrant visa procedures.
In either case, it is incumbent upon you to submit form I-360 within two years of the law’s passage, and that you demonstrate that the marriage was bona fide. Include wedding photos, proof of joint assets, etc.
If your spouse dies more than two years after the law’s enactment, your I-360 must be submitted within two years of your spouse’s death.
There is no affidavit of support requirement. However, you must demonstrate to the government that you are not likely to become a public charge.
If you remarry, you will lose your eligibility.
* How Can My Children Benefit from the New Law?
Your unmarried children may be included in your I-360 self-petition.
Remember that although the law defines “child” as someone who is unmarried and is under 21 years of age, the Child Status Protection Act (CSPA) may allow your child’s age to be “frozen”. As a general rule, if the I-130 or the I-360 petition was submitted prior to your child’s 21st birthday, they will continue to be considered a child no matter how old they are when the USCIS decides their application for a green card as long as they remain single.
For more information about CSPA, see our “Child Status Protection Act FAQ” at
The new law will provide immigration benefits to “survivors” in various types of immigration cases where either the petitioner or the principal beneficiary dies before the other family members are able to become permanent residents.
However, the law is complex, and the extent of its benefits will not be known until after the USCIS and the State Department promulgate regulations, or issue memos, explaining how they plan to implement the new law.
3. How to Select an Excellent Immigration Attorney
I truly love my work, but last Friday was a depressing day for me. A businessman and his daughter consulted with me in my office. When I asked how they had learned about our law firm, they said a lot of flattering things about how “famous” we were and about our “great” website.
However, when I analyzed their case, it quickly became apparent to me that nothing could be done to help them. It was too late. The man’s I-140 (EB1-3) which was submitted in April 2001 had been denied, and his former attorney had advised them not to appeal, but to have the employer file a new I-140. The new I-140 was also denied as were their I-485s. Since the man’s L-1 status had long since expired, his whole family had been placed under removal proceedings.
His former lawyer had advised him to have his employer submit a 3rd I-140 on his behalf and for him and his family to file new I-485s on the basis that he was eligible for adjustment of status under section 245(i).
Suddenly, I became the bearer of bad news: “Sir, you are ineligible for benefits under section 245(i). Your initial I-140 was denied because the INS concluded that you were not an executive or manager, that the foreign and domestic companies were unrelated and that you were not being paid at the proffered wage. Furthermore, your employer did not appeal the I-140 denial. So, what is your argument that the I-140 meets the ‘approvable when filed’ standard for section 245(i) eligibility?”
Yet, both his previous attorneys were in agreement that he was covered under section 245(i). I told him that I disagreed, and therefore, could not take his case. He and his daughter left my office disappointed.
Every potential client that I saw on Friday had a similar story, and it was too late to repair any of their damaged cases. In my opinion, each of them will have their cases denied by an Immigration Judge. What’s more, they will pay other attorneys many thousands of dollars only to lose their cases, appeal them to the BIA, and then lose again. Eventually, these unfortunate people will be ordered to either leave the United States “voluntarily” or face deportation.
COULD THESE RESULTS HAVE BEEN AVOIDED?
Section 245(i) has been on the books for over 15 years. All immigration attorneys should be able to properly analyze the facts of a case, and advise a client whether his I-140 complies with the “approvable when filed” standard under section 245(i).
But how is a person supposed to know whether an immigration attorney is giving him good advice? In fact, how does a person go about selecting a good immigration attorney to represent him?
There are over 11,000 members of the American Immigration Lawyers Association (AILA). Some are excellent attorneys, others are so-so, and more than a few are absolutely terrible. All immigration attorneys are not created equal. How is an immigrant, untrained in the intricacies of the law, supposed to select a competent attorney?
I have prepared a video entitled “Ten Rules for Selecting an Immigration Attorney”. Take a few minutes and watch this video at: https://www.shusterman.com/howtoselectanimmigrationattorneyvideo.html
CERTIFIED SPECIALISTS IN IMMIGRATION LAW
Immigrants frequently choose attorneys just because they speak their language or are from the same country as they are. Many Chinese choose Chinese attorneys; Filipinos tend to select Filipino attorneys, etc.
Some immigration attorneys have built huge followings by blanketing ethnic newspapers with ads touting their successes. Other attorneys, including Yours Truly, are known largely through their websites.
However, speaking a particular language, running big ads or having a popular website is no guarantee of quality. Expertise and experience are far more important than “self-advertised or paid” prominence.
In my video, I stress one important criterion that is nowhere mentioned in the section of the USCIS website entitled “Finding Legal Advice” or in the ads or websites of most immigration attorneys.
A number of states put attorneys through a rigorous system where they must pass a difficult examination regarding the intricacies of immigration law, require that they have a certain amount of experience in various facets of immigration law (employment-based, family-based, asylum, deportation defense, etc.) and obtain recommendations from their colleagues. A committee checks to make sure that the attorney is in good-standing with the bar association. Only then can an attorney be deemed to be a Certified Specialist in Immigration Law.
Several years ago, I had the privilege of serving on the committee which writes and grades the examination for California attorneys seeking Certified Specialist status in Immigration Law. I can state, without hesitation, that the examination is extremely difficult to pass, and that every attorney who our committee recommended to be a Certified Specialist was both experienced and a true expert in the field.
In my opinion, persons seeking legal advice from immigration attorneys could do no better than to restrict their search to pre-screened Certified Specialists in Immigration Law.
LOCATION, LOCATION, LOCATION?
This mantra is a good rule of thumb when you are looking to buy a house. It is less helpful when you are seeking immigration legal advice. Immigration law is federal. Therefore, an immigration lawyer in Texas or California can represent corporate and individual clients in all 50 states.
For example, during the past few weeks, attorneys in our law firm flew to New York City, Reno, Dallas and Philadelphia to represent clients. Next month, I will travel to Chicago to appear at a removal hearing. In a typical case, however, the petitions and applications are simply mailed to the USCIS, and no interview is required. The location of the attorney is irrelevant, while the skill of the attorney is paramount.
The USCIS promised to link to lists of Certified Specialists in Immigration Law as a service to the public. See: https://www.shusterman.com/pdf/letterfromuscistoimmigrationattorneyshusterman.pdf
However, they seem to have reneged on their promise.
Don’t despair. Below, we link to the web addresses of all Certified Specialists in Immigration Law around the United States.
HOW TO FIND A CERTIFIED SPECIALIST IN IMMIGRATION LAW
Four states currently certify attorneys as specialists in immigration law. If enough savvy consumers of legal services hire certified specialists to represent them, we predict that there will be a clamor in all states to certify legal specialists in the future.
- NORTH CAROLINA
WHAT CAN A CERTIFIED SPECIALIST DO FOR YOU?
Why should you hire a Certified Specialist in Immigration Law?
If you do, you can obtain top-notch legal advice and avoid the unfortunate dilemma faced by the businessman and his daughter discussed at the beginning of this article.
4. CSPA Decision to be Appealed to the 9th Circuit Court of Appeals
Until 2002, our immigration laws had the unfortunate effect of separating immigrating parents from their sons and daughters if their children reached their 21st birthdays before obtaining lawful permanent residence in the U.S.
Immigration attorneys and government officials often had to rush to get children their green cards just before they turned 21. Failing that, the children would suddenly morph into “unmarried adult sons and daughters” just as surely as Cinderella’s coach would change into a pumpkin at the stroke of midnight. The children would be forced to remain single and to wait many years if they wanted to be reunited with their parents.
To remedy this situation, and to promote family unity, Congress passed and the President signed the “Child Status Protection Act of 2002” (CSPA). The act provides a mathematical formula which allows certain children to avoid “aging-out” even after they reach the age of 21.
Still another subsection of the law provides a way for children who have “aged-out” to remain together with their parents. This is subsection 203(h)(3), commonly referred to as the “automatic conversion” clause. It reads as follows:
“RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”
Subsection (a)(2)(A) refers to children petitioned by their permanent resident parent(s) while subsection (d) refers to “derivative beneficiaries” of all family-based, employment-based and lottery-based immigration preference categories.
The problem with the “automatic conversion” clause was that it was never implemented by the USCIS. Perhaps this was because it was too much at odds with the way that the agency had operated for generations. Perhaps it seemed to the USCIS to be too generous to sons and daughters of immigrants.
In any case, both the INS/USCIS and the State Department issued numerous memoranda explaining in detail how various provisions of the CSPA would be applied in practice. The only subsection of the law not mentioned by the agencies in their memos was the “automatic conversion” clause.
I wrote an article for the Practicing Law Institute soon after the law was enacted in 2002 describing how this clause would operate. For example, a U.S. citizen petitioned for her sister in 1990 when the sister’s son was 11 years old. Although the petition was approved in one week, the priority date was not reached until 2001 when the son was 22 years of age. Under the mathematical formula, the one week that the petition was pending can be subtracted from the son’s age. Despite this, the son would have “aged-out”. Therefore, the “automatic conversion” clause would apply to him since he was the derivative beneficiary of his aunt’s petition for his mother. He would clearly be entitled to the priority date of the original petition: 1990. His family-based 4th preference status would automatically convert to the “appropriate category”. Since his mother was now a permanent resident, this would be the 2B category (“unmarried adult sons and daughters of lawful permanent residents”). This would allow him to become a permanent resident together with his parents and younger brothers and sisters.
Several prominent immigration attorneys including Cyrus Mehta and Howard Gordon wrote articles about CSPA in which they interpreted the “automatic conversion” clause similarly. Finally, in 2006, a unanimous panel of the Board of Immigration Appeals (BIA), in Matter of Garcia, did the same.
Still, the USCIS refused to apply the “automatic conversion” clause to insure family unity. Since Matter of Garcia was not designated as a precedent decision by the BIA, the USCIS was not obligated to follow in the BIA’s footsteps.
Finally, in 2008, with the USCIS still refusing to either follow Matter of Garcia or even to propose an alternative interpretation of the law, various families who had tried to invoke their rights under the “automatic conversion” clause sued the government in Federal Court to force them to follow the law. There were numerous lawsuits, two brought by our law firm, and all were consolidated in front of a Federal Judge in Orange County, California.
How did the government respond to these lawsuits?
They went into “stall mode”. They asked the Judge not to decide the Federal cases since they assured him that two CSPA cases pending before the BIA, Matter of Wang (family-based) and Matter of Patel (employment-based) would be decided imminently. The Judge postponed consideration of the Federal cases from the summer of 2008 until the spring of 2009 when he lost patience waiting for the BIA to decide these cases. In April 2009, he informed the government that he would proceed with the Federal cases.
On June 16, 2009, the BIA issued a ruling in Matter of Wang which would prevent most derivative beneficiaries from remaining together with their parents under the “automatic conversion” clause and dismissed the logic in Matter of Garcia in a sentence or two.
We were shocked by Matter of Wang’s departure from the clear language of the law. We wrote an article entitled “BIA Decision Would Separate Families” and another article entitled “BIA’s CSPA Decision Not Entitled to Deference”. We link to both articles from our “Blog” page at : https://www.shusterman.com/blognationofimmigrants.html
Nonetheless, on October 9, the Judge granted the government’s Motion for Summary Judgment and deferred to Matter of Wang in his decision.
We believe that the language of the law is clear. The reference to “for purposes of subsection (a)(2)(A) and (d)” is used in both section 203(h)(1) and again in section 203(b)(3). In section 203(h)(1), the government agrees that this phrase refers to both beneficiaries of 2A visa petitions and to derivative beneficiaries of family-based, employment-based and lottery-based categories. However, in section 203(b)(3), the government interprets the exact same phrase much more narrowly to include only 2A derivative beneficiaries who have aged out. Interpreting the same phrase entirely differently in two subsections of the same law violates all rules of statutory construction.
Therefore, we believe that the Judge erred when he deferred to an erroneous decision by the BIA.
We also disagree with the rationale in Matter of Wang that the CSPA was passed strictly to protect beneficiaries from “administrative delays”. Neither section two which freezes the age of “immediate relative” children, section six which allows certain family-based first preference beneficiaries to “opt-out” to the 2B category nor the “automatic conversion” clause are conditioned upon administrative delays. The overall purpose of CSPA is to promote family unity, pure and simple.
The plaintiffs in one of our lawsuits have been separated from their sons and daughters for many years in violation of the law. Unless they appeal this decision, they will be forced to endure many more years of separation. Therefore, they intend to appeal the decision to the U.S. Court of Appeals for the 9th Circuit early in November.
We are confident that the 9th Circuit Court of Appeals will rule in favor of our clients as a matter of law. We remember being disappointed, but not discouraged, when a Federal Judge deferred to the INS and ruled against our clients who were challenging the agency’s national interest waiver regulations only to be overruled by a unanimous panel of the 9th Circuit Court of Appeals. The Appeals Court ruled that the agency could not change the clear language of the law in their regulations. See Schneider v. Chertoff, 450 F.3d 944 (2006) at: https://www.shusterman.com/nationalinterestwaiversphysicians.
We link to the briefs and cross-motions in this case as well as to the Judge’s Decision from: ttp://www.shusterman.com/childstatusprotectionact.html#4
I will be speaking about CSPA and our appeal at the 22nd Annual AILA California Chapters Conference in Marina Del Rey, California on November 13, and again at AILA’s Northwest Continuing Legal Education Seminar on February 11, 2010 in Seattle, Washington.
5. Success Story: Winning an Important Case before the U.S. Court of Appeals
Given that the Federal Judge in our case under the Child Status Protection Act granted the Government’s Motion for Summary Judgment (See Topic #4 above.), why should I be confident that the Judge’s ruling will be overturned by the U.S. Court of Appeals for the 9th Circuit?
Well, for one thing, this seems like “déjà vu all over again” to me.
In 2002, our law firm represented a group of physicians around the country in challenging the INS’ restrictive regulations implementing a new law which eases restrictions on physicians who applied for permanent residence using National Interest Waivers (NIWs).
The regulations seemed to cancel significant portions of the statute. For example, although the law provided that “all physicians” working in medically-underserved areas were eligible for NIWs, the INS regulations limited this immigration benefit to primary care physicians.
How did INS justify such a departure from the clear wording of the statute?
Somewhat disingenuously, the INS argued that in designating what was a “medically-underserved area”, the Department of Health and Human Services considered the ratio of primary-care physicians to patients. Therefore, this meant that physician specialists were excluded from the definition of “all physicians” practicing in medically-underserved areas.
I was surprised when the Assistant U.S. Attorney bought this argument hook, line and sinker. But I was completely taken aback when after about two years of reading our motions and briefs, a Federal Judge granted the Government’s Motion for Summary Judgment. “Mr. Shusterman”, the Judge asked me, “I guess it is your position that when Congress passes a law, the agency has no power to promulgate regulations interpreting the law?”
“Not at all, your Honor!” However, I appealed the Judge’s decision to the U.S. Court of Appeals for the 9th Circuit. At the Oral Argument, the judges seemed somewhat incredulous as to the Government’s arguments. I actually felt sorry for the Assistant U.S. Attorney when the Judges started to question her.
Sure enough, the Appeals Court Judges overturned the decision of the District Judge and ruled in favor of my plaintiff physicians. Every single one of them obtained permanent residence in the U.S. See Schneider v. Chertoff, 450 F.3d 944 (9 Cir. 2006) which we link to from our “National Interest Waivers for Physicians” page at: https://www.shusterman.com/nationalinterestwaiversphysicians.
Our appeal in the CSPA lawsuit is equally straightforward. The “automatic conversion” clause refers to aliens who are 21 years or older “for the purposes of subsections (2)(A) and (d)” of section 203. Subsection (d) refers to derivative beneficiaries of all family-based, employment-based and diversity lottery categories. In interpretating section 203(h)(1), the Government interprets this phrase to include derivative beneficiaries of all family-based, employment-based and diversity lottery categories. Yet, in interpreting the exact same phrase used in section 203(h)(3), the Government seeks to limit the reach of the statute to one tiny subset of derivative beneficiaries, children under the 2A family category who age-out and are covered under the 2B category.
Talk about mental gymnastics!
I firmly believe that the Judges on the Court of Appeals will not let an administrative agency unlawfully restrict who benefits from a law passed by Congress and signed by the President.
The USCIS may have forgotten the answer to the following question on their new Naturalization Test: “What stops one branch of government from becoming too powerful?” Answer: “The separation of powers.” I am confident that the Appeals Court will remind them!
To read more of our Immigration Success Stories, see: https://www.shusterman.com/successstoriesimmigration/
6. Immigration Trivia Quiz:
7. Ask Mr. Shusterman: The Importance of Degree Equivalency
It is important to evaluate issues of degree equivalency in advance of initiating legal permanent residence (LPR) sponsorship for someone who completed his or her education outside the United States.
Many employees being sponsored for LPR status by their employers have already been approved for H-1B nonimmigrant status as temporary workers employed in “specialty occupations.” If a worker qualified for H-1B nonimmigrant status on the basis of a combination of foreign degrees and/or experience, the degree equivalency must be evaluated at the start of the LPR process because of key differences in the way USCIS treats degree equivalency in adjudicating I-140 immigrant visa petitions and H-1B petitions.
* Degree Equivalency for H-1B Nonimmigrant Workers
In order to perform services in a specialty occupation, an alien must meet one of the following criteria:
(1) Hold a United States baccalaureate or higher degree as required by the specialty occupation from an accredited college or university;
(2) Possess a foreign degree determined to be equivalent to a United States baccalaureate or higher degree as required by the specialty occupation from an accredited college or university;
(3) Have any required license or other official permission to practice the occupation (for example, architect, surveyor, physical therapist) in the state in which employment is sought; or
(4) Have, as determined by the USCIS, the equivalent of the degree required by the specialty occupation acquired through a combination of education, training, and/or experience. 8 C.F.R. § 214.2(h)(4) (emphasis added).
There are many H-1B nonimmigrants in the United States who completed their education outside the United States and qualified for H-1B status on the basis of an evaluation of:
(a) A foreign degree, or (b) A combination of degree(s) plus experience in the field, and/or (c) Other post-graduate diplomas, etc.
Any of combination of these qualifications may suffice to demonstrate attainment of the equivalent to a 4-year U.S. bachelor’s degree for H-1B purposes.
* Degree Equivalency in PERM-based Green Card Cases
The typical employment-based green card case is one which begins when the employee is sponsored for LPR status through the PERM process with the Department of Labor. See https://www.shusterman.com
The PERM process requires the employer to test the U.S. job market to determine whether there are any qualified U.S. workers willing to accept an open position before the employer can sponsor a foreign national for LPR status based on a full-time job offer.
After the PERM application has been certified by the Department of Labor, the employer must submit an I-140 immigrant visa petition to the USCIS, seeking an employment-based preference classification for the foreign worker based on the minimum requirements for the job as described in the PERM application. The approval of a PERM application will allow an employer to seek either an EB-2 (employees with advanced degrees) or EB-3 (degreed professionals and skilled workers) classification for the worker during the I-140 petition stage in the process.
A foreign national worker may qualify for EB-2 classification if he or she is being sponsored for a job that requires either an advanced degree or a bachelor’s degree (or foreign equivalent degree) plus 5 years of progressively responsible professional experience. Where a foreign equivalent degree is required on the PERM application, the beneficiary must have a “single-source” degree, i.e. a single foreign degree that has been determined to be equivalent to either:
(a) An advanced U.S. degree, or (b) A U.S. bachelor’s degree plus 5 years of progressively responsible professional experience.
The EB-3 preference classification includes both skilled workers and professionals. To qualify as an EB-3 “skilled worker,” a foreign worker need only demonstrate completion of at least 2 years of related experience.
However, for the “professionals” sub-category of the EB-3 classification, the applicable regulations state: “If the petition is for a professional, the petition must be accompanied by evidence that the alien holds a United States baccalaureate degree or a foreign equivalent degree and by evidence that the alien is a member of the professions. Evidence of a baccalaureate degree shall be in the form of an official college or university record showing the date the baccalaureate degree was awarded and the area of concentration of study. To show that the alien is a member of the professions, the petitioner must submit evidence that the minimum of a baccalaureate degree is required for entry into the occupation.” 8 C.F.R. § 204.5(l)(3)(ii)(C) (emphasis added).
The italicized portion of the EB-2 regulations has become known as the “single source” degree rule because it describes the foreign equivalent degree as a single degree. Thus, the plain meaning of the regulatory language concerning the professional classification sets forth the requirement that a beneficiary must produce one degree that is determined to be the foreign equivalent of a U.S. bachelor’s degree in order to qualify in the “professionals” sub-category of the EB-3 classification. This “single source” rule has been interpreted to apply to the EB-2 classification as well.
* The “Single Source” Rule Applied
The “single source” rule only presents a potential problem if it is not identified and addressed during the planning process for employment-based green card sponsorship.
Where the position described in the PERM application requires a U.S. bachelor’s degree or higher, the application must clarify that the employer will accept a foreign degree, a combination of degrees, and/or work experience if this is the case. The key is that acceptable alternative degree(s) and/or experience must be clearly set out during and all throughout PERM process.
Although many individuals do not have a single-source foreign degree that has been determined to be equivalent to a U.S. degree, they may still qualify for EB-2 or EB-3 classification if: (a) the PERM application clearly indicates that the employer will accept a combination of degrees and/or experience that has been determined to be equivalent to the required U.S. degree, and (b) that same alternative combination is employed in the criteria which the employer uses in testing the job market to determine whether there are any qualified U.S. workers willing to accept the position.
Finally, it is important and interesting to note that USCIS reviews each beneficiary’s educational qualifications on a “case-by-case” basis, and considers foreign credential evaluations to be purely advisory in nature. This policy makes it difficult to provide definitive guidance on how best to proceed with employment-based cases where there are degree equivalency issues. There have been a number of Administrative Appeals Office (AAO) decisions regarding this issue. However, the holdings in these cases are often dependent upon the facts of the particular case.
Do you have immigration questions of general interest to our readers? Send them to firstname.lastname@example.org
If your question is neither short nor general, please schedule a 30-minute legal consultation with me at https://www.shusterman.com/schedule-immigration-consultation/
8. Immigration Government Processing Times
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.
9. USCIS.gov: We Give the New USCIS Website a “B-“
The newly revamped USCIS website (www.uscis.gov) went online on September 22.
The new site is definitely an improvement over the prior website.
For example, it is geared to the person who needs information about immigration. On the left side of the screen appear the words “Where to Start”. This allows you to click the arrow next to the words “I am…” and provides you with 21 choices ranging from “U.S. citizen” and ending with “Educator or Volunteer”. Below are the words “I want to…” Depending on which of the 21 categories you chose under “I am…”, the choices under “I want to…” will vary accordingly.
If you choose “I am a visitor/nonimmigrant”, you will be given seven choices in the “I want to…” category. Some of these categories allow you to learn more about becoming a permanent resident through investment, employment, the lottery or as a religious worker, but nothing about becoming a permanent resident through a family member. This is obviously an oversight which we hope will be quickly corrected.
Suppose you choose “I want to find out about becoming a permanent resident (green card holder) through employment”. You must click the green button which states “Get Results”. This brings you to a page entitled “Green Card Through a Job”. A short article about employment-based immigration appears in the middle of the page. Over to the left, there are links to web pages on the following topics: “Green Card Through a Job Offer”, “Green Card Through Investment”, “Green Card Through Self-Petition” and “Green Card Through Special Categories of Jobs” as well as links to other ways to obtain a green card and green card processes and procedures.
The right side of the screen contains a column entitled “More Information” with the following subtopics: “Forms”, “Tools – Before I File”, “Tools – After I File”, “Other Cases Services”, “Other USCIS Links” and “External Links”.
All in all, the new USCIS website appears to contain more information than did the old website. Further, it is arranged in a fashion which is much more user- friendly.
Another significant improvement to the new website is that there is a Spanish- language version of the site. It is plain to see, however, that many pages which are available in English are not available in Spanish. For example, the Spanish “Soy…” option contains only four possibilities as opposed to the 21 choices for the English “I am…”
The website allows users to get e-mail updates, text messages on their smart phones regarding the status of their cases, has an RSS feed and multimedia. I watched a video entitled “Becoming a U.S. Citizen: An Overview of the Naturalization Process”. As a former INS Citizenship Attorney (1976-82), I was impressed by the quality of the information presented.
Not everyone is impressed with the new website. When I requested a short evaluation of the site from a member of my staff, I received the following:
“The main change to the USCIS website is the layout. The contrast in colors is pleasing to the eye and adds the illusion that the site is that much more organized. What is much more organized is the homepage. The topics that seem to be of main interest to visitors are nicely laid out. However once you click on the topic, you are connected to a page with basic information and on each side there are links that might confuse the visitor at first. After touring around this redesigned site, the visitor realizes that the same links practically exist on every page with minimal change. I don’t think USCIS is providing its visitors with more information, it’s just that the same information has moved!”
I don’t know that my evaluation of the new website is as harsh. However, I do have some problems with the new website.
On August 15, a few weeks before the new website went online, we wrote “USCIS’ Redesigned Website: Our Suggestions”. See http://carlshusterman.blogspot.com/2009/08/uscis-redesigned-website-our-suggetions.html
Did the new website adopt any of our suggestions? Read on.
* Suggestion # 1 – Please Do Something to Improve the Search Engine
As a trial, we typed in the words “L status” into the search engine and got ten results. However, none of the results led us to a page discussing what L status is and how to obtain it. Is there such a page on the USCIS website? Perhaps the search engine still needs some work. Until USCIS improves its website and search engine, feel free to go to our “Intracompany Transferees L-1 Status” page at https://www.shusterman.com/immigrationquiza_answers.html
* Suggestion # 2 – Make the New Website as Good as the 1999 Website
Here, we searched for the four Nationality Charts. The term “Nationality Charts” yields no results in the search engine. Similarly, opening “Citizenship & Naturalization Based Resources” on the left side of the screen fails to reveal any information regarding obtaining U.S. citizenship through one’s parents, through derivation or acquisition. However, a google search revealed that the Nationality Charts are still on the USCIS website located in the Adjudicators’ Field Manual. But why torture yourself?
* Suggestion # 3 – What’s with the Long URLs?
* Suggestion # 4 – Help Immigrants and Employers Find Good Legal Advice
Under the heading “Humanitarian Benefits Based Resources” on the left side of the screen is the listing “Finding Legal Advice”. The new website, like the old, still links to the EOIR “List of Free (sic) Legal Service Providers”. As we explained in our blog, this is both misleading and untrue.
Does the new website link to the list of “Certified Specialists in Immigration and Nationality Law” as USCIS promised me in 2006? See https://www.shusterman.com/pdf/letterfromuscistoimmigrationattorneyshusterman.pdf
Of course not!
All in all, the new USCIS website is an improvement over the old website, but much more remains to be done.
We give the new USCIS website a “B-”
Hopefully, the new website is a work-in-progress. Send your comments to email@example.com
10. Winner of our September 2009 Immigration Trivia Quiz
Certified Specialist in Immigration Law, State Bar of California (1988 – present),Former U.S. Immigration & Naturalization Service Trial Attorney (1976-82), Board of Governors, American Immigration Lawyers Association (1988-97)
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550, Los Angeles, California 90017, Phone: (213) 623-4592 Fax: (213) 623-3720
“I am not blind to the hostility against immigration that has always accompanied our new arrivals. I have studied it all my professional life and I think I understand it. It is ugly. It is fear-based. It springs from incuriosity, the cerebral cortex of ignorance. It is nurtured by the greed gene that says someone new takes from your share, while in truth someone new makes the pie bigger.”
– Roxana Bacon, New USCIS General Counsel
Newsletter US Immigration Update November 2009 – Quick Links
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November 1, 2009