Volume Ten, Number Ten
SHUSTERMAN’S Newsletter US Immigration October 2005 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.
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Newsletter US Immigration October 2005
TABLE OF CONTENTS:
- EB Visa Numbers Retrogress: Outlook for the Future
- Immigration Government Processing Times
- DV-2007 Visa Lottery: October 5 – December 4, 2005
- Immigration Success Story: What a Difference A Day Made
- Immigration Trivia Quiz: Comings and Goings
- EB Numbers Retrogress: Developing a Winning Strategy
- Our Web Site: Alive and Well after 10 Years
- Schedule of Upcoming Immigration Law Seminars
- Chat Schedule, Transcripts, Audios & Videos
- Winner of the September 2005 Immigration Trivia Quiz
WE ARE MOVING TO LARGER OFFICES!
The Law Offices of Carl Shusterman are moving to larger quarters later this month. Our new address will be:
600 Wilshire Boulevard, Suite 1550
Los Angeles, CA 90017
Our phone number (213) 623-4592, e-mail addresses and all other contact information will remain the same.
- Arriving Aliens May Adjust Status– On September 30, the U.S. Court of Appeals for the 9th Circuit agreed with both the 1st and the 3rd Circuits that arriving aliens may adjust status in removal proceedings. All three circuits have found that the CIS regulation, at 8 C.F.R. 245.1(c)(8), which holds that arriving aliens may not adjust status is in direct conflict with the law at 8 U.S.C. 1255(a). However, the issue may end up at the Supreme Court since the 8th Circuit has held that the regulation does not conflict with the statute.Kudos to Mrs. Bona’s attorney, Stuart Folinsky!
- Business Immigration Newsletter– Periodically, the American Immigration Lawyers Association (AILA) publishes “Connect!” a newsletter devoted to business-related immigration developments.
- Citizenship – Applicants for naturalization must demonstrate that they have been persons of good moral character during the required residency period which is usually five years. What about lawful permanent residents who have criminal convictions which may render them removable, but which occurred prior to this five-year period? Can they still qualify for U.S. citizenship? The answer is “yes” according to a recent (September 6, 2005) decision by the U.S. Court of Appeals for the 9th Circuit.In U.S. v. Hovsepian, (No. 99-50041)(9th Cir. 2005), the Court in a unanimous (11-0) en banc decision held that”Conduct occurring outside the regulatory period is relevant only insofar as it bears on Appellees’ present moral character. See 8 U.S.C. § 1427(e) (“[T]he Attorney General shall not be limited to the applicant’s conduct during the five years preceding the filing of the application, but may take into consideration as a basis for [the] determination [of good moral character during that period] the applicant’s conduct and acts at any time prior to that period.”); 8 C.F.R. § 316.10(a)(2)(allowing earlier conduct to be considered “if the conduct of the applicant during the statutory period does not reflect that there has been reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant’s present moral character” (emphasis added)). As we cautioned in Santamaria-Ames v. INS, 104 F.3d 1127, 1132 (9th Cir. 1996), if the applicant demonstrates exemplary conduct during the specified statutory period, “then his application cannot be denied based solely on his prior criminal record.”Kudos to Mr. Hovsepian’s attorney, Matt Millen!
- Comprehensive Immigration Reform in 2005? – The Bush Administration seems intent on enacting a guest worker program before the end of this year. They have presented a detailed plan for such a program to a select group of Senators and Representatives. The Bush plan would allow undocumented workers to become guest workers without having to leave the U.S. if they agreed to pay a substantial fine. However, after a certain number of years, each guest worker would have to leave the U.S. The anti-immigration wing of the Republican Party is opposed to legalizing illegal aliens while the pro-immigration wing of the Democratic Party is opposed to any plan which would not provide a means for guest workers to become permanent residents. Howard Berman (D-CA), a long-time supporter of immigrant rights stated that families with deep roots in America would not register for a guest worker program which failed to offer them permanent residence. Still, he held out the hope that a compromise solution could be reached. Speaking about the Bush Administration, he stated that “the most positive thing to me is they seem deeply committed to a comprehensive approach.”During the past fiscal year, a record of 460 persons died trying to cross the border from Mexico in the U.S. This number surpasses the previous high of 383 deaths in 2000. Now that the Border Patrol has made it increasingly more difficult to cross the border into California and Texas, the majority of deaths occur in the Arizona deserts. Over 3,600 migrants have died trying to cross the border since the U.S. government instituted Operation Gatekeeper in 1994.
- H-1B Visas– Many cap-subject H-1B visas are still available despite CIS’ announcement that the 65,000 cap was reached on August 10, 2005. Firstly, according to the CIS chart which was last updated in early September, there were thousands of H-1B numbers available in fiscal year 2005 (which ended on September 30, 2005) to persons with advanced degrees from U.S. universities. Furthermore, in the current fiscal year (which ends on September 30, 2006), there are still more than 7,000 H-1B numbers available to such persons. Finally, the CIS is required to recapture up to 6,800 H-1B numbers not used by citizens of Chile and Singapore under the Free Trade Agreements that the U.S. has with these countries. On September 20, a bipartisan group of U.S. Senators wrote to DHS Secretary Chertoff asking him to do just that.
- L-1 Fee Increase? – On September 29, the House Judiciary Committee approved H.R. 3648 by a vote of 20-6. The bill, introduced by Chairman James Sensenbrenner (R-WI), would impose a $1,500 fee on the following: L-1 applications filed pursuant to a blanket L; initial L-1 petitions filed with DHS; and first-time L-1 extensions. The money collected through the proposed fee would not be used to support the L program but, instead, would be deposited for general use into the U.S. Treasury.
- Washington Update– Periodically, the American Immigration Lawyers Association (AILA) publishes its “Washington Update” which brings readers the most up-to-date news about legislation, regulations, congressional hearings and other immigration-related developments from inside the Beltway.
As we predicted in our September newsletter, the October 2005 Visa Bulletin is very bad news for persons immigrating through employment.
The EB-3 category (professionals and skilled workers), which has been unavailable all summer, is severely backlogged, to March 1, 2001 worldwide, with even a longer wait for persons born in China, Mexico and especially India (over 7 years).
The EB-2 category (persons with advanced degrees and those with exceptional ability) is current worldwide, but backlogged to May 1, 2000 for Chinese and to November 1, 1999 for Indians.
Even the EB-1 category, the Brahmin caste of priority workers, while current worldwide, is backlogged to August 1, 2002 for persons born in India, and to January 1, 2000 for persons born in mainland China.
* Why did the backlogs form?
U.S. immigration laws contain quotas for immigrants which are dictated by the category in which they are immigrating and by their country of birth.
There is a numerical cap on employment-based (“EB”) immigrants of 140,000 per year (plus the 50,000 immigrant visas for Schedule A professionals and their families, although it is important to remember that this is not 50,000 per year, but simply a one-time allotment).
These recaptured numbers were almost completely used up during the past year. The quota reverts back to 140,000 this year (plus 8,000 recaptured EB numbers and 8,000 unused family-based numbers), a 40% decrease in EB numbers.
So much for the supply side. The other factor which determines the priority dates is the huge demand for EB visas.
Here, the numbers dwarf the 156,000 available slots many times over. Consider that the numbers in the Visa Bulletin only regress as immigrant visa petitions are approved. This means that those 348,000+ persons with pending labor certificates at DOL Backlog Elimination Centers have not been factored into the equation. Imagine that only two-thirds of this total will ever be approved and EB petitions submitted on behalf of the employees. That would bring the number down to 200,000. However, remember that the 156,000 EB quota includes not only principal applicants but also their spouses and children. So, in reality, the number of potential EB immigrants whose cases are currently at the Backlog Elimination Centers will, no doubt, exceed 500,000. This could cause the EB numbers in the Visa Bulletin to regress another 3-4 years.
And how about persons with pending EB petitions, those with pending PERM applications, and those of you at the caboose of the train who are simply getting ready to file PERM applications?
It’s enough to make your head swim!
* What is the Outlook for the Future?
If you ever took Economics 101 in college, you know that as the supply diminishes, and the demand increases, the price of the commodity rises.
When calculating what future Visa Bulletins may look like, it may be useful to think of the rise in the price of oil during the past few months. As the economies of developing countries continue to expand, the demand for oil rises. In developed countries, especially the U.S., demand for gas guzzling SUVs and trucks may be dropping, but owners of these vehicles are not driving them to the junk yards and trashing them immediately.
At least in the case of oil, increased prices spur more exploration which increases the supply. Since the number of EB visa numbers available is, on the other hand, purely an artificial construct, a huge increase in demand does not necessarily result in an increased supply of visas.
One additional analogy to oil is apt. What about alternative fuels like natural gas, coal, solar energy, etc.? The United States is not necessarily the only country of destination for skilled professionals. Given the huge visa backlogs, scientists and engineers and computer professionals choose alternatives to the U.S. and go to Europe, Canada or Australia, or perhaps to countries like Iran.
Unless Congress acts to increase the EB quotas, the backlogs are certain to lengthen rather than diminish. Look for the worldwide EB-3 category to retrogress further during this fiscal year or even become unavailable, and for the worldwide EB-2 category to backlog.
The State Department, in its notes to the October 2005 Visa Bulletin, puts it in a more diplomatic language:
“Item D in the Visa Bulletin (number 85) announcing the September cut- off dates provided information regarding the prospects of visa availability during the early months of FY-2006. Many categories have become oversubscribed for October, and cut-off dates established due to continued heavy demand for numbers by CIS for adjustment of status cases. Forward movement of the cut-off dates in these categories is likely to be limited.”
We link to the October 2005 Visa Bulletin from https://www.shusterman.com/statedepartmentvisabulletin/
The question remains how, in light of this immigration version of Hurricane Katrina, you can protect yourself and your family? We have compiled some useful tips for you and your attorney in Topic #6 below, “EB Visa Numbers Retrogress: Developing a Winning Strategy”.
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.
On September 20, the State Department announced that the Diversity Visa Lottery for fiscal year 2007 (DV-2007) will begin on noon EST on October 5 and end at noon EST on December 4, 2005.
The 50,000 winners be interviewed and granted permanent residence between October 1, 2006 and September 30, 2007. All applications must be made online.
Generally, persons from the following countries are ineligible to apply: Canada, China (PRC), Colombia, the Dominican Republic, El Salvador, Great Britain, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Poland, Russia, South Korea and Vietnam.
However, there are a number of exceptions listed in section 202(b) of the Immigration and Nationality Laws. For example, if a man born in India is married to a woman born in Sri Lanka, both spouses may apply. Similarly, if a woman born in the Peoples’ Republic of China is married to a man born in Hong Kong, both spouses may apply.
For the first time, the State Department will issue a notice of receipt containing the name, date of birth, country of chargeability, and a time/date stamp to each person who successfully registers online.
Due to complaints that it was sometimes difficult to register online last year, the State Department is tripling the number of servers used in the registration process.
There is no fee to register for the visa lottery, and it is not necessary to hire an attorney to apply. However, since the State Department notifies approximately 100,000 persons that they are “winners” and only half of these applicants actually obtain permanent residence, we think that it is wise to retain the services of an experienced immigration attorney should you be selected.
We link to the Official Instructions and an extensive FAQ regarding the DV-2007 Visa Lottery issued by the State Department from our “Lottery” page at https://www.shusterman.com/greencardlottery.html
As we stated in Topic #1 above, on October 1, 2005, immigration priority dates in the EB-1 and EB-2 categories severely retrogressed for nationals born in China and India, potentially causing them to have to wait years before they can file their Adjustment of Status applications and gain lawful permanent residency. In anticipation of this impending retrogression of visa numbers, our staff worked diligently to timely file combined I-140 Immigrant Petitions and I-485 Applications for Adjustment of Status to Permanent Resident for our clients subject to the October 1 deadline.
Their hard work paid off for our clients. Take, for example, Dr. L., a Chinese national working as a researcher for a major research institution and Dr. G., an Indian national conducting research for a prominent developer of wireless telephone systems. Both Drs. clearly qualify as Outstanding Researchers under the EB1-2 category, but might have had to wait years to be able to apply to adjust status if we submitted their applications to the USCIS after the October 1 deadline. Quickly assembling the large volumes of material required to file these highly complex cases, we managed to file I-140/I-485s on behalf of both Drs. just in the nick of time. They are now in line to be able to Adjust Status.
Retrogression of visa numbers have also required us to work as quickly as possible within the framework of the Department of Labor’s (DOL) new PERM system. As our readers are aware, the DOL this year introduced PERM as a purportedly faster and more efficient method of obtaining labor certification—approval from the DOL that no qualified American workers are available to assume a given position. Such certification is the first step toward obtaining lawful permanent residency in the United States through employment.
Despite a number of glitches in the rollout of the new PERM system, it is now running relatively smoothly and in the past few weeks alone we have obtained a number of approvals. This was especially crucial for one of our corporate clients, a prominent semi-conductor company based in Illinois and for which we had filed PERM applications on behalf of several of their employees. As the October 1 deadline approached, we were especially worried that these employees would be unable to apply to adjust their status for years due to the retrogression of visa numbers.
Consider the case of one of their employees, Mr. X., a Systems Engineer who qualified for the EB-2 immigrant visa category because his position requires a Master’s degree or higher. Unfortunately for Mr. X., a Chinese national, on October 1 of this year priority dates in the EB-2 category are to retrogress all the way back to May 1, 2000.
Fortunately for Mr. X. and several of his colleagues, we saw the retrogression coming, and filed PERM applications for them as quickly as possible. Just this month, moreover, we received approvals for their PERM applications just in the nick of time, and were able to file I- 140/I-485 applications for Mr. X. and two co-workers all in the same week in late September, just ahead of the deadline.
Ultimately, our staff’s hard work ahead of the October 1 retrogression deadline, combined with “plain old luck”, resulted in saving numerous clients years of waiting to apply for a green card.
Editor’s Note: If my almost 30 years of immigration law experience has taught me one thing, it is this: “The harder you work, the luckier you get!”
Given that an EB priority date may not be the hottest ticket in town for achieving permanent residence for many persons, and that there is always the possibility that your job or your employer won’t last until you get your green card, what strategies can you adopt to make sure that the United States will be your permanent home?
In this article, we offer you some suggestions based upon nearly 30 years of practicing immigration law. Further suggestions will be forthcoming in our November 2005 newsletter.
* Keep Renewing Your H-1B Status
Persons who apply for adjustment of status often scrap their H-1B status in favor of using their Employment Authorization Documents (EADs) to work and their Advance Paroles to travel. In a world of backlogged EB visa numbers, this is not a wise strategy.
AC-21 (“The American Competitiveness in the 21st Century Act of 2000”), section 106(b) provides that “The Attorney General shall extend the (H- 1B) stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.”
Why would you want to pay increased attorneys fees and sizeable government filing fees for the privilege of renewing an H-1B status that you don’t really need anymore?
For starters, what if your application for adjustment of status is denied? Under the Immigration Services current interpretation of section 245(k), time spent in the U.S. working with an EAD and a pending I-485 is not “status” for purposes of refiling your I-485 application. See Topic #6 in our September 2005 newsletter. Remember, it applies to other EB applicants, not just nurses. Also, see a sample denial under section 245(k) at https://www.shusterman.com/pdf/245kdenialimmigration2005.pdf
Why would your I-485 be denied? For all sorts of unpredictable reasons. I recently spoke with a man whose I-485 was denied in 2005 because the Immigration Service suddenly decided to revoke his National Interest Waiver which it had approved several years before. Furthermore, given the longer EB waiting times, what if your employer goes out of business before you get your green card?
With H-1B status, you could simply “port” to another employer and file a new PERM application. You might even be able to retain your original priority date!
* Keep Renewing Your H-1B Even After Six Years
Most of our readers know that AC-21 allows you to keep renewing your H- 1B past six years if either labor certification or your immigrant visa petition was pending longer than one year. AC-21, section 106(c).
Fewer persons know that, under AC-21, section 104(c), they may receive extensions of their H-1Bs past six years if they cannot adjust status due to per-country visa limits.
Frequently Asked Questions about AC-21 at https://www.shusterman.com/ac21frequentlyaskedquestions.html
* Change Your Underlying Nonimmigrant Status to H-1B
Let’s assume that you cannot take advantage of either of our first two pieces of advice because you are not in H-1B status, but are in another type of nonimmigrant status (e.g., L-1). Remember that nonimmigrant statuses are not mutually exclusive. Many persons in L-1 or J-1 or E-1 status may also qualify as H-1B professionals. If you are one of these persons, when you are able to do so, you may want to encourage your employer to apply to change your status to H-1B so that you will be able to obtain extensions of status right up the day that your get your green card.
Editor’s Note: We’ve got a LOT MORE ADVICE, and will be dispensing it on a month-by-month basis.
It was in September 1995 when our web site went online.
At that time, we were strictly a local law firm. Most of our clients, corporate and individual, were located in California. Ten years later, most of our clients are out-of-state. Our largest corporate client is a management consulting firm located in New York. Our newest corporate client is a hospital in Mississippi. Most individuals for whom we obtain temporary visas and permanent residence schedule telephonic consultations, and we obtain benefits for clients everyday who we seldom meet in person.
Ten years ago, it was very difficult for non-attorneys to obtain information about U.S. immigration laws and procedures, much less forms and processing times, either online or in print.
We decided that after almost 20 years of writing articles about immigration in newspapers and professional journals that the web was the perfect medium for disseminating both existing and new immigration information to the public.
For starters, an article on the web was different from a newspaper article in that it remained available online permanently. Also, since our readers and clients are worldwide rather than in a specific locality, it was important that our articles remain available 24/7/365.
Who writes the articles on our web site and in our newsletter? I do. I often chuckle when I receive an e-mail message thanking “our staff” for writing this or that article. However, in the past few years, I have enlisted several members of our law firm to write selected articles for our newsletter. Our site is content-rich, which is a polite way of admitting that it is far from pretty. Obviously, it has been designed by me for ease of navigation, and not by a graphic artist. Still, it has aged fairly well. See prior versions of our web site on the “Way Back Machine” at http://www.archive.org/
You can see the way our site looked as far back as December 23, 1997 and at various times since then.
As the immigration-related government pages have progressively improved, I save a lot of time by linking to information contained on official web sites. We link to every conceivable immigration form, processing time and changes to the laws, regulations and policies.
And even though sometimes I wish every one of our 10,000 daily readers would become our client, if this actually occurred, I would have to increase the staff at our law firm from 20 to over 200, leaving me little time to work on the web site.
In truth, at least 1,000 of our daily readers, and 6,000 of our subscribers to our newsletter, are attorneys and paralegals from other law firms. I am happy to share information with them, and they have rewarded me by referring thousands of new clients to our law firm.
Unfortunately, two or three times, other attorneys have copied our web site word-for-word, and tried to pass it off as their own. Each time, one of my colleagues in the immigration bar has notified me of the copyright violation. I have notified the offenders of their potential liability, and they have removed our content from their sites.
Over the years, we have broken many new immigration-related stories, the latest being the retrogression of EB priority dates in the October 2005 Visa Bulletin. With our easy-to-update news ticker, we can bring a story to the attention of our readers in a matter of seconds, far ahead of newspapers, magazines, radio and television. Many reporters get ideas for immigration stories by reading our newsletter and calling us.
It’s been a rewarding 10 years for me, and also for my wife (even though she jokingly refers to herself as a “Web Widow”) who often helps me with the site. Sample conversation between us: “Sweetie, I’m in the middle of a consultation at the office, and the new Visa Bulletin is out. Could you update the numbers on the site, and change the news ticker while you’re at it?”
Last, but not least, thanks to you, our readers, for supplying me with thousands of news tips, informing me about broken links, and especially for using our site to immigrate to the United States, often without having to pay an attorney. It is you who reinvigorate our country, making the U.S.A. such a wonderful and diverse place in which to live!
- October 11, 2005
Disney’s Contemporary Resort
3:30 – 4:30pm
Topic – Immigration and Foreign Nurses
Breakout Session 324
Nursing Management Congress 2005
- November 17, 2005
San Francisco, California
9:00 – 10:00am
Topic – Return to the Virtual Border: Update from the Department of State and the Department of Homeland Security
Practising Law Institute’s 38th Annual Immigration and Naturalization Institute
- June 7, 2006
Orange County, California
10:00am – Noon
Topic – Hiring Foreign-Born RNs and Allied Health Care Professionals
Pacific Coast Association of Health Care Recruiters
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),
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550, Los Angeles, California 90017, Phone: (213) 623-4592 Fax: (213) 623-3720
October 2, 2005
“For anyone really trying to untangle the immigration mess, the most taxing problem is how to draw those illegal workers out of the shadows and into the system. If a new immigration plan gives them work for a few years and then sends them home before they can apply to return, many will opt to stay underground. That is why it makes more sense to give these workers the choice of trying to stay here – even if it means a substantial fine and a longer wait to get a green card. The most workable bill, a bipartisan effort by Senators John McCain and Edward Kennedy, puts the fine at $2,000 and sends these applicants to the end of the line. That is the least America could do for people who do so much of our dirty work.”
– New York Time Editorial (September 26, 2005)
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