Newsletter US Immigration Update September 2008
Volume Thirteen, Number Eight
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.
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 Update September 2008
TABLE OF CONTENTS:
- 1. Immigration Legislation: EB Recapture and RN/PT Bills
- 2. Immigrants List: How You Can Impact Immigration Policy
- 3. Fragomen Law Firm Sues U.S. Department of Labor
- 4. Schedule of Upcoming Immigration Law Seminars
- 5. Success Story: 245(i) – Turning Denials into Approvals
- 6. Immigration Trivia Quiz: Immigrate in Order to Educate
- 7. Ask Mr. Shusterman: Little-Known Solutions for J Visa Holders
- 8. Immigration Government Processing Times
- 9. Chat Transcripts, Audios, Videos and WebCasts
- 10. Winner of August 2008 Immigration Trivia Quiz
- BIA Chairman– The Attorney General has appointed Juan Osuna to be the new Chairman of the Board of Immigration Appeals (BIA). As a scholar, professor, editor and Board member since 2000, we firmly believe that Mr. Osuna will be an excellent Chairman of the BIA.”His appointment is extremely important and hopefully a symbol that the Justice Department recognizes it can’t have credibility in the legal community if it does not have an impartial and neutral face,” said Lory Rosenberg, a former BIA member who left the board in 2002. “I have immense respect for him. He is a very sharp, analytical thinker who knows immigration law inside and out.”Mr. Osuna, a native of Columbia, is the first Latino to chair the BIA.In our opinion, the BIA can only fulfill its responsibilities if it is properly funded, and if the 2002 “streamlining reforms” initiated by former Attorney General John Ashcroft are rolled back. See our 2002 article entitled “Proposed BIA Regulations Would Make Mockery of Due Process” at
Congress should restore the traditional authority of the Federal Courts to review the decisions of the BIA. In our view, it is never wise to give government agencies the power to issue decisions which are not subject to review by the judicial branch of the government.
- CSPA Precedent Decisions? – “Speech after long silence” wrote poet W.B. Yeats. Though Yeats wrote these words early in the 20th Century, they aptly describe the USCIS’ belated response to the Child Status Protection Act of 2002 (CSPA). Despite having issued numerous memos regarding the CSPA during the past six years, the USCIS has studiously avoided revealing its interpretation of the “automatic conversion” language in section three. This language prevents “aged-out” sons and daughters of permanent residents from having to return to the back of the line once their parents qualify for green cards as long as they were children when the original petitions were submitted years ago. In two cases pending before the BIA, Matter of Wang and Matter of Patel, the government has filed supplemental briefs which assert that CSPA’s automatic conversation section is nothing more than “the codification of an already established regulatory practice.”The USCIS states that the language of the law is “unambiguous”. However, the BIA, in Matter of Garcia, a nonprecedent decision, strongly disagrees with the USCIS’ interpretation of the automatic conversion clause. See
The USCIS has moved that the BIA adopt their restrictive reading of the automatic conversion clause and designate Matter of Wang and Matter of Patel as binding precedent decisions. We link to the USCIS briefs in both of these cases from our “CSPA” page at
Scott Bratton, the attorney for the Wang and Patel families, will be submitting briefs in opposition to the USCIS. We will post both of these briefs online.
With regard to our pending Federal lawsuit regarding the “automatic conversion” clause, Cuellar de Osorio v. Scharfer, the government’s answer to our complaint is due on September 22nd,. Our complaint is available online at
- DOL Debarments– When an employer willfully violates Labor Department (DOL) rules in the PERM, H-1B or H-2A processes, the ultimate penalty is to “debar” the employer from sponsoring foreign-born employers in these categories for a specific period of time. We link to lists of employers debarred by DOL from the PERM or the H-2A programs from our “PERM” page at
https://www.shusterman.com/perm/#4 H-1B program from our “H-1B” page at
We also link to DOL’s Fact Sheet entitled “What is a Willful Violator?” at
http://www.dol.gov/esa/whd/regs/compliance/FactSheet62/whdfs62S.pdf (Link no longer operational)
- H-2B Cap Reached– On July 30, the USCIS announced that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first half of Fiscal Year 2009 (FY2009). USCIS notified the public that July 29, 2008 was the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to April 1, 2009. The “final receipt date” is the date on which USCIS determines that it has received enough cap- subject petitions to reach the limit of 33,000 H-2B workers for the first half of FY2009.
- L-1B Specialized Knowledge– On July 22, the Administrative Appeals Office (AAO) issued a 43-page unpublished decision which restricts what qualifies as “specialized knowledge” for the purpose of qualifying for an L-1B visa. The decision notes that a worker’s “knowledge will not be considered ‘special’ or ‘advanced’ if it is universally or even widely held throughout the company.” The AAO also discusses qualifying relationships, new offices, and the effect of agency memoranda on the AAO. We link to the AAO decision from the “Related Pages” section of our “Intracompany Transferees” page at
- Naturalization Times to be Reduced– On August 11, the USCIS announced that as of September 2008, the agency expects processing times for naturalization applications to be reduced from 16-18 months to 10-12 months. We link to the projected times on a district-by-district basis from our “Citizenship” page at
- Passport Card– On August 8, the USCIS announced that the new Passport Card now being issued by the State Department qualifies as a List A document (proof of identity and of employment authorization) for I-9 purposes.
- Physician “How To” Videos– Following the advice of one of our subscribers, we took our 42-minute Kaplan physician video, and split it into eight separate videos and posted them on “YouTube”. They are accessible both from our “Physicians” page at
and from our “You Tube” page at
Topics include the following:
- Physician Immigration: A Step-by-Step Guide
- J Status for IMGs: The Consequences
- J Waiver Requirements and O-1 Visas
- Conrad 30 Waivers
- Federal Interested Government Agency Waivers
- Hardship and Persecution Waivers
- Obtaining Permanent Residence Using PERM and/or NIWs
- Obtaining Permanent Residence: Non-Employment-Based
- Scheduled Departure Program– If a “compassionately conceived enforcement initiative” sounds like an oxymoron, this is probably why only eight persons out of over 500,000 took advantage of the ICE’s pilot “voluntary deportation” program which lasted from August 5 to the 22nd.It all started with the following quote from ICE’s Acting Chief on July 31: “This program addresses concerns raised by aliens, community groups, and immigration attorneys who say ICE unnecessarily disrupts families while enforcing the law,” said Julie L. Myers, Homeland Security Assistant Secretary for ICE. “By participating in the Scheduled Departure Program, those who have had their day in court and have been ordered to leave the country have an opportunity to comply with the law and gain control of how their families are affected by their removal.”The idea was that a goodly proportion of the persons under Final Orders of Removal/Deportation with no criminal histories could avoid early morning home visits by armed ICE agents by voluntarily appearing at one of five participating ICE offices (Santa Ana, San Diego, Chicago, Phoenix and Charlotte). The ICE officers would assist these folks in arranging transportation back to their home countries within 90 days. To the government, this seemed like a reasonable alternative to arrests, guns, jail, uniformed officers, all in front of one’s spouse and kids.ICE knocked themselves out to make the program user-friendly: print and radio ads in several languages, a toll-free turn- yourself-in hotline, and online info on how to get to your nearest ICE office, even MapQuest! What more could you ask for?Pro-immigration groups ridiculed ICE’s Scheduled Departure Program a “PR gimmick” and the “Theatre of the Absurd”. They pointed out that ICE has so often been accused of violating immigrants’ rights that even certain Members of Congress have referred to ICE as the “Gestapo”. With detention facilities at full capacity and backlogs at Immigration Courts expanding, they accused ICE of trying to play the humanitarian card in order to state “Well, we tried to do this the nice way. Obviously, illegal aliens only understand force!” If a person truly desired to return home, he could do so without paying a visit to his local ICE office.We link to both the ICE press releases and to criticism of the program from our “ICE” page at
By the end of August, the “kinder, gentler” approach was a thing of the past. ICE launched its biggest raid of the year arresting almost 600 illegal workers at a plant in Mississippi.
Whether we are talking about 8 workers or 600, none of this makes much of a dent in the estimated 10-12 million illegal immigrants in our country. There are only 100 ICE fugitive operations teams nationwide. Even if taxes were raised on every American, and this number was increased ten-fold, it wouldn’t have much impact on the number of undocumented workers in the U.S. This is an area where the laws passed by Congress must conform to the laws of economics, not the other way around.
As an ex-INS prosecutor, I am firmly convinced that any “enforcement-only” approach is doomed to failure. It is worth noting that both Senator McCain and Senator Obama seem to agree with me on this issue.
- Temporary Protected Status– On August 14, the USCIS announced that it was extending the Temporary Protected Status (TPS) of certain persons from Sudan for an additional 18 months.
- Visa Bulletin– The September Visa Bulletin shows the EB-2 visa numbers for persons born in India and mainland China advanced two months to August 1, 2006 on September 1st. To view the September 2008 Visa Bulletin, see our “Visa Bulletin” page at
1. Immigration Legislation: Congress Returns to D.C. on 9/08
Senators and Members of Congress recessed and returned to their home districts on August 1st. Congress is scheduled to reconvene on September 8th. Although there are a number of immigration benefits bills that have yet to be acted upon, it is expected that Congress will only meet for a short time before recessing again in order to campaign for the November elections.
Don’t expect Comprehensive Immigration Reform, the DREAM Act or an AgJobs bill to be passed in the waning days of the 110th Congress.
What may be possible is some piecemeal reform. High on the list are bills which would:
A) Extend the Conrad 30 Waiver Program for Physicians
B) Extend the EB-5 Regional Center Investment Program
C) Extend the Temporary Religious Worker Program
The above three bills, along with an extension of the “E- Verify” enforcement program are likely to be signed into law during September and October.
Two other bills have a chance of passage, but your strong support is necessary.
D) A bill which would recapture approximately 500,000 immigrant visas which were lost between 1992 and 2007. Approximately 300,000 of these green cards are in the employment-based categories while the other 200,000 are in the family-based categories. It is expected that this infusion of visa numbers would make the EB-2 and EB-3 categories “current” for the first time in several years.
E) A bill which would allow 20,000 registered nurses and physical therapists to immigrate each year for the next three years. Most sponsoring employers would pay a $1,500 surcharge to help train U.S. workers for these jobs. Family members (spouses and unmarried children) of these RNs and PTs would be able to immigrate without regard to the quotas.
You can e-mail your Senators and Member of the House of Representatives by entering your zip code into the “Write to Congress” box near the bottom of the page at
and clicking on the word “Go”.
Let your elected representatives hear from you. The anti- immigrant folks are already busy trying to defeat these bills. If you are really serious about getting positive immigration laws passed, please read the next article and take action.
2. Immigrants List: How You Can Impact Immigration Policy
by Josh Gray, Executive Director of Immigrants List
During the 2006 election, a group of immigration attorneys decided they were tired of the anti-immigrant rhetoric they were seeing in commercials at home and hearing from politicians in Washington. They decided it was no longer time for tough talk; it was time for action. So, they came together and formed an organization based on their shared concerns. They called the new group Immigrants’ List (IL) and, in just one week, they raised over $120,000 to support pro-immigration candidates.
IL is the first political action committee of its kind. It represents a turning point in the fight to elect pro-immigration candidates. IL will support candidates – regardless of political party – who will work for meaningful immigration reform and oppose those who use immigration as a political tool to divide the American people.
IL is working to build a pro-immigration majority in Congress by electing members dedicated to reform. IL is also working to defeat members who use fear and misinformation to support their anti-immigration agenda. IL has given a voice to Americans everywhere who support reforming our broken system. By doing so, IL will continue to change the conversation in Washington.
As a bipartisan pro-immigration PAC, IL is interested in truly making a difference in the quest for immigration reform. So far this campaign season, we have financially supported fourteen candidates, from Dennis Shulman (D)-NJ to Jeff Flake (R)-AZ.
Immigration is a fundamental part of our social, economic and political life. Immigrants of all backgrounds have been integral to the continued growth and prosperity of America. Right now, our immigration system is broken. Many members of Congress seem content to use immigration as a political tool, rather than pursuing the reform the American people need.
As IL’s message has spread, it has continued to grow. Unlike the anti-immigrant minority, most people are fed up with do- nothing Congresses. They want change. They want progress. They understand the importance of immigration reform.
Together, we will change the tone of the immigration debate in Washington. Rather than supporting the politics of fear, division, and terror, IL will fight for those candidates who understand that people from all parts of the world make essential contributions to our country. It is time to prove to members of Congress that supporting immigration reform will help them win elections. Immigration reform not only makes policy sense, it also makes political sense.
IL’s members come from across the country, united by a dedication to bringing about the meaningful immigration reform America so desperately needs. Help build IL by becoming a member today! To contribute, go to
Feel free to contact our Executive Director, Josh Gray, at 202-939-8644 or
should you have any questions.
3. Fragomen Law Firm Sues U.S. Department of Labor
On August 8, the Fragomen law firm sued the U.S. Department of Labor (DOL) in Federal Court in Washington, D.C.
The law firm, which has 2,500 PERM applications in the pipeline, was informed by the DOL in June that each of their PERM applications will be “audited”. See Topic #2 in our August 2008 newsletter entitled “Department of Labor Initiates Immigration Crackdown”.
The Complaint states that unaudited PERM applications are decided in approximately 21 days while audited applications take 12-16 months to decide. It alleges that if the existing regulations are allowed to stand, employers could lose the services of valuable employees. Finally, the complaint states that “it is not inconceivable that the (Fragomen) firm could be put out of business before it even has a chance to demonstrate that it committed no improper conduct…”
At issue are four words which DOL added to the PERM regulations at 20 CFR 656.10(b)(2)(i) : “It is contrary to the best interests of U.S. workers to have the alien and/or agents or attorneys for either the employer or the alien to participate in interviewing or considering U.S. workers for the job offered the alien.” (Emphasis added.)
In the case of pre-PERM applications for labor certification, employers routinely consulted with their immigration attorneys whenever a seemingly qualified U.S. worker applied for a job in response to an advertisement.
I remember a case where a client was seeking the services of a Spanish-speaking record producer. To the surprise of the employer, the record producer of one of the most popular groups in the United States responded to the advertisement even though the prevailing wage of the advertised job was probably only a small fraction of his annual income. One of our attorneys advised the employer to speak with the record producer and ask him if he was prepared to work 40 hours per week with the employer as the advertisement called for, or whether he was looking for freelance employment as she suspected. The employer followed our advice, and sure enough, the record producer revealed that he was not interested in full-time employment. The employer informed the government of this fact, and the application for alien labor certification was approved.
Now, because of the four little words inserted in the PERM regulations, attorneys are no longer permitted to advise employers once they have received resumes in response to a job advertisement.
According to Fragomen’s complaint filed in Federal Court, sometime in the recent past, the DOL became aware of three papers issued by the law firm to their clients. “Each contains a statement advising clients to call their Fragomen lawyer if the recruitment process produces a job applicant who appears to the client to be ‘qualified'”.
The complaint states that, at a meeting between the DOL and Fragomen attorneys on May 8, 2008, “the Department expressed concern that these papers suggested Fragomen had engaged in a ‘pattern or practice’ of unlawful behavior by communicating with clients who believed they had found qualified U.S. job applicants.”
In early June, the DOL announced that they would audit all of Fragomen’s pending PERM applications.
According to Fragomen’s complaint in Federal Court, the DOL threatened to prevent (“debar”) the law firm from filing PERM applications in the future unless they complied with the government’s demands that their attorneys reveal certain information to the DOL that the law firm considers to be subject to the attorney-client privilege.
Accordingly, on July 6, Fragomen and the DOL signed an agreement in which, the complaint alleges, Fragomen was forced to promise that they would follow the disputed DOL regulations unless and until they were overturned by a Federal Judge. In return, the DOL promised not to automatically audit future PERM applications filed by Fragomen.
In its complaint, Fragomen alleges that the DOL regulations are unlawful, and that they violate both the 1st and 5th amendments to the Constitution.
The complaint contains the following seven counts:
Count I – Agency Action in Excess of Authority Count II – Unlawful Interpretation of Regulation Count III – Promulgation of New Regulatory Requirements Without Notice or Comment Count IV – Arbitrary and Retroactive Application of New Rule Count V – Violation of First Amendment Rights Count VI – Violation of Due Process Rights Count VII – Unlawful Retaliation Based on Exercise of Constitutional Rights
In addition to their 63-page Complaint, the Fragomen law firm filed an 82-page Motion for a Preliminary Injunction requesting that the Federal Court enjoin the DOL from enforcing their regulation which prohibits attorneys from communicating with their “employer clients” after resumes are received about whether the applicants meet the minimum requirements for the job. The Motion also seeks to prohibit the DOL from taking seven other actions.
On August 29, the DOL appeared to back down from its previous position when it issued a memorandum which acknowledges that immigration attorneys may provide legal advice after the employers receive resumes from their PERM advertisements. What attorneys are prohibited from doing is: (1) screening resumes before the employer has a chance to do so; and (2) interviewing job applicants.
Is this the end of the Fragomen audits? Not according to the DOL. We will continue to cover this important issue for our readers.
We link to the Complaint, the Motion for a Preliminary Injunction and various other documents and opinions relating to the case including the DOL’s August 29th memorandum from our “PERM” page at
We will continue to follow this important issue as a service to our readers.
4. Schedule of Upcoming Immigration Law Seminars
- September 11-12th
Life Skill Institute, Inc.
The R4 Conference 2008
Scottsdale Resort and Athletic Club
Topic: Assisting employers in obtaining the services of foreign-born workers who qualify for temporary visas and/or permanent residence. Insuring that employers comply with all applicable immigration laws.”
- September 25th, 8:30am
Los Angeles, California
Los Angeles Country Bar Assoc.
Immigration Law Training Course
Topic:“Introduction to Immigrant Visas”
- September 25th Noon
Santa Barbara, California
American Payroll Association
Topic: “Immigration Law for Employers”
- October 23-24th
San Antonio, Texas
University of Texas Law School
Immigration and National Law
Topics: 8:30am “Of Counsel – Breakfast with the Experts”
3:45pm “Using the Internet to Stay Current with
Immigration Laws, Procedures, and Agency Interpretations”
- November 7-8th
Puerto Vallarta, Mexico
American Immigration Lawyers
Texas Chapter Fall Conference
Topic:“Child Status Protection Act”
- November 13-15th
San Francisco, California
21st Annual AILA California
Topic:“Federal Court Litigation”
5. Success Story: 245(i) – Turning Denials into Approvals
The path to obtaining the lawful permanent residence in the United States can be a long and winding road, full of treacherous bends. Unless you have a good navigator, or perhaps even an alchemist, to assist you, there is a high risk of losing your way.
During the Middle Ages, alchemists were known for turning lead into gold. Sometimes, immigration lawyers are called upon to save immigrant families by practicing an updated form of alchemy.
Consider a recent case where our attorneys assumed this role:
6. Immigration Trivia Quiz: Immigrate in Order to Educate
7. Ask Mr. Shusterman: Little-Known Solutions for J Visa Holders
Are you subject to the two-year home residency requirement because you obtained an exchange visitor (J-1) status? If you plan to apply for a J waiver, see
If you do not plan to apply for a J waiver right away, do you have any other options to stay and work in the U.S.?
Be aware of the following options:
- If you want to attend a university in the U.S., the two-year home residency requirement does not prevent you from obtaining an F-1 student visa. Once you graduate, you will be eligible to work for 12-27 months in the U.S. under “optional practical training”. Furthermore, if you are qualified, you may later change your status from F-1 to H-1B;
- The two-year home residency requirement only applies to H and L visas and to permanent residence. Therefore, if you qualify for an O-1 visa as a person of extraordinary ability or any other type of working visa (e.g., E-1, E-2, O-2, P, etc.), you may do so;
- Finally, if you are exempt from having to obtain a visa in order to work in the U.S., the home residency requirement is not an obstacle. For example, Canadian citizens are exempt from obtaining most types of temporary visas. Canadian physicians who have not received J waivers are permitted to work in the U.S. in H-1B status. Furthermore, if these physicians practice in medically-underserved areas, this time counts toward their five-year service requirement if they immigrate through National Interest Waivers.
Is your J visa situation complex? You may want to read the Success Story of a woman who was subject to the two-year home residency requirement, obtained an F-1 student visa abroad, reentered the U.S., attended school, applied for asylum, was placed under removal proceedings, married a U.S. citizen, had a U.S. citizen child, and eventually became a lawful permanent resident. See
Do you have immigration questions of general interest to our readers? Send them to
email@example.com (Link no longer operational)
Each month we choose one question to answer in our newsletter. To be considered, questions should be general in nature, and should be short and to the point (no more than 20-30 words).
If your question is neither short nor general, please schedule a 30-minute legal consultation with me at
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. Chat Transcripts, Audios, Videos and WebCasts Chats
10. Winner of the August 2008 Immigration Trivia Quiz
Here is the letter that we received from our winner:
Dear Mr. Shusterman,
1. Tanith Belbin (Canada) Silver, 2006 Olympics in Turin for Ice Dancing
2. Bernard Lagat (Kenya) Silver in 2004 Athens Olympics and Bronze at 2000 Sydney Olympics at 1500 m race; Gold medals in 2007 Osaka World Championships at 1500m and 500m race
3. Lenny Krayzelburg (Odessa/ now Ukraine) Gold medalist in 2004 Athens for 4x100m Medley, Gold in 2000 Sydney Olympics for 100m and 200m backstroke and 4x100m medley
4. Gao Jun (China) 1991 World Champion in Women’s Doubles, 1992 Olympic silver medal in Women’s doubles, 1996-1998 U.S. National Champion in Women’s singles, doubles, and mixed-doubles
To the wonderful folks at Shusterman’s Immigration Update:
After reading your last newsletter and viewing the Trivia Quiz, I decided to give it a shot since my family and I are very interested in the Olympics. I knew Bernard Lagat from Kenya, so I was able to immediately answer the question. However, finding the other athletes’ names took a little more research. First, I googled a list of current naturalized athletes and performed an image search for virtually all of them, finally finding Gao Jun from China. I found Lenny Krayzelburg from a Wikipedia list of all Americans who medaled at the Sydney Olympics and confirmed this with an image search. Finally, I found Tanith Belbin’s name from a 2006 U.S. Olympic Fact Sheet and again, performed an image search to confirm that she was the right person. All in all, it took me about 15 minutes to finish the quiz and learned some interesting things while doing the research. I have been a subscriber to Shusterman’s Immigration Update for more than one year and really appreciate the amount of effort that your staff devotes to keep all its subscribers informed about the latest news.
I know that individuals who usually answer this newsletter give out their names. However, I request that you keep my name confidential for obvious reasons. I am a 23-year old Philippine Citizen currently living in California. Recently, I graduated with highest honors from a California University. I am looking into options for finding employment and changing status from an A visa to LPR via a bona fide marriage. I was hoping, if selected, to discuss my options with you.
I really hope that I am selected and am looking forward to speaking with you.
Congratulations on winning our quiz!
Certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Trial Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, California 90017
“It is doubtful that Congress would approve enough money to pay for the huge law-enforcement effort it would take to find and deport millions of illegal immigrants. Such an operation would be disruptive to immigrant communities, probably leading to discrimination against legal immigrants.”
– Julia Preston, Lead Immigration Reporter, NY Times
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September 2, 2008