Volume Twenty Two, Number Five
SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding US 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 40 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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Shusterman’s Immigration Update May 2017
TABLE OF CONTENTS:
1. Trump’s H-1B Executive Order: “Too Little, Too Late”
2. Ask Mr. Shusterman: A New Road From TPS to Green Card
3. State Department Visa Bulletin for May 2017
4. Immigration Government Processing Times
5. Success Story: Turning Around a Green Card Denial (Part 1)
6. Immigration Trivia Quiz: Landmark Immigration Cases
7. Shusterman’s Upcoming Immigration Seminars
8. Jobs & Green Cards for RNs & MedTechs: Free Legal Help!
9. Winner of Our April 2017 Immigration Trivia Quiz!
- San Gabriel Valley Raids Target Scammers Who Stole Money from Wealthy Chinese – After years of sleuthing, federal agents Wednesday raided San Gabriel Valley homes and an office that investigators have linked to an alleged multimillion-dollar immigration and finance scam that cheated wealthy Chinese investors in the EB-5 program.
- US Seeks Curbs on Use of Entry-Level H-1B Programmers – The US government is taking action that will likely increase the visa denial rates of H-1B programmers, a move that could help US nationals, both in terms of wages and jobs. The USCIS wants programmers who offer skills that are specialized or unique. That means firms seeking to hire programmers at entry-level wages may see their H-1B visa requests denied.
- New EB Precedent Decision – Matter of I- Corp, a precedent decision issued by USCIS’s Administration Appeals Office on April 12, clarifies that USCIS cannot approve a visa petition that is based on an illegal or otherwise invalid employment agreement. To prevent a potential conflict with the Fair Labor Standards Act, USCIS must ensure that a beneficiary will not be paid a wage that is less than the minimum required wage under state or Federal law, whichever is higher, before approving an employment-based visa petition.
- Immigration and the Remaking of Globalization – Why have countries increasingly restricted immigration even when they have opened their markets to foreign competition through trade or allowed their firms to move jobs overseas? In Trading Barriers, UCLA Professor Margaret Peters argues that the increased ability of firms to produce anywhere in the world combined with growing international competition due to lowered trade barriers has led to greater limits on immigration.
- USCIS Will Lose Billions Because It Can’t Process Applications Fast Enough – Lost amid the uproar over the Trump administration’s crackdown on undocumented immigrants is a change coming to the legal immigration system that is expected to be costly for both US companies and the government itself. According to USCIS records, congressional testimony and interviews with former agency officials, USCIS has plunged most of the Premium Processing program’s revenues from the last 8 years — some $2.3 billion — into a failed effort to digitize the larger immigration system, leaving inadequate resources to staff the H-1B portion that was its cash cow.
- $150 Million Settlement Announced in Vermont EB-5 Fraud Case – A year after the owner and president of a Vermont ski resort were accused by the state and the US Securities and Exchange Commission of massive fraud, a $150 million settlement has been reached.
- Trump Nominates New Head of USCIS – President Donald Trump has nominated Lee Francis Cissna to head the US Citizenship and Immigration Service (USCIS). The agency is part of the Department of Homeland Security where Cissna currently works as the Director of Immigration Policy.
- USCIS Reminds Beneficiaries of TPS for Guinea, Liberia, and Sierra Leone of May 21 Termination – USCIS is reminding the public that the designations of Temporary Protected Status (TPS) for Guinea, Liberia, and Sierra Leone terminate effective May 21, 2017.
- USCIS Will Issue Redesigned Green Cards and EADS – The USCIS announced a redesign to the Permanent Resident Card (also known as a Green Card) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project. USCIS will begin issuing the new cards on May 1, 2017.
- President Signs Bill to Avoid Government Shutdown – President Trump signed a short-term bill that funds the government for one week until May 6, 2017.
1. Trump’s H-1B Executive Order: “Too Little, Too Late”
On April 18, President Trump, after the end of Fiscal Year 2018 H-1B cap filing season, issued an Executive Order entitled “Buy American, Hire American”. If this order was intended to correct the abuses inherent in the H-1B visa program, a better title for the so-called order would be “Too Little, Too Late”.
USCIS received 199,000 cap-subject H-1B petitions during the first week of April 2017 and, by lottery, selected the 85,000 winners. Thus, despite the President’s campaign promises, the H-1B lottery system remains identical in selecting the FY2018 winners to what it was during the Obama Administration.
How will Trump’s Executive Order affect the H-1B system in 2019?
This is difficult to predict since the Order contains only a few vague sentences which relate to H-1Bs. Section 5 of the Order reads as follows:
“Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.
“(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
What does this mean? Computer professionals who help create video games for children are paid far higher than public school teachers in inner city areas. Does this mean that school districts which cannot find enough Americans to teach children in poor areas will no longer be able to sponsor foreign-born teachers for H-1B visas?
Let’s hope not, but the present Administration’s actions so far in the H-1B category are not very reassuring. The suspension of H-1B premium processing is wrecking havoc for medically-underserved communities which have obtained J waivers for International Medical Graduates who are finishing their residencies/fellowships in the US at the end of June. Patients in these areas will have to wait until the end of the year for these physicians to get their H-1Bs to start working in their communities. Not a wonderful policy for coal miners and their families! And if the physician happens to be a citizen of one of President Trump’s 6 banned countries, he/she may not be able to get an H-1B visa at all.
On April 4, almost 2 weeks before Trump’s Executive Order, the US Department of Labor (DOL) announced plans to protect American workers from discrimination under the H-1B program. DOL has the authority to hold employers to the promises that they make when filing an H-1B Labor Condition Application.
Also, the USCIS has established an e-mail address to enable US and H-1B workers to report fraud and abuse of the H-1B program to the agency.
Ultimately, however, changes to improve the H-1B program and to get rid of the random lottery system (and hopefully, to abolish the H-1B cap) need to be made by Congress.
2. Ask Mr. Shusterman : A New Road from TPS to a Green Card
Temporary Protected Status (TPS) was written into the immigration law in 1990 and has allowed persons from over 20 different countries to remain temporarily in the United States while their countries were undergoing armed conflicts, environmental disasters, etc.
Many persons have lived in the US for many years in TPS status. They have EAD work permits and some have advanced parole (AP) travel permits.
Some have married US citizens or have children who are US citizens. Many would love to settle permanently in the US, but there was never a clear path from TPS to becoming a lawful permanent resident of the US.
Ramirez v. Brown
On March 31, 2017, the US Court of Appeals for the 9th Circuit issued a decision, Ramirez v. Brown, (9th Cir. 2017) which ruled that persons with TPS who marry US citizens can adjust their status to permanent resident without having to leave the US.
The case concerns Jesus Ramirez, a man from El Salvador, who entered the US without inspection in 1999, and who was granted TPS in 2001. In 2012, he married Barbara Lopez, a US citizen.
When Mr. Ramirez applied for adjustment of status in the US, the USCIS denied his application on the grounds that he wasn’t inspected and admitted to the US.
He appealed this denial to Federal District Court where the Judge ruled in his favor. The government appealed to the 9th Circuit Appeal Court which ruled in favor of Mr. Ramirez.
However, the Federal Appeals Courts are not all in agreement on this issue.
The US Court of Appeals for the 6th Circuit has also held that persons with TPS can adjust status through marriage to a US citizen however they entered the US. Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013).
But the US Court of Appeals for the 11th Circuit issued a contrary decision in Serrano v. U.S. Atty. General, 655 F.3d 1260, (11th Cir. 2011).
As a practical matter, this means that persons living in states under the jurisdiction of the 6th Circuit (Michigan, Ohio, Kentucky and Tennessee) and the 9th Circuit Court of Appeals (California, Alaska, Hawaii, Arizona, Nevada, Oregon, Washington, Idaho and Montana) who entered the US without inspection but who latter got TPS may adjust status through a US citizen spouse or adult son or daughter.
Persons who live in states under the jurisdiction of the 11th Circuit (Alabama, Georgia and Florida) may not do so.
Ultimately, this issue needs to be resolved by the US Supreme Court.
The worldwide employment-based preference categories all remain current except for EB-3 which advances by 1 month to March 15, 2017.
However, the outlook remains bleak for persons born in India, China and the Philippines due to per-country quotas.
India EB-2 remains frozen at June 22, 2008 while India EB-3 moves ahead 1 day (No, not a typo.) to March 25, 2005.
China EB-2 advances by 3 weeks while China EB-3 moves forward 6 weeks. China EB-5 inches ahead by 1 week.
Philippines EB-3 moves forward by 3 1/2 months to January 1, 2013.
The EB-4 category for persons born in Mexico, El Salvador, Guatemala and Honduras remains frozen.
The following chart tells the story of the EB numbers in detail:
A. APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES
|World||China||El Salvador, Guatemala, Honduras||India||Mexico||Philippines|
B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS– These dates indicate when immigrant applicants can send adjustment of status applications without having to wait for their priority dates to become current.
The family-based categories in the visa bulletin are as follows:
- F-1 Unmarried Adult Sons & Daughters of US Citizens
- F-2A Spouses & Children of LPRs
- F-2B Unmarried Adult Sons & Daughters of LPRs
- F-3 Married Sons & Daughters of US citizens
- F-4 Brothers & Sisters of US Citizens
An applicant’s priority date is the day that the government received the I-130 Petition. For more on family-based visas and how you can shorten your application time, see Attorney Shusterman’s video near the top of this page.
VISA BULLETIN – FAMILY
Most of the worldwide family-based priority dates move forward between 2 and 7 weeks. The F4 category for brothers and sisters of US citizens remains frozen at May 8, 2004.
Each of the Philippine categories advance by 1 to 6 weeks.
For persons born in Mexico, each of the categories move forward between 2 and 5 weeks.
The F4 category for siblings advances 3 weeks for persons born in India.
The following charts tell the story in detail:
A. APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES–
B. DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS– These dates indicate when immigrant applicants can send adjustment of status applications without having to wait for their priority dates to become current.
We have included a link to various tables where you can access the immigration waiting times
- USCIS Service Centers
- National Benefits Center
- EB-5 Immigrant Investor Program Office
- USCIS’ 83 Field Offices
Search the Field Offices for the USCIS’ 83 District Offices and Sub-offices to look up the processing times for (1) Applications for Adjustment of Status (I-485) (2) Work Authorization (I-765); (3) Advance Parole (I-131); (4) Naturalization (N-400) and other types of applications. To access your immigration waiting time, what you need to know are:
- The office where your petition has been filed or transferred to
- The type of application or petition
- The date on which the petition was filed
This information can all be found on the Notice of Receipt that was mailed to you by the USCIS. To begin, simply click on the Field Office or Service Center that interests you and click “Submit Query” and you will be directed to the current USCIS processing time table.
If your petition/application is on appeal, you can access the processing times of the Administrative Appeals Office (AAO).
If your PERM case or other type of application is pending at the DOL, we link to the Department of Labor Processing Times.
If you have requested a copy of your file from the USCIS, you can check the status of your Freedom of Information Act (FOIA) request.
If you are applying for affirmative asylum you can check how the Asylum Division has prioritized applications for interview scheduling.
Warning: Immigration waiting times may appear faster on the official lists than they are in reality.
5. Success Story: Turning Around a Green Card Denial (Part 1)
Can the wife and mother of a US citizen husband and three toddlers get a green card? Well, of course. Then, how did this suburban mom get stranded abroad for 16 months away from her family?
Was she a criminal or a terrorist? Not at all. I don’t even think she had a traffic ticket.
Neng Hostetler’s only problem was that she was smuggled into the US in 1999 when she was a teenager.
Neng was more than willing to pay the price for this. The family hired an immigration attorney and took all the necessary steps to comply with the law.
First, a visa petition was submitted sponsoring Neng and quickly approved by the USCIS.
Second, because of Neng’s unlawful presence in the US, a waiver application was submitted demonstrating that her husband would suffer extreme hardship if she were not allowed to become a permanent resident. Her husband Seth would not only have to work to support the family but also raise their 3 young boys on his own. The USCIS approved the waiver and Neng got ready to fly to Thailand for her green card interview.
This last phase of the case was expected to be the easiest and within a couple of weeks, Neng would fly back to the US, green card in hand to be with her family.
During the interview at the US Embassy, the officer questioned Neng about her entry into the US in 1999. She admitted that she and 3 other young Thai women had crossed the border from Mexico into the US with the aid of a smuggler. She expressed remorse for this.
The officer denied her application on the ground that she was an “alien smuggler”. An alien smuggler?
As I learned when I worked as an INS Trial Attorney back in the 1980s, section 212(a)(6)(E) of the immigration law bars alien smugglers from coming to the US:
- In general – Any alien who at any time has knowingly encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.”
But Neng wasn’t smuggling people into the US. She was the person who was smuggled in. The officer should have known the difference.
Neng called Seth who immediately contacted their immigration attorney. The attorney was astounded. She prepared a letter to the officer explaining that Neng was not an alien smuggler, and submitted an affidavit from one of the other women who was smuggled into the US with Neng and was now a green card holder. She also submitted an affidavit from Neng’s sister who paid the smuggler.
Nevertheless, the reply from the US Embassy in Thailand consisted of a one-page form with a check mark showing that Neng’s green card application had been denied under the section of law quoted above.
Neng remained stranded in Thailand during the first 9 months of 2016, wondering whether she would ever be allowed to rejoin her U.S. family. She told Seth that she had no reason to live anymore.
In September, CBS News ran a segment on Neng’s dilemma which stated that “it doesn’t look like they will be reunited anytime soon”.
Later that month, Seth scheduled a legal consultation with me. Fortunately, I had encountered similar situations in the past.
A year before, the US Consulate in Ciudad Juarez, Mexico had denied the green card application of an EB-5 investor because he had brought his children with him to the US as visitors while his green card application was pending and enrolled them in public schools. The officer had denied his green card on the ground that he was an alien smuggler. His immigration attorney referred him to our office.
True, the kids should not have been attending school in the US on visitor’s visas, but calling this alien smuggling was ridiculous.
After a few months, we were able to get this denial reversed and the man’s green card application was granted.
I told Seth I felt confident that the same approach would work with Neng’s case, but that it might take 6 months or more for her to get a green card. Seth gave me the okay, and we got started immediately.
What did we do to get Neng a green card? Read about it in the next issue of our newsletter.
6. Immigration Trivia Quiz:
7. Shusterman’s Upcoming Immigration Seminars
Federal Bar Association
Immigration Law Section
May 12-13, 2017
Free Legal Consultations for Students
Los Angeles, CA
May 15, 2017
AILA Annual Conference
New Orleans, LA
Legal Specialist Exam in Immigration Prep Course
Pincus Professional Education
Double Tree Hotel, Downtown
120 South Los Angeles Street
August 24 & 25, 2017
8. Jobs & Green Cards for RNs & MedTechs – Free Legal Help!
Hard to believe? Let me explain:
Our law firm represents over 100 hospitals across the country. And the nurse shortage is coming back.
Our hospitals are in need of hundreds of RNs as well as Medical Technologists and other healthcare professionals. They are looking for both US and foreign-born RNs, and they will pay all of our attorneys’ fees, USCIS filing fees and more!
If you are a foreign nurse or a medical technologist and need a job in the US and the job requires a work visa and/or green card, please do the following:
Send an e-mail message to firstname.lastname@example.org
In your message, please provide the following information:
1. Have you passed the NCLEX exam?
2. Do you have a current RN license in the US? If so, from what state(s)?
3. Have you taken and passed the IELTS or TOEFL exam?
4. Do you have a valid VisaScreen certificate?
5. Do you have any immediate family members accompanying you to the United States (spouse and children)?
6. Have you ever been petitioned by any US sponsor and hold an old priority date? If so, what is your priority date?
7. If you are present in the US, what is your current immigration status?
8. What is your RN background (area of expertise)?
9. What is your country of birth?
10. What is your country of citizenship?
11. What is your phone number?
If you are a CLS, please amend the above questions accordingly.
We will forward your response to our hospitals, and if they are interested, they will contact you. Please do not contact our law firm until after you hear from one of our hospitals.
We look forward to helping you!
9. Winner for April 2017 Immigration Trivia Quiz!
Certified Specialist in Immigration Law, State Bar of California
Immigration and Naturalization Service (INS) Attorney (1976-82)
Member of AILA Board of Governors (1988-97)
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017
Phone: (213) 623-4592 x0, Fax: (213) 623-3720
“As Congress and the Administration prepare to revisit our immigration laws, we write to express our broad consensus that immigration is one of America’s significant competitive advantages in the global economy.”
– Open Letter from 1,470 Economists to President Trump
April 12, 2017
Shusterman’s Immigration Update May 2017 – Quick Links
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