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Carl Shusterman's Immigration Update


  1. The Immigration Law Turns 50

    The Immigration and Nationality Act of 1965 (aka the “Hart-Celler Act”) turned 50 years old on October 3, 2015.

    The Act was passed shortly after the Civil Rights Acts in 1964 and 1965, and ended the National Origins quota system which had restricted most U.S. immigration to natives of Germany, Great Britain and Ireland. For example, in 1929, out of 150,000 immigrate slots, over 50,000 were reserved for Germans, 100 to Greeks and zero to Chinese.

    With the 1965 Act, we committed ourselves, for the first time, to accepting immigrants of all nationalities. However, when the Act was passed, there was little certainty that more than a few thousand persons from non-European countries would be able to immigrate to the U.S.

    The Act, as introduced, would have based most immigration on the skills of each immigrant. However, in order to secure the support for the bill, the Johnson Administration agreed to let Representative Michael Feighan (D-Ohio), the Chairman of the House Immigration Subcommittee, amend the bill to grant most green cards to relatives of U.S. citizens and a far lesser amount to persons based on their skills. Representative Feighan’s intent was to make sure that U.S. immigration would remain European-based. Since over 90% of the U.S. citizens were of white, European background, he reasoned that a mostly family-based system would keep America white. What Rep. Feighan and his allies failed to consider was that most Europeans no longer wished to immigrate to the U.S.

    Senators and members of the House of Representatives voted for the bill in overwhelming numbers. The primary opposition came from segregationist Southerners who did not want to change the National Origins quota system. Senator Sam Ervin (D-NC) was able to amend the bill in order to impose a first-time 120,000 person quota on immigration from the Western Hemisphere, a move that made it impossible for many people to legally immigrate to the U.S.

    Upon signing the bill into law, President Johnson’s statement included the following:

    “This bill says simply that from this day forth those wishing to immigrate to America shall be admitted on the basis of their skills and their close relationship to those already here. This is a simple test, and it is a fair test. Those who can contribute most to this country – to its growth, to its strength, to its spirit – will be the first that are admitted to this land.”

    These days, we welcome immigrants from all countries. An increasing number are admitted due to their education and skills. True, there is more work to be done, but the Immigration and Nationality Act of 1965 was revolutionary.
  2. October Visa Bulletin - April Fools!

    September 25, 2015 will go down as a sad day in immigration history. The Federal Government, which had published the Visa Bulletin for October 2015 on September 9 which promised that thousands of persons who had been waiting in line for green cards for many years would be able to submit applications for adjustment of status starting on October 1st even though their priority dates were far from current, suddenly and without explanation, reneged on its promise.

    What a cruel, delayed April Fools Joke to play on immigrants and their families!

    Ever since the Government's September 9th announcement, many thousands of immigrants who qualified for benefits have rushed to see their immigration attorneys, completed forms, paid for medical examinations and got ready to submit applications for adjustment of status, employment authorization and advance parole... but all in vain.

    On September 25, just a few days before the implementation of the October Visa Bulletin, the Government issued an "updated" October Visa Bulletin. In the revised bulletin, the following filing dates that had been announced by the Government earlier in September were retrogressed as follows:

    • EB-2 India: from 7/1/2011 to 7/1/2009 (2 years)
    • EB-2 China: from 5/1/2014 to 1/1/2013 (1 year and 5 months)
    • EB-3 Philippines: from 1/1/2015 to 1/1/2010 (5 years)
    • FB-1 Mexico: from 7/1/1995 to 4/1/1995 (3 months)
    • FB-3 Mexico: from 10/1/1996 to 5/1/1995 (1 year and 5 months)

    Immigrants who relied on the October Visa Bulletin issued on September 9 are shocked and disappointed by the Government's decision to change the rules of the game just two weeks later. Did the revised Visa Bulletin result from a conflict between the State Department and the USCIS? Possibly, but let's not speculate about this. We promise to keep you updated as we learn more.

    Immigrants, their employers and their attorneys need to ban together to express our disapproval.

    Updated 09-28-2015 at 12:38 PM by CShusterman

  3. Another Benefit From Obama's Early AOS Rule

    Starting October 1, 2015, tens of thousands of persons in the Employment-Based (EB) and Family-Based (EB) preference categories will be able to submit applications for Adjustment of Status and receive Employment Authorization Documents (EADs) and Advance Paroles (APs) long before their priority dates become current.

    For many persons whose priority dates have been backlogged for years, this new policy will give them the freedom to change employers without harming their ability to become green card holders.

    This is due to the 180-Day Portability rule in the American Competitiveness in the 21st Century Act (AC-21). This rule allows persons in the EB categories who have approved I-140 visa petitions and whose I-485s have been pending for 180 days or more to change employers if their new employment is in the same or a similar occupation.

    Below is an example of how this would work:

    Vijay, a systems analyst from India, is in the EB-2 category which is backlogged in the October 2015 Visa Bulletin to May 1, 2005 for persons born in India.

    Vijay began working for Employer A in H-1B status in 2008. Employer A filed a PERM application for Vijay in 2009. Both the PERM application and the subsequently filed I-140 have been approved for many years.

    Even though Vijay has worked for Employer A for over 7 years, he is unable to change jobs without jeopardizing his green card application. If he changes jobs before getting his green card, his new employer would have to obtain approvals for both a new PERM application and an I-140 in order for Vijay to retain his 2008 priority date.

    Under the new rules, anyone from India with an EB-2 priority date before July 1, 2011 who is otherwise eligible can apply for adjustment of status in October 2015. Under the 180-day portability rule, in April 2016, they can leave Employer A and take a job with Employer B as long as their new job is in the same or a similar occupation. Employer B will not have to submit a new PERM application or I-140 visa petition for Vijay.

    When Vijay’s priority date becomes current, he can submit his I-485 packet.
    For Vijay and for hundreds of thousands of professionals from around the world who work in the U.S. using temporary working visas, this is a tremendous benefit. It is especially significant for persons born in India, China and the Philippines, all countries with huge EB backlogs.

    More Resources on Obama's New Program

  4. New Rule Will Allow Thousands to File I-485s in October

    Thanks to President Obama, a new rule will take effect on October 1, 2015 which will allow thousands of immigrants with backed-up priority dates in the employment-based and family-based categories to apply for adjustment of status (as well as for EADs and Advance Paroles) even though their priority dates are not yet current.

    And not only the principal immigrant but their spouses and children will be able to apply for these benefits.

    This is, without a doubt, the most positive executive action to benefit the legal immigration system that I have seen in the 40 years that I have been practicing immigration law!

    To show how this works, here is an example:

    Teresa, a registered nurse, is the wife of an H-1B professional whose employer has yet to sponsor him for permanent residence. That means that Teresa is unable to take advantage of the new rule which allows certain H-4 spouses to apply for EADs.

    However, a hospital submitted an I-140 visa petition for Teresa in December 2014. Unfortunately for Teresa, the EB-3 category for Filipino professionals has retrogressed more than 8 years. So, she will not be able to apply for a green card until the year 2023, right?

    Wrong! Under the new Obama policy, any Filipino with an EB-3 priority date before January 1, 2015 will be able to apply for adjustment of status starting on October 1, 2015. See the October Visa Bulletin: Dates of Filing for Employment-Based Visa Applications. Teresa and her husband (and any children born abroad who are living lawfully in the U.S.) can submit their applications for adjustment of status (I-485 packets) in October 2015 and obtain their EADs and APs within 90 days.

    This rule applies whether the I-140 is approved or is still pending. So waiting past October for the I-140 to be approved is not a good idea. Filing dates, like priority dates, often retrogress.

    Professionals from India

    A computer programmer from India is in H-1B status. The EB-2 current priority date for India is backed up until May 1, 2005. However, if his priority date is prior to July 1, 2011, he can file an I-485 in October. Things are not nearly as favorable if he is in the EB-3 category, but are still better than before the rule. The EB-3 current priority date for India is backed up until March 8, 2004, but if his priority date is before July 1, 2005, he can file an I-485 in October.

    Professionals from China

    An H-1B professional from China has an approved I-140 was a priority date in 2013. The current EB-2 priority date for China in October is January 1, 2012. However, if his EB-2 priority date is before May 1, 2014, he can file his I-485 in October. The current EB-3 priority date for China in October is October 15, 2011. Under the new rule, if the professional's priority date is before October 1, 2013, he can submit his I-485 in October.

    EB-5 Investors from China

    The new rule is a huge benefit for Chinese investor since the EB-5 category for Chinese will be October 8, 2013 in October. Many investors are worried about their children aging out. However, children's ages are frozen once they file for adjustment of status or immigrant visas. Any Chinese person in the EB-5 category with a priority date before May 1, 2015 will be able to apply for a green card in October.

    Updated 09-10-2015 at 01:39 PM by CShusterman

  5. Dilley - The Good, The Bad & the Ugly

    The LA4 – Attorney Cheryl Gertler, her translator Naz, me and Paralegal Elsa Garcia – volunteered at the Dilley Detention Center (aka South Texas Family Residential Center) during the first weekend of September.

    We did our best to help unaccompanied mothers and children from El Salvador, Honduras and Guatemala prepare for their Credible Fear Interviews with the USCIS.

    We all agree that this was one of the most important, if heart-breaking, experiences of our lives.

    The Good

    1. We received great training and support from the CARA Family Detention Pro Bono Project – Thank you Isabel, Ian and Aseem. See our Dilley Photo Gallery.
    2. The approval rate for Credible Fear Interviews has risen to 87% resulting in more women and children being freed from Dilley.
    3. We were able to meet with 2 top immigration advisers to DHS Secretary Johnson to discuss our concerns.
    4. On our last evening in Dilley, DHS released the 5 longest-held detainee families and we were able to share a meal with them.

    The Bad

    1. Dilley is a detention camp, not a “residential center”. Full-body scans are required to enter the facility and all sorts of items are banned including cell phones and cameras.
    2. The vast majority of the facility is off-limits even to attorneys representing inmates.
    3. CCA imposes arbitrary rules. Example: An aunt who had driven to Dilley all the way from Houston was prohibited from visiting her niece because she arrived at the camp wearing open-toed shoes. Seriously!
    4. The children are constantly wheezing and coughing and the doctor routinely tells them to drink more water. A sign on the door warns visitors that they are in danger of catching the chicken pox if they enter the facility.

    The Ugly

    1. Though a Federal Judge has ruled that facility should be closed down, the government is fighting the decision tooth and nail.
    2. 1,800 women and children populate the facility and the number of inmates continues to grow.
    3. CBP officers frequently produce “affidavits” which are false and misleading. They mark false answers to questions asking why the women and children came to the US. They purport to take affidavits from 3 and 4-year-old children!
    4. During my week in Dilley, the Los Angeles Times ran an article about ICE going from home to home in Los Angeles to round up undocumented felons including child rapists who had been freely walking the streets of LA. Yet, they continue to lock up women and children who pose no danger to society. Great priorities!

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