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Carl Shusterman's Immigration Update

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  1. Getting Free Immigration Legal Advice on Avvo.com

    Avvo.com is an expert-only Q&A forum where people can ask legal questions of lawyers, for free. The Q&A forum is backed by an online directory of lawyers licensed in the United States. Avvo provides listings to which attorneys can submit their own profiles and histories. The listings may also include client reviews, disciplinary actions, and peer endorsements.

    Avvo rates attorneys in various fields, including immigration law, on a ten-point scale with ten being the best. The website allows people to (1) research legal advice; (2) ask free questions to lawyers; and (3) find attorneys in various specialties and (4) to post reviews of lawyers.

    Each attorney’s profile, in addition to the overall rating, ranks attorneys according to their (1) experience; (2) industry recognition and (3) professional conduct. Clients can post reviews of attorneys and other lawyers can post peer endorsements.

    In addition, Avvo lists the lawyer’s phone number and address, and links to the attorney’s website, blog and social media sites.

    If the attorney has been disciplined by the State Bar, Avvo will note this.

    The lawyer can list his education, work experience, awards, associations that he is a member of, publications, speaking engagements and noteworthy cases that he has won.

    In addition, those attorneys who participate in Avvo’s free question and answer forum are awarded points for answering questions, posting legal guides, having the asker mark the answer as “helpful” or as the “best answer” to a particular question.

    Avvo Director Conrad Saam says that "Avvo provides three perspectives, three points of view of an attorney - the Avvo Rating, Client Ratings, and Peer Endorsements. We believe more information and more perspectives help consumers make smarter decisions."

    I have devoted a lot of time to posting legal guides (175+) and answering questions (19,000+) on Avvo, so much so that my wife refers to herself as a “web widow”. There are three attorneys who have point totals of 1,000,000 or more on Avvo. In early March, I became the first to pass the 2,000,000 mark.

    However, I do not believe that anyone should select an attorney based solely on his or her Avvo point totals.

    Where Avvo can be truly helpful is getting simple legal questions answered for free, and allowing consumers to examine the profiles of various attorneys in order to make an informed choice as to the best attorney to handle their legal matter.

    A couple pieces of advice about how to use Avvo:

    1. Some people present hugely complex scenarios on the question and answer forum, and expect lawyers to provide an online solution to their case. This is unrealistic. It is much better to schedule a legal consultation (in person, by phone or Skype) and allow the attorney to read the most important paperwork in a case before giving advice. Only if your question is simple like “How many days to I have to appeal a denial of my application?” can you expect the lawyers on Avvo to provide you with an answer online. I try to limit my answers to a sentence or two, and provide a link to a legal guide where possible, in order to allow the person who asked the question to read more about the subject of their question.
    2. Before choosing an attorney, it is important to spend time scrutinizing their Avvo profile to see not only their rating (In my opinion, it is way too easy to obtain a 10.0 rating.), but their years of experience, their client reviews and peer endorsements. Also, be sure to read about their successful cases, their publications and their speaking engagements.
  2. DOS Website: We’re Off to See the Visa Wizard!

    The State Department has made numerous changes to its website, and these changes can be a great help to intending visitors, students and workers from other countries.

    One example is the “Visa Wizard”. The Visa Wizard is a guide to help foreign-born persons understand which visa category might be right for them. Although the Visa Wizard does not currently list every type of visa, it does list most of the common-used visas.

    Let’s take the Visa Wizard on a test drive, shall we?

    First, the Visa Wizard asks you which country issued your passport. I enter “India”.
    The next question asks you to list the primary purpose of your travel. There is a drop-down menu with the following five choices:
    (1) Tourism or Visit; (2) Business or Employment; (3) Study or Exchange; (4) Traveling Through the U.S. to Another Country; and (5) Immigrate. I choose “Business or Employment”.

    As soon as I do, another question with six possible answers appears: “What will you be doing in the U.S.?” I check the box stating that “I am coming for temporary employment in the U.S.”

    Immediately, the next question pops up: “What kind of work?” I check “Working for a U.S. employer”

    Then I am asked to select the type of employment that I plan to engage in. I check “A professional with specialized knowledge or skills planning to work in a specialty occupation.”

    At last the cross-examination is over, and my only option is to click a blue box entitled “Find a Visa”.

    I click the blue box, and voila!, I receive the following message:

    Some university educated and skilled professionals in specialized fields may qualify for a Temporary Employment Visa (H-1B) to travel to the U.S. to work in a specialty occupation.

    Examples of travel on this visa
    · Skilled labor in fields such as technology and business
    · Fashion model who has national or international acclaim”

    Now, I have a few choices, the most obvious being to click the multi-colored box below which says “Learn More: H-1B”. Of course, I can also click any of the links under “Related Visa Categories” which are “Visas for Temporary Employment in the U.S.” followed by “L”, “O”, “P” and “Q”. The other option is to click “Employment Based Immigrant Visas”. But since I am feeling adventurous, I click on the box to the far right of the page entitled “See All Visa Categories”.

    TMI! I hurriedly hit the back button, but it takes back to the very beginning of the Visa Wizard. Rats!

    So, I go through the whole exercise a second time, and this time I click on “Learn More: H-1B”. This brings me to the “Temporary Worker Visas” page which briefly discusses H-1B, L, O, P and Q visas. Information about each type of visa is limited. There is a link to the Department of Labor (DOL) website and to the USCIS website. Most of the information, understandably, focuses on the State Department’s requirements for applying for a visa abroad.

    http://d1435t697bgi2o.cloudfront.net/wp-content/uploads/2012/06/YellowBrick2.jpg And herein lies the problem. While I like the idea behind the Visa Wizard, it is of limited value. Just as the Wizard of Oz gave the Scarecrow a diploma when what he needed was a brain., the Visa Wizard gives foreign-born professionals only a small slice of the pie.

    To get an H-1B visa, an employer must first obtain the approval of a Labor Condition Application (LCA) from the DOL. The Visa Wizard simply provides a link to the DOL website. After all, such things as prevailing wage determinations, posting requirements and the like are not DOS issues. After the LCA is approved, the employer must file an H-1B petition with the USCIS. And all the complications associated with H-1B petitions (credentials evaluations, cap-exemptions, portability, etc.) are knots which must be unraveled by the USCIS, and hence, the Visa Wizard links to the USCIS website. It may be understandable why this is done, but it does not provide readers with a complete picture of the H-1B visa process.

    Maybe one day far, far away in the Emerald City, the DOL, the USCIS and the DOS will all collaborate on an Immigration Wizard website.

    Only then will foreign-born professionals be able to follow the Yellow Brick Road.

    Updated 02-20-2014 at 06:25 PM by CShusterman

  3. Our New Website Puts Our Readers First!

    Within the next few days, we will be rolling out the latest version of our website.

    Originally created in 1995, our website aims to educate people around the world about how to visit, study and work in the United States. In 1996, we launched Shusterman’s Immigration Update, the most popular free immigration newsletter in the world with 60,000 subscribers. A few years ago we started producing YouTube “how-to” immigration videos. These videos have been viewed well over 500,000 times.

    Now, we are ready to launch our latest project, our new user-friendly website. Let’s go over a few of the most important features.


    • View our Website from your Cell Phone

    Almost 30% of users view the web from their cell phones. Therefore, we have optimized our website so that it can easily be viewed on your cell phone and from any other mobile device.

    The look will be slightly different than viewing our website from a computer or a tablet, but the content will be identical.

    We worked for many months to get the look just right, and we hope you like it.


    • Schedule an Appointment Online with the Attorney of Your Choice

    For years, we have had a four-page intake form for persons who wished to schedule an appointment with one of our immigration attorneys. Many persons balked about having to complete such a long form in order to make an appointment.

    However, we designed this form with the aim to analyze your information in advance of your appointment in order to be able to properly analyze the facts in your case, and not to waste your valuable time during your legal consultation asking you questions that we could have obtained from a properly completed form.

    We noticed, however, that other attorneys simply ask you to complete a mini-form requiring only your name, contact information and a short description of your immigration issue. This type of form has the advantage of allowing you to schedule a legal consultation very quickly, but doesn’t supply the attorney with the necessary information to provide you with the proper advice.

    Therefore, we have developed a way to allow you to schedule a consultation quickly without completing a lot of paperwork, and also providing the attorney with sufficient information to give you the best legal advice possible.

    After completing a short form, you are taken to a page where you designate your legal issue (e.g., employment-based, marriage-based, deportation defense, etc.). You then get to read short biographies of each of the attorneys in our law firm who specialize in that particular area. After you choose an attorney, you are supplied with a copy of the attorney’s calendar. You choose whatever date and time is most convenient for you. You designate whether you would like your appointment to be by Skype, telephone or in-person. You can pay online by credit or debit card.

    You will receive an e-mail confirmation of your appointment, and a link to our four-page intake form. Completing this form and sending us the relevant documents is the best way to assure that you get the full value for your consultation, but we leave this up to you!

    Updated 01-20-2014 at 12:02 AM by CShusterman

  4. CSPA Oral Arguments Before the Supreme Court

    http://shusterman.com/images/CSPA-Oral-Arguments-Supreme-Court.jpg
    On December 10, 2013, the Supreme Court of the United States heard oral arguments concerning who benefits from the “Retention of Priority Date” clause of the Child Status Protection Act (CSPA).

    Hopefully, in the next few months, this matter will be settled once and for all, and sons and daughters of parents who immigrated years ago will, at last, be permitted to rejoin their families in the U.S.


    Government’s Argument

    The government, having lost in the Court of Appeals, first addressed the Court:

    The Board of Immigration Appeals reasonably interpreted Section 1153(h)(3) when it ruled that creation of a new petition by a new petitioner did not qualify as automatic conversion of an existing petition to an appropriate family-sponsored category…”

    However, various Justices let the government know that they were not persuaded:

    Justice Ginsburg: “What about all the time this one child has been waiting? It gets no credit for that?”

    Justice Alito: “…your reading of this statute gives (h)(3) a very, very narrow scope.”

    Justice Breyer: “…it's just unlikely that Congress meant (3) to apply to a…little molecule when there's the whole ocean.”

    Justice Sotomayor: “It would have been much, much simpler to say this is limited to F2A beneficiaries than to write it the way they did and say this is to everybody who ages out.”

    Justice Kagan: “…it seems as though you shouldn't be entitled to Chevron deference on that question, given what Wang said about it.”

    The government attempted to counter each of the above statements. It argued that the Court recognized that “deference is particularly appropriate in immigration contexts.”

    The government expressed concern about delays to persons waiting in the F2B line, but when questioned by Justice Breyer, it revealed that it was impossible to calculate how much of a delay that these persons would experience if the respondent’s prevailed in this lawsuit.


    Chevron Test

    The issue in this case is whether the Court must give “Chevron deference” to an administrative decision interpreting a law, in this case, the Board of Immigration Appeals (BIA) decision in Matter of Wang. Here, the Court uses the following two-step test:

    Step 1"First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress."

    Step 2 – [I]“f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. v. NRDC, 467 U.S. 837, 842–843 (1984).


    Respondent’s Argument

    http://www.wilmerhale.com/uploadedImages/Shared_Content/Images/People/Attorney/Fleming_Mark_lo.jpgWhen it was his turn to address the Court, Mark Fleming, the attorney arguing the matter on behalf of the immigrant families, stated:

    “The government began at Step 2 of Chevron, but I would submit that this case can and should be resolved at Step 1. The government is asking this Court to read the statute in a highly disfavored way such that it is not harmonious but at war with itself, and nothing in the language requires that...”

    “…provision (h)(3) consists of one sentence, and that sentence consists of two parts separated by a comma. Before the comma, the language sets forth one and only one eligibility criterion. After the comma, the language sets forth two things that shall be done if the eligibility criterion is satisfied. Now, importantly, the government does not contend that there is any ambiguity in the language before the comma. Everyone agrees that it contemplates and includes all derivative beneficiaries. There's no dispute about that. And a bedrock rule at the Step 1 inquiry is that the Court reads the statute as a harmonious whole. That goes double when we're talking about a single sentence. So if there is a possible reading of this sentence that is harmonious with the clear opening clause that applies to all derivative beneficiaries under Step 1 of Chevron, that is the reading the Court gives to the statute.”

    _____________________________________________________________________________________

    Section 203(h)(3) - 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.
    ____________________________________________________________________________________

    Justices Kennedy and Scalia questioned how “automatic conversion” would operate. Justice Scalia was concerned that respondent’s interpretation of the clause would permit an adult son or daughter to immigrate to the U.S. over his or her parent’s objections.

    Mr. Fleming explained that in the highly unlikely event that the parent did not want his son or daughter to join him in the U.S., he could refuse to sign an affidavit of support and they would not be able to immigrate.

    Justice Kagan: “Based on -- another understanding of Chevron is sometimes Congress writes confusing statutes that point in two different directions at once, and then there's a choice. Does the Court make the best of it or does the agency make the best of it? And the agency knows a lot about the subject matter, and especially this agency, and so irrespective of whether Congress meant to delegate something in some very self-conscious way, this is a confusing statute, it's a kind of the muddle. The agency gets to do it.”

    Mr. Fleming responded that it was clear that (h)(3) applies to all derivative beneficiaries, and that it was very possible for the agency to interpret the words “retention” and “automatic conversion” in a matter which would implement the intent of Congress. Furthermore, “retention” and “automatic conversion” are deemed separate and distinct benefits by the statute. Even if the agency decided that automatic conversion was not possible in selected cases, the son or daughter would still be able to “retain” the priority date of the original F3 or F4 petition.

    Justice Scalia: “Well, this is all upside down. I thought it's the agency that we deferred to. If it can be read in the way the agency wants, we affirm the agency's position.”

    In response to a comment by Justice Scalia that the two benefits, retention and automatic conversion, were conjunctive, not disjunctive, Mr. Fleming revealed that the government had, despite its arguments, been denying automatic conversion, but not retention, to F2A derivative beneficiaries from the date that CSPA was enacted (August 6, 2002) until 6 days before the government submitted its reply brief. This, he said, demonstrated that retention and automatic conversion can, and have been, implemented as separate benefits.

    Justice Scalia remained unpersuaded.

    Mr. Fleming ended his argument by declaring that even under Step 2 of Chevron, the BIA decision failed to draw a rational line between 2B beneficiaries, treating those with familial relationships with permanent residents more favorably than those with relationships with both U.S. citizens and permanent residents.


    Government’s Reply

    “The Respondents were trying to put far too heavy a burden on the government in the Chevron deference case. So long as the agency has arrived at a reasonable reading of this very complicated statute, the agency is entitled to deference here.”

    “The government also expresses its concern with the possibility that a derivative beneficiary could “have a priority date somehow in their pocket that they could walk around with and use 20 years later when somebody filed a different petition on their behalf, an employment petition…”

    Chief Justice Roberts: “Well, it's not so odd to say they've got a priority date in their pocket when the statute says the original priority date - they'll retain the original priority date.”


    Conclusion

    While it is impossible to predict the final outcome of a case based solely on the oral arguments, I remain cautiously optimistic that the Supreme Court will ultimately agree with both the 5th and the 9th Circuit Courts of Appeals that the statute is unambiguous and that there is no need to defer to the flawed BIA decision in Matter of Wang. A decision may be forthcoming as early as February or March.

    As recognized by many of the Justices, the government is arguing for a very restrictive reading of CSPA. Yes, the DOJ instead portrays itself as the defender of those in the F2B line and categorizes our clients as “line-jumpers”.

    What the DOJ conveniently overlooks is that CSPA created (h)(1) to allow all qualifying derivative beneficiaries who would, in the past, have “aged-out” and lost their place in line to immigrate together with their parents in a particular preference category. Under the government’s reasoning, why are they are not “line-jumpers”? Congress simply made a policy decision to give sons and daughters who have waited for years in line for permanent residence together with their parents credit for their wait, and not send them to the back of the line. If is clear that (h)(3) extends this same credit to unmarried sons and daughters of permanent residents.

    Could it be that the DOJ simply disagrees with these policy decisions?

    If so, they should lobby Congress, not the Supreme Court, to change the law.

    Updated 12-20-2013 at 01:45 PM by CShusterman

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  5. Immigration Reform Without a Pathway to Citizenship?


    http://s1.ibtimes.com/sites/www.ibtimes.com/files/styles/v2_article_large/public/2013/03/30/immigration-reform_rally.jpg Is there any chance that we will get Comprehensive Immigration Reform (CIR) before the end of the year?


    President Obama remains hopeful. He is even willing to drop the Senate’s approach and have Congress pass a number of immigration bills as many Republicans in the House of Representatives are proposing. “If they want to chop that thing up into five pieces, as long as all five pieces get done, I don't care what it looks like.”


    The problem is that none of bills that have been considered by the House Judiciary Committee even touch on what to do about the 11 million undocumented persons living in the U.S. The Committee wants to make the border (at least the one with Mexico) more secure, make E-Verify mandatory and bring in more high-tech and agricultural workers. That’s all well and good, but aren’t they ignoring the Big Elephant in the room: What about the 11 million?


    Here is the root of the problem: In the 2012 Presidential election, Hispanics and Asians voted overwhelmingly for President Obama. No surprise since his opponent’s solution to our broken immigration system was “self-deportation”.


    The GOP knows that if they want to win back Hispanic and Asian voters, they must address our immigration problem. However, by passing a bill containing a Pathway to Citizenship for 11 million persons, many Republicans are afraid that they are enfranchising people who are going to vote for their opponents.


    What to do?


    The Chairman of the House Judiciary Committee is working on a bill which would allow the undocumented to qualify for work and travel permits, but not for green cards and citizenship. Okay, maybe a Pathway to Citizenship for the Dreamers. The Chairman of the House Oversight Committee has a slightly different take. He would grant the undocumented a six-year provisional status, and would allow them to get green cards and naturalization, but only if they qualify under current law. The rest, probably the overwhelming majority, could remain in the U.S., but only under a newly-created temporary worker category.


    How are proponents of comprehensive immigration reform reacting to such proposals?


    Surprisingly, a good many CIR supporters are no longer insisting on a Pathway to Citizenship. A leading immigration advocate, Representative Luis Gutierrez (D-IL), states that he is open to compromise, and seems willing to accept a bill which would protect the undocumented from deportation even if it does not offer a Pathway to Citizenship for all.


    Maybe half a loaf is better than none at all, but aren’t we creating a two-tier society?


    Will there be a new immigration law in 2013, or even in 2014, and what will it say? Only time will tell.

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.
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