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Carl Shusterman's Immigration Update


  1. Visa Bulletin : Update and Predictions

    The government’s new fiscal year will begin on October 1st, and as usual, there will be some significant advances in priority dates for green cards, particularly in the employment-based categories.

    Employment-Based Categories

    The EB-1 category for persons born in India and China will again be current (no backlogs).
    The worldwide EB-2 category will again be current and will advance an average of 2 years for India and China.
    The worldwide EB-3 category will advance 1 month. China EB-3 will jump forward over 3 years, Philippines by 5 months and India by only 2 weeks.
    The worldwide EB-4 category will remain current, with a huge leap forward for various Central American countries.
    Worldwide EB-5 also will remain current, but China EB-5 will inch forward by only 1 week. The EB-5 regional center program is due to expire on September 30 and will need to be reauthorized by Congress.

    Family-Based Categories

    The forward movement in the family-based categories will remain slow. The worldwide categories will advance between 1 and 6 weeks.
    However, there are a few notable exceptions.
    Mexico 2A will advance by 3 months, China F4 by 4 months and India F4 by almost 2 years.

    Predictions for the Near Future

    The State Department predicts that India EB-2 will continue to advance up to 4 months each Visa Bulletin and that China EB-2 will move forward by 3 months.
    The demand for EB-3 numbers could slow down the forward worldwide movement in the coming fiscal year. India will continue to inch forward by only one week per month (Time to get rid of per-country quotas!). However, China will advance by 3 months at a time and EB-3 Philippines could also see significant advances.
    The family-based categories are all severely backlogged and any forward movement will be incremental.

    Updated 09-12-2016 at 12:35 PM by CShusterman

  2. Good News for Physicians Who Want Green Cards

    On March 9, 2016, the USCIS designated Matter of H-V-P, I.D. 16270 (AAO) as a precedent decision. It provides that the physicians who are specialists who practice in a medically-underserved area for a minimum of 5 years are entitled to permanent residence in the US through a National Interest Waiver (NIW).

    Is this really news? No, but the Director of USCIS’s Texas Service Center had denied that the physician’s NIW, holding that only primary care physicians are entitled to such waivers, this despite the fact that the USCIS has approved thousands of such NIWs for specialists over the past decade.

    This requires a little recounting of history.

    The Law (1999)
    On November 12, 1999, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999 (“Nursing Relief Act”), was enacted to encourage foreign-born physicians to practice in medically underserved areas of the US.

    The law allows “all alien physicians” who practice for at least 5 years in a medically-underserved area to qualify a green card.

    The Regulation (2000)
    On September 6, 2000, to implement the statute, the Immigration and Naturalization Service (“INS”) published a regulation which restricted the applicability of the law to primary care physicians. The regulation also contained a number of other restrictive provisions not found in the law.

    The Lawsuit (2002-2006)
    On December 9, 2002, one Grumpy Immigration Attorney (Yours Truly) filed a lawsuit in Federal District Court challenging the various restrictive clauses contained in the regulation which contradicted the generous terms of the law.

    On my birthday in 2004, the Federal Judge dismissed our lawsuit. Happy Birthday, Carl!

    We appealed this decision to the US Court of Appeals for the 9th Circuit, and on June 7, 2006, in Schneider v. Chertoff, the Appeals Court unanimously ruled in our favor.

    However, the Court declined to rule on one of most important restrictions, that prohibiting specialist from qualifying for NIWs. Among the many physicians across the US who volunteered to be plaintiffs in our lawsuit, only one was a specialist. We made sure that his attorney filed an I-140 NIW on his behalf. The USCIS sent him a Request for Evidence (RFE) asking why he, as a specialist, was applying for an NIW since the regulations specifically prohibited this. Rather than respond to the RFE, the attorney simply failed to take action, and the I-140 was denied because of his failure to submit a timely response.

    Hence, the Appeals Court declined to decide this important issue.

    The Memo (2007)
    Although I was thrilled to win the lawsuit, I was disappointed that the Court had not ruled on this important issue.

    A couple of weeks later, I spoke at the Annual Conference of the American Immigration Lawyers Association (AILA) in Nashville, Tennessee.

    It was there that I had a conversation with a top official of the USCIS. He was concerned that I was requesting attorney’s fees from the government for my 4 years of work in Schneider v. Chertoff under the Equal Access to Justice Act (EAJA). In turn, I expressed my concern about having to sue the government once again to resolve the issue of whether a specialist physician could qualify for an NIW.

    We agreed that if I would drop my request for EAJA fees, he would include a clause in the upcoming USCIS memo stating that physicians who were specialists could qualify for green cards through NIWs.

    On January 23, 2007, the USCIS issued a policy memo which declared that “though not mandated by the Schneider decision, USCIS is expanding the fields of medical specialty that may qualify physicians for NIWs by accepting petitions on behalf of physicians who provide specialty care.”

    NIWs for Physician Specialists
    Since 2007, our law firm has obtained green cards for thousands of physicians, many of them specialists, through the NIW process as well as through PERM, but apparently not all attorneys have been so fortunate. See below.

    Matter of H-V-P (2016)
    In Matter of H-V-P, the Director of the Texas Service Center denied the NIW petition on behalf of a Hematologist/Oncologist on the ground that he practiced in a HPSA/MUA, not in a Physician Shortage Area (PSA), and that only specialists who practiced in PSAs should be able to apply for NIWs.

    The USCIS’s Administrative Appeals Office (AAO) rejected this argument citing the 2007 memo.

    One month later, the USCIS designated Matter of H-V-P as a precedent decision, meaning that USCIS officers cannot deny NIWs to physicians simply because they are specialists.

    Although this battle took almost 2 decades to resolve, I am very pleased to have fought the good fight, and forced the agency to follow the law.

    Updated 05-09-2016 at 03:06 PM by CShusterman

  3. Fabio Becomes a US Citizen

    While traveling in Southeast Asia in March, my wife showed me the following story on her phone: “The Hunk Who Loved Lady Liberty: Fabio Becomes a U.S. Citizen”.
    This is a Success Story for America.
    “This is one of the happiest days of my life” said Fabio. “Over the course of my career I’ve had the opportunity to travel the globe and America is still the greatest country on earth. There is no such thing as an Italian dream or an English dream but the American dream is alive and well.”
    I remember the day when I went to Immigration Service with Fabio for his green card interview. The INS staff was so excited that I had to return the next day to give out dozens of signed photographs signed by Fabio to all of his fans.
    Numerous ethnic newsletters and even the Wall Street Journal published the news of Fabio getting his green card on the front page.
    Now, he is a US citizen. Congratulations, Fabio!
  4. Who Will Succeed Justice Scalia on the Supreme Court?

    Supreme Court Justice Antonin Scalia died on February 13, 2016. He may have been the most influential Justice on the Court during the past 30 years. His use of the doctrine of "originalism" lead to a multitude of decisions which were, for the most part, favorable to conservatives.

    Justice Scalia's death creates a vacancy on the U.S. Supreme Court.

    The Supreme Court is now divided between 4 liberal justices (Ginsberg, Kagan, Breyer and Sotomayor) and 4 conservative justices (Roberts, Alito, Thomas and Kennedy). President Obama has the opportunity to appoint a justice to the Court which could give liberals a 5-4 majority for the first time in over a generation.

    This prospect has, of course, resulted a deep division between the Republicans and the Democrats in the Senate.

    “The American people should have a voice in the selection of their next Supreme Court justice,” stated Senator Mitch McConnell (R-KY), the Republican majority leader. “Therefore, this vacancy should not be filled until we have a new president.”

    “It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat,” said Senator Harry Reid (D-NV), the Democratic minority leader. “Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities.”

    In reality, few observers expect President Obama to leave a seat on the Supreme Court vacant. It expected that he will soon nominate a someone to fill Justice Scalia's seat on the Court.

    However, since the GOP-controlled Senate must vote on President Obama's nominee, one can expect the hearing before the Senate Judiciary Committee to be contentious and for the appointment to be a major issue during the Presidential election.

    There are many superbly qualified candidates for Justice Scalia's seat on the court for President Obama to consider. Here are two:

    Jacqueline Nguyen is a former prosecutor who was unanimously confirmed by the U.S. Senate in 2009 to serve as a District Court Judge. Later, she was elevated to the U.S. Court of Appeals for the 9th Circuit. She is the daughter of a South Vietnamese Army Major who worked closely with U.S. intelligence officials. At the age of 10, she and her family were transported out of Vietnam by a US military helicopter. She lived in a refugee camp in Camp Pendleton in Southern California for several months. She worked her way through college and law school at her family's donut shop. She is the first Asian-American female ever to serve as a federal appellate judge.

    Sri Srinivasan is a judge on U.S. Court of Appeals for the D.C. Circuit. He was confirmed by the U.S. Senate by a unanimous vote in 2013. He immigrated to the U.S. from India. He is a graduate of Stanford Law School and clerked for former Supreme Court Justice Sandra Day O'Connor. He worked in private practice and served as the Deputy Solicitor General in the U.S. Department of Justice. He has argued over 20 cases before the Supreme Court. He is considered a judicial moderate. If nominated and confirmed, he would be first Asian-American Supreme Court Justice.
  5. Was Elvis' Manager an Illegal Alien?

    Who is more of an American idol than Elvis Presley?

    The Beatles? No, those lads were from Liverpool.

    What made a teenager from Tupelo, Mississippi, into an icon of music, television and film?

    Yes, Elvis was extremely talented. His rock and rock style was fabulous, but he did not write his own songs, wasn't much of a guitarist and his acting left a lot to be desired.

    One thing that Elvis had that many of his contemporaries lacked was his manager, Colonel Tom Parker. Colonel Tom, as he was called, was the reason both he and Elvis made millions of dollars (a 50-50 split, yes really!) and the reason that Elvis never toured abroad.

    Elvis said of Colonel Tom, "I don't think I'd have ever been very big if it wasn't for him. He's a very smart man."

    Colonel Tom was frequently seen wearing his trademark cowboy hat and puffing on his cigar. According to legend, he was born in Huntington, West Virginia and ran away from home to join the circus. He served in the US Army in the 1920s and married Marie Mott, a US citizen, in 1935.

    But though the true facts did not come out until years after Elvis's death, in 1977, "Colonel Tom" was an invented persona. In responding to a lawsuit in 1982, Colonel Tom revealed that he was a Dutch citizen. His real name was Andreas Cornelis van Kujik and he was born in the Netherlands.

    And why did Mr. van Kujik turn down multi-million dollar offers received for Elvis to perform abroad?

    You guessed it! Colonel Tom was living illegally in the US from the 1920s until his death in 1997. And control freak that he was, he knew that if he ever accompanied Elvis abroad, there was no way for the Colonel to reenter the US.

    Colonel Tom may have been able to legalize his immigration status through his US citizen wife or through other means, but he choose not to do so. We may never know why, although his Wikipedia bio provides some possible reasons.

    Perhaps, his life can best be summed up by Priscilla Presley's eulogy at his funeral:

    "Elvis and the Colonel made history together, and the world is richer, better and far more interesting because of their collaboration. And now I need to locate my wallet, because I noticed there was no ticket booth on the way in here, but I'm sure that the Colonel must have arranged for some toll on the way out."
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