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Carl Shusterman's Immigration Update

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  1. Senators Introduce Bill to Protect Dreamers

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ID:	1147 On December 9, 2016, a bipartisan group of Senators introduced the Bridge Act which would protect 740,000 DACA recipients from deportation and allow them to continue working and studying in the United States for the next 3 years.

    Like DACA, the bill does not provide a path to green cards for Dreamers. Instead, the bill would grant them “provisional protected presence” in the US. They would be allowed to remain in the US, renew their EAD work permits and, in some circumstances, qualify for Advance Parole international travel permits.

    Since President-Elect Trump has vowed to repeal President Obama’s executive orders, the bill, if enacted, would protect Dreamers from deportation for another 3 years unless they commit a deportable offense.

    The bill would also tighten the confidentiality provisions in the law. DACA requires applicants to reveal their addresses and other personal information. The bill would prohibit the government from using this information to try to deport DACA recipients or their parents.

    Although the bill is sponsored by a bipartisan group of Democratic and Republican Senators, it is unclear whether it has enough support to pass the Republican-controlled Senate and the House of Representatives.

    The introduction of the Bridge Act is expected to put pressure on President-Elect Trump to work out a solution to the immigration status of the Dreamers.

    Trump has been equivocal about how he intends to treat the Dreamers.

    On one hand, he has pledged to repeal DACA. However, in a recent interview with Time magazine, he stated:

    “We’re going to work something out that’s going to make people happy and proud. But that’s a very tough situation. They got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.”

    Stay tuned.
  2. EADs for H-4 Spouses

    On May 26, the USCIS will begin accepting applications for form I-765 Employment Authorization Documents (EADs) submitted by certain H-4 spouses of H-1B professionals.
    What follows is a list of answers to 10 of the most frequently asked questions about this new policy:

    1. Which H-4 spouses are eligible for EADs?
    H-4 spouses of H-1B professionals with approved I-140 visa petitions or who is the beneficiary of a PERM application or an I-140 which was filed at least 365 days before the expiration of his or her 6-year limitation of stay as an H-1B nonimmigrant. If the PERM application was approved, the I-140 must have been filed with the USCIS within 180 days.

    2. What forms do I need to file?
    File form I-765 with proof of your H-4 status, show that your spouse is in H-1B status and has an approved I-140 or that a PERM application or I-140 was filed over 1 year before the ending of the 6th year of the H-1B. The filing fee is $380. If you are filing for an H-4 extension, you may apply for an EAD concurrently.

    3. How long will my EAD be valid?
    Be sure to request that your EAD last for as long as your H-4 status is valid.

    4. Are there any limits on my employment?
    No, you can work in any type of lawful employment. You can even work for multiple employers if you wish.http://shusterman.com/images/couple.png You can change jobs at any time. You can start your own business. You can stop working at any time. You can work as a salaried employee, an hourly employee or a contractor.

    5. What if my spouse and I are both in H-1B status? Can I change to H-4 status and request an EAD at the same time?
    Yes, as long as you meet the eligibility requirements discussed in Question #1 above. Your employer will probably be delighted not to have to submit and pay for an H-1B extension for you.

    6. How early am I allowed to submit my H-4 extension and EAD application?
    You can concurrently submit your H-4 extension and EAD application 6 months prior to the expiration date of your H-4 status.

    7. How long will it take for me to receive an EAD?
    An EAD should be issued within 90 days. However, if you are applying for an H-4 and an EAD simultaneously, the waiting time will be longer.

    8. What if my spouse no longer works for the employer who filed his/her approved I-140?
    This fact alone should not prevent you from obtaining an EAD. A 2000 law commonly referred to as AC-21 permits a person in H-1B status with an approved I-140 and a pending I-485 to change employers after his/her I-485 has been pending for 180 days or more as long as his/her new job is in the same or a similar occupation. No new PERM or I-140 is required. However, even if this is not the case, you will still be permitted to obtain an EAD. Your spouse will be able to retain the old priority date, but his/her new employer may have to file a new PERM application and an I-140 visa petition.

    9. Can I use premium processing to apply for an EAD? Can I file my application online? Is it possible for an H-4 child of a parent in H-1B status to apply for an EAD?
    The answer is no to each of these questions.

    10. Approximately how many H-4 spouses will be able to qualify for EADs?
    The USCIS estimates up to 179,600 H-4 spouses will be eligible to apply for EADs during the first year of this program, and 55,000 in each subsequent year. The new program does not distinguish between cap-subject and cap-exempt H-1Bs.

    Updated 05-26-2015 at 03:13 PM by CShusterman

  3. Freeing a Family from CBP Custody: A Lawyer's Perspective


    A few weeks ago, I posted a story written by one of our clients, a Registered Nurse from the Philippines employed by a hospital in the U.S., who was stopped and held by CBP officers as she and her family http://shusterman.typepad.com/.a/6a0120a639ec4a970c0128779fe276970c-800wi tried to drive north from their home in El Centro, California near the U.S.-Mexican border to Palm Springs to celebrate her husband's birthday. The entire family had pending applications for adjustment of status, but in a bizarre twist of fate, they were held by the CBP all day and threatened with criminal charges, incarceration and deportation.

    Here is the story from my point of view:


    Having worked for the INS (1976-82), I always assume that government officers are trying to do their jobs to the best of their ability. However, they have tremendous power over the lives of foreign-born persons residing in the U.S., and this power is not always exercised judiciously.

    When I arrived at my office in the morning, one of our legal assistants informed me that a client had left a message for me to call her. It was an emergency.

    I immediately returned her call, and learned that she and her family had been stopped at an interior checkpoint on the highway heading north from El Centro to Palm Springs. They were all being held in their own car. The RN and her husband had shown the officers their EAD work permits and their children's passports. The CBP officers told them that it was illegal for them to apply for adjustment of status since they had initially arrived in the U.S. as visitors. Further, since the I-94s in their children's passports had expired, they could be charged with transporting illegal aliens, a criminal offense. At the very least, they were going to be taken into custody and transported to an immigration detention facility to undergo removal proceedings.

    In the background, I could hear the loud barking of dogs, and a female CBP officer demanding that my client stop using her cell phone in a "secure area".

    This was obviously a huge misunderstanding. I asked my client if she could hand her cell phone to the CBP officer so that I could explain that my clients were legally residing and working in the U.S. However, the CBP officer stated that she did not talk with lawyers, and that my client should terminate the phone call immediately.

    Not knowing exactly where my clients were being held, I called a CBP attorney, explained the situation to him, and requested that he intervene to get my clients released. I was shocked when he replied to my request by stating the following: "So your clients have applied for adjustment of status, but their applications are still pending. Therefore, they need to return to their countries and wait for their approvals. They have no right to remain in the U.S."

    I figured that I was talking to an attorney who perhaps understood the customs side of the agency, but was completely clueless as to immigration laws and procedures. I patiently explained that persons with pending applications for adjustment of status had the right to remain in the U.S. Why else would USCIS routinely issue such persons work and travel permits? I faxed the I-485 filing receipts to the CBP attorney, and asked him to verify what I had told him with the USCIS. He agreed to do so and to call me back within an hour. However, I never heard back from him.

    Fast forward to 5pm. After several more phone calls to my clients, I determined where they were being detained. I called the phone number listed on the CBP website, and got a supervisor on the phone. He was very polite and we discussed the situation in a civil manner. He informed me that my clients' EADs had expired, but that they had continued to work in the U.S. He stated that he had no choice but to issue NTAs. I countered that if a person doesn't apply for a new EAD a few months in advance, it is common for the old EAD to expire before the new EAD is issued. However, in those situations, if the person is adjusting status through employment, section 245(k) allows the person to adjust status in the U.S. despite a short period of unauthorized status. Taking such persons into custody and issuing NTAs was a waste of governmental resources since the Immigration Judge would probably terminate proceedings to allow the person to adjust status before the USCIS. However, the supervisor, ever polite, said, "Mr. Shusterman, you may be correct, but we have to do what we have to do, and we will let the Immigration Judge decide what to do with your clients."

    I thanked him for speaking with me, and hung up the phone feeling somewhat frustrated. I thumbed through my client's file, and suddenly noticed that we had processed the EAD extensions for her and her husband (We usually advise our clients to do this on their own in order to save attorney's fees.), and that they had been issued new EADs valid until the summer of 2010.

    I immediately called the supervisor back, and offered to fax the EAD approvals to him. He sounded somewhat shocked when I told him the news. He said that he would look into the situation immediately, and check my materials against what appeared in the government's computers. This would take at least 45 minutes, and if everything checked out, my clients would be released.

    I told him that I was leaving work, and asked if I could call him in 45 minutes from my house. I also provided him with my home phone number. He agreed.

    As soon as I returned home, I called the supervisor. However, another CBP officer took my call. He informed me that the needed checks were still being performed. He called me "Carl" rather than "Mr. Shusterman" which I took as a good sign. Then he told me that all the officers at his office were impressed with my work, and that "if he ever needed an attorney, he would call me." I was stunned, and I thanked him. He said to call back around 7 pm since*my clients should be released by then.

    I ate dinner with my wife and told her the story. She was born in the Philippines, and is a former INS and Customs officer. She told me that most Customs officers that she worked with knew little or nothing about Immigration laws and procedures.

    At 7 pm, I called the CBP but could not get through. I called my client on her cell phone, and she informed me that she and her family had been released. It had been a horrendous day for her and her family, and she agreed to write her story for me to share with readers of my blog and newsletter.

    It had been an exhausting day for me as well. I was glad it had a happy ending, but I remain concerned about the next family who might be placed in a similar situation.

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

    Updated 12-02-2013 at 04:45 PM by CShusterman

  4. Chaos 75 Miles from the Border


    http://www.impowerable.com/wp-content/uploads/2012/06/writing_a_letter.jpg
    On arriving at my office on Monday, December 28, 2009, I was informed that one of my clients and her family were being detained by CBP Officers at an inland checkpoint. I immediately called her on her cell phone, and spent the rest of the day in an effort to explain to the CBP that both my client and her family were legally present in the U.S. and should immediately be released from custody. Below is the story as told by my client. I hope this will inspire the CBP to better train its officers, to treat immigrants with respect and to open the lines of communication with immigration attorneys:


    I am a Registered Nurse who has a pending application for adjustment of status for permanent residency in the U.S. I have been working in El Centro Regional Medical Center which sponsored me over 2 years ago. My family and I reside in El Centro, CA, a small city near the border of Mexico. It is very common for us to be checked by the Border Patrol when we go out of town, because anywhere we go there is a checkpoint. One checkpoint is located to the East if we are going towards Yuma, AZ, one is to the West if we are going to San Diego, CA, and another one is located in Indio, CA, if we are heading North.

    As far as I know, you need to present a valid identification document if you are asked to prove that you are legally allowed by the U.S. Immigration Service to stay in the U.S. We had been in and out of our town several times and there has never been a single problem that we encountered when being checked by a Border Patrol agent as part of the routine inspection process.

    On December 28, 2009, my family planned to go to Palm Springs, CA, to celebrate my husband's birthday. We were all excited, especially my kids. We woke up early and headed towards Highway 86. We were very much aware that we were going to pass the checkpoint at Indio, CA. We carried our identification documents with us.

    Around 8:30 am, we were checked, and sure enough, we were asked for our identification. We showed our EAD cards (for me and my husband) and Philippine passports for my 2 sons. The lady officer asked for some more documents and we showed papers from immigration that we had a pending adjustment of status for permanent residency. They instructed us to park on the side of the road, because they said that they still need to make some phone calls and check on their computer to verify something.

    We were wondering why at this time, it took them quite a while to check whatever they needed to verify about our status. We saw the lady border officer approaching our car and, we were hoping that she would let us proceed on our family trip. Instead, she said that our kids were illegally staying in the US because they had an expired I-94s. My husband tried to explain that we all had pending applications for adjustment of status for permanent residency, so the I-94s had nothing to do with our status right now. The lady officer insisted that we were all wrong, and that whoever we got that information from doesn't know anything. She emphasized that what she stated was correct because this was her job. She informed us that we could renew our I-94s at the nearest US border office for $6.00 each.

    Another officer approached us and said he would need to check his computer. So, we waited again inside our car.

    At that time, I knew I needed help because this was not the usual type of check that we had encountered before. There was something wrong going on.

    I called my lawyer's office and told the person who answered the phone the problem. She said to let the border officer check everything and not to worry because we had our legal documents and everything was good. She also said that Carl Shusterman would be in his office soon and that she would inform him about our situation.

    While still on the phone, the lady officer approached us and said that I was not allowed to use my phone. I told her that I was merely asking my lawyer for help, but she insisted that I not make any calls.

    After a while, the border officer who said he needed to do more checking came back. He said that the computer showed that our kids has overstayed their visas. He even questioned us as to why we sent them to school. He said that it was illegal for them to go to school without student visas. He also said that we could be charged with smuggling, and that our car could be taken away from us. The situation was getting worse, and the more me and my husband tried to explain, the more they got irritated. I informed them that it would be better if they spoke with my lawyer and that way he could explain more because he knows about our status. The lady officer replied that our lawyer doesn't know more about immigration legalities than they do. She also commented in an irritated voice that we were facing deportation for illegally staying in the US with expired I-94s. She wanted us to cooperate and do everything they wanted us to do for our benefit in order to ease the process.

    I was so confused as well as my husband because we could not believe what was going on at that time. It seemed that the border officers did not understand and did not know what they were doing. They were accusing us for nothing since we had done nothing wrong.

    I received a phone call from Carl Shusterman, and told him everything that was going on. A lady officer approached us again in our vehicle and said that I really don't understand that I am not allowed to use my phone. I informed her again that I was talking with my lawyer. I asked her if she could speak with him and I also told her that he could send them papers they needed to prove that we were not illegally staying in the US. She refused, and said they had their own system of checking which they can verify by themselves. She said that they were certain that we were all illegal, and then she left.

    At around 11:00 am, 3 border officers approached our vehicle and they instructed us to step out from our car because we were being arrested for illegally staying in the US. I grabbed my phone again and tried to call back my lawyer. I was so hesitant to step out from our car. The lady officer said not to use my phone, but I told her that I just needed to inform my lawyer what was happening at that moment. My husband said that we had to follow their orders and just do whatever they wanted us to do and not to create any further problems. So, we all got out from our car, while I was still trying to get hold of our lawyer over the phone. I asked the lady officer to give me a few seconds to talk to my lawyer, but she was so aggressive and even tried to push me to move faster inside the detention area. One of the officers said that our lawyer would not be helpful and that usually they do not know about immigration, and that they only want our money.

    According to my lawyer's advise, we had to follow the procedure they wanted us to do and call him back afterwards.

    Inside the detention area, more questions were asked, we were fingerprinted, and our pictures were taken. They had us sign papers. They called the Philippine consulate for us to talk, but they just left a message because they said there was no one available at that time.
    They informed us as follows:


    a) We were illegally staying in the US with expired I-94s.

    b) It was illegal for us to apply for an adjustment of status for permanent residency being B1/B2 visaholders when we came here. They said that our lawyer should know this.

    c) Illegal for letting our kids go to school in the US without proper visas. They informed us that we should have applied for student visas for our kids.

    d) Smuggling for owning a car in America.

    e) Illegally working in US, we should be carrying an H1C visa to be able to work in the US.

    f) Even though we had our EADs, we were illegally in the US because we didn't have valid visas.

    g) Although we had "pending" applications for adjustment of status, there was no approval yet, so they said that we should be out of the country, and wait for the decision in the Philippines.

    From all of these accusations they were telling us, it is clear that these Border Officers did not have any knowledge at all. Yet, they were trying to be smart and act like they knew everything.

    They keep on telling us that our lawyer did not know the legalities of immigration, and that we had been informed incorrectly about our status.

    We still managed to be patient and cooperate with them. They let our friend take our car instead of towing it. They informed us that we would be staying overnight in the detention area and would be transported to San Diego the following morning to go to a hearing before an Immigration Judge.

    I asked them if I could make a phone call, because it was nearly 5:00 pm and I knew the offices would be closed soon and I might not be able to speak with my lawyer anymore. However, they did not allow us to make any phone calls because they said they still finishing some paperwork.

    My husband and I kept ourselves calmed and composed, and were very respectful when dealing with the officers.

    Since we couldn't make any phone calls to reach for help even from our relatives in the US, I never had a wasted moment, because I kept on praying and told my sons that we should be praying for a miracle and let our Lord work to show His love and care for us.

    We never ate our meals the whole day, but they were kind enough to give us crackers, juice (with an expiration date of 08/11/09) and water to drink from a dirty water jug. We needed to use our empty juice plastic container so we could drink the water as instructed by one of the border officers.

    They let us stay inside the detention room together as a family, for which we were very thankful, but the room was not kept clean.

    I told myself that we didn't deserve being in this kind of situation and what was happening was not real. We were comforting our sons and asked them to be patient, and told them that it would be over soon.

    At around 6:00 pm, an officer named Supervisor Gonzales asked my husband to step out from the detention room. He talked to my husband and said he just spoke to our lawyer. Our lawyer sent documents via fax and proved that all our papers were legitimate. When my husband returned inside the detention room, he told us that we were free to go.

    I can't explain what I felt at that moment. I was so relieved from the stress of the day, I was so happy, but was so exhausted and mad. I wanted to say something bad and curse all those Border Officers who apprehended us, degraded us and did not gave us a chance to prove that we did not do anything illegal at all. Instead, I just cried and hugged my husband and sons.

    While we were waiting for our friend to pick us up, it was already 7:00 pm at that time, my phone rung and it was Carl Shusterman, our lawyer. I am so very thankful that he really worked hard all day to help us. I have never met him personally and had never spoken to him before. On that day that we were having a problem, I spoke to him for the first time and I felt his sincerity. No words were enough to thank our lawyer and all his staff. I am wishing more power to our lawyer and his office.

    Looking back over and over again, if only the border officers agreed to talk to our lawyer and had allowed him to send all the documents they needed to verify our status from the very start of the event, there would never have been such a waste of time and a spoiled day for all of us especially on my husband's birthday.

    We witnessed how those Border officers worked hard doing their paperwork, although it turned out to be useless, nonsense and a waste of trees. All this paperwork will be shredded according to Supervisor Officer Gonzales, and all the information from the computer will be deleted. I hope they will do this after all.

    To all the Border Officers working on that day at Indio, California, R Kearney, K Christoff, B Patterson, M Rucker, K Shurtleff and all the officers I can't recall their names, I hope you had an experience that you will never forget and that you will learn from your mistakes.

    I hope that in the future, the government will assign Border Officers who have knowledge of our immigration laws and who will be humanitarian enough to treat all individuals as equal.

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

    Updated 12-02-2013 at 04:46 PM by CShusterman

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