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Carl Shusterman's Immigration Update

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  1. 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

  2. Supreme Court and Consular Nonreviewability: Kerry v. Din


    http://shusterman.com/images/visa-application-denied.jpg When our Founding Fathers wrote the Constitution and the Bill of Rights and established the doctrine of separation of powers, they did not carve out an exception for consular nonreviewability. This came about much later as a result of ignominious laws and rulings which excluded Chinese immigrants from the United States.


    Today, if I, a US born citizen, were sponsoring my wife for a green card, and the USCIS denied her application without explaining why, I could sue the USCIS in Federal Court to challenge the decision.


    However, if a consular officer abroad did the same, I would not have access to the Federal Courts because of the doctrine of consular nonreviewability.


    Why should the Federal Courts lack jurisdiction over the decision of a State Department consular officer to deny a green card to the spouse of a US citizen when they clearly have jurisdiction to review an identical decision by a USCIS examiner? This makes no sense whatsoever.


    The Supreme Court’s recent decision to grant certiorari in Kerry v. Din, 718 F.3d 856 (9 Cir. 2013), a Circuit Court decision which relies on a tiny crack in this seemingly absurd doctrine, allows the Court to reexamine consular nonreviewability for the first time in over 40 years.


    Here is the story behind Kerry v. Din:


    In September 2006, Fauzia Din, a US citizen, married a man born in Afghanistan. The next month, she submitted an I-130 visa petition on his behalf. In 2008, the USCIS notified her that the petition was approved and, in September of that year, Ms. Din’s husband had his green card interview.


    He answered all the questions truthfully, including the ones regarding his employment as a payroll clerk for the Afghan Ministry of Social Welfare during the Taliban regime and his job as a clerk for the Afghan Ministry of Education for the new government which came to power after the US invasion. The interviewing officer informed him that he would receive his immigrant visa in the next few weeks.


    However, after many months of inquiries from him and his wife, in June 2009, he was informed that his visa had been denied and that he was ineligible for a waiver.


    After an inquiry as to why he was inadmissible, in July 2009, the US Embassy e-mailed him that his visa had been denied under 8 U.S.C. 1182(a)(3)(B). This section of law lists a wide variety of grounds of inadmissibility due to terrorist activities.


    Did the Embassy believe that he was a terrorist, or merely that he is inadmissible for having worked as a payroll clerk for the Taliban-controlled government? The State Department refused (and continues to refuse) to answer this all-important question.


    Ms. Din sued the State Department in Federal Court in an effort to get an answer. However, the District Court Judge dismissed her complaint citing the doctrine of consular nonreviewability.


    She appealed to this ruling to the US Court of Appeals for the 9th Circuit. On May 23, 2013, the Court ruled, in a split decision, that there is a limited exception to this doctrine which is applicable to her. They ordered the State Department to provide Ms. Din with a “facially legitimate and bona fide” reason for denying her husband’s immigrant visa citing the Supreme Court’s decision in Kleindienst v. Mandel, 408 U.S. 753 (1972).


    The Court stated that while generally, federal courts are without power to review the actions of consular officers:


    “...we have recognized a limited exception to the doctrine of consular nonreviewability. When the denial of a visa implicates the constitutional rights of an American citizen, we exercise ‘a highly constrained review solely to determine whether the consular official acted on the basis of a legitimate and bona fide reason.’”


    Why is the State Department challenging this extremely limited exception when their own Customer Service Statement to Visa Applicants states, “We promise to you, the visa applicant, that...we will explain the reason for any visa denial to you.”?


    Hopefully, the Supreme Court will rule that a US citizen who has been fighting to bring her husband to the US for over 8 years, is entitled to more than a citation to a code section as the reason why a consular officer denied her husband’s application to live together with her in the US.


    More importantly, the entire rationale behind the doctrine of consular nonreviewability is contrary to the concept of a free society in which citizens are guaranteed certain rights.


    The Supreme Court, in considering Kerry v. Din, should reexamine consular nonreviewability since this doctrine undermines the right of due process of law guaranteed in the Bill of Rights.


    The Supreme Court could uphold individual rights as intended by the framers of the Constitution and protect US citizens from the unchecked power of big government by following the logic of the dissent in US ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) in which Justice Jackson, joined by Justices Black and Frankfurter, explains:


    “Now this American citizen is told he cannot bring his wife to the United States, but he will not be told why. He must abandon his bride to live in his own country or forsake his country to live with his bride...”


    “Security is like liberty in that many are the crimes committed in its name. The menace to the security of this country, be it great as it may, from this girl’s admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern. In the name of security this police state justifies its arbitrary oppressions on evidence that is secret, because security might be prejudiced if it were brought to light in hearings. The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected...”
  3. When You’re Lost in the Rain in Juarez

    http://shusterman.com/images/morales.jpg Imagine having an agency of the US government separate you from your only child.
    It all started when Mrs. Morales’s brother got his girlfriend pregnant in Mexico. They had a son together, but his girlfriend died during childbirth. He drove the child across the border to the US, and his sister and her husband, both US citizens, accepted the child as their own.

    They hired an attorney who helped them adopt their nephew in the California Superior Court.

    After the required two-year waiting period, they hired an immigration attorney who had Mrs. Morales file an I-130 visa petition which was approved by the USCIS.

    Eventually, Mrs. Morales and her son appeared at the US Consulate in Ciudad Juarez, Mexico for an immigrant visa interview.

    The interview was short, but not sweet. The consular officer informed Mrs. Morales that the I-130 had been approved in error by the USCIS, and that he was sending it back to be revoked. Why it was sent back to the USCIS remains a mystery.

    Mrs. Morales was shocked, but respectful. “My son and I will go see our attorney and get this worked out”.

    The officer informed her that while she could return to the US, her son would have to stay behind in Mexico.

    Mrs. Morales was fit to be tied. She and her husband had never been separated from their son for so much as a day. Their son spoke only English and was being treated by a physician in California for ADD.

    Her father, who lived in Tijuana, would have to care for their child until their immigration attorney could work out whatever was wrong with his immigration case. While he was happy to help watch over the child, he was also not in the best of health as he was nearly 80 years old and had recently had a heart valve transplant and he required care himself.

    As soon as she returned to Los Angeles, she met with the attorney. Neither of them understood what was wrong with the I-130. However, the attorney decided that the best course of action was to request a humanitarian parole from the USCIS to reunite the child with his parents while they explored how to get him a green card.

    She prepared a humanitarian parole application, complete with a letter from the child’s physician explaining that the child was in need of constant care. In January, one month after the application had been submitted, the USCIS wrote a letter informing her and her husband that it would take up to 90 days to process their humanitarian parole request.

    Mrs. Morales and her husband both work full-time jobs. Every Friday night, she would drive from Southern California to Tijuana to spend the weekend with her son. Because of his lack of knowledge of Spanish, he was not able to attend school in Tijuana.

    Between December and March, Mrs. Morales continued this exhausting routine, hoping that the USCIS would grant their humanitarian parole request. When this agonizing 90-day period came to an end, Mrs. Morales decided to schedule a legal consultation with me.

    The day that we were retained, we sent an inquiry to the USCIS and contacted Mrs. Morales Congressman. This paid off, but in an unexpected way. Within a few days, we received a letter from the USCIS requesting more information.

    Attorney Ellen Ma Lee and Paralegal Hilary Olson gathered the information, and quickly responded. After a short wait, we made the first of many inquiries.

    Later, I received a call from the caseworker at the Congressman’s office. They were informed by the USCIS that the application for humanitarian parole was on the “expedited track”. Yet, as week after week and month after month passed, we received no answer from the USCIS.

    Finally, last week, something very unexpected occurred. Not from the USCIS, but from CDJ. They asked Mrs. Morales to come to Consulate to submit some additional paperwork.

    Then, a notice appeared online informing Mrs. Morales that an immigrant visa had been issued to her son!

    The immigrant visa arrived by mail, and Mrs. Morales immediately drove to Tijuana. I spoke with her as she crossed the border into Mexico yesterday afternoon. In the evening, I received a message from Mrs. Morales that she and her son had crossed back into the US, and that he had been admitted as a lawful permanent resident!

    What happened at the USCIS Parole Office and why CDJ granted the child a green card after keeping him separated from his parents for nearly 8 months, we may never know.

    But Mr. and Mrs. Morales are thrilled to have their son back home, and so are we.
  4. June 2013 Visa Bulletin


    The Visa Bulletin for June 2013 contains great news for those waiting in line under the worldwide employment-based third category (professionals, skilled and unskilled workers).

    After advancing 5 months in May, worldwide EB-3 jumps forward 10 more months to September 1, 2008. In contrast, the India EB-3 priority date advances only 2 weeks. The EB-3 category for the Philippines moves ahead only 1 week.

    The worldwide EB-2 category remains current (no backlog), but while EB-2 PRC advances 8 weeks, EB-2 India does not move at all.

    The Senate CIR bill would eliminate all per-country EB quotas.

    Write your Senators and Representatives now, and ask them to support this important modification to our broken immigration system!

    The worldwide family-based preference 2A category moves forward almost 4 months while the F4 sibling category which remains at May 1, 2001. Other worldwide family-based categories advance between 3 and 7 weeks. Family categories for the Philippines advance somewhat faster especially the F1 category which sprints ahead 7 months. Family-based waiting times for Mexico barely advance at all.

    The charts below tell the story in more detail:



    FAMILY CATEGORIES


    Categories Worldwide China (PRC) Mexico Philippines
    1st 4-22-06 4-22-06 8-15-93 1-1-00
    2A 6-8-11 6-8-11 5-8-11 6-8-11
    2B 7-8-05 7-8-05 6-15-93 11-1-02
    3rd 9-1-02 9-2-02 4-1-93 11-15-92
    4th 5-1-01 5-1-01 9-15-96 11-8-89

    EMPLOYMENT CATEGORIES


    Categories Worldwide China (PRC) India Mexico Philippines
    1st Current Current Current Current Current
    2nd Current 7-15-08 9-1-04 Current Current
    3rd 9-1-08 9-1-08 1-8-02 9-1-08 9-22-06
    Unskilled 9-1-08 10-22-03 1-8-02 9-1-08 9-22-06
    4th Current Current Current Current Current
    Religious Current Current Current Current Current
    5th Current Current Current Current Current


    See the entire visa bulletin including information about the movement of the green card lottery numbers.

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