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Carl Shusterman's Immigration Update

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  1. USCIS Filing Fees to Increase Starting December 23

    Need a good reason to file your application for an immigration benefit sooner rather than later?


    The USCIS will significantly raise filing fees for over 3 dozen types of applications and petitions beginning on December 23, 2016, some by over 100%.


    While the steepest increases will be for EB-5 investors and regional centers, filing fees for commonly-used applications and petitions will also be raised.


    • US Citizenship


    Want to become a US citizen through naturalization? The price for filing an N-400 form (which used to be $15 when I was an INS Citizenship Attorney) is slated to rise from $595 to $640.


    However, there will be a new partial fee waiver for N-400s filed by qualified low-income individuals.


    Do you have foreign-born children who either acquired US citizenship through you at birth or derived citizenship as minors? I hope you are sitting down while you are reading this. The filing fees for forms N-600 and N-600K will almost double, from $600 to $1,170!


    Suggestion: Save your money and apply for a US passport instead.


    • Family-Based Immigration


    Applying for a green card for your spouse? Time to pool your money together.


    The filing fees for forms I-130, I-131, I-765 and I-485 are all rising: (1) by $115 for form I-130; (2) by $215 for form I-131; by $155 for form I-485 and by $30 for form I-765.


    However, if the I-131 and the I-765 are filed together with the I-485, you will be able to continue to pay only the I-485 fee.


    The filing fee for a form I-751 petition to remove conditions for a spouse of a US citizen will be increased to $595.


    The fee for filing a petition for a fiancée of a US citizen will rise from $340 to $535.


    • Employment-Based Immigration


    The filing fee for form I-129 which is used to petition a nonimmigrant worker will increase from $325 to $460 while the fee for an I-140 will rise from $580 to $700.


    • Fees That Will Stay The Same


    1. Biometric Services Fee
    2. Premium Processing
    3. Refugee Travel Documents
    4. Forms I-821 and I-821F


    • What You Should Do


    To the extent possible, make sure that your petitions and applications for immigration benefits are filed with the USCIS before December 23.


    Folks with low incomes will still be able to request fee waivers using form I-912.
  2. 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.
  3. USCIS Introduces “Ask Emma”

    On December 2, 2015, the USCIS introduced the feature “Ask Emma”, a virtual assistant, on www.uscis.gov. Emma is named after Emma Lazarus, the woman who wrote the sonnet “The New Colossus” which appears on a bronze plaque at the base of the Statute of Liberty (“Give me your tired, your poor…”)


    The USCIS press release states as follows: “Although Emma can currently answer many questions our customers commonly ask, her knowledge base is still growing. As customers ask more questions, Emma gets smarter and can better assist future customers.


    You can access Emma on a desktop or laptop. Soon, she’ll be expanding to mobile devices, and her Spanish language capabilities will be arriving early next year.”


    However, unlike her older Sister Siri who was born in 2011 and who speaks over a dozen languages, Emma prefers to answer your questions in writing and in English, rather than by speaking to you.


    You can ask Emma questions by clicking the “Ask a Question” link in the upper right corner of www.uscis.gov, right next to the “Search Our Site” link and typing in your question(s).


    Carl and Emma’s First Conversation


    I first talked with Emma on December 3. Below is a transcript of our brief conversation. While Emma directed me to the same pages that USCIS’s internal Bing search engine did, I found her answers to my question a bit more precise. Please share your experiences with Emma with me.


    Emma: Hi, I’m Emma. I’m here to help you with your questions about this site. What would you like to ask me?


    Carl: Can my child immigrate with me under CSPA?


    Emma: The Child Status Protection Act (CSPA) amended the Immigration Nationality Act (INA) by changing who qualifies as a child for purposes of immigrant. This permits certain beneficiaries to retain classification as a “child,” even if he or she has reached the age of 21.


    Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes. This situation is described as “aging out.” Congress recognized that many beneficiaries were aging out because of large backlogs and long processing times for visa petitions. CSPA is designed to protect a beneficiary’s immigration classification as a child when he or she ages out due to excessive processing times.


    Please see the page I have opened for you for additional information on how to qualify under the act and for a list of the eligibility criteria or select the link below to review visa availability.View Page


     Visa Availability and Priority Dates


    Need to go back?


     Return To Previous Page


    Carl: He was 15 when my sister filed a visa petition for me. Now, my priority date is current, but he is 22 years old.


    Emma: The Immigration and Nationality Act (INA) sets the number of immigrant visas that may be issued to individuals seeking permanent resident status (a green card) each year. Immigrant visas available to “immediate relatives” of U.S. citizens are unlimited, so are always available. Immediate relatives include, parents of a U.S. citizen, spouses of a U.S. citizen and, unmarried children under the age of 21 of a U.S. citizen.


    Immigrant visa numbers for individuals in a “preference category” are limited, so are not always available. Because the demand is higher than the supply of visas for a given year for some categories, a visa queue (waiting list) forms. To distribute the visas among all preference categories, the Department of State gives out the visas by providing visa numbers according to the preference category and one’s priority date.


    See the page I've opened for you for more information.View Page


     Family Preference Categories Eligibility
    Need to go back?


     Return To Previous Page


    Updated 12-04-2015 at 03:24 PM by CShusterman

  4. 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.
  5. 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














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