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Carl Shusterman's Immigration Update

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  1. 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.
  2. 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














  3. Ask an Attorney, Not a Paralegal


    http://www.panh.org/j0400027.jpg This seems pretty obvious, doesn't it?

    However, during the past week, I had the opportunity to talk to two different immigrants who are headed for immigration disaster because they relied on the legal advice of a paralegal rather than speaking with an attorney.

    Immigration attorneys constantly warn potential clients about the dangers of hiring immigration consultants and notarios instead of hiring experienced attorneys. However, the immigrants that I spoke to did hire law firms, but never got to speak with the attorneys. All of their inquiries were routinely handled by paralegals. Only when they were placed into removal proceedings before an Immigration Judge did the attorneys suddenly take an interest in their cases.

    At that point, the immigrants took their business elsewhere.

    Please don't get me wrong. In most immigration law firms, especially those which specialize in employment-based immigration, the majority of the day-to-day tasks are performed by paralegals. For example, most of the H-1B, L-1, O-1 and P-1 petitions and PERM applications handled by our law firm are completed by paralegals. And they do a great job.

    However, they are supervised by attorneys. And they know enough to refer any legal questions posed by a client to an attorney.

    Regrettably, some immigration law firms instruct their paralegals to handle each case from beginning to end, and to respond to all client questions, and not to bother the attorneys.

    This is a recipe for disaster, both for the client and for the law firm. While most of our paralegals know far more about USCIS fees, procedures, LCAs and such than Yours Truly, they are not necessarily experts regarding complex legal questions involving section 245i, 245k, criminal convictions, CSPA, etc., etc.

    That is where we instruct our paralegals to have our clients to talk one-to-one with an attorney.

    This is not rocket science. If you check into a hospital for heart surgery, you want to be operated on by a skilled heart surgeon, not by a registered nurse or a therapist.

    The sooner immigrants demand to speak with an attorney when they have a legal question, the sooner the offending attorneys will get with the program. After all, it is their responsibility, their license and their malpractice insurance.

    And, of course, not all attorneys are created equal. If you are looking for the best results in your immigration case, you should do some research before you hire a law firm to represent you.

    A good place to start is by viewing our video, "How to Select an Immigration Attorney".

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

    Updated 12-02-2013 at 02:28 PM by CShusterman

  4. Let Avvo Help You Select a Great Immigration Attorney


    http://www.newyorkpersonalinjuryattorneyblog.com/NYPIAB/wp-content/uploads/2011/01/Avvo-Logo.png The most frequent question that we receive is "How do I choose a good immigration attorney?" Our response is "Why settle for 'good'? Read on.

    There are websites for finding excellent hotels, wonderful restaurants and great physicians.

    How about a site for choosing an attorney? See http://www.avvo.com

    During the past year, Avvo has emerged as the premier site for selecting an attorney.

    Avvo, short for avvocato (Italian for attorney), is gaining not only in popularity but in usefulness.

    Great immigration attorneys will tell you that by the time 30% of potential clients consult with them, some incompetent attorney or "consultant" has already screwed up their case, often beyond repair.

    So, the challenge is for persons requiring immigration legal assistance is to make sure that the attorney that they entrust their future to knows what he or she is doing.

    The Avvo website helps you choose a good attorney and avoid choosing a bad one in each of the following ways:

    A) On the profile of an attorney with a disciplinary record with the State Bar where he practices law, Avvo will prominently display a bright red banner containing the word "Attention" and an exclamation mark. To the right of this icon are the words "This lawyer has been cited for professional misconduct." If you are curious, the details of the sanctions are listed below.

    B) Clients are permitted, even encouraged, to review their attorneys. They give their attorney an overall rating (one to five stars) followed by ratings in the following four areas: (1) Trustworthy; (2) Responsive; (3) Knowledgeable; and (4) Kept Me Informed. Then the client is free to write about the attorney in detail if he wishes.

    C) Other attorneys are encouraged to endorse their fellow attorneys;

    D) Avvo contains profiles of over 90% of the attorneys in the United States. Chances are, if your attorney has not uploaded his photo, then he has not "claimed" his Avvo profile. Attorneys may claim their profile, and complete an "overview" of their law firm including their (1) practice areas; (2) fees and payments; (3) contact information; (4) languages spoken; and (5) they may post videos and photos. They may also complete their resume which includes their (1) licenses; (2) work experience; (3) education; (4) awards and (5) associations. Finally, Avvo lists their "portfolio" which includes (1) legal guides posted online; (2) answers to questions posted online; (3) cases; (4) publications and (5) speaking engagements.

    E) Based on all of the foregoing information, Avvo assigns a rating to each attorney ranging from "Poor" to "Superb". Here is what Avvo has to say about their rating system: "The Avvo Rating is our effort to evaluate a professional's background. The rating is calculated using a mathematical model that considers the information shown in a professional's profile, including a professional's years in practice, disciplinary history, professional achievements and industry recognition -- all factors that, in our opinion, are relevant to assessing a professional's qualifications. For some professionals, the only information we have been able to collect is the publicly available information from state bar associations or other organizations that license professionals. If that is all we have, then we display an Avvo Rating for the professional of either 'Attention' or 'No Concern.'

    Presently, there are under 100 immigration attorneys that Avvo bestows its highest rating (10.0 Superb) upon. How do you choose between these attorneys?

    A) You can search attorneys by location although in many cases, it is irrelevant where an immigration attorney is located;

    B) You can study the profiles of each of the attorneys that you are interested in. Don't just read what they say about themselves. Everyone wants to looks good. Pay more attention to what their clients have to say about them.

    C) Avvo has a useful feature which allows you to compare one attorney against another. Let's say that you have clicked the box near the top of the Avvo screen entitled "Find a Lawyer". Next, type in the word "Immigration" in the box below, and if you wish, your location to the right. Then click the green box marked "Find Lawyers". Let's say that you typed "Immigration" and "California". Avvo will display the profiles of over 800 different attorneys in order of their Avvo rankings. To the right of their names and just above their ranking, there are small boxes. Use your mouse to check the boxes of the attorneys who you are interested in. Then, at the bottom of the screen, click the green box "Compare". Avvo lists summary information from each lawyer's profile. From this, you can choose which lawyers you want to contact.

    Is Avvo perfect? Of course not! And neither is TripAdvisor.com in choosing hotels and Yelp.com in choosing restaurants. However, my wife and I consult both of these websites, and find that they are accurate about 90% of the time.

    In order to consider other factors which I believe are important in choosing an immigration attorney, watch our video "How to Select An Immigration Attorney".

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

    Updated 12-02-2013 at 07:13 PM by CShusterman

  5. How to Select an Immigration Attorney


    http://img.ehowcdn.com/article-new-thumbnail/ehow/images/a01/va/vu/select-estate-planning-attorney-800x800.jpg Last Friday was a depressing day for me. A businessman and his daughter visited me in my office. When I asked how they had learned about our law firm, they said a lot of flattering things about how "famous" we were and about our "great" website.

    However, when I analyzed their case, it quickly became apparent to me that nothing could be done to help them. It was too late. The man's I-140 (EB1-3) which was submitted in April 2001 had been denied, and his former attorney had advised them to not to appeal, but to have the employer file a new I-140. The new I-140 was also denied as were their I-485s. Since the man's L-1 status had long since expired, his whole family had been placed under removal proceedings.

    His present lawyer had advised him to have his employer submit a 3rd I-140 on his behalf and for him and his family to file new I-485s on the basis that he was eligible for adjustment of status under section 245(i).

    Suddenly, I became the bearer of bad news: "Sir, you are ineligible for benefits under section 245(i). Your initial I-140 was denied because the INS concluded that you were not an executive or manager, that the foreign and domestic companies were unrelated and that you were not being paid at the proferred wage. Furthermore, your employer did not appeal the I-140 denial. So, what is your argument that the I-140 meets the 'approvable when filed' standard for section 245(i) eligibility?"

    Yet, both his previous and present attorneys were in agreement that he was covered under section 245(i). I told him that I disagreed, and therefore, could not take his case. He and his daughter left my office disappointed.

    Every potential client that I saw on Friday had a similar story, and it was too late to repair any of their damaged cases. In my opinion, each of them will have their cases denied by an Immigration Judge. What's more, they will pay other attorneys many thousands of dollars only to lose their cases, appeal them to the BIA, and then lose again. Eventually, these unfortunate people will be ordered to either leave the United States "voluntarily" or face deportation.


    COULD THESE RESULTS HAVE BEEN AVOIDED?

    Absolutely!

    Section 245(i) has been on the books for over 15 years. All immigration attorneys should be able to properly analyze the facts of a case, and advise a client whether his I-140 complies with the "approvable when filed" standard under section 245(i).

    But how is a person supposed to know whether an immigration attorney is giving him good advice? In fact, how does a person go about selecting a good immigration attorney to represent him?

    There are over 11,000 members of the American Immigration Lawyers Association (AILA). Some are excellent attorneys, others are so-so, but more than a few are absolutely terrible. All immigration attorneys are not created equal. How is an immigrant, untrained in the intricacies of the law, supposed to select a competent attorney?

    I have prepared a free video entitled "Ten Rules for Selecting an Immigration Attorney". Take a few minutes and watch this video at


    CERTIFIED SPECIALISTS IN IMMIGRATION LAW

    Immigrants frequently choose attorneys just because they speak their language or because they are from the same country. Many Chinese choose Chinese attorneys, Filipinos tend to select Filipino attorneys, etc.

    Some immigration attorneys have built huge followings by blanketing ethnic newspapers with ads touting their successes.

    Other attorneys, including Yours Truly, are known largely through their websites.

    However, speaking a particular language, running big ads or having a popular website is no guarantee of quality. Expertise and experience are far more important than "self-advertised or paid" prominence.

    In my video, I stress one important criterion that is nowhere mentioned in the section of the USCIS website entitled "Finding Legal Advice" or in the ads or websites of most immigration attorneys.

    A number of states put attorneys through a rigorous system where they must pass a difficult examination regarding the intricacies of immigration law, require that they have a certain amount of experience in various facets of immigration law (employment-based, family-based, asylum, deportation defense, etc.) and obtain recommendations from their colleagues. A committee checks to make sure that the attorney is in good-standing with the bar association. Only then can an attorney be deemed to be a Certified Specialist in Immigration Law.

    Several years ago, I had the privilege of serving on the committee which writes and grades the examination for California attorneys seeking Certified Specialist status in Immigration Law. I can state, without hesitation, that the examination was extremely difficult to pass, and that every attorney who our committee recommended to be a Certified Specialist was both experienced and a true expert in the field.

    In my opinion, persons seeking legal advice from immigration attorneys could do no better than to restrict their search to pre-screened Certified Specialists in Immigration Law.


    LOCATION, LOCATION, LOCATION ?

    This mantra is a good rule of thumb when you are looking to buy a house. It is less helpful when you are seeking immigration legal advice. Immigration law is federal. Therefore, an immigration lawyer in Texas or California can represent corporate and individual clients in all 50 states.

    For example, during the past few weeks, attorneys in our law firm flew to New York City, Reno, Dallas and Philadelphia to represent clients. In a typical case, however, the petitions and applications are simply mailed to the USCIS, and no interview is required. The location of the attorney is irrelevant, while the skill of the attorney is paramount.

    The USCIS promised to link to lists of Certified Specialists in Immigration Law as a public service. See


    However, they seem to have reneged on their promise.
    Don't despair. Below, we link to the web addresses of all Certified Specialists in Immigration Law around the United States.


    HOW TO FIND A CERTIFIED SPECIALIST IN IMMIGRATION LAW

    Four states currently certify attorneys as specialists in immigration law. If enough savvy consumers of legal services use certified specialists, we predict their will be a clamor in all states to certify legal specialists in the future.

    CALIFORNIA


    FLORIDA



    NORTH CAROLINA



    TEXAS




    WHAT CAN A CERTIFIED SPECIALIST DO FOR YOU?

    Should you hire a Certified Specialist in Immigration Law?

    Take a look at the brochure written by the California State Bar at


    Hopefully, you will hire a Certified Specialist in Immigration Law to assist you with your immigration case.

    If you do, you can obtain top-notch legal advice and avoid the unfortunate dilemma faced by the businessman and his daughter discussed at the beginning of this article.

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

    Updated 12-02-2013 at 05:49 PM by CShusterman

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