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Carl Shusterman's Immigration Update


    On January 13, a bipartisan group of Senators introduced the Immigration Innovation (“I-Squared”) Act of 2015.

    The Act would create a much-needed overhaul of our broken legal immigration system. It would dramatically raise the H-1B cap, and would provide much-needed reforms of the employment-based preference system for green cards. It would also raise the per-country cap for family-based green cards.

    What follows is a brief summary of the I-Squared Act.

    Temporary Visas

    • Raise the general H-1B cap from 65,000 to 115,000
    • Allow the cap to go up (but not above 195,000) within any fiscal year where early filings exceed cap and require the cap to go down in a following fiscal year (but not below 115,000) if usage at the end of any fiscal year is below that particular year’s cap
    • Remove the 20,000 limit for the Masters’ cap
    • Reform fees on H-1B visas and employment-based green cards; use money from these fees to fund a grant program to promote STEM education and worker retraining to be administered by the states
    • Grant employment authorization for H-4 visa holders
    • Establish a grace period during which foreign workers can change jobs and not be out of status and restore visa revalidation for E, H, L, O and P visas
    • Allow dual intent for foreign students at US universities

    Green Cards

    • Enable the recapture of green card numbers that were approved by Congress in previous years but were not used, and continue this policy going forward through the roll-over of unused green cards in future fiscal years to the following fiscal year
    • Exempt certain categories of persons from the employment-based green card cap:
      • Dependents of employment-based immigrant visa recipients
      • US STEM advance degree holders
      • Persons of extraordinary ability
      • Outstanding professors and researchers

    • Eliminates per-country limits for employment-based green cards
    • Increases per-country limits for family-based green cards from 7% to 15%

    The I-Squared bill would remove many of the artificial limits on obtaining temporary work visas and permanent residence for the next generation of entrepreneurs and leaders in science and technology. Providing more visas for these innovators will, in turn, create additional jobs for US workers.
  2. When You’re Lost in the Rain in Juarez 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.
  3. CSPA Lawsuit: What's at Stake for Immigrant Families? On June 19, Attorney Nancy Miller and I argued in favor of the rights of a class of immigrant families before an 11-judge panel of the U.S. Court of Appeals for the 9th Circuit. The Court's decision is a few weeks or months away.

    Many immigrant families are asking what this lawsuit means to them. Let me explain.

    The plaintiffs are persons who immigrated to the U.S. through either their brothers or sisters (family-based 4th preference category) or one of their parents (family-based 3rd preference category). The issue is whether their sons and daughters will be able to immigrate together with their parents.

    Traditionally, when a child turned 21 years of age, he no longer was eligible to immigrate to the U.S. together with his parents. The parents, once they become permanent residents, have the option of sponsoring their aged-out unmarried sons and daughters under the family-based 2B preference category. However, this entailed years, or even decades, of separation. Congress passed the Child Status Protection Act (CSPA) in 2002, in part, to solve this problem and to prevent the separate of parents from their sons and daughters.

    CSPA provides that the length of time that the visa petition was pending is subtracted from the child's age on the date that the priority date becomes current. If the resulting age is under 21, the son or daughter can immigrate together with his parents. CSPA further provides that if the child's CSPA age is 21 or over, he "retains" the "priority date of the original petition" which "automatically converts" to the "appropriate category".

    The meaning of the above words and phrases is very clear. The priority date of the original petition is the date that the 3rd or 4th preference visa petition was submitted. The appropriate category is the family-based 2B category since the child is now the unmarried adult son or daughter of a permanent resident. This enables any period of family separation to be either shortened or eliminated.

    The government disputes this by relying on the clearly erroneous decision of the Board of Immigration Appeals in Matter of Wang which held, in a two-sentence "analysis" of CSPA, that the language of CSPA is ambiguous, and that "retention" and "automatic conversion" are terms of art which are to be construed in such a restrictive fashion that no additional families would be united by this subsection of the law. Wouldn't this render the clause be completely meaningless? No, says the government. The benefit would be that some immigrant families would no longer have to submit an additional petition for their child. Quite a "meager benefit" concluded the U.S. Court of Appeals for the 5th Circuit in Khalid v. Holder. We agree. If the 9th Circuit concurs, the automatic conversion clause will lead to the reunification of families who immigrate in any of the family and employment-based categories, as well as those who immigrate through the diversity visa lottery.

    Here are two examples of how the automatic conversion clause would work:

    1. Mr. and Mrs. Santos, both citizens of the Philippines, were sponsored by Mrs. Santos sister, a U.S. citizen, on January 27, 1989. Their priority date became current on July 1, 2012. They have 3 children, born in 1988, 1992 and 1996. The sister's visa petition was approved in one month. Therefore, their children the oldest of whom was 1 year old, and other two, not even born when the petition was submitted, are now aged 24, 20 and 16. The younger two children can immigrate together with their parents. The oldest child, who is still unmarried, would benefit by the automatic conversion clause. She would be given credit for the 23 years that she stood in line together with her parents waiting for her green card. As soon as her parents become lawful permanent residents, her category would automatically convert to the family-based 2B category, and she would be permitted to immigrate to the U.S. and rejoin her family.

    Under the government's interpretation of the law, she would lose her priority date, and her parents would have to sponsor her in the 2B category, and she would have to wait, unmarried, for 32 years in order to get her green card and rejoin her family. The situation would be even worse for children born in Mexico, where the real wait for a person in the 2B category exceeds 115 years!

    2. Mr. and Mrs. Patel, both citizens of India, have lived in the U.S. for 9 years, and have two children, a son of 18 who was born in India and a daughter of 6 who was born in the U.S. Mr. Patel who graduated from a university in the U.S. in computer science changed his immigration status from F-1 student to H-1B professional. His employer sponsored him for a green card in 2008 under the employment-based 3rd preference category. The PERM application has been approved and the USCIS approved the I-140 petition in 6 months. Since the EB-3 category for Indians has been stuck in 2002 for some time now, it is very possible, indeed probable, that their son will age-out before his priority date becomes current. However, as long as the Court interprets the automatic conversion clause as a benefit to prevent the prolonged separation of families, their son will be able to retain his 2008 priority date and will automatically convert to the 2B category when his parents become permanent residents. He may be able to adjust his status soon after his parents do so as long as he remains unmarried.

    Should the government prevail in this lawsuit, he will be forced to go to the back of the line, and wait, unmarried, for over 10 years in order to become a permanent resident.

    A note of caution: No matter how the judges of the 9th Circuit Court of Appeals rule on this matter, the losing side may ask the Supreme Court of the United States to review this decision. Should this occur, the proper interpretation of this provision of CSPA will not be decided until 2013 and no families would benefit in the meantime.

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    Updated 12-02-2013 at 01:25 PM by CShusterman

    On October 20, the Senate followed the House of Representatives in voting to protect surviving family members when either the petitioner or the principal beneficiary of a petition dies. President Obama is expected to sign this legislation shortly. We link to the bill (H.R.2892) from our "Immigration Legislation" page at

    Presently, the law provides that when the petitioner or the principal beneficiary dies, so does the petition. Typically, if the beneficiaries are present in the U.S., their applications for adjustment of status are denied and they are placed in removal proceedings.

    There are few options for surviving relatives:

    For example, there is a section of the law which provides that a surviving spouse of a U.S. citizen can self-petition for permanent residence, but only if the marriage occurred at least two years before the petitioner's death.

    There is also a regulation which provides that where the petitioner of a family-based petition dies before the beneficiaries of the petition became permanent residents, the beneficiaries may request that the USCIS reinstate the petition for "humanitarian" reasons.


    Not only does the new law eliminate the infamous "widow penalty", it does so much more!

    When either the petitioner or the principal beneficiary dies in a wide variety of instances, the law acts to protect the surviving family members:

    1) Parents, spouses and children of a U.S. citizen with pending or approved petitions;
    2) Beneficiaries, principal or derivative, of pending or approved family-based petitions;
    3) Beneficiaries, principals or derivative, of pending or approved employment-based petitions;
    4) Beneficiaries, principal or derivative, of pending or approved asylee/refugee relative petitions;
    5) Nonimmigrants entitled to "T" (trafficking victims) or "U" (crime victims) status.

    Since the waiting times for family-based and employment-based preference can range up to between five and 22 years, often petitioners and principal beneficiaries die before the beneficiaries of the petition can obtain permanent residence.

    In explaining how the new law would operate, let's use the following examples:

    EXAMPLE #1 - Family-Based Petition

    Ms. Santos' sister, a citizen of the U.S., petitioned for her over 20 years ago. At that time, her children were four, two and one year of age. Ms. Santos and her husband work as technicians in the U.S. By the time her priority date became current, her children were 24, 22 and 21.

    The INS took two years to approve the visa petition. Since the length of time that the visa petition was pending can be subtracted from the age of her children under the Child Status Protection Act, the "immigration ages" of her children are 22, 20 and 19. Therefore, the youngest two are still considered to be children for purposes of adjustment of status, and the older child must wait for a final resolution of the proper interpretation of CSPA's "automatic conversion" clause.

    Ms. Santos, her husband and her two youngest children all apply for adjustment of status under section 245(i). However, shortly before their interview takes place, her U.S. citizen sister dies. Under current law, Ms. Santos only remedy would be to apply for "humanitarian" reinstatement of her petition from the USCIS, an "iffy" proposition.

    Under the new law, she and her family (except possibly her oldest child) would be protected as "survivors" and would be allowed to continue with their applications for adjustment of status despite the death of her sister.

    Assuming that Ms. Santos and her family members are all eligible for adjustment of status, the only way their applications can be denied is if the USCIS denies the visa petition by determining that its approval "is not in the public interest".

    Also, since Ms. Santos' sister has died, another sponsor for an affidavit of support is needed.

    EXAMPLE #2 - Same Scenario as Above, but Ms. Santos and her Family are Abroad

    If Ms. Santos and her family are abroad on the day that her sister dies, the petition will be revoked by the USCIS. The family's only recourse is to request a reinstatement of the visa petition on "humanitarian" grounds.

    EXAMPLE #3 - Same Scenario as Above, but Ms. Santos, not her Sister, Dies

    If Ms. Santos dies before she and her family are able to adjust status, the new law provides that the petition remains approved unless the USCIS determines that this "is not in the public interest". Her husband and the youngest two children can adjust their status to permanent residents.

    This represents a clear departure from previous laws which would have resulted in the denial of adjustment of status applications for her husband and children, and placing them under removal proceedings.

    Is there any remedy for the family under this scenario if Ms. Santos' family had remained abroad? Unfortunately, the answer to this question is "no".

    EXAMPLE #4 - Employment-Based Petition

    Dr. Kumar is a physician born in India. His wife and daughter reside with him in the U.S. He is in H-1B status. His wife and daughter are in H-4 status. Dr. Kumar completed his medical residency in the U.S. on a J-1 visa. Then, for three years, he worked in a medically-underserved area in H-1B status.

    In 2006, his employer submitted a PERM application on his behalf. It was approved in the Spring of 2007. In July 2007, when all the employment-based numbers became current, Dr. Kumar's employer submitted an EB-2 visa petition on his behalf. Simultaneously, Dr. Kumar, his wife and daughter all applied for adjustment of status. Then his priority date retrogressed.

    In 2009, Dr. Kumar was killed by a drunk driver. Under present law, the visa petition would be revoked. Under the new law, Dr. Kumar's wife and daughter would be permitted to continue with their applications to adjust status. The visa petition could only be revoked if the USCIS determined that its continued approval would not be "in the public interest".


    What follows is some advice for surviving spouses and children under the portion of the new law which relates to widows of U.S. citizens and their children:

    How Can I Benefit from the New Law?

    Under the new law, all surviving spouses can apply for themselves and their children for green cards. The new law eliminates the two-year marriage requirement for self-petitions.

    If you are physically present in the U.S., file an I-360 self-petition together with an I-485 application for adjustment of status.

    If you reside abroad, file an I-360 self-petition and follow the normal immigrant visa procedures.

    In either case, it is incumbent upon you to submit the I-360 within two years of the law's passage, and to demonstrate that the marriage was bona fide. Include wedding photos, proof of joint assets, etc.

    If your spouse dies more than two years after the law's enactment, your I-360 must be submitted within two years of your spouse's death.

    There is no affidavit of support required. However, you must demonstrate to the government that you are not likely to become a public charge.

    Also, if you remarry, you will lose your eligibility.

    How Can My Children Benefit from the New Law?

    Your unmarried children may be included in your I-360 self-petition.

    Remember that although the law defines "children" as unmarried and under 21 years of age, the Child Status Protection Act (CSPA) may allow your child's age to be "frozen". As a general rule, if the I-130 or I-360 petition was submitted prior to your child's 21st birthday, they will continue to be considered a child no matter how old they are when the USCIS decides their application for a green card as long as they remain single.

    For more information about CSPA, see our "Child Status Protection Act FAQ" at


    The new law will provide immigration benefits to "survivors" in various types of immigration cases where either the petitioner or the principal beneficiary dies before the other family members are able to become permanent residents.

    However, the law is complex, and the extent of its benefits will not be known until after the USCIS and the State Department promulgate regulations, or issue memos, explaining how they plan to implement the new law.

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