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Carl Shusterman's Immigration Update

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  1. September 2013 Brings Good News

    The September 2013 Visa Bulletin is like an early Christmas gift come early for thousands of family-based and employment-based immigrants.

    On the family side, the 2A category (spouses and children of permanent residents) remains current (no backlogs) for a second month in a row. The retrogression is bound to start come October so the time to apply is now.

    The biggest advance on worldwide numbers is the 2B category (unmarried adult sons and daughter of permanent residents) which moves forward 10 weeks. For Filipino unmarried adult sons and daughters of U.S. citizens, the numbers advance over 4 months.

    FAMILY CATEGORIES

    Categories Worldwide China (PRC) Mexico Philippines
    1st 9-15-06 9-15-06 9-8-93 5-8-01
    2A Current Current Current Current
    2B 2-15-06 2-15-06 2-22-94 1-22-03
    3rd 1-22-03 1-22-03 5-15-93 12-22-92
    4th 7-22-01 7-22-01 10-8-96 2-15-90

    The worldwide EB-3 category (professionals, skilled and unskilled workers) jumps ahead by 1 1/2 years to July 10, 2010. And, at last, there is some good news for persons born in India. EB-2 (advance degreed workers) advances 5 1/2 months and EB-3 a full 8 months.


    EMPLOYMENT CATEGORIES

    Categories Worldwide China (PRC) India Mexico Philippines
    1st Current Current Current Current Current
    2nd Current 8-8-08 6-15-08 Current Current
    3rd 7-1-10 7-1-10 9-22-03 7-1-10 12-1-06
    Unskilled 7-1-10 6-15-04 9-22-03 7-1-10 12-1-06
    4th Current Current Current Current Current
    Religious Current Current Current Current Current
    5th Current Current Current Current Current

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    Updated 11-20-2013 at 12:17 PM by CShusterman

  2. Family 2A Goes Current in August

    The August 2013 Visa Bulletin contains great news for both spouses and children of permanent residents. As of August 1, the Family 2A category will be current for all countries.

    If you have a green card, and your spouse (and/or children) are lawfully present in the U.S., they should get ready to file their I-485 packets in August. Even if the category retrogresses later on, they will be able to remain in the U.S. together with you. In 90 days, they will receive their work and travel permits. Your spouse will be able to get a drivers license. Your kids will be able to enroll in school.

    If the I-130 petition is pending, they can file their I-485s. If you have not filed anything for them, get ready to file I-130s and I-485s in August.

    If you were waiting to naturalize before you sponsored them for green cards, or before you got married, wait no longer. Sponsor them in August, or marry your boyfriend or girlfriend in July, and get the paperwork ready to file in August.

    And given the Supreme Court's recent decision striking down section 3 of DOMA, remember that the above advice applies to same-sex couples as well.

    If your spouse is abroad or entered the U.S. unlawfully, things are a bit more complex. The time to see your immigration lawyer is now!

    Below are the dates for the family-based categories in the August 2013 Visa Bulletin:

    FAMILY CATEGORIES

    Categories Worldwide China (PRC) Mexico Philippines
    1st 9-1-06 9-1-06 9-1-93 1-1-01
    2A Current Current Current Current
    2B 12-1-05 12-1-05 2-1-94 12-22-02
    3rd 12-8-02 12-8-02 5-1-93 12-1-92
    4th 6-22-01 6-22-01 9-22-96 1-8-90

    The big news in employment-based numbers is that India EB-2 advances from 2004 to 2008. If this affects you, be sure to file your I-485 in August.

    EMPLOYMENT CATEGORIES

    Categories Worldwide China (PRC) India Mexico Philippines
    1st Current Current Current Current Current
    2nd Current 8-8-08 1-1-08 Current Current
    3rd 1-1-09 1-1-09 1-22-03 1-1-09 10-22-06
    Unskilled 1-1-09 3-22-04 1-22-03 1-1-09 10-22-06
    4th Current Current Current Current Current
    Religious Current Current Current Current Current
    5th Current Current Current Current Current

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  3. Great News for Spouses/Children of Green Card Holders

    The August 2013 Visa Bulletin contains great news for both spouses and children of permanent residents. As of August 1, the family-based 2A category will be current for all countries.

    If you have a green card, and your spouse (and/or children) are lawfully present in the U.S., they should get ready to file their I-485 packets in August. Even if the category retrogresses later on, they will be able to remain in the U.S. together with you. In 90 days, they will receive their work and travel permits. Your spouse will be able to get a drivers license. Your kids will be able to enroll in school.

    If the I-130 petition is pending, they can file their I-485s. If you have not filed anything for them, get ready to file I-130s and I-485s in August.

    If you were waiting to naturalize before you sponsored them for green cards, or before you got married, wait no longer. Sponsor them in August, or marry your boyfriend or girlfriend in July, and get the paperwork ready to file in August.

    And given the Supreme Court's recent decision striking down section 3 of DOMA, remember that the above advice applies to same-sex couples as well.

    If your spouse is abroad or entered the U.S. unlawfully, things are a bit more complex. The time to see your immigration lawyer is now!


    Below are the dates for the family-based categories in the August 2013 Visa Bulletin:


    FAMILY CATEGORIES


    Categories Worldwide China (PRC) Mexico Philippines
    1st 9-1-06 9-1-06 9-1-93 1-1-01
    2A Current Current Current Current
    2B 12-1-05 12-1-05 2-1-94 12-22-02
    3rd 12-8-02 12-8-02 5-1-93 12-1-92
    4th 6-22-01 6-22-01 9-22-96 1-8-90



    The big news in employment-based numbers is that India EB-2 advances from 2004 to 2008. If this affects you, be sure to file your I-485s in August.


    EMPLOYMENT CATEGORIES


    Categories Worldwide China (PRC) India Mexico Philippines
    1st Current Current Current Current Current
    2nd Current 8-8-08 1-1-08 Current Current
    3rd 1-1-09 1-1-09 1-22-03 1-1-09 10-22-06
    Unskilled 1-1-09 3-22-04 1-22-03 1-1-09 10-22-06
    4th Current Current Current Current Current
    Religious Current Current Current Current Current
    5th Current Current Current Current Current

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  4. Unlawful Deportations of U.S. Citizens

    http://www.littleapplepost.com/wp-content/uploads/2012/11/deportation.jpg Today, I read an obituary in the Los Angeles Times entitled "He documented 1930s deportations". As an immigration attorney, and a former INS prosecutor, I wondered "What deportations?".

    The obituary was about Raymond Rodriguez (1926-2013), a historian from Long Beach, California who died on June 24. When Raymond was 10-years-old, his father, who had immigrated to the United States in 1918, was deported, never to see his family again.

    In 1995, he co-authored a book with university professor Francisco Balderrama entitled "Decade of Betrayal" which focuses on the unlawful deportation of over one million persons to Mexico in the 1930s. To my astonishment, it is estimated that 60% of the people deported to Mexico were U.S. citizens. According to the article, this program was an effort to free up jobs for white Americans during the Great Depression. "Americans, reeling from the economic disorientation of the depression, sought a convenient scapegoat. They found it in the Mexican community," as stated in the "Decade of Betrayal".

    How could I, as an immigration attorney for almost 40 years be completely ignorant of this? How could hundreds of thousands of U.S. citizens be deported? Aren't we a country of laws where citizens and immigrants alike have certain basic rights?

    Nevertheless, it is clear that these unlawful deportations are not figments of Mr. Rodriguez's imagination.

    Both the State of California and the Los Angeles County Board of Supervisors, but not our Federal Government, have apologized for their roles in the illegal round-ups of citizens, immigrants and their families at dance halls, markets, hospitals, theaters and parks, loading them onto trains and vans and deporting them to Mexico. These illegal raids and deportations occurred all across the U.S. during the 1930s, not just in Southern California.

    Former State Senator Joseph Dunn, a self-described "Irish white guy from Minnesota", who sponsored the 2005 legislation in California that apologized for the illegal deportations states that "it is no exaggeration to say that without the scholarly work by Ray (Rodriguez) and Francisco (Balderrama), no one but a handful of individuals would ever know about the illegal deportations of Mexican Americans in the 1930s".

    I plan to buy the book, but in the meantime, I watched two YouTube videos on the subject "Deportations of Mexican Americans in the 1930s" and "A Forgotten Injustice", read an online newspaper story in USA Today entitled "U.S. Urged to Apologize the 1930s Deportations" and a Wikipedia entry entitled "Mexican Repatriation".

    One paragraph of the USA Today story is particularly troubling:

    ""The slogan has gone out over the city (Los Angeles) and is being adhered to -- 'Employ no Mexican while a white man is unemployed,' " wrote George Clements, manager of the Los Angeles Chamber of Commerce's agriculture department, in a memo to his boss Arthur Arnoll. He said the Mexicans' legal status was not a factor: "It is a question of pigment, not a question of citizenship or right." "

    The Wikipedia entry goes into considerable detail about what happened and states that these events are not widely covered in American history textbooks. Of particular interest to me is the following:

    "Most people were unconstitutionally denied their legal rights of Due Process and Equal Protection under the Fourth and Fourteenth Amendment. Any presence of the law was absent whilst hundreds of thousands of people were interrogated and detained by authorities. When it came to federal deportation proceedings, undocumented immigrants, once apprehended, had two options. They could either ask for a hearing or "voluntarily" return back to their native country. The benefit to asking for a hearing was the potential to persuade the immigration officer that if they were returned to their home country they would be placed in a life threatening situation (which was the case for those who had fled the war or were escaping religious persecution) and would be able to stay under the current immigration law as refugees, but if they lost the hearing, they would be barred from ever returning to the United States legally again. Although requesting a hearing was a possibility, immigration officers rarely informed undocumented immigrants of their rights, and the hearings were "official but informal," in that immigration inspectors "acted as interpreter, accuser, judge, and jury" (Balderrama 67). Moreover, the deportee was seldom represented by a lawyer, a privilege that could only be granted at the discretion of the immigration officer (Balderrama). The second option, which was to voluntarily deport themselves from the US, would allow these individuals to reenter the US legally at a later date because "no arrest warrant was issued and no legal record or judicial transcript of the incident was kept" (Balderrama 79). However, many were being misled and enticed to leave the country by county officials who told Mexicans if they left now they would be able to return later."

    This is indeed a sad and shameful chapter of our history, one that deserves to be known and understood by all Americans so that such events will not be repeated now nor in the future.

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

  5. Supreme Court Agrees to Review CSPA Victory in the Court of Appeals

    http://wiki.lexisnexis.com/academic/images/7/76/Us_supreme_court_seal.png On June 24, the Supreme Court of the United States granted the Department of Justice's Petition for a Writ of Certiori, agreeing to review the decision of the U.S. Court of Appeals for the 9th Circuit in the CSPA case of DeOsorio v. Mayorkas.

    In that ruling, an en banc Court rejected the government's restrictive interpretation of the "automatic conversion" clause of the Child Status Protection Act (CSPA). That clause created section 203(h)(3) of the Immigration and Nationality Act, which states as follows:

    "RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition."

    Paragraph (1) allows sons and daughters of persons coming to the U.S. as employment-based and family-based immigrants to subtract the length of time that the visa petition (I-130, I-140, etc.) filed on their behalf was pending from their ages as of the date that their priority dates became current. If the resulting age is less than 21 years old, they are permitted to immigrate, or adjust their status, together with their parents. If the resulting age is 21 years or over, paragraph (3), the automatic conversion clause, must be applied.

    Although the language of CSPA makes it perfectly clear that paragraph (3) applies only if the child has "aged-out" despite the mathematical formula in paragraph (1), the Board of Immigration Appeals in Matter of Wang, 25 I&N Dec. 28 (BIA 2009) held that paragraph (3) applies only to a tiny subset of children who age-out under paragraph (1). Not only is this interpretation unsupported by the language of the statute and by the legislative history of CSPA, but failing to apply both paragraphs to the same set of beneficiaries would lead to absurd results.

    Consider the case of Rosalina DeOsorio, the lead plantiff in the lawsuit. In 1998, her mother, a U.S. citizen, sponsored Rosalina and her 13-year-old son for green cards. However, by the time that their priority date became current, Rosalina's son had recently turned 21-years-old. Because her mother's visa petition was quickly approved by the government, the formula in paragraph (1) did not reduce her son's age below 21 which would have permitted him to immigrate to the U.S. together with his mother. Instead, they have remained separated for 8 years because the government which readily concedes that paragraph (1) applies to him, contends that paragraph (3) does not.

    Such a restrictive interpretation results in some rather bizarre outcomes.

    Imagine for a moment that Rosalina had a sister. Let's call her Suerte. Suerte also has a son, born 3 years before Rosalina's son. In 1998, their U.S. citizen mother sponsored both Rosalina and Suerte and their sons. Clearly, if Rosalina's son aged-out in 2005, Suerte's son being 3 years older, would have aged-out in 2002 and would not have been able to accompany his mother to the U.S., right? Not so fast. Remember that the operation of paragraph (1) depends on how long the visa petition was pending. Let's suppose that in the case of the petition for Suerte, her mother forgot to attach some required paperwork. The government issued a request for evidence. Although the mother mailed it to the government, the petition got lost in the shuffle, and was not approved until 2002. When their priority date became current in 2005, Suerte's son was already 24-years-old. However, because the petition was pending for 4 years, his CSPA age under paragraph (1) was only 20-years-old, thus allowing him to immigrate to the U.S. with his mother.

    In this not-so-far-fetched scenario, Suerte's 24-year-old son is able to immigrate together with his mother while his 21-year-old cousin remains separated from his mother for almost a decade with no end in sight. Clearly, whether one qualifies as a child under paragraph (1) depends totally upon luck. The longer the government takes to approve your petition, the luckier you are. It is no surprise then that Congress provided benefits under paragraph (3) for those who did not qualify under paragraph (1). However, if the government's argument is correct, and 99% of the children who age-out are ineligible for benefits under paragraph (3), thousands of families will be forced to remain separated due to circumstances beyond their control.

    The government's interpretation, which would force Rosalina's son, but not Suerte's son, to go to the back of the line, clearly leads to a ridiculous result. Allowing Rosalina's son credit for the years that he stood in line together with his mother, as provided for in paragraph (3), both comports with existing laws and regulations regarding the retention of priority dates when a person moves from one preference category to another and insures that the system is just and reasonable.

    Our immigration system was created to insure family unity. In drafting CSPA, Congress intended to design a rational system rather one which is arbitrary. Refusing to read paragraph (1) and paragraph (3) as applying to the same set of sons and daughters would turn our immigration system into something akin to a Las Vegas craps game.

    P.S. - If Rosalina and her son were born in Mexico (which they were not), the wait for him to be able to join her in the U.S. would be 115 1/2 years under the per-country quota system! This is because there are over 200,000 unmarried sons and daughters of permanent residents from Mexico waiting in line in the 2B preference category, but only 1,841 are permitted to immigrate in a single year. So, for Mexicans, adopting the government's argument is not simply ordering a child to go to the back of the line. It is more like forcing him to walk the plank.

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

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