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Carl Shusterman's Immigration Update

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  1. 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

  2. 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

  3. The July 2013 Visa Bulletin, and Beyond

    The July 2013 Visa Bulletin contains good news for those waiting in line under the worldwide employment-based third category (professionals, skilled and unskilled workers). The category advances another 4 months in July. The waiting time is now 4 1/2 years, down from 6 years just a few months ago. 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 3 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 4 months and the 2B category advances almost 4 months. Other worldwide family-based categories advance between 3 and 5 weeks. Family categories for the Philippines advance somewhat faster especially the F1 category which sprints ahead 6 months. Family-based waiting times for Mexico advance significantly for both the 2A and the 2B categories.

    The charts below tell the story in more detail:


    FAMILY CATEGORIES


    Categories Worldwide China (PRC) Mexico Philippines
    1st 6-1-06 6-1-06 8-22-93 7-1-00
    2A 10-8-11 10-8-11 9-1-11 10-8-11
    2B 11-1-05 11-1-05 11-1-93 12-22-02
    3rd 10-1-02 10-1-02 4-22-93 11-22-92
    4th 5-22-01 5-22-01 9-22-96 12-15-89


    EMPLOYMENT CATEGORIES


    Categories Worldwide China (PRC) India Mexico Philippines
    1st Current Current Current Current Current
    2nd Current 8-8-08 9-1-04 Current Current
    3rd 9-1-09 9-1-09 1-22-03 1-1-09 10-1-06
    Unskilled 1-1-09 3-22-04 1-22-03 1-1-09 10-1-06
    4th Current Current Current Current Current
    Religious Current Current Current Current Current
    5th Current Current Current Current Current


    STATE DEPARTMENT PREDICTIONS


    VISA AVAILABILITY FROM AUGUST to OCTOBER


    FAMILY-sponsored categories (potential monthly movement)


    Worldwide dates:
    F1: Up to five weeks
    F2A: Could become "Current" at some point during the coming months.
    F2B: Four to seven weeks
    F3: Three to five weeks
    F4: Three to five weeks


    EMPLOYMENT-based categories (potential monthly movement)


    Employment First: Current


    Employment Second:
    Worldwide: Current
    China: Up to two months
    India: At this time it appears that the availability of "otherwise unused" Employment Second preference numbers will allow for movement of this cut-off date in August and/or September. It is expected that such movement will generate heavy new applicant demand, primarily by those who are upgrading their status from the Employment Third preference category. A sustained level of heavy demand could impact the cut-off date at some point during fiscal year 2014.[/TD]


    Employment Third:
    Worldwide: No additional movement. This cut-off date has advanced 18 months during the past three months. Such rapid movement can be expected to generate a significant amount of new demand, with the impact not being felt for three to five months. Therefore, the cut-off date will be held until it can be determined what level of demand is to be expected, and whether it is likely to be sustained.
    China: No additional movement
    India: Up to three weeks
    Mexico: No additional movement
    Philippines: Up to two weeks


    Employment Fourth: Current


    Employment Fifth: Current


    The above projections for the Family and Employment categories are for what is likely to happen during each of the next few months based on current applicant demand patterns. Readers should never assume that recent trends in cut-off date movements are guaranteed for the future, or that "corrective" action will not be required at some point in an effort to maintain number use within the applicable annual limits. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables. Unless indicated, those categories with a "Current" projection will remain so for the foreseeable future.

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

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.
  4. CIR Bill Would Benefit Foreign-Born Physicians


    http://www.merritthawkins.com/uploadedImages/MerrittHawkins/Images/Gavel-Immigration%20Bill.jpg The pending Comprehensive Immigration Reform bill (S.744) would make significant and far reaching changes in the laws governing the immigration of foreign-born physicians to the United States. There would be beneficial changes to the J waiver program, H-1B status and the path to a green card would be smoother and faster.

    Most physicians obtain J-1 status to complete their graduate medical training in the United States. Upon completion of their training, these physicians must either return to their countries of origin for two years or obtain a waiver of this requirement, usually through sponsorship by an "interested government agency".

    Sponsorship is usually conditional upon the physician agreeing to practice for three years or more in a medically underserved area. Prior to 1994, only Federal agencies could sponsor foreign-born physicians for J waivers. In that year, Senator Kent Conrad of South Dakota introduced a bill which was signed into law which permitted States to sponsor 20 physicians per year for J waivers. This program has been extended numerous times, usually for 2 or 3 years at a time. In 2002, the number of J waivers under the Conrad program was increased to 30.


    Proposed Changes to the J Visas and Waivers


    The pending legislation would make the Conrad program a permanent part of the immigration law.

    J status for foreign-born physicians to complete medical residencies/fellowships would be classified as a "dual intent" status similar to H-1Bs and L-1s. A physician could no longer be denied J status on the ground that he did not intend to return to his country of origin.

    Spouses and children of J-1 physicians would no longer be subject to the two-year home residency requirement.

    The number of Conrad waivers available to a state could be raised in increments of 5 depending on the usage of waivers in various states during the previous year. In addition, the number of J waivers available to physicians working in academic medical centers outside of medically underserved areas could be raised by 3 per year under certain conditions.

    Physicians who received J waivers would no longer be required to work in H-1B status, but could work in any immigration status for which employment is authorized.

    In order to prevent foreign-born physicians from being exploited, J waivers would not be granted unless the physician's employment contract contained the following clauses:

    1) The amount of "on-call hours" per week and the compensation for such;

    2) The amount of malpractice insurance which will be provided to the physician and whether the employer will pay for this;

    3) All of the work locations, and a statement that the employer will not add work locations without the approval of the State or Federal agency requesting the waiver; and

    4) The contract may not contain a "non-compete" clause.

    If a physician's J waiver were denied under the Conrad program because the state had used up all of its slots for the year, the physician could obtain a 6-month work permit if he agreed to seek a J waiver from a state which has not used all of its J waivers. After that, the physician could extend his work permit from the time that the employer in the new state filed a Conrad waiver until the DHS either granted a change of status or denied the waiver application.

    If a J waiver physician's employment terminated before he completed the three-year period, he would not be considered to be out-of-status. Instead, he would be given 120 days to locate a new job in a medically underserved area and for his new employer to submit a petition for employment authorization on his behalf.

    The proposed law also provides that where the USCIS determines that "extenuating circumstances" exist, the physician could change employers during the 3-year required period of employment in an underserved area. This is important because some employers have taken unfair advantage of physicians who they have sponsored for J waivers. For example, some employers have failed to pay a physician at the prevailing wage or have insisted that a physician work outside of the designated medically-underserved area for 40 hours per week. If the physician does not claim "extenuating circumstances", he needs not only to complete the 3-year period in a medically underserved area, but also an extra year for each termination.

    Currently, the law provides that the physician must begin employment with a sponsoring employer within 90 days of receiving a J waiver. This requirement is impractical since it is impossible to predict when a waiver will be granted since it requires: (1) sponsorship by an Interested Government Agency; (2) approval by the U.S. Department of State; and ultimately, approval by the USCIS. If the USCIS approves the waiver too soon, the physician would have to start the job before his residency program or fellowship is completed.

    The proposed law would alter this requirement to provide that a physician must commence employment 90 days only after the latter of the following three dates:

    1) After the J waiver is approved;

    2) After completion of graduate medical education or training; or

    3) After receiving nonimmigrant status or an EAD.


    Proposed Changes to H-1Bs and Green Cards


    Where a physician completes his residency/fellowship in cap-exempt H-1B status, and an employer has submitted a cap-subject H-1B petition on his behalf, his H-1B status would automatically be extended to October 1st so that the physician does not become out-of-status or unemployable between July and

    October. However, if the physician's H-1B petition were rejected, denied or revoked, his status and employment authorization would terminate after 30 days.

    Physicians who qualify for National Interest Waivers (NIWs) by completing the 5-year service requirement in a medically-underserved area or for the Veterans Administration would be granted green cards without regard to numerical limitations.* This would occur whether a physician completed the 5-year requirement before or after the enactment of the CIR bill.

    The spouse and children of a physician would also be exempt from numerical caps whether the physician obtains a green card through an NIW or through PERM.

    Per-country limitations would be eliminated for the employment-based green card preference categories. This would dramatically reduce the time that it currently takes physicians born in India to qualify for green cards.

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

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

  5. 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.

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