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Carl Shusterman's Immigration Update

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  1. We Give the New USCIS Website a "B-"


    https://encrypted-tbn3.gstatic.com/images?q=tbn:ANd9GcRW1R4phGMzJY2OVEsQAp9_CvYcC6gcl_cM8Bg-TTjzpz840mQD The newly revamped USCIS website (www.uscis.gov) went online on September 22.

    It is definitely an improvement over the prior website.

    For example, it is geared to the person who needs information about immigration. On the left side of the screen appear the words "Where to Start". This allows you to click the arrow next to the words "I am..." and provides you will 21 choices ranging from "U.S. citizen" and ending with "Educator or Volunteer". Below are the words "I want to..." Depending on which of the 21 categories you chose under "I am...", the choices under "I want to..." will vary accordingly.

    If you choose "I am a visitor/nonimmigrant", you will be given seven choices in the "I want to..." category. Some of these categories allow you to learn more about becoming a permanent resident through investment, employment, the lottery or as a religious worker, but nothing about becoming a permanent resident through a family member. This is obviously an oversight which we hope will be quickly corrected.

    Suppose you choose "I want to find out about becoming a permanent resident (green card holder) through employment". You must click the green button which states "Get Results". This brings you to a page entitled "Green Card Through a Job". A short article about employment-based immigration appears in the middle of the page. Over to the left, there are links to web pages on the following topics: "Green Card Through a Job Offer", "Green Card Through Investment", "Green Card Through Self-Petition" and "Green Card Through Special Categories of Jobs" as well as links to other ways to obtain a green card and green card processes and procedures.

    The right side of the screen contains a column entitled "More Information" with the following subtopics: "Forms", "Tools - Before I File", "Tools - After I File", "Other Cases Services", "Other USCIS Links" and "External Links".

    All in all, the new USCIS website appears to contain more information than did the old website. Further, it is arranged in a fashion which is much more user-friendly. We link to the new website from our "USCIS" page at


    Another significant improvement to the new website is that there is a Spanish-language version of the site. It is plain to see, however, that many pages which are available in English are not available in Spanish. For example, the Spanish "Soy..." option contains only four possibilities as opposed to the 21 choices for the English "I am...". Hopefully, this will change over time. We link to the Spanish version of the website from


    The website allows users to get e-mail updates, text messages on their smart phones regarding the status of their cases, has an RSS feed and multimedia. I watched a video entitled "Becoming a U.S. Citizen: An Overview of the Naturalization Process". As former INS Citizenship Attorney (1976-82), I was impressed by the quality of the information presented.

    We link to the page which allows persons to create an account in order to check their case status and to learn the current processing times from our "USCIS" page at


    Not everyone is impressed with the new website. When I requested a short evaluation of the site from a member of my staff, I received this following:

    "The main change to the USCIS website is the layout. The contrast in colors is pleasing to the eye and adds the illusion that the site is that much more organized. What is much more organized is the homepage. The topics that seem to be of main interest to visitors are nicely laid out. However once you click on the topic, you are connected to a page with basic information and on each side there are links that might confuse the visitor at first. After touring around this redesigned site, the visitor realizes that the same links practically exist on every page with minimal change. I don't think USCIS is providing its visitors with more information, it's just that the same information has moved!"

    I don't know that my evaluation of the new website is as harsh. However, I do have some problems with the new website.

    On August 15, a few weeks before the new website went online, we wrote "USCIS' Redesigned Website: Our Suggestions". See

    http://carlshusterman.blogspot.com/2...uggetions.html

    Did the new website adopt any of our suggestions? Read on.


    Suggestion # 1 - Please do Something to Improve the Search Engine

    As a trial, we typed in the words "L status" into the search engine and got ten results. However, none of the results led us to a page discussing what L status is and how to obtain it. Is there such a page on the USCIS website? Perhaps the search engine still needs some work. Until USCIS improves its website and search engine, feel free to go to our "Intracompany Transferees L-1 Status" page at



    Suggestion # 2 - Make the Website Easier to Navigate


    Failing to find any information about L status by clicking "Resources" near the top of the new website, we typed "Nonimmigrant Categories" in the search engine, and with a bit more effort, found the following 162-page PDF file about nonimmigrant status:


    Was this information available on the old website? We don't know. However, why not simply add an easy-to-locate "Nonimmigrant" section on the new website?


    Suggestion # 3 - Make the New Website as Good as the 1999 Website

    Here, we searched for the four Nationality Charts. The term "Nationality Charts" yields no results in the search engine. Similarly, opening "Citizenship & Naturalization Based Resources" on the left side of the screen fails to reveal any information regarding obtaining U.S. citizenship through one's parents, through derivation or acquisition. However, a google search revealed that the Nationality Charts are still on the USCIS website located in the Adjudicators' Field Manual. But why torture yourself? We link to all four Nationality Charts from our "Citizenship" page at



    Suggestion # 4 - What's with the Long URLs?


    On the new website, the URL for "Information for Employers and Employees" is

    http://www.uscis.gov/portal/site/usc...3c6a7543f6d1a/vgnextoid=838e2f8b69583210VgnVCM100000082ca60aRCRD&vgnextchannel=838e2f8b6958321
    0VgnVCM100000082ca60aRCRD

    Need we say more?


    Suggestion # 5 - Help Immigrants and Their Employers Find Good Legal Advice

    Under the heading "Humanitarian Benefits Based Resources" on the left side of the screen is the listing "Finding Legal Advice". The new website, like the old, still links to the EOIR "List of Free (sic) Legal Service Providers". As we explained in our blog, this is both misleading and untrue.

    Does the new website link to the list of "Certified Specialists in Immigration and Nationality Law" as USCIS promised me in 2006? See


    Of course not!

    All in all, the new USCIS website is an improvement over the old website, but much more remains to be done.

    We give the new USCIS website a "B-"

    Hopefully, the new website is a work-in-progress. Send your comments to


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

    Updated 12-02-2013 at 05:28 PM by CShusterman

  2. USCIS' Redesigned Website: Our Suggestions


    http://tweakyourbiz.com/marketing/files/web-redesign.jpg The USCIS announced that, on September 22, the agency "will launch a vastly improved public Web site to help customers navigate the immigration system and remain up-to-date regarding their case status." See the USCIS Fact Sheet dated August 11 at


    Almost 10 years ago, the INS redesigned its website. We were very critical. See our review entitled "INS's New Website Emphasizes Content Over Form(s)" at


    We pointed out that after spending millions of dollars and employing a great many experts, the INS website did not even allow readers to access as many INS forms as our website. The INS Webmaster responded to our review on September 20, 1999. See


    Subsequently, the INS established the best U.S. immigration website on the Internet.

    However, several years later, the INS again redesigned its website, and in the process, eliminated many of the most helpful features of the site.

    Since the USCIS is once again redesigning it's website, we wish to make a few suggestions:


    1. Please do something to improve the search engine.


    Our website has more links to the USCIS website (several hundred) than any other site on the web. So we empathize with readers who tell us that it is extremely difficult to find information on the USCIS website. For example, take a look at the first link above, the USCIS Fact Sheet dated August 11. We could not find this on the USCIS website, so we scanned in the Fact Sheet and posted it on our website.

    Example: What if someone is interested in L status? Whether they type in "L", "L status", "L visa petition" into the USCIS search engine, they get the following answer: "404 - Requested Page Not Found on Site".

    The USCIS search engine, even when it is working, leaves a lot to be desired.


    2. Make the website easier to navigate.

    Your fact sheet lists the following customer comments about the present USCIS website. It is "hard to navigate", "overwhelming" and "frustrating". That's because the layout of the website is illogical. For example, let's say someone is searching for information about L status. How do they find this information at www.uscis.gov?

    The website has the following buttons near the top of the page:

    * Services & Benefits
    * Immigration Forms
    * Laws & Regulations
    * About USCIS
    * Education & Resources
    * Press Room

    Where would one find information about L status? Probably under "Services & Benefits". Clicking this button leads one to a four-paragraph general introduction which ends with the following guidance: "For information about a particular immigration benefit or service, please select the appropriate button on the menu to your left."

    The menu on the left contains a total of 17 different items, none of them clearly relating to L status or temporary visa categories. So we decided to click the "How do I Customer Guides". This page lists six different categories of guides, one of them being "Nonimmigrants". Fine for an attorney, but does the average immigrant realize that the word "Nonimmigrants" relates to temporary visa categories like the L category? Probably not.

    However, let's assume that the reader clicks on "Nonimmigrants". This leads to a page which contains three links, the most appropriate being "How do I Change to Another Nonimmigrant Status?" Click on this link, and you are transported to a three-page PDF file. The file lists some of the 40 types of nonimmigrant categories, but provides precious little information about any of these categories. For instance, with reference to the L category, the document states "L-1A or L-1B Intracompany Transfer". Not very helpful, is it?

    By this time, the person has probably given up on the USCIS website and found all the information that they need to know about L status on our website at


    And where did we get all this great information about L status? Confession: We copied and pasted it from the old INS website! (which leads us to our next suggestion...)


    3. Bring Back the Old INS Website

    Or at least make the new USCIS website as useful as the old INS website was. For example, the USCIS used to include four charts which relate to derivative citizenship. And we linked to all four nationality charts. For example, we linked to the chart for "Acquisition of U.S. Citizenship for Children Born Abroad in Wedlock" at

    http://www.uscis.gov/propub/ProPubVAP.jspdockey=6f3ca27ff6c196d35e87dae2221deee9

    Every few weeks, the URL would change and we would have to repair the link. We wrote to the USCIS webmaster about this problem, but we never received a reply. Now, it seems that the USCIS has removed all four nationality charts from their website. Why? We have no idea.

    We could write to the USCIS webmaster, but what's the use?


    4. What's With the Long URLs?

    Check out the following web page:

    http://www.uscis.gov/portal/site/usc...0045f3d6a1RCRD

    What's this, you may ask? It's USCIS' page regarding "Lawful Permanent Residence (Green Card)". Why is the web address (aka, the URL) so long? Maybe there is a reason for the long URLs on the USCIS website, but we don't know what it is.


    5. Help Immigrants and Their Employers Find Good Legal Advice

    The USCIS website wisely advises persons not to use the services of notarios or "immigration consultants".

    However, it does little to advise immigrants where to find knowledgeable and experienced immigration attorneys. USCIS' "Finding Legal Advice" page contains eight links: To the websites of the American Bar Association and the National Organization of Bar Counsel and even to EOIR's list of "Free Legal Service Providers". However, when one clicks on this last link, the list indicates that the services of these attorneys are not necessarily free, and what's more, this list is for persons in removal proceedings who cannot afford an attorney. Not exactly the list that an employer who wants to submit a PERM application or a permanent resident who wants to apply for naturalization needs.

    A long time ago, we suggested to the USCIS that since four states (California, Florida, Texas and North Carolina) certify certain attorneys as Specialists in Immigration Law, why not link to the lists of these specialists. On November 6, 2006, Alfonso Aguilar, the Chief of USCIS' Office of Citizenship told us that he would do so. See


    We have been waiting for this to occur for nearly three years. Please surprise us, and add this to the new USCIS website!

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  3. CSPA for Married Couples


    http://upload.wikimedia.org/wikipedia/commons/6/69/Couple_01.JPG When she and her husband called me, she thought that she qualified for benefits under CSPA.

    Initially, I was skeptical. In every seminar regarding the Child Status Protection Act (CSPA) that I have presented on behalf of the American Immigration Lawyers Association (AILA), my mantra has always been, if you marry, you lose whatever benefits you gained under CSPA.

    Still I listened to what she had to say, and in the end, I agreed with her.

    She and her husband were both physicians, born in India and trained in the U.S. They both would have qualified for permanent residence in the United States years ago except for the long waiting times in the EB-2 category for persons born in India.

    Her mother's sister, a citizen of the U.S., petitioned for their family over 20 years ago when she was a child. By the time that their priority date became current in 1999, she had "aged-out" by reaching the age of 21.

    A few years later, her mother became a naturalized U.S. citizen, and more recently, the daughter married and had a child.

    Is she entitled to benefit under CSPA, or does she have to continue to renew her H-1B status, and wait for her EB-2 priority date to become current?

    The first step in resolving this question is to examine the language of the law, specifically section 203(h)(3) of the Immigration and Nationality Act which was added to the law by CSPA:

    "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) of this section, 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."

    It is clear that the daughter was 21 years of age when her parents qualified for permanent residence through her aunt's petition. Therefore, her petition was "automatically...converted" to the 2B category since she was the unmarried adult daughter of a permanent resident. And she was entitled to "retain the original priority date issued upon receipt of the original petition", which was submitted in 1986.

    Yes, I am very aware of the recent decision issued by the Board of Immigration Appeals in Matter of Wang, 25 I&N Dec. 28 (BIA 2009) which disagrees with the above analysis. However, as I explained in a previous blog entry, I believe that the decision in Matter of Wang is clearly erroneous and not entitled to deference by the Federal Courts. See


    Therefore, let's assume that the Federal Courts will invalidate the holding in Matter of Wang and continue with our analysis.

    When the physician's mother naturalized, the "appropriate category" under section 203(h)(3) changed from the 2B category to the family-based 1st preference category (unmarried adult sons and daughters of U.S. citizens) and the priority date remains the same. Why?

    Because the USCIS' regulations at 8 C.F.R. 204.2 provide, in pertinent part, that upon the "petitioner's naturalization...a currently valid petition according preference status under section 203(a)(2) of the Act for the unmarried son or daughter over twenty-one years of age shall be regarded as having been approved under section 203(a)(1) of the Act."

    Yet, the question remains, what happens to the priority date when the daughter married?

    Again, 8 C.F.R. 204.2 which concerns the "automatic conversion of preference classifications" provides, in pertinent part, that "A currently valid petition previously approved to classify the beneficiary as the unmarried son or daughter of a United States citizen under section 203(a)(1) of the Act shall be regarded as having been approved for preference status under section 203(a)(3) of the Act as of the date the beneficiary marries".

    Therefore, the daughter is entitled to her original 1986 priority date and her category "automatically converts" from the 4th preference category to the 2B category (when her parents obtained permanent residence), then to the 1st preference category (when her mother naturalized) to the 3rd preference category(when the daughter married).

    If we are retained, we will prepare applications for adjustment of status for both the daughter and her husband. We realize that the USCIS is bound by the holding in Matter of Wang to deny these applications.

    However, when this occurs, we will ask a Federal Judge not to defer to Matter of Wang, but to apply the clear language of the law to this matter, and to order the USCIS to grant adjustment of status to our client and her husband.

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  4. A Day in the Life of an Immigration Lawyer


    http://blog.jobsgopublic.com/wp-content/uploads/2013/05/A-Day-in-Life.jpg None of my friends from UCLA Law School, class of 1973, went into immigration law.

    Corporate law, personal injury law and real estate law were all far more lucrative. If you are looking for a multi-million dollar settlement, immigration law is not for you.

    So why do we immigration lawyers do what we do?

    Having spent over half of my life practicing immigration law, I can tell you that I consider myself to be very fortunate. The satisfaction that I get from meeting and helping immigrants from around the world makes it worthwhile.

    Let me explain myself by telling you about a recent day at the office:

    The first thing in the morning, I interviewed an RN who had arrived in the U.S. as a visitor a few years ago. She appeared to be hopelessly out-of-status. Although her father, a lawful permanent resident of the U.S., had submitted a visa petition on her behalf over 15 years ago, he had died soon thereafter. A nursing home had submitted a visa petition on her behalf in 2007. However, as I explained to her, this would not allow her to apply for adjustment of status for another four to five years.

    Then, I learned that her grandfather had been born in the U.S. and had traveled to her country during the Spanish-American War in 1898. He married her grandmother, and her father was born in 1916. Therefore, under the laws which existed on the date of her father's birth, he acquired U.S. citizenship at birth. Further, since her country was a U.S. possession until 1946, she acquired U.S. citizenship through her father.

    We are currently preparing an application for derivative citizenship on her behalf. We expect her to receive a Citizenship Certificate before the end of 2009.

    At the beginning of the appointment, my client thought that she was illegally present in the U.S. Thirty minutes later, she learned that she was a U.S. citizen. What a relief! See

    I saw my next appointment just before lunch. She was the wife of a U.S. citizen. Not just a U.S. citizen, but a sergeant in the U.S. Air Force who has been twice deployed in Iraq. She had been petitioned by her U.S. citizen step-father before her 21st birthday. During her interview, she was asked whether she was under 21 years of age, and whether she had ever been married. She answered truthfully. It took the INS two years to grant her permanent resident status and mail her a green card. By that time, she had married, and was pregnant
    with her first child.

    Five years later, she applied for U.S. citizenship. Her application was denied because, as the Immigration Examiner explained, she was granted a green card as an "immediate relative", not as a married daughter. Since she been granted a green card by mistake, he could not approve her application for naturalization. Furthermore, he informed her that she would be scheduled for a removal hearing before an Immigration Judge.

    Both she and her husband were stunned. What had she done wrong? As a former INS General Attorney (Nationality), I was a bit stunned as well.

    I called the Officer-in-Charge of her local INS office, and explained the situation to him. We are hopeful that she will not be placed in removal proceedings, and that her application for naturalization will be granted since the mistake was clearly the government's, not hers. See


    My final appointment of the day also involved a woman who had an application for naturalization which was denied. She is married, and is the mother of two children. She has lived in the U.S. for over 30 years, since she was a child. However, the USCIS concluded, based on an investigation which occurred over a decade ago, that her prior marriage was fraudulent. When the INS investigator asked her husband where they had lived when they were married, he could not remember the address.

    As a former INS Trial Attorney, this made me very suspicious as well. I grilled her regarding the details of her first marriage. After giving her the "third degree" for over 30 minutes, her answers were both detailed and credible. Then I asked her how it was that her former husband did not even know that address where she claimed that they had resided for over one year. She replied that they lived with her parents, and that her husband was a businessman owned a restaurant closeby. She knew exactly where their restaurant was located, the workers at the restaurant and many other details. But did she know the address of the restaurant? Absolutely not. Her husband knew exactly where their house was located, the marriage had been approved of by her parents and his prior to the marriage, and her parents were prepared to testify at her hearing. But did he know the address of the house? The answer was no.

    Given my background, I fully understood why the investigator had concluded that the marriage was fraudulent, but after spending considerable time questioning the wife, I concluded that he was mistaken.

    We will appeal the decision denying her citizenship. If necessary, we will defend her in removal proceedings. Will she ultimately be allowed to remain in the U.S. with her family? I have no doubt that she will. See


    Driving home on the freeway, I reflected on the circumstances of my three new clients, and how they had entrusted their futures to me and my associates. There is no way that we will let any of them down.

    My wife and I went out to dinner with an old friend from law school that evening. He is a corporate lawyer, and is extremely successful. He confessed that he was getting tired of the "rat race" and plans to retire at the end of 2009.

    He asked me when I planned to retire. "Retire?" I replied, "I have too many clients who depend on me. And besides, I am having way too much fun!"

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    Updated 12-02-2013 at 04:49 PM by CShusterman

  5. How to Use Your H-1B to Qualify Under Section 245K


    http://geygan.net/wp-content/uploads/2012/09/iStock_000016240064_Large.jpg
    For the past few months, there have been no green cards available for persons in the employment-based third preference category (EB-3) and long backlogs in the EB-2 category for persons born in India and China.


    So, with few green cards to grant, why has the USCIS been scheduling interviews for persons in these categories?

    The short answer is that just because the USCIS cannot grant most EB-3 and EB-2 applicants green cards, the agency can take advantage of the lull in applications for adjustment of status to deny persons with pending applications.

    How can they do that? Easy!

    Let's say that a person was out-of-status for more than 180 days since their most recent admission to the U.S. Denied! Not qualified for adjustment of status under section 245K of the immigration law.

    The irony is that section 245K was added to the law by Congress in order to make the requirements for adjustment of status less onerous for employment-based applicants. It allows persons to adjust their status to permanent residence as long as they were not engaged in unauthorized employment or were out-of-status for 180 days or more since their most recent admission to the U.S.

    By way of contrast, persons in the family-based preference categories (who are not immediate relatives of U.S. citizens) can not adjust their status if they have engaged in unauthorized employment or been out-of-status AT ANY TIME.

    Let's say that one time during the many years that you were in H-1B status, you lost your job and were out of work for over 180 days. Adjustment of status denied!

    Or maybe you moonlighted at another job without INS's (This was in 2003!)permission. Adjustment of status denied!

    There are endless variations to this sad scenario. But not only will your application for adjustment of status be denied, but the USCIS will be only too eager to issue a notice for you to appear before an Immigration Judge in removal proceedings!

    All those years of working in the U.S. and paying your taxes, all for naught?

    Not so fast!

    If you are still qualified for an H-1B or an L-1 status, there is a solution. Simply leave the U.S. and return using your visa or obtain a new visa Poof! Upon returning to the U.S., you are once again qualified to adjust status under section 245K.

    Why?

    Because the time that you were out-of-status or engaged in unauthorized employment occurred before your last admission to the U.S., so this does not bar you from immediately re-applying for adjustment of status under section 245K.

    Not bad, am I right?

    A couple of weeks ago, one of our physician clients was denied adjustment of status because he had moonlighted without authorization many years ago, and had never informed us. At the beginning of July, he approached us with apologies and tears in his eyes. Was the future that he had planned in the United States suddenly over?

    Not at all.

    Two weeks later, we obtained an approved H-1B petition for him. He was granted a visa in his country last week, and returned to the U.S. yesterday. Next week, we will resubmit an application for adjustment of status for him under section 245K.

    No harm, no foul.

    Read USCIS' memorandum regarding adjustment of status under section 245K from our "Adjustment of Status" page at

    http://shusterman.com/aos.html

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    Updated 12-02-2013 at 03:57 PM by CShusterman

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