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Carl Shusterman's Immigration Update

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  1. Employers Caught Up In a Catch-22


    http://i39.tinypic.com/1zyaqtt.jpg The U.S. Immigration and Customs Enforcement (ICE) announced today that it served Notices of Inspection upon 652 businesses around the country. Compare this with the 508 businesses which received Notices of Inspection in fiscal year 2008.

    An ICE spokesman told the press: "Part of the strategy is to show businesses that we mean business."

    The new Obama policy substituting audits for raids, and civil penalties on employers rather than criminal penalties on workers is a step in the right direction. It may even set the stage for comprehensive immigration reform by showing that the administration is serious about immigration enforcement.


    We link to the ICE press release and the news story from our "Employers' Immigration Guide" at


    Notices of Inspection are served on employers to compel them to surrender their I-9 forms to the government. The I-9 form verifies the identity and the employment authorization of each employee hired by the company.

    However, employers do not have the authority to question the legitimacy of the documents that are presented to them unless the documents are obviously false. An employer who attempts to do more risks great sums of money for violating the document abuse and/or anti-discrimination laws. Ask Jose Sanchez for more or different documents than Joe Smith, and you are asking for trouble, big trouble. See our article "INS vs. INC." at


    The truth is that most "undocumented" workers are ready, willing and able to produce the required documents when an employer presents them with an I-9 form.

    So, in the next few weeks, when ICE inspects the I-9 forms of many thousands of employees who work for these 652 companies, the agency will learn (No big surprise.) that thousands of these documents are either false or belong to others.

    The workers will lose their jobs, but if history is any guide, they will simply pick up and start looking for new jobs.

    The employers can not be fined unless their I-9s were done improperly or not at all. In most cases, they will receive fines for being sloppy, not for being "unscrupulous". Of course, if an employer has actual knowledge that an employee is illegally present in the U.S., he could face criminal penalties, but rarely does ICE have enough evidence to press criminal charges.

    Earlier today, I was interviewed regarding this subject by a newspaper reporter. As a former INS prosecutor, I have represented quite a few companies facing I-9 audits.

    I spoke with one of my former clients today. His company underwent an I-9 audit when they applied for labor certification for three undocumented workers. I remember meeting with the INS investigator and handing him a pile of I-9 forms. The INS could have subjected the employer to many thousands of dollars in fines. Instead, we agreed to enroll the employer in what is now called the "E-Verify" program, and the government agreed to waive all fines.

    However, the employer lost many of his most valuable employees, and it took years for the business to recover. How about the employees? They ended up working for his competitors.

    Who came out ahead in the end? No one as far as I'm concerned.

    Our broken immigration system will not be fixed by penalizing employers who are trying to abide by the law, and forcing many of their workers to find new jobs. If there was ever a time to amend our laws to conform with the laws of the free market, it is now.

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    Updated 12-02-2013 at 05:34 PM by CShusterman

  2. President Obama and Immigration Reform


    http://cdn01.dailycaller.com/wp-content/uploads/2013/03/3144f2ca3ddb4b7faf8d5d26eb7679e1-e1362557183925.jpg On June 25, President Obama met with a bipartisan group of 30 key legislators beginning a dialogue that he hopes will lead to comprehensive immigration reform in 2009 or early in 2010.

    Among the topics discussed were border security, family reunification and reform of the outdated quota system.

    Following the meeting, the President stated, "but what I'm encouraged by is that after all the overheated rhetoric and the occasional demagoguery on all sides around this issue, we've got a responsible set of leaders sitting around the table who want to actively get something done and not put it off until a year, two years, three years, five years from now, but to start working on this thing right now."

    With regard to the USCIS, the President stated:

    "Today I'm pleased to announce a new collaboration between my Chief Information Officer, my Chief Performance Officer, my Chief Technologies Officer and the U.S. Citizenship and Immigration Services Office to make the agency much more efficient, much more transparent, much more user-friendly than it has been in the past.

    In the next 90 days, USCIS will launch a vastly improved Web site that will, for the first time ever, allow applicants to get updates on their status of their applications via e-mail and text message and online. And anybody who's dealt with families who are trying to deal with -- navigate the immigration system, this is going to save them huge amounts of time standing in line, waiting around, making phone calls, being put on hold. It's an example of some things that we can do administratively even as we're working through difficult issues surrounding comprehensive immigration.

    And the idea is very simple here: We're going to leverage cutting-edge technology to reduce the unnecessary paperwork, backlogs, and the lack of transparency that's caused so many people so much heartache."

    President Obama also announced that DHS Secretary Janet Napolitano will chair a working group composed of Representatives and Senators to hash out some of thorniest issues. Among these issues are how to legalize 12 million undocumented persons, border security, cracking down on unscrupulous employers, creation of a "guest worker" program and whether a governmental commission should be established to decide the future immigration of temporary and permanent workers based on labor market needs.

    Unions are opposed to a guest worker program and in favor of a commission while business groups would like to see a guest worker program but are opposed to a governmental commission.

    Senator McCain (R-AZ), a key player stated that "we don't need a commission" and called on the President to stand up to labor unions and support a guest worker program.

    Several persons close to President Obama including his Press Secretary and his Chief of Staff have asserted that there are not enough votes in Congress to pass comprehensive immigration reform. And at least one strong proponent of immigration reform, Rep. Luis Gutierrez (D-IL), agrees. "If we had the votes, we wouldn't be calling you", Gutierrez told the Wall Street Journal.

    However, in the Senate, both the Majority Leader Harry Reid (D-NV) and Immigration Subcommittee Chairman Charles Schumer (D-NY) believe that there are enough votes in their chamber to pass the legislation. The Senate passed the bipartisan Kennedy-McCain immigration bill in 2006. However, the House did not take up the measure.

    "We've got one more chance to do this," said Senator Lindsey Graham (R-SC). "If we fail this time around, no politician is going to take this up in a generation."

    President Obama stated, "It's going to require some heavy lifting."

    We link to a video of President Obama's remarks at the conclusion of the June 25th meeting as well as to the transcript of his remarks from our "Immigration Legislation" page at


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    Updated 12-02-2013 at 04:51 PM by CShusterman

  3. Premium Processing of I-140s - What It Means to You


    http://d2vr9mgv6hesyx.cloudfront.net/wp-content/uploads/2012/08/h1b-premium-processing1.jpg The USCIS has announced that most employment-based (EB) immigrant petitions (I-140s) will be eligible for premium processing starting June 29, 2009. We link to the USCIS Update from our "Premium Processing" page at


    Premium processing will be available for EB-1 Persons of Extraordinary Ability and Outstanding Professors and Researchers; EB-2 petitions which are not for National Interest Waivers; and EB-3 petitions for Professionals, Skilled and Unskilled Workers.

    The only EB I-140s which are specifically excluded from the program are (1) visa petitions for Multinational Executives and Managers under the EB-1 category and (2) National Interest Waivers under the EB-2 category.

    Premium processing is a program developed by the INS in 2001 which permits persons to request speedier processing of certain types of petitions and applications for immigration benefits in exchange for paying the agency an additional $1,000 in filing fees. If the agency fails to issue either an approval, a request for evidence (RFE), a notice of intent to deny or to open an investigation for fraud or misrepresentation within 15 calendar days of receiving the application, premium processing will continue although the USCIS will refund the $1,000 fee.

    Given that many of the EB categories are either unavailable or significantly backlogged, why should employers or employees pay for premium processing?

    We can think of four reasons for doing so.

    (1) If an I-485 adjustment of status application has been pending for 180 days, the law permits an employee to change employers as long as the new job is in the same or a similar occupation. However, it is very unwise to change employers before the USCIS has approved the I-140 visa petition. If the employee changes employers before the I-140 is approved and the agency issues a request for evidence, what incentive does the former employer have to answer the RFE? If there is no response to the RFE, it is likely that the I-140 will be denied, and so will the I-485.

    (2) Even if an I-485 has not been filed, the approval of an I-140 locks-in the priority date as of the date that the application for labor certification or PERM is received by the USCIS or the date that the I-140 is received if no labor certification or PERM is required.

    If an employee with a temporary work visa changes employers, it is wise to wait until the I-140 is approved since this locks-in the priority date. Of course, the original priority date can only be utilized if the employee obtains the approval of a new I-140 (and a labor certification or PERM, if required) from the new employer.

    In both of the above examples, premium processing of the I-140 is not beneficial to the initial employer. It is, however, advantageous to both the employee and to his subsequent employer.

    (3) Whether or not an I-485 has been filed, the law provides that if a person in H-1B status is the beneficiary of an I-140 petition in either the EB-1, EB-2 or the EB-3 categories, and is eligible for permanent residence but for the per-country limitations, he or she may be granted H-1B extensions beyond the sixth year in three-year increments.

    This is a benefit for many employers and employees alike since the mere filing of an application for labor certification, PERM or an I-140 more than one year ago only entitles the worker to apply for H-1B extensions in one-year increments.

    (4) Where an I-485 is pending, USCIS regulations provide that the applicant may be eligible to extend his or her Employment Authorization Document (EAD) for two years, but only if an I-140 has been approved for the applicant.

    In short, the reinstatement of premium processing for most I-140s is a distinct benefit for employees and employers alike.

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  4. Immigration Courts Severely Backlogged


    http://viewfromtheedge.progress.com/files/2013/11/backlog.jpg A new study by the Transactional Records Access Center (TRAC) finds that the nation's Immigration Courts are becoming increasingly backlogged.

    Our country's 234 immigration judges received over 350,000 new cases last year, almost 1,500 cases per judge. Coupled with the government's onerous "case complete goals", this brings incredible pressure on overworked immigration judges to issue decisions.

    As a result of the increasing backlog of cases, persons in detention may have to wait many months to challenge the legality of the charges against them or to have their asylum and other claims heard before a judge.

    The Bush Administration had promised in 2006 to add 40 new judges to the system, a fairly minimal amount. However, only four additional judges have been added during the past two and one-half years.

    As a direct result of the "judge shortage", the backlog has increased approximately 20 percent during the past three years.

    We link to the new report from our "Immigration Courts" page at


    "How can a system function properly when it is starved for the critical basic resources it needs", states Immigration Judge Dana Marks of San Francisco, President of the National Association of Immigration Judges.

    According to the TRAC report, a typical immigration judge must conduct 69 hearings each week.

    Judges are forced to hear testimony with little time to consider exhibits and legal briefs, and then to immediately issue oral decisions.

    Legal research is increasingly delegated to law clerks who are themselves in short supply. As opposed the Federal District Court judges who each have their own law clerk, four immigration judges must share a single law clerk.

    If the government insists on continuing its misguided
    "enforcement-only" approach to immigration, it is time to put its money where its mouth is.

    Or maybe it's time to consider other approaches to ourbroken immigration system.

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  5. BIA DECISION WOULD SEPARATE FAMILIES


    http://yagyaimmigration.com/wp-content/uploads/2011/06/immigration_courtroom1.jpg
    Today, the Board of Immigration Appeals (BIA) issued a decision which eliminates one of the principal benefits of the Child Status Protection Act of 2002 (CSPA). We believe that this decision is fundamentally flawed and should be overturned.

    In Matter of Wang, 25 I&N Dec. 28 (BIA 2009), the Board essentially voids the "automatic conversion" clause of CSPA. That clause deals with persons who age out despite the protections of CSPA. It states that they are entitled to the "original priority date" and should be placed in the "appropriate category".

    Despite a plethora of agency memos interpreting CSPA, the government has remained strangely silent about the "automatic conversion" clause. However, an unpublished Board decision, Matter of Garcia (2006) interpreted the clause to mean that when a derivative beneficiary of a petition ages out, they are able to keep the priority date of the original petition filed on behalf of their parents, and that once their parents become permanent residents, the original petition is "automatically converted" to the family-based 2B category since they are unmarried adult sons and daughters of permanent residents. In many cases, this allows them to immediately immigrate to the United States.

    In Matter of Wang, a U.S. citizen submitted an immigrant visa petition for her brother and his wife and daughter in China in 1992. However, by the time that the parents became permanent residents in 2005, the daughter had "aged-out" because she was 22 years old and no longer qualified as a child. In 2006, her father submitted a 2B visa petition on her behalf. Since the 2B category is backlogged 8 years, the daughter would be forced to remain separated from her parents until 2014, a total wait of 22 years since the original 1992 priority date. If she marries before she immigrates, she will lose her priority date altogether.

    However, under the "automatic conversion" clause of CSPA as interpreted by the Board in Matter of Garcia, she would be able to retain the original 1992 priority date under the 2B category, meaning that she could reunite with her parents immediately.

    Today, the Board gave short shrift to the reasoning in Matter of Garcia. The Board found that the statute was "ambiguous" and looked to the legislative history of CSPA.

    However, there is no legislative history of the "automatic conversion" clause and the Board construed the law in a way which we believe directly contradicts the clear language of the statute.

    While the original CSPA bill was introduced in the House of Representatives in 2001, the "automatic conversion" clause was added the next year in the Senate. The Board recognizes this, yet all of the language as to the purpose of the bill which is referenced in the Board's decision is taken from the 2001 House Report and from individual members of the House of Representatives. Since the original House bill was much less expansive than the final bill, these selective references to the legislative history are highly misleading.

    When the Board's decision talks about the injustice of allowing Ms. Wang to "'jump' to the front of the line by retaining a 1992 priority date", we are puzzled. She waited in line from the age of 10 to her 21st birthday only to be separated from her parents for another 8 years. Wasn't this the reason that CSPA was enacted?

    The Board also references various USCIS "automatic conversion" regulations and concludes that when Congress approved CSPA, they were aware that such conversions only operate as long as the petitioner remains the same. This is completely false.

    Why did the Board ignore the USCIS' automatic conversation regulation which allows persons to convert from one employment-based preference category to another, and from one petitioner to another, all the while retaining the original priority date?

    Consider 8 C.F.R. 204.5(e) which, in pertinent part, states:

    "Retention of section 203(b)(1) , (2) , or (3) priority date. -- A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date."

    This regulation permits an employer to petition a person in the EB-3 category. Once the I-140 is approved, if the person changes employment, another employer may sponsor the person in the EB-2 category. Once the second I-140 is approved, the person may immigrate/adjust under the EB-2 category while retaining the "original" EB-3 priority date.

    Of course, Matter of Wang, unlike Matter of Patel, the CSPA automatic conversion case which the Board has yet to decide, involved only family-based petitions. Yet, surely Congress was aware of an immigration law which allows for the automatic conversion between family-based and employment-based petitions, between different petitioners and which allows beneficiaries to retain their original priority dates.

    Consider the savings clause in the 1976 immigration law which allows persons to retain Western Hemisphere Priority Dates (WHPDs) even though the original petition may have been employment-based while the latter petition is family-based. Someone with an employment-based WHPD of 1971 may be the beneficiary of a Mexican family-based third-preference petition (submitted by a U.S. citizen father for a married daughter) submitted on July 1, 2009. Instead of waiting the usual 18 years for the priority date to become current, the daughter and her family are permitted to use the 1971 original priority date to immigrate immediately.

    It is clear that USCIS regulations permit persons to change jobs, preference categories and petitioners, and use the original priority date to become permanent residents. Also, Congress has long permitted persons to change between the employment and family-based categories, use the original priority date, and immediately immigrate to the U.S. Thus, the "automatic conversion" clause in CSPA is neither unique nor novel.

    In Matter of Wang, the Board adopts the USCIS' tenuous argument that the "automatic conversion" clause was added to CSPA simply to codify 8 C.F.R. 204.2(a)(4), a decades-old regulation which allows a child whose parent was petitioned by their spouse under the 2A preference category to retain the original priority date when the child turns 21 and the LPR parent submits a new visa petition under the 2B category. Does the legislative history of CSPA support this interpretation? Matter of Wang is silent on this issue.

    The reason why Matter of Wang should be overturned is that it contradicts the clear language of CSPA. The "automatic conversion" clause states that it applies to aliens who are "21 years of age or older for purposes of subsections (a)(2)(A) and (d)" of 8 U.S.C. 1153. Subsection (d) refers to spouses and children who are accompanying or following to join spouses or parents under the family-based, employment-based or diversity lottery categories. Any interpretation which attempts to restrict the applicability of the "automatic conversion" clause to a narrow subset of the family-based preference categories, and ignores the other family-based categories, the employment-based categories and the diversity category is clearly at odds with the statute.

    Currently, there are at least five lawsuits in Federal Court challenging the government's restrictive interpretation of the "automatic conversion" clause of CSPA. How they will be affected by Matter of Wang remains to be seen.

    How much deference should the Federal Courts accord to the Board's interpretation of CSPA's "automatic conversion" clause in Matter of Wang?

    This would not be the first time that the Federal Courts overturned an overly-restrictive interpretation of CSPA put forward by the government. The Board and the USCIS eventually acceded to the interpretation of another disputed section of CSPA following the holding of Padash v. INS (9th Cir. 2004), 358 F.3d 1161:

    "Because the legislative history makes it clear that the Act was intended to address the often harsh and arbitrary effects of the age-out provisions under the previously existing statute, our interpretation of the term "final determination" also adheres to the general canon of construction that a rule intended to extend benefits should be "interpreted and applied in an ameliorative fashion." Hernandez, 345 F.3d at 840. This rule of construction applies with additional force in the immigration context "where doubts are to be resolved in favor of the alien."

    To read the complete text of Matter of Wang as well as a host of other materials relating to CSPA and the continuing litigation, see

    http://shusterman.com/cspa.html

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    Updated 12-02-2013 at 04:21 PM by CShusterman

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