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Carl Shusterman's Immigration Update


  1. Premium Processing of I-140s - What It Means to You 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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  2. Immigration Courts Severely Backlogged 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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    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

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

  4. DHS Secretary Suspends the "Widow's Penalty"
    On June 9, DHS Secretary Janet Napolitano announced that the government would cease the prosecution and deportation of widows and orphans of U.S. citizens who died before the permanent residence process could be completed.

    “Smart immigration policy balances strong enforcement practices with common-sense, practical solutions to complicated issues,” said Secretary Napolitano. “Granting deferred action to the widows and widowers of U.S. citizens who otherwise would have been denied the right to remain in the United States allows these individuals and their children an opportunity to stay in the country that has become their home while their legal status is resolved.”

    ICE will no longer place qualifying widow(er)s and orphans in removal proceedings. If a person has already been ordered removed, ICE will not enforce the removal order. In addition, USCIS will favorably consider requests for “humanitarian reinstatement” of revoked immigrant visa petitions.

    The new policy will apply regardless of whether the U.S. citizen submitted a visa petition on behalf of his or her spouse and children before their death.

    We link to the DHS Press Release from our “Green Cards Through Family Members” page at

    Secretary Napolitano’s new policy is a stopgap measure which does not change the law, but allows time for Congress to step in and change the law before any deportations can take place.

    And step in they did.

    Just two days after Secretary Napolitano announced her new policy, Senators Menendez (D-NJ), Gillibrand (D-NY) and Leahy (D-VT) introduced the Orphans, Widows and Widowers Protection Act (S. 1427) which addresses the immigration-related hardships caused by the death of a sponsoring relative.

    We link to this bill from our “Immigration Legislation” page at

    Currently, the issue is being litigated in courts all across the U.S. There are nearly 20 cases being fought in Federal Court. Three federal appeals courts have ruled that an immigrant does not cease being a spouse when the American partner dies during the processing of a residency application.

    The television program “60 Minutes” will feature an update on the "Widow's Penalty" on Sunday, June 14th.

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    Updated 12-02-2013 at 06:23 PM by CShusterman

  5. Grim Outlook for EB Visa Numbers
    Why do we punish people who play by the rules?

    Charles Oppenheim, Guru of the Visa Office in the State Department, has confirmed what we warned employment-based (EB) immigrants about in our June 2009 newsletter.

    Not only are EB-3 numbers unavailable for the rest of the fiscal year and EB-2 numbers for persons born in China and India oversubscribed, but the situation is going to get worse, much worse.

    Mr. Oppenheim states that the EB-1, EB-4 and EB-5 categories are all experiencing greatly increased demand, so much so that the EB-4 category (religious workers and special immigrants) may retrogress this summer. This is very significant since unused visa numbers in these categories are typically given to those in the EB-2 and EB-3 categories. Without these extra numbers, the retrogression in the EB-2 and EB-3 categories will be that much worse.

    How much worse, you ask?

    Because the Labor Department has cleared its backlog of old cases, during the past year the USCIS processed many thousands of I-140 visa petitions with priority dates prior to 2005. Mr. Oppenheim states that because of this, the worldwide EB-3 cut-off date will be March 1, 2003 come October 1st. Things will be worse for those born in India where the EB-3 cut-off date will be November 1, 2001.

    Expect EB-2 visa numbers for Indians to become unavailable either in August or September. What will happen to EB-2 India in the coming fiscal year? We wouldn't be surprised if the category retrogressed up to 10 years or more. Ditto for EB-2 China.

    Just like the automakers, the immigration SUV is about to go over a cliff. With European countries and Canada making it easier for talented scientists, engineers, programmers and health care workers to immigrate, our restrictive immigration laws and policies are driving highly-educated immigrants away. We educate foreign students in our best universities, and then say "Happy Graduation, Now Go Home!" As a result of this short-sighted policy, our country's position as the world leader in science and technology is threatened.

    Only if Congress acts to pass pending legislation like the Reuniting Families Act which would allow for the recapture of 400,000 lost visa numbers could disaster be averted.

    We link to this bill and to a host of other pending legislation which addresses our broken legal immigration system from our "Immigration Legislation" page at

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    Updated 12-02-2013 at 04:39 PM by CShusterman

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