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Carl Shusterman's Immigration Update

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  1. IMMIGRATION OFFICERS IN NEED OF A CAT


    http://i40.tinypic.com/2nbgas2.jpg
    What is a CAT? Not an animal, not a medical procedure, but a "Change of Attitude Transformation".

    The old INS may have morphed into the USCIS, the CBP and ICE, but the attitudes toward immigrants have not changed much since I worked there 30 years ago.

    As General Attorneys (Nationality) in the 1970s, our mantra was "when in doubt, send it out!" meaning that rather than recommend that a naturalization petition be granted, if we had the slightest degree of doubt, the safest course was to send the applicant's file to the investigations branch. Not to do so would risk being accused of "giving away the store". We were told that once we had granted a person citizenship, it would be too late for the INS to deport them, so we had to be very careful.

    By the time that I became an INS Trial Attorney in the early 1980s, all Persian students were required to register with the government. The top priority for investigators was to round up students who were driving yellow cabs and ice cream trucks. Much to my dismay, they would routinely refer to them as "rag heads".

    When I entered private pratice, one of my clients was a young woman born in China who immigrated to the U.S. as a toddler. She was a U.S. citizen and a UCLA grad whose English was better than mine. She married a British fellow and we were in the process of immigrating her husband's son from a prior marriage. I remember how difficult it was for me to explain to the government examiner that she was the citizen and he was the alien. The examiner didn't seem to comprehend. He kept repeating, "but she is the alien". How an Asian woman could be sponsoring a Caucasian teenager was totally beyond him.

    I would like to think that these attitudes are a thing of the past, but unfortunately they seem to be ingrained in the thinking of all too many government immigration officers.

    Currently, we are representing a young man from Mexico who was petitioned by his U.S. citizen father when he was just 20 in the late 1990s. Simultaneously, the son submitted an application for adjustment of status. The son worked legally in the U.S. using an EAD. Unfortunately, after his attorney was disbarred a few years ago, he stopped renewing his EAD.

    Last week, he was stopped at an interior checkpoint, and asked for proof that he was legally present in the U.S. (I often wonder what I would present if I were asked the same question, but then, people who look like me are never stopped at checkpoints, are we?) He handed the officer his expired EAD with his alien number on it. The officer could not find his file "in the system". The son explained that his father was a U.S. citizen and had sponsored him over a decade ago. The officer called the father, but was unable to find his information "in the system". At this point, the son handed the officer my business card and asked him to call me, but the officer refused to do so. Had he called me, I could have faxed him a copy of the father's Certificate of Naturalization and a copy of the approval of the visa petition.

    Instead, the officer informed my client that he was going to arrest him. If he wanted to see an Immigration Judge, the officer told him, he would be incarcerated for weeks. The better choice was to sign a "voluntary return" form, and he would be transported to Mexico and released from custody within a few hours. My client took the officer's advice and signed away his rights. I spoke to him in Mexico later that day.

    The "system" had deprived my client of his rights. If he had been accused of a felony, he would be entitled to certain rights under the Constitution.

    But to the officer, he was just another alien, and once he signed the form, he had no rights.

    Until such officers have a Change of Attitude Transformation, not much will change in the way our immigration laws are administered.

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    Updated 12-02-2013 at 04:47 PM by CShusterman

  2. H-1Bs for Health Care Workers: Advanced Degree Not Required


    http://www.cdc.gov/hantavirus/images/hcw/workers.jpg
    All too often, it seems that some examiners at USCIS Service Centers are just looking for a way to deny petitions.

    Long-standing policies are ignored and new theories are advanced to deny perfectly-qualified applicants for immigration benefits.

    A few months ago, a few examiners decided on their own that M.B.B.S. degrees which are issued to physicians from British Commonwealth countries were not equivalent to M.D. degrees issued by medical schools in the U.S. As a result, many petitions and applications were denied on this basis. After much protest from the medical community, the USCIS in Washington got involved, and the situation was rectified in favor of the foreign-born physicians and their U.S. employers.

    The latest government boondoggle involves state-licensed physical and occupational therapists. Though these professionals have always been held to be eligible for H-1B status, some examiner(s) noticed that the latest edition of the Labor Department's Occupational Outlook Handbook (OOH) now says that M.S. degrees are preferred.

    Accepting this statement in the OOH as Gospel, the USCIS started to deny immigration benefits to PTs and OTs with B.S. degrees even though they were in possession of state licenses.

    The response to this sudden change in USCIS policy was swift and negative. Under USCIS regulations, there are three agencies designated to determine whether the credentials of foreign-born health care workers are equivalent to those of the U.S.-born counterparts: the FCCPT, the CGFNS and the NBCOT.

    On February 19, the Foreign Credentialing Commission on Physical Therapy (FCCPT) weighed in on USCIS' "confusion" about this matter. Then, on March 19, the National Board for Certification in Occupational Therapy (NBCOT) wrote to the USCIS that "immigration officials are misinterpreting the academic/educational requirements for an occupational therapist". Finally, on March 26, CGFNS International wrote to the USCIS and explained why the OOH's statement that a Master's degree was a precondition for a foreign PT to be admitted to the U.S. was "incorrect".

    The hope was that the USCIS headquarters in Washington, D.C. would correct this erroneous interpretation of the law and regulations prior to start of the H-1B filing season on April 1st.

    Unfortunately, USCIS did not issue a policy memorandum until May 20. However, since almost 20,000 H-1B numbers are still available, and "cap-subject" workers cannot change their status to H-1B until October 1, 2009, no harm, no foul.

    In its memorandum, the USCIS recognizes that H-1B health care workers must possess an "unrestricted (state) license", and it is irrelevant whether they possess a B.S. degree rather than an M.S. or Ph.D. degree. We link to the USCIS memo from our "Allied Health Professionals" page at


    We hope that, in the future, USCIS will adhere to policies which are consistent with the law and the regulations, and will provide an avenue for practitioners and employers to bring clearly erroneous decisions to the attention of Headquarters before they develop into trends. Given the 15-month wait at the agency's Administrative Appeals Office to issue a decision on the appeal of an H-1B petition denial, this is not an adequate remedy.

    It would also be helpful if the USCIS were to clarify that the May 20th memorandum applies to I-140s as well as to H-1B status, and to all persons in possession of unrestricted state licenses, not only health care professionals.

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

  3. H-1Bs: A Rare Opportunity for Students/Physicians to Apply


    http://www.cumc.columbia.edu/news-room/wp-content/uploads/2013/01/2013transition_forweb.jpg The H-1B system is clearly out-of-sync with the real world.

    Persons who qualify for "cap-subject" H-1Bs are allowed to apply starting April 1st each year, but can not start working until October 1st, six months later.

    Since the number of applications usually far exceeds the number of available visas, this means that by the second week of April, it is too late to apply.

    What about all of the foreign-born students who graduate from U.S. universities in June each year?

    Since U.S. employers can not apply for H-1B status for them until after they obtain their degrees, by June, it is already too late to do so. One prominent newspaper calls this the "Happy Graduation, Now Go Home!" policy. The U.S. educates and then loses a lot of talent each year.

    However, this year is different. Because of the economic recession, there is hope for these students and their employers.

    The students can use their one-year Optional Practical Training work permits to start their jobs following graduation. See our "Student" page at


    Then, as soon as possible, their employers should seek to change their status to H-1B as of October 1, 2009. This is possible this year because there are almost 20,000 H-1Bs visas remaining.

    The same scenario is true for foreign-born medical residents and fellows who received their training in the U.S. using "cap-exempt" H-1B visas.

    These trainees complete their residencies and fellowships on June 30, at which time there are usually no "cap-subject" H-1B visas available. This year is different.

    Since it is probable that there will still be H-1B numbers available after June 30, U.S. employers should submit H-1B petitions for these trainees as soon as possible.

    Additional information is available on our "Immigration for Physicians" page at


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    Updated 12-02-2013 at 04:53 PM by CShusterman

  4. The Importance of Maintaining Your H-1B Status


    http://studyinthestates.dhs.gov/assets/images/content//photodune-1956300-student-working-at-class-on-his-laptop-m-295x200.jpg "You don't need to extend your H-1B status, you've got an EAD!"

    If I read such a statement on a message board, I might understand that since the author was not trained as an immigration attorney, this may seem logical to him. However, when someone who is seeking my advice tells me that his former attorney told me this, I cringe.

    Why should someone with an Employment Authorization Document (EAD) not use it, but instead keep renewing their H-1B status?

    Consider this real life example: Last week, an Indian professional had a legal consultation with me. He had been in H-1B status since December 2001. His employer had obtained the approval of a PERM application on his behalf. In July 2007, when all the EB visa numbers became current, his employer submitted an immigrant visa petition (I-140) on his behalf in the EB-3 category. Simultaneously, he, his wife and their two children submitted applications for adjustment of status (I-485).

    The I-140 was approved, but due to the lack of visa numbers, the family's I-485s remain pending. Although the USCIS can not approve their I-485s, they are not barred from denying them. His 18-year-old son received a Request for Evidence asking him to demonstrate that he had been in lawful status since he entered the U.S. as a B-2 visitor ten years before.

    The problem was that the family had sent the son to live with his aunt and uncle in the U.S. when he was a young child. When his six-month stay in the U.S. expired, no one ever extended his B-2 stay in the U.S. or requested that his status be changed to F-1 student.

    Their question was "How could their son respond to the RFE?" My answer was that since the son had resided in the U.S. unlawfully for over ten years, he was ineligible to adjust his status to permanent resident. However, if he departed the U.S. immediately to get an H-4 visa abroad, he would not be subject to the three or ten-year bars. Only when a child turns 18 can he accumulate "unlawful presence" in the U.S. which, in turn, subjects him to the bars when he departs the U.S. See


    Once the son obtained an H-4 visa abroad, he could return to the U.S. to complete his education, and eventually adjust his status using section 245(k) of the law which provides that one can adjust status under the EB-1, EB-2 and EB-3 categories as long as one has not been out-of-status for over 180 days since his most recent admission to the U.S.

    Problem solved?

    I asked the father when his H-1B status was due to expire. He replied that it had expired at the end of 2007. I asked him why he had let it expire, and he replied that his attorney had told him, "You have an EAD, why bother extending your H-1B status?"

    Not a very thoughtful answer coming from someone practicing immigration law. As a result, his son will be separated from the rest of the family, perhaps for many years. This is tragic because it would have been so easy to avoid this outcome had the father simply extended his H-1B status.

    Another reason to continue to renew one's H-1B status is USCIS' questionable interpretation of section 245(k). If a person's application for adjustment of status is denied for any reason, the USCIS holds that the person may not renew their I-485 unless they have maintained their lawful "nonimmigrant" status while their application for adjustment of status is pending. In such cases, persons are often forced to leave the U.S. simply due to their failure to extend their H-1B status.

    For these and many other reasons, it always wise to maintain H-1B status until one's application for adjustment of status is approved.

    For more information regarding H-1B status, see our "H-1B Page" at


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    Updated 12-02-2013 at 04:06 PM by CShusterman

  5. Way Cleared for Lawsuit to Keep Families Together


    http://norcal.cpusa.org/wp-content/uploads/2013/05/keep-families-together-300x199.jpg Back in 2002, the President signed a law designed to keep immigrant families intact, the Child Status Protection Act (CSPA). The law includes a provision that states that if a child turns 21 years of age before obtaining a green card together with his parents, his petition would "automatically be converted to the appropriate category" and he would be entitled to the "original priority date".

    What does this mean?

    Consider the case of Melvin Cuellar de Osorio. His grandmother, a U.S. citizen, submitted a petition to sponsor his family for permanent residence in 1998. Because of long backlogs, Melvin's parents were not able to immigrate to the U.S. until 2006. Since Melvin reached the age of 21 before his parents could immigrate, he was forced to remain behind in his native country. When his mother petitioned for Melvin under the 2B category (unmarried adult sons and daughters of lawful permanent residents), she maintained that under CSPA, Melvin was entitled to the "original priority date" of 1998 which would have allowed him to immediately rejoin his family in the U.S.

    The USCIS failed to respond to her request. Without CSPA, Melvin will not be able to rejoin his family in the U.S. until 2017 at which time he will be 33 years of age. If he marries, he will lose his ability to immigrate under the 2B category.

    The USCIS does not seem to be in any rush to allow Melvin, and other persons in his position, to know what the words "appropriate category" or "original priority date" in CSPA mean. This August, it will be seven years since CSPA was signed into law. The agency has yet to issue regulations to implement the law. Although the USCIS has issued at least eight memos regarding CSPA, and the State Department another six, the government has avoided interpreting the portion of the law which would allow Melvin to reunite with his family.

    On June 23, 2008, we brought a lawsuit in Federal Court on behalf of Melvin's mother and five other mothers who are separated from their sons and daughters despite the clear language of CSPA. The USCIS believes that to allow children like Melvin to use their original priority date would be tantamount to permitting them to cut in line. To the agency, CSPA does nothing to lessen Melvin's 19 year wait to become a permanent resident.

    In September, the Government submitted a motion to dismiss our complaint. Since then, the government has requested that the Judge postpone deciding our case until the Board of Immigration Appeals (BIA) rules on similar cases which are pending before the Board. The BIA has already decided two cases which interpret the words "appropriate category" and "original priority date" exactly as we do. However, these cases are not binding precedents.

    The Federal Judge ruled that if the BIA did rule on the cases by May 11th, he would not grant the government any further postponements in our lawsuit on the ground that the BIA was about to rule on the cases before them.

    We have agreed with the government that both sides will file cross Motions for Summary Judgment in our lawsuit with tentative filing dates of June 26. The motions would be noticed for a hearing on July 20.

    At long last, parents may no longer have to be separated from their sons and daughters for years when they immigrate to the United States.

    More information regarding the "automatic conversion" portion of CSPA and the briefs in our
    lawsuit are available at


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    Updated 12-02-2013 at 04:53 PM by CShusterman

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