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Carl Shusterman's Immigration Update

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  1. BIA DECISION WOULD SEPARATE FAMILIES


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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 However, an unpublished Board decision, Matter of Garcia (2006) interpreted the clause to mean that when a derivative beneficiary of a petition ages out, they are able to keep the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

    http://shusterman.com/cspa.html

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

  2. DHS Secretary Suspends the "Widow's Penalty"


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    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.

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

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

  3. Grim Outlook for EB Visa Numbers


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    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

    http://shusterman.com/toc-leg.html#3

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

  4. IMMIGRATION OFFICERS IN NEED OF A CAT


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    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

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


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    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

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