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Carl Shusterman's Immigration Update


  1. Way Cleared for Lawsuit to Keep Families Together 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

  2. Immigrant Family's Kafkaesque Ordeal In Franz Kafka's chilling story "The Metamorphosis", a man wakes up one morning to find that he has been transformed into a "gigantic insect".

    Recently, a California family, all permanent residents for over 30 years, was suddenly informed by the government that they were all illegal aliens and must return to Thailand.

    Mr. Promsiri entered the United States on a student visa. His wife and two young sons, aged 10 and 3 joined him in 1971.

    In 1975, the parents obtained a divorce from a Thai Consulate in the U.S. The wife married an American citizen, and the couple honeymooned in Thailand. The U.S. Embassy in Bangkok examined their marriage certificate and the divorce degree before granting the wife permanent residence.

    The couple then returned to the U.S. where the citizen stepfather sponsored his two stepsons. Another agency, the Immigration and Naturalization Service (INS) examined the paperwork and granted green cards to the boys.

    Fast forward to 2009. The U.S. Citizenship and Immigration Services (USCIS), successor to the INS, recently ordered the mother and the boys to appear before an Immigration Judge and charged them with being illegally present in the U.S. Nearly 34 years after examining their paperwork and granting them green cards, the agency suddenly decided that they should never have been granted permanent residence in the first place!


    Because the government maintains that a divorce granted by the Thai government in the U.S. rather than by a state court is invalid.

    Why then did two U.S. government agencies approve the paperwork for the Promsiri family back in 1975? If they had found the divorce to be invalid then, the parents could have obtained a divorce in the Superior Court, and the mother could have remarried, and obtained a valid green card.

    Did the agency ever get a chance to review the paperwork since 1975? Many times. In 1983, the older brother Andy applied for U.S. citizenship. The INS examiner approved his application, and he was scheduled for a swearing-in ceremony. However, the day before the ceremony, someone from the INS called Andy's mother, told her that there was a problem with her divorce and that Andy should not appear at the naturalization ceremony. The agency would let them know what they needed to do.

    Despite the passage of 25 years, dozens of inquiries and many new naturalization applications, the family was kept in the dark until 2009 when they were suddenly placed in deportation proceedings.

    During those years, time did not stand still. Andy and Kevin graduated from college. Both have prestigious jobs, one at a major university; the other at a bank. Both are homeowners and taxpayers and have no connection to the country of their birth. Their mother, now 71 years of age, has retired. Andy and Kevin support and care for her.

    As soon as they received the notice from the Immigration Service, they came to see me. They were in a state of shock. After living almost their entire lives in the United States, they are American as American can be. All their lives, they had played by the rules. Why did the government want to send them back to Thailand?

    We requested that the local director of the Immigration Service exercise prosecutorial discretion. To our great relief, he did so. He agreed to cancel the removal proceedings against the Promsiris.

    The Promsiri family were all smiles when we told them the good news. See

    We hope that now the family can finally become U.S. citizens.

    We also hope that other families will not be subjected to the Kafkaesque ordeal that the Promsiris have suffered.

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  3. H-1B Advice for Students and Their Employers USCIS statistics reveal that only 1,000 H-1B "cap-subject" petitions were submitted each week during the second, third and fourth weeks of April. See

    At this rate, there will be H-1Bs available until sometime in September. However, I do not believe that this will be the case. Why not?

    Because, there are hundreds of thousands of F-1 students in the U.S. Many of these students will graduate from U.S. universities this June, and seek to work in the U.S.

    Regarding employment in the U.S., these students should consider the following:

    1. They may apply for Optional Practical Training (OPT). This is a fancy term for a one-year work permit. Under certain circumstances, the term of OPT may be extended for an additional 17-months. See

    2. If the student's job offer requires a university degree of the type that he/she possesses and if the employer pays them at the prevailing wage, the employer can petition them for H-1B status as soon as the student obtains the required degree. Savvy employers will hire the student initially on OPT and ask the USCIS to change the student's status to H-1B beginning on October 1, 2009.

    Why should students seek H-1B status in 2009 if their OPT work permits are valid until 2010?

    The principal reason is that this year there are almost 20,000 H-1B slots that are up for grabs. Last year, employers submitted so many H-1B petitions that an individual's chance of obtaining H-1B status was only about 50%. The same thing could happen in 2010 leaving many students high and dry.

    I predict that the H-1B petition submissions will rise significantly in June. Therefore, F-1 students who wish to work in the U.S. need to plan ahead.

    When is a good time for their future employers to seek the approval of labor condition applications and prepare H-1B petitions for submission to the USCIS?

    A good time would be now.

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    Updated 12-02-2013 at 04:17 PM by CShusterman

  4. Physicians To Benefit From H-1B Slowdown
    Do you have the mistaken assumption that H-1B visas are strictly the province of computer professionals? In reality, almost half of H-1B visas are utilized by health care and education professionals.

    This year's minimal H-1B usage is a boon to physicians finishing their medical residencies and fellowships. Why? Because, unlike last year when the H-1B cap was reached in the first week of the program, this year only 42,000 H-1B petitions were submitted toward the 65,000 cap. What's more, employers submitted a mere 1,000 petitions in the second week and another 1,000 during the third week. At this rate, the 65,000 cap won't be reached until sometime in September.

    So, how does this help foreign-born physicians?

    A little historical perspective is helpful. Prior to 1991, the only temporary visa category available to physicians who wanted to pursue medical residencies and fellowships in the U.S. was the J-1 exchange visitor visa. That year, Congress passed the Miscellaneous and Technical Immigration and Naturalization Amendments which, for the first time, permitted physicians who had successfully completed all three parts of the United States Medical Licensing Examination (USMLE) to obtain H-1B visas to pursue their residencies and fellowships.

    In general, most physicians prefer to do their training on H-1B rather than J-1 visas since the latter category comes at a steep price. J residents and fellows are compelled to return to their home countries for a minimum of two years before they can return to the U.S. on H-1B visas or as permanent residents. Alternately, they can obtain a "waiver" of this requirement, usually by being sponsored by a government agency and practicing for three years in a medically-underserved area.

    H-1B residents and fellows have no such requirement. However, most residents and fellows complete their training for H-1B "cap-exempt" employers, usually universities or hospitals which are affiliated with universities. This subjects them to another requirement.

    Although these physicians are not subject to the home residency requirement, they are restricted in the type of employers that they can work for after they complete their training. This is because their training usually ends on June 30th. Since "cap-subject" H-1Bs were not available beyond the first week of April for the past couple of years, these physicians have been restricted working at "cap-exempt" jobs. That is, they must practice medicine at a university, at an institution which is related or affiliated with a university, at a nonprofit research institute or at a government research institute. Such jobs are hard to come by.

    However, this year is different. Since it is all but certain that the H-1B cap will not be reached by June 30, H-1B medical residents and fellows will be able to transition from "cap-exempt" training programs to "cap-subject" jobs which begin on October 1st.

    A word to the wise. Physicians who accept jobs in affluent areas can qualify for H-1B status, but it is doubtful that they will qualify for permanent residency through employer sponsorship. Therefore, savvy physicians will look for jobs in areas where the number of physicians are few and where American physicians are reluctant to practice, mainly in inner city and remote rural areas. This way, they will be able to qualify for permanent residence either through PERM or National Interest Waivers.

    For additional information about temporary visas and permanent residence for physicians, job opportunities and "how to" immigration videos, see our "Physicians" web page at

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    Updated 12-02-2013 at 04:54 PM by CShusterman

  5. H-1Bs: Let the Market Decide the Number of Working Visas
    Back in 1982, when I left the INS to enter private practice, the number of H-1 visas was unlimited. All professionals, including registered nurses, were eligible for H-1 visas. Also, there was no maximum duration for H-1s.U.S. employers could petition for H-1 workers all year long, yet the program did not generate the amount of controversy that it does today. It was a market-based system which allowed U.S. employers to fill jobs in a global economy, plain and simple.

    The Immigration Act of 1990 ushered in the present era of government control of "H-1B" temporary visas. For the first time, a numerical cap (65,000) was imposed along with a maximum duration of stay (6 years). Registered nurses were banished from the category.

    All of this has proven to be a nightmare. Every few years since 1990, Congress has had to step in to change the numerical cap (to 115,000, then to 195,000, then back to 65,000), to create exemptions to the cap, establish a "cap-dependent" category and to allow persons to exceed the six-year maximum under certain circumstances. The result is a crazy-quilt system that only a lawyer could love. Employers don't understand the nuances of the law and the many memos interpreting it. Neither do the visa holders. Often, the agency itself misinterprets the law.

    In my opinion, the complexity of the law serves to facilitate abuses by unscrupulous employers. Yet, there are those in Congress who seek to make the law even more complex!

    Before Congress acts, it may be wise to examine what happened this year in an economy mired in recession. Employers submitted fewer than 42,000 regular cap petitions in the first week of availability compared with over 163,000 petitions submitted during the same period last year. This despite the fact that many students working using Optional Practical Training (OPT) who lost out in the "H-1B Lottery" last year were petitioned again this year. Also, new USCIS restrictions on "cap-exempt" petitions forced many employers to submit "cap-subject" petitions this year. See

    The main lesson to be learned is that the market worked. Given the large number of jobs lost in the U.S. economy, employers submitted far less petitions than they did last year. Contrary to what critics of the program maintain, the cost of employing an H-1B worker exceeds that of hiring a U.S. worker given attorneys' fees and government filing fees.

    Further, according to Vivek Wadhwa of Harvard Law School, skilled immigrants have fueled our tech boom. Over half of Silicon Valley tech start-ups and a quarter of those nationwide were founded by immigrants from 1995 to 2005. In 2005 alone, these companies generated $52 billion in revenue and employed 450,000 workers -- a number greater than the number of H-1B workers in the tech industries over the prior 10 years combined.

    Congress should stop trying to micro-manage the program, and return to a simple market-based system. The plain truth is that the overwhelming majority of U.S. employers comply with the law. Those that abuse the law should be stripped of their ability to petition for H-1B workers.

    Alas, I fear that my advice may fall on deaf ears. Therefore, employers, H-1B workers and their attorneys, seeking to navigate the current complex system, can search our "H-1B Page" which contains almost 100 links to information about this most-complicated of all temporary working visas at

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    Updated 12-02-2013 at 05:13 PM by CShusterman

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