Carl Shusterman's Immigration Update

Before Applying for Immigration Benefits, Use FOIA

The Freedom of Information Act (FOIA) is an extremely valuable tool.  It allows an immigrant and his attorney to see what information the government has about him in its files. 

U.S. immigration laws are extremely complex. Formulating a successful immigration strategy can be compared to playing poker.  Wouldn't it greatly increase your odds of success if, before you placed your bet, you knew what cards your opponent was holding? Of course!

This is the beauty of FOIA.  You can learn what materials about you are in the files of the USCIS and the Executive Office for Immigration Review (which consists primarily of the Immigration Courts and the Board of Immigration Appeals) before you submit an application for immigration benefits.

Let's say, for instance, that you are applying for a green card through your job or through a relative.  You overstayed your visa a few years ago, and an Immigration Judge ordered you to leave the U.S. which you did.  However, you are unsure whether the Judge ordered you deported or whether he granted you voluntary departure.  If you were deported, you are ineligible to return to the U.S. for 10 years, but if you left under voluntary departure, you are not subject to this bar.

If you simply apply for a green card, and learn at your interview that you are subject to the 10-year-bar, you could be in big trouble.  When I worked as an INS Trial Attorney, I saw many people apply for green cards through their U.S. citizen spouses who did not realize that a Final Order of Deportation had been entered against them because they failed to appear for a deportation hearing.  Often, this occurred because the Immigration Court sent the notice to an old address.  Nevertheless, they were arrested at their interviews, and detained by the government while their lawyers attempted to reopen their cases.

Or imagine that you could only adjust your status in the U.S. if you qualify for benefits under Section 245(i).  You think that your U.S. citizen aunt may have petitioned for your mother and the rest of the family back in the 1980s when you were a minor.  The only problem is that both your aunt and your mother have passed away, and you have no proof that a petition was ever submitted.  What is the solution? Order your mother's immigration file under FOIA, and find out.

All in all, it often makes sense to obtain a copy of your file before you apply for immigration benefits.  Our law firm submits over 100 FOIA requests each year.

Here are a few things that you should know about FOIA:

1) There are no filing fees for submitting a FOIA application, although the government may charged you a small copying fee if your immigration file is huge;
2) If you are afraid that your file may contain negative information, you may wish to hire an immigration attorney to obtain and review your file.  The attorney does not have to reveal your address on the FOIA application;
3) The USCIS often withholds certain parts of your file from you based on exemptions specified in the FOIA law.  However, you have a right to appeal the USCIS' decision;
4) I have yet to see a case where EOIR withheld any part of the file from the applicant;
5) If you are undergoing removal proceedings, you are entitled to receive your FOIA file more quickly; and
6) The processing times for FOIA requests to the USCIS have dropped from one year at the beginning of 2009 to four months currently.  EOIR often processes FOIA requests in just two to three months.

Having worked for the INS, and since 1982, in private practice, I believe that it is better to be safe than sorry.  If you or your immigration attorney have the slightest doubt about your eligibility for immigration benefits based on something that may be in your government file, you should first submit a FOIA request and obtain a copy of your file.

For more information about the Freedom of Information Act, see our "FOIA" page at

http://shusterman.com/foia.html

  

USCIS Errors: Who Should Bear the Burden?

Is a person who was deported almost 30 years ago, and returned to the U.S. without inspection a year later subject to the permanent bar under the 1996 immigration law?

The 1996 law created the permanent bar to immigrating to the U.S.  Section 212(a)(9)(C)(i)(II)provides as follows:

"(C) Aliens unlawfully present after previous immigration violations.-

(i) In general.-Any alien who-

...(II) has been ordered removed under section 235(b)(1) , section 240 , or any other provision of
law, and who enters or attempts to reenter the United States without being admitted is inadmissible."

The question is whether or not this section of law is retroactive.

When our client, Mrs. Santiago (not her real name) entered the U.S. in the early 1980s and EWI'd a year later, did this subject her to the permanent bar? 

We think not, yet recently the USCIS denied her Application for Permission to Reapply for Admission to the United States After Deportation or Removal (Form I-212) on the grounds that a person who is subject to the permanent bar is ineligible to have an I-212 granted under two separate BIA decisions. However, neither of the cited decisions involves a person who was deported and then returned to the United States prior to the effective date of 1996 law.

We searched for the answer to this question on the new USCIS website.  First, we looked at the Neufeld memo of May 6, 2009 entitled "Consolidation of Guidance Concerning Unlawful Presence Under Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I)". However, since the portion of section 212(a)(9)(i) that allegedly makes Mrs. Santiago inadmissible is subsection II, rather than subsection I, the Neufeld memo does not answer our question. 

Next, we looked to the USCIS' Adjudicator's Field Manual for guidance.  We compliment the USCIS for posting a copy of the Manual online.  This saves immigrants and their attorneys from having to spend $150 to buy the book which contains the Manual.  Also, it is easier to navigate the online version of the Manual since it is searchable. 

We link to the USCIS Adjudicator's Field Manual from our "USCIS" page at

 http://shusterman.com/ins.html#1a

Unfortunately, the Manual also fails to deal with the issue of retroactivity of subsection II of
the permanent bar.

So, is it possible to find an answer to our question on the Web?

We did a Google search, and found a several web sites (including our own) which contain an INS memorandum entitled "Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and Nationality Act (Act)" written to General Counsel Paul Virtue which answers our question.  See our "Unlawful Presence and the 3/10 Year and Permanent Bars" page at

 http://shusterman.com/bars.html#1

The Virtue memo states as follows: "Section 212(a)(9)(C)(i)(II) of the Act applies to those aliens ordered removed before or after April 1, 1997, and who enter or attempt to reenter the United States unlawfully any time on or after April 1, 1997." Eureka!  The permanent bar is not retroactive and, therefore, does not apply to Mrs. Santiago.

We find it troubling that the Virtue memo is apparently absent from the USCIS' new website even
though it is the only guidance regarding this issue emanating from the agency during the 13 years
since the law was enacted.

The agency was no regulations which implement this section of law, and does not guide its officers
as to the proper interpretation of the section 212(a)(9)(c)(i)(II) in its Adjudicator's Field
Manual.

It is no wonder that the USCIS examiner mistakenly assumed that the permanent bar applied to Mrs. Santiago.  And, or course, the only way for the Service's mistake to be corrected is for Mrs. Santiago to pay the USCIS to file an appeal.

This is obviously unfair to Mrs. Santiago.  There must be a better way.

We suggest

    (A) That USCIS.gov be revised so that all policy memoranda appear on the website;

    (B) That the Adjudicator's Field Manual be updated to reflect the guidance that was given to the field in 1997 by the USCIS' General Counsel's office; and

    (C) That where clear Service error results in a denial of benefits, that the filing fee be returned to the applicant.

 

H-1B Surge: OPT Students, Listen Up!

Last year, employers submitted so many H-1B petitions, the USCIS had to pick the winners by lottery.

This year, seven months after the opening of the filing season that started on April 1st, the H-1B cap has yet to be reached.  However, the numbers may not last long.

During the first week of April, the USCIS received almost enough H-1B petitions to fill the 20,000 cap for persons with advanced degrees, but only 43,000 petitions against the 65,000 general cap.

Over four months later, only 2,000 more H-1B petitions had been approved.  Why so few?

It's the economy, stupid!

But apparently, despite all the gloom and doom over the high unemployment rate, U.S. employers are again starting to hire professional workers.  Between September 25 and the end of October, the USCIS approved over 7,000 additional H-1B petitions bringing the total to 53,800 and forcing advanced degree professionals to compete for numbers against those with Bachelors degrees.  We are tracking each new USCIS announcement with our two charts at

    http://shusterman.com/h1bcap10.html

At this rate, the H-1B cap may be reached in January, maybe even by Christmas!

Who should act quickly to claim an H-1B number?  Students working using Optional Practical Training (OPT). When you have a one-year work permit in your hand, and can easily move from employer to employer, it's easy to become complacent.

However, if the H-1B cap is reached in a matter of weeks, imagine what may happen next April Fools Day? Yes, another H-1B lottery.  And a lot of OPTs would have to return home.

So if you graduated from a university in the U.S. with a Bachelors, Masters or a Ph.D., don't rest on your EAD.  Ask your employer to sponsor you for an H-1B, and do so ASAP.

NEW LAW WILL PROTECT SURVIVING FAMILY MEMBERS

On October 20, the Senate followed the House of Representatives in voting to protect surviving family members when either the petitioner or the principal beneficiary of a petition dies.  President Obama is expected to sign this legislation shortly. We link to the bill (H.R.2892) from our "Immigration Legislation" page at

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

Presently, the law provides that when the petitioner or the principal beneficiary dies, so does the petition.  Typically, if the beneficiaries are present in the U.S., their applications for adjustment of status are denied and they are placed in removal proceedings.

There are few options for surviving relatives:

For example, there is a section of the law which provides that a surviving spouse of a U.S. citizen can self-petition for permanent residence, but only if the marriage occurred at least two years before the petitioner's death.

There is also a regulation which provides that where the petitioner of a family-based petition dies before the beneficiaries of the petition became permanent residents, the beneficiaries may request that the USCIS reinstate the petition for "humanitarian" reasons.

* WHO WILL BENEFIT FROM THE NEW LAW?

Not only does the new law eliminate the infamous "widow penalty", it does so much more! 

When either the petitioner or the principal beneficiary dies in a wide variety of instances, the law acts to protect the surviving family members:
 
 1) Parents, spouses and children of a U.S. citizen with pending or approved petitions;
 2) Beneficiaries, principal or derivative, of pending or approved family-based petitions;
 3) Beneficiaries, principals or derivative, of pending or approved employment-based petitions;
 4) Beneficiaries, principal or derivative, of pending or approved asylee/refugee relative petitions;
 5) Nonimmigrants entitled to "T" (trafficking victims) or "U" (crime victims) status.

Since the waiting times for family-based and employment-based preference can range up to between five and 22 years, often petitioners and principal beneficiaries die before the beneficiaries of the petition can obtain permanent residence. 

In explaining how the new law would operate, let's use the following examples:

 * EXAMPLE #1 - Family-Based Petition

Ms. Santos' sister, a citizen of the U.S., petitioned for her over 20 years ago.  At that time, her children were four, two and one year of age.  Ms. Santos and her husband work as technicians in the U.S. By the time her priority date became current, her children were 24, 22 and 21.  The INS took two years to approve the visa petition.  Since the length of time that the visa petition was pending can be subtracted from the age of her children under the Child Status Protection Act, the "immigration ages" of her children are 22, 20 and 19.  Therefore, the youngest two are still considered to be children for purposes of adjustment of status, and the older child must wait for a final resolution of the proper interpretation of CSPA's "automatic conversion" clause.  Ms. Santos, her husband and her two youngest children all apply for adjustment of status under section 245(i). However, shortly before their interview takes place, her U.S. citizen sister dies.  Under current law, Ms. Santos only remedy would be to apply for "humanitarian" reinstatement of her petition from the USCIS, an "iffy" proposition.  Under the new law, she and her family (except possibly her oldest child) would be protected as "survivors" and would be allowed to continue with their applications for adjustment of status despite the death of her sister.

Assuming that Ms. Santos and her family members are all eligible for adjustment of status, the only way their applications can be denied is if the USCIS denies the visa petition by determining that its approval "is not in the public interest".

Also, since Ms. Santos' sister has died, another sponsor for an affidavit of support is needed. 

 * EXAMPLE #2 - Same Scenario as Above, but Ms. Santos and her Family are Abroad

If Ms. Santos and her family are abroad on the day that her sister dies, the petition will be revoked by the USCIS.  The family's only recourse is to request a reinstatement of the visa petition on "humanitarian" grounds.

 * EXAMPLE #3 - Same Scenario as Above, but Ms. Santos, not her Sister, Dies

If Ms. Santos dies before she and her family are able to adjust status, the new law provides that the petition remains approved unless the USCIS determines that this "is not in the public interest". Her husband and the youngest two children can adjust their status to permanent residents.  This represents a clear departure from previous laws which would have resulted in the denial of adjustment of status applications for her husband and children, and placing them under removal proceedings.

Is there any remedy for the family under this scenario if Ms. Santos' family had remained abroad?  Unfortunately, the answer to this question is "no".

 * EXAMPLE #4 - Employment-Based Petition

Dr. Kumar is a physician born in India.  His wife and daughter reside with him in the U.S. He is in  H-1B status.  His wife and daughter are in H-4 status.  Dr. Kumar completed his medical residency in the U.S. on a J-1 visa.  Then, for three years, he worked in a medically-underserved area in H-1B status.  In 2006, his employer submitted a PERM application on his behalf.  It was approved in the Spring of 2007.  In July 2007, when all the employment-based numbers became current, Dr. Kumar's employer submitted an EB-2 visa petition on his behalf.  Simultaneously, Dr. Kumar, his wife and daughter all applied for adjustment of status.  Then his priority date retrogressed.  In 2009, Dr. Kumar was killed by a drunk driver.  Under present law, the visa petition would be revoked.  Under the new law, Dr. Kumar's wife and daughter would be permitted to continue with their applications to adjust status.  The visa petition could only be revoked if the USCIS determined that its continued approval would not be "in the public interest".

* ELIMINATION OF THE "WIDOW PENALTY" 

What follows is some advice for surviving spouses and children under the portion of the new law which relates to widows of U.S. citizens and their children:

 * How Can I Benefit from the New Law?

Under the new law, all surviving spouses can apply for themselves and their children for green cards.  The new law eliminates the two-year marriage requirement for self-petitions.

If you are physically present in the U.S., file an I-360 self-petition together with an I-485 application for adjustment of status.

If you reside abroad, file an I-360 self-petition and follow the normal immigrant visa procedures.

In either case, it is incumbent upon you to submit the I-360 within two years of the law's passage, and to demonstrate that the marriage was bona fide.  Include wedding photos, proof of joint assets, etc.

If your spouse dies more than two years after the law's enactment, your I-360 must be submitted within two years of your spouse's death.

There is no affidavit of support required. However, you must demonstrate to the government that you are not likely to become a public charge.

Also, if you remarry, you will lose your eligibility.

 * How Can My Children Benefit from the New Law?

Your unmarried children may be included in your I-360 self-petition. 

Remember that although the law defines "children" as unmarried and under 21 years of age, the Child Status Protection Act (CSPA) may allow your child's age to be "frozen".  As a general rule, if the I-130 or I-360 petition was submitted prior to your child's 21st birthday, they will continue to be considered a child no matter how old they are when the USCIS decides their application for a green card as long as they remain single.

For more information about CSPA, see our "Child Status Protection Act FAQ" at

http://shusterman.com/cspa.html#3

* CONCLUSION 

The new law will provide immigration benefits to "survivors" in various types of immigration cases where either the petitioner or the principal beneficiary dies before the other family members are able to become permanent residents. 

However, the law is complex, and the extent of its benefits will not be known until after the USCIS and the State Department promulgate regulations, or issue memos, explaining how they plan to implement the new law.  

On October 20, the Senate followed the House of Representatives in voting to protect surviving family members when either the petitioner or the principal beneficiary of a petition dies.  President Obama is expected to sign this legislation shortly. We link to the bill (H.R.2892) from our "Immigration Legislation" page at

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

Presently, the law provides that when the petitioner or the principal beneficiary dies, so does the petition.  Typically, if the beneficiaries are present in the U.S., their applications for adjustment of status are denied and they are placed in removal proceedings.

There are few options for surviving relatives:

For example, there is a section of the law which provides that a surviving spouse of a U.S. citizen can self-petition for permanent residence, but only if the marriage occurred at least two years before the petitioner's death.

There is also a regulation which provides that where the petitioner of a family-based petition dies before the beneficiaries of the petition became permanent residents, the beneficiaries may request that the USCIS reinstate the petition for "humanitarian" reasons.

* WHO WILL BENEFIT FROM THE NEW LAW?

Not only does the new law eliminate the infamous "widow penalty", it does so much more! 

When either the petitioner or the principal beneficiary dies in a wide variety of instances, the law acts to protect the surviving family members:
 
 1) Parents, spouses and children of a U.S. citizen with pending or approved petitions;
 2) Beneficiaries, principal or derivative, of pending or approved family-based petitions;
 3) Beneficiaries, principals or derivative, of pending or approved employment-based petitions;
 4) Beneficiaries, principal or derivative, of pending or approved asylee/refugee relative petitions;
 5) Nonimmigrants entitled to "T" (trafficking victims) or "U" (crime victims) status.

Since the waiting times for family-based and employment-based preference can range up to between five and 22 years, often petitioners and principal beneficiaries die before the beneficiaries of the petition can obtain permanent residence. 

In explaining how the new law would operate, let's use the following examples:

 * EXAMPLE #1 - Family-Based Petition

Ms. Santos' sister, a citizen of the U.S., petitioned for her over 20 years ago.  At that time, her children were four, two and one year of age.  Ms. Santos and her husband work as technicians in the U.S. By the time her priority date became current, her children were 24, 22 and 21.  The INS took two years to approve the visa petition.  Since the length of time that the visa petition was pending can be subtracted from the age of her children under the Child Status Protection Act, the "immigration ages" of her children are 22, 20 and 19.  Therefore, the youngest two are still considered to be children for purposes of adjustment of status, and the older child must wait for a final resolution of the proper interpretation of CSPA's "automatic conversion" clause.  Ms. Santos, her husband and her two youngest children all apply for adjustment of status under section 245(i). However, shortly before their interview takes place, her U.S. citizen sister dies.  Under current law, Ms. Santos only remedy would be to apply for "humanitarian" reinstatement of her petition from the USCIS, an "iffy" proposition.  Under the new law, she and her family (except possibly her oldest child) would be protected as "survivors" and would be allowed to continue with their applications for adjustment of status despite the death of her sister.

Assuming that Ms. Santos and her family members are all eligible for adjustment of status, the only way their applications can be denied is if the USCIS denies the visa petition by determining that its approval "is not in the public interest".

Also, since Ms. Santos' sister has died, another sponsor for an affidavit of support is needed. 

 * EXAMPLE #2 - Same Scenario as Above, but Ms. Santos and her Family are Abroad

If Ms. Santos and her family are abroad on the day that her sister dies, the petition will be revoked by the USCIS.  The family's only recourse is to request a reinstatement of the visa petition on "humanitarian" grounds.

 * EXAMPLE #3 - Same Scenario as Above, but Ms. Santos, not her Sister, Dies

If Ms. Santos dies before she and her family are able to adjust status, the new law provides that the petition remains approved unless the USCIS determines that this "is not in the public interest". Her husband and the youngest two children can adjust their status to permanent residents.  This represents a clear departure from previous laws which would have resulted in the denial of adjustment of status applications for her husband and children, and placing them under removal proceedings.

Is there any remedy for the family under this scenario if Ms. Santos' family had remained abroad?  Unfortunately, the answer to this question is "no".

 * EXAMPLE #4 - Employment-Based Petition

Dr. Kumar is a physician born in India.  His wife and daughter reside with him in the U.S. He is in  H-1B status.  His wife and daughter are in H-4 status.  Dr. Kumar completed his medical residency in the U.S. on a J-1 visa.  Then, for three years, he worked in a medically-underserved area in H-1B status.  In 2006, his employer submitted a PERM application on his behalf.  It was approved in the Spring of 2007.  In July 2007, when all the employment-based numbers became current, Dr. Kumar's employer submitted an EB-2 visa petition on his behalf.  Simultaneously, Dr. Kumar, his wife and daughter all applied for adjustment of status.  Then his priority date retrogressed.  In 2009, Dr. Kumar was killed by a drunk driver.  Under present law, the visa petition would be revoked.  Under the new law, Dr. Kumar's wife and daughter would be permitted to continue with their applications to adjust status.  The visa petition could only be revoked if the USCIS determined that its continued approval would not be "in the public interest".

* ELIMINATION OF THE "WIDOW PENALTY" 

What follows is some advice for surviving spouses and children under the portion of the new law which relates to widows of U.S. citizens and their children:

 * How Can I Benefit from the New Law?

Under the new law, all surviving spouses can apply for themselves and their children for green cards.  The new law eliminates the two-year marriage requirement for self-petitions.

If you are physically present in the U.S., file an I-360 self-petition together with an I-485 application for adjustment of status.

If you reside abroad, file an I-360 self-petition and follow the normal immigrant visa procedures.

In either case, it is incumbent upon you to submit the I-360 within two years of the law's passage, and to demonstrate that the marriage was bona fide.  Include wedding photos, proof of joint assets, etc.

If your spouse dies more than two years after the law's enactment, your I-360 must be submitted within two years of your spouse's death.

There is no affidavit of support required. However, you must demonstrate to the government that you are not likely to become a public charge.

Also, if you remarry, you will lose your eligibility.

 * How Can My Children Benefit from the New Law?

Your unmarried children may be included in your I-360 self-petition. 

Remember that although the law defines "children" as unmarried and under 21 years of age, the Child Status Protection Act (CSPA) may allow your child's age to be "frozen".  As a general rule, if the I-130 or I-360 petition was submitted prior to your child's 21st birthday, they will continue to be considered a child no matter how old they are when the USCIS decides their application for a green card as long as they remain single.

For more information about CSPA, see our "Child Status Protection Act FAQ" at

http://shusterman.com/cspa.html#3

* CONCLUSION 

The new law will provide immigration benefits to "survivors" in various types of immigration cases where either the petitioner or the principal beneficiary dies before the other family members are able to become permanent residents. 

However, the law is complex, and the extent of its benefits will not be known until after the USCIS and the State Department promulgate regulations, or issue memos, explaining how they plan to implement the new law.  

How to Select an Immigration Attorney

Last Friday was a depressing day for me.  A businessman and his daughter visited me in my office.  When I asked how they had learned about our law firm, they said a lot of flattering things about how "famous" we were and about our "great" website.

However, when I analyzed their case, it quickly became apparent to me that nothing could be done to help them.  It was too late. The man's I-140 (EB1-3) which was submitted in April 2001 had been denied, and his former attorney had advised them to not to appeal, but to have the employer file a new I-140. The new I-140 was also denied as were their I-485s.  Since the man's L-1 status had long since expired, his whole family had been placed under removal proceedings.

His present lawyer had advised him to have his employer submit a 3rd I-140 on his behalf and for him and his family to file new I-485s on the basis that he was eligible for adjustment of status under section 245(i).

Suddenly, I became the bearer of bad news: "Sir, you are ineligible for benefits under section 245(i).  Your initial I-140 was denied because the INS concluded that you were not an executive or manager, that the foreign and domestic companies were unrelated and that you were not being paid at the proferred wage.  Furthermore, your employer did not appeal the I-140 denial.  So, what is your argument that the I-140 meets the 'approvable when filed' standard for section 245(i) eligibility?"

Yet, both his previous and present attorneys were in agreement that he was covered under section
245(i).  I told him that I disagreed, and therefore, could not take his case.  He and his daughter left my office disappointed.

Every potential client that I saw on Friday had a similar story, and it was too late to repair any
of their damaged cases.  In my opinion, each of them will have their cases denied by an Immigration
Judge.  What's more, they will pay other attorneys many thousands of dollars only to lose their
cases, appeal them to the BIA, and then lose again.  Eventually, these unfortunate people will be
ordered to either leave the United States "voluntarily" or face deportation.

COULD THESE RESULTS HAVE BEEN AVOIDED?

Absolutely!

Section 245(i) has been on the books for over 15 years.  All immigration attorneys should be able to properly analyze the facts of a case, and advise a client whether his I-140 complies with the "approvable when filed" standard under section 245(i).

But how is a person supposed to know whether an immigration attorney is giving him good advice? In fact, how does a person go about selecting a good immigration attorney to represent him?

There are over 11,000 members of the American Immigration Lawyers Association (AILA). Some are
excellent attorneys, others are so-so, but more than a few are absolutely terrible.  All immigration attorneys are not created equal. How is an immigrant, untrained in the intricacies of the law, supposed to select a competent attorney?

I have prepared a free video entitled "Ten Rules for Selecting an Immigration Attorney".  Take a few 
minutes and watch this video at

 http://shusterman.com/ytimmatty.html

CERTIFIED SPECIALISTS IN IMMIGRATION LAW

Immigrants frequently choose attorneys just because they speak their language or because they are from the same country. Many Chinese choose Chinese attorneys, Filipinos tend to select Filipino attorneys, etc.

Some immigration attorneys have built huge followings by blanketing ethnic newspapers with ads touting their successes.

Other attorneys, including Yours Truly, are known largely through their websites.

However, speaking a particular language, running big ads or having a popular website is no guarantee of quality.  Expertise and experience are far more important than "self-advertised or paid" prominence.

In my video, I stress one important criterion that is nowhere mentioned in the section of the USCIS website entitled "Finding Legal Advice" or in the ads or websites of most immigration attorneys.

A number of states put attorneys through a rigorous system where they must pass a difficult examination regarding the intricacies of immigration law, require that they have a certain amount of experience in various facets of immigration law (employment-based, family-based, asylum, deportation defense, etc.) and obtain recommendations from their colleagues.  A committee checks to make sure that the attorney is in good-standing with the bar association. Only then can an attorney be deemed to be a Certified Specialist in Immigration Law.

Several years ago, I had the privilege of serving on the committee which writes and grades the examination for California attorneys seeking Certified Specialist status in Immigration Law.  I can state, without hesitation, that the examination was extremely difficult to pass, and that every attorney who our committee recommended to be a Certified Specialist was both experienced and a true expert in the field.

In my opinion, persons seeking legal advice from immigration attorneys could do no better than to restrict their search to pre-screened Certified Specialists in Immigration Law.

LOCATION, LOCATION, LOCATION ?

This mantra is a good rule of thumb when you are looking to buy a house.  It is less helpful when you are seeking immigration legal advice.  Immigration law is federal.  Therefore, an immigration lawyer in Texas or California can represent corporate and individual clients in all 50 states. 

For example, during the past few weeks, attorneys in our law firm flew to New York City, Reno, Dallas and Philadelphia to represent clients.  In a typical case, however, the petitions and applications are simply mailed to the USCIS, and no interview is required.  The location of the attorney is irrelevant, while the skill of the attorney is paramount.

The USCIS promised to link to lists of Certified Specialists in Immigration Law as a public service.  See

  http://shusterman.com/pdf/certsp1106.pdf

However, they seem to have reneged on their promise.

Don't despair.  Below, we link to the web addresses of all Certified Specialists in Immigration Law around the United States.

HOW TO FIND A CERTIFIED SPECIALIST IN IMMIGRATION LAW

Four states currently certify attorneys as specialists in immigration law.  If enough savvy consumers of legal services use certified specialists, we predict their will be a clamor in all states to certify legal specialists in the future.

 * CALIFORNIA

  http://members.calbar.ca.gov/search/ls_search.aspx

 * FLORIDA

  http://www.floridabar.org/names.nsf/CERTA?openview&RestrictToCategory=IM&count=20

 * NORTH CAROLINA

  http://www.nclawspecialists.org/results.asp?SpecialtyID=1108

 * TEXAS

  http://www.tbls.org/Directory/Attorney.aspx

 

WHAT CAN A CERTIFIED SPECIALIST DO FOR YOU?

Should you hire a Certified Specialist in Immigration Law?

Take a look at the brochure written by the California State Bar at

   http://www.shusterman.com/certsp105.html

Hopefully, you will hire a Certified Specialist in Immigration Law to assist you with your immigration case. 

If you do, you can obtain top-notch legal advice and avoid the unfortunate dilemma faced by the businessman and his daughter discussed at the beginning of this article.

We Give the New USCIS Website a "B-"

The newly revamped USCIS website (www.uscis.gov) went online on September 22.

It is definitely an improvement over the prior website.

For example, it is geared to the person who needs information about immigration.  On the left side of
the screen appear the words "Where to Start".  This allows you to click the arrow next to the words
"I am..." and provides you will 21 choices ranging from "U.S. citizen" and ending with "Educator or
Volunteer".  Below are the words "I want to..."  Depending on which of the 21 categories you chose
under "I am...", the choices under "I want to..." will vary accordingly.

If you choose "I am a visitor/nonimmigrant", you will be given seven choices in the "I want to..." category.  Some of these categories allow you to learn more about becoming a permanent resident through investment, employment, the lottery or as a religious worker, but nothing about becoming a permanent resident through a family member.  This is obviously an oversight which we hope will be quickly corrected.

Suppose you choose "I want to find out about becoming a permanent resident (green card holder)
through employment".  You must click the green button which states "Get Results".  This brings
you to a page entitled "Green Card Through a Job".  A short article about employment-based
immigration appears in the middle of the page.  Over to the left, there are links to web pages on
the following topics: "Green Card Through a Job Offer", "Green Card Through Investment", "Green
Card Through Self-Petition" and "Green Card Through Special Categories of Jobs" as well as links
to other ways to obtain a green card and green card processes and procedures.

The right side of the screen contains a column entitled "More Information" with the following
subtopics: "Forms", "Tools - Before I File", "Tools - After I File", "Other Cases Services",
"Other USCIS Links" and "External Links".

All in all, the new USCIS website appears to contain more information than did the old website.
Further, it is arranged in a fashion which is much more user-friendly. We link to the new website
from our "USCIS" page at

  http://shusterman.com/ins.html#1

Another significant improvement to the new website is that there is a Spanish-language version
of the site.  It is plain to see, however, that many pages which are available in English are
not available in Spanish. For example, the Spanish "Soy..." option contains only four possibilities
as opposed to the 21 choices for the English "I am...".   Hopefully, this will change over time. We link to the Spanish version of the website from

  http://shusterman.com/cis_espanol.html

The website allows users to get e-mail updates, text messages on their smart phones regarding
the status of their cases, has an RSS feed and multimedia.  I watched a video entitled "Becoming
a U.S. Citizen: An Overview of the Naturalization Process".  As former INS Citizenship Attorney
(1976-82), I was impressed by the quality of the information presented.

We link to the page which allows persons to create an account in order to check their case status
and to learn the current processing times from our "USCIS" page at

  http://shusterman.com/ins.html#2

Not everyone is impressed with the new website.  When I requested a short evaluation of the
site from a member of my staff, I received this following:

"The main change to the USCIS website is the layout. The contrast in colors is pleasing to the eye
and adds the illusion that the site is that much more organized. What is much more organized is the
homepage. The topics that seem to be of main interest to visitors are nicely laid out. However once
you click on the topic, you are connected to a page with basic information and on each side there
are links that might confuse the visitor at first. After touring around this redesigned site, the
visitor realizes that the same links practically exist on every page with minimal change. I don’t
think USCIS is providing its visitors with more information, it’s just that the same information
has moved!"

I don't know that my evaluation of the new website is as harsh.  However, I do have some problems
with the new website.

On August 15, a few weeks before the new website went online, we wrote "USCIS' Redesigned Website: Our Suggestions".  See

 http://carlshusterman.blogspot.com/2009/08/uscis-redesigned-website-our-suggetions.html

Did the new website adopt any of our suggestions?  Read on.

     * Suggestion # 1 - Please do Something to Improve the Search Engine

As a trial, we typed in the words "L status" into the search engine and got ten results.  However,
none of the results led us to a page discussing what L status is and how to obtain it.  Is there such a page on the USCIS website?  Perhaps the search engine still needs some work. Until USCIS improves its website and search engine, feel free to go to our "Intracompany Transferees L-1 Status" page at

  http://shusterman.com/l-vsa.html

     * Suggestion # 2 - Make the Website Easier to Navigate

Failing to find any information about L status by clicking "Resources" near the top of the
new website, we typed "Nonimmigrant Categories" in the search engine, and with a bit more
effort, found the following 162-page PDF file about nonimmigrant status:

 http://www.uscis.gov/files/nativedocuments/Nonimmigrant_Services.pdf

Was this information available on the old website?  We don't know.  However, why not simply
add an easy-to-locate "Nonimmigrant" section on the new website?

     * Suggestion # 3 - Make the New Website as Good as the 1999 Website

Here, we searched for the four Nationality Charts.  The term "Nationality Charts" yields
no results in the search engine. Similarly, opening "Citizenship & Naturalization Based
Resources" on the left side of the screen fails to reveal any information regarding obtaining
U.S. citizenship through one's parents, through derivation or acquisition.  However, a google
search revealed that the Nationality Charts are still on the USCIS website located in the
Adjudicators' Field Manual.  But why torture yourself?  We link to all four Nationality Charts
from our "Citizenship" page at

  http://shusterman.com/toc-usc.html#6

     * Suggestion # 4 - What's with the Long URLs?

On the new website, the URL for "Information for Employers and Employees" is

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/
?vgnextoid=838e2f8b69583210VgnVCM100000082ca60aRCRD&vgnextchannel=838e2f8b6958321
0VgnVCM100000082ca60aRCRD

Need we say more?

     * Suggestion # 5 - Help Immigrants and Their Employers Find Good Legal Advice

Under the heading "Humanitarian Benefits Based Resources" on the left side of the screen is
the listing "Finding Legal Advice".  The new website, like the old, still links to the EOIR
"List of Free (sic) Legal Service Providers".  As we explained in our blog, this is both
misleading and untrue.

Does the new website link to the list of "Certified Specialists in Immigration and Nationality
Law" as USCIS promised me in 2006?  See

  http://shusterman.com/pdf/certsp1106.pdf

Of course not!

All in all, the new USCIS website is an improvement over the old website, but much more remains
to be done.

We give the new USCIS website a "B-"

Hopefully, the new website is a work-in-progress.  Send your comments to

  uscis.webmaster@dhs.gov

USCIS' Redesigned Website: Our Suggestions

The USCIS announced that, on September 22, the agency "will launch a vastly improved public Web site to help customers navigate the immigration system and remain up-to-date regarding their case status."  See the USCIS Fact Sheet dated August 11 at

 http://www.shusterman.com/pdf/redesign.pdf

Almost 10 years ago, the INS redesigned its website.  We were very critical.  See our review entitled "INS's New Website Emphasizes Content Over Form(s)" at

 http://shusterman.com/sep99.html#6 

We pointed out that after spending millions of dollars and employing a great many experts, the INS website did not even allow readers to access as many INS forms as our website.  The INS Webmaster responded to our review on September 20, 1999.  See

 http://www.shusterman.com/beyer.html

Subsequently, the INS established the best U.S. immigration website on the Internet. 

However, several years later, the INS again redesigned its website, and in the process, eliminated many of the most helpful features of the site.

Since the USCIS is once again redesigning it's website, we wish to make a few suggestions:

1. Please do something to improve the search engine.

Our website has more links to the USCIS website (several hundred) than any other site on the web. So we empathize with readers who tell us that it is extremely difficult to find information on the USCIS website. For example, take a look at the first link above, the USCIS Fact Sheet dated August 11.  We could not find this on the USCIS website, so we scanned in the Fact Sheet and posted it on our website.

Example: What if someone is interested in L status?  Whether they type in "L", "L status", "L visa petition" into the USCIS search engine, they get the following answer: "404 - Requested Page Not Found on Site". 

The USCIS search engine, even when it is working, leaves a lot to be desired.

2. Make the website easier to navigate.

Your fact sheet lists the following customer comments about the present USCIS website.  It is "hard to navigate", "overwhelming" and "frustrating". That's because the layout of the website is illogical.  For example, let's say someone is searching for information about L status. How do they find this information at www.uscis.gov?  

The website has the following buttons near the top of the page:

  * Services & Benefits
  * Immigration Forms
  * Laws & Regulations
  * About USCIS
  * Education & Resources
  * Press Room

Where would one find information about L status? Probably under "Services & Benefits". Clicking this button leads one to a four-paragraph general introduction which ends with the following guidance: "For information about a particular immigration benefit or service, please select the appropriate button on the menu to your left."

The menu on the left contains a total of 17 different items, none of them clearly relating to L status or temporary visa categories.  So we decided to click the "How do I Customer Guides".  This page lists six different categories of guides, one of them being "Nonimmigrants".  Fine for an attorney, but does the average immigrant realize that the word "Nonimmigrants" relates to temporary visa categories like the L category?  Probably not.

However, let's assume that the reader clicks on "Nonimmigrants".  This leads to a page which contains three links, the most appropriate being "How do I Change to Another Nonimmigrant Status?"  Click on this link, and you are transported to a three-page PDF file.  The file lists some of the 40 types of nonimmigrant categories, but provides precious little information about any of these categories.  For instance, with reference to the L category, the document states "L-1A or L-1B Intracompany Transfer".  Not very helpful, is it?

By this time, the person has probably given up on the USCIS website and found all the information that they need to know about L status on our website at

http://shusterman.com/toc-temp.html#3m

And where did we get all this great information about L status?  Confession: We copied and pasted it from the old INS website! (which leads us to our next suggestion...)

3. Bring Back the Old INS Website

Or at least make the new USCIS website as useful as the old INS website was.  For example, the USCIS used to include four charts which relate to derivative citizenship.  And we linked to all four nationality charts.  For example, we linked to the chart for "Acquisition of U.S. Citizenship for Children Born Abroad in Wedlock" at

http://www.uscis.gov/propub/ProPubVAP.jsp dockey=6f3ca27ff6c196d35e87dae2221deee9

Every few weeks, the URL would change and we would have to repair the link.  We wrote to the USCIS webmaster about this problem, but we never received a reply.  Now, it seems that the USCIS has removed all four nationality charts from their website.  Why? We have no idea.

We could write to the USCIS webmaster, but what's the use?

4. What's With the Long URLs?

Check out the following web page:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=4f719c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextchannel=4f719c7755cb9010VgnVCM10000045f3d6a1RCRD

What's this, you may ask?  It's USCIS' page regarding "Lawful Permanent Residence (Green Card)". Why is the web address (aka, the URL) so long?  Maybe there is a reason for the long URLs on the USCIS website, but we don't know what it is.

5. Help Immigrants and Their Employers Find Good Legal Advice

The USCIS website wisely advises persons not to use the services of notarios or "immigration consultants".

However, it does little to advise immigrants where to find knowledgeable and experienced immigration attorneys. USCIS' "Finding Legal Advice" page contains eight links: To the websites of the American Bar Association and the National Organization of Bar Counsel and even to EOIR's list of "Free Legal Service Providers".  However, when one clicks on this last link, the list indicates that the services of these attorneys are not necessarily free, and what's more, this list is for persons in removal proceedings who cannot afford an attorney.  Not exactly the list that an employer who wants to submit a PERM application or a permanent resident who wants to apply for naturalization needs.

A long time ago, we suggested to the USCIS that since four states (California, Florida, Texas and North Carolina) certify certain attorneys as Specialists in Immigration Law, why not link to the lists of these specialists.  On November 6, 2006, Alfonso Aguilar, the Chief of USCIS' Office of Citizenship told us that he would do so.  See

http://shusterman.com/pdf/certsp1106.pdf

We have been waiting for this to occur for nearly three years.  Please surprise us, and add this to the new USCIS website!

CSPA for Married Couples

When she and her husband called me, she thought that she qualified for benefits under CSPA.

Initially, I was skeptical.  In every seminar regarding the Child Status Protection Act (CSPA) that I have presented on behalf of the American Immigration Lawyers Association (AILA), my mantra has always been, if you marry, you lose whatever benefits you gained under CSPA.

Still I listened to what she had to say, and in the end, I agreed with her.

She and her husband were both physicians, born in India and trained in the U.S.  They both would have qualified for permanent residence in the United States years ago except for the long waiting times in the EB-2 category for persons born in India.

Her mother's sister, a citizen of the U.S., petitioned for their family over 20 years ago when she was a child. By the time that their priority date became current in 1999, she had "aged-out" by reaching the age of 21.

A few years later, her mother became a naturalized U.S. citizen, and more recently, the daughter married and had a child.

Is she entitled to benefit under CSPA, or does she have to continue to renew her H-1B status, and wait for her EB-2 priority date to become current?

The first step in resolving this question is to examine the language of the law, specifically section 203(h)(3) of the Immigration and Nationality Act which was added to the law by CSPA:

"If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition."

It is clear that the daughter was 21 years of age when her parents qualified for permanent residence through her aunt's petition.  Therefore, her petition was "automatically...converted" to the 2B category since she was the unmarried adult daughter of a permanent resident.  And she was entitled to "retain the original priority date issued upon receipt of the original petition", which was submitted in 1986.

Yes, I am very aware of the recent decision issued by the Board of Immigration Appeals in Matter of Wang, 25 I&N Dec. 28 (BIA 2009) which disagrees with the above analysis.  However, as I explained in a previous blog entry, I believe that the decision in Matter of Wang is clearly erroneous and not entitled to deference by the Federal Courts.  See

http://carlshusterman.blogspot.com/2009/07/bias-cspa-decision-not-entitled-to.html

Therefore, let's assume that the Federal Courts will invalidate the holding in Matter of Wang and continue with our analysis.

When the physician's mother naturalized, the "appropriate category" under section 203(h)(3) changed from the 2B category to the family-based 1st preference category (unmarried adult sons and daughters of U.S. citizens) and the priority date remains the same.  Why?

Because the USCIS' regulations at 8 C.F.R. 204.2 provide, in pertinent part, that upon the "petitioner's naturalization...a currently valid petition according preference status under section 203(a)(2) of the Act for the unmarried son or daughter over twenty-one years of age shall be regarded as having been approved under section 203(a)(1) of the Act."

Yet, the question remains, what happens to the priority date when the daughter married?

Again, 8 C.F.R. 204.2 which concerns the "automatic conversion of preference classifications" provides, in pertinent part, that "A currently valid petition previously approved to classify the beneficiary as the unmarried son or daughter of a United States citizen under section 203(a)(1) of the Act shall be regarded as having been approved for preference status under section 203(a)(3) of the Act as of the date the beneficiary marries".

Therefore, the daughter is entitled to her original 1986 priority date and her category "automatically converts" from the 4th preference category to the 2B category (when her parents obtained permanent residence), then to the 1st preference category (when her mother naturalized) to the 3rd preference category(when the daughter married).

If we are retained, we will prepare applications for adjustment of status for both the daughter and her husband.  We realize that the USCIS is bound by the holding in Matter of Wang to deny these applications.

However, when this occurs, we will ask a Federal Judge not to defer to Matter of Wang, but to apply the clear language of the law to this matter, and to order the USCIS to grant adjustment of status to our client and her husband.

A Day in the Life of an Immigration Lawyer

None of my friends from UCLA Law School, class of 1973, went into immigration law.

Corporate law, personal injury law and real estate law were all far more lucrative.  If
you are looking for a multi-million dollar settlement, immigration law is not for you.

So why do we immigration lawyers do what we do?

Having spent over half of my life practicing immigration law, I can tell you that I
consider myself to be very fortunate.  The satisfaction that I get from meeting and
helping immigrants from around the world makes it worthwhile.

Let me explain myself by telling you about a recent day at the office:

The first thing in the morning, I interviewed an RN who had arrived in the U.S. as a
visitor a few years ago.  She appeared to be hopelessly out-of-status.  Although her father,
a lawful permanent resident of the U.S., had submitted a visa petition on her behalf over
15 years ago, he had died soon thereafter.  A nursing home had submitted a visa petition
on her behalf in 2007.  However, as I explained to her, this would not allow her to apply
for adjustment of status for another four to five years.

Then, I learned that her grandfather had been born in the U.S. and had traveled to her country
during the Spanish-American War in 1898.  He married her grandmother, and her father was born
in 1916.  Therefore, under the laws which existed on the date of her father's birth, he
acquired U.S. citizenship at birth.  Further, since her country was a U.S. possession until
1946, she acquired U.S. citizenship through her father.

We are currently preparing an application for derivative citizenship on her behalf.  We expect
her to receive a Citizenship Certificate before the end of 2009. 

At the beginning of the appointment, my client thought that she was illegally present in the U.S. 
Thirty minutes later, she learned that she was a U.S. citizen. What a relief!  See

http://shusterman.com/toc-usc.html#6

I saw my next appointment just before lunch.  She was the wife of a U.S. citizen.  Not just
a U.S. citizen, but a sergeant in the U.S. Air Force who has been twice deployed in Iraq. 
She had been petitioned by her U.S. citizen step-father before her 21st birthday.  During
her interview, she was asked whether she was under 21 years of age, and whether she had ever
been married. She answered truthfully.  It took the INS two years to grant her permanent
resident status and mail her a green card.  By that time, she had married, and was pregnant
with her first child.

Five years later, she applied for U.S. citizenship.  Her application was denied because, as
the Immigration Examiner explained, she was granted a green card as an "immediate relative",
not as a married daughter.  Since she been granted a green card by mistake, he could not
approve her application for naturalization.  Furthermore, he informed her that she would be
scheduled for a removal hearing before an Immigration Judge.

Both she and her husband were stunned.  What had she done wrong?  As a former INS General
Attorney (Nationality), I was a bit stunned as well.

I called the Officer-in-Charge of her local INS office, and explained the situation to him. 
We are hopeful that she will not be placed in removal proceedings, and that her application
for naturalization will be granted since the mistake was clearly the government's, not hers.
See

  http://shusterman.com/toc-dpt.html#5

My final appointment of the day also involved a woman who had an application for naturalization
which was denied.  She is married, and is the mother of two children.  She has lived in the U.S.
for over 30 years, since she was a child.  However, the USCIS concluded, based on an investigation
which occurred over a decade ago, that her prior marriage was fraudulent.  When the INS
investigator asked her husband where they had lived when they were married, he could not
remember the address.

As a former INS Trial Attorney, this made me very suspicious as well.  I grilled her
regarding the details of her first marriage.  After giving her the "third degree" for over
30 minutes, her answers were both detailed and credible.  Then I asked her how it was that
her former husband did not even know that address where she claimed that they had resided
for over one year.  She replied that they lived with her parents, and that her husband
was a businessman owned a restaurant closeby.  She knew exactly where their restaurant
was located, the workers at the restaurant and many other details.  But did she know the
address of the restaurant?  Absolutely not.  Her husband knew exactly where their house was
located, the marriage had been approved of by her parents and his prior to the marriage, and
her parents were prepared to testify at her hearing.  But did he know the address of the
house? The answer was no.

Given my background, I fully understood why the investigator had concluded that the marriage
was fraudulent, but after spending considerable time questioning the wife, I concluded that
he was mistaken.

We will appeal the decision denying her citizenship.  If necessary, we will defend her in
removal proceedings.  Will she ultimately be allowed to remain in the U.S. with her family?
I have no doubt that she will. See

  http://shusterman.com/toc-usc.html#2

Driving home on the freeway, I reflected on the circumstances of my three new clients, and
how they had entrusted their futures to me and my associates.  There is no way that we will
let any of them down.

My wife and I went out to dinner with an old friend from law school that evening.  He is a
corporate lawyer, and is extremely successful.  He confessed that he was getting tired of
the "rat race" and plans to retire at the end of 2009.

He asked me when I planned to retire.  "Retire?" I replied, "I have too many clients who
depend on me. And besides, I am having way too much fun!"

How to Use Your H-1B to Qualify Under Section 245K

For the past few months, there have been no green cards available for persons in the employment-based third preference category (EB-3) and long backlogs in the EB-2 category for persons born in India and China.

So, with few green cards to grant, why has the USCIS been scheduling interviews for persons in these categories?

The short answer is that just because the USCIS cannot grant most EB-3 and EB-2 applicants green cards, the agency can take advantage of the lull in applications for adjustment of status to deny persons with pending applications.

How can they do that?  Easy!

Let's say that a person was out-of-status for more than 180 days since their most recent admission to the U.S.  Denied!  Not qualified for adjustment of status under section 245K of the immigration law.

The irony is that section 245K was added to the law by Congress in order to make the requirements for adjustment of status less onerous for employment-based applicants.  It allows persons to adjust their status to permanent residence as long as they were not engaged in unauthorized employment or were out-of-status for 180 days or more since their most recent admission to the U.S.

By way of contrast, persons in the family-based preference categories (who are not immediate relatives of U.S. citizens) can not adjust their status if they have engaged in unauthorized employment or been out-of-status AT ANY TIME.

Let's say that one time during the many years that you were in H-1B status, you lost your job and were out of work for over 180 days.  Adjustment of status denied!

Or maybe you moonlighted at another job without INS's (This was in 2003!)permission.  Adjustment of status denied!

There are endless variations to this sad scenario.  But not only will your application for adjustment of status be denied, but the USCIS will be only too eager to issue a notice for you to appear before an Immigration Judge in removal proceedings!

All those years of working in the U.S. and paying your taxes, all for naught?

Not so fast!

If you are still qualified for an H-1B or an L-1 status, there is a solution. Simply leave the U.S. and return using your visa or obtain a new visa  Poof!  Upon returning to the U.S., you are once again qualified to adjust status under section 245K. 

Why? 

Because the time that you were out-of-status or engaged in unauthorized employment occurred before your last admission to the U.S., so this does not bar you from immediately re-applying for adjustment of status under section 245K.

Not bad, am I right?

A couple of weeks ago, one of our physician clients was denied adjustment of status because he had moonlighted without authorization many years ago, and had never informed us.  At the beginning of July, he approached us with apologies and tears in his eyes. Was the future that he had planned in the United States suddenly over? 

Not at all.

Two weeks later, we obtained an approved H-1B petition for him.  He was granted a visa in his country last week, and returned to the U.S. yesterday. Next week, we will resubmit an application for adjustment of status for him under section 245K. 

No harm, no foul.

Read USCIS' memorandum regarding adjustment of status under section 245K from our "Adjustment of Status" page at
                       
                        http://shusterman.com/aos.html