http://shusterman.typepad.com
If you are currently a follower of our blog, you need to go to the new address, and sign up to a follower again.
Sorry for the inconvenience!
Carl Shusterman
Wednesday, October 14, 2009
Our Blog Has a New Address
Our blog, Nation of Immigrants, has moved to a new address:
http://shusterman.typepad.com
If you are currently a follower of our blog, you need to go to the new address, and sign up to a follower again.
Sorry for the inconvenience!
Carl Shusterman
http://shusterman.typepad.com
If you are currently a follower of our blog, you need to go to the new address, and sign up to a follower again.
Sorry for the inconvenience!
Carl Shusterman
Sunday, October 11, 2009
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 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, and 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 speak their language or are from the same country as they are. 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 service to the public. 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?
Why 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
If you are a savvy consumer, you will hire a Certified Specialist in Immigration Law to assist you in your immigration case.
This way, 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.
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 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, and 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 speak their language or are from the same country as they are. 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 service to the public. 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?
Why 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
If you are a savvy consumer, you will hire a Certified Specialist in Immigration Law to assist you in your immigration case.
This way, 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.
Friday, October 2, 2009
We Give the New USCIS Website a "B-"
The newly revamped USCIS website 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 with 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 choose 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 that 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 only contains 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 a 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 the 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 the 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 on 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=838e2f8b69583210VgnVCM100000082ca60aRCRD
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 they 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
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 with 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 choose 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 that 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 only contains 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 a 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 the 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 the 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 on our "Citizenship" page at
* 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=838e2f8b69583210VgnVCM100000082ca60aRCRD
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 they 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
Saturday, August 15, 2009
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:
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...)
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?
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!
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!
Wednesday, August 12, 2009
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.
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.
Wednesday, August 5, 2009
A Day in the Life of an Immigration Attorney
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 who 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. Besides, I am having way too much fun!"
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 who 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. Besides, I am having way too much fun!"
Thursday, July 30, 2009
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
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
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