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.

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!

Senate Bill Includes Immigration Measures

On July 9, the Senate, by a vote of 84 to 6, passed a DHS funding bill which includes a variety of immigration enforcement and benefits measures. The measure now goes to a House-Senate Conference Committee which must reconcile this bill with a funding measure previously passed by the House of Representatives which contains none of the immigration amendments added by the Senate.

ENFORCEMENT PROVISIONS

The Senate adopted an amendment offered by Senator Jim DeMint (R-SC) to provide that the DHS must complete 700 miles of actual fencing along the U.S.- Mexican border by the end of fiscal year 2010. Despite being funded for several years, the DHS has only managed to erect a fraction of this amount.

The bill also includes an amendment by Senator David Vitter (R-LA) which is aimed at preventing the DHS from rescinding the "No-Match" rule. Secretary Napolitano had announced her intention to do so earlier this week. This rule would require employers to fire workers who are unable to resolve discrepancies in their Social Security Records.

The bill also includes an amendment by Senator Jeff Sessions (R-AL) which would effectively make the "E-Verify" program permanent for federal contractors. Not only would "E-Verify" be used to check the immigration status of new hirees, it would also apply to existing employees who are assigned to work under a federal contract. Before the Sessions' amendment passed, 10 Democrats joined most of the Republican Senators in voting for a procedural motion. The House bill would extend the "E-Verify" program, but only for a period two years.

However, both the mandatory "E-Verify" program for federal contractors and the implementation of the "No-Match" rule have both been enjoined by a Federal Court order since 2007. Therefore, it is not clear that either provision of the Senate bill would become effective even if they remain in the final bill after a House-Senate Conference Committee meeting, and are signed into law.

The Senate bill also contains an amendment by Senator Charles Grassley (R-IO) which allows employers, for the first time, to use the "E-Verify" program to screen existing employees as well as new hires.

DHS spokesman Matt Chandler criticized these amendments. He stated that they "are designed to prevent real progress on immigration enforcement and are a reflection of the old administration's strategy: all show, no substance."

BENEFITS PROVISIONS

The Senate also adopted two amendments offered by Senator Orin Hatch (R-UT). The first would eliminate the "widow's penalty". This would allow foreign-born widows and orphans to remain eligible for permanent residence even when the U.S. citizen spouse/parent dies before they achieve such status. The second would extend the "Conrad 30" J waiver program for physicians and the religious worker program for non-ministers until September 30, 2012. Currently, both programs are due to expire on September 30, 2009.

Finally, the Senate bill includes an amendment by Senator Patrick Leahy (D-VT) which would make the EB-5 Regional Center Investor program permanent. Currently, the program is due to expire on September 30, 2009.

COMMENTARY

What should we make of the Senate's sudden interest in adding far-reaching immigration amendments to an appropriations bill?

Joanne Lin, ACLU Legislative Counsel, states, with regard to the "No-Match" rule that "while the Senate might think it has taken a step to fix illegal immigration, it has actually set into motion a rule that will jeopardize the jobs of tens of thousands of U.S. citizens who could be unjustly fired under the rule due to SSA database errors."

Mary Giovagnoli of the Immigration Policy Center is not impressed by many of the Senate's actions. She states that "enforcement-only amendments win on the Senate floor — bad policy, but great political theater. Unfortunately, political theater is often hard for politicians to resist when they are dealing with complex issues that defy simple solutions."

We link to her analysis of the enforcement provisions of the Senate bill and to the ACLU's press release from our "Media" page at

http://shusterman.com/media.html#1
Since Senator Charles Schumer (D-NY) has promised to introduce a comprehensive immigration reform bill by Labor Day, we hope that the most controversial immigration amendments to the DHS appropriations bill will be stricken by the House-Senate Conference Committee. Perhaps it would be better if major changes in our immigration laws were made after legislative hearings and an opportunity for Members of Congress to examine the arguments for and against each measure.

I-9 Audits: 7 Tips for Employers

Now that the Obama Administration has decided to zero in on employers with massive numbers of I-9 audits (652 in one day!), let me provide you with a few tips which I've gleaned from assisting employers survive such audits over the past 20 years:

Tip #1 - Make sure that each new hire completes Section 1 of the form on the first day of employment. If the employee's information is incomplete, it is you who pays the fine, so proofread this section very carefully.

Tip #2 - Complete Section 2 of the form by the employee's third day of employment. Show the employee the back of the form, and have him/her show you either one List A document (ID and Employment Authorization) or one List B document (ID) and one List C (Employment Authorization) document. Do not request specific documents or additional documents.

Tip #3 - Keep your I-9 forms separate from employee personnel files. Otherwise, you will have a lot of sorting to do if you receive a Notice of Inspection. The forms must be retained for three years after the employee is hired or one year after his employment ceases, whichever is later. Keep the forms of active employees separate from those of former employees. Purge the latter on a regular basis.

Tip #4 - Create a tickler system for employees who check the box in Section 1 which indicates that they possess only temporary employment authorization. Send them notices well in advance of the termination of their work permits advising them of the need to update their I-9 forms. Remember that certain types of work status are extended simply by submitting an application for an extension to the USCIS. Never update the forms of U.S. citzens or permanent residents, even though "green cards" all have expiration dates.

Tip #5 - Protect yourself from violating the "antidiscrimination" provisions of the law by treating employees who may look or sound "foreign" to you the same as employees who are U.S. citizens.

Tip #6 - Carefully read USCIS' "Handbook for Employers" which we link to from our "Employers' Immigration Guide" at

http://shusterman.com/toc-emp.html#9
Tip #7 - Have an attorney who has expertise in I-9 laws and procedures to review all of your I-9 forms at least once each year. The amount that you spend will be a tiny fraction of what you might be fined by the government if you are audited.

I-9 Audits: Catch-22 for Employers

The U.S. Immigration and Customs Enforcement (ICE) announced today that it served Notices of Inspection upon 652 businesses around the country. Compare this with the 508 businesses which received Notices of Inspection in fiscal year 2008.

An ICE spokesman told the press: "Part of the strategy is to show businesses that we mean business."

The new Obama policy substituting audits for raids, and civil penalties on employers rather than criminal penalties on workers is a step in the right direction. It may even set the stage for comprehensive immigration reform by showing that the administration is serious about immigration enforcement.

We link to the ICE press release and the news story from our "Employers' Immigration Guide" at

http://shusterman.com/toc-emp.html#9
Notices of Inspection are served on employers to compel them to surrender their I-9 forms to the government. The I-9 form verifies the identity and the employment authorization of each employee hired by the company.

However, employers do not have the authority to question the legitimacy of the documents that are presented to them unless the documents are obviously false. An employer who attempts to do more risks great sums of money for violating the document abuse and/or anti-discrimination laws. Ask Jose Sanchez for more or different documents than Joe Smith, and you are asking for trouble, big trouble. See our article "INS vs. INC." at

http://shusterman.com/sanction.html
The truth is that most "undocumented" workers are ready, willing and able to produce the required documents when an employer presents them with an I-9 form.

So, in the next few weeks, when ICE inspects the I-9 forms of many thousands of employees who work for these 652 companies, the agency will learn (No big surprise.) that thousands of these documents are either false or belong to others.

The workers will lose their jobs, but if history is any guide, they will simply pick up and start looking for new jobs.

The employers can not be fined unless their I-9s were done improperly or not at all. In most cases, they will receive fines for being sloppy, not for being "unscrupulous". Of course, if an employer has actual knowledge that an employee is illegally present in the U.S., he could face criminal penalties, but rarely does ICE have enough evidence to press criminal charges.

Earlier today, I was interviewed regarding this subject by a newspaper reporter. As a former INS prosecutor, I have represented quite a few companies facing I-9 audits.

I spoke with one of my former clients today. His company underwent an I-9 audit when they applied for labor certification for three undocumented workers. I remember meeting with the INS investigator and handing him a pile of I-9 forms. The INS could have subjected the employer to many thousands of dollars in fines. Instead, we agreed to enroll the employer in what is now called the "E-Verify" program, and the government agreed to waive all fines.

However, the employer lost many of his most valuable employees, and it took years for the business to recover. How about the employees? They ended up working for his competitors.

Who came out ahead in the end? No one as far as I'm concerned.

Our broken immigration system will not be fixed by penalizing employers who are trying to abide by the law, and forcing many of their workers to find new jobs. If there was ever a time to amend our laws to conform with the laws of the free market, it is now.

Premium Processing of I-140s - What It Means to You

The USCIS has announced that most employment-based (EB) immigrant petitions (I-140s) will be eligible for premium processing starting June 29, 2009. We link to the USCIS Update from our "Premium Processing" page at

http://shusterman.com/toc-premium.html#2
Premium processing will be available for EB-1 Persons of Extraordinary Ability and Outstanding Professors and Researchers; EB-2 petitions which are not for National Interest Waivers; and EB-3 petitions for Professionals, Skilled and Unskilled Workers.

The only EB I-140s which are specifically excluded from the program are (1) visa petitions for Multinational Executives and Managers under the EB-1 category and (2) National Interest Waivers under the EB-2 category.

Premium processing is a program developed by the INS in 2001 which permits persons to request speedier processing of certain types of petitions and applications for immigration benefits in exchange for paying the agency an additional $1,000 in filing fees. If the agency fails to issue either an approval, a request for evidence (RFE), a notice of intent to deny or to open an investigation for fraud or misrepresentation within 15 calendar days of receiving the application, premium processing will continue although the USCIS will refund the $1,000 fee.

Given that many of the EB categories are either unavailable or significantly backlogged, why should employers or employees pay for premium processing?

We can think of four reasons for doing so.

(1) If an I-485 adjustment of status application has been pending for 180 days, the law permits an employee to change employers as long as the new job is in the same or a similar occupation. However, it is very unwise to change employers before the USCIS has approved the I-140 visa petition. If the employee changes employers before the I-140 is approved and the agency issues a request for evidence, what incentive does the former employer have to answer the RFE? If there is no response to the RFE, it is likely that the I-140 will be denied, and so will the I-485.

(2) Even if an I-485 has not been filed, the approval of an I-140 locks-in the priority date as of the date that the application for labor certification or PERM is received by the USCIS or the date that the I-140 is received if no labor certification or PERM is required.

If an employee with a temporary work visa changes employers, it is wise to wait until the I-140 is approved since this locks-in the priority date. Of course, the original priority date can only be utilized if the employee obtains the approval of a new I-140 (and a labor certification or PERM, if required) from the new employer.

In both of the above examples, premium processing of the I-140 is not beneficial to the initial employer. It is, however, advantageous to both the employee and to his subsequent employer.

(3) Whether or not an I-485 has been filed, the law provides that if a person in H-1B status is the beneficiary of an I-140 petition in either the EB-1, EB-2 or the EB-3 categories, and is eligible for permanent residence but for the per-country limitations, he or she may be granted H-1B extensions beyond the sixth year in three-year increments.

This is a benefit for many employers and employees alike since the mere filing of an application for labor certification, PERM or an I-140 more than one year ago only entitles the worker to apply for H-1B extensions in one-year increments.

(4) Where an I-485 is pending, USCIS regulations provide that the applicant may be eligible to extend his or her Employment Authorization Document (EAD) for two years, but only if an I-140 has been approved for the applicant.

In short, the reinstatement of premium processing for most I-140s is a distinct benefit for employees and employers alike.

Immigration Courts Severely Backlogged

A new study by the Transactional Records Access Center (TRAC) finds that the nation's Immigration Courts are becoming increasingly backlogged.

Our country's 234 immigration judges received over 350,000 new cases last year, almost 1,500 cases per judge. Coupled with the government's onerous "case complete goals", this brings incredible pressure on overworked immigration judges to issue decisions.

As a result of the increasing backlog of cases, persons in detention may have to wait many months to challenge the legality of the charges against them or to have their asylum and other claims heard before a judge.

The Bush Administration had promised in 2006 to add 40 new judges to the system, a fairly minimal amount. However, only four additional judges have been added during the past two and one-half years.

As a direct result of the "judge shortage", the backlog has increased approximately 20 percent during the past three years.

We link to the new report from our "Immigration Courts" page at

http://shusterman.com/imcourts.html#1

"How can a system function properly when it is starved for the critical basic resources it needs", states Immigration Judge Dana Marks of San Francisco, President of the National Association of Immigration Judges.

According to the TRAC report, a typical immigration judge must conduct 69 hearings each week.

Judges are forced to hear testimony with little time to consider exhibits and legal briefs, and then to immediately issue oral decisions.

Legal research is increasingly delegated to law clerks who are themselves in short supply. As opposed the Federal District Court judges who each have their own law clerk, four immigration judges must share a single law clerk.

If the government insists on continuing its misguided "enforcement-only" approach to immigration, it is time to put its money where its mouth is.

Or maybe it's time to consider other approaches to our broken immigration system.

BIA Decision Would Separate Families

Today, the Board of Immigration Appeals (BIA) issued a decision which eliminates one of the principal benefits of the Child Status Protection Act of 2002 (CSPA). We believe that this decision is fundamentally flawed and should be overturned.

In Matter of Wang, 25 I&N Dec. 28 (BIA 2009), the Board essentially voids the "automatic conversion" clause of CSPA. That clause deals with persons who age out despite the protections of CSPA. It states that they are entitled to the "original priority date" and should be placed in the "appropriate category".

Despite a plethora of agency memos interpreting CSPA, the government has remained strangely silent about the "automatic conversion" clause. However, an unpublished Board decision, Matter of Garcia (2006) interpreted the clause to mean that when a derivative beneficiary of a petition ages out, they are able to keep the priority date of the original petition filed on behalf of their parents, and that once their parents become permanent residents, the original petition is "automatically converted" to the family-based 2B category since they are unmarried adult sons and daughters of permanent residents. In many cases, this allows them to immediately immigrate to the United States.

In Matter of Wang, a U.S. citizen submitted an immigrant visa petition for her brother and his wife and daughter in China in 1992. However, by the time that the parents became permanent residents in 2005, the daughter had "aged-out" because she was 22 years old and no longer qualified as a child. In 2006, her father submitted a 2B visa petition on her behalf. Since the 2B category is backlogged 8 years, the daughter would be forced to remain separated from her parents until 2014, a total wait of 22 years since the original 1992 priority date. If she marries before she immigrates, she will lose her priority date altogether.

However, under the "automatic conversion" clause of CSPA as interpreted by the Board in Matter of Garcia, she would be able to retain the original 1992 priority date under the 2B category, meaning that she could reunite with her parents immediately.

Today, the Board gave short shrift to the reasoning in Matter of Garcia. The Board found that the statute was "ambiguous" and looked to the legislative history of CSPA.

However, there is no legislative history of the "automatic conversion" clause and the Board construed the law in a way which we believe directly contradicts the clear language of the statute.

While the original CSPA bill was introduced in the House of Representatives in 2001, the "automatic conversion" clause was added the next year in the Senate. The Board recognizes this, yet all of the language as to the purpose of the bill which is referenced in the Board's decision is taken from the 2001 House Report and from individual members of the House of Representatives. Since the original House bill was much less expansive than the final bill, these selective references to the legislative history are highly misleading.

When the Board's decision talks about the injustice of allowing Ms. Wang to "'jump' to the front of the line by retaining a 1992 priority date", we are puzzled. She waited in line from the age of 10 to her 21st birthday only to be separated from her parents for another 8 years. Wasn't this the reason that CSPA was enacted?

The Board also references various USCIS "automatic conversion" regulations and concludes that when Congress approved CSPA, they were aware that such conversions only operate as long as the petitioner remains the same. This is completely false.

Why did the Board ignore the USCIS’ automatic conversation regulation which allows persons to convert from one employment-based preference category to another, and from one petitioner to another, all the while retaining the original priority date?

Consider 8 C.F.R. 204.5(e) which, in pertinent part, states:

“Retention of section 203(b)(1) , (2) , or (3) priority date. -- A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date.”

This regulation permits an employer to petition a person in the EB-3 category. Once the I-140 is approved, if the person changes employment, another employer may sponsor the person in the EB-2 category. Once the second I-140 is approved, the person may immigrate/adjust under the EB-2 category while retaining the “original” EB-3 priority date.

Of course, Matter of Wang, unlike Matter of Patel, the CSPA automatic conversion case which the Board has yet to decide, involved only family-based petitions. Yet, surely Congress was aware of an immigration law which allows for the automatic conversion between family-based and employment-based petitions, between different petitioners and which allows beneficiaries to retain their original priority dates.

Consider the savings clause in the 1976 immigration law which allows persons to retain Western Hemisphere Priority Dates (WHPDs) even though the original petition may have been employment-based while the latter petition is family-based. Someone with an employment-based WHPD of 1971 may be the beneficiary of a Mexican family-based third-preference petition (submitted by a U.S. citizen father for a married daughter) submitted on June 1, 2009. Instead of waiting the usual 18 years for the priority date to become current, the daughter and her family are permitted to use the 1971 original priority date to immigrate immediately.

It is clear that USCIS regulations permit persons to change jobs, preference categories and petitioners, and use the original priority date to become permanent residents. Also, Congress has long permitted persons to change between the employment and family-based categories, use the original priority date, and immediately immigrate to the U.S. Thus, the “automatic conversion” clause in CSPA is neither unique nor novel.

In Matter of Wang, the Board adopts the USCIS' tenuous argument that the "automatic conversion" clause was added to CSPA simply to codify 8 C.F.R. 204.2(a)(4), a decades-old regulation which allows a child whose parent was petitioned by their spouse under the 2A preference category to retain the original priority date when the child turns 21 and the LPR parent submits a new visa petition under the 2B category. Does the legislative history of CSPA support this interpretation? Matter of Wang is silent on this issue.

The reason why Matter of Wang should be overturned is that it contradicts the clear language of CSPA. The "automatic conversion" clause states that it applies to aliens who are "21 years of age or older for purposes of subsections (a)(2)(A) and (d)" of 8 U.S.C. 1153. Subsection (d) refers to spouses and children who are accompanying or following to join spouses or parents under the family-based, employment-based or diversity lottery categories. Any interpretation which attempts to restrict the applicability of the "automatic conversion" clause to a narrow subset of the family-based preference categories, and ignores the other family-based categories, the employment-based categories and the diversity category is clearly at odds with the statute.

Currently, there are at least five lawsuits in Federal Court challenging the government's restrictive interpretation of the "automatic conversion" clause of CSPA. How they will be affected by Matter of Wang remains to be seen.

How much deference should the Federal Courts accord to the Board’s interpretation of CSPA’s “automatic conversion” clause in Matter of Wang?

This would not be the first time that the Federal Courts overturned an overly-restrictive interpretation of CSPA put forward by the government. The Board and the USCIS eventually acceded to the interpretation of another disputed section of CSPA following the holding of Padash v. INS (9th Cir. 2004), 358 F.3d 1161:

“Because the legislative history makes it clear that the Act was intended to address the often harsh and arbitrary effects of the age-out provisions under the previously existing statute, our interpretation of the term “final determination” also adheres to the general canon of construction that a rule intended to extend benefits should be “interpreted and applied in an ameliorative fashion.” Hernandez, 345 F.3d at 840. This rule of construction applies with additional force in the immigration context “where doubts are to be resolved in favor of the alien.”

To read the complete text of Matter of Wang as well as a host of other materials relating to CSPA and the continuing litigation, see
http://shusterman.com/cspa.html

Immigration Officers in Need of a CAT

What is a CAT? Not an animal, not a medical procedure, but a "Change of Attitude Transformation".

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

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

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

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

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

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

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

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

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

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

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

The Importance of Maintaining Your H-1B Status

“You don’t need to extend your H-1B status, you’ve got an EAD!”

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

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

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

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

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

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

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

Problem solved?

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

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

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

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

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

http://shusterman.com/toc-h1b.html

Way Cleared for Lawsuit to Keep Families Together

Back in 2002, the President signed a law designed to keep immigrant families intact, the Child Status Protection Act (CSPA). The law includes a provision that states that if a child turns 21 years of age before obtaining a green card together with his parents, his petition would "automatically be converted to the appropriate category" and he would be entitled to the "original priority date".

What does this mean?

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

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

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

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

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

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

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

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

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

shusterman.com/cspa.html

Physicians To Benefit From H-1B Slowdown

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

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

So, how does this help foreign-born physicians?

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

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

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

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

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

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

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

http://shusterman.com/toc-phys.html