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Free Subscription to SHUSTERMAN'S IMMIGRATION UPDATE
Back Issues of SHUSTERMAN'S IMMIGRATION UPDATE
Volume Thirteen, Number Eleven
Special Message: With increased privacy and security concerns around the inbox, mostly due to viruses and spam, delivering our monthly newsletter to your e-mail address presents many challenges. Sometimes you don't receive our newsletter. However, if you add our e-mail address to your address book or safe list, this should insure that our newsletter will not end up in your junk mail.
SHUSTERMAN'S IMMIGRATION UPDATE is the Web's most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 56,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 30 years of experience practicing immigration law.
Published by the Law Offices of Carl Shusterman, 600 Wilshire Boulevard, Suite 1550, Los Angeles, California, 90017. Phone: (213) 623-4592 x0
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Disclaimer: This newsletter is not intended to establish an attorney-client relationship. All information contained in this newsletter is generalized. Any reliance on information contained herein is taken at your own risk.
All this is explained in the "Federal Acquisition Regulation (FAR)" which was published on November 14. We link to the FAR and other information about E-Verify from our "Employer Information Guide" at
ESTA requires travelers to input basic biographical and passport information as well as eligibility to travel to the U.S. on VWP. A traveler must reveal any arrests or convictions, previous visa denials or communicable diseases. ESTA approval is valid for up to two years, or when a person's passport expires, whichever occurs first. ESTA approval does not guarantee that a person will be admitted to the U.S. under the VWP.
Persons planning to visit the U.S. under the VWP may wish to register for ESTA now while it is not mandatory in order to avoid the backlogs that will probably develop starting January 12, 2009 when ESTA approval become mandatory.
For more information about ESTA, or to register for ESTA online, see our "Temporary Visas" page at
Have you ever thought about immigrating to Canada? To qualify as an immigrant investor to Canada, you must have at least 2 years of business experience, a net worth of C$800,000, and must make an investment of C$400,000 to the Canadian government for 5 years.
Hong Kong Shanghai Bank Corporation ("HSBC") provides 3 financing options to assist qualified applicants in making the C$400,000 investment:
Immigrating to UK via Investment
Or perhaps you may be interested in immigrating to the UK? To qualify as an immigrant investor to the UK, you must deposit £1,000,000 into your HSBC (UK) account or make an out-of-pocket one-time non-refundable payment of £170,000 and have a net worth of £2,000,000.
If you are interested in either of these programs, kindly schedule a consultation with me at
With all eyes focused on our rapidly sinking economy, no one should expect President Obama to outline his immigration agenda before he takes office on January 20th. However, I was fortunate enough to meet then-Senator Obama last February. See
In a previous issue of our newsletter, we linked to candidate Obama's answers to 36 questions regarding his positions on important immigration issues. See
"I participated in the immigrant marches, have attended naturalization workshops, introduced legislation to make the naturalization process more affordable and accessible, and worked with a bipartisan group of Senators to support comprehensive reform in the Senate."
We believe that the fact that Hispanics and Asian-Americans voted two-to-one to elect Senator Obama, and supported many other pro-immigration legislators, the new administration and Congress will take steps to acknowledge this support including passage of the DREAM Act and other long-stalled legislation.
President-Elect Obama was not specifically asked his positions on easing immigration restrictions on high-skilled workers. However, just after the election, Computerworld magazine had this to say about Obama's likely policies concerning H-1B visas:
"President-Elect Barack Obama has supported the H-1B visa program and wants to make changes to green cards that would help tech firms. There wasn't much said about this issue during the presidential campaign, especially after Wall Street collapsed. It also never came up in the debates between Obama and Republican John McCain. Now we're in a recession and unemployment is rising. Can Obama push ahead on tech-related immigration issues at this time? He might, and in this FAQ, here's an explanation of how that might happen."
Google's CEO Eric Schimdt, an economic adviser to Obama would clearly like to see the H-1B program expanded according to Computerworld:
"Schmidt laid out a wish list for legislation in the next Congress, with patent reform and loosened standards for allowing foreign graduate students to stay and work in the U.S. at the top of the list. Schmidt's call for allowing more foreign workers to come to the U.S. may conflict with Obama's; the president elect has been cool to the idea of expanding immigration programs such as the H-1B skilled worker program.
The U.S. should want the best and brightest workers to remain here, Schmidt said. Making foreign students go home after educating them is 'bizarre, it's disgusting,' Schmidt said."
Significantly, President-Elect Obama's choice of Arizona Governor Janet Napolitano as the new DHS Secretary may be good news for foreign-born professional workers. Governor Napolitano is clearly in favor of expanding the H-1B program. She signed on to a bipartisan letter to President Bush supporting the expansion of the H-1B program. As Arizona's Governor, she expressed reservations about the building of a fence along the U.S.-Mexican border. She famously stated that deporting 11 million workers was a "joke" and was not "reality-based". However, Napolitano's immigration views are more nuanced than can be explained in a single paragraph. See an excellent analysis of her views at
In general, we remain hopeful that President Obama will make immigration reform a priority. His two top immigration advisors in his transition team are Professors Tino Cuellar (Stanford Law School) and Alex Aleinikoff, Dean of the Georgetown University Law Center. We link to the biographies of both of these distinguished scholars from
Professor Cuellar is 36 years old and was raised in Calexico, California, which is on the border between the U.S. and Mexico. "He's brilliant beyond his years," said John Trasviña, president of the Mexican American Legal Defense and Educational Fund, who met Cuéllar when he was a law student at Yale and encouraged him to go to work in Washington.
The fact that President-Elect Obama has selected advisors like Professors Cuellar and Aleinikoff, CEO Schmidt and has nominated Governor Napolitano to be the new DHS Secretary indicates that we can expect significant changes in immigration policy to take place in the new administration.
Of course, immigration reform must be initiated by Congress, and Senate Majority Leader Harry Reid (D-NV) is optimistic that Congress will take up immigration reform in 2009. See
The following is a summary version of the new regulations:
A) Petitioning Requirements
A petition (I-129 for R-1s and I-360 for immigrants) is required in all cases. All petitioning employers are required to complete an "attestation" contained within the petition verifying the worker's qualifications, the nature of the job offered, and the legitimacy of the organization.
B) Onsite Inspections
USCIS may conduct onsite inspections of organizations seeking to employ religious workers. Inspections are intended to increase detection of fraudulent petitions. If the inspection yields derogatory information not known by the petitioner, the USCIS will issue a Notice of Intent to Deny (NOID), and the petitioner will be given an opportunity to rebut the NOID. If the petition is ultimately denied, the petitioner will be given the opportunity to appeal to the Administrative Appeals Office (AAO).
C) Evidentiary Requirements for Petitioning Organizations
All petitioners must submit a currently valid determination letter from the IRS establishing their tax-exempt status. Petitioners that are not classified as "religious organizations" by the IRS must establish the religious nature and purpose of their organization. They must also certify that they are affiliated with a religious denomination that is tax-exempt by completing the Religious Denomination Certification which is contained in the revised petitions.
D) Nonimmigrant Religious Worker Classification
The initial period of stay for an R-1 religious worker is reduced from 36 to 30 months. One extension of 30 months may be granted.
E) Special Immigrant Religious Worker Classification
The regulation expands the interpretation of qualifying prior work experience to include work that is not in the exact same position as the job offered. It also allows for a short break in the continuity of the required two-year religious work experience if the beneficiary was engaged in further religious training or was on a sabbatical.
F) New Definitions & Proposed Changes to Existing Definitions
The regulation redefines the terms: (1) Religious Vocation; (2) Religious Occupation; and (3) Minister; and defines (4) Denominational Membership and (5) Religious Denomination.
G) Compensation Requirements
Compensation can include either salaried or non-salaried compensation, and must be demonstrated by verifiable evidence. The only exception to the compensation requirement is for certain R-1 workers who are participating in an established program for temporary, uncompensated missionary work within the petitioning organization, which is part of a broader, international program of missionary work sponsored by the denomination.
H) Revocation Procedures and Appeal Rights
The regulation establishes procedures for the revocation of the approval of R-1 petitions. As with immigrant petitions, the revocation may be automatic or may require notice depending on the grounds for revocation. Only a petition that is revoked on notice may be appealed.
I) Extension of Non-Minister Categories Affected by the Sunset
On October 10, President Bush signed into law a bill which extends the special immigrant non-minister religious worker program until May 6, 2009. However, this law only took effect when the USCIS regulation was published in the Federal Register on November 26.
J) Pending Non-Minister Cases Affected by the Sunset
Non-Minister special immigrant and nonimmigrant religious worker cases that have been held in abeyance will be adjudicated in accordance with the final rule. Requests for Evidence will be issued for any evidence required as per the new regulations if such evidence was not initially submitted and was not contained in the record.
We link to the new regulation, the USCIS Fact Sheet and to USCIS' Questions and Answers regarding the new regulation from our "Religious Workers" page at
University of California, Los Angeles (UCLA)
Topic: Cancellation of Removal and Asylum
Kennedy Webinar Event
Kennedy Information,
Interactive Seminars for Professionals
Topic: Immigration and Employment Law of Foreign-born Professionals
American Immigration Lawyers Association (AILA) Webinar
Keeping Families Together - Update on CSPA
Las Vegas, NV
American Immigration Lawyers
Association (AILA)
2009 AILA Annual Conference on Immigration Law
Topic: Law Practice Management
For more information see
Hospital Association of Southern California
Immigration Webinar
Nonimmigrant visa issuance fees are based on "reciprocity." Reciprocity is a policy between countries by which corresponding advantages or privileges are granted by each country to the citizens of the other.
As a result of reciprocity, visa issuance fees are based on what another country charges a U.S. citizen for a similar type of visa. The United States strives to eliminate visa issuance fees whenever possible; however, when a foreign government imposes such fees on U.S. citizens for certain types of visas, the United States will impose a "reciprocal" fee on nationals of that country for similar types of visas.
We wrote about the "Visa Reciprocity and Country Documents Finder" in the May 2000 issue of our newsletter at
There are other important factors that reciprocity also affects, including how many entries one can make pursuant to a particular visa stamp and how long the stamp will remain valid.
We link to the reciprocity schedule from our "Department of State" page at
| Visa Classification |
Fee | Number of Applications |
Validity Period |
| H-1B | None | Multiple | 60 Months [3] |
The "None" in the Fee column indicates that based on reciprocity there is no visa issuance fee for Indian citizens applying for H-1B visa stamps.
The "multiple" in the Number of Applications column indicates that the applicant may make multiple entries to the United States pursuant to the H-1B visa stamp.
The "60 months" in the Validity Period column indicates that the maximum amount of time that the visa can be issued for is 5 years. However, please note that the [3] refers to footnote #3 which reads,
"The validity of H-1 through H-3, L-1, O-1 and O-2, P-1 through P-3, and Q visas may not exceed the period of validity of the approved petition or the number of months shown, whichever is less. Derivative H-4, L-2, O-3, and P-4 visas, issued to accompanying or following-to-join spouses and children, may not exceed the validity of the visa issued to the principal alien."
So, by referring to the reciprocity schedule, one can determine that an Indian citizen applying for an H-1B visa stamp is subject only to the visa application fee of $131 and is eligible for an H-1B visa valid for multiple entries to the United States for the duration of his or her H-1B status provided it is no longer than 60 months.
Note that, currently, there are no visa issuance fees for any U.S. visas for citizens of India.
Compare this to the reciprocity schedule for citizens of China.
| Visa Classification |
Fee | Number of Applications |
Validity Period |
| H-1B | None | Two | 3 Months [3] |
You can see that a Chinese citizen is subject to only the visa application fee of $131, but will be issued an H-1B stamp valid only for 2 (two) entries to the United States and will be valid for no more than 3 months (or for the length of his H-1B approval, whichever is less).
All nonimmigrant visa applications now require an appointment at a U.S. Embassy or Consulate abroad. We suggest that you schedule a consultation with an experienced immigration attorney before scheduling a visa application appointment. This will permit you to explore all of your options under U.S. immigration laws, including a discussion of the reciprocity schedule and how it may affect your case.
To schedule a consultation with one of our attorneys, see
Chris was born in Canada over 40 years ago to a single mother who gave him up for adoption.
Chris' mother, a Canadian who had been studying in the U.S., had a relationship with his US Citizen biological father and became pregnant. She returned to Canada after the relationship ended and gave birth to Chris.
Chris wanted to know if he could acquire U.S. citizenship despite the fact that his mother and biological father were never married and he did not even know the identity of his father. Fortunately, Canadian law permitted Chris to unseal his adoption records so he could learn his father's identity.
Chris' first attorney submitted an application for an American Passport for Chris at a U.S. Consulate in Canada. The application was denied.
The authorities acknowledged that Chris's biological father was a U.S. citizen. However, they stated that under the Canadian law, Chris was never "legitimated" because he was born out of wedlock.
In desperation, Chris contacted our office.
We reviewed the documents submitted by Chris' former attorney and learned that he had failed to provide a legal theory as to how Chris was legitimated.
Proving the father-child relationship for transmitting U.S. citizenship is much more complex in out-of-wedlock cases than when the child's parents were married when he was born.
We are well-aware that immigration laws relating to transmitting citizenship to children born abroad to U.S. parents have undergone many changes over the years. These changes affect a person's eligibility for U.S. citizenship depending upon (1) his date of birth; (2) when his citizen parent(s) resided in the U.S.; and (3) when a new law becomes effective, and whether it is retroactive. Further complications arise if the parents never married.
Our "Citizenship Page" provides information for proving citizenship for persons born abroad if one, or both, of their parents are U.S. citizens. See "Obtaining Citizenship Through Parents/Grandparents" at
For a child born between 1952 and 1968, former section 309 of the Immigration and Nationality Act ("Act") was applicable. This provision was amended and liberalized in 1986. However, since Chris was born abroad before November 11, 1968, former section 309 applies to him.
Under the former section 309, paternity must be established before the child reaches 21 years of age. Further, legitimation may be determined under the law of either the father's or the child's residence/domicile.
Another requirement is that the father must be physically present in the U.S. for 10 years prior to his child's birth, five years of which much occur after the parent reaches the age of 14.
We researched the law in Washington D.C. where Chris' father resided when Chris was born. D.C. law establishes that "a child born out of wedlock is the legitimate child of its father and mother and is the legitimate relative of its father's and mother's relatives by blood or adoption..." Thus, D.C. law treated children born in or out-of-wedlock exactly the same. Therefore, Chris was considered "legitimate" at the time of his birth.
We were off to a good start!
Next, we collected evidence that Chris' father had indicated to authorities that Chris was his child. We also collected documents to prove that Chris's father physically resided in the U.S. for more than 10 years prior to Chris' birth, including five years after the father's 14th birthday. In total, we collected 20 different documents to supplement Chris' Passport Application.
We assembled these documents as exhibits and explained in our cover letter that Chris was legitimate and that he had "acquired" U.S. citizenship through his biological father. We submitted the new, and improved, application to the U.S. Consulate in Canada.
It did not take long for the Consulate to reverse their previous decision and grant Chris a U.S. passport!
To read more of our Immigration Success Stories, see
So far, our IQ Tests have measured your skills in the following areas:
For links to each of our Immigration IQ Tests, see
Think that you understand how Family-Based Immigration works?
Test your Immigration IQ on our Family-Based Quiz at
The Immigration Service (USCIS) lists its processing times for immigration petitions and applications on their web site. Most immigration applications and petitions must be submitted to one of the following USCIS Service Centers: (1) Laguna Niguel, California; (2) Lincoln, Nebraska; (3) Mesquite, Texas; and (4) St. Albans, Vermont and (5) the National Benefits Center in Missouri.
These service centers periodically issue lists of their processing times for various types of petitions and applications. We link to the latest list issued by each service center.
Warning: Processing times may appear faster on the official lists than they are in reality.
To see how fast (or slow) your service center is processing a particular type of petition or application, see our Government Processing Times Page at
The State Department web site contains a "Visa Wait List" page which permits readers to choose a particular U.S. consular post and learn how long it takes the post to process temporary, nonimmigrant visas. See
Links to the transcripts of all of our chats are posted online on our "Chat" page at
Hi Mr. Shusterman,Rosemarie, Great job on the quiz! Carl Shusterman Congratulations on winning our quiz!
- Kabob loghmeh - Iran
- Chiles Rellenos - Mexico
- Pancit Bihon Guisado - Philippines
- Aloo Sabzi - India
- Panettone - Italy
- Papa a la Huancaina - Peru
- Nasi Goreng - Indonesia
- Berbere - Ethiopia
- Har Gau - China
- Pad See Ew - Thailand
I am a citizen living in Los Angeles, a counselor, but I would like to win a consultation for my good friend Luis Avila from El Salvador, who is fighting his deportation case in pro per in the 9th Circuit. He is a very good and hard- working man and was recently helped to win a temporary stay of deportation. Meanwhile, he is struggling to pay child support and legal fees on a salary from Jiffy Lube. I hope that I win and you can help him.
The quiz was easy - I answered all 10 questions and then checked on Google. I was right off the bat on 8 out of 10 of them and I only had to change 2 answers. I have been receiving your newsletter for several years, at least the last 6-8 years, and I really appreciate all the information and education I get from it. Thanks so much for all your hard work.
Sincerely,
Rosemarie
Carl Shusterman
Certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Trial Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, California 90017
"The GOP won't be a majority party if it cedes the young or
Hispanics to Democrats. Republicans must find a way to
support secure borders, a guest-worker program and
comprehensive immigration reform that strengthens
citizenship, grows our economy and keeps America a welcoming
nation. An anti-Hispanic attitude is suicidal."
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December 1, 2008