2    Refer to this, hope you figure it out...
You can subscribe to this service and get all immigration updates, including the October green card lottery information. Do not trust numerous web pages on internet most of them specialize na razvedenii loxov! Also you can look up the web page of United States department of State (http://www.state.gov) which publishes green card lottery information, when it becomes available. UDACHI VAM


Volume Six, Number Seven

Published by the Law Offices of Carl Shusterman, One Wilshire Building,
624 So. Grand Avenue, Suite 1608, Los Angeles, California, 90017.
Phone: (213) 623-4592

To subscribe to SHUSTERMAN'S IMMIGRATION UPDATE, go to
http://shusterman.com/subscribe.html#subscribe and type your name and
e-mail address and click on "Subscribe". Alternately, you may send an
e-mail message to [email protected] with the words "subscribe
visalaw" in the body of the message.

To unsubscribe, type in your e-mail address at
http://shusterman.com/subscribe.html#unsubscribe and click on
"Unsubscribe". Alternately, you may send an e-mail message to
[email protected] with words "unsubscribe visalaw" in the
body
of the message.

For back issues of SHUSTERMAN'S IMMIGRATION UPDATE, see
http://shusterman.com/toc-siu.html

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.

***************************************************************
CONTENTS:

1. August 2001 State Department Visa Bulletin
2. Latest Governmental Processing Times
3. Legislation: Our House Is A Very, Very Nice House
4. Nurses: INS Issues Interim, Final H-1C Regulations
5. Immigration Trivia Quiz: Conrad 20 Programs Online
6. Citizenship: Supreme Court Upholds Gender-Based Distinction
7. Supreme Court Roles Back 1996 Anti-Immigrant Laws
8. Web Site: State Department's Visa Bulletin Archive
9. Chat Schedule, Transcripts, Audios & Videos
10. Answers To June's Immigration Trivia Quiz
**********************************************************
NEWS FLASHES:

* 2001 Bar Register Of Preeminent Attorneys

We are very pleased and proud to announce that The Law Offices of Carl
Shusterman have been recognized for High Professional Legal Standards
and
Ethics. We have been selected to appear in the 2001 Bar Register Of
Preeminent Attorneys, a rare feat for a relatively small firm
specializing
in immigration law. See

http://shusterman.com/pdf/mh.pdf (PDF File)


* AC-21: INS Provides Guidance In Interpreting H-1B Laws

On June 19, the INS issued a memorandum entitled "Initial Guidance for
Processing H-1B Petitions as Affected by the "American Competitiveness
in
the 21st Century Act" (Public Law 106-313) and Related Legislation
(Public
Law 106-311 and 106-396)". Since it may be quite a while until the INS
publishes regulations to implement the law, the memorandum is the only
official INS policy concerning the law at the present time. See

http://shusterman.com/pdf/ac21ins.pdf (PDF File - 2 MB)


* Green Card Lottery

The State Department has announced that application period for this
year's
green card lottery will start on October 1 and end on October 31. As
soon
as they are issued by the State Department, we will post the rules and
a
sample application online so that you can apply.


* H-1B Cap Update

Despite the downturn in the dotcom economy, it turns out that Congress
did
the wise thing in raising the H-1B cap to 195,000 last October. In
fact,
perhaps the H-1B cap should have been raised a bit higher.

According to the INS, 117,000 H-1B numbers subject to the cap had been
used
as of May 23, 2001. In addition, 40,000 more H-1B petitions subject to
the
cap were in the pipeline. According to our calculations, this means
that
with the fiscal year (which ends on September 30, 2001), 65% over,
about
75% of the H-1B numbers have been used.

Expect the 195,000 cap to be reached by August or early September. If
you
really need that H-1B by August, it's time to start preparing to submit
the
petition under the Premium Processing Program (which will begin
including
H-1B petitions on July 30).


* IJ Dismisses Charges Against Two Respondents in "LA 8" Case

On June 21, Immigration Judge Bruce Einhorn of Los Angeles dismissed
charges against two lawful permanent residents charged with being
deportable in what has become known as the "LA 8" cases.

Charges were originally brought against the respondents nearly 15 years
ago. Rulings in the case have been made by at least two immigration
judges, a Federal District Court, a Federal Appeals Court and the
Supreme
Court of the United States.

Respondents Khader Hamide and Michel Shehadeh were charged with raising
funds for the Popular Front For The Liberation Of Palestine (PFLP), a
group
that the State Department designated as a "terrorist organization".

Judge Einhorn dismissed charges brought against the respondents under
the
Immigration Act of 1990, and gave the INS until August 5 to indicate to
the
Court in writing whether it intends to continue with litigation under
the
original charges which were brought under the Immigration and
Nationality
Act of 1952.

The complete text of Judge Einhorn's 15-page opinion as well as the
charging documents may be accessed at

http://shusterman.com/pdf/la8.pdf (PDF File - 1 MB)


* Motions To Reopen To Apply For Adjustment Of Status

In a Memorandum dated May 17, 2001, INS General Counsel Bo Cooper
relaxed
the standards for the INS to agree to join in a motion to reopen/remand
to
allow a respondent to apply for adjustment of status.

The memo states that "the INS may join in a motion to reopen (or a
motion
to the BIA to remand) for consideration of adjustment of status
pursuant to
INA �245 if such adjustment of status were not available to the
respondent
at the former hearing, the alien is statutorily eligible for adjustment
of
status, and the respondent merits a favorable exercise of discretion."

The complete text of the memorandum may be found at

http://shusterman.com/pdf/245mtr.pdf (PDF File)


* RIR Conversion Regulations To Be Issued Later This Month

Is your Application for an Alien Labor Certification struck in the
queue?
See the latest DOL/SESA processing times at

http://shusterman.com/doltimes.html

and

http://shusterman.com/sesa.html

If your application is taking so long because it is being processed as
a
non-RIR (Reduction-in-Recruitment) case, good news is at hand! The
long-awaited regulations allowing non-RIR labor certifications to be
processed as expedited RIR labor certifications without losing one's
priority date will be issued before the end of this month.

We'll keep you posted!


* Temporary Protected Status

On July 2, the INS announced that it was automatically extending the
Employment Authorization Documents of Hondurans and Nicaraguans
registered
for TPS from July 5 to December 5, 2001.


* Thank You Note

Recently, we received a thank you note from a man in Pequannock, New
Jersey
who used our website to apply for a green card under �245(I) of the
immigration law. In June, he received his green card. No, he was not
a
client. In fact, he did not even schedule a legal consultation.
However,
he was able to use the information that he found on our site to apply
for,
and receive permanent residence, without any further legal assistance.
See

http://shusterman.com/pdf/ty2001.pdf (PDF File)

Congratulations, Mario!
************************************************************
CONTENTS:

1. August 2001 State Department Visa Bulletin

On July 12, we posted the August 2001 Visa Bulletin, the same day that
the
State Department posted the dates on their web site.

The Family categories should formally be designated as a disaster area.
The
worldwide FB numbers for two of five categories became "unavailable"
(In
simple English, "unavailable" means "don't even bother to apply!), two
other regressed and the other category failed to move at all. For
persons
born in Mexico, the situation was even worse. Four of the five FB
categories become unavailable. The only categories which managed to
inch
forward were India 4th (3 weeks) and Philippines 4th (2 weeks - to
September 15, 1979).

The shutdown of the family categories has clearly placed the ball in
Congress's court. Now is the time to act. Programs like the visa
lottery
can not be justified when there are close relatives of U.S. citizens
who
have played by the rules and are still waiting to become permanent
residents after more than 20 years!

On the Employment side, it was a far different story as all of the EB
numbers, including those for unskilled workers, remained current. Of
course, backlogs will develop in the EB numbers within a few months,
but
for now, it is time to apply for green cards through employment.
The August 2001 Visa Numbers can be found at

http://shusterman.com/vb.html

For an explanation of what the categories, dates and symbols listed
below
mean, see

http://shusterman.com/family.html

and

http://shusterman.com/employmt.html

Check the State Department's official version to see complete
information
about the movement of family, employment and lottery numbers, at

http://travel.state.gov/visa_bulletin.html


2. Latest Governmental Processing Times
Most immigration applications and petitions must be submitted to one of
the
following INS Regional Service Centers: (1) Laguna Niguel, California;
(2)
Lincoln, Nebraska; (3) Mesquite, Texas; and (4) St. Albans, Vermont.

Our web site contains the waiting times of each center and enumerates
each
state served by the center and any foreign offices within the center's
jurisdiction.

The service centers periodically issue lists of their processing times
for
various types of applications. Our web site contains the latest list
issued by each service center.

Warning: Processing times may appear faster on the official lists than
they
are in reality. These processing times are not recognized as official
by
the INS in Washington, D.C. and are not posted on the official INS web
site.

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

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

Processing times at INS District Offices may be accessed at

http://shusterman.com/aos.html

To check the processing times of your Department of Labor Regional
Office
and your State Employment Service Agency (SESA) as of May 2001, click
on

http://shusterman.com/sesa.html (SESAs)

and

http://shusterman.com/doltimes.html (DOL Regional Offices)


3. Legislation: Our House Is A Very, Very, Very Nice House

Between 1994 and 2000, the House Subcommittee on Immigration, under the
leadership (sic) of former Chairman Lamar Smith (R-TX) was the
graveyard to
many a bill which would have benefitted immigrants, their U.S.
employers
and their families.

Earlier this year, Mr. Smith's Chairmanship "termed-out", and Rep.
George
Gekas (R-PA) became the new Chairman. During the past few months, a
steady
stream of pro-immigrant legislation has emerged from the Subcommittee.

For example, consider H.R.1892, the Family Sponsor Immigration Act of
2001,
which passed the Subcommittee unanimously on June 26.

This bill would allow immigrants to use another sponsor on their
affidavit
of support if their original U.S. sponsor dies while they are waiting
for a
green card. This bipartisan measure would allow another family member
to
stand in for the deceased sponsor and sign the affidavit.
The legislation is necessary to fix a problem created by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA).
Under that law, an applicant for permanent residency must have an
affidavit
of support signed by the family member who petitioned for them. If the
petitioner dies during the process, the Attorney General can allow an
immigrant to go forward with their application for humanitarian or
family
unification reasons. However, the requirement that the original sponsor
sign financial support affidavits has rendered this authority
meaningless.
Applicants who have been given permission to continue their application
after the death of the petitioner have routinely had those applications
denied for failure to obtain the signature of the deceased petitioner.
Under the bill, family members allowed to step-in and sign the
affidavit of
support include spouses, parents, children, siblings, and legal
guardians.
The bill also broadens the definition of family member to include
in-laws,
allowing them to petition as well. During a previous subcommittee
meeting,
panel members adopted a substitute amendment clarifying that the bill
would
apply retroactively, and that sponsors as young as 18 will be allowed
to
sign financial support affidavits. The substitute also clarified that
the
Attorney General will re-examine cases involving immigrants who
abandoned
green-card applications after their sponsors died. During the June 26
hearing of the full Judiciary committee, the panel adopted another
amendment that added grandparents and grandchildren to the list of
family
members who can sign the affidavit of support. The bill now proceeds to
the
floor of the House for a vote, where it is expected to pass.

Then, on the very next day (June 27), the House Subcommittee approved
two
bills that would grant work authorization to spouses of foreign
executives
transferred to the U.S. by their companies, and that would make it
easier
for companies to transfer executives, managers or employees with
special
skills to offices in the United States. The bills, H.R. 2277 and H.R.
2278,
were introduced by Chairman Gekas (R-PA) and have bipartisan support.

These bills focus on two types of visas, the E and L visas. E visas are
granted to certain traders and investors from countries that have a
trade
treaty with the United States. L visas allow international companies to
temporarily transfer executives, managers, or employees with
specialized
knowledge to subsidiary or branch offices in the United States. Under
current law, E or L visa holders are entitled to bring their spouse
with
them for the duration of their stay in the United States, but the
spouse is
not entitled to work while they are here. In a world where more and
more
households have two working spouses, this limitation often forces the
spouses of visa holders to choose between giving up their careers and
separating the family. For other families, a dual income is necessary
to
pay the bills. In 1995, Global Relocation Trends Survey reported that
74%
of human resources managers labeled finding candidates as their "top
global
challenge", and over 50% stated that spousal career issues are a major
obstacle. H.R. 2277 would allow the spouses of E visa holders to work
in
the U.S. while accompanying their spouse. H.R. 2278 would provide the
same
benefit to spouses of L visas holders. Together, the two bills would
benefit about 15,000 foreign spouses of E and L visa holders.
In addition, H.R. 2278 also would reduce the amount of time that an
employee must be employed by a company before being eligible for an L
visa.
Under current law, an employee is required to have worked for the
overseas
company for one of the last three years before they are eligible to
apply
for an L visa. This legislation would reduce that time restriction to
six
months. This change would have a positive impact on business by
allowing
them more flexibility in moving certain very valuable employees to
offices
in the United States.

More recently, I have been approached by members of the Subcommittee
who
wish to sponsor legislation that would create a temporary visa category
for
registered nurses.

So, hats off to Chairman Gekas! He is working for bipartisan solutions
to
immigration problems which have gone unresolved for too long.


4. Nurses: INS Issues Interim, Final H-1C Regulations

Nineteen months after the enactment of the Nursing Relief for
Disadvantaged
Areas Act of 1999 (NRDAA), the INS has finally issued regulations to
implement the law.

Restrictive as the law is - only four hospitals in the country have
qualified to petition registered nurses for H-1C status - the
regulations
are even more restrictive.

The regulations would limit registered nurses to a single
three-year-period
of H-1C status, something the law does not do. Even if a nurse returns
to
her country, the hospital may not repetition the nurse for a second
three-year period. This inability to repetition nurses makes the law
less
flexible than the H-1B law which allows U.S. employers to repetition
for
H-1B workers after they have remained outside the U.S. for one year or
more.

Also, departing from INS policy in the H-1B area, time spent abroad by
an
H-1C nurse for personal or business purposes cannot be "recaptured" to
complete her three year period of stay.

As if this were not enough bad news for U.S. hospitals and patients,
the
supplemental information to the law provides that the present waiver
for
nonimmigrants of �343/212(r) VisaScreen requirements will end when the
INS
issues final regulations to implements these sections of law, and that
the
INS plans to issue such regulations "soon". TN and H-1C nurses, watch
out!

Also, in what we hope is a drafting error, the regulations provide that
all
petitions for H-1C nurses must be filed by June 13, 2005 and that an
H-1C
nurse may not be admitted to the U.S. beyond June 13, 2005. So if a
petition for an H-1C nurse is approved on June 13, 2005, can the agency
coordinate with the State Department and the airlines so that the nurse
can
receive a visa and arrive in the U.S. for inspection all on the same
date?

A more positive aspect of the regulations provides that the INS will
publish quarterly reports concerning the number of approved H-1C
petitions,
by state, on their web site on a quarterly basis. Perhaps the INS will
consider publishing similar information, like the number of approved
H-1B
petitions, on their web site.

All H-1C petitions must be submitted to the Vermont Service Center
regardless of the location of the petitioning hospital.

Written comments on the interim, final regulation must be submitted to
the
INS on or before August 10, 2001.

To read the complete text of the H-1C regulations, see

http://shusterman.com/h1cregs-ins.html


5. Immigration Trivia Quiz: Conrad 20 Programs Online

At the AILA Conference in Boston in June, I participated in a panel on
Government Web Sites in which representatives of the INS, EOIR and the
State Department were present. Each of these web sites have improved
tremendously over the past year.

However, the need for current information continues to outstrip it's
availability. For example, suppose you are a physician who is subject
to
the two-year home residency requirement. Can you find current
information
about each of 40+ Conrad State 20 Programs online.

We link to a few of these pages at

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

under "J Waiver Programs", "Conrad State 20 Programs", but we are too
busy
obtaining waivers for physicians to take the time to find each of the
state's online instructions for applying for a waiver.
The person e-mails the most state-created URLs for the Conrad State 20
Programs to me at [email protected] will be the winner of our
July
Immigration Trivia Quiz. The winner will receive a free 30-minute
immigration consultation (either telephonic or in-person) with me
before
the end of the month.


6. Citizenship: Supreme Court Upholds Gender-Based Distinction

The Supreme Court, in a 5-4 decision, ruled that in the case of a child
born abroad and out-of-wedlock, the government has the authority to set
a
higher standard for transmittal of U.S. citizenship through a father
than
through a mother. Nguyen vs. INS, 208 F.3d 528 (June 11, 2001).

To read the complete text of the Court's decision in Nguyen vs. INS,
see
our "Citizenship Page" at

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

scroll down to "Obtaining Citizenship Through Parents/Grandparents" and
click on "Nguyen vs. INS".

Mr. Nguyen was born out of wedlock in Vietnam to a Vietnamese mother
and an
American father. He lived in the U.S. as a permanent resident, and was
raised by his father who had married another Vietnamese woman. As an
adult, Mr. Nguyen committed a crime and was ordered deported. His
defense
was that he could not be deported because he was a U.S. citizen through
his
father.

Since U.S. law makes it much easier for a U.S. citizen mother to
transmit
citizenship to her child born abroad than for a U.S. citizen father to
transmit citizenship, Mr. Nguyen challenged the validity of the law
(INA,
�309) on the basis that it deprived him on equal protection of the law
merely because it was his father rather than his mother who was the
U.S.
citizen.

The Supreme Court held that in order for such "a gender-based
classification to withstand equal protection scrutiny, it must be
established that at least that the challenged classification serves
important governmental objectives and that the discriminatory means
employed are related to the achievement of those objectives." The
Court
ruled that, applying this standard, �309 was constitutional.

�309 requires that for citizenship to be transmitted to a foreign-born
child born out-of-wedlock by a U.S. citizen father, but not a U.S.
citizen
mother, all four of the following conditions must be satisfied:


1. A blood relationship between the child and the father must be
must be established by clear and convincing evidence;
2. The father must be a U.S. citizen at the time of the child's
birth and had been physically present in the U.S. for at least ten
years
prior to the child's birth, five of which occurred after the
father's
14th birthday;
3. The father (unless deceased) must agree, in writing, to provide
financial support for the child until his 18th birthday; and
4. While the child is under the age of 18, the father must (A)
legitimate
the child; (B) acknowledge paternity of the child in writing under
oath;
or (C) the child's paternity must be established by adjudication of
a
competent court.

This contrasts sharply with the requirements for a U.S. citizen mother
to
transmit citizenship to her child born abroad and out-of-wedlock. Such
a
mother must demonstrate simply that she was a U.S. citizen at the time
of
the child's birth, that she is the mother of the child and that she was
physically present in the U.S. for at least one year prior to the
child's
birth.

(Editor's Note: Amazingly enough, the law makes it easier for a citizen
mother to transmit U.S. citizenship to a child who was born
out-of-wedlock
than to a legitimate child! When I served as an INS Citizenship
Attorney
in the 1970s, we were faced with so many claims by mothers attempting
to
transmit U.S. citizenship to their children born out-of-wedlock that we
routinely investigated to see whether there may have been a marriage
prior
to the child's birth.)

While �309 may have made sense when it was written, since it is far
easier
to determine who the mother of a child born out-of-wedlock was than who
the
child's father is, this justification seems outmoded in an age where
paternity can be established through DNA testing. Indeed, DNA tests
conducted when Mr. Nguyen was 28 years of age conclusively demonstrated
his
paternity.

Nevertheless, the Court, albeit by the narrowest of margins, upheld the
constitutionality of �309.

The majority decision, written by Justice Kennedy, stated that "to fail
to
acknowledge even our most basic biological differences -- such as the
fact
that a mother must be present at birth but the father need not be --
risks
making the guarantee of equal protection superficial..."

Further, the Court ruled that "the difference between men and women in
relation to the birth process is a real one, and the principle of equal
protection does not forbid Congress to address the problem at hand in a
manner specific to each gender..."

In a strongly-worded dissent, Justice O'Connor warned that "no one
should
mistake the majority's analysis for a careful application of this
Court's
equal protection jurisprudence concerning sex-based classifications.
Today's decision instead represents a deviation from a line of cases in
which we have vigilantly applied heightened scrutiny to such
classifications to determine whether a constitutional violation has
occurred. I trust that the depth and vitality of these precedents will
ensure that today's error remains an aberration."

(Editor's Note: This case was closely watched not only by women's right
groups, by also attorneys at our law firm. For the past two years, we
have
represented a young woman facing deportation for several minor
victimless
criminal convictions committed many years ago during her troubled
youth.
Fortunately, just days before the ruling in Nguyen vs. INS, we were
able to
establish that her U.S. citizen father had fulfilled the requirements
of
�309 and had transmitted U.S. citizenship to her. While Justice
Kennedy,
writing for the majority describes the requirements imposed by the law
as
"minimal", I beg to differ.)


7. Supreme Court Roles Back 1996 Anti-Immigrant Laws

In 1996, the tide of anti-immigrant sentiment crested in Congress and
resulted in the enactment of laws greatly restricting the rights of
immigrants and their U.S. citizen family members. Fortunately, there
is a
limit beyond which even the Congress and the President cannot go: the
Constitution. Unfortunately, it takes many years for challenges to
unconstitutional laws to reach the Supreme Court of the United States.

In June 2001, the Supreme Court issued three extremely important
decisions
which restored many of the rights taken away from immigrants in 1996.

* Preservation Of Right To Habeas Corpus

In the February 2001 edition of SHUSTERMAN'S IMMIGRATION UPDATE, we
discussed the facts and issues in Calcano-Martinez vs. INS.

See

http://shusterman.com/feb01.html#6

On June 25, the Supreme Court, at 232 F.3d 328, held that a person's
right
to challenge an order of removal based on a criminal conviction under
the
statutory habeas corpus provisions found at 28 U.S.C. �2241 survives
the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA).

In a 5-4 decision, the majority held that while IIRIRA strips the
Courts of
Appeals of the authority to direct review such orders of removal, "we
agree
with petitioners that leaving aliens without a forum for adjudicating
claims such as those raised in this case would raise serious
constitutional
questions. We also agree with petitioners - and the Court of Appeals -
that
these concerns can best be alleviated by construing the
jurisdiction-stripping provisions of that statute not to preclude
aliens
such as petitioners from pursuing habeas relief pursuant to �2241."

To read the complete text of the decision in Calcano-Martinez vs. INS,
see
our Deportation Page at

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

scroll down to "Relief From Deportation" and click on "Calcano-Martinez
vs.
INS".


* Retroactivity

Also, in the February 2001 edition of SHUSTERMAN'S IMMIGRATION UPDATE,
we
discussed the facts and issues in St. Cyr vs. INS.

See

http://shusterman.com/feb01.html#6

Again, on June 5, in a 5-4 decision, the Court ruled in Mr. St. Cyr's
favor
holding that 1) since Congress did not explicitly bar the review of
petitions for habeas corpus, the courts have jurisdiction to decide
legal
issues raised in habeas petitions; and 2) for immigrants like St. Cyr,
who
plead guilty in an agreement obtained when �212� relief from
deportation
was available to him, �212� relief from deportation is still available.
Both the Clinton and the Bush administrations had taken the position
that
the bar to applying for waivers of deportation applied retroactively.
Under their reasoning, a person who convicted of a crime 20 or 30 years
ago
could be deported for that crime today, and would not eligible to apply
for
a waiver of deportation even if the conviction did not render the
person
deportable at that time.

�212� traditionally has allowed certain long time permanent residents
of
the United States to seek waivers of deportation. These immigrants
were
entitled to a hearing before an Immigration Judge who would weigh a
variety
of factors including the recency and seriousness of the conviction,
rehabilitation, and hardship to the person and to his family in
determining
whether to grant a waiver of deportation.

Since 1996 law did not specifically provide that the bar to seeking
waivers
applied retroactively, the Court held that it did not.
Lucas Guttentag, director of the American Civil Liberties Union
Immigrant
Rights Project, who represented the immigrants in both Calcano-Martinez
and
St. Cyr, characterized the Court's decisions as "a ringing endorsement
of
the right to Judicial review and of immigrant's access to the courts."

To read the complete text of the decision in St. Cyr vs. INS, see our
Deportation Page at

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

scroll down to "Detention" and click on "St. Cyr vs. INS".

Scroll down a bit further to read the ACLU's Press Release entitled
"�Justice For All' Includes Legal Immigrants Facing Deportation,
Supreme
Court Rules".

Although the Supreme Court decisions in Calcano-Martinez and St. Cyr
are
very significant, they leave many issues unclear. These include:
whether
there is any possible relief for people previously deported under law
now
rejected by the Supreme Court; whether someone who pled guilty after
AEDPA's passage but before IIRIRA made their crime a deportable offense
can
benefit from the rulings; whether someone who went to trial (rather
than
pleading guilty) when their crime was not a deportable offense can
benefit
from the decisions; and many others.


Fortunately, a number of immigrants' rights organizations including the
ACLU, AILF, NLG, and AILA have issued a guide for attorneys regarding
such
matters. To read the guide, go to our "Deportation Page" at

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

scroll down to "Relief From Deportation" and click on "Attorney
Practice
Advisory Regarding Supreme Court's �212� And Jurisdiction Decisions
(6-28-01)".


* Indefinite Detention

In the November 2000 issue of SHUSTERMAN'S IMMIGRATION UPDATE, we
reported
that the Supreme Court had agreed to review two decisions regarding
whether
the INS had the authority to jail persons indefinitely who were subject
to
final orders of deportation and whose countries refused to accept them.
See the facts and histories of the immigrants, Mr. Zadvydas and Mr. Ma
at

http://shusterman.com/nov00.html#6

On June 28, again by a 5-4 majority, the Court ruled in Zadvydas vs.
Davis,
185 F.3d 279, and Ma vs. Reno, 208 F.3d 815, that the law does not
confer
upon the agency the authority to jail a person for life under such
circumstances. The clear implication is that if the law had granted
the
agency such powers, the statute would violate the Due Process Clause of
the
Constitution.

For the majority, Justice Breyer rejected the argument put forward by
both
the Clinton and Bush Administrations that persons subject to orders of
deportation which could not be enforced by the INS could be
incarcerated
indefinitely. Instead, the majority interpreted the statute to allow
the
agency to jail such persons for a "reasonable" period, although the
Court
declined to extend its ruling in cases of terrorism or other special
circumstances are involved.

Justice Breyer declined to defer to Executive Branch of the government
as
had the Court of Appeals for the Fifth Circuit in Zadvydas, given the
circumstances. Instead, he held that "the Due Process Clause applies
to
all �persons' with the United States, including aliens, whether there
presence here is lawful, unlawful, temporary or permanent."

Justice Kennedy, in his dissent, held that "in the guise of judicial
restraint, the court ought not to intrude upon the other branches".
Similarly, Justice Scalia found "no constitutional impediment to the
discretion Congress gave to the Attorney General."

The decision is an important one given that the INS currently is
incarcerating over 20,000 persons including approximately 2,700 persons
who
the agency is unable to deport.

The Court's holding and language is potentially very significant for
other,
non-detention cases under the Immigration and Nationality Act.
Specifically, the Court observed that although the statute says that
the
INS "may" detain people beyond a 90-day removal period, and the word
"may"
suggests discretion, "it does not necessarily suggest unlimited
discretion."

Chief among the unanswered questions include whether the decision can
be
applied to "arriving aliens" or those inadmissible to the United
States.

Judy Rabinovitz, Senior Staff Counsel at the ACLU's Immigrant Rights
Project commented that the ruling "shows that the Court is applying
constitutional scrutiny to immigration policy and that immigrants are
protected by the Constitution."

The complete text of the decision may be found on our "Deportation
Page" at

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

by scrolling down to "Detention" and clicking on "Zadvydas vs. Davis".

Also instructive is the ACLU Press Release entitled "In Second Victory
For
Immigrant's Rights, High Court Says INS Cannot Indefinitely Jail
Immigrants" which can be found following the link to the Zadvydas
decision.

The ACLU stated that despite today's victory, legislation endorsed by a
vast array of civil rights, religious, immigrants' rights and labor
organizations is still necessary. The legislation, the Immigrant
Fairness
Restoration Act of 2001, would, among other things, further reform INS
detention practices for all immigrants and make sure that immigration
laws
do not change the rules in the middle of the game.

The complete text of the Immigrant Fairness Restoration Act of 2001 can
be
found on our "Immigration Legislation" page at

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

Scroll down to "Legislative Developments in 2001" and click on
"Immigrant
Fairness Restoration Act of 2001".


8. Web Site: State Department's Visa Bulletin Archive

Since the first issue of SHUSTERMAN'S IMMIGRATION UPDATE in June 1996,
we
have posted the State Department's monthly Visa Bulletin, usually
before
the State Department posts the Bulletin on their own site.

We caution our subscribers that it is very dangerous to look at a date
on
the Visa Bulletin and assume that the difference between today's date
and
the date on the Bulletin is the length of time that you must wait to
apply
for your green card.

For example, in June 2001 Visa Bulletin, the date for the EB-3 category
for
persons born in India is January 1, 1999, about a two and one-half year
wait, on paper. However, as we have been reporting for some months
now,
the State Department has been predicting that this date will become
current
in the next few months. India EB-3 did, in fact, become current in
July 2001.

On the more grim side of the Bulletin, the date for FB-4 (brothers and
sisters of U.S. citizens) category for persons born in the Philippines
is
August 15, 1979. Does this signify a wait of nearly 22 years? No, it
does
not! The waiting times for this and most of the family categories are
off
the chart. Absent Congressional intervention, no one born in the
Philippines who is petitioned by their U.S. citizen brother and sister
in
2001 can expect their priority date to be current within their
lifetimes.
How can I be so sure about this?

Simple - take a look at the State Department's Visa Bulletin Archive by
clicking on our Visa Bulletin Page at

http://shusterman.com/vb.html

and scroll down to the "State Department's Visa Bulletin Archive" which
listed selected Visa Bulletins from February 1995 to the present. The
page
posted every Visa Bulletin from February 1995 to February 1996, ran out
of
steam for a few years, and resumed publishing in March 1999. You can
find
the priority dates from "The Missing Years" in back issues of
SHUSTERMAN'S
IMMIGRATION UPDATE at

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

For example, take a look at the FB-1 category(unmarried sons and
daughters)
for persons born in the Philippines for June 2001. The date is March
22,
1988, a mere 13-year wait to reunite with one parents? Hardly. Look
at
the State Department's Visa Bulletin for February 1995 - what is FB-1
date
then for persons born in the Philippines? November 22, 1985 (The word
"Philippines" is missing, but the Philippines is always the LAST column
on
the right on the Visa Bulletin. Something vaguely Freudian about this,
I
suppose.) This means the FB-1 category for Filipinos advanced less
than 3
years the past 6 and a half years. At this rate of movement, U.S.
citizen
parents who petition for their 21-year-old single children in the
Philippines should not expect to see them arrive in the U.S. with green
cards for 25 to 30 years!

Use the State Department's Visa Bulletin Archive to see how fast or
slow
your priority date is advancing. It may cause you to rethink your
immigration strategy!


9. Chat Schedule, Transcripts, Audios & Videos

Chats --

In May 1999, we pioneered the concept of free online chats on various
immigration topics. Our chats are always focused on a particular
subject.
Together with About.com's Immigration Guides, Jennifer and Peter Wipf,
we
have conducted over two dozen chats on a wide variety of subjects, all
related to immigration laws and procedures.

We conducted regular chats on the LIFE Amendments (emphasizing �245i)
starting on December 22, 2000, one day after the amendments were signed
into law.

On June 7, 2001, we conducted a chat about the INS's new Priority
Processing Service entitled "Paying Your Way To The Front Of The Line".
It
now online.

So is our chat entitled "What To Do If You Are An H-1B And The Boss
Gives
You A Pink Slip".

To read the complete text of our chats, see our Chat Page at

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

Immigration Audios

Are your eyes getting tired from reading all of our information about
immigration laws and procedures? Then sit back, close your eyes, and
listen to any (or all!) of the following immigration audios:

* Welcome To Our Web Site!

http://shusterman.com/audio/welcome.ram

* Qualifying Under the New Section 245i Amendments

http://shusterman.com/audio/245i.ram

* Understanding the New H-1B Cap Law

http://shusterman.com/audio/h1bcapla.ram

* Temporary Visas to Visit, Study or Work in the U.S.

http://shusterman.com/audio/temp.ram

* Obtaining A Green Card To Live and Work in the U.S.

http://shusterman.com/audio/gc.ram

* How to Become a Citizen of the U.S.

http://shusterman.com/audio/usc.ram

* IMG's and Canadian Physicians

http://shusterman.com/audio/md.ram


Immigration Video

See my testimony before the Senate Subcommittee On Immigration on May
22,
2001 regarding "Immigration Policy: Urban And Rural Health Care Needs"
at

http://shusterman.com/video/carlsenate.ram

or read the complete transcript of my testimony at

http://shusterman.com/testimony.html

Remember, you will need to download a free copy of RealPlayer 8.0 which
you
can find at

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

in order to hear the audios or to view the video.
10. Answers To June's Immigration Trivia Quiz

Within minutes of e-mailing the June issue of SHUSTERMAN'S IMMIGRATION
UPDATE, I received the following pithy message correctly identifying
the
three alternate URLs for the INS web site:

The 3 URLs are:

www.ins.gov
www.ins.usdoj.gov
www.immigration.gov

Sincerely,
Shahnaaz


A couple weeks later, I heard again from Shahnaaz:

Some additional information about me:

I am an IT consultant working in Norway. I am originally from
Tanzania. I
have my bachelors degree in MIS (management information systems) and an
MBA. I have been working as a systems analyst/consultant for 5 years
now.
I met my husband 11 years ago. Next week we will be celebrating our
first
wedding anniversary. He is Norwegian and has his degree in marketing.

Sincerely,
Shahnaaz


Congratulations, Shahnaaz. Over 30 people e-mailed me with the correct
answers, but you were the first person to do so!

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, 624 So. Grand Ave., Suite 1608
Los Angeles, California 90017

"Power never yields without a demand. Never did, never will." -
Frederick
Douglass

July 12, 2001

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