Immigration Expert: Children Are Being Turned Back Without Due Process

I recently met up with Carl Shusterman while I was in Los Angeles. He is a leading U.S. immigration attorney who publishes a well-known immigration newsletter. I had a few questions for him.

Andy Semotiuk: Carl, tell us a little bit about your thoughts on the Central American children migrating up to the U.S. border?

Carl Shusterman: I’m getting increasingly concerned about it. I feel the Central American children are being turned back without real due process.  They are being held in poor facilities, like the one in Artesia, New Mexico – just women and children who fled violence in Central America.  Unfortunately, the administration seems more concerned about sending them back than giving them due process.  They are being held without bond.  They should be able to apply for asylum and other relief, but they are not always able to do so.

It’s become personal for me. I’ve talked about it with two of my paralegals who are from El Salvador. I have decided to take one of them with me before the end of the year and go to Artesia to volunteer some time.  I feel this situation is becoming comparable to putting Japanese-Americans in the internment camps during World War II. I remember asking my parents about what they did back then to help the Japanese-Americans, not realizing that they weren’t even on the West Coast at that time.

Being immigration attorneys, I think we have some obligation to help these people. There are a lot of young lawyers out there volunteering their time but I would like to see some old-timers like me go out there also. Then for those attorneys who can’t spare the time, they should consider donating money.  I am going to put a link in my October newsletter to enable people to donate money to help these volunteer attorneys do this work.

Semotiuk:  What do you see happening following the mid-term election, as it relates to immigration reform and Obama?

Shusterman:  Well, it’s hard to know for sure. I think that at a minimum, we are going to see a major expansion of the DACA, which is the Deferred Action for Childhood Arrival program. There are 580,000 kids who now at least have work permits, even if they don’t have green cards. At least they can have a more normal life in America. I think Obama will extend that to their parents and to other people who have children in the United States. Also, I expect the administration to really concentrate on deportations of criminals. I mean, I am a former INS immigration attorney myself, having worked for the INS in the ’70s and ’80s. I know how the system works.

Semotiuk:  Yes, I remember that about you.

Shusterman:  Frankly, President Obama has deported more people, now 400,000 a year, than any other president in history.  So he is not just talking about it.  But you know priorities are important. You can deport 400,000 people by concentrating on the criminals while leaving others alone where deportations are only going to create havoc and hardships there.  Don’t deport people who have been living here 15 years and just came here to get a job and are hard working.

What we are also hoping for – and this might just be the dream of everybody in the immigrant community, but this is something people told me about – is that the President can take executive action on opening up more visas. I was surprised to learn this until I went back and read the law and I saw there were some parts that I was totally unaware of, very important parts.  As you know, there is a quota of 140,000 people per year who can immigrate through employment each year.

Semotiuk:  Yes.

Shusterman:  But that 140,000 currently includes their spouses and their kids. But nowhere in the law does it say they have to do that.  So some of the law professors that I’ve talked to have suggested that Obama can just change this by executive order, because the spouses and children are currently counted under the quota because of prior executive action. So he can say, from now on, it will only be 140,000 people, and their spouses and their kids will not count against the quota any more.  And I think that would be a really great boost for our economy. A lot of those people who are from India and China and as elsewhere, who have been waiting for years, maybe a lifetime, to get a green card–

Semotiuk:  12 years in some cases.

Shusterman:  — They will be able to come and we will clean up the backlog. American companies will be able to compete worldwide better than they can now.

Semotiuk:  I know you are big in the nursing and physician immigration field.  Tell us what’s new in that area.

Shusterman:  Unfortunately, although we are bringing in hundreds of doctors and nurse practitioners every year and I represent over 100 healthcare providers across the U.S., the problem is the demand has fallen off from previous sponsors. So there may be a dozen nurses a year that we are bringing in, usually from the Philippines in the Third Preference category. That category recently advanced three years. It was a six-year wait, now it is a three-year wait.  So all these nurses that the hospitals I represent applied for in 2008, 2009, 2010 – they are now at the beginning of the line, but guess what?  The hospitals aren’t hiring them now because it’s too late for them.

So the hospitals don’t want them now and the medical people are sort of dumped in my lap and I just feel terrible for these people as a result.  My wife is Filippino herself so I feel a connection to them.  I have brought over 10,000 nurses in, mostly from the Philippines, so I have been very lucky and I want to give back by helping these new ones.

I represent the largest healthcare recruiter in the country, which I have for about 25 years.  And using their resources and staff, we are starting to contact hospitals in under served parts all around the U.S. and saying we are not charging any kind of recruitment fee to offer these nurses to them – we just want to bring these nurses into the U.S.  And if they file a petition to sponsor them, the nurses will still get their place in line which they got four, five years ago.  So sometime in 2015, they will be able to start working for these new employers.

Semotiuk: One last thing and that’s the regression with respect to EB-5 with Chinese investors.  What, if anything, can be done for those people?

Shusterman: Well, let me first say just a couple of sentences about the regression because I’ve talked to some lawyers who are doing a lot of EB-5s from China.  They have million dollar investors.  And I said, you know, the State Department is saying by May or June, there will be a two-year wait, even though to date there has never been a wait in 24 years.  And I ask these attorneys how it will affect their practice. How it will affect the investors. They are saying, oh, no, they are not worried about it because it takes immigration some 14 to 16 months to approve the initial petition.

Andy:  Right.

Shusterman: So if it’s backed up two years, the thinking is that it just adds a few more months of waiting.  But I don’t see it that way.  Here is how I see it.  There are actually 10,375 people who have petitioned – and are in the EB-5 immigration pipeline right now. About 80 percent of them are from one country – from the People’s Republic of China. So let’s say out of that 80 percent – of those 8,000, 7,000 get approved. Then, of course, they’ll have family members, so it may be 10,000 Chinese investors are approved. The point is only 10,000 people can get green cards in that category counting spouses and kids.  And each country can only supply seven percent of the total economic immigrant stream per year.  So all of a sudden, if you have even 7,000 Chinese investors, we are not going to be talking about two years pretty soon. We could soon be talking about a 10 year wait time. It gets complicated because for China the EB-1 to EB-5 categories are filling up. For instance, the EB-2 for people with advanced degrees, the EB-3 specialty workers for China are backlogged back to 2009 already.

Semotiuk:  Yes.

Shusterman: So you know, I could be wrong.  Maybe the backlog won’t be 10 years, but it could soon be 8 or 9 years.  So I still think that you have to look for different paths.  And I think the obvious paths for a lot of these people who have half a million dollars to invest for an EB-5 project is probably an L-1 visa using a company back in China.  So why not just use the traditional path and say, okay, I’m going to create a U.S. branch office.  I’ll get the L visa to come to the U.S. and then I can immigrate through the EB-1 category which has zero backlogs right now.

Semotiuk: So L-1 is the main route then.

Shusterman:  We are doing a lot of L-1s for these countries and I imagine in the spring everybody is going to be talking about L-1s.  So if you are going to file a petition and it’s going to take 16 months to get approved, guess what?  By the time it gets approved, there is going to be a multi-year backlog.  So maybe this is the time to think about filing and not wait until the spring.

Semotiuk: Good thought. Thanks for the interview, Carl.

Originally posted on: http://www.forbes.com/sites/andyjsemotiuk/2014/10/07/immigration-expert-children-are-being-turned-back-without-due-process/#65c4665fb216

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