January 2012
News
and Commentary written and edited by
Boyd
F. Campbell,
Attorney and Civil Law Notary
Published exclusively
and continuously via the World
Wide Web since 1994
© 2012 Boyd F.
Campbell, All Rights Reserved
Read and comment on Boyd Campbell's EB-5 immigrant investor blog: eb5greencard.blogspot.com
LEAD STORY
What are we paying for?
It is always great to have a guest editorial in this space. This month I have invited another colleague, Brandon Meyer, of San Diego, to offer his opinion concerning the so-called "exemplar" or "pre-approval" process for EB-5 Program investment projects. Brandon thinks the $6,230 filing fee paid to USCIS for this "service" is a waste of money, and I agree. CLICK HERE.
Federal appeals court will proceed with AL, GA immigration appeals
Although the U.S. Supreme Court has agreed to hear arguments for and against Arizona's immigration laws, the U.S. Court of Appeals for the Eleventh Circuit in Atlanta turned down motions last month to stay appeal proceedings over Alabama's and Georgia's immigration laws. Oral arguments concerning Arizona's immigration laws may be heard as early as late Spring.
Immigration Law Center among 'Best Law Firms'
The Immigration Law Center has been included, once again, as one of America's 'best law firms'. See:
http://bestlawfirms.usnews.com/standalone/default.aspx
Judge temporarily blocks Alabama immigration law
A federal judge has
temporarily blocked Alabama's new immigration law from going into effect on
Sept. 1.
The brief order of U.S. District Court
Presiding Judge Sharon Blackburn says she is not ruling on the merits of the
motions filed by the parties in court, but will issue an order so ruling no
later than Sept. 28.
The injunction is in effect
until Sept. 29 or when the judge rules on the motions, whichever comes
first.
EB-5 visa issuance for FY 2009 and 2010 tell the sad story
I took a long, hard look at EB-5 visa issuance by the Department of State for fiscal years 2009 and 2010, the latest available, and realized why I am so worried about the survival of the EB-5 immigrant investor visa program. You can take your own look at my report by clicking HERE.
USCIS is 'tougher', certainly not 'permissive' in handling EB-5 Program
Following is another guest editorial by Young Noh, one of the best thinkers in the EB-5 arena.
Someone from the Center for Immigration Studies wrote an article titled "USCIS Hails More Permissive Handling of EB-5 Alien Investor Program". You can read it for yourself at:
http://www.cis.org/north/EB5-more-permissive-handling
I wish the author had selected a more appropriate title for his article because many EB-5 practitioners are reporting these days a tougher, rather than permissive, handling of EB-5 cases by USCIS. From what we hear, USCIS is definitely not handling EB-5 cases more permissively. We also would like to point out several inaccurate statements or assumptions in the article about the EB-5 Program.
Inaccurate statement 1:
Apparently nothing frustrates USCIS more than an underutilized visa program, such as the one that allows a well-to-do-investor's family to get a collection of green cards by - briefly - investing half a million dollars in the U.S. So, the agency has announced its efforts to expand that program. USCIS is not all that frustrated that the EB-5 Program is underutilized. Congress and many companies which want to attract EB-5 money, as well as regional centers who want to work with U.S. businesses that will create jobs, are frustrated. In fact, many would argue that the reason the EB-5 Program is in fact underutilized is due to USCIS policies which often discourage commercial investments. USCIS is not handling the EB-5 Program loosely and is in fact handling the EB-5 Program too tightly, creating obstacles that discourage, rather than spur, investments.
Inaccurate statement 2:
Other nations, such as Canada and Australia have demanded that the immigrant investor actually operate a company that hires real people - but not the U.S. The use of a contrived, indirect job-creation formula is all that is needed. The EB-5 investor need not even visit the state where the two-year investment is located, much less actually manage a business; all he has to do is send a check. Canadian green card investment programs does not even require any sort of job creation. Anyone familiar with the investment green card programs of Canada, Australia and USA should know that the EB-5 Program of USA is one of the most cumbersome and risky of any investment green card programs. In fact, if you take out Asian EB-5 investors who are willing to take some risks due to their desire to send their children to American universities, which they perceive as "the best in the world," not that many people in fact go through the EB-5 Program run by USCIS -- and rightly so. That should tell you something. In our opinion, if the US offered a similar EB-5 Program to that of Canada, which in fact guarantees the return of the investment in 5 years without any need to show any job creation, the number of EB-5 investors would double or triple immediately.
Inaccurate statement 3:
Looking at this from another angle, let's step back for a moment and ask what kind of serious venture capitalist seeks funding in half million dollar chunks, investments that can be withdrawn after 24 months? My venture capitalist stepson, with a Harvard MBA piled on top of a PhD in chemical engineering and a decade of experience in the field, would laugh at the thought. The author seems to believe that there are regional centers out there which actually return the EB-5 investment money after 24 months. Perhaps there are regional centers which wishes they could return the money that quickly, but we can confidently say that the EB-5 investment structures do not allow EB-5 projects to return the money that quickly. No regional center wants one EB-5 investor to invest once every 3 months or 6 months; they need all EB-5 investors to invest within one year. In fact, I know several American businesses who are frustrated by having to wait for I-526 approvals which are taking sometimes more than 1 year, before they can receive EB-5 moneys. No regional center returns the investment money after 24 months, and in fact, the way the EB-5 case process is set up, it is very, very difficult to return the money before 4 or 5 years. In fact, EB-5 investors' chief worry is that for many regional center programs, they don't know when, if ever, they will get back their money. It's very hard to get back the money, and most, if not all, regional center based projects cannot afford to return the EB-5 investments before 5 years, precisely because, as the writer implies, many businesses need to use the money for longer periods. If the author asks his stepson with a Harvard MBA whether a venture company would not like to use money for 5 years at a very low interest rate, I am sure the stepson would say "hell, yes."
Inaccurate statement 4:
A denial rate of 14 percent in the EB-5 program must mean that the USCIS staff is seeing a set of applications that are far below average for the agency. The denials, incidentally, are for the I-829 petitions, which allow the investor to withdraw his or her money and receive green cards for the entire family. This happens a couple of years after the investment is made. The real reason for the high denial rate for EB-5 cases is because USCIS has many ways to deny EB-5 cases, because the EB-5 law is very unclear on many key issues. There is a greater chance of denial for EB-5 petitions than probably any other type of immigration petitions, that much is true; but that's because USCIS applies the EB-5 requirements very strictly and narrowly, rather than loosely or liberally. One must also keep in mind that actual denial rates of EB-5 cases are much greater because many petitioners simply choose to withdraw their cases before denials, and these withdrawals do not count as denials. Many petitioners, rather than risk the cases being sent to AAO, simply choose to abandon their cases, and this is because whenever USCIS denies a case and the case goes to AAO, AAO has never overturned the denial decision of USCIS -- which is pretty incredible when you think about it -- but it goes to show you, that there are many ways to deny EB-5 cases if USCIS wanted to. Simply put, it is very difficult to put one over the tough, strict USCIS, and not many regional centers even try, because their reputation would be shot and they have something to lose. As a result, EB-5 money does not seem to be going primarily into promising start-ups or into Silicon Valley; it is more likely to show up in decaying ski resorts in Vermont (beloved to Sen. Leahy (D VT), head of the Judiciary Committee), in an uneconomical sewage treatment plant in the Mojave desert and in a questionable effort to revive the Watergate Hotel in Washington, D.C., and in similar ventures.
The writer makes an accurate observation that not many EB-5 investors choose venture projects, but there is a good reason for this. The EB-5 Program requires 10 full-time jobs, and start-ups or venture companies simply are unable to accomplish this with any consistency. Also, USCIS policy makes it almost impossible to spread money among multiple businesses, including some venture companies. Classic conservative economic theory is that government should not pick winners and losers in the marketplace; I do not necessarily accept that thought, but if a government agency gets to play that role, I would prefer it would be one experienced in finance (such as Treasury or Commerce) not one whose expertise is in immigration. Actually, many EB-5 practitioners feel that USCIS, an immigration agency, is simply not equipped to deal with an investment program, and that the Department of Commerce should play the primary role. In this sense, I actually agree.
Meanwhile, in a multi-trillion dollar economy, the amount of money raised (for two years) in the EB-5 program is peanuts. Let's say that each of the 814 approvals this year will raise half a million dollars, that's only $407 million - is the game worth the candle? Yes, it's a simply a drop, but every drop helps in this economy. More importantly, why is the writer against EB-5 investors and dependents immigrating to the US, when EB-5 investors and dependents do not take away jobs from Americans, and probably all they do are buying expensive houses and cars, putting their kids in private schools or universities and spending money in the US? Is that so bad? And during this economy, many businesses have a hard time finding any loans from regular banks, and the EB-5 Program offers a loan for 5 years at a very low rate. What is wrong with that? If the Congress or USCIS wishes to do away with the EB-5 Program, so be it. But while the EB-5 Program is on-going, at least run it efficiently and consistently. Otherwise, shut it down by all means and let other countries receive EB-5 investors and families with open arms.
My biggest concern about USCIS mishandling of the EB-5 Program
Following is a guest editorial written by Young Noh, the newest member of the EB-5 Investors Committee of the American Immigration Lawyers Association (AILA). Young is an expert in removing conditions on residence in the EB-5 Program. I wish the federal employees who are in charge of mismanaging the EB-5 Program had half his knowledge and understanding of the EB-5 Program. The name of his excellent website follows his name at the end of his editorial.
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If someone asked me
what is my single biggest concern (or constructive criticism) of the way USCIS
has and is handling the EB-5 Program, it would be that their policy guidance
memos not only affect prospective EB-5 projects and petitions, but sometimes
adversely and retroactively affect past EB-5 projects and EB-5 petitions. Let me
explain further.
I came to accept the fact
that USCIS can do pretty much anything to the EB-5 Program because it is a
governmental agency in charge of the EB-5 Program. I have no problem with this
in so far as USCIS acts within reason. This sounds like a defeatist attitude but
it's a realistic attitude born of experience and realization that I simply
cannot affect or influence whatever policy USCIS will eventually adopt.
Most regional centers and EB-5 practitioners simply accept the USCIS's many policy guidance memos and try to operate under the changed landscape, and I am one of them. But what the heck are you supposed to do with the past EB-5 projects and/or EB-5 petitions, which in good faith, proceeded under the old EB-5 law full of holes, at the time when the EB-5 law failed to address many important issues which were never properly analyzed and decided upon? For example, many new issues concerning job-creating issues for the purpose of meeting I-829 requirements have arisen during the last several years. In essence, the EB-5 law is being made up as we go along.
The fundamental fairness dictates that USCIS should apply its new policy memos prospectively, and treat the past EB-5 projects and petitions in a fair manner. But sadly, this is not the case. More often than not, USCIS appears to want to justify that its new positions taken via so-called policy guidance memos were in fact what the EB-5 law has been all along. Experienced EB-5 attorneys know that this was not the case.
For example, in the
past there was no concept of "material change" in the EB-5 law when it comes to
the adjudication of I-829 petitions. Katigbak and Izummi cases are simply not
applicable to these cases; they are only relevant when there are changes while
I-526 is pending. In fact, when you review I-829 statutes and regulations, there
is no mention of "material change" concept anywhere. There is only no
de-coupling language in the 9th Circuit Chang case, but that does not mean that
changes to the job-creating project cannot take place, as long as the specific
I-829 requirements are met.
Aside from the
fact that USCIS policy guidance memos are not as clear as they could be and
create more new issues than resolve them, I have absolutely no complaint or
problem with USCIS's creating and applying whatever new policy guidance memos
prospectively. I am willing to follow what USCIS wants us to do, as long as they
are applied prospectively. No one wants to be a hero and fight USCIS when you
can avoid doing so. [Just consider how many times USCIS changes it position on
construction jobs and TEA census tracts issue. Actually, I still do not know
what the official USCIS position and rationale is on the issue of combining
contiguous census tracts! The June 30th 2011 presentation materials state that
USCIS is reviewing this issue.] But USCIS has to be fair in recognizing that in
the past, many of the EB-5 issues and procedures simply did not exist and at
best, were very unclear, so that no one, including USCIS, knew what the USCIS
policy or position was on many important EB-5 issues or areas; and that is the
very reason why USCIS is issuing guidance memos in the first place: To create
and apply new policies to EB-5 issues that have not been properly addressed
before.
All I am asking is that USCIS be
clear in communicating its new EB-5 policies and be fair in applying its new
policies prospective and not retroactively, especially when the new policies
adversely affect the past or pending EB-5 projects or petitions. Is this too
much to ask? All I am asking is that USCIS be fair and honest about the EB-5
history; and recognize that for the EB-5 Program to succeed, regional centers
and USCIS must cooperate rather than be adversaries. -- Young Noh,
eb-5center.com
USCIS launches unauthorized practice of law initiative
All too often, individuals seeking immigration benefits are deceived by people pretending to be "immigration experts." This is against the law.
Common scams
include:
• Falsely posing as a
lawyer or BIA-accredited representative and charging customers for legal
“advice” on immigration matters
•
Charging for free services such as USCIS forms and InfoPass appointments or
charging exorbitant amounts for assistance with immigration services
• Falsely acting as a
representative of the U.S. government and charging for a green card, employment
authorization, temporary protected status or some other immigration
benefit
For more information, CLICK HERE .
Supreme Court upholds Arizona E-Verify law
The Supreme Court has held that the Legal Arizona Workers Act, which requires its employers to use E-Verify and permits the suspension or revocation of business licenses for knowingly employing unauthorized workers, is not preempted by federal immigration law.
Writing for the majority, Chief Justice Roberts said that the Immigration Reform and Control Act (IRCA), which contains penalties for employing unauthorized alien workers, and mandatory use of E-Verify, which was created by Congress under the Illegal Immigration Reform and Immigrant Responsibility Act, are well within the authority Congress left up to the states to impose sanctions "through licensing and similar laws."
The U.S. Chamber of Commerce and other business-related groups opposed the law as a impermissible burden on private business.
Update from the Bureau of Consular Affairs about DNA tests
Presented by Rachel Hilton, Visa Specialist
There has been an update to the Foreign Affairs Manual (FAM) to increase oversight and decrease fraud. There are two sections to the manual, 9 FAM 42.44 DNA Guidance for Visa (issued in September of 2009) and 7 FAM 1100 Appendix A, DNA Testing and Citizenship (issued in June 2010), published by the U.S. Department of State (DOS). The manual is available for public review.
The major changes affected procedures and policy on the oversight of the chain of custody of DNA kits and sampling for immigration and American citizen cases. During the past year several of the following considerations or requests have come to light:
1) There is a distinct difference between a Department of Homeland Security/U.S. Citizenship and Immigration Service (DHS/USCIS) for DNA testing versus a consular DNA test request involving a visa or citizenship case. When the USCIS domestic Service Center requests a DNA test during the petition adjudication stage, the Consular office has no knowledge that a DHS request is being suggested nor is there an active visa case with the consular section at the overseas U.S. Embassy or Consulate. Therefore the lab may get questions concerning the USCIS case, when a kit arrives, unless the petition information has been shipped with the kit. Consular Affairs will be working with the USCIS in the future to review and improve guidance on DNA testing for immigration cases.
2) Send the kits for DHS/USCIS cases directly to the USCIS section at posts where they are co-located at the U.S. Embassy or Consulate. Consular officers cannot perform the collection, witness nor process a USCIS case if USCIS staff is also located at the post. Currently there are 29 posts worldwide where USCIS staff is co-located. There should be a broader clarification on how this works within the next year.
3) Laboratories have been asked to please provide clear instructions for each case. Provide information on the number of people testing, their testing roles and what relationship is being tested. Provide the specific and complete name as listed on their documentation or verification (3 names etc.). The State Department only accepts paternity testing. If a consular officer requests a siblingship case please notify Rachel Hilton, so she can contact the officer. The USCIS may request a siblingship, which is at their discretion, but the Consular officers will not.
4) There is a need for a standardized DOS chain of custody form for ease of use for the cleared American witness of the consular collection. A form will be developed working with the Standards Committee.
5) A lot of consular sections are unable to provide thumbprints and signatures on the photos. The posts not providing these should be sending a letter for notification with the kit. The cleared American witness or consular officer performing the collection is taking the responsibility for proper identification and this information is not needed for their cases.
6) Training has begun for the consular officers. This training will include how to read results, how to appropriately communicate with the laboratory and ask the correct questions.
Upcoming Changes in the future
A standard DOS chain of custody DNA form
A standard DOS attestation signed by a cleared American witness.
Creation
of standard website language for DNA testing
Clarifications and minor updates
to the 9 FAM 42.44
DHS proposes H-1B registration rule for cap-subject petitions
DHS has issued a notice on a proposed rule to require employers seeking to petition for cap-subject H-1B workers to first file electronic registrations with USCIS during a designated registration period. USCIS says the proposed rule that could save U.S. businesses more than $23 million over the next 10 years by establishing an advance registration process for U.S. employers seeking to file H-1B petitions for foreign workers in specialty occupations. The proposed electronic system would minimize administrative burdens and expenses related to the H-1B petition process-including reducing the need for employers to submit petitions for which visas would not be available under the statutory visa cap.
USCIS releases RFE templates for I-129 'P' Petitions
USCIS has asked for stakeholder review and comments on the draft RFE templates for I-129 P petitions, including athletes and teams (P-1A), entertainment groups and performers (P-1B), exchange artists or entertainers (P-2), culturally unique artists and entertainers (P-3), and essential support workers (P-1S). Comments are due by March 11, 2011.
USCIS announces new filing location for Change of Address form
USCIS announced that the filing location for all change of address forms (AR-11 and AR-11 SR) will be changing as of March 15, 2011, and reminded stakeholders of the online change of address option. Snail mail goes to: DHS/USCIS, Harrisonburg File Storage Facility, ATTN: AR-11, 1344 Pleasants Drive, Harrisonburg, VA 22801.
USCIS invites stakeholders to E-Verify Self Check meeting
USCIS invites stakeholders to participate in a discussion on the E-Verify Self Check process on March 10, 2011. RSVP by March 9, 2011, to participate in person or by telephone. E-Verify Self Check, the first service offered directly to individuals by E-Verify, is a simple online service that allows an individual to check his or her own employment eligibility in the United States. During the session, USCIS will describe the service, discuss the availability of the service and provide a demonstration. If you wish to participate, you may send an email message to public.engagement@dhs.gov. In the subject line, type "Self Check -- In Person" or "Self-Check -- Phone". The engagement will take place in the Tomich Center at 111 Massachusetts Ave NW in Washington, DC. Please plan to arrive 15 minutes early to allow sufficient time to be processed through security. A photo ID is required.
USCIS alerts public about Diversity Visa scams
USCIS released an alert about fraudulent e-mails which state that applicants have been selected in the Diversity Visa (DV) program. These e-mails are from scammers posing as the U.S. government in an attempt to extract money from DV applicants.
USCIS beta-testing VIBE and announces stakeholder meetings
USCIS announced that it is beta-testing the
web-based Validation Instrument for Business Enterprises (VIBE), and petitioners
may begin seeing VIBE-related Requests for Evidence.
USCIS Service Center
Operations will be conducting monthly stakeholder engagements with service
centers. Where two centers are paired up to adjudicate a particular benefit
type, both centers will be providing input. The first engagement will be a
February 22, 2011, teleconference hosted by TSC and NSC on refugee/asylee
derivative I-730 petitions and asylum-based I-485s.
H-1B visa cap reached on Jan. 26
U.S. Citizenship and Immigration Services
(USCIS) announced on Jan. 27 that it has received a sufficient number of
H-1B petitions to reach the statutory cap for fiscal year (FY)
2011. Jan. 26, 2011, is the final receipt date for new H-1B specialty
occupation petitions requesting an employment start date in FY2011.
The final
receipt date is the date on which USCIS determines that it has received enough
cap-subject petitions to reach the limit of 65,000. Properly filed cases
will be considered received on the date that USCIS physically receives the
petition; not the date that the petition was postmarked. USCIS will reject
cap-subject petitions for new H-1B specialty occupation workers seeking an
employment start date in FY2011 that arrive after Jan. 26, 2011.
USCIS will
apply a computer-generated random selection process to all petitions that are
subject to the cap and were received on Jan. 26, 2011. USCIS will use this
process to select petitions needed to meet the cap. USCIS will reject all
remaining cap-subject petitions not randomly selected and will return the
accompanying fee.
On Dec. 22, 2010, USCIS had also received more than 20,000
H-1B petitions filed on behalf of persons exempt from the cap under the
‘advanced degree’ exemption. USCIS will continue to accept and process petitions
that are otherwise exempt from the cap. Pursuant to the Immigration and
Nationality Act, petitions filed on behalf of current H-1B workers who have been
counted previously against the cap will not be counted towards the
congressionally-mandated FY2011 H-1B cap. Accordingly, USCIS will continue
to accept and process petitions filed to:
extend the amount of time a current H-1B
worker may remain in the U.S.;
change the terms of employment for current
H-1B workers;
allow current H-1B workers to change employers; and
allow
current H-1B workers to work concurrently in a second H-1B
position.
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as scientists, engineers, or computer programmers.
USCIS Office of Public Engagement schedules 'Enlace' for Jan. 29
The U.S. Citizenship and Immigration Services Office of Public Engagement wanted to remind you about the upcoming “Enlace,” a free Spanish-language only event where we will share agency updates, a presentation titled “How Do I Help My Relative Become a Permanent Resident in the United States?”, and have an open forum segment to respond to questions of a general nature.
Our next “Enlace” engagement will be held at the USCIS Washington Field Office in Fairfax, Virginia. You may also participate from anywhere in the United States via telephone and Internet.
Date:
Saturday, January 29,
2011
Time:
1:00PM-2:30PM (EDT)
Location: USCIS
Washington Field
Office
2675 Prosperity
Avenue
Fairfax, VA 20598
To participate, e-mail us at Public.Engagement@dhs.gov and write the word “ENLACE” in the subject line. We will send details to you about how to participate.
Para Espanol
La Oficina de Enlace Público del Servicio de Ciudadanía e Inmigración de los Estados Unidos (USCIS, por sus siglas en inglés) le invita a participar en enlaces públicos en español, por teleconferencia, a través de Internet (webinar), y en persona en la oficina de inmigración en Fairfax, Virginia.
Durante este “Enlace,” compartiremos últimas noticias e información y responderemos a sus preguntas en general. Así que marque en su calendario la fecha.
Fecha del
Enlace: Sábado, 29 de enero del
2011
Hora:
1:00PM - 2:30PM (hora oficial del este)
Tema
principal: ¿Cómo
puedo solicitar la residencia permanente para un
familiar?
Lugar:
Si gusta participar en persona, nuestra oficina local se encuentra
en
2675 Prosperity Avenue, Fairfax, VA 20598
Para Participar: Comuníquese con la Oficina de Enlace Publico al correo electrónico Public.Engagement@dhs.gov, y escriba la palabra “ENLACE” en la línea del asunto. Le enviaremos más información sobre como participar cuando usted responda a esta invitación.
*Favor de confirmar la zona de hora que le corresponde en la página web www.time.gov. Ejemplo: hora del este, hora del centro, hora de la montaña, hora del pacífico.
Kind regards,
Office of Public Engagement
U.S.
Citizenship and Immigration Services (USCIS)
www.uscis.gov/outreach
Immigration Law Center cited as one of nation's best law firms
There are few honors that have given me more satisfaction than the Immigration Law Center being named U.S. News & World Report's and BestLawyers.com's best law firm in the field of immigration law. I know I won't be around forever, and neither will my law firm, so I cherish the honors and strive to work every day to merit the attention. I hope you all have a safe and prosperous New Year. See below:
FOR IMMEDIATE RELEASE
Montgomery, Alabama,
United States of America (Free-Press-Release.com) December 23, 2010
--
U.S. News & World Report and
BestLawyers.com have teamed up to rate the best law firms in the nation.
The
Immigration Law Center was included in the first listing in the field of
immigration law.
"This is a proud moment for me," said Boyd F. Campbell,
managing partner. "We try every day to deliver the best legal service we can to
our clients. It is a great privilege to be included among the best law firms in
the nation."
A complete listing can be found on the consolidated U.S. News
and BestLawyers.com website: http://bestlawfirms.usnews.com/
Reversal of fortune in religious worker cases
On October 13, 2010, the U.S. Court of
Appeals for the Ninth Circuit issued a mandate overturning the permanent
injunction ordered by the U.S. District Court for the Western District of
Washington allowing special immigrant religious workers to file their Form
I-485, Application to Register Permanent Residence or Adjust Status,
concurrently with the organizations' Form I-360, Petition for Amerasian,
Widow(er), or Special Immigrant. Ruiz-Diaz v. USA, No. 09-35734 (9th Cir. Aug.
20, 2010).
As of November 8, 2010, U.S. Citizenship and Immigration Services
will no longer accept any I-485 applications, as well as Applications for
Employment Authorization (Form I-765), and/or Applications for Travel Document
(Form I-131), filed concurrently with or filed based on pending I-360 petitions
from individuals seeking classification as special immigrant religious
workers.
Any properly filed concurrent Form I-360, Form I-485, Form I-765
and/or Form I-131 from individuals seeking classification as special immigrant
religious workers submitted before November 8, 2010 will be processed in
accordance with the guidelines established in the August 5, 2009 Memorandum
HQDOMO AD09-, "Clarifying Guidance on the Implementation of the District Court's
Order in Ruiz-Diaz v. United States, No. C07-1881RSL (W.D. Wash. June 11,
2009)."
Any Form I-485, Form I-765, and/or Form I-131 submitted on or after
November 8, 2010, where the underlying basis is an I-360 petition seeking the
classification of special immigrant religious worker, must be filed with an
approved I-360 petition or it will be rejected. This development comes as
quite a blow to members of the American Immigration Lawyers Association who
devoted many hours and resources to obtaining equal protection for religious
workers.
Help available for immigrant victims of domestic violence
All people in the United States, regardless of immigration or citizenship status, are guaranteed basic protections under both civil and criminal law. U.S. laws that apply to families give you:
• The right to obtain a protection order for
you and your child(ren).
• The right to legal separation or divorce without
the consent of your spouse. The right to share certain marital property.
In cases of divorce, the court will divide any
property or financial assets
you and your spouse have together.
• The right to ask for custody of your
child(ren) and financial support. Parents of children under the age of 21 often
are required to pay child support for any child not living with them.
•
Consult a family lawyer and an immigration lawyer who works with immigrant
victims of domestic violence to understand how any of these family law options
may affect or assist you.
Under U.S. law any crime victim, regardless of immigration or citizenship status, can call the police for help or to obtain a protective order.
Hotlines (available 24 hours a day, 7 days a
week)\
National Domestic Violence Hotline
1-800-799-SAFE
(1-800-799-7233)
1-800-787-3224 (TTY)
www.ndvh.org
National Sexual Assault Hotline of the Rape,
Abuse and Incest National Network (RAINN)
1-800-656-HOPE
(1-800-656-4673)
www.rainn.org
National Center for Missing and Exploited
Children
1-800-THE-LOST (1-800-843-5678)
www.missingkids.com
Helpline (available 8:30 am to 8:30 pm (Eastern Standard Time)
The National Center for Victims of
Crime
1-800-FYI-CALL (1-800-394-2255)
1-800-211-7996
(TTY)
www.ncvc.org
If you think you are in danger, do not call a hotline or helpline. Call 911 to reach local police immediately.
User fee increases go into effect Nov. 23
U.S. Citizenship and Immigration Services (USCIS) has increased many "user fees". The new fee schedule and the fee increases go into effect on Nov. 23. Applications or petitions postmarked or otherwise filed on or after this date must include the new fee or they will be rejected. The reason for the user fee increases is that Congress stopped making appropriations to USCIS in 1998 and made the federal agency dependent upon user fees to pay its employees and operations.
USCIS implements H-1B and L-1 fee increase
On August 13, 2010, President Obama signed Public Law 111-230, which contains provisions to increase certain H-1B and L-1 petition fees. USCIS has provided the following questions and answers as public guidance concerning the additional fees.
Q1. What is Public Law 111-230?
A1.
Signed by President Obama on August 13, 2010, Public Law 111-230 requires the
submission of an additional fee of $2,000 for certain H-1B petitions and $2,250
for certain L-1A and L-1B petitions.
Q2. When did the fee increase take
effect?
A2. The fee increase applies to covered petitions with a postmark
date of August 14, 2010 or later. For petitions sent via courier services,
the fee applies to filing packets picked up by the courier on August 14, 2010 or
later.
Q3. To which petitioners does the new fee
apply?
A3. The additional fee applies to H-1B or L-1 petitioners that employ
50 or more employees in the United States with more than 50 percent of their
employees in the United States in H-1B, L-1A or L-1B nonimmigrant
status.
Q4. To which H-1B petitions does the new fee
apply?
A4. H-1B petitioners subject to the new law must submit the fee with
any H-1B petition filed:
To seek initial nonimmigrant status for an
alien described in subparagraph (H)(i)(b) of INA section 101(a)(15), or
To
obtain authorization for an alien having that status to change employers.
The
new fee does not apply to extension requests filed by the same petitioner for
the same employee.
Q5. To which L-1A and L-1B petitions does the
new fee apply?
A5. L-1 petitioners subject to the new law must submit the fee
with an L-1A or L-1B petition filed:
To seek initial nonimmigrant status for an
alien described in subparagraph (L) of INA section 101(a)(15), or
To obtain
authorization for an alien having that status to change employers.
The new
fee does not apply to extension requests filed by the same petitioner for the
same employee.
Q6. What is the additional fee for H-1B
petitions?
A6. Public Law 111-230 requires an additional fee of $2,000 for
covered H-1B petitions. This fee is in addition to the base processing
fee, the existing Fraud Prevention and Detection Fee, and any American
Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee needed to file
a Petition for a Nonimmigrant Worker (Form-129), as well as any premium
processing fees.
Q7. What is the additional fee for L-1
petitions?
A7. Public Law 111-230 requires an additional fee of $2,250 for
covered L-1A and L-1B petitions. This fee is in addition to the base
processing fee and the existing Fraud Prevention and Detection Fee required for
a Petition for a Nonimmigrant Worker (Form-129) (or, in the case of certain visa
exempt aliens, the Nonimmigrant Petition Based on Blanket L Petition (Form
I-129S) filed with USCIS), as well as any premium processing
fees.
Q8. Must the petitioner or the beneficiary
pay the additional fee?
A8. The petitioner, not the beneficiary, should pay
the additional fee, where it applies.
Q9. How does the petitioner
indicate whether it is subject to the new fee?
A9. Until the Petition for
Nonimmigrant Worker (Form I-129) and the Nonimmigrant Petition Based on Blanket
L Petition (Form I-129S) are revised, USCIS recommends that all H-1B, L-1A, and
L-1B petitioners include, as part of the filing packet, the new fee or a
statement or other evidence outlining why this new fee does not apply. USCIS
requests that petitioners include a notation indicating whether or not the fee
is required in bold capital letters at the top of the cover letter. The
fee, statement, notation, or other evidence should be provided with each
petition submitted. Where the fee or documentation is not submitted with
the filing, or where questions remain, USCIS may issue a Request for Evidence to
determine whether the additional fee applies to the petition.
Q10. How will USCIS address petitions filed
without the new fee or an explanation of why the new fee does not apply?
A10.
Where the fee or explanation is not submitted with the petition, or where
questions remain, USCIS may issue a Request for Evidence to determine whether
the additional fee applies to the petition. Because an RFE will be issued
for the fee, rather than a rejection for the omission of the fee, USCIS will
maintain the original filing date as the receipt date. Petitioners should
wait to respond to the RFE before sending in the additional fee or an
explanation of why the new fee does not apply. Once the revised Form I-129
and Form 1-129S are in place, USCIS will reject covered petitions submitted
without the new fee.
Q11. When will the revised Form I-129 and its
instructions be available?
A11. USCIS is revising the Form I-129 and Form
I-129S and their accompanying instructions and will release them as soon as
possible.
Q12. Does USCIS require the new fee to be
written in a separate check?
A12. USCIS recommends that petitioners include
the new fee in a separate check. The check should be made payable to the
Department of Homeland Security.
Q13. How will USCIS define
“employer” for purposes of implementing Public Law 111-230?
A13. To
implement Public Law 111-230, USCIS will apply the definition of “employer”
found at 8 CFR §214.2(h)(4)(ii), which states:
[A] person, firm, corporation, contractor, or other association, or organization in the United States which:
(1) engages a person to work within the United States
(2) has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and
(3) has an Internal Revenue Service Tax Identification number.
The use of this definition for purposes of determining the application of this new fee does not extend or authorize its application beyond Public Law 111-230 and the H-1B rules and regulations.
Q14. How will USCIS define “employee” for
purposes of implementing Public Law 111-230?
A14. All employees, whether
full-time or part-time, will count towards the calculation of whether an
employer is subject to the new fee.
Q15. When calculating the percentage of
employees in H-1B or L-1 status, will USCIS compare the number of nonimmigrant
workers in the petitioner’s workforce to the number of employees in the United
States only or to the number of employees worldwide? Will USCIS include
employees in L-1 status who remain on foreign payroll?
A15. USCIS will
calculate the percentage based on the number of employees in the United
States. All employees in the United States, regardless of whether they are
paid through a U.S. or foreign payroll, will count toward the
calculation.
Q16. Does the new fee apply to derivative
beneficiaries?
A16. No. The new fee does not apply to derivatives.
Q.17 Does this new fee apply to any other
employment-based visa category (e.g., H-2A, H-2B, etc.)?
A17. No. The
new fee applies only to certain H-1B, L-1A, and L-1B petitions.
Q18. Does an employee in L-2 status count as
an employee for purposes of determining whether or not the employer has more
than 50 percent of its employees in an H-1B or L status?
A18. No. Only
H-1B, L-1A, and L-1B employees are counted towards the 50%
calculation.
Q19. How will USCIS use the revenue from the
new fee?
A19. Under Public Law 111-230, USCIS will not retain the money
received from the new fee. Instead, USCIS will deposit all revenue from
the new fee into the General Fund of the Treasury.
Q20. Will this fee affect processing
times, including premium processing requests?
A20. USCIS is working
quickly to ensure that processing times are not affected by the implementation
of the new law. To avoid RFEs or delays in individual cases, the public is
encouraged to include the new fee or a statement or other evidence outlining why
this new fee does not apply.
Investing in the United States: Visas for employment creation
Boyd Campbell's article, whose title is above, appeared in the September issue of VOICE, a new publication of the American Immigration Lawyers Association styled as an "immigration dialogue". The article discusses the EB-5 Program for immigrant investors and provides practice pointerse to immigration lawyers. An excerpt from the article follows:
"Sometimes EB-5 is
the only option," wrote Campbell. "For example, Client A is in the United
States on an L-1A visa. Subsequently, during a site visit, USCIS determines that
Client A is not qualified for the position of executive and revokes his L-1A
visa. Client A has a pending I-140 to obtain an immigrant visa as a
multinational executive or manager. The I-140 petition is now in jeopardy and
will very likely be denied soon. Client A, who has $500,000 to invest through a
regional center, makes the investment, files an I-526 petition, and withdraws
the I-140.
"Client B came to the United States on an
E-2 visa, having made a small investment in a chain of convenience stores. Now,
six years later, he has the $500,000 necessary to invest through a regional
center. This is called an E-2 conversion, and it makes perfect sense for those
investors who are eligible. Retained earnings from a business investment by an
E-2 visa holder may be used for EB-5 Program
purposes.
"Client C came to the United States on an
F-1 visa and later got an H-1B visa. He is in his fourth year of H?1B visa
status and is aware of the backlog in the EB-3 employment-based visa category.
But he is from a relatively wealthy Korean family that made its money in the
automobile manufacturing business. Client C has substantial stock holdings in
his father’s company that were made as gifts to him over a period of years. He
wants to sell some of his stock in order to raise $500,000 to invest through a
regional center and obtain an available EB-5 immigrant visa."
USCIS draft memo leaked
An internal memo prepared by staff members of U.S. Citizenship and Immigration Services, discusses administrative changes that could alleviate many situations involving immigrants and visa case processing. It was leaked probably during the last week of July and made its way through the community of stakeholders. A leak to the memo is here: CLICK HERE
If the common-sense guidance in the memo is followed, there would still be a need for immigration reform, but mean-spirited and sometimes vindictive, negative outcomes for immigrants might be alleviated somewhat. Among other good ideas, it would expand use of "parole in place" so that a family member seeking legalization in the United States would not have to leave the country and be subjected to long delays in immigrant visa processing. USCIS released a public statement regarding the memo.
"Internal draft memos do not and should not be equated with official action or policy of the Department," the statement said. "We will not comment on notional, pre-decisional memos. As a matter of good government, U.S. Citizenship and Immigration Services (USCIS) will discuss just about every issue that comes within the purview of the immigration system. We continue to maintain that comprehensive bipartisan legislation, coupled with smart, effective enforcement, is the only solution to our nation's immigration challenges.
"Internal memoranda help us do the thinking that leads to important changes; some of them are adopted and others are rejected. Our goal is to implement policies wisely and well to strengthen all aspects of our mission. The choices we have made so far have strengthened both the enforcement and services sides of USCIS - nobody should mistake deliberation and exchange of ideas for final decisions. To be clear, DHS will not grant deferred action or humanitarian parole to the nation’s entire illegal immigrant population.”
H-1B visa cap count
As of July 30, 2010, about 27,300 H-1B cap-subject petitions were receipted. USCIS has receipted 11,600 H-1B petitions for aliens with advanced degrees.
Visa, consular fees increased July 13
A long list of visa and consular processing and service fees will increase dramatically on July 13. Nonimmigrant visa fees had already increased from $131 to as much as $390 on June 4. For example, the consular fee for employment-based immigrant visas will increase from $355 to $720. The Diversity Visa Lottery surcharge will increase from $375 to $440. To view the complete list, CLICK HERE
Boyd Campbell speaks to American Immigration Lawyers Association
Boyd Campbell addressed the American Immigration Lawyers Association (AILA) during a panel discussion of the EB-5 (immigrant investor) Program on July 3 in National Harbor, Maryland, across the Potomac River from Washington, D.C. The discussion included such matters as how to evaluate regional centers and their investment projects, and how immigration lawyers should advise prospective client investors. AILA's annual conference was held at the Gaylord National Resort & Convention Center from June 30 to July 3.
USCIS proposes to raise almost all user fees
WASHINGTON -- U.S.
Citizenship and Immigration Services (USCIS) is seeking public comment on a
proposed federal rule that would adjust fees for immigration benefit
applications and petitions. The proposal, posted to the Federal Register
today for public viewing, would increase overall fees by a weighted average of
about 10 percent but would not increase the fee for the naturalization
application.
USCIS is a fee-based
organization with about 90 percent of its budget coming from fees paid by
applicants and petitioners to obtain immigration benefits. The law
requires USCIS to conduct fee reviews every two years to determine whether it is
recovering its costs to administer the nation’s immigration laws, process
applications, and provide the infrastructure needed to support those
activities. This proposed rule results from a comprehensive fee review
begun in 2009.
"We are mindful of the effect of a fee increase on
the communities we serve and have worked hard to minimize the size of the
proposed increase through budget cuts and other measures," said USCIS Director
Alejandro Mayorkas. "Requesting and obtaining U.S. citizenship deserves
special consideration given the unique nature of this benefit to the individual
applicant, the significant public benefit to the Nation, and the nation’s proud
tradition of welcoming new citizens. Recognizing the unique importance of
naturalization, we propose that the naturalization application fee not be
increased."
Thankfully, USCIS left the fee for
naturalization (N-400) at $595, but that fee is still far too high and is not in
accord with the work a USCIS officer or contractor has to do. It should be
public policy to encourage permanent resident aliens to apply for U.S.
citizenship (naturalization); instead, the USCIS fee structure discourages
it.
There are three new fees: $615 for a
doctor to apply with USCIS for civil surgeon designation, a $165 fee for
handling cases once the Department of State has granted an immigrant visa, and
$6,230 to file an application for a regional center under the Immigrant Investor
Pilot Program.
The fee for filing a petition on
behalf of an alien fiance(e) actually fell $115 (which rarely happens), the fee
to file an application for adjustment of status (the green card) increased by
$50, and the fee to remove conditions on an alien investor who creates jobs for
U.S. workers increased by $900. USCIS wants to make it tougher to decide
whether to appeal a case by increasing the fee for a notice of appeal by $210 to
$755. And the agency also proposed a fee increase of $50 for U.S. couples
wishing to adopt a foreign-born child. The fee for I-600 orphan petitions
would increase to $720.
Congress cut USCIS loose in
1998 and forced the agency to rely on user fees. Congress has been stingy
with appropriations USCIS during the years since 1998. Apparently Congress
does not like immigration or the immigration service.
USCIS proposes new fee for regional center applications
U.S. Citizenship and
Immigration services has proposed a new fee to file an application for a
regional center under the Immigrant Investor Pilot Program. The new fee is
$6,230 and will go into effect after the 45-day comment period following
publication of the proposed rule and the final rule is
published.
According to USCIS stated "frequently
asked questions" posted on its website that the new fee and standardized Form
I-924 would:
1. Clarify requirements for regional
center documents
2. Improve the quality of
applications
3. Better document eligibility
for the Pilot Program
4. Alleviate content
inconsistencies among applicants' submissions
5. Support a more efficient process for adjudication of
applications
Is it just me? Does anyone understand the above other than perhaps the government bureaucrat who wrote it?
Paper arrival-departure forms eliminated for travelers from Visa Waiver Program countries
Arrival-Departure
forms (Form I-94W) have been eliminated for travelers from Visa Waiver Program
(VWP) countries, which may streamlining secure travel for millions of visitors
to the United States every year. The Department of Homeland Security (DHS)
claims this will consolidate the collection of traveler information and enhance
security by automatically providing DHS with important passenger information
prior to departure.
Following a successful
seven-month pilot program conducted with the support of the Government of New
Zealand on Air New Zealand flights from Auckland to Los Angeles International
Airport, the use of paper I-94W forms will be eliminated for VWP travelers with
an approved Electronic System for Travel Authorization (ESTA) arriving in the
United States at all airports by the end of this summer. Customs and Border
Protection will activate automated processing for U.S. airports on a rolling
basis over the next several months.
Supreme Court case requires lawyers to advise clients about deportation
The most remarkable
event to occur in April was the Supreme Court's decision in Padilla v.
Kentucky. Padilla -- for the first time in U.S. history --
establishes that criminal defense lawyers have an obligation to advise whether
pleading guilty to an offense will almost certainly result in deportation
(aggravated felony), and if it is not clear-cut they still have to advise there
could be adverse consequences. It would seem that this decision requires
criminal defense lawyers to know the crimes where “the deportation is truly
clear…” and advise their clients that deportation will certainly result.
Padilla, who was born in Honduras in 1950 and has lived in the United States for
nearly 40 years. He served in the United States Army with a tour in
Vietnam. He is a legal permanent resident of this country, but he is not a
U.S. citizen. And therein lies the problem with Jose
Padilla.
In 2001, Padilla -- no relation to the
other Jose Padilla imprisoned during the Bush Administration in the so-called
"dirty bomb" case -- was indicted for trafficking in marijuana -- an offense
designated as an "aggravated felony" under the Immigration and Naturalization
Act (INA). He decided to accept a plea bargain. But prior to entering a
plea of guilty to that offense, Padilla asked his lawyer whether his guilty plea
would affect his immigration status. His lawyer incorrectly advised him
that he "did not have to wory about immigration status since he had been in the
country so long."
Unfortunately, because Padilla's
offense was considered under the Illegal Immigration Reform and Immigrant
Responsibility Act and the Antiterrorism and Effective Death Penalty Act as an
aggravated felony, Padilla's deportation was mandatory. Upon discovery of this
fact, Padilla sought post-conviction relief in Kentucky's state courts arguing
that his attorney had improperly advised him. The Supreme Court of Kentucky
denied post-conviction relief holding that Padilla was not entitled to accurate
advice from his attorney on immigration consequences because he had no Sixth
Amendment right to counsel in that proceeding. Padilla sought certiorari to
review the following questions:
1. Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an "aggravated felony" under the Immigration and Nationality Act, is a "collateral consequence" of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and
2. Assuming immigration consequences are "collateral", whether counsel's gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.
HERE IS OUR WARNING AGAIN: Your friends, relatives, and co-workers are good sources of bad information about immigration and nationality law and federal administrative procedures. If you really want to know what to do about an immigration or visa situation, please consult a qualified immigration lawyer. If you don't know one, please call the American Immigration Lawyers Association (AILA) Lawyer Referral Service in Washington, D.C., go to www.ailalawyer.com . AILA's Lawyer Referral Service cannot assure you that you will get the best immigration lawyer, but you should be able to get competent legal help and guidance. Remember: CIS considers every petition or application filed as a legal case for adjudication under the federal Administrative Procedures Act and federal regulations. When people help themselves or others by filling out forms and filing them with CIS, they are filing a legal case before an administrative agency of the federal government for adjudication. If the case runs into trouble or is denied, the alien and his family members rarely know what to do next or how to get the legal matter resolved. Some visa applicants have monthly telephone bills that are larger than any fee they will ever pay to a qualified immigration lawyer. For information about how to hire and work with an immigration lawyer, click on the following link: Why Hire an Immigration Lawyer? Also, don't forget to check out our web links to other helpful (and FREE) information: CLICK HERE
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Questions or comments about this article may be sent to Mr. Campbell via e-mail by clicking on the following link: SEND MAIL
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