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  • Article: Case Study: RFE for Software Developer Overturned By Sheila Danzig

    Article: Case Study: RFE for Software Developer Overturned By Sheila Danzig

    Case Study: RFE for Software Developer Overturned by Sheila Danzig Over the past few years, H-1B RFEs for specialty occupation issues have spiked in frequency. Jobs that never ran into trouble in the past – like engineer or software developer – have quickly become RFE magnets. This next filing season, we expect a very small number of RFEs because in September 2018, USCIS issues a memorandum giving adjudicators the authority and encouragement to reject petitions outright without first issuing an RFE for clarification. That means, any steps that would be taken to answer an RFE must be completed when filing the initial petition. Expert opinion letters were successful in overturning specialty occupation RFEs last season. One beneficiary who contacted us with an H-1B RFE for specialty occupation had applied for the visa with the job of software developer at Wage Level 2. He met H-1B educational qualifications, but CIS took issue with whether his job did. CIS requires a specialty occupation to require a minimum of a US bachelor’s degree or its equivalent for entry into the position. The assumpti...
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  • Article: As Shutdown Moves Into Fourth Week, Most Immigration Courts Remain Shuttered By Aaron Reichlin-Melnick for Immigration Impact

    As Shutdown Moves Into Fourth Week, Most Immigration Courts Remain Shuttered by Aaron Reichlin-Melnick for Immigration Impact With the government shutdown dragging into its fourth week—marking the longest shutdown in U.S. history—most of the nation’s immigration courts remain closed. The Trump administration decries immigration court backlogs and has implemented short cuts that limit and threaten due process to address the backlogs. Yet he has contributed to a shutdown that has led to the closure of over 90 percent of immigration courts across the United States. As tens of thousands of cases are rescheduled, lives are put in limbo and the immigration court backlog has skyrocketed. When the government shuts down, agencies can require that certain “essential” employees still report to work, while all “non-essential” employees are furloughed. As with a similar shutdown in 2013 , the Executive Office for Immigration Review determined that the only “essential” immigration judges are those that hear detained cases—ones where non-citizens are being held in detention by Immigration and Customs Enforcement (ICE). While the government remains shut down, all cases scheduled in non-detained immigration courts are being cancelled. As of Monday, non-detained immigration courts have been shut down for thirteen working days, the same amount of time they were shut in 2013. As a result of the 2013 shutdown, over 37,000 cases had to be rescheduled . Because the number of immigration judges increased by over one third since 2013, the current shutdown’s effects will likely be much larger. According to an analysis of immigration court records by the nonpartisan Transactional Records Access Clearinghouse, by January 11 over 42,000 cases will have been cancelled due to the shutdown. If the shutdown continues through the end of January, over 100,000 cases would have to be rescheduled. Despite tens of thousands of cases being rescheduled, not every case will be affected equally due to the shutdown. The majority of cancelled hearings will be for “master calendar hearings,” generally brief hearings at which immigrants appear in court for procedural matters. These hearings likely will be rescheduled within a matter of months. However, many will have to wait years for a new hearing. Because of the immigration court backlogs, those seeking relief from removal are often forced to wait at least two years for a trial date. Those whose trials have been cancelled due to the shutdown may be forced to go to the back of the line and wait yet another two to thre...
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  • Article: The Trump Administration Loses Fight to Add Citizenship Question to the 2020 Census By Melissa Cruz

    The Trump Administration Loses Fight to Add Citizenship Question to the 2020 Census by Melissa Cruz for Immigration Impact A federal judge blocked the Trump administration’s plan to add a question on U.S. citizenship to the 2020 Census on Tuesday, ruling that the controversial move “violated the public trust” and would be damaging to immigrants. Secretary of Commerce Wilbur Ross announced the administration’s intention to add the question – “Is this person a citizen of the United States?” to the Census back in March 2018. Plans to move forward with the new question became quickly tied up in various legal battles, as many feared it would decrease participation in the Census among immigrants. Six former Census Bureau directors also came out in opposition of a citizenship question. In his 277-page ruling, Judge Jesse Furman determined that the secretary had exceeded his authority and the addition had not undergone the rigorous testing required of all new Census questions. Furman also ruled that Ross had concealed “his real reason” for adding the question in the first place. Ross reportedly drafted the question after consulting with former White House Chief Strategist Steve Bannon, former Attorney General Jeff Sessions, and politician Kris Kobach, all known for their anti-immigrant views. Including such a question would damage immigrant communities, both advocates and the judge argued. This would be particularly true among noncitizen households. Manipulating the 2020 Census—which will be used to determine electoral college votes in U.S. elections, congressional seats, and federal funding for the next 10 years—would have a lasting impact on political representation. The Court found that a decline in self-response rates among noncitizens households would “cause several jurisdictions to lose seats in the next congressional apportionment and that it will cause another set of jurisdictions to lose political representation in the next round of intrastate redistricting.” Losing that political power would essentially strip already underrepresented communities of key representation and resources. Population Reference Bureau estimates that up to one in 10 U.S. households—or 45 million people—would be at risk of not being counted if a citizenship question is asked. The Trump administration has not announced how it will respond to the judgement, but the government could appeal or move the case directly to the Supreme Court. If the Supreme Court decides to take up the full case , then it could be heard in the spring. As it stands, however, Judge Furman’s ruling is a welcome victory for maintaining the integrity and accuracy of the Census. This post originally appeared on Immigra...
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  • Article: The Repatriation Process in El Salvador and Arguments of Relocation in U.S. Immigration Hearings By Robert Kirkland and Duncan Breda

    The Repatriation Process in El Salvador and Arguments of Relocation in U.S. Immigration Hearings by Robert Kirkland and Duncan Breda Introduction: The purpose of this article is examine the Salvadoran repatriation process and how the government tracks its citizens. In immigration hearings, the U.S. government regularly asserts that respondents who are threatened by gangs can relocate to other areas of El Salvador, obtain jobs, and function normally without detection. However, there are a number of mechanisms the Salvadoran government uses in order to know where its citizens live. Given that the Salvadoran bureaucracy has been compromised by officials under the pay of gangs or been infiltrated by gang members themselves, gangs can use these same databases to track persons of interest and continue to threaten them. It is highly probable, therefore, that no person can prevent gangs finding out where they live in the long term. Repatriation Process: When a Salvadoran is repatriated, they fall under local repatriation arrangements signed by both U.S. and Salvadoran government officials designed to strengthen the bilateral framework for the protection of Salvadoran citizens being returned to El Salvador, improve the efficient use of limited resources, and increase coordination during the repatriation process. Before or during the repatriation, the Department of Homeland Security provides El Salvador a list of the persons to be repatriated and pertinent information on Department of Homeland Security (DHS) Form I-216. [1] When individuals who have been convicted of criminal offenses are being repatriated through formal immigration proceedings, information added includes alias, convictions and dates, and time served. In addition, Salvadoran officials have web access to the U.S. Criminal History Information Sharing (CHIS) which includes biometric information (photographs and fingerprints). DHS Automated Biometric Identification System (IDENT) stores fingerprints on behalf of DHS component agencies which can be readily accessed by Salvadoran authorities. Note that the CHIS applies to both criminal and non-criminal deportees. In a previous article, we examined the CHIS in more detail [2] . Therefore, when a repatriated citizen is returned, Salvadoran authorities have a good deal of information on each person. This data is augmented by several necessary disclosures each returnee must do in order to move throughout the country, hold a job, or drive a vehicle. Identification: Salvadoran citizens must have some sort of identification. Recent deportees can carry a U.S. identification such as a state drivers license. Nevertheless, U.S. identification are not accepted for most transactions. The Documento Único de Identidad, or DUI as it is commonly known, is the most widely used form of identification in El Salvador. It is essentially a voter registration card. One...
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  • Article: EB-5 Funds Obtained From Unsecured Loans Now Legal Under Zhang By Matt Gordon

    EB-5 Funds Obtained From Unsecured Loans Now Legal Under Zhang

    by


    The recent Zhang decision (Zhang v USCIS Civil Action No. 2015-0995 (D.D.C. 2018) has the potential to greatly aid investors in financing investments that can qualify for the immigration benefits under the EB-5 program. A link to the text of the case can be found here:

    http://ilw.com/immigrationdaily/news...mo-opinion.pdf Prior to Zhang, USCIS imposed requirements on loans an investor could use to create the funds (proceeds) that were then used for the EB-5 investment. USCIS treated loan proceeds as contributed ‘indebtedness’, which per regulations, required the debtor to be the primary...

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  • Article: Three Ways to Save An EB-5 Investor in A Failing Project By Joseph Barnett

    Three Ways to Save An EB-5 Investor in A Failing Project by Joseph Barnett One of the more unfortunate aspects of practicing EB-5 law is when, to no fault of a good-faith immigrant investor, an EB-5 project fails to materialize, and the immigrant investor faces a denial to an immigration benefit and the loss of the EB-5 investment. Even worse is the case where, prior to obtaining a conditional green card, U.S. Citizenship and Immigration Services (USCIS) or the U.S. Department of State (DOS) learn of “material change” which would require the immigrant investor to file a new Form I-526 petition – and obtain a dreaded new priority date. In these situations, it is critical to have top EB-5 attorneys who can provide innovative immigration strategies against a Notice of Intent to Revoke (NOIR) the approval of a Form I-526 or to compel the approval of a Form I-829. Here are three considerations: 1. Show Me the Money . Perhaps most important is documenting what happened with the EB-5 investment capital after it was released from escrow. If there is not a clear path of funds to the entity most responsible for job creation, USCIS will question whether the EB-5 investment capital was sufficiently placed “at risk.” If funds have been misappropriated through fraudulent activity, additional investment capital can be contributed to the new commercial enterprise (under separate management) to show continuous good faith to meet the EB-5 requirements. If the business plan listed now-unavailable private investment as part of the capital stack, ...
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  • Article: Advocacy Groups Submit Comments Opposing Trump’s Asylum Ban By American Immigration Council Staff for Immigration Impact

    Advocacy Groups Submit Comments Opposing Trump’s Asylum Ban by American Immigration Council Staff for Immigration Impact In November, President Trump took the unprecedented action of banning asylum for individuals who enter the United States between ports of entry. Although his actions were blocked in court only days later , the Department of Homeland Security (DHS) continued forward with the process of formalizing rules to keep the asylum ban in place should the court order be overturned. On Tuesday, organizations across the nation submitted comments opposing the asylum ban and calling on the Trump administration to put an end to it. Typically, when the government issues a regulation, it must provide notice to the public and permit the American public to register their support of, or opposition to, the new rule. However, when the administration issued the asylum ban, it did so through an “interim final rule,” a regulation which goes into effect immediately. It also issued a Presidential Proclamation, which suspended the entry of any noncitizen who crossed into the United States outside a port of entry. The administration argued that it did not have to go through the normal notice and comment process because it had “good cause” for failing to provide a comment period in light of the “urgent situation at our southern border.” The American Immigration Council, along with the American Immigration Lawyers Association, submitted a joint comment opposing the asylum ban regulation. In the comment, the groups argue that the administration’s claim is not grounded in facts— recent numbers issued by the DHS show that apprehensions of noncitizens at the U.S.-Mexico border in 2018 were under 400,000, the fifth-lowest total since 1973. The organizations argue that the law is clear: “any [noncitizen] who is physically present in the United States or who arrives in the United States . . . whether or not at a designated port of arrival . . . may apply for asylum.” In other words, migrants can apply for asylum regardless of whether they crossed the U.S.-Mexico border at a designated port of entry or between the ports. As the organizations make clear, the president’s asylum ban would strip f...
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  • Article: Vital Industries Could Suffer Significant Damage as Workers With TPS Lose Their Status By Walter Ewing for Immigration Impact

    Vital Industries Could Suffer Significant Damage as Workers With TPS Lose Their Status by Walter Ewing for Immigration Impact The Trump administration’s decision to end Temporary Protected Status (TPS) for migrants from several nations—including El Salvador, Honduras, and Haiti—has not only threatened over 300,000 long-term residents with deportation and separation from their families, but created potential workforce turmoil in multiple industries nationwide. The impending loss of workers will have ripple effects throughout local economies that are also deprived of their buying power and tax payments. The largest of the impacted TPS populations consists of Salvadorans—tens of thousands of whom work in the construction, restaurant, and landscaping industries across the country. The loss of Salvadoran construction workers will hit hardest in California, Texas, Maryland, and Virginia—where Salvadorans with TPS amount to roughly one-quarter of all construction workers in those states. There are roughly 7,200 Salvadorans with TPS working in construction in California, nearly 6,000 in Texas and Maryland respectively, and 5,200 in Virginia. Given that most TPS beneficiaries have lived in the United States for many years, construction companies will be losing more than just entry-level laborers. They will also be losing highly experienced workers. The net result will likely be a slow down of construction projects confronted by a sudden shortage of needed skills and labor. This is especially problematic for California and Texas, states hit with natural disasters in the last two years. The next largest industry employing Salvadoran workers with TPS is restaurants and other food services. Approximately 22,400 Salvadorans with TPS work in this industry nationwide, with the largest groups employed in California, Texas, and New York. Many restaurants in these states will likely find themselves short-staffed when they lose the sizable chunk of their workforce that depended upon TPS for work authorization. The third largest industry employing Salvadoran workers with TPS is landscaping, which employs roughly 11,700 nationwide, including 2,500 in California and 1,900 each in Texas and New York. As with the construction and restaurant industries, employers in landscaping w...
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  • Article: The Judicial Black Sites the Government Created to Speed Up Deportations By Katie Shepherd for Immigration Impact

    The Judicial Black Sites the Government Created to Speed Up Deportations by Katie Shepherd for Immigration Impact As the Trump administration continues to strip away due process in immigration courts, the recent creation of two “Immigration Adjudication Centers” is cause for concern. The two new facilities are called “Centers,” not “courts,” despite being places where judges decide whether to issue orders of deportation. The Centers came out of a “ Caseload Reduction Plan ” devised by the Executive Office for Immigration Review (EOIR) as one of several mechanisms designed to reduce the number of cases pending before the immigration courts. This initiative first surfaced in December 2017 ostensibly as one of a series of ways to address the record-high backlog within the immigration court system. In fact, EOIR’s caseload has almost tripled since 2011, from fewer than 300,000 pending cases to 810,000 as of November 2018 . This is likely to worsen given the current government shutdown. A total of fifteen Immigration Judges currently sit in the two Centers—four in Falls Church, Virginia, and 11 in Fort Worth, Texas. It is unclear whether the Centers are open to the public, despite laws stating such hearings must be. All the cases heard by immigration judges in the Centers will be conducted exclusively by video-teleconference (VTC), with immigrants, their lawyers, and prosecutors in different locations. According to one source , it’s likely that “thousands of immigration cases will be heard with respondents never seeing a judge face-to-face.” The utter lack of transparency around these Centers is alarming, given the documented concerns with the use of video teleconferencing and the current administration’s commitment to speed up immigration court hearings, even at the risk of diminished due process. Speeding up cases could benefit detained individuals who often languish for months or even years behind bars before their release or deportation. However, the impact of these Centers overall could be much more ominous. The Centers raise serious questions about whether detained immigrants will be disadvantaged by the arrangement. These questions include: How will an individual who is unrepresented and detained in a facility three time zones away from the judge submit critical evidence to the court during a hearing? How can an immigration judge adequately observe an asylum seeker’s demeanor for credibility withou...
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  • Article: Time for a Real Conversation Around Border Security By Melissa Cruz for Immigration Impact

    Time for a Real Conversation Around Border Security by Melissa Cruz for Immigration Impact There is no doubt that a thoughtful conversation needs to be had around border security. However, it must be grounded in the realities of who is actually arriving at the U.S. border with Mexico, the reasons they are coming, and what the most pragmatic and humane response to them is. In the past several years, the face of migration to the United States has changed dramatically and so must the response. Currently President Trump’s demand for increased border wall funding —which is responsible for a three-week government shutdown —brings us no closer to meaningful reform and ignores the complex realities of today’s migration patterns. While there is no doubt that we need a new approach at the southern border, spending billions of dollars to erect a wall does little to address the real human issues that play out there each day. The majority of those arriving at the border now are Central American families and unaccompanied children seeking protection and family unification. Government data shows that a record high number of families were arrested along the border in the final months of 2018—arrests are a proxy for arrivals. In years past, most arrivals were Mexican migrants who came into the United States for seasonal work. However, as Mexico’s economy improved, migration patterns began to change and fewer Mexicans chose to come to the United States. This change from economic migrants to refugees and asylum-seekers requires a new response. Many arriving today are children and families fleeing extreme levels of violence and political corruption in their native countries and risk persecution and death if they are forced to return. Our laws make clear that anyone arriving at the border has the right to apply for asylum. Yet, asylum seekers are being turned away as if they were not fleeing for their lives. Worse, many are met with tear gas and are illegally refused access to the asylum process. We owe it to ourselves to have a discussion around what these changes mean for border security, how we should respond to instability in Central America, and how we keep America safe and prosperous. The discussion on the border wall relies on an over-simplistic and expensive solution to economic migration and a cruel response to asylum-seeking migration. Instead of focusing on erecting a largely symbolic structure , the president should bring his a...
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