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  • Article: As Demand for the US EB-5 visa continues to rise in India, Distinctions are made with China By Mona Shah, Esq. and Hermione Krumm, Esq.

    As Demand for the US EB-5 visa continues to rise in India, Distinctions are made with China by Mona Shah, Esq. and Hermione Krumm, Esq. As the Times of India publish yet another article on the increase in the popularity of EB-5 visas, the Chinese media report on the rapid slowdown of a once booming industry. For years the EB-5 industry has been bolstered by wealthy Chinese investors, but the heyday for the Chinese EB-5 market seems to be ending as new applicants appear wary of heightened uncertainties surrounding the program (legislative and regulatory) as well as the ever-increasing visa backlog facing the Chinese nationals that has been anticipated to be 10+ years. The EB-5 Immigrant Investment Program was created by the US Congress in 1990 to stimulate the economy through job creation and capital investment. Between fiscal year 2010 and 2015 alone, over $19.6 billion of foreign direct investment (“FDI”) flowed into the United States under EB-5 from across the world and supported over 414,000 American jobs. [1] Despite the EB-5 program’s tangible benefits, particularly for Indian citizens, India only comprised a 1.1% share of the overall EB-5 market in 2015. By comparison, China dominated the overall market with 83.5% or 8,156 approvals. Even Vietnam, which India dwarfs in population size, commanded a greater share of the market with 2.9% of approvals in 2015. In FY2016, India stood out as only the sixth most common country of origin for EB-5 investors. Given India’s immense population size and robust pace of economic growth, there was vast room for growth in the EB-5 program in India – indeed it was only a matter of time before Investors at the very least, brought it on par with China. The shifts in the top six countries for EB-5 demand is particularly noticeable in the most recently published analysis by IIUSA (the national trade association for the EB-5 Regional Center Program), on the latest Form I-526 (Immigrant Petition by Alien Entrepreneur) data by investor’s country of chargeability for fiscal year (FY) 2017, the demand from China has been dampening since FY 2016, with every subsequent year a decreasing number of filings. The United States is the second-most common destination for Indian migrants For Indian immigrants, the EB-5 program makes a lot of sense. The United States is the second-most common destination for Indian migrants, representing approximately two million of the total 14 million Indian migrants worldwide. Compared to both the overall native-born and foreign-born populations in the United States, Indian immigrants are on average significantly higher educated, more likely to be employed and have a higher household income. These statistics are reflected in the high usage of Employment-Based Green Cards and skilled occupation-based H1-B visas amongst Indian citizens. According to the Department of State, Employment-Based Green Cards for Indian citizens are b...
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  • Article: New USCIS EB-5 Redemption Policy Update By Carolyn Lee

    Article: New USCIS EB-5 Redemption Policy Update By Carolyn Lee

    New USCIS EB-5 Redemption Policy Update by Carolyn Lee On October 30, 2018, the United States Citizenship and Immigration Services updated its Policy Manual on the point of immigrant investors and debt arrangements as announced on the Policy Alert of the same date. [1] Since May 2018, there have been four EB-5 related Policy Manual revisions out of a total of ten covering all areas of immigration. Clearly, EB-5 is a special focus area for USCIS. We can expect the scrutiny to continue based on Director Francis Lee Cissna’s June 2018 Senate testimony and the EB-5 “pre-rule” the Department of Homeland Security issued in the Fall 2018 regulatory agenda. [2] This article summarizes the Policy Manual revisions and highlights the recurring due process problems we see with these fast-coming EB-5 Policy Manual revisions. Impermissible Debt Arrangements: Denial Based Repayments Now Banned? The Policy Manual as revised now states a broad prohibition: Any agreement between the immigrant investor and the new commercial enterprise that provide the investor with a contractual right to repayment is an impermissible redemption agreement. [3] (emphasis added) USCIS currently permits agreements allowing redemptions when the immigrant investor receives a denial of his or her I-526 petition or immigrant visa/adjustment of status application. In the author’s opinion, this allowance is consistent with governing authority as a denied investor is no longer “seeking to enter the United States for the purpose of engaging in a new commercial enterprise” [4] under the statute. Similarly, such an investor also has no actionable “petition for classification as an alien entrepreneur” [5] under the regulations. Accordingly, USCIS’s policy to date has been consistent with existing law. With this new language, we now have a question mark looming over the vast majority of EB-5 projects that currently allow redemptions for denied investors, including projects with exemplar approval. Unless USCIS provides clarification soon that denial redemptions are not prohibited debt arrangements, the industry will be evaluating potentially mass amendments with attending securities and investor management implications. If USCIS did not intend to raise this question, this is surely an instance where a clear, prospective effective date set after a solid comment period would have served all. More on that is further below. Are Investments Like Marriage? As should be expected in redemption-related guidance, Matter of Izummi’s shadow presides. The Policy Manual revision, though, highlights a fundamental flaw in Izummi’s reasoning. We now have new language freely borrowed from Izummi: An agreement evidencing a preconceived intent to exit the investment as soon as possible after removing conditions on permanent residence may constitute an impermissible debt arrangement. … In general, the petitioner may not enter into the agreement knowing that he or she has a willing buyer at a certain time and for a certain price. [6] Preconceived intent to leave the marriage once the green card is obtained is the very definition of marriage fraud. But is this the right analogy for investment? In the EB-5 context, for an investment to be “at risk,” the investor must have the intent to make the investment knowing that it may gain or lose. The notion of “gain” in an investment relates to gain on top of the principal. [7] So the preconceived hope of getting the principal capital plus a return is actually a requirement of EB-5 eligibility. Accordingly, the marriage petition analogy is misplaced in Izummi and fares no better in the Policy Manual. On the notion of preconceived intent, USCIS has also proven to be overly zealous in finding disqualifying evidence “suggestive of a prohibited redemption mechanism,” [8] and “indicative of a prohibited debt arrangement.” [9] USCIS’s finding along these lines were ruled errors in two federal court decisions cited in the Policy Manual Alert. [10] The key takeaway here ...
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  • Article: Trump’s Illegal Ban on Asylum Seekers Solves Nothing By Royce Murray for Immigration Impact

    Trump’s Illegal Ban on Asylum Seekers Solves Nothing by Royce Murray for Immigration Impact In response to a much over-hyped caravan of migrants slowly trekking north through Mexico, the Trump administration announced new rules to block people from applying for asylum if they cross between the ports of entry along the Southern border. The rules take effect immediately, setting the stage for an utterly avoidable crisis that will put people’s lives at risk. The asylum ban was made through two bureaucratic steps. First, the Department of Homeland Security and the Department of Justice jointly published an interim regulation that creates a new bar to asylum. President Trump then issued an accompanying proclamation that applies to anyone who has entered the United States along the Southern border between the ports of entry. Those who defy the proclamation will be denied the opportunity to seek asylum. The change does not apply to individuals who enter between ports of entry on the Northern border or to unaccompanied children who enter without a parent. This asylum ban is illegal. U.S. law clearly states that any person who arrives in the United States—whether or not at a port of entry—can apply for asylum . Many individuals who enter between the ports of entry and seek asylum do so because their alternatives are limited. Some at imminent risk of grave harm are desperate to get protection from the closest possible place along the U.S. border—which may not be a port of entry. Although the proclamation directs asylum seekers to ports of entry, many who have tried to approach an official port of entry have been turned away or told that the port is full. This generates weeks-long waits in precarious conditions on the Mexico side of the border. Those who cannot afford the risk of waiting often cross between the ports and immediately present themselves to a DHS official to ask for asylum. Within hours of the proclamation’s announcement, advocates challenged the government’s issuance of the rules without providing the public advanced notice and an opportunity to comment on it, as well as the ways in which the asylum ban violates the clear letter of the law. It is legal to seek asylum . Congress clearly established that it is legal to do so between the ports of entry. No stroke of the presidential pen can change that. Instead of restricting asylum and placing people’s li...
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  • Article: H1B Changes in Adjudication Means Getting the Initial Filing Correct By Sheila Danzig

    H1B Changes in Adjudication Means Getting the Initial Filing Correct by Sheila Danzig If you, or if your client or employee is planning to file for H1-B status for FY2020, the process has changed. This coming season, you will still file the first week of April as always. The good news is no paperwork must be submitted until AFTER your employee or client is selected in the H-1B lottery. The troubling news is that CIS will now be denying petitions outright without issuing RFEs. Denials are much more difficult to overturn than RFEs. This change has lawyers talking about submitting the specialty occupation expert opinion letter right away with the rest of the paperwork to avoid an RFE that won’t come anymore. While every year at TheDegreePeople we urge H1-B hopefuls and their teams that the best answer to an RFE is to avoid it in the first place. This coming season it’s more important than ever to identify where your employee or client’s case is likely to run into trouble and include any additional evidence and documentation in the initial petition. The past two years, the rate of specialty occupa...
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  • Article: A Look Back at Immigration Under Sessions’ Justice Department By Tory Johnson for Immigration Impact

    A Look Back at Immigration Under Sessions’ Justice Department by Tory Johnson for Immigration Impact Jeff Sessions resigned as Attorney General on Wednesday, less than two years after the Senate narrowly confirmed him to the post. Sessions’ tenure as the nation’s highest-ranking law enforcement officer, while relatively short-lived, was a boon to anti-immigrant groups and Trump’s hardline approach to immigration. Sessions has a troubling history when it comes to immigration, one of many concerns raised during his contentious nomination process . Many worried that as Attorney General, Sessions would double-down on restrictions to legal immigration, harsh enforcement practices, and more broadly lend credibility to the positions espoused by the anti-immigrant organizations he is loyal to. Sessions has longstanding ties to extremist organizations—some of which have been identified as hate groups —with origins with white nationalist, eugenicist John Tanton. At one of his nomination hearings, for example, Sessions was questioned about his relationship with multiple anti-immigrant organizations. Rather than assure senators and the American people that he would fairly enforce anti-discrimination laws, Sessions deflected and refused to denounce his association with nativist groups. Looking back at the changes Sessions made while heading the Department of Justice (DOJ), the warnings and concerns raised during his nomination were warranted and, unfortunately, accurately predicted some of his damaging decisions . Here are just five ways Sessions weakened vital legal safeguards and components of the U.S. immigration system: 1. Sessions rolled back key protections for domestic and gang violence victims seeking asylum . In referring to himself a case involving a domestic violence survivor and asylum seeker, Sessions issued a decision that effectively made asylum inaccessible to many survivors seeking protection in the United States. 2. Sessions weakened judicial independence in immigration courts . On multiple occasions, Sessions publicly minimized the important role of due process and impartiality in the immigration court system. He created case quotas for judges and repeatedly encouraged them to “send a message” in their work, an approach that threatens to “undermine the ability of judges to make decisions based only on the facts and law in front of them.” 3. Sessions undermined the immigration court system he pledged to protect . Under his leadership, the court backlogs have swollen to 1.1 million, as old cases previously closed by judges were reopened and other mechanisms for case closures abandoned. 4. Sessions attacked asylum seekers and advocated for even less due process . Sessions implored Congress to pass laws that would implement dramatic changes to immigration law, further curtailing the limited protections available to asylum seekers and expanding fast-track deportations. 5. Sessions ramped up prosecutions of parents and certain immigrants, taking focus and resources away from prosecuting serious security threats. Finally, a ...
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  • Article: 2018 Midterms and Immigration: What Will Congress Do Next? By Royce Murray

    2018 Midterms and Immigration: What Will Congress Do Next? by Royce Murray for Immigration Impact While the pundits digest the lessons to be learned from the 2018 midterm elections, one takeaway is immediately clear: many Americans want Congress to resume its critical role of checks and balances on the Trump administration and its overzealous immigration agenda. Democrats’ control of the House of Representatives offers significant opportunity for the 116th Congress to hold the administration accountable for altering the immigration landscape. The Democratic majority can call oversight hearings requiring government officials to testify under oath on a wide range of issues. This could include family separation, the termination of Temporary Protected Status (TPS) designations, rescinding the Deferred Action for Childhood Arrivals (DACA) initiative, record-high use of immigration detention, or turning asylum seekers away at the border. Likewise, the House could probe other immigration issues, such as naturalization backlogs, increased denial rates of employment-based petitions, and intrusive vetting of benefits applicants that causes extensive delays. We could also see hearings on how the Department of Homeland Security (DHS) is proposing to change regulations, such as expanding the detention of families and children and penalizing immigrants for their lawful use of public benefits (called the “public charge” rule). With leadership comes subpoena power, which would enable House Democrats to compel the government to turn over important documents and policies which have been withheld from Congress and the general public. Doing so could usher in a new moment of much-needed transparency. House leadership may also push a more affirmative legislative agenda, such as moving a bill in early 2019 to legalize Dreamers and TPS holders, whose long-held status was ended by President Trump. Although litigation has temporarily kept those benefits on life support, the House may advance legislative solutions to allow them to remain in the United States with their families. With the Senate in Republican hands, it’s unclear whether and when such a bill would be considered, and what additional reforms might be included to get it through the chamber. Overall, the American public expressed fatigue with the divisive...
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    Last edited by ImmigrationDaily; 11-09-2018, 02:15 PM.

  • Article: Analyzing the Recent Trend of EB-5 Expedited Processing By Joseph Barnett

    Analyzing the Recent Trend of EB-5 Expedited Processing by Joseph Barnett Time is of the essence, especially in EB-5 petition and application processing. Despite the Immigrant Investor Program Office’s (“IPO’s”) increase in staff and the re-organization of its adjudication teams for more efficient processing in recent years, EB-5 adjudications remain undeservedly long. According to USCIS’ September 3, 2018 website screenshot, it takes an average of about 20-26 months for I-526 adjudications, and 19.5 – 25.5 months for I-924 adjudications. One potential way to speed up EB-5 adjudications is to request “expedited processing” by USCIS. Is Expedited Processing for Soon-To-Be Backlogged Countries Helpful? Expedited processing is of particular interest these days for Indian, and some South Korean, and possibly for Taiwan and Brazilian nationals looking to receive Form I-526 approvals before the U.S. Department of State (“DOS”) imposes a Final Action Date (i.e. a Visa Bulletin cutoff date), which DOS has informally projected will occur by the Summer of 2019. [1] There is a possibility that, through expedited processing, an EB-5 beneficiary could slide through to immigrant visa processing before a Final Action Date falls in FY 2019. Individuals lawfully in the U.S. may also be able adjust status and get work and travel authorization during this time. For this reason, the possibility of expedited processing of an I-526 or I-924 has become a powerful marketing tool. It is therefore critical for immigrant investors, regional centers, and U.S. developers to understand how to qualify for such a benefit. Expedite Criteria USCIS has established national expedite criteria [2] for all petitions and applications and will review all expedite requests on a case-by-case basis. Granted at USCIS’ sole and absolute discretion, there is no such thing as a “guaranteed expedite” in U.S. immigration law. The burden is on the petitioner to demonstrate that one or more of the following expedite criteria have been met: Severe financial loss to company or person; Emergency situation; Humanitarian reasons; A non-profit organization whose request is ...
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  • Article: Labor Certification: Mustn’t the US Job Applicant Be Able to Perform the Job Even If Qualified on Paper? By Cyrus Mehta and Sophia Genovese

    Labor Certification: Mustn’t the US Job Applicant Be Able to Perform the Job Even If Qualified on Paper? by Cyrus Mehta and Sophia Genovese PERM labor certification operates outside of the realm of typical real world recruitment efforts. Whereas employers in the real world normally look to hire the most qualified applicant, PERM requires employers to only assess whether a worker is minimally qualified for the position, regardless of whether they’re a good fit for the job. But even if a US worker applicant met the minimum requirements of the position, it is reasonable to expect this individual to perform the duties of the position. There are certain requirements that are so inherent to the position that it would be redundant to even list them in an advertisement. One example is the ability to speak English or to not be addicted to video games in the workplace so that the employee ceases to be effective. There is an inherent requirement for an applicant to properly perform the job. Can the employer lawfully reject the applicant if she or he cannot perform the job duties after the employer discovers this in an interview even though the inherently obvious requirement was not listed in the advertisement? As background, under Section 212(a)(5)(A)(i) of the Immigration and Nationality Act (INA), the Department of Labor (DOL) has the authority to determine whether there are insufficient US workers who are “able, willing, qualified, and available” to perform a job that has been offered to a foreign worker, and to ensure that the admission of the foreign worker will not adversely affect the wages and working conditions of those similarly situated. In order to demonstrate to the DOL that there are no “able, willing, qualified, and available” US workers to perform the proffered role, employers must go through the labor certification process, which requires, among other things, a good faith recruitment. 20 CFR § 656.17(e)(1)(i) describes the mandatory recruitment steps for professional occupations that an employer must take ahead of filing the ETA Form 9089, Application for Permanent Employment Certification. These include the posti...
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  • Article: The midterm elections are not about “immigration” By Allen Ladd

    Article: The midterm elections are not about “immigration” By Allen Ladd

    The midterm elections are not about “immigration” by Allen Ladd We vote on Tuesday. Campaign ads once again sound a drumbeat on the usual divisive issues: abortion, law and order, and immigration. It’s a shame so much money and energy goes into encouraging our baser instincts, with so little attention paid to honest statements of a candidate’s qualifications and his or her vision for better government and a productive, cooperative society. But truth has taken a back seat to untruth, or so it would seem. People prefer a good story to facts, and campaign handlers know it. President Trump, always ready to deliver rally his base, is on a whirlwind tour of the country. It’s a disturbing spectacle, to see these crowds cheer his low-blow messages of hate and violence. Trump employs a rhetorical gimmick that wins every time -- give the people something to fear, a threat to their well-being and security; then blame the other side and call them names; and close by assuring the audience them that only he and his party will stand up for the people. Trump spikes these speeches with unsupported, irresponsible accusations, and with violent language and imagery, and delights in slandering his enemies … and the audience loves it. It’s political theater in its lowest form. And now we find, no surprise, that the issue of “illegal immigration” is once again being rolled up the hill, like the proverbial boulder, as in ...
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  • Article: The Dwindling Migrant Caravan Marches On As Trump Glowers And Threatens By Alan Lee, Esq.

    The Dwindling Migrant Caravan Marches On As Trump Glowers And Threatens by Alan Lee, Esq. In our article last week, " Why the Migrant Caravan of 7000 (Whoops! 5000) Is Not Concerning ," we laid out hypothetical numbers that even if 4000 came in, only approximately 668 would be left at the end of six months under the Trump no-tolerance policy, and asked what was the crisis. This week we have more statistics on this Trump-made crisis from the military itself which on October 27th made an estimate that only 20% of the 7000 would even reach the border. That would mean only 1400, and under the no-tolerance policy in which only 16.7% of the previous migrant caravan were left in the US after six months, only approximately 234 would remain after that time. So again, what crisis? Currently the caravan is still about 500 miles away from the border and already down to about 3500. Over 3000 have already applied for asylum in Mexico and many others have gone home. The migrants are now strung out between the city of Córdoba in Veracruz and Mexico City, and the remnants are not expected to arrive for at least 2 weeks traveling between 20-30 miles per day. Such would also be the fate of 2 smaller caravans of 1000-1500 just entering Mexico. Yet in the face of the dwindling numbers, Mr. Trump continues to pour on the rhetoric saying that he would send up to 15,000 troop...
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