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  • Article: EB-5 Roundup May 2019 “The Battle for EB-5 Survival—Part 1” By Mona Shah, Esq. and Hermione M. Krumm, Esq.

    EB-5 Roundup May 2019 “The Battle for EB-5 Survival—Part 1” by Mona Shah, Esq. and Hermione M. Krumm, Esq. As the EB-5 industry braces itself for the onslaught of a brutal Winter, efforts continue to bring an early Spring. For the first time in the history of EB-5, we are witnessing a unification of the industry, a confederacy against the common enemy. Some key players have taken a bow and left the stage or have shifted their focus from EB-5 to alternative routes, those left know that it must be a battle to the death, as no action would certainly signal the demise of the program as we know it. It would certainly help to have a dragon or two (or a way to teleport USCIS to the Wall) we know that the wheel can be broken if not by Valyrian steel, by sheer will power. Below is a round up of what’s been going on in EB-5: 1. Winter is Coming……The Regulation Progress As Winter approaches, and the OMB sneezes, EB-5 marketers rise up in a frenzy! The Spring 2019 OMB Unified Agenda of Regulatory and Deregulatory Actions was released yesterday, May 22, 2019, with updated timetables for the three EB-5 regulations in progress. RIN1615-AC07 EB-5 Immigrant Investor Program Modernization , with proposed changes to TEAs and the minimum investment amount, is still listed as Pending Review by OMB, but moves the date for Final Rule to May 2019. Considering the end of the month is fast approaching, it is hard to predict anything would happen before June 1. RIN 1615-AC11 Regional Center Program Regulation, with proposed changes to regional center designation requirements and process: the date for Notice of Proposed Rulemaking has been advanced to March 2020. RIN 1615-AC26 EB-5 Immigrant Investor Program Realignment , sets the date for Advance Notice of Proposed Rulemaking to March 2020. This is the new proposal brought to the industry’s attention last Fall and it aims to “solicit public input on proposals that would increase monitoring and oversight, encourage investment in rural areas, redefine components of the job creation requirement, and define conditions for regional center designations and operations”. Although there is no concreate plan published as of now, the proposal showcases the agency’s heightened interest in integrity, as confirmed by both USCIS Director L. Francis Cissna’s testimony on EB-5 before the Senate Committee on the Judiciary in June 2018 and his speech with the IIUSA directors during their closed-door meeting in October 2018. To briefly explain, the regulatory agenda, published in the fall and spring, is a semiannual summary of existing and projected regulations and completed actions of the Department of Homeland Security (DHS). [1] 2. The North, South, East and West Unite! --“The EB-5 Industry Rallies” On May 17, 2019, a confederacy of EB-5 stakeholder groups (including IIUSA, AILA, EB-5 Investment Coalition, Rural Alliance, Real Estate Roundtable and U.S. Chamber...
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  • Article: Asylum: What You Need to Know By Samantha Chasworth, Esq. and David Nachman, Esq.

    Asylum: What You Need to Know by Samantha Chasworth, Esq. and David Nachman, Esq. Are you afraid of returning to your home country? If so, you may be eligible for Asylum. Note that filing for Asylum is different if you are in Removal Proceedings. In this article, we will address filing for Asylum for those who are not in Removal Proceedings, otherwise known as affirmatively. Eligibility for Asylum is based on your past persecution, or fear of future persecution, on account of your race, religion, nationality, political opinion, or membership in a particular social group. This fear must be particular to you. It is not enough that your home country is generally unsafe. You must be able to explain why you are particularly unsafe. To file for Asylum, you will need to mail your documents to the USCIS Service Center. In this submission, you must include an application, Form I-589, as well as supporting documents. There is no filing fee. These supporting documents will need to corroborate your claim. This can be in the form of affidavits by others who have experienced similar treatment or those who are familiar with your situation. Other supporting documents include country condition reports, news articles, and photos, to name only a few. The more documents you can provide, the stronger your case can be. You must file for Asylum within your first year of entering the United States. If you file, even a day l...
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  • Article: Protecting The Green Card When Taking Extended Trips From The U. S.; Entitlement To 10 Day Or 60 Day Grace Periods For Nonimmigrant Workers; Public Charge Danger Signals By Alan Lee, Esq.

    Protecting The Green Card When Taking Extended Trips From The U. S.; Entitlement To 10 Day Or 60 Day Grace Periods For Nonimmigrant Workers; Public Charge Danger Signals by Alan Lee, Esq. 1. Protecting the green card. After obtaining the green card, permanent residents many times leave the U. S. for extended periods of time, placing their green cards in jeopardy during the inspection process when reentering the country. What is there to do except to hang back or try to somehow get into the line of the Customs and Border Protection (CBP) officer that one thinks will afford the most favorable inspection? The general rules are that a permanent resident should be maintaining a main domicile in the U. S., which generally means over 6 months of each year; that trips of over 180 days may subject the individual to harder inspection as an alien “seeking admission”; and that frequent trips of extended duration even if not over 180 days may still cause challenge to the right to keep the green card. What can one generally expect from CBP where extended absences are concerned? Usually the first step will be a warning and a notation in the passport of the person’s extended absence. The applicant may be instructed to apply for a reentry permit. The reentry permit allows a permanent resident to be outside the U. S. for up...
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  • Article: EB-5 Reform, Immigration Reform By Suzanne Lazicki

    Article: EB-5 Reform, Immigration Reform By Suzanne Lazicki

    EB-5 Reform, Immigration Reform by Suzanne Lazicki Today, IIUSA and others published a letter to the Senate and House Judiciary Committees laying out “consensus reform concepts” recommended for new EB-5 legislation. I’m heartened to see effort toward reform and reauthorization, and saddened by the letter’s content. Ideally, a consensus will appear to balance the interests of a variety of groups. I don’t see that here. Two recommendations particularly deserve input from a broader base of stakeholders: Recommended investment amounts. The letter proposes $800,000 minimum for investment in a TEA, and $900,000 for investment outside a TEA – replacing the current 50% discount with a 12% discount. Competitive advantage requires that a feature be both rare and valuable. The letter offers a concession that TEAs can be more strictly defined so as to make them more rare than now, but then redefines the incentive to make TEA designation less valuable. The net result is clear for projects located in genuinely distressed areas that struggle to complete against prosperous urban areas. (I don’t see expedited processing being an effective additional incentive, considering USCIS’s likely inability to deliver such benefit, or visa set asides for reasons discussed below.) The recommended investment amounts don’t look like an attempt to compromise with interests outside big cities, and also don’t look like a compromise with reform advocates. How likely is Congress to accept a proposal that not only hardly increases but would actually lower the standard EB-5 investment amount set back in 1990? The recommended investment amounts have the advantage that they’re feasible and wouldn’t destroy the market, but are too-obviously the status quo. Where’s the attempt to sell the recommendations to people who want to be seen voting for modernization and reform? Recommended visa set-asides. This is framed as an additional TEA incentive, but I am doubtful. The letter recommends setting aside 30% of visas annually for TEA investments, with the set-asides applying immediately to new I-526 filed after enactment, and not allowed to apply to petitions pending on the date of enactment. I foresee that this will act as a TEA incentive only for a short time, until the set-aside categories build up backlogs of their own. However, set-asides would allow raising new capital by taking visas from backlogged investors and offering them to new investors. The tens of thousands of people already in line for a visa would see the pool of visas available to them reduced by 30%, for the sake of having 30% of visas set aside in...
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  • Article: EB-5 Visa Backlogs: What Can the Indian & Chinese Nationals Do Next? By Hermione Krumm, Esq.

    EB-5 Visa Backlogs: What Can the Indian & Chinese Nationals Do Next? EB-5 Investment Voice with Guest Rohit Turkhud & Mona Shah Mona Shah & Associates Global Podcast Series Reported by Hermione Krumm, Esq. by Hermione Krumm, Esq. In light of the most recent and devastating revelations by Charlie Oppenheim, Chief of the Visa Controls Office at the US Department of State, on the EB-5 visa backlog for big contributor countries, Indian and Chinese nationals may feel more than ever that the path to U.S. citizenship is fraught with thorns and thistles. Is the door to the U.S. completely closed or closing for aspiring immigrant investors from India and China? What alternative solutions are there, spanning from nonimmigrant visas to immigrant visas, for foreign nationals that wish to come to the States legally and fast? In the 81st episode of the EB-5 investment Voice series - the first and only Podcast series that focuses on the US immigrant investor visa, EB-5 and foreign direct investment, Mona Shah, Esq. invites Rohit Turkhud, Esq. of Fakhoury Global to discuss the ramifications of the EB-5 visa backlog facing Indian and Chinese nationals and the available long-term leveraging visas to beat the backlog and get to the States. Rohit Turkhud is a 34-year veteran of U.S. immigration law practitioner with an extensive background in employment-based immigration. Rohit was a contributing author on The PERM Book and hosted a prime-time LIVE immigration show on a national network for six years. Is EB-5 still viable for an Indian or Chinese Investor?? To briefly recap, Charlie recently shared his predictions at the annual IIUSA conference in early May of 2019 that the State Department would impose a Final Action Date for India in June or early July of 2019. The worst-case scenario for Indian-born immigrant investors is a total wait time of 8.4 years to apply for ...
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  • Article: What to Expect and When to Expect it this H-1B Adjudication Season By Sheila Danzig

    What to Expect and When to Expect it this H-1B Adjudication Season by Sheila Danzig USCIS has completed selecting the 85,000 H-1B petitions to be adjudicated for approval for cap-subject petitions for FY 2020. Those selected that filed for premium processing may begin receiving notice this week as to their approval status with the anticipated date of completion set at June 4th. Case adjudication for those who did not file under premium processing will begin early to mid-June and often takes months. Last year, adjudication for FY 2019 – which began October 1 st, 2018 – extended into the 2019 calendar year. If you are unsure of whether or not your case was selected, check the account activity on the account of the check written for the H-1B processing fee. If it has been cashed, your case was selected in the lottery. When notice arrives of the status of the case, do not be alarmed if you receive an RFE or Denial. This is NOT the end of the road. Over the past few years the prevalence of H-1B RFEs spiked, especially for beneficiaries working entry-level positions, working as computer programmers, and working at wage l...
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  • Article: Learning O-pportunities: Strategies for O-1 Success By Feige M. Grundman and Alexander Magalli

    Learning O-pportunities: Strategies for O-1 Success by Feige M. Grundman and Alexander Magalli Amid the many challenges faced by visa applicants over the past year, there is some good news regarding employment-based petitions: 2018 data shows that approximately 88% of decisions on O-1 nonimmigrant visa petitions were favorable. The not-so-good news for O-1 hopefuls is that once United States Citizenship and Immigration Services (USCIS) denies a case, the unfavorable decision tends to stand. Of the 28 AAO decisions published in 2018, there were no sustained or remanded appeals. The lesson to be learned from these figures is clear: getting it right the first time and avoiding a Request for Evidence or Notice of Intent to Deny is both achievable and critical to long-term success.Despite unequivocally upholding denials from USCIS, AAO decisions on O-1 Extraordinary Ability petitions offer valuable insights that can inform and improve the planning and presentation of an O-1 petition. These published decisions not only identify the whys of an appeal denial, but they often provide discussion of the specific scrutiny, comparisons, and standards applied by USCIS adjudicators who make the initial determination on whether a case is approved, is issued a Request for Evidence, or is denied. Analysis of these decisions can thus be leveraged to create an outcomes-based roadmap that allows a broad spectrum of petitions to steer clear of the pitfalls and presumptions that produce unwanted results.Some of our most notable conclusions and observations from the past year’s batch of AAO O-1 decisions are as follows.Supporting Evidence MattersAnalysis of 2018 AAO decisions shows that one of the most common reasons for O-1 denial is a failure to show through evidence that a petitioner’s accomplishments and distinctions reach a level indicative of extraordinary ability and national acclaim. Multiple AAO decisions included language like:“The Petitioner, however, did not present any supporting evidence, such as substantial media coverage, showing the national or international significance of the awards or prizes.”or:“… while on appeal, the Petitioner maintains that its organization has a distinguished reputation, it does not provide documentation supporting that claim.”This consistent criticism confirms that it is not enough to merely tell USCIS that an accomplishment is significant, these claims must be supported by documentary or ...
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  • Article: Federal Court Allows Controversial ‘Remain in Mexico’ Policy to Continue By Katie Shepherd for Immigration Impact

    Federal Court Allows Controversial ‘Remain in Mexico’ Policy to Continue by Katie Shepherd for Immigration Impact The Department of Homeland Security (DHS) is resuming its controversial “Remain in Mexico” policy. This policy requires asylum-seeking Central American migrants who arrive at our Southern border to return to Mexico to await their immigration court hearings in the United States. A federal judge in California had previously blocked the policy’s implementation until the court fully considered the legal arguments raised in a lawsuit challenging the policy. However, just last week, the Ninth Circuit Court of Appeals granted the government’s request to resume the practice while the Circuit Court reviews the lower California court’s decision. DHS will continue to return Central American migrants to Mexico for the foreseeable future as the Circuit Court conducts its review. Over five thousand migrants have been subject to the policy, known officially as the “Migrant Protection Protocols,” since the U.S. government began the practice in late January 2019. The continuation of the policy signals the Trump administration’s unprecedented crackdown on asylum seekers and its ongoing disregard for the welfare of some of the most vulnerable individuals caught up in the U.S. immigration system. Countless reports have surfaced over the past few months of the dangerous conditions in Mexico and the border region in particular. The Migrant Protection Protocols began with a trickle of migrants at the Tijuana-San Ysidro port of entry just weeks after a 6,000-person migrant caravan arrived in Tijuana. The policy has since expanded to entry-points across the U.S.-Mexico border, notably in El Paso, Texas and Calexico, California. Meanwhile, migrants continue to flee towards the United States in search of safety. In April, border authorities stopped 109,144 migrants attempting to enter the country without documentation. The stated purpose of the policy—to deter future migration to the United States—is failing, and at great cost to those subject to the policy and trapped in Mexico. The numbers of migrants attempting to access the asylum process in the United States remain high as rampant violence and economic insecurity continue to grip parts of Mexico and the Northern Triangle countries of Guatemala, El Salvador, and Honduras. A report by Doctors Without Borders says that citizens from these countries “are murdered with impunity; kidnappings and extortion are daily occurrences. Non-state actors perpetuate insecurity and forcibly recruit individuals into their ranks and use sexual violence as a tool of intimidation and control.” In January, Mexico issued over 13,000 humanitarian visas to Central Americans seeking safety in Mexico. Within several weeks, under pressure from the United States, Mexico stopped issuing the visas . This left many Central American migrants with even fewer options and potentially more...
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  • Article: More Immigrants Requesting to Return to Their Countries of Origin Under Threat of Deportation By Kristin Macleod-Ball for Immigration Impact

    More Immigrants Requesting to Return to Their Countries of Origin Under Threat of Deportation by Kristin Macleod-Ball for Immigration Impact More immigrants facing deportation are requesting “voluntary departure” from the United States instead of fighting their cases in court. Voluntary departure is a process though which certain immigrants who the government is trying to deport in immigration court leave the United States without receiving a removal order. The number of applications for voluntary departure in fiscal year 2018 doubled from the previous year, according to new U.S. Department of Justice data . The increase in immigrants applying for voluntary departure began shortly after President Trump’s inauguration. Immigrants who receive voluntary departure orders are required to leave the United States, just like those ordered deported. However, they do not face all the same legal consequences—like bars to returning to the United States and the risk of lengthy criminal sentences if they come back without government authorization. If someone with a voluntary departure order does not leave the United States in a set time, they automatically receive a removal order. While the data doesn’t explain why more people are asking for voluntary departure, the increase comes at a time the Trump administration is making it harder to get a fair hearing in immigration court. For example, Department of Justice officials want more people to stay locked up during their immigration court proceedings and have made it more difficult for people to show they are entitled to asylum . Faced with more and more obstacles, some immigrants may give up on strong claims to stay in the United States to avoid spending months or years incarcerated in immigration detention while fighting deportation. Notably, not all immigrants facing deportation are eligible for voluntary departure. Many people who have criminal convictions are barred from receiving voluntary departure orders. For others, it is unaffordable: voluntary departure generally requires individuals to post a bond and pay for their own travel to their countries of origin. Individuals in these situations face...
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  • Article: Judge Issues Nationwide Preliminary Injunction in Unlawful Presence Case: What Does the Injunction Mean for Current F, J, and M Nonimmigrants? By Cyrus Mehta and Amani M. Abuhamra

    Judge Issues Nationwide Preliminary Injunction in Unlawful Presence Case: What Does the Injunction Mean for Current F, J, and M Nonimmigrants? by Cyrus Mehta and Amani M. Abuhamra In a promising development for F, J, and M nonimmigrants battling unlawful presence policy, a federal district court in North Carolina has granted a preliminary injunction preventing USCIS from enforcing its problematic August 9, 2018 policy memo . The August 2018 Policy would render students in F, J and M status unlawfully present thus subjecting them to 3 and 10 year bars from reentering the United States. The May 3, 2019 Guilford College et al v. Mcaleenan et al opinion, issued by the Honorable Loretta C. Biggs, is an extraordinary nationwide injunction prohibiting USCIS and DHS from “enforcing the policy set forth in the August 2018 Policy Memorandum, in all its applications nationwide, pending resolution of this lawsuit.” As previously discussed on our blog , the August 2018 Policy changed over 20 years of established practice by recalculating how ‘unlawful presence’ time is accrued for foreign students and exchange visitors. In doing so, USCIS blurred the line between established concepts of ‘unlawful presence’ and ‘unlawful status’, and instead made the two terms synonymous as it related to F, J, and M nonimmigrants. Prior to the August 2018 Policy, unlawful presence time would not begin to accrue until the day, or day after, a formal finding was found that the nonimmigrant was out of status. In contrast, under the new policy nonimmigrants would begin accruing unlawful presence time the moment any violation of status occurred. Further, nonimmigrants would not receive any formal notice of a status violation, and any past violation that had been discovered would have begun accrual of unlawful presence. This drastic recalculation of unlawful presence time put many who would be unaware of any status violations at risk of being subject to 3-year or 10-year bars of admission should they accrue more than 180 days of unlawful presence. See INA §212(a)(9)(B)(i)&(II). Mistakes due to technicalities, human error, miscommunication, or ambiguity of rules would cause a nonimmigrant to fall out of status and accrue unlawful presence without their knowledge and without opportunity to cure the violation. Plaintiffs in the Guilford College case sued DHS and USCIS alleging, among other things, that 1) USCIS had issued the August 2018 Policy in violation of the Administrative Procedure Act (APA) for failure to observe the APA’s notice and comment procedures, and 2) the August 2018 Policy conflicted with statutory language of the Immigration and Nationality Act (INA). The Court held that for the purposes of granting the Preliminary Injunction, the Plaintiffs had demonstrated a likelihood to succeed on their challenges to the policy, and found that the Plaintiffs were “likely to suffer irreparable harm absent entry of a preliminary injunction.” Promising decision for future litigation challenging USCIS policy memos For immigration lawyers fighting harsh USCIS policies and denials of petitions on behalf of their clients, the possible ramifications of Judge Biggs Opinion and Order are promising. The Court found the Plaintiffs likely to succeed in sho...
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