Will EB-5 Regulation Ever Come Out? Why More H-2B’s When America Is “full”? New Form Changes – Make Sure To Use The Right Forms To Avoid Rejection

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The above 3 topics question why certain events are happening or not happening, and remind or inform of new immigration forms and deadline dates for their use.

1. Will EB-5 regulation ever come out? When Mr. Trump’s White House wants to move on regulations, he can make it happen fast. Witness one of his pet peeves, the H-1B program, and his attempts to fashion it more to his liking. The proposed regulation for the preregistration of organizations to file H-1B petitions and to flip-flop the selection process cap to favor Masters degree holders (“Registration Requirements for Petitioners Seeking to File Cap Subject H-1B Petitions”) came out on December 3, 2018, and was finalized on January 31, 2019, not even 2 months later. In the meantime, the proposed EB-5 rule (“EB-5 Immigrant Investor Program Modernization ”) which would raise required investment amounts dramatically and cut out the tricks of gerrymandering/cobble-stoning areas together in illogical ways to justify development in affluent districts including Midtown Manhattan when EB-5 law only allows targeted employment areas (TEAs) to exist in high unemployment and rural areas, has been slow walked almost to death by the Trump administration. The proposed rule came out over 2 years ago on January 31, 2017, and was only passed to the Office of Management and Budget (OMB) for study on February 22, 2019. The inordinate delay has been so concerning that it occasioned a March 11, 2019, formal communication to the Department of Homeland Security (DHS) Secretary and the Acting Director of the OMB by Senators Charles Grassley (R), Chairman of the Senate Finance Committee, and Patrick Leahy (D), Vice Chairman of the Senate Appropriations Committee, urging the Trump administration and in particular OMB to finalize and publish the rule in the national interest. Why the slow walk since Mr. Trump became President? Could it be that he is a real estate man and the real estate industry has seen great benefit through EB-5 investments in affluent areas providing cheap financing that it could not otherwise obtain? Could it be that his son-in-law Jared Kushner’s family has benefited greatly from the EB-5 program in its present state? If none of these reasons apply for why this proposed regulation has taken so long to be finalized, then it should be at this stage without further delay.

2. Why more H-2B’s when America is “Full”? During a Southwest border visit last week, Mr. Trump said, “Can’t take you anymore… Our country is full… Can’t take you anymore… So turn around. That’s the way it is.” At the same time, both DHS and the Department of Labor stated that they intended to issue another 30,000 H-2B temporary work visas through September 30 on top of the present annual quota of 66,000. H-2B visas are generally given to those individuals with less skills, and most of the jobs could be fulfilled by many of the migrants attempting to enter the U. S. and plead for asylum due to the inhumane conditions in their home countries. Typical H-2B jobs are seasonal like waiters, maids and cooks and groundskeepers, meat, poultry, and fish cutters and trimmers, animal caretakers, and counter attendants for cafeterias and food concessions. Could it be that America is really not “full”? As you drive through this great land, anyone can see that there are large stretches of open territory and spaces between towns and cities with hardly anyone. For a real look at “full”, we can look at Japan with a population of 127 million, more than 3 times the 40 million population of California which has similar land size; or even China with a population of 1.34 billion, over 4 times the 311 million population of the United States which has only 2% less land. So why give the extra numbers if Mr. Trump says that the country is really “full”? Could it be that he knows the country is not “full”, but that he wants a large guest worker program in which the workers are bused in and bused out or flown in and flown out without a chance of obtaining permanent status? It must be noted that he is deeply familiar with the intricacies of the H-2B program, having employed a large number in all of his hotel and other hospitality properties. He knows that the prominent feature of the program is that the job itself must be temporary and so cannot serve as a basis for PERM labor certification, the most important step in most employment-based green card applications. A large guest worker program in lieu of other forms of work that might serve as the basis for permanent residence would ensure that the workers would never truly become part of the fabric of this country as permanent residents or citizens with voting power.

3. Make sure to use the right forms – For long stretches of time, legacy INS/U.S.C.I.S. forms never changed. The agency, its employees, and the public were very comfortable dealing with the same forms year after year. The Paperwork Reduction Act of 1980 also discouraged government bureaucracy from expanding forms and using more paper. That has changed, and U.S.C.I.S. is in the throes of taking every opportunity these days to use as much paper as possible in expanding forms and form instructions ad infinitum. Some forms change on almost a yearly basis. Use of old forms when U.S.C.I.S. has declared them obsolete results in the rejection of petitions and applications. In time sensitive petitions and applications, rejection can be deadly. Current form changes that readers should be aware of are the following:

· I-290B – As of 1/20/19, only the 5/17/18 version is accepted.

· I-539 – As of 3/22/19, only the 2/4/19 version is accepted.

· I-129F – As of 4/29/19, only the 11/7/18 version will be acceptable.

· I-131A – As of 4/29/19, only the 2/13/19 version will be acceptable.

· I 191 – As of 4/29/19, only the 2/13/19 version will be acceptable.

· I-130 – As of 5/6/19, only the 2/13/19 version will be acceptable.

· I-134 – As of 5/6/19, only the 2/13/19 version will be acceptable.

· I-129 – As of 5/20/19, only the 1/31/19 version will be acceptable.

Readers should also be aware that U.S.C.I.S. has lately even incorporated significant changes amounting to differing interpretations of law in some form instructions, and so current instructions should certainly be read to ensure complete understanding of any hidden dangers in completing and filing the forms.

Our next article will cover which filing fee modes of payment are allowed or disallowed and at which offices, how people are being defrauded by U.S.C.I.S. look-alike scams, and why organizations that do not use lawyers for H-1B petitions should do so now.


About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in theBar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2018), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.

This article © 2018 Alan Lee, Esq.