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    Published on 12-05-2017 02:41 PM

    This Week – And Month – Will Be Critical For The EB-5 Program

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    Funding for the federal government runs out at midnight on Saturday, Dec. 9. We have been here before: the EB-5 Regional Center Program’s ongoing authorization is dependent upon an extension through a Continuing Resolution (CR). On Saturday, the House Committee on Appropriations announced the introduction of a CR providing a clean extension of the program through December 22. Thus, everyone can expect a short-term extension and another few weeks of anxiety that will hopefully be resolved before Christmas, and then another extension for weeks or months thereafter. Lather, rinse, repeat, right?

    Not exactly, as the politics surrounding the CR have changed dramatically since the last go-round, with the potential that a different immigration program derails the CR and forces a government shutdown and thus a lapse of the Regional Center program​.

    Indeed, passage of the CR is in serious question over the issue of securing protection for individuals affected by President Trump’s cancellation of the Deferred Action for Childhood Arrivals (DACA) program, which we covered thoroughly in September . Despite Republican control of both legislative bodies and the White House, passing an extension is far from certain. While Republicans are now upbeat following passage of controversial tax reform legislation last week, passing the much less controversial CR may prove to be more difficult. Sixty votes are needed in the Senate. Several prominent Democrats, including Senators

    Published on 12-05-2017 02:30 PM

    EB-5 Investment Voice, Mona Shah & Associates Global Podcast Series

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    EB-5 Investment Voice is the only Podcast series that focuses on the United States immigrant investor visa, EB-5 and foreign direct investment. Mona Shah welcomes guests from the industry including: developers, regional center operatives, attorneys, legislators and politicians.

    The complex program that is EB-5 can confound investors, lawyers, and developers alike. In this episode, Osvaldo ‘Ozzie’ Torres, a sought-after EB-5 expert, joins Mona to discuss the ins and outs of administrative fees, explaining how they function to defray offering expenses and the requirements around disclosing how much of the fee is devoted to broker commission. They cover the role played by offering documents, alternatives to ...

    Published on 12-04-2017 03:34 PM

    Ninth Circuit to Hear Arguments in Challenge to Travel Ban 3.0 on December 6

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    On December 6 at 2 p.m . PST, the U.S. Court of Appeals for the Ninth Circuit will hear arguments in Seattle in the latest travel ban challenge in State of Hawaii v. Trump . The panel that will hear the case is Michael Daly Hawkins , Ronald Gould , and Richard Paez . The panel previously affirmed an injunction of an earlier version of the travel ban .

    As previously summarized on ImmigrationProf , U.S. District Court Judge Derrick Watson in Hawaii ...

    Published on 12-04-2017 03:26 PM

    Marry a Prince, become a Duchess, and Lose your American Citizenship? Could the Royal Wedding Create a Nationality Headache? Musings of an Immigration Lawyer

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    The recent announcement that England’s Prince Harry is engaged to American, Meghan Markle has generated worldwide excitement and interest. As immigration lawyers, it made us reflect on the issues relating to dual nationality.

    While Meghan’s marriage will most likely make her eligible for U.K. citizenship, she is also likely to be named the Duchess of Sussex. Will the U.K. demand that she renounce her U.S. citizenship? If she doesn’t renounce her U.S. citizenship, will her becoming a duchess be an expatriating act, whereby she could lose her U.S. citizenship?

    Article I, Section 9, Clause 8 of the U.S. Constitution, commonly referred to as the Emoluments Clause, states:

    No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

    It appears ...

    Published on 12-01-2017 03:46 PM

    White House Immigration Principles Are Released as DACA Deal Looms

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    The White House released its Immigration Principles and Policies late Sunday night, providing an outline of the Trump administration’s proposals on immigration. The principles were sent to Congressional leadership with a cover letter demanding these reforms be included in any legislation that addresses protection for Deferred Action for Childhood Arrivals (DACA) recipients.

    The seven-page document includes an expansive list of legislative demands that cover the border, interior of the country, and an overhaul of the U.S. immigration system. The principles, however, read like a wish list of ways to drastically curtail immigration and target immigrants.

    Though the list begins with the border wall—perhaps Trump’s most well-known and touted campaign promise—what follows is a litany of punitive demands.

    First, the principles discuss completion of a wall along the U.S.-Mexico border. This wish includes funding for the wall and associated infrastructure; authorizing the Department of Homeland Security (DHS) to use certain processing fees from immigration benefit ...

    Published on 11-30-2017 04:17 PM

    DOJ Threatens to Turn Immigration Judges Into ‘Assembly-Line Workers’

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    The Department of Justice (DOJ) is reportedly intending to implement numerical quotas on Immigration Judges as a way of evaluating their performance. This move would undermine judicial independence, threaten the integrity of the immigration court system, and cause massive due process violations.

    As it currently stands, Immigration Judges are not rated based on the number of cases they complete within a certain time frame. The DOJ – currently in settlement negotiations with the union for immigration judges, ...

    Published on 11-29-2017 04:02 PM

    Providing Hope for Chinese Investors

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    I have just returned from 2 weeks in China. Not surprisingly, there was not a lot of interest in discussing new EB-5 projects. Especially since the publication of the DHS Ombudsman’s report, the word is out that the waiting list for EB-5 is in excess of 10 years…and getting longer. The word is also out that a solution is not likely to come from EB-5 legislation.

    The options for the Chinese investor are limited, and we discussed all of them in the 7 cities that I visited. Here they are – – the new world for Chinese investors interested in immigrating to the U.S.:

    1. There is some interest in EB-5 (a small percentage of previous demand) on the part of investors who are willing to wait as long as necessary for their numbers to be reached. These investors generally have pre-teen children.
    2. There is keen interest in the option of investment in a “set aside” area (a rural or urban distressed ...
    Published on 11-29-2017 03:49 PM

    Breakthrough in Matter of V-S-G- Inc.: AC21 Beneficiaries Given Opportunity to Be Heard When I-140 is Revoked

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    The law generally recognizes that petitioners control their visa petitions. See 8 CFR 103.2(a)(3). A beneficiary cannot force a petitioner to pursue or maintain a visa petition. Therefore, USCIS communicates only with petitioners, not the beneficiaries, with respect to notifications such as Requests for Evidence, approvals, and even a Notice of Intent to Revoke (NOIR) of an approved petition. A beneficiary is not considered an affected party with legal standing with respect to filing appeals and motions. See 8 CFR 103.3(a)(1)(iii)(B).

    However, the traditional distinction between a petitioner, beneficiary and affected party breaks down when the law allows the beneficiary to leave the original petitioner and port to a same or similar job under INA 204(j) that was enacted via the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Although the intent of the original employer who filed the petition to employ the beneficiary may cease to exist, the original petition still remains valid when the beneficiary ports to a same or similar job with a new employer.

    The Appeals Administrative Office (AAO) has adopted Matter of V-S-G- Inc ., Adopted Decision 2017-06 (AAO Nov. 11, 2017), which now recognizes that beneficiaries who have ported to a same or similar to the job under INA 204(j) are entitled to receive notices pertaining to the potential revocation of their approved employment-based I-140 visa petition. The USCIS also issued accompanying guidance in the form of a Policy Memorandum on November 11, 2017. We previously advocated for this outcome here , here and here , and welcome the AAO’s recognition that beneficiaries who have ported are entitled to notification and the opportunity to be heard when their approved I-140 petitions are in jeopardy.

    The ability for a foreign national worker to move to a new job is crucial when there is a delay in the adjudication of the I-485 application for adjustment of status. If an I-485 application has been pending for more than 180 days, under INA 204(j), the I-140 ...

    Published on 11-28-2017 03:03 PM

    Beyond the EB-5 Visa Waiting Line: E-2 Visa Options for Mainland-Chinese Entrepreneurs

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    The EB-5 visa waiting line for mainland-Chinese has become so long that many Chinese nationals are now seeking other ways to enter the U.S. often so their children may study at U.S. universities. Some are investigating obtaining U.S. permanent residence through the EB-1C category for multinational managers or executives (or the related nonimmigrant L-1 visa). Other have decided to explore nonimmigrant E-1 treaty trader, or E-2 treaty investor visas. There are 80 countries with treaties, but mainland China and India do not qualify (although citizens of Pakistan and Taiwan do qualify). For the E-treaty visa, the applicant must have obtained citizenship from an E Treaty Country .

    One country that has become popular for E-2 treaty purposes is Grenada because of its “Citizenship by Investment Program”. In this scenario, obtaining an E-visa is a two-step process: First, the person needs to qualify for the Grenada passport, and then, the person must make an investment in the U.S. to qualify for a U.S. E-2 visa.

    Here are five important things to know about the E-2 visa option.

    1. Grenada Citizenship . The first step for a mainland-Chinese national is to obtain Grenada citizenship through the
    Published on 11-27-2017 04:01 PM

    Trump’s Nominee for DHS Secretary Commits to Continuing Kelly’s Legacy on Immigration Enforcement

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    The nominee to be the next Secretary of the Department of Homeland Security (DHS), Kirstjen Nielsen, had her confirmation hearing before senators on Wednesday, during which she promised to largely carry on the legacy of her predecessor, General John Kelly.

    This included limiting President Trump’s plans to build a wall along the U.S.-Mexico border . Echoing Kelly’s stance, Nielsen emphasized that “there is no need for a border wall from sea to shining sea.” She told the Senate Homeland Security and Government Affairs Committee (HSGAC) that the border should instead be fortified with additional technology between ports of entry, fencing, and personnel.

    “We’re not going to build a wall where it doesn’t make sense…” Nielsen affirmed.

    Nielsen, who currently serves as White House Deputy Chief of Staff, was nominated in October 2017 by President Trump to replace Kelly as he transitioned to his role as White House Chief of Staff. Nielsen has worked in the homeland and national security sectors for more than two decades, having ...

    Published on 11-24-2017 11:10 AM

    Immigration Policy Under President Trump: Reducing the Number of Noncitizens -- Legal and Undocumented -- in the US

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    It has been almost 10 months since President Donald Trump was inaugurated. Not surprising given his campaign's focus on immigration, President Trump has taken a number of major initiatives on immigration enforcement. In my estimation, a central organizing principle of his administration immigration measures has been to reduce the number of noncitizens, legal immigrants as well as undocumented ones, in the United States. Maria Sacchetti and Nick Miroff for the Washington Post refer to the measures as "the wall that no one can see."

    220px-Mexico-US_border_at_Tijuana

    The now iconic wall along the U.S./Mexico border wall was a staple of the Trump campaign events and has been one of his high profile policy initiatives. We will see whether a wall will in fact be built. Trump's endorsement of building a wall has been met with cheers in some circles. The stated goal of the wall is to decrease undocumented immigration from Mexico.

    The various iterations of the "travel ban" or "Muslim ban" made travel from a number of predominantly Muslim nations difficult and uncertain for a time. The ban, combined with "extreme vetting" of Muslim noncitizens seeking to enter the United States, is designed to reduce migration.

    The interior and border security immigration enforcement orders issued shortly after the inauguration, included calls for more enforcement officers, punishment of "sanctuary cities," expanded detention through the end of "catch and release," greatly expanded expedited removal (that some might characterize as summary removals), and much more.

    In recent weeks, President Trump has ended the Temporary Protected Status of tens of thousands ...

    Published on 11-22-2017 05:05 PM

    Matter of G- Inc.: Clarifying the Role of the Function Manager Under the L-1 Visa

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    The Administrative Appeals Office (AAO) recently adopted a decision, Matter of G- Inc ., Adopted Decision 2017-05 (AAO Nov. 8, 2017), providing important guidance to U.S. employers who transfer function managers under the L-1 intracompany visa. The L-1 visa allows a U.S. employer to transfer an executive or manager (L-1A) or a worker with specialized knowledge (L-1B) from a foreign subsidiary or affiliate.

    As corporate structures are changing from hierarchical to flat in a globally interdependent world, the role of the function manager, who manages a function rather than people, has become increasingly relevant under L-A visa classification. A flat organization has few or no levels of management between management and staff level employees. The flat organization supervises employees less while promoting their increased involvement in the decision-making process. Building upon momentum gained from its decision in Matter of Z-A- , Adopted Decision 2016-02 (AAO Apr. 14, 2016), the AAO in Matter of G- held that:

    (1) To support a claim that a beneficiary will manage an essential function, the petitioner must establish that the function is a clearly defined activity and is core to the organization.

    (2) Once the petitioner demonstrates the essential function, it must establish that the beneficiary’s position meets all criteria for “managerial capacity” as defined in 101(a)(44)(A) of the Act. Specifically, it must show that the beneficiary will: primarily manage, as opposed to perform, the function; act at a senior level within the organizational hierarchy or with respect to the function managed; and exercise discretion over the function’s day-to-day operations.

    Under its prior decision in Matter of Z-A-, the AAO held that an L-1A intra-company manager who primarily manages an essential function can also be supported by personnel outside the United States within an ...


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