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    Published on 10-25-2016 01:26 PM

    Increases in Filing Fees, Just in Time for the Holidays


    You may want to hang on to some of that extra holiday spending money if you or a loved one needs to file for an immigration benefit in the near future. On October 24, 2016, the Department of Homeland Security announced that it is increasing filing fees for many of its immigration applications and petitions. According to DHS, all posted fee increases will go into effect on December 23, 2016. Any applications or petitions that are postmarked or filed on or after that date must include the ...

    Published on 10-25-2016 12:46 PM

    Asylum Granted To Woman In El Salvador Who Cooperated With Police And Who Was Viewed As "Property" By A Gang


    Cooperating with authorities can be the expression of a political opinion, and women viewed as property, because they earlier had suffered crime, can be a cognizable particular social group, ruled a Baltimore, Maryland Immigration Judge.

    IJ Phillip T. Williams granted asylum to a 34-year-old woman, in a 19-page decision dated May 2, 2011. A redacted version is available at Louise Trauma Center: www.louisetrauma.weebly.com, on the “Domestic Violence” page.


    Respondent witnessed members of the M-18 gang murder two young men. Police talked to her, in public, at the scene, one hour afterwards. Sometime later, 4 members of M-18 raped her. The next day, the rapists told her that she was “their woman.” Opinion at 5. She did not report any of this to the police.

    She moved 35 miles away, but the four rapists found her, pushed her into a taxi, and told the driver that she was “the ***** who had pointed the finger” at them with the police about the murder of the two young men. Id. at 7.Then they raped her. She did not report this to the police either, “because she had seen other cases in which people had gone to the police and had then been killed.” Id. at 6.

    She moved again, but two months later, the rapists grabbed her, and said she was “their woman” and “their property” and raped her again. ...

    Published on 10-24-2016 02:34 PM

    Update on Child Status Protection Act (CSPA) Lock-in Procedures for EB-5 Applicants


    One of the most heart wrenching consequences of the Chinese Visa waiting line is the ageing out of derivative children. Before the mainland China cut-off date was established in May 2015, there was a small window of opportunity to “seek to acquire” permanent residence status which was effective in “freezing” the child’s age. However, now with the waiting line exceeding 30 months and getting longer, even though many petitions are pending one to two years, inevitably the priority date or filing date is not “current” at the time of approval of the I-526 petition, so taking steps to “seek to acquire” are not effective in freezing the child’s age. Thus, unless the child was 17, or maybe 18 at the time of filing, most of the 20-year-old, and a lot of the 19-year-old children may age out.

    So while hundreds of I-526 petitions that were filed in 2014 and 2015 had teenage derivative children seeking lawful permanent residence with their parents, many who were approved but who failed to take steps before May 2015, will likely age out. This is because a derivative child must obtain a green card before turning 21 years of age. As the China visa backlog increases the likelihood that many of these children will “age-out” and will not be issued green cards is high.

    The Child Status Protection Act (“CSPA”) provides a solution allowing applicants to “freeze” the age of these derivative children and prevent them ...

    Published on 10-24-2016 02:29 PM

    Reviving The National Interest Waiver For International Entrepreneurs


    A proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a “significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.” Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

    • Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
    • Whose startup was formed in the United States within the past three years; and
    • Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:

    – Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;

    – Receiving significant awards or grants (at least $100,000) from certain federal, state, or local government entities; or

    – Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

    Under the rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entities in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, ...

    Published on 10-21-2016 02:16 PM
    Published on 10-20-2016 02:42 PM

    Strained Relationships In Business Immigration By Joseph P. Whalen


    If you are having difficulty viewing this document please click here.

    Reprinted with permission.

    About The Author

    Joseph P. Whalen Joseph P. Whalen is an independent EB-5 consultant, advocate, trainer and advisor.
    238 Ontario Street | #6 | Buffalo, NY 14207
    Phone: (716) 604-4233(716) 604-4233 (cell) or (716) 768-6506(716) 768-6506 (land-line) E-mail: joseph.whalen774@gmail.com

    Published on 10-19-2016 02:21 PM

    BALCA & BIA on Chevron versus Skidmore Deference


    If you are having difficulty viewing this document please click here.

    Reprinted with permission.

    About The Author

    Joseph P. Whalen Joseph P. Whalen is an independent EB-5 consultant, advocate, trainer and advisor.
    238 Ontario Street | #6 | Buffalo, NY 14207
    Phone: (716) 604-4233(716) 604-4233 (cell) or (716) 768-6506(716) 768-6506 (land-line) E-mail: joseph.whalen774@gmail.com

    Published on 10-18-2016 01:46 PM

    BALCA Holds That Failure To Disclose A ‘Wage Adjustment’ Is Not A Valid Denial Ground By Cora-Ann Pestaina


    Recently, in the representative case, Matter of Cognizant Technology Solutions US Corp, 2013-PER-01488 (BALCA, September 29, 2016), the Board of Alien Labor Certifications Appeals (BALCA) reversed 382 PERM denials finding, most significantly, that the employer’s failure to apprise US workers of its wage adjustment – a variable amount of money to be paid to the employee depending on where they’re geographically based – was not a valid ground for denial.

    In the representative case, the employer, in response to an audit notification, submitted a copy of an offer letter that was sent to a U.S. applicant. This offer letter stated a base salary of $117,707.20 and also described a “Cost of Labor Adjustment” or “COLA” as follows:

    As eligible, you may be paid a geographically based Cost of Labor Adjustment (COLA) of $250.00 per pay period for Washington, D.C., which is an annualized amount of $6,000. Your COLA on the 15th and last day of each month in accordance with the Company’s current payroll policies and practices, along with your regular base salary. [sic] If your work location changes, then there will be an adjustment to COLA effective the first day of work in your new work location. COLA is subject to regular review and may be increased or decreased, or replaced by another compensation component upon certain promotions.

    The Certifying Officer (CO) found that the employer’s Notice of Filing (NOF), which advised of a long and short term travel requirement, failed to also appropriately apprise US workers of the actual terms and conditions of employment. The CO found that the NOF violated 20 CFR §656.17(f)(3) which states that advertisements must “provide a description of the vacancy specific enough to apprise the U.S. worker of the job opportunity for which certification is sought” and 656.10(d)(4) which requires that the NOF “contain the information required for advertisements by §656.17(f).” The CO also found that the job order, Sunday newspaper advertisements, local newspaper advertisement, ...

    Published on 10-17-2016 03:35 PM

    Things I Learned from Charlie Oppenheim at the IIUSA 2016 EB-5 Industry Forum


    On October 11, 2016 at the IIUSA 2016 EB-5 Industry Forum, Mr. Charlie Oppenheim, Director of Immigrant Visa Control for U.S. Department of State (“DOS”) released critical information regarding the EB-5 program, including predictions regarding the Chinese waiting line.

    Mr. Oppenheim also previewed the November 2016 Visa Bulletin, which indicates that the cutoff date for Chinese EB-5 visa applicants under Chart A – Application Final ...

    Published on 10-14-2016 12:19 PM

    Fall into an H-1B Education Trap? Fix that RFE!


    The H-1B visa is a dual-purpose visa that allows foreign nationals to come work highly skilled jobs in the United States for long periods of time. This visa is highly desirable and laden with sneaky education traps that can tank your case, or your employee or client’s case in a hurry. H-1B eligibility requirements state that a beneficiary must hold a US bachelor’s degree or higher or its foreign equivalent, and to be a specialized occupation, ...

    Published on 10-14-2016 11:58 AM

    Immigration Reform Requires Congress Readjustment And Everyone’s Vote


    A Donald Trump presidency promises mass deportations, exclusion of most Muslims, rampant discrimination against foreign minorities, abandonment of America’s refugee programs, billions ($8-$12 by Trump’s estimate) spent to build a 50 foot wall across America’s Southwest border with Mexico (Mexico’s President Pena-Nieto says he won’t pay), and the emergence of Redneck Nation. Hillary Clinton has promised to make immigration a top priority when she becomes president. These are sufficient reasons for which pro-immigration Americans ...

    Published on 10-13-2016 03:30 PM

    Even the Government's Own Advisory Committee Wants to End Family Detention


    Calls to end the detention of immigrant children and their mothers seeking protection in the United States are not new. What is new is that the Department of Homeland Security (DHS) Advisory Committee on Family Residential Centers, created by DHS itself, has now added its voice to the chorus calling for an end to family detention.

    On June 24, 2015, DHS Secretary Jeh Johnson announced the establishment of the DHS Committee, known as the ACFRC (“the Committee”), which was created to advise Secretary Johnson and ICE Director Sarah Saldaña on the family detention centers. The Committee, comprised of subject matter experts with a wide range of expertise, conducted visits to all three family detention centers currently operating in Pennsylvania (Berks County) and Texas (Dilley and Karnes City) and spent countless hours analyzing the practice of family detention prior to reaching the conclusions outlined in its lengthy September 30, 2016 draft report.

    DHS tasked the Committee in March 2016 with developing recommendations for best practices at family detention centers, including in the areas of: education, language, intake and out-processing procedures, medical care, and access to legal counsel.

    In response to these tasks, the Committee requested information and documents from ICE, some of which ICE deemed “beyond the Committee’s scope.” Nonetheless, the Committee issued a thorough and well-researched draft report last week, demonstrating their comprehensive ...

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