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    Published on 08-13-2015 02:56 PM

    Immigration positions of Republican presidential hopefuls, with comments

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    It was not possible to do a complete summary of the views of the republican hopefuls in a short article. I have chosen a view representative comments for each that reflect his attitude towards immigration.

    DONALD J. TRUMP

    Real estate magnate, television personality, politician, and author. Chairman of the Trump Organization and founder of Trump Entertainment Resorts

    Trump has made a series of inflammatory remarks, such as, "The Mexican Government is forcing their most unwanted people into the United States. They are, in many cases, criminals, drug dealers, rapists, etc." When pressed during the debate to reveal his basis for this ...

    Published on 08-13-2015 02:49 PM

    3 Reasons Why Your Client or Employee Got an RFE and How to Deal With It

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    Today, around 25% of all H1B applications are met with RFE responses. Since immigration is a hot topic in the political sphere, statutes surrounding the details of what qualifies individuals to come to, live in, and especially to work in the United States are changing rapidly. This has led to confusion and misconceptions about what evidence and documentation needs to be provided, as well as what educational standards must be met for a ...

    Published on 08-12-2015 03:24 PM

    OPEN CRIMINAL CASES DURING I-485 ADJUSTMENT OF STATUS APPLICATIONS

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    What happens when an applicant applying for adjustment of status to permanent residence through form I-485 commits a crime before or during the time that the I-485 is being considered by U.S.C.I.S. and does not have a disposition? This is one of those questions that has different answers depending upon the discretion of the immigration office. In the recent AILA/Chicago Field Office Questions of 4/2/15, AILA asked whether the interviewing officer would hold open the I-485 until the criminal case was resolved or administratively close the I-485 and reopen it ...
    Published on 08-12-2015 03:16 PM

    Comments to the Draft Policy Memorandum of August 10, 2015

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    On August 10, 2015, USCIS issued a draft Policy Memorandum (the “Draft Memo”) to provide guidance on the requirements of job creation and sustaining the investment. Below, I comment on the items addressed.

    1. 1. Commencement of the Two Year Period for Job Creation at the I-526 Stage. USCIS affirmed its standard that the two (2) year period for jobs creation at the I-526 stage is deemed to commence six (6) months after adjudication. The six (6) month period is an arbitrary number that supposedly contemplates the time period required to either consular ...

    Published on 08-12-2015 03:04 PM

    The Regional Center Loan Model Chinese Conundrum

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    The draft Policy Memorandum published by USCIS on August 10th begins to articulate the boundaries and timelines that exist in the reality of the EB-5 world . With retrogression now a structural part of the EB-5 landscape for Chinese investors (barring Congressional action), the timelines between the initial investment in a New Commercial Enterprise, the subsequent admission to the United States as (or adjustment of status to) a conditional lawful permanent resident (green card holder) and the adjudication of the immigrants’ petition to remove the conditions (Form I-829) have been greatly extended. Now, instead of the presumed six month delay between I-526 approval and admission/adjustment is more likely to be 1-2 years and may be longer. That, in turn, pushes the I-829 filing ...

    Published on 08-11-2015 03:08 PM

    DACA at the Three-Year Mark: High Pace of Renewals, But Processing Difficulties Evident

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    Published on 08-11-2015 03:02 PM

    EB-5 SUIT FILED ON WHETHER INVESTORS’ LOANS FROM OWN COMPANIES WERE LAWFUL SOURCE OF FUNDS

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    On June 23, 2015, suit was filed in the U. S. District Court for the District of Columbia by 2 EB-5 applicants, Huashan Zhang and Masayuki Hagiwara, whose cases were denied by U.S.C.I.S. on the basis that they were not personally liable for the loans that they received from their own companies as the loans were not collateralized by their personal assets. They complained in Huashan Zhang v. U.S.C.I.S., 1:15-cv-00995, that U.S.C.I.S. denied them through a new collateralization rule for loans which was effected without ...

    Published on 08-11-2015 02:43 PM

    BALCA, WHAT HAVE YOU BEEN UP TO SO FAR IN 2015?

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    I’m sure all PERM practitioners would agree that it’s always good (in fact necessary!) to check in with the Board of Alien Labor Certification Appeals (BALCA). One never knows what issues BALCA will comment on next and as we navigate those often treacherous PERM waters, we need all the help we can get! Here are a couple of recent BALCA tidbits.

    BALCA applies Matter of Symantec

    In Computer Sciences Corporation, 2012-PER-00642 (Jul 9, 2015) the Certifying Officer (CO) denied the PERM on the grounds that the Employer’s inclusion of the language, “Willingness to travel; may require work from home office” in its recruitment advertisements posted on its website and on a job search website, constituted terms and conditions of employment that exceeded those listed on the ETA Form 9089 in violation of 20 C.F.R. §656.17(f)(6). 

    As background, employers recruiting under PERM for a professional position must complete the mandatory recruitment steps required by 656.17(e)(1)(i) as well as three additional recruitment steps provided in 656.17(e)(1)(ii).

    The Employer’s advertisements posted on its website and on the job search website were in satisfaction of two of the three required additional recruitment steps. In reversing the CO’s decision, BALCA simply cited its en banc decision in Symantec Corp., 2011-PER-1856 (July 30, 2014) which I previously blogged about in greater detail here, and held that 656.17(f) does not apply to additional forms of recruitment. The Employer dodged a bullet here.

    BALCA finds that Employer’s letter was within the record and can be considered on appeal

    Once a PERM is denied, if the Employer files a motion for reconsideration, under 656.24(g)(2), this motion can only include (i) documentation that the Department actually received from the employer in response to a request from the CO to the employer; or (ii) documentation that the employer did not have an opportunity to present to the CO, but that existed at the time the PERM was filed and was maintained by the employer to support the PERM ...

    Published on 08-10-2015 03:37 PM

    H-1B RECAPTURE OF TIME USING CBP HISTORY

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    Under present law, U.S.C.I.S. allows the recapturing of time for every day that the beneficiary is not in the United States for purposes of H-1B specialty occupation alien and L-1 intra-company transferee eligibility. H-1B holders are held to a limit of 6 years, L-1A holders (executives and managers) to 7 years, and L-1B holders (employees of specialized knowledge) to 5 years. AILA suggested in the 5/13/15 teleconference with SCOPS that the Customs and Border Protection (CBP) database can be a very useful resource to evidence days spent outside the U. S. and asked whether the CBP travel ...

    Published on 08-10-2015 03:24 PM

    How Good Is the Best Argument Against Immigration?

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    Volumes of research and centuries of experience do not bear out claims that immigrants “take our jobs,” don’t learn English, and fail to assimilate. But the idea that immigrants could vote to upend our relatively free economy has an air of credibility. It is arguably the best argument against liberalizing immigration.

    Although immigrants are a boon to our economy and their children do reliably assimilate, immigrants could kill the goose that lays the golden eggs by undermining our free market institutions. In other words, will they come here, become citizens, and vote socialist, populist, or worse?

    Fortunately, there is little evidence that immigrants make countries less free.

    The United States has the 12th freest economy in the world, but most immigrants are from societies that are markedly less free than ours: the top three immigrant-sending countries in 2013 were China, India, and Mexico, ranked 115th, 110th, and 91st, respectively. If immigrants bring the impoverishing institutions of their homelands with them, the long-run economic impact of immigration could turn negative.

    In a recent academic paper, my coauthors and I compared economic freedom scores with immigrant populations across 100 countries over 21 years. Some countries were majority immigrant while some had virtually none. We found that the larger a country’s immigrant population was in 1990, the more economic freedom increased in the same country by 2011. The immigrant’s country of origin, and whether they came from a poor nation or a rich one, didn’t affect the outcome.

    These results held for the United States federal government but not for state governments. States with greater immigrant populations in 1990 had less economic freedom in 2011 than those with fewer immigrants, but the ...

    Published on 08-10-2015 03:09 PM

    AAO ACKNOWLEDGES SOME TRUISMS IN and OF CITIZENSHIP CLAIMS

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    Published on 08-07-2015 01:21 PM

    H-1B LOTTERY RECAP AND PROCESSING EXPLANATION

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    U.S.C.I.S. gave interesting insights on its procedures during H-1B lottery season in its 5/13/15 teleconference agenda meeting of the American Immigration Lawyers Association (AILA) and its Service Center Operations (SCOPS) team. It said that of the 233,000 submissions, 50,000 were Masters (U. S. Masters cap cases) and that premium processing requests were approximately the same as last year. It also gave a good idea as to how it handles the many petitions it received – that once cases are submitted, petitions are not screened upon initial receipt pre-lottery ...


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