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    Published on 10-08-2013 08:29 AM

    OCAHO Breaking New Ground

    Bruce Buchanan

    [Editor’s Note: Today’s blog is authored by Bruce E. Buchanan, an Attorney at the Nashville office of Siskind Susser, P.C.]

    OCAHO has been busy issuing an incredible rate of decisions on I-9 penalty cases, making it nearly impossible to keep up.  Some of the latest decisions, though, are worth highlighting in today’s article.

    Does I-9 Liability Follow the Owner Always?

    United States v. The Red Coach Restaurant (Aug. 2013) involved an employer, Red Coach, operating a bed and breakfast which received a Notice of ...

    Published on 10-07-2013 03:20 PM

    Government Shutdown Affecting Immigration Related Government Functions

    by Jared Leung

    [Editor’s Note: This update is provided by Jared C. Leung, Director of the Immigration Practice Group at Fennemore Craig, P.C. in Phoenix, Arizona.  Republished with permission.]

    This is a quick update of the impact of Federal Government Shutdown on various immigration related government functions / agencies.  Please note that the situation is fluid and the various agencies are updating their status on a regular basis.  Effective October 1, 2013, please note the following:

    USCIS (US Citizenship and Immigration Services)

    • USCIS field office operation – Opened
    • All interviews are carried out
    • Ombudsman Office – Closed
    • For further information, please click here.
    • [E-Verify Program: visit our sister blog for more details here.]

    DOS (Department of States (Embassies and Consulates))

    • Embassies and Consulates are open for regular visa application and U.S. citizen services (passport)
    • Stateside passport application – No report that this has been affected
    • See: www.state.gov

    EOIR & BIA (US Immigration Court and Appeals System)

    • Immigration Courts – Continued for detained cases. Courts ...
    Published on 10-07-2013 03:12 PM

    DOL Destroying §245(I) Confirmation System; Shutdown Effect On Immigration Related Agencies; Recognition Of Parental Rights Allowing Some Removed Aliens To Return To The U.S. For Limited Purpose; Permanent Bar For False Claim Of U. S. Citizenship Modified; Perm Audit Response Must Cover All Issues.

    by Alan Lee, Esq.


    1. The Department of Labor (DOL) gave notice on September 26, 2013 that after the 30 day period of public notice and review, the Office of Foreign Labor Certification (OFLC)'s revised retention schedule was approved by the National ...
    Published on 10-07-2013 02:38 PM

    College Leaders Know Immigration Reform Will Help Their Students and the Country

    by Amanda Peterson Beadle

    4608963722_7c88e503f8_zThe U.S. has long been a destination for students around the world. They come to attend the nation’s colleges and universities, and many wish to stay to pursue job opportunities and make their lives here, but our immigration system throws up barriers at every step of the way. Foreign students add billions of dollars to the U.S. economy each year, and those who remain are more  likely to start businesses and contribute to innovation than their American counterparts. Right now, as the economy struggles back to life, it’s hard to imagine letting such opportunities go to waste. Growing frustration with this dilemma is leading more and more college presidents, professors, and higher education administrators across the country to declare their support for improving the nation’s immigration policies. 

    Most recently, college and university leaders sent letters to their congressional representatives to call for action on immigration reform legislation so that the country can remain competitive globally. The presidents, chancellors, and deans from colleges in 10 states—Arkansas, Colorado, Florida, Louisiana, New Jersey, New York, Oklahoma, Utah, Tennessee, and Utah—signed onto the letters released by the Partnership for a New American Economy. “We ask you to work together to develop a comprehensive, bipartisan solution ...

    Published on 10-04-2013 09:40 AM

    Fundamentals for Establishing “New Offices” in the Intracompany Transferee Context

    by Joseph Whalen

    INTRODUCTION

    The “L” non-immigrant classification is for intracompany transferees who are either employed in a managerial or executive capacity (L1-A) or who possess certain specialized knowledge of the employer’s products, processes, or procedures (L1-B); and such knowledge can normally be considered as proprietary information and thus confined to employees of that company.

    INTRACOMPANY TRANSFEREE DEFINED

    This bifurcated non-immigrant worker category is statutorily defined at INA §101(a)(15)(L); 8 USC §1101(a)(15)(L) as follows:

    §1101 [INA 101]. Definitions

    (a) As used in this chapter—

    * * * * *

    (15) The term “immigrant” means every alien except an alien who is within one of the following classes of nonimmigrant aliens—

    * * * * *

    (L) subject to section 1184(c)(2) of this title [INA section 214(c)(2)], an alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien spouse and minor children [1] of any such alien if accompanying him or following to join him;

    Additional definitions come into play when adjudicating requests for classification as an intracompany transferee, a manager, an executive or in possession of specialized knowledge. Let’s explore some of the key legal definitions involved from the statute and regulations.

    THE “L” PETITIONER

    For purposes of qualifying the petitioner, a business relationship must be established between the foreign employer and the U.S. employer (petitioner) and meet the applicable legal definitions. See INA § 101(a)(28) [8 USC § 1101(a)(28)].

    (28) The term “organization” means, but is not limited to, an organization, corporation, company, partnership, association, trust, foundation or fund; and includes a group of persons, whether or not incorporated, permanently or temporarily associated together with joint action on any subject or subjects.

    As noted in the L classification definition, the non-immigrant worker must be coming to the U.S. to work for “ the same employer or a subsidiary or affiliate thereof”.

    Turning momentarily to a sister section of the statute which is also in play, we will find more information than desired but also, another key definition. However, in addition to that definition of “specialized knowledge” we find three important terms, in subparagraphs (F), that are not statutorily defined. They are: affiliate, subsidiary, or parent. These three terms among others will be discussed further below the following excerpt from the statute.

    §1184. Admission of nonimmigrants.

    * * * * *

    (c) Petition of importing employer

    * * * * *

    (2)(A) The [Secretary of Homeland Security]shall provide for a procedure under which an importing employer which meets requirements established by the [Secretary of Homeland Security]may file a blanket petition to import aliens as nonimmigrants described in section 1101(a)(15)(L) of this title instead of filing individual petitions under paragraph (1) to import such aliens. Such procedure shall permit the expedited processing of visas for admission of aliens covered under such a petition.

    (B) For purposes of section 1101(a)(15)(L) of this title, an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.

    (C) The [Secretary of Homeland Security]shall provide a process for reviewing and acting upon petitions under this subsection with respect to nonimmigrants described in section 1101(a)(15)(L) of this title within 30 days after the date a completed petition has been filed.

    (D) The period of authorized admission for—

    (i) a nonimmigrant admitted to render services in a managerial or executive capacity under section 1101(a)(15)(L) of this title shall not exceed 7 years, or

    (ii) a nonimmigrant admitted to render services in a capacity that involves specialized knowledge under section 1101(a)(15)(L) of this title shall not exceed 5 years.

    (E) In the case of an alien spouse admitted under section 1101(a)(15)(L) of this title, who is accompanying or following to join a principal alien admitted under such section, the [Secretary of Homeland Security]shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an “employment authorized” endorsement or other appropriate work permit.

    (F) An alien who will serve in a capacity involving specialized knowledge with respect to an employer for purposes of section 1101(a)(15)(L) of this title and will be stationed primarily at the worksite of an employer other than the petitioning employer or its affiliate, subsidiary, or parent shall not be eligible for classification under section 1101(a)(15)(L) of this title if—

    (i) the alien will be controlled and supervised principally by such unaffiliated employer; or

    (ii) the placement of the alien at the worksite of the unaffiliated employer is essentially an arrangement to provide labor for hire for the unaffiliated employer, rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.

    PETITIONER-RELATED BUSINESS-TYPE DEFINITIONS

    As noted above, for purposes of qualifying the petitioner, a business relationship must be established between the foreign employer and the U.S. employer (petitioner). There will be more on that subject later. In that the business ...

    Published on 10-04-2013 09:18 AM

    Analysis of the Final EB-5 Policy Memorandum - What's New

    by Mona Shah and Yi Song

    EB-5 / SEC news

    SEC have charged a Texas-based Regional Center for Securities Fraud


    Mona Shah, Esq. & Yi Song, Esq.

    On October 1, 2013 the Securities and Exchange Commission (SEC) announced fraud charges in U.S. District Court for the Southern District of Texas against a Texas based EB-5 Regional Center USA Now Regional Center LLC for misappropriating the investment funds of 10 investors from Mexico, Egypt and Nigeria. The USA Now Regional Center LLC was approved by USCIS in 2010 and raised $5 million dollars before the SEC brought charges at the federal court.

    The SEC complaints shall serve as a warning to all risky and fraudulent practices in the EB-5 community. The security fraud charges are based on false statements, misrepresentation and improper disclosure made in the Private Placement Memorandum (PPM) by USA Now Regional Center. The SEC has alleged that the Ramirezes told investors that USA Now would hold their investments in escrow until they received USCIS approval. Further, once the funds were released from escrow, they would be used for specific EB-5 business purposes. As ...

    Published on 10-03-2013 04:09 PM

    How a Government Shutdown Likely Affects Immigration Agencies

    by Amy Grenier

    4909285606_bb1b241836_b

    The government’s fiscal year ends today, and without legislation authorizing spending to continue, whether for the full fiscal year or even a few weeks, many federal offices and services will be shuttered starting tomorrow. Unfortunately, the chances the United States government will avoid a shutdown are low. The Senate has tabled the House-approved spending bill, which defunds the Affordable Care Act, and sent it back to the House, but it is unlikely that a consensus will be found before the midnight deadline. This means that beginning Tuesday, an estimated 800,000 to 1 million federal employees will be furloughed and government offices and national parks will close. Details of the impact of the shutdown are emerging and the situation is fluid, but based on what we do know and what happened the last time the federal government shut down in 1996, here is what likely will happen:

    Beginning Tuesday, an estimated 800,000 to 1 million federal employees will be furloughed and government offices and national parks will close.

    The Department of Homeland Security will still operate. This includes Customs and Border Protection, the Coast Guard, Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services (USCIS).  The borders will remain open and USCIS will continue to operate, including processing green card applications, but E-verify will ...
    Published on 10-02-2013 01:24 PM

    212(i) AAO Victory

    byAlan Lee, Esq.

    ...
    Published on 09-30-2013 01:17 PM

    The Status of Immigration Reform in Congress

    by Ann Cun

    Last week, we highlighted some of the legislative bills currently pending in the House as a response to the Senate’s CIR bill S.744.  What progress has Congress (specifically the House of Representatives) made to pass comprehensive immigration reform legislation?  Aside from having introduced a bevy of immigration-related bills, since April-June of this year, the House has not made much progress on immigration reform.  House Republicans, who currently make up a majority, are refusing to support the Senate’s CIR bill S.744.

    Recently, the New York Times (and many other news outlets) reported that illegal immigration to the U.S. may be on the upswing, according to the latest polls from the Pew Research Center Hispanic Trends Project.  Though, Pew cautioned the results aren’t enough for a conclusive confirmation.

    One would think that a potential upswing illegal immigration to the U.S. would be cause for the House to act swiftly on immigration reform.  In celebration of National Hispanic Heritage Month, House Republicans have publicly proclaimed they are committed to immigration reform.  ...

    Published on 09-30-2013 12:59 PM

    Quality of Case Preparation and Presentation Counts for Immigrant Investors or Entrepreneurs

    by Joseph P. Whalen

    (September 24, 2013)

    I. Introduction: Following my posting of the AAO 2013 Non Precedent EB-5 Decision, (most up-to-date version found here), I was contacted by an individual with some observations and questions. This article is written in response to that query.

    II. Rejection vs. Denial/Dismissal: As a preliminary matter, it must be clarified that the legal terms “rejection” and “denial” are not interchangeable.

    a. Rejection means: a filing that is incorrectly submitted as:

    i. Untimely Filed: which is simply that, late, beyond the time afforded by law to file something; or

    ii. Improperly Filed: which may mean:

    1. Filed by someone Without Standing To File: for example, this might be an Appeal or Motion filed by the “beneficiary” of an immigrant petition filed ...

    Published on 09-30-2013 12:39 PM

    Conducting General Solicitation under the New SEC Rules in EB-5 Practice

    by Yi Song, Esq

    Ever since the Securities and Exchange Commission (SEC) lifted the ban this July on general solicitation pursuant to the Jumpstart Our Business Startups Act (JOBS Act), it was expected that the threshold for disclosure would be raised. What does this mean to EB-5 projects and EB-5 regional centers?

    ...
    Published on 09-27-2013 04:31 PM

    Mexican Organized Crime: Background, Updates and Implications for Returnees from the U.S.

    by Thomas Boerman

    Background

    As is well known and extensively documented by the U.S. and Mexican governments, the United Nations, the Organization of American States, numerous international human rights monitoring organizations and the international media, Mexico is embroiled in a catastrophic situation with respect to violence spawned by domestic and transnational criminal organizations (TCO). The principal TCOs operating in Mexico include: the Sinaloa, Tijuana, Juarez and Gulf cartels, Los Zetas, Los Cabelleros Templarios (Knights Templar), and La Familia Michoacána. In addition to these juggernauts, an increasing number of smaller criminal groups now affect the criminal landscape. According to Mexico’s Attorney General, as opposed to the past when there were roughly ten major drug trafficking organizations, there are now as many as 80 now operating throughout the country.[1]

    Along with intra and inter-organizational variables, a contributing factor in the emergence of many of these new criminal groups was former President Calderón’s “Kingpin” strategy, under which leaders were targeted for arrest or death. As leaders were taken out their underlings and competitors scrambled to capitalize on the leadership vacuums which increased levels of violence, contributed to the development of splinter groups that are more difficult to monitor and target, and further diminished the government’s capacity to contain criminal activity and to protect the public.

    It is important to note that beyond their involvement in drug manufacture and distribution, many of these groups have expanded their “criminal portfolios” to include extortion, kidnapping for ransom, arms trafficking, human trafficking, alien smuggling, piracy of copyrighted materials, cybercrime, coerced land and property transfers, and theft of millions of dollars worth of oil from the state owned Petróleos Mexicanos.

    Outcomes Associated with the War on Organized Criminal Activity

    While the Mexican government’s campaign against drug traffickers had its origins in the1990s, President Calderón’s escalation of the fight in 2006, along with tensions within and between criminal groups, ushered in an unprecedented wave of violence that continues unabated. It is commonly recognized that since 2006 the death toll associated with drug and crime related violence exceeds 70,000. Generally speaking, the violence breaks out into four main categories: 1) government action against criminal groups, 2) criminal groups’ actions against the government, 3) intra and inter-gang violence, and 4)criminal groups targeting the public.[2]

    Insofar as it relates to government officials and members of the public, the victims of the violence fall into six broad categories including those who have been: 1) “caught in the crossfire” during shootouts with rival criminal groups and/or police or military personnel; 2) targeted as a means of demonstrating organized criminal groups’ seemingly limitless capacity for audacity and brutality; 3) involved in pro government/anti-crime activities including police officers, prosecutors, judges, appointed officials, political candidates, and elected leaders; 4) subjected to reprisals because they reported crime to police and/or acted as informants against criminal organizations; 5) targeted for extortion, kidnapping, coerced criminal activity and/or land and property seizures; and/or 6) family members of those who have fallen into disfavor with criminal organizations that are victimized as a means of punishing the targeted individual.

    Criminal Groups’ Political Agendas, Strategies and Tactics

    Mexican criminal organizations have blended criminality with tactics generally associated with politically motivated terrorism and warfare including coercion, intimidation, kidnapping, torture and murder of police officers, military personnel, prosecutors and judges. Since 2006, over 1,200 municipal officials and 31 local mayors have been murdered.[3] Between January and June 2013 almost 250 public servants were killed.[4] In addition to outright terror, criminal organizations seek to create a socio-political climate in which they have impunity to expand and operate by manipulating the political system, including bankrolling elections.[5] The basis for criminal groups’ interest in the electoral process is simple: they cannot operate without collusion with government officials at every level. This has become particularly true as TCOs expanded into extortion and kidnapping, where the acquiescence and/or direct involvement of government officials is critical.[6]

    Arguably these strategies of terror and manipulation of the political system have been effective and in many areas organized criminal groups have thoroughly undermined the state’s capacity to fulfill basic functions of governance. Speaking of the political implications of TCO activity, a report from the International Crisis Group concluded:

    "The brutality of their crimes undermines civilian trust in the government’s capacity to protect them, and the corruption of drug money damages belief in key institutions. Cartels challenge the fundamental nature of the state, therefore, not by threatening to capture it, but by damaging and weakening it.[7]

    In February 2012, the Mexican Defense Minister acknowledged that criminal organizations have infiltrated state institutions and that up to forty percent of the country is no longer under effective government control.[8] Within this “governmental void,” organized criminal groups have rendered the state irrelevant in major respects and in many areas TCOs’ operational capacities have evolved to the point that they often act as de facto governments. In addition to providing crime-based employment, criminal groups are also known to build social infrastructure, dispense social services and in some instances have replaced the state as an arbiter of disputes and enforcer of everything from traffic laws to codes of moral conduct.[9] For example, leaders from La Familia Michoacána are known to preside over tribunals in which accused parties are brought before decision makers who impose judgments and sentences. I have interviewed several individuals who reported that they or people they knew had been arrested by police, but rather than being taken to a police station they were turned over to TCO leaders to deal with their alleged wrongdoing.

    The Scope and Implications of Official Corruption

    Aside from organized criminal groups’ seemingly infinite financial resources, sophisticated organizational structures and sheer audacity, the Mexican government’s efforts to control them has been seriously constrained by rampant corruption among police, military, and corrections officials, prosecutors, judges, and elected leaders.

    Thousands of police officers, including high raking officials, have been dismissed from their positions due to corruption. All 190 police officers in the town of Acambaro, Guanajuato were placed under investigation over alleged ties to TCOs while in the nearby town of Tarandacuao, 23 officers, including the chief of police, were arrested for activities that ranged from tipping off criminal groups when law enforcement was in the area all the way up to murder.[10] The entire Veracruz police force—800 officers and 300 administrative personnel—were fired in an effort to purge the department of corruption by starting over.[11] The list of examples of police corruption is nearly endless, and many are so flagrant as to be almost surreal. I’ve interviewed numerous individuals that have described scenes in which uniformed officers carried out abductions with no regard to the presence of witnesses; arrested and turned extortion victims over to drug traffickers, then stood guard over cartel-led tribunals in which the victims were tried, sentenced and tortured; and forced residents out of their homes and off their land, only to have members of criminal groups then occupy the property.

    Although thousands of corrupt officers have been fired, perhaps tens of thousands more remain in their positions and newly corrupted officers are continually coming onto the scene. And the government’s vetting processes, while an important step, are not necessarily proving effective. As of November 2012, eighty percent of the 50,000 officers that had failed confidence tests were still in their positions.[12] To some degree this can be attributed to corruption itself and a lack of political will, but it is also reflects the untenable nature of the situation: if the government were to dismiss en masse all officers known to be corrupt it would effectively drive many of those officers into the waiting embrace of criminal groups that are ready to employ them.

    Corruption is also rampant within the prison system. Corrections officials and guards are known to have facilitated, or at least been complicit in a number of gang-on-gang massacres and frequent mass escapes.[13] In one case authorities released prisoners who then went out and conducted assassinations using firearms provided by the prison staff.[14] Much of the crisis in the prison system is driven by overcrowding, the fact that officials are routinely subjected to violence and are poorly paid; the combination has proven to be a recipe for disaster.

    A major element in the government’s attempt to address corruption is Operación Limieaza (Operation Cleanup) but thus far the outcomes have been disappointing. For example, in 2012 police arrested four retired and active military officials with connections to the Beltran Leyva Organization—three generals and a lieutenant. The government later announced that charges were dropped against all four when cases against them unraveled; in all, charges against ten of the thirteen officers arrested under the much-ballyhooed anti-corruption initiative have been dropped.[15] The inability of the government to prosecute corruption cases has led to allegations and counter-allegations. One on hand, claims that the Calderón administration abused its authority, relied on dubious witnesses and targeted political opponents; on the other, suggestions that the current government is making accommodations for the type widespread corruption that occurred for decades under the Partido Institucional Revoluncionario, President Peña Nieto’s ...


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