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    Published on 08-08-2016 10:37 AM

    The United States Can’t Afford a Broken Immigration System


    International students and professionals are critical to the strength and well-being of communities across the entire United States, yet their impact is too often overlooked or taken for granted. By delaying meaningful immigration reform, we risk losing the valuable contributions made by these immigrants.

    Our Healthcare System Relies on Foreign-Born Professionals

    Our healthcare system relies on foreign-born workers, and the demand for medical professionals from outside our borders will only increase. Currently, twenty five percent of physicians and surgeons working in the United States–plus comparable portions of other healthcare positions–were born elsewhere.

    As the baby boomer population ages, they will increasingly need more medical care. In addition, their retirements will create a deficit of doctors, surgeons, nurses, health aids, dentists, pharmacists, and clinical techs. As a result, the ability to provide healthcare will be significantly strained, furthering a need for immigrant healthcare professionals.

    America also needs more primary care physicians and doctors willing to work in rural areas. U.S.-born doctors tend to gravitate to higher paying specialties as opposed to primary care, and also favor urban areas. As the country continues to diversify, we have a growing need for physicians ...

    Published on 08-05-2016 11:48 AM

    Trump vs. Outstanding Immigrant Khizr Khan


    It is poetic justice that Khizr Khan, a Muslim and an immigrant, has been able to take on Trump and trounce him. Trump has derided both Muslims and immigrants with the objective of pandering to his base of white male voters.  After Mr. Khan’s strong repudiation of Trump, he is no longer looking as invincible as he did before.

    Mr. Khan, and his wife Ghazala Khan, are the parents of Captain Humayun Khan who was killed in combat in Iraq in 2004. After ordering his subordinates away from a suspicious vehicle, Captain Khan bravely ran forward 10–15 steps and was killed by a suicide car bomber. He was posthumously awarded the Bronze Star Medal and the Purple Heart, and is buried ...

    Published on 08-05-2016 10:57 AM

    How Immigration Restrictions Are like Occupational Licensing


    Conservatives across the country, from—Michigan to Arizona—are challenging burdensome occupational licenses. “Insiders use the false cover of consumer protection to get laws enacted that keep out new competitors,” Minnesota Republican state Senator Chris Gerlach recently said, explaining his reform bill.

    Visa restrictions are an obvious place to start deregulating labor markets.While a welcome development, conservatives should extend this logic to an even more pervasive form of anti-consumer protectionism: work visa restrictions.

    Work visas are licenses for foreign workers and entrepreneurs to practice their professions in the United States. And just as other occupational licenses artificially inflate prices for consumers, arbitrary visa quotas prevent consumers from accessing services that immigrants would provide. It’s protectionism, and it harms Americans every bit as much as unnecessary occupational licensing.

    Barriers to entry for foreign workers hurt American consumers and businesses.Yet even while the new Republican Party platform calls “excessive licensing requirements” a “structural impediment which progressives throw in the path of poor people,” it claims that it is “indefensible” that the U.S. government allows a million immigrants to live and work in the United States each year.

    The two positions are at odds. Occupational licenses limit the choices of American consumers in a few industries, while visa restrictions do so in every industry.

    Indeed, the research on ...

    Published on 08-05-2016 09:23 AM

    Updates on Minors as Primary EB-5 Applicants, Part 2: Practical Steps


    As previously written, the Chinese EB-5 backlog (nearly 30 months) creates a real age-out problem for children currently aged 15-20, whether acting as the primary beneficiary or the derivative beneficiary of a Form I-526 petition.  With the waiting line was established only a year ago and the Form I-526 adjudications taking over one year, the EB-5 community may not know USCIS’ position on the new and untested issue of whether minors may file as the EB-5 principal applicant.

    1. At the recent July 28, 2016 EB-5 Stakeholder Engagement, USCIS was asked specifically whether a minor may file as the principal applicant. USCIS indicated that there is no minimum age requirement in the EB-5 regulations and that a minor principal applicant can sign the Form I-526 without a parent’s or guardian’s signature required, which is consistent with its rule and policy regarding the Form I-485 Application to Register for Permanent Residence or Adjust Status.  See 8 CFR 245.2(a)(3)(i).  However, USCIS also indicated that there are “practical issues” with regards to the capacity of a minor principal applicant to enter into contracts, which could call into question whether the contract is actually binding.  USCIS also cautioned that the evidentiary burden is on the minor principal applicant (or his/her legal guardian) to prove contractual capacity. (emphasis ...
    Published on 08-04-2016 01:21 PM

    How Immigrants Strengthen the Economies of all 50 States


    The economic and political impact of immigration is often discussed at the national level. This makes sense, especially since immigration is a nationwide issue and a federal responsibility. Yet this national focus often obscures the effects of immigration within particular states.

    Perhaps the most systematic and comprehensive effort so far to direct public attention to the effects of immigration within each state comes from the Partnership for a New American Economy; a group which “brings together more than 500 Republican, Democratic, and Independent mayors and business leaders united in making the economic case for streamlining, modernizing, and rationalizing our immigration system.” The Partnership has released a comprehensive set of reports detailing “the contributions of New Americans” in each state.

    As an example of what each of these reports contains, consider California, which has long been a destination of immigrants. Not surprisingly, the economic power and political clout wielded by California’s immigrants is considerable. As of 2014:

    • 5 million immigrants comprised 27 percent of the population and 35 percent of the workforce.
    • Immigrant-owned businesses generated $20.2 billion in business income, and 1.5 million people were employed by firms owned by immigrants.
    • Immigrants paid $49.5 billion into the Social Security and Medicare programs, and had $238.7 billion in spending power.
    • Students on temporary visas comprised 27.5 percent of students earning a doctoral degree in science, technology, engineering, and math (STEM).
    • ...
    Published on 08-04-2016 11:15 AM

    The Increasing Cost of Form I-9 Non-Compliance


    Imagine it’s your first day of work in the HR department, and you’ve been given the dubious honor of “cleaning up” your employer’s Form I-9 files. Initially, visions of scattered file boxes and forms dance in your head, filled with dusty reminders of individuals hired years ago. There will be dog-eared manila folders, paper clips stretched beyond their size, and un-sticky post-it notes, long since abandoned with the passage of time.

    But then you realize it’s actually much worse than you thought. For when your boss kindly asked you to “clean up” the I-9 forms, he was actually talking about a cleansing of a different sort – the kind which is necessary to correct all of those insidious errors and omissions hiding in plain site on your forms. And as you quickly learn, it’s oh so easy to make a mistake! All it takes is a missing date, incorrect document choice, or a forgotten signature to turn your relatively benign-looking I-9 form into a ticking time bomb of liability.

    A question though inevitably rises as you ponder the mess in front of you – does this really even matter? Surely, the fines for incorrect paperwork violations must be fairly small, right?

    Guess again – as it turns out, the penalties for simple I-9 transgressions can be quite significant, particularly for employers with frequent turnover. For example, during an inspection, a government agency ...

    Published on 08-04-2016 09:33 AM

    District of Columbia v. Ninth Circuit Courts of Appeal: Who Will Be the Bigger Influencer In Interpreting EB-5 Laws?


    Published on 08-03-2016 12:35 PM

    How Can the U.S. Attract and Retain STEM Graduates?


    International doctoral students are significantly more likely than native-born U.S. students to major in and graduate from STEM fields In fact, international students make up about 40 percent of all STEM Ph.D. students, and are expected to comprise half of all STEM Ph.D. graduates by 2020. A new report by the Kauffman Foundation, Will They Stay or Will They Go? International STEM Students Are Up For Grabs, examines why these students choose to come to the U.S., and what they want to do with their degrees after graduation.

    These important questions have huge implications for the U.S. economy. According to the latest study by the Association of International Educators, during the 2014-2015 academic year there were 974,926 international students studying at U.S. colleges and universities. These students contributed $30.5 billion and supported more than 373,000 jobs to the U.S. economy. A separate 2012 report found that “every foreign-born student who graduates from a U.S. university with an advanced degree and stays to work in STEM has been shown to create on average 2.62 jobs for American workers—often because they help lead in innovation, research, and development.”

    Kauffman found that 84 percent of foreign students surveyed said they came to the U.S. for graduate ...

    Published on 08-03-2016 10:42 AM

    "The Line" for Green Cards Is So Long You Might Die of Old Age Waiting


    Immigrants are often told to “get in line” if they want to stay in the United States. This demand is disingenuous for many reasons. Many immigrants have no line to get into. And even if they do, we are telling them to join these lines when no one even knows how long they are. In many cases, we could be asking immigrants to join a line that they will literally never live to see the end of.

    Immigrants might face a line they will literally never live to see the end of.We don’t know much about who's in these lines until they get to the front, but here’s what we do: Thousands of immigrants come to the United States each year on temporary work visas. While working in temporary status, some of their employers petition on their behalf to obtain green cards for them to stay permanently. If the employer has jumped through all the appropriate hoops, the worker can then apply for a visa, if — and this is a big if — the limit on visas that year has not been reached.

    This is where the line — and the waiting — starts. For lawmakers trying to fix the immigration system, figuring out how many people are at this point in the process is critical. But even they don’t know.

    5 million people are waiting abroad.We do have a good idea how many people are waiting overseas. The State Department keeps track of those numbers and publishes them annually, and we’re quickly approaching 5 million immigrants waiting abroad, which is an astounding number on its own.

    But for temporary immigrants already in the United States, the Department of Homeland Security doesn’t keep track — or doesn’t publish — the number of applicants who are prevented from receiving a green card due to the limits.

    The State Department publishes a monthly visa bulletin that tells people in either line — here or abroad — whether they can apply for a green card. It lists a date, as seen below, next to a visa category. This date is the cutoff. If your employer’s petition was filed after the date listed, you cannot apply for a green card yet.

    Figure 1: Visa Bulletin — Application Final Action Dates for Employment-Based Preferences
    Source: State Department

    These dates can sometimes create ...

    Published on 08-03-2016 10:20 AM

    Case Study: EB2 RFE for Mismatched Education – APPROVED


    A recent client came to us with a bachelor’s degree in engineering for a job in computer sciences and a big RFE to show for it. Candidates for both H-1B and EB2 visas have been running into this problem because while employers will hire them with degrees in related fields – because of related work experience and because they understand the great degree of academic overlap between ...

    Published on 08-02-2016 12:22 PM

    Employers Need to Know That Site Visits Continue to be a Routine Protocol For USCIS


    Some time back, the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. reported that the U.S. Department of Homeland Security, Citizenship and Immigration Services ("USCIS"), sought to step-up its efforts to find fraud in the H-1B program. This was done by conducting investigations and visiting H-1B petitioner worksites throughout the U.S.

    These investigations came to be known as H-1B “site visits”. The site visits began as part of the USCIS' goal to decrease the number of H-1B violations and instances of fraud reported by the H-1B Benefit Fraud & Compliance Assessment from CIS' Office of Fraud Detection and National Security ("FDNS").

    According to the FDNS' findings, as many as one in five H-1B applications were affected by either fraud or "technical violations" in the H-1B program. Additionally, there have been inquiries into the religious worker visa program over the past several years that threatened to derail the program as a result of an allegation that nearly 30% of the religious worker visas submitted were fraudulent applications.

    Over the past several years, the FDNS has expanded its investigations from the H-1B visa program to the religious worker program. ...

    Published on 08-02-2016 10:53 AM

    Analyzing USCIS Administrative Appeals Office (AAO) EB-5 Source of Funds Rules for Using Loans as Investment Funds


    EB-5 law and regulations require a foreign national to “invest,” or be actively in the process of investing, “capital” in a new commercial enterprise, which is defined to include “indebtedness secured by assets owned by the alien entrepreneur”.

    In July 2016, the USCIS Administrative Appeals Office (“AAO”) issued three decisions regarding these terms and the use of loans as investment funds in support of a Form I-526 Immigrant Petition by Alien Entrepreneur.  This blog analyzes the AAO’s approach and provides insight on how to properly structure personal mortgage and loan agreements to obtain the required “lawful” EB-5 capital.


    The AAO has jurisdiction over appeals from decisions on most immigration petitions and applications that are entered by USCIS regional service centers and district offices, including EB-5 adjudications of Form I-526, Form I-829 Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, and Form I-924 Application for Regional. Center Under the Immigrant Investor Pilot Program.

    In April of 2015, during an EB-5 stakeholder engagement, USCIS indicated that proceeds from a loan may qualify as capital used for EB-5 investments, as long as the indebtedness is secured by assets owned by the alien entrepreneur and the alien entrepreneur is personally and primarily liable for the indebtedness (i.e. the immigrant investor is responsible under the loan documents for repaying the debt) in accordance with 8 CFR §204.6(e).  In addition, USCIS indicated that a petitioner must demonstrate that the value of such collateral is sufficient to secure the amount of indebtedness being used to satisfy the minimum required investment amount.

    Matter of W-R-Z- (July 7, 2016)

    In Matter of W-R-Z, ...

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