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    Published on 06-19-2015 01:38 PM

    Symposium on Kerry v. Din: Lip Service to Due Process in Kerry v. Din by Geoffrey Heeren



    Yesterday, the ImmigrationProf Blog began its on-line symposium on the Supreme Court's decision on Monday in Kerry v. DinLiz Keyes started off the symposium yesterday.  Today, Geoffrey Heeren (Valparaiso) contributes to the dialogue:

    Lip Service to Due Process in Kerry v. Din

    Fortunately, Justice Scalia could not line up five votes in favor of his belief that Fauzia Din was due no legal process before being permanently separated from her husband. Professor Elizabeth Keyes has already said almost everything there is to say about his antiquarian decision, which somehow cobbles the Magna Carta, Blackstone, and sexist early twentieth century laws into a holding that Din had no constitutionally protectable interest in being with her husband in the United States.

    That leaves us to look to Justice Kennedy’s concurrence for the bottom line in Kerry v. Din. Justice Kennedy claimed to take no position on whether or not Fauzia Din has a liberty interest in associating with her husband that would entitle her to due process. He said that for the purpose of argument, he assumed she did. He then went on to find that the process that she and her husband received was sufficient.

    Justice Breyer ably pointed out the intellectual disingenuousness of this position. The only process that Din’s husband, Berashk, originally received was a notice that his visa had been denied pursuant to INA § 212(a), the provision ...

    Published on 06-19-2015 01:32 PM



    1. The U.S. Department of State has published the July 2015 visa bulletin with a new Chinese EB-5 cutoff date of September 1, 2013. Beginning in July, Chinese EB-5 applicants with petitions filed before September 1, 2013 may be scheduled for final interviews, or if in the U.S. lawfully, may apply for adjustment of status.
    2. With the May 1, 2015 establishment of a May 1, 2013 cutoff date for Chinese EB-5 applicants, there was confusion and concern. Many child derivative applicants were concerned they would not be able to immigrate with their parents if the petition was filed too close to their 21st However, establishing a cutoff date was critical as Chinese demand was at the limit allowed ...
    Published on 06-18-2015 01:37 PM



    Published on 06-18-2015 10:45 AM

    Source of Funds - Recent Trends and Developments


    When making a qualifying EB-5 investment into a new commercial enterprise, the regulations require that the petitioner present evidence “[t]o show that the petitioner has invested or is actively in the process of investing , capital obtained through lawful means.” What exactly does this mean? Essentially, one can use a variety of difference sources for their investment, so long as they can illustrate (1) that the source of funds was lawfully obtained; and (2) they are able to trace the path of funds from the initial source to the EB-5 enterprise.

    With the creation of the dedicated Immigrant Investor Program Office ...

    Published on 06-18-2015 10:27 AM

    Detailed Analysis of EB-5 Reauthorization Bill: Source and Path of Funds.


    On June 3, 2015, Senators Charles Grassley and Patrick Leahy introduced a bi-partisan bill to extend and amend the Immigrant Investor Program. As part of a multi-series examination of the bill, below is detailed analysis of how the bill will change key aspects of the program as it relates to source and path of funds.

    1. Administrative Fees Must Be Sourced

      Current: In a 2012 Stakeholder抯 meeting, Alejandro Mayorkas, then director of USCIS, confirmed that the administrative fees must be sourced. In its February 2015 Stakeholder抯 meeting, USCIS indicated that administrative fees do not need to be sourced as USCIS did not have a 搇egal basis for requiring the . . . administrative fee . . . [to have] a lawful source.?

      Proposed Changes: Under the proposed legislation, USCIS will have a 搇egal basis?for requiring investors to source the administrative fee. Proposed INA 203.5(b)(5)(L) states in pertinent part that the investor must show that 揳ny funds used to pay administrative costs and fees associated with the alien抯 investment were obtained from a lawful source and through lawful means.?

      As currently written, the proposed changes leave open the possibility that investors may have to source legal and filing fees in addition to the investment and administrative fees.

    2. Tax Returns: 7 years of tax returns prior to I-526 filing ...
    Published on 06-17-2015 03:13 PM



    As many are aware, putting an end to the confusion that prevailed among Immigration Practitioners for almost two decades, the Administrative Appeals Office (AAO), through a Precedent decision, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), clarified that an amended H-1B Petition, with the corresponding LCA, is required to be submitted to United States Citizenship and Immigration Services (USCIS) when there is a material change in the terms and conditions of employment.

    In Simeio Solutions, the AAO specifically stated that when H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application (LCA) for Nonimmigrant Workers to the Department of Homeland Security, this change may affect the employee’s eligibility for H-1B status; it is therefore a material change for purposes.

    Because the decision was not very clear as to whether the AAO only referred to a move outside the Metropolitan Statistical Area (MSA), the DHS Ombudsman call on April 30, 2015, clarified that amended petitions will be required only for movement of H-1B workers outside the MSA listed on the LCA. Then, just when the new changes regarding H-1B amendments started to sink-in, came the surprise. On May 21, 2015, USCIS issued guidance instructing employers to submit an amended petitions for employees who changed worksite locations prior to the issuance of Simeio Solutions decision.

    Specifically, employers were asked to submit amended H-1B petition(s) if they, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment. The employers were asked to submit such amended petitions by August 19, 2015. Six days later, on May 27, 2015, USCIS updated its guidance to reflect that the guidance was in a “draft” form, and that comments would be accepted “for a limited period of time.”

    Further, on June 9, 2015, USCIS Director Leon Rodriguez, at the Council for Global Immigration’s 2015 Symposium, told a group of immigration and HR professionals that the USCIS understands that the August 19, 2015, deadline to file potentially thousands of amended petitions “is a problem” and employers may soon get relief. He further stated that the agency is considering issuing a statement “very soon” that employers will only have to abide by the Matter of Simeio Solutions decision going forward and not retroactively. Mr. Rodriguez added that: “USCIS is working to build real protection, so that those of you [employers] who have made changes in relying on inconsistent [USCIS] pronouncements will have an adequate level of protection and comfort to move forward without necessarily needing to make an amended filing.” He also said that guidance related to the matter would be sharpened and intimated that the deadline may be extended.

    The real questions to ask and analyze are: Why the agency wants take off the retroactivity aspect from the draft guidance which was issued earlier as a guidance; and Whether it is just a smokescreen to cover the wrong guidance ...

    Published on 06-17-2015 02:28 PM



    1. RFEs on drawn out I-485’s – What do you think about when you receive an electronic notice on U.S.C.I.S.’ online status system saying that the agency is sending your client a request for further evidence (RFE) on a long drawn out I-485 Application to Adjust Status to Permanent Residence? In many cases, the matter could have had prior problems which you thought resolved or the priority date may have backed up so that U.S.C.I.S. could not make a final adjudication. Attorneys and others may in many cases rest a little easier between the time of receiving the electronic notice and the actual detailed physical notice by knowing that the ...

    Published on 06-17-2015 02:18 PM

    Warning to Attorneys and Employers: Watch out for Degree Mill Degrees.


    Employers and attorneys need to be aware that some of the candidates will show them “degrees” that are not going to be accepted by USCIS because they are from degree mills. It is best to stop the problems before they start and the employer has invested time and money in someone who will not qualify for a visa.

    What is a degree mill? A recent New York Times edition ran an exposé on a prolific one based out of Pakistan. Axact, a well-known and highly respected company ...

    Published on 06-16-2015 03:43 PM

    The Wonderful World of Disney's Foreign Labor


    In October, Disney laid off some 250 information technology workers from its Lake Buena Vista, Florida, offices. As Julia Preston of the New York Times reported today, those workers have been replaced with foreign nationals, specifically H1B visa-holders.

    Photo Eric E. Johnson

    The NYT article takes Disney to task for hiring foreign nationals to do exactly the same work as the Americans who previously held the positions. This is despite the fact that – as immprofs know – H1B visas are intended to not adversely affect the wages and working conditions of Americans.

    Disney, perhaps unsurprisingly, didn't hire the H1B workers directly. Rather, the company made the decision to outsource its IT needs. And the company ...

    Published on 06-16-2015 03:32 PM

    Who Really Let the Disney Tech Workers Down: Disney or the H-1B Visa Program?


    As reported by the New York Times on Friday, June 5, 2015, Disney layoffs and replacement by H-1B workers provided by HCL Americas (HCL) drew a flood of comments. Not less than 2,800 comments were received in response to the original New York Times article, Pink Slips at Disney. But First, Training Foreign Replacements, by Julia Preston. As expected, most of the comments raised concerns and suspicions about the H-1B visa program. The story traces its origin to a Senate Judiciary Committee hearing, presided by Senator Chuck Grassley (R-IA), on March 17, 2015, to examine whether employers were displacing American tech workers by hiring immigrants at lower wages on H-1B visas. As reported by the New York Times, after the hearing, former employees from several companies, including Disney, were prompted to contact Ms. Julia Preston, a national correspondent who has covered immigration law issues for The Times since 2006.

    First and foremost, it is important to clarify that H-1B regulations do not allow U.S. employers to replace American workers with H-1B workers who could work at lower wages. The H-1B visa program has safeguards to address this issue. However, there are certain gaps in the program which allow such replacement using a different employer, commonly referred to as Independent Contractor(s). Rather than focusing on the safeguards in the H-1B program which are designed to protect the wages and working conditions of similarly employed U.S. workers (in cases where the employer wants to supplement its workforce through the employment of H-1B worker), Disney, like other U.S. employers in the past, utilized the loopholes in this nonimmigrant visa program to replace ...

    Published on 06-16-2015 03:19 PM



    Senator Grassley’s latest angry missive to the DHS protests the proposed increase of F-1 student Optional Practical Training (OPT), which was part of President Obama’s  executive actions of November 20, 2014.  While the Senator’s rant against any beneficial immigration proposal is nothing unusual, it reveals for the first time DHS plans to unveil an OPT  extension regulation relating to its promise to retain skilled foreign talent. It is also refreshing that the Obama Administration is endeavoring to implement a key executive action, especially after a  noted immigration blogger justifiably began to wonder whether the Obama Administration was fulfilling its promise or not.  >>

    According to Senator Grassley’s letter dated June 8, 2015, the DHS is moving forward with new regulations on OPT

    - allowing foreign students with degrees in STEM fields to receive up to two 24-month extensions beyond the original 12-month period provided under OPT regulations, for a total of up to six years of post-graduation employment in student status; and

    - authorizing foreign graduates of non-STEM U.S. degree programs to receive the 24-month extension of the OPT period, even if the STEM degree upon which the extension is based is an earlier degree and not for the program from which the student is currently graduating (e.g. student has a bachelor’s in chemistry and is graduating from an M.B.A. program).

    Presently, students can receive up to 12 months of OPT upon graduation. In 2008, the DHS published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM (Science, Technology, Engineering and Mathematical) fields. The Senator’s letter also seems to suggest that the agency is considering that employers will certify that they have not displaced US workers.  The STEM OPT extension is presently subject to a legal challenge by the  Washington Alliance of Technology Workers (Washtec). See Washington Alliance of Technology Workers v. DHS Read More Read More

    Published on 06-15-2015 03:40 PM

    S. 1501 Calls for Regional Centers to Be Directly Monitored, Regulated and Inspected for Compliance with Securities and Exchange Commission's ("SEC") Rules and Regulations.


    Last week the Senate Judiciary Committee Chairman Charles Grassley and Ranking Member Patrick Leahy co-sponsored S. 1501 that would make sweeping changes to EB-5 law in the reauthorization the Regional Center Pilot Program. Our team is ...

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