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    Published on 09-14-2016 12:32 PM

    "Familial Relationship" Within the Context of PERM Labor Certification Application



    As compared to other myriad lurking issues, the issue of family relationship between a sponsored Foreign National and the sponsoring Employer does not arise that frequently within the context of Permanent Labor Certification Application. However, when it does, it should be dealt with utmost care and attention because not doing so may invite a supervised recruitment, and possibly a denial.

    Few cases have dealt specifically with the familial relationship issue between a sponsored Foreign National and the owners, stockholders, partners, corporate officers, or incorporators of the sponsoring Employer.

    In a recent decision, Palm café Restaurant, 2012-PER-01446 (BALCA June 7, 2016), the Board of Labor Certification Application (Board), dealing with the issue of family relationship between the owners of the sponsoring Employer and sponsored Foreign National, imported and applied the “totality of circumstances” test in determining whether the Employer made a genuine determination of foreign labor by sponsoring the Foreign National, and whether a genuine job opportunity existed for American workers to compete for the job opening.

    The “totality of circumstances” test was previously laid down by the en banc panel of the Board in the landmark pre-PERM decision of Matter of Modular Container Systems, Inc., 89-INA-228 (BALCA July 16, 1991). The Board in Modular Container specifically ...

    Published on 09-13-2016 11:36 AM

    Goodlatte EB-5 Reform Bill: Impacts For Investors and Promoters


    We provided an initial analysis and a section-by-section summary of a draft EB-5 reform bill released late on Friday, September 9, 2016, by U.S. Representative Bob Goodlatte, chair of the House Judiciary Committee. That article is here.

    The bill was re-released on September 12 with U.S. Representative John Conyers, ranking member of the House Judiciary Committee. The revised bill contains a two-page addition for good faith defrauded investors and has now been formally introduced as H.R. 5992. The House Judiciary Committee plans to mark up the bill on Wednesday, September 14.

    In this article, we focus our discussion on the bill’s impact to investors if passed in the current form. The main problem is that the bill would retroactively ...

    Published on 09-13-2016 11:02 AM

    Intersection of Securities Laws and EB-5 Transactions - Securities Laws Compliance Guidance for Immigration Attorneys


    When an EB-5 transaction involves the sale of LLC or LP interests, etc. to EB-5 Investors, the transaction involves the sale of “securities” and is subject to the applicable federal securities laws (and applicable state securities laws if the offering is made to investors who are in the U.S.). The New Commercial Enterprise (“NCE”) and possibly also the Job Creating Enterprise (“JCE”) should work with a securities attorney to assure compliance with the applicable securities laws.


    Securities Act of 1933,

    Securities Exchange Act of 1934, and

    Investment Company Act of 1940

    Securities Act of 1933 (“1933 Act”)

    The 1933 Act regulates the offering and the sale of securities and requires the registration of securities offered to investors in the U.S. or offered by U.S. Issuers, unless the transaction is made pursuant to an exemption from the securities registration requirements.

    There are 2 principal securities registration exemptions that are generally used in EB-5 Offerings are:

    (i) Reg D/Rule 506 (private placement); and

    (ii) Reg S (offshore offering exemption)

    Each of these exemptions are self-executing and accordingly the burden of proof is on the Issuer (NCE) to establish that it has satisfied the requirements of the particular exemption;

    These are exemptions only from the securities registration requirements under the 1933 Act;

    These are not exemptions from the SEC’s anti-fraud provisions.

    The Issuer (NCE) will need to comply with the SEC’s anti-fraud provisions which require disclosure of material information to prospective investors; ...

    Published on 09-13-2016 10:01 AM

    Goodlatte EB-5 Reform Bill: Initial Analysis and Section-by-Section Summary


    Executive Summary and Initial Analysis

    This article provides an initial analysis and a section-by-section summary of a draft EB-5 reform bill released late on Friday, September 9, 2016, by U.S. Representative Bob Goodlatte, chair of the House Judiciary Committee. The 123-page bill has not been formally introduced yet. The Goodlatte bill has nine sections and is largely a reprisal of S. 1501, the main Senate EB-5 bill nearly enacted in late 2015. The Goodlatte bill, however, contains some key changes.

    The draft Goodlatte bill follows on the heels of a September 8, 2016 letter from Senators Chuck Grassley and Patrick Leahy, chair and ranking member of the Senate Judiciary Committee, respectively. Senators Grassley and Leahy oppose a straight reauthorization of the EB-5 regional center program without any changes. According to the letter, the EB-5 regional center program “has become plagued with fraud and abuse, and if not reformed it should be allowed to expire on September 30th.” In light of the Grassley-Leahy letter, industry unity on regional center oversight measures will be essential to avoid program lapse after September 30.

    The draft Goodlatte bill represents one effort to substantially reform the EB-5 regional center program. Key highlights include:

    A five-year reauthorization of the EB-5 regional center program, until September 30, 2021.

    Regional center oversight measures are at Section 3, “Reauthorization and Reform of the Regional Center Program,” mostly reproducing S. 1501’s oversight provisions. This section contains familiar extensive annual reporting requirements, securities law compliance certifications, background checks, project preapprovals, and sanctions. Section 3 also has a new section on account transparency ...

    Published on 09-12-2016 03:51 PM

    A Failure to Commit the Full Amount of Investment to the NCE


    Published on 09-12-2016 01:09 PM

    False Hopes Created by New International Entrepreneur Immigration Status


    On August 31, 2016, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking regarding a new International Entrepreneur immigration status.

    This is not meant to be a new visa status, but rather would allow individuals to enter the USA on parole status, which is no visa status at all.

    The proposed regulation is ...

    Published on 09-12-2016 10:37 AM

    Lessons Learned From Department of State "Profiles" of Asylum Applications


    In response to a Freedom of Information lawsuit, I obtained 15 Department of State “Profiles.”

    A “Profile” is different from a “Country Report on Human Rights Practices.” Every year, the State Department writes, and publishes “Country Reports on Human Rights Practices” for almost every country in the world. These reports are announced with great fanfare, and are easily available on the internet. A “Profile,” on the other hand, is a report written somewhat randomly and intermittently. Apparently, the State Department wrote 15 Country Profiles between the years 2000 to 2008. No Profiles have been written after 2008. Therefore, the 15 Profiles I obtained are now somewhat dated.

    There was great variety in these reports. For example, the Profile on Pakistan was three pages long, and mentioned nothing about fraud; the Profile on Togo was eleven pages long, and included a list of 11 questions to be asked of asylum applicants to help determine if the case was genuine. Lessons can be learned from these reports. What factors impress the State Department official? Where is fraud to be found? What follows are questions ...

    Published on 09-12-2016 10:29 AM

    Six Things to Know about the August 29, 2016 EB-5 Stakeholder Engagement


    Yesterday the U.S. Department of State (“DOS”) published the October 2016 Visa Bulletin, the first visa bulletin of Fiscal Year 2017. The cut-off dates published in the DOS’ Visa Bulletin each month indicate whether an immigrant visa or green card is available for foreign nationals with approved immigrant visa petitions. Because of per country limitations the wait varies depending on the applicant’s country of birth and the visa ...

    Published on 09-09-2016 09:22 AM

    Posner on Immigration's Crimes Involving Moral Turpitude: "Who talks like that? Who needs to talk like that"?



    If we had an “immigration case of the week” category on this blog, this decision – especially Judge Richard Posner’s concurrence – out of the Seventh Circuit would be the hands down winner.* The case:* Arias v. Lynch, No. 14-2839 (7th Cir. Aug. 24, 2016). The issue:* does a conviction for falsely using a social security number to work under 42 U.S.C. § 408(a)(7)(B) constitute a “crime involving moral turpitude”?**

    The majority opinion illustrates the lingering problems created by then-Attorney General Michael Mukasey’s decision in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) (“Silva-Trevino I”), when DHS sought to depart from the categorical approach by permitting adjudicators to look behind the record of conviction when making CIMT determinations.* In this case, the majority finds that the BIA had essentially misapplies the categorical analysis, even under Silva-Trevino I.

    More importantly, the majority opinion has some great insights to challenge the very notion of treating a conviction for using a false social security number to work as a conviction that should trigger negative immigration consequences:

    “It seems inconsistent with the terms “base, vile, or depraved” to hold that an unauthorized immigrant who uses a false ...

    Published on 09-08-2016 12:23 PM

    Rethinking deportation


    No, immigration hasn't really been the central talking point in this election. While there are cries for immigration reform and chants against illegal immigration, the flash point isn't immigration, it's deportation. Think about how different the discourse would be if we were arguing about how to let people in instead of only how to keep – and kick – them out.

    Nearly seventy years ago, the Supreme Court described deportation as “a drastic punishment, and at times equivalent to banishment or exile.” Finding the stakes to be high, it refused to read laws resulting in deportation broadly.

    Since then, Congress responded by passing broad deportation laws, and continued to expand them. People who have lawfully lived in the US for nearly their entire lives are deported for minor infractions to countries they never knew. Others who flee persecution are deported to their deaths. Sometimes even US citizens or immigrant veterans who fought for this country are swept up in the deportation machine. We are a country that incarcerates children in for-profit jails. Judges lost the power to stop deportation in sympathetic cases. The immigration law now creates perverse incentives for undocumented people to remain in the United States even if they want to leave and come back legally. The enforcement-first approach has been failing for decades, and its primary weapon is the Grim Reaper of immigration law: deportation. And still they come.

    What the law used to recognize as strong medicine is now available over the counter. It is used by policymakers, politicians, and self-styled commentators. Don't like what someone says? Deport them! Don't like a religion? Deport it! Don't like a candidate? “Maybe they'll deport her.” How many civilizations have fallen after they fractured over such disagreements?

    It's time to rethink deportation as a panacea – or even a prerequisite – toward fixing our immigration system.

    For all the talk, deportation is not well understood. In his immigration speech in Phoenix, Arizona (which was really a deportation speech) Donald Trump boomed, “They're gone,” referring to what he says are 2 million “criminal aliens.” In those two words, Trump unwittingly shed light on three misconceptions about deportation. One, that it's automatic. Two, that it's easy. Three, that it's permanent.

    Deportation is not automatic. Due process does – and has always – applied to all people within the United States, even if the exact process due may vary. The line between legal and illegal immigration status is not as black and white as the current discourse assumes, and so there must be a legal process to determine who gets deported. Many American citizens were once undocumented, or at least subject to deportation. Many documented immigrants may lose their status, only to find another way to regain it. Others are ordered removed, but are granted limited relief – limbo status that does not result in physical removal. Others may win asylum or cancellation of removal.

    Removal proceedings require identification, apprehension and sometimes detention, often for lengthy periods of time while hearings (and possibly appeals) conclude. Even for those with unchallenged final orders of deportation, the actual process of removal from the United States requires obtaining travel documents from the home country – if the home country will accept their citizen back. Given the numbers, it is not as easy as saying “They're gone.” That so many get deported is more a comment on the due process they (didn't) receive rather than actual ineligibility to stay – it's not a stretch to say the deportation machine survives ...

    Published on 09-07-2016 10:51 AM

    Not All Blogs Are Created Equal


    When done right, a blog can be a living, detailed entity that represents you to the world. When done wrong, a blog can be a chore, an unwelcome expense that produces little return on your effort, or even an ethical minefield. The difference lies in how well you implement fundamental policies.

    1) Policies on purpose

    Blogs must be considered in light of your entire strategy for reaching your target market, not as isolated productions. Achieving that requires policies to define a blog's purpose, including the following:

    • Create a profile of your ideal client who will give you the kind of work that you want, and develop a marketing strategy that focuses on that target, not on everyone.
    • Make sure that your blog supports ...
    Published on 09-07-2016 10:37 AM

    ICE Releases Quarterly International Student Data


    ICE released the following announcement about international students:

    There are 1.11 million international students with F (academic) or M (vocational) status studying in the United States according to the latest "SEVIS by the Numbers," a quarterly report on international student trends prepared by the Student and Exchange Visitor Program (SEVP), part of U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI).

    The report, released Tuesday by SEVP, highlights July 2016 data from the Student and Exchange Visitor Information System (SEVIS), a web-based system that includes information about international students, exchange visitors and their dependents while they are in the United States.

    Based on data extracted from SEVIS July 7, international student enrollment at U.S. schools increased 5.5 percent compared to July 2015. In July, there were 8,673 U.S. schools with SEVP certification to enroll international students, about a two percent decrease from the previous year.

    Forty-two percent of international students studying in the United States, equaling almost 467,000 individuals, were enrolled in science, technology, engineering and mathematics (STEM) coursework, an increase of 15.2 percent from July 2015. Approximately 407,000 international students from Asia pursued STEM studies, an increase of 17 percent since July 2015.

    The July report includes a special section about European students studying in the United States. As of July 7, European students composed 7.26 percent of international students in the United States, equating to roughly 80,000 students. Fifty-two percent were male and 48 percent were female. This differs from the rest of the world, where nearly 60 percent of international students were male and just more than 40 percent were female. Almost 60 percent of European students hailed from six countries in Europe, including the United Kingdom, France, Germany, Spain, Russia and Italy, and 44 percent of European students were enrolled at schools in three states – California, New York and Massachusetts.

    Among ...

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