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    Published on 03-23-2018 01:59 PM

    The EB-5 Bill Failed: So now What?


    With President Trump’s signing of the Omnibus bill, the most current attempt at EB-5 reform officially goes into the dustbin of history. There is a saying that goes something like, ‘when god convened a committee to create a horse, they came up with the camel’ (no disrespect intended to camels, of course). And so it went with the now aborted EB-5 legislation. It went from bad to worse to a point where there was enough in it for absolutely everyone to hate it. It’s at times like these when it is worth to take a step back so maybe we can take step forward.

    Firstly, where are we now? With the passage of the Omnibus spending bill, the Regional Center program has secured yet another short-term extension through September ...

    Published on 03-23-2018 10:02 AM

    The Invisible Wall That President Trump Has Already Built


    Legal immigration and the number of foreigners visiting the United States has taken a serious hit within the last year, as the Trump administration makes changes to policies and procedures without any Congressional action or approval. These actions have already had a disturbing, cumulative effect as the administration begins to severely limit flows of immigrants and visitors without even beginning construction on a border wall.

    While building an actual, physical wall was the hallmark of the Trump campaign, this primarily depends on congressional action and funding—which the administration has so far failed to secure. However, it has slowly but quite deliberately started to restrict and attack legal immigration causing significant negative impacts on tourists and students choosing to come to the U.S., as well as employment-based, family-based, and humanitarian-based immigration.


    Published on 03-22-2018 08:32 AM

    H-1B Petitions Involving Third-Party Worksites: A look at what ‘specialty occupation’, ‘employment’, ‘employee’ and ‘employer-employee relationship’ now means – Part 2


    In the earlier article [1] , much of the work was dedicated to analyzing the definitions of ‘employment’, ‘employee’ and ‘employer-employee relationship’, and how the H-1B adjudications have changed as a result of the narrow interpretation of these terms, and diluting the importance of 2010 ‘Employer-Employee’ memo. I now turn my focus on to ‘specialty occupation’.

    Specialty Occupation

    INA Section 214(i)(1)(B) defines specialty occupation:

    (i)(1) Except as provided in paragraph (3), for purposes of section 101(a)(15)(H)(i)(b)…, the term "specialty occupation" means an occupation that requires-

    (A) theoretical and practical application of a body of highly specialized knowledge, and

    (B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

    Emphasis Supplied.

    In its decisions, as USCIS usually does, AAO put its initial focus on the proposed job duties to be performed onsite. The duties must show specificity and details necessary to support that the position is a specialty occupation. It cannot be a generic description, which means using static job descriptions is no longer safe. Rather, the position description must include sufficient details to substantiate that the petitioner has H-1B caliber work for the Beneficiary, such as:

    (1) the actual work that the beneficiary would perform on a day-to-day basis

    (2) the complexity, uniqueness and/or specialization of the tasks; and/or

    (3) the correlation between that work and a need for a particular level education of highly specialized knowledge in a specific specialty.

    AAO heavily applies standards established by court in Defensor [2] when it comes to evaluating H-1B petitions filed by IT consulting companies. The petition analysis will always begin with where the proposed duties will be performed by the beneficiary. In third party-placements, the duties and requirements as provided by the petitioner is now considered irrelevant to the specialty occupation determination. If the recipient of beneficiary’s services is a third-party end-client, then AAO had routinely taken a position that specialty occupation standards must be established through the job duties and educational requirements as acceptable by the end-client, and not that of the petitioner. [3] Submission of this evidence becomes even more complex in situations where there is layer of sub-contractors. Even in such a situation, if the petitioner does not provide any documentation from end-client, AAO’s position is that the position does not qualify for a specialty occupation. [4] Therefore, it has become critical now that the end-client must provide detailed job duties, and educational requirements, to be performed for that entity. Without this information, AAO said it will be difficult to determine if the beneficiary will be assigned to the end-client, and the term, scope, and nature of duties to be performed at the client site. An important caveat to note is that any end-client documentation that is being submitted must show that there is a legitimate assignment involving specialty occupation that exists for the duration of the requested validity period at the time the petition is filed. If any documentation is is being submitted post-filing, and that documentation would show it was signed AFTER the petition was filed, the documentation is being rejected on the ground that such post-filing material will NOT impact the present petition. [5]

    Next, AAO looks to see if the duties and academic requirements meet the regulatory standard. In order to establish that the position in U.S. qualifies as a specialty occupation, it must be shown that the position requires the theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation [6] . A petition may be approved, if the evidence meets at least one of the regulatory standards:

    (1) First Criterion – A bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for entry into the particular position;

    (2) Second Criterion – The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;

    (3) Third Criterion – The employer normally requires a degree or its equivalent for the position; or

    (4) Fourth Criterion – The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree. [7]

    Consistently, AAO case laws have established that the word ‘ degree’, as mentioned in INA Section 214(i)(1)(B), does not mean any bachelor’s degree, but must be one in a specific specialty that is directly related to the proposed position, unless the petitioner can demonstrate that an alternative, closely related specialty degree applies to the position. Combining several arguments in relation to the four prongs mentioned supra, AAO denied several cases for IT related positions, a few of which are listed below:

    Degree in disparate fields

    The primary factor that AAO looks at when determining degree requirements, as defined in INA Section 214(i)(1)(B), is what is the minimum specific specialty (or its equivalent) for entry into the occupation. One of the common mistakes noticed is petitioner’s inconsistency in listing the specific fields of study in their support letter at various places. Petitioners must avoid inconsistency in use of academic requirements, duties, projects and job titles. In first stating what degrees would be accepted for the proffered position, petitioners must be clear that the degrees must be related to each other. AAO and USCIS does not narrowly interpret the word “ specific specialty (or its equivalent)” to mean it will not accept seemingly disparate specialties provided the petitioner explains how these disparate fields are directly related to the duties and responsibilities of the particular position. For example, if the degree requirements are mentioned as computer science, engineering, business administration, statistics, electronics engineering, commerce, science or mathematics , petitioners would be required to show how these degrees are closely-related to the proffered position such that the knowledge and skills required for the position would be the same. AAO’s position now is also that if such disparate fields are required, without any explanation as to how they are related, then the position is not considered as a specialty occupation as there is no specific specialty required for the position. Petitioner must also avoid using generic degree names, such as “Business Administration”, “Science” or “Engineering” without any qualifying concentration, as that will be even more difficult to defend (for e.g., if petitioner states “Engineering” as its requirement, but does not identify any specific concentration, then it is difficult to defend how a civil and/or industrial engineering is relevant for a computer related position). Therefore, broad use of the degree terms, without explaining how it is related to the proffered position, is most likely to be rejected.

    The key element is in explaining that the ‘body of highly specialized knowledge’ is essentially same across all the fields identified in the support letter. [8] Secondly, the petition must be accompanied by a clear description of the position such that the duties markedly show knowledge in one of the identified fields is required to perform them. Therefore, it may be best to define the project in which the beneficiary will work, and relate your duties in context of that project, and highlight how the degree fields, and what courses the beneficiary took are relevant for the proffered position. In case the beneficiary qualifies for the proffered position through a combination of education and experience, ...

    Published on 03-21-2018 11:42 AM

    EB-5 Program to Be Extended to September 30, 2018 – Regulations to Increase Investment Amount Likely Meanwhile USCIS Approves Minors as Principal EB-5 Investors


    Invest in the USA (“IIUSA), the national EB-5 Regional Center trade organization, announced today that the EB-5 Immigrant Investor Visa and Regional Center Program Comprehensive Reform Act (the “ EB-5 Reform Act ”) will not be included in the omnibus appropriations legislation this week. The legislation does however, include an extension of the current EB-5 Regional Center Program through September 30, 2018 with no changes in the minimum investment amount.

    Wolfsdorf Rosenthal LLP is a strong proponent for reform and predictability to the EB-5 Regional Center Program, but only if it provides a fair deal to current EB-5 investors who are waiting their turn to immigrate. We also support future reform attempts which include meaningful provisions to increase the number of immigrant visas to EB-5 investors and reduce the backlog for Chinese and Vietnamese investors (and possibly in the future, for Indian and South Korean investors too) who are presently subject to the 7% per country allocation ...

    Published on 03-21-2018 08:26 AM

    Trump Claims the Wall Will ‘Pay for Itself’ – That Isn’t True


    Contrary to much overblown rhetoric, President Trump’s preeminent symbol of immigration enforcement—The Wall—is not a cost-effective way to enhance the security of the U.S.-Mexico border. The direct costs of the border wall are likely much higher than the Trump administration’s estimates; and indirect economic and social benefits which a wall might yield are much smaller than its supporters claim.

    Proponents of the border wall nevertheless argue that the wall will eventually “pay for itself” by reducing the fiscal and social costs associated with undocumented immigration . They claim a wall will mean fewer immigrants collecting “welfare,” “stealing” jobs from the native-born, and committing crimes. None of which is true.

    The Trump administration claims that a wall can be built along the U.S.-Mexico border for $12 billion. But other ...

    Published on 03-20-2018 01:39 PM

    What If My Case Did Not Get Chosen In The H-1b Lottery: Exploring Work Visa Options Beyond The H-1b Cap (Part VII of an VIII Part Series)


    Last year USCIS announced earlier that it received approximately 236,000 H-1B petitions for the fiscal year 2017. Once the lottery (also referred as “random selection process”) has been completed USCIS starts to send receipt notices. With uncertainty looming large as to who may or may obtain an H-1B in the 2018-2019 H-1B Fiscal Year Lottery, it is time that prospective H-1B visa beneficiary hopefuls start exploring other work visa options that may allow them to work and live in the United States on a temporary basis. This article provides a snapshot of possible work visa options that may be available to prospective H-1B nonimmigrant work visa beneficiaries who do not get chosen to be among the lucky few who are chosen to be in the 2017-2018 Fiscal year H-1B cap.


    There are certain categories of cap-exempt H-1B visas. One such category is for foreign nationals having (or hoping to have) an employment offer from an institution of higher education (or related or affiliated nonprofit entities), or from a nonprofit/government research organization.

    To be classified as cap-exempt, it not mandatory that the prospective H-1B employee should be employed by the institution of higher education (or related or affiliated nonprofit entities), or nonprofit/governmental research organization. Prospective H-1B employees, employed by any employer, who will perform the majority of his/her work ...

    Published on 03-20-2018 08:37 AM

    2018 immigration trends predictions: Dependents could lose work authorization!


    Factors like geopolitical activities, emerging markets, availability of talent, cost-of-living, country tax schemes to immigration changes, the health of global economies– all have a significant impact on the management and tracking corporate global mobility programs.

    During the past years, people have seen many impacts and shifts on immigration practices and policies, which can all translated to new challenges for employers across the world. However, the demand for a workforce that is globalized will still persist, and more companies ...

    Published on 03-19-2018 04:46 PM

    Long-Residing Liberians Are at Risk of Losing Protection from Deportation by the End of March


    While much of the national immigration conversation has focused on the fate of Dreamers and those with Temporary Protected Status , a little-known protection provided to Liberians is on the brink of expiration.

    This rarely-applied protection is known as Deferred Enforced Departure, a designation made by the president to provide temporary relief from deportation and work authorization for nationals of another country when it’s in our foreign policy interests to do so. Liberia’s Deferred Enforced Departure is due to expire on March 31, 2018. If no action is taken by the Trump administration, many Liberians who have lawfully lived in the United States for decades will find themselves suddenly without protection from deportation.

    When Liberia first erupted in civil war in 1991, Liberians were granted TPS, allowing nearly 10,000 ...

    Published on 03-16-2018 11:16 AM

    How Aggressive Immigration Enforcement Hurts America's Schools


    Immigration enforcement has become increasingly severe, especially in the past year. Yet news coverage often merely scratches the surface of what people across the country are experiencing. Consequently, one topic that often gets left out of the larger conversation is the deep and lasting impact immigration enforcement has on the education of children.

    Increasingly, education and childcare professionals report that this harsh approach to immigration enforcement is harming the environment in schools and childcare centers and, more broadly, the communities of students and families they serve. Two recent multi-state surveys add to a growing body of evidence demonstrating how immigration enforcement negatively affects children in the United States.

    The first, a national survey of pre-K through high school educators conducted by the Civil Rights Project at UCLA, reveals that immigration enforcement has negatively impacted U.S. schools and classrooms. Of the 5,438 teachers, administrators, and other school staff surveyed between October 2017 and January 2018, 73 percent observed potential impacts of immigration enforcement at their school.

    “Fear” and “separation” were the two most common words used when describing students’ immigration ...

    Published on 03-15-2018 09:06 AM

    10 Things to Know About the New EB-5 Reform Act


    On March 8, 2018, a draft of the EB-5 Immigrant Investor Visa and Regional Center Program Comprehensive Reform Act (the “EB-5 Reform Act”) was released. This new proposal is similar to earlier congressional reform attempts but also includes new provisions that would dramatically affect the EB-5 industry – both in the short-term and long-term. If passed, the Act would authorize the EB-5 Regional Center Program – currently set to expire on May 23, 2018 – until September 30, 2023. This longer-term extension is welcome news, ...

    Published on 03-14-2018 02:45 PM

    Chilling Effect of Proposed EB-5 Investment Amounts on EB-5 Regional Centers in Rural States


    Lawmakers are again considering changes to the EB-5 Program. In fact, before the end of this month, we may see provisions from the “Immigrant Investor Visa and Regional Center Program Comprehensive Reform Act” or “EB-5 Reform Act,” which is still circulating in draft form, packaged into an omnibus appropriations bill. This is consistent with what we thought may happen last October, ...

    Published on 03-14-2018 11:10 AM

    Chain Migration Is Fake News


    I’ve been an immigration lawyer for almost 20 years, since 1999, and I have never heard “chain migration” used in any way, shape, or form when it comes to immigration. We call it family immigration - we always have, and we always should because that’s what it is.

    Why is the media and the Trump administration calling family immigration “chain migration?” It’s because they don’t want you to know that it’s really about husbands and wives, kids, parents, and brothers and sisters. They want you to think of one evil person bringing in 17 people to the U.S., including aunts, uncles, and evil grandparents.

    Since there seems to be a lot of confusion about all of this, I want to explain what family immigration is and what it is not. First off, when you ...

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