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    Published on 04-18-2018 10:36 AM

    Opinion Analysis: Crime-based Removal Provision Is Unconstitutionally Vague


    In the last few years, the Supreme Court has decided a steady number of criminal-removal cases. In light of the Trump administration’s emphasis on the removal of “criminal aliens,” we will likely see even more criminal-removal cases in the future.

    Most of the removal cases that have recently come before the court, including Esquivel-Quintana v. Sessions , which was decided last term, have involved ordinary issues of statutory interpretation and deference to administrative agencies. Sessions v. Dimaya , which the court decided today in a 5-4 ruling, is different. The case began as a constitutional challenge to a criminal-removal provision in the immigration laws, which historically have been almost wholly immune from judicial review. It was originally argued last term, when the court was short-handed after the death of Justice Antonin Scalia, and the justices ordered reargument, suggesting that they were divided on the merits.

    An immigrant convicted of an “aggravated felony” under 8 U.S.C. §1101(a)(43) is subject to ...

    Published on 04-17-2018 09:52 AM

    Yes, All Immigrants – Even Undocumented – Pay Billions in Taxes Each Year


    Immigrants—both documented and undocumented—contribute billions of dollars in taxes to the United States every year.

    Immigrants who are authorized to work in the United States file the same taxes as any U.S.-native including local, state, and federal taxes. Unauthorized immigrants pay taxes as well, often using the Individual Tax Identification Number and consequently are paying the U.S. government for benefits they can’t even use.

    These tax contributions add up. Immigrant-led households across the country collectively paid $223.6 billion in federal taxes and $104.6 billion in combined states and local taxes in 2014, the most recent year for which Census data is available.

    Undocumented immigrants also contributed more than their fair share of taxes. In 2014, they paid an estimated $11.7 billion in combined state and local taxes. Notably, that contribution would rise to an ...

    Published on 04-17-2018 09:49 AM

    Cert Petition Filed in Interesting Immigration Case


    Yesterday's SCOTUSBlog's Petition of the Day was filed in an immigration case. The petition, filed in Estrada v. United States , presents the following question: Whether the deprivation of a lawful permanent resident’s opportunity to pursue statutorily available discretionary relief from removal can render entry of the removal order fundamentally unfair. I did not think much of the issue until I read the petition (Wilmer Cutler is the Counsel of Record) and saw that there is a circuit split with the Second and Ninth Circuits on one side and the Sixth Circuit on the other.

    Here are the facts of the case, which involves the removal of a long-term lawful permanent resident with U.S. citizen children, from the Petition:

    "As of 2007, Emilio Estrada had been a lawful permanent ...

    Published on 04-16-2018 03:04 PM

    EB-5 Project Restructuring and Priority Date Retention


    EB-5 success stories often occur but are rarely publicized. On the other hand, news about “failing” EB-5 projects, or the involvement of the U.S. Securities and Exchange Commission (“SEC”), or lawsuits brought by EB-5 investors against project developers or Regional Centers attract readership and are aplenty.

    Of course, the definition of a “failing” EB-5 project is subject to interpretation. Ideally, what most EB-5 investors seek is full green card status for the principal applicant and derivative beneficiaries, return of the principal investment, and a return (usually nominal) on that investment.

    But if the principal goal of the EB-5 investment of permanent residency within the U.S., then is a project that creates sufficient jobs for I-829 approval a failure, even if the EB-5 investment is not returned? ...

    Published on 04-13-2018 10:20 AM

    EB-1 for Entrepreneurs, Financiers, and Executives: A Wealth of Options


    Over the past few weeks, the Klasko EB-1 team has shared insights on how individuals in clinical and creative professions can position themselves for EB-1 Extraordinary Ability classification—the so-called “Einstein Visa.” By approaching EB-1 petitioning as a series of achievements that are already wedded to ongoing success in your field, rather than defining it as a singular spectacular triumph, strategies for success can be crafted even in the absence of major awards or global stardom. And though the regulatory language requiring ‘national or international acclaim’ can make EB-1 classification seem intimidating to professionals ...

    Published on 04-12-2018 11:19 AM

    European Refugees Are Making It To America, But Many Others Are Not


    At the halfway point of fiscal year 2018, the Trump administration has resettled 87 percent of the European refugee cap, but other regions are lagging far behind. Just 21 percent is filled for Africa, 20 percent for Latin America and the Caribbean, and 16 percent for the Near East and South Asia, according to data from the State Department’s Refugee Processing Center . The U.S. has resettled just 23 percent of the overall refugee cap after six months.

    Each year the President sets an overall refugee cap that includes regional allotments. President Trump set a 45,000 refugee cap for FY2018—the lowest in the history of the modern refugee program. Regionally, the ceilings are set at 19,000 from Africa, 5,000 from East Asia, 2,000 from Europe, 1,500 from Latin America and the Caribbean, and 17,500 from the Near East and South Asia.

    Regional Resettlement Discrepancies Were Lower in Previous Years

    After six months, not only are the total numbers for refugees resettled in the country low, but they are unbalanced. Almost four times as many Europeans have been resettled than those from around the world, as a proportion of their respective caps; the Near East/South Asia, Africa, and Latin America/Caribbean regions are dramatically lagging in total percent resettled.

    Why? The U.S. has resettled so few refugees from regions other than Europe because the administration has slowly—but deliberately—depleted resources away from certain regions. The situation is further exacerbated by the implementation of “extreme vetting” procedures for 11 mostly Middle Eastern and African countries alleged to be “high-risk nations.”

    The stark difference in regional resettlement percentages is not normal. ...

    Published on 04-12-2018 09:11 AM

    Vietnam EB-5 Retrogression Now a Reality: 5 Things to Know


    As predicted in our previous blog , Vietnam retrogression has occurred in the May 2018 Visa Bulletin , and now, only Vietnamese EB-5 applicants who filed before July 22, 2014 will be eligible to receive an EB-5 immigrant visa. Here are five things to know about this new development:

    1. Update in Visa Bulletin . The May 2018 Visa Bulletin indicates:
    Continued heavy applicant demand will result in the Vietnam Employment Fifth preference (EB-5) category reaching the per-country annual limit during April. As a result it has been necessary to impose a final action date on this preference for the month of May to control number use for the remainder of the fiscal year. It can be expected that the Vietnam Employment Fifth preference category will remain subject to a final action date for the foreseeable future.

    Published on 04-12-2018 08:49 AM

    For Some Well-to-do China-born, A Faster, More Useful, And Perhaps Less Expensive Alternative Than Eb-5 Investment To U. S. Immigration


    EB-5 investment into the U. S. by the China-born in the past has proven a boom to U. S. cash starved projects, investors, immigration lawyers, and Chinese agents. Through the practice of gerrymandering almost disconnected parts of municipalities, much of the risk-taking which was supposed to be a component of the law has been removed for investors giving $500,000 (instead of the regular $1 million) for projects in targeted ...

    Published on 04-12-2018 08:16 AM

    H1-B Visa Troubles Catapult Indian Nationals Towards EB-5


    Recent trends in EB-5 investment has seen a huge interest from India especially among H-1B professionals. This is largely due to the uncertainty surrounding America’s largest guest worker visa, the H-1B. On April 6, 2018, U.S. Citizenship and Immigration Services (USCIS) announced that the congressionally mandated H-1B visa cap for fiscal year 2019 had been reached within only five days after the agency began accepting applications. Yet again, the fates of many professionals and skilled workers in the US remain uncertain, driving interest in the EB-5 visa program in an effort to attain security.

    The H-1B Guest Worker Visa

    The H-1B visa is America’s largest guest worker visa, allowing American companies to employ skilled foreign workers in specialty occupations that require theoretical or technical expertise. These are often specialized jobs that can be challenging to fill. It has benefited the tech industry enormously, and other sectors, including health care, science, and finance, have also used it to fill gaps in their workforces. The H1-B candidate must have at least a bachelor’s degree. Once approved, H-1B visa holders are entitled to legally work in the U.S. for up to 6 years, with the possibility of extensions.

    It is a popular visa, but the applications far outweigh visa numbers. This year, like last, hundreds of thousands of applicants will be disappointed. In 2018 there were 336,107 petitions for only 65,000 visas for the general category and 20,000 visas for the advanced degree exemption; only 197,129 were granted approval. [1] The applications were finally chosen randomly through a lottery system.

    Popular with Indians:

    The H-1B skilled worker visa program has been traditionally popular among Indian professionals. In fact, India is the country of origin for more than 80 percent of H-1B recipients [2] , amongst which, many are in the technology sector, ranging from software engineers to computer programmers. The companies that bring in the most H-1B workers, however, are not Silicon Valley tech firms but IT services firms, many based in India, that specialize in consulting or outsourcing. These companies, which include Tata Consultancy Services, Cognizant, Infosys, Wipro, Accenture, IBM India, and Deloitte, are contracted by other companies to do IT work. According to an analysis by Ronil Hira, a professor of public policy at Howard University, in 2014 nearly one-third of new H-1B visas went to 13 of these so-called “outsourcers.” (Tata received the most visas, with 5,650, while Amazon, the tech company with the highest number, got 877.) [3]

    Critics of the program argue that IT service companies tend to hire H-1B workers for lower-paying entry-level work. For example, Axios reported that 72.4% of Tata’s H-1B visa filings were for jobs paying between $60,000–$70,000 a year. [4] Companies like Amazon, Apple, Facebook, Google, and Microsoft mostly filed for jobs that paid well above $100,000.

    Published on 04-11-2018 09:51 AM

    Regulations v. Legislation – On the Brink of EB-5 Reform


    Recent tweets from U.S. Citizenship and Immigration Services (“USCIS”) indicate that administrative changes to the EB-5 Program are a priority in Fiscal Year 2018. It now appears almost certain the proposed regulations from over one year ago will be finalized very soon.




    EB-5 visas are intended to provide lawful permanent residence to foreign nationals who promote economic growth in the United States. We are working to reform and modernize the program and have proposed a rule to better reflect Congressional intent.


    9:08 AM - Mar 23, 2018



    Replying to @USCIS

    Our proposed rule would amend how targeted employment areas are designated ...

    Published on 04-11-2018 09:34 AM

    Fearlessly Challenging H-1B Visa Denials Through Litigation


    As we have blogged about extensively in the past, President Trump’s “ Buy American and Hire American ” Executive Order No. 13788 has had the most negative impact on the H-1B visa program. Following this pattern, the recent trend by the U.S. Citizenship and Immigration Services (USCIS) heading into the Fiscal Year (FY) 2019 H-1B Cap filing season has been to rely on the Department of Labor’s (DOL) Occupational Outlook Handbook (OOH) to arbitrarily deny H-1B visa petitions for Information Technology (IT) positions, such as computer systems analysts. In RFEs and denial decisions, USCIS states that they recognize the OOH as an “authoritative source on the duties and educational requirements” of a variety of occupations, and has used the OOH’s general statements on such requirements to deny H-1B petitions for failing to establish that a bachelor’s degree in a specific specialty is the normal minimum requirement for entry into the position, despite statements in the OOH to the contrary. In addition, USCIS recently put out a statement entitled Combatting Fraud and Abuse in the H-1B Visa Program expressing an intent to continue to target H-1B dependent employers in the IT industry who assign H-1B workers at client sites.

    One should expect the same sort of H-1B carnage like last year. No matter how well one responds to the request for evidence or argues the case before the Administrative Appeals Office (AAO), the outcome could still be a preordained denial – as if Trump’s wall is already up. The key issue is whether there may be a different and effective strategy for overcoming next year’s H-1B cap denials, such as suing the USCIS in federal court.

    USCIS has typically based these types of denials on claims that the proffered positions fail to qualify under any of the specialty occupation criteria listed in 8 CFR § 214.2(h)(4)(iii)(A). ...

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