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    Published on 04-25-2018 01:53 PM

    Extraordinary Entrepreneurs Require Extraordinary Evidence: A Review of Recent Non-Precedent EB-1A AAO Decisions Under the Trump Administration


    An international entrepreneur’s options for permanent residence are limited. The United States does not have a “start-up” visa. For many entrepreneurs, particularly those facing long backlogs in other immigrant visa categories, an “extraordinary ability” petition may be the only available path to a green card.

    A foreign national can demonstrate extraordinary ability, and thereby eligibility for permanent residence in the employment-based first preference category (EB-1A), by having obtained a major international prize such as a Nobel Prize or an Academy Award. [1] Such awards are uncommon in most EB-1A petitions, particularly with entrepreneurs. Absent such an award, a foreign national can still demonstrate extraordinary ability by documenting at least three of the following ten criteria:

    1. Receipt of a lesser nationally or internationally recognized prizes or awards;
    1. Membership in associations in the foreign national’s field of expertise that require outstanding achievements of their members;
    1. Published material about the foreign national in professional or major trade publications or other major media;
    1. Participation, either individually or on a panel, as a judge of the work of others in the foreign national’s field;
    1. Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the foreign national’s field;
    1. Authorship of scholarly articles in the foreign national’s field, in professional or major trade publications or other major media;
    1. Display of the foreign national's work at artistic exhibitions or showcases;
    1. A leading or critical role for organizations or establishments that have a distinguished reputation;
    1. Command of a high salary or other significantly high remuneration for services, in relation to others in the field; or
    1. Commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

    If these criteria do not apply to the foreign national’s field, the foreign national may submit comparable evidence. [2]

    Given the importance of EB-1A to many foreign entrepreneurs, we sought to find examples of how entrepreneurs are faring in meeting the criteria above under the current administration. To that end, we found three non-precedent decisions issued by the U.S. Citizenship and Immigration Services’ Administrative Appeals Office (AAO) since January 2017. In each of the three cases filed by international entrepreneurs, the AAO carefully parsed the evidence, found sometimes non-obvious insufficiencies and vagueness in the evidence, and denied the petition.

    This article summarizes each case, with particular attention paid to the evidence provided and how the AAO treated that evidence. It concludes with some observations on what international entrepreneurs should do to maximize their chances of obtaining an extraordinary ability green card.

    Matter of O-P- , Oct. 18, 2017

    Published on 04-25-2018 11:12 AM

    More Countries (including India) soon to face EB-5 Visa Retrogression


    April 23, 2018, at the IIUSA Annual Conference in Washington DC, Charlie Oppenheim, Chief, Visa Controls Office at the US Department of State delivered the breaking news that more countries will face final action dates, leading to visa retrogression. These countries include: India, Brazil, Taiwan, South Korea – all popular countries for the EB-5 visa.

    What is a Final Action Date? A final action date (FAD) marks the end of a “current visa” status for a country, ...

    Published on 04-24-2018 09:37 AM

    Department of Justice Ignores Its Own Evaluators’ Recommendations on Immigration Courts


    A newly-released document obtained under the Freedom of Information Act (FOIA) shows that the Department of Justice (DOJ) is making radical changes to the immigration court system that deliberately contradict the recommendations given to the department by its own independent evaluators.

    The recommendations were made in an April 2017 Booz Allen Hamilton report commissioned by The Executive Office for Immigration Review (EOIR)—the agency that houses the immigration courts. The year-long analysis summarized in the report recommended steps to resolve inefficiencies ...

    Published on 04-23-2018 01:37 PM

    EB-5: The Best (and Only?) Option for Many Indian Nationals


    It is not easy being a citizen of India who wants to live and work in the U.S. and become a legal permanent resident and possibly a citizen of the U.S. We know – – we represent many of them.

    Our Indian clients don’t just face a “double whammy”. They face a multi-front coordinated series of hurdles and roadblocks.

    Let’s set out the problem, and then we’ll provide what, for many, is the only solution.

    The present Administration in Washington has been no friend to Indian citizens. Here’s why:

    • Upon completion of studies, our Indian client is often eligible for practical training (“OPT”). The present Administration is actively attempting to restrict OPT, which has been the subject ...
    Published on 04-20-2018 02:19 PM

    Supreme Court to Hear Oral Arguments (Finally) in "Travel Ban" Case


    On April 26, the Supreme Court will hear oral argument in Trump v. Hawaii , the "travel ban" case. The questions presented are as follows:

    (1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable;

    (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad;

    (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and

    (4) whether the proclamation violates the establishment clause of the Constitution.

    The Ninth Circuit in a per curiam opinion by Judges Michael Daly Hawkins , Ronald Gould , and

    Published on 04-19-2018 03:50 PM

    High Profile Cases Highlight Border Patrol Abuses and Need for Systemic Change


    U.S. Customs and Border Protection (CBP)—the Border Patrol in particular—has a reputation for repeatedly and systematically violating the rights of immigrants and U.S. citizens alike. Border Patrol agents are known for regularly using excessive force during apprehensions, detaining people under inhumane conditions, and resorting to coercion and misinformation in order to remove people from the United States. Despite the growing number of reports and studies which document these misdeeds and recommend systemic reforms to prevent them, a pattern of abusiveness remains.

    For instance, in April 2018, a video from March 2017 surfaced which captured an incident in which two Border Patrol agents operating along the border in El Centro, California, tried to dump an injured and incoherent man on the Mexican side without even verifying from what country he actually came. When Mexican ...

    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 ...

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