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    Published on 11-22-2017 05:05 PM

    Matter of G- Inc.: Clarifying the Role of the Function Manager Under the L-1 Visa

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    The Administrative Appeals Office (AAO) recently adopted a decision, Matter of G- Inc ., Adopted Decision 2017-05 (AAO Nov. 8, 2017), providing important guidance to U.S. employers who transfer function managers under the L-1 intracompany visa. The L-1 visa allows a U.S. employer to transfer an executive or manager (L-1A) or a worker with specialized knowledge (L-1B) from a foreign subsidiary or affiliate.

    As corporate structures are changing from hierarchical to flat in a globally interdependent world, the role of the function manager, who manages a function rather than people, has become increasingly relevant under L-A visa classification. A flat organization has few or no levels of management between management and staff level employees. The flat organization supervises employees less while promoting their increased involvement in the decision-making process. Building upon momentum gained from its decision in Matter of Z-A- , Adopted Decision 2016-02 (AAO Apr. 14, 2016), the AAO in Matter of G- held that:

    (1) To support a claim that a beneficiary will manage an essential function, the petitioner must establish that the function is a clearly defined activity and is core to the organization.

    (2) Once the petitioner demonstrates the essential function, it must establish that the beneficiary’s position meets all criteria for “managerial capacity” as defined in 101(a)(44)(A) of the Act. Specifically, it must show that the beneficiary will: primarily manage, as opposed to perform, the function; act at a senior level within the organizational hierarchy or with respect to the function managed; and exercise discretion over the function’s day-to-day operations.

    Under its prior decision in Matter of Z-A-, the AAO held that an L-1A intra-company manager who primarily manages an essential function can also be supported by personnel outside the United States within an ...

    Published on 11-21-2017 05:01 PM

    Asylum Seekers Are Being Systematically Turned Away at the U.S.-Mexico Border

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    It is an egregious, well-documented reality that U.S. Customs and Border Protection (CBP) frequently turns away people seeking asylum along the U.S. southern border. But new evidence presented to a federal district court on Monday shows that CBP’s practice of blocking access to asylum—through the use of misrepresentations about the asylum process, threats, abuse, and coercion—is a systemic problem within the agency, and therefore requires relief for both past and future asylum seekers.

    The evidence was submitted as part of a class certification motion in a lawsuit filed in July 2017 by the American Immigration Council, the Center for Constitutional Rights, and Latham ...

    Published on 11-21-2017 04:55 PM

    An Unusual Trip to China

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    It is certainly not unusual that I will be spending the next 2 weeks in China. At times, I feel like China is my second home.

    What is unusual is the subject matter of my seminars and meetings in 7 cities in China. Normally, the topic is the latest developments in EB-5, projects that agents are interested in and questions that agents have. While I am sure that there will be some discussion of these EB-5 issues, they are no longer the hot issue in China. Given the extensive EB-5 quota backlog, agents and investors want to know immigration options that exist that do not have the long quota wait or options that exist for being able to come to the U.S. (and have their ...

    Published on 11-17-2017 02:52 PM

    Canada’s Immigration Plan Continues to Target Most Skilled and Educated in the world

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    Canada is one of the top 10 countries where to live in the world. According to the US News – World Report, Canada ranks #2 overall among the best nations to live on the globe. Switzerland is the top ranked country within their index. As noted in their report the methodology is “based on how global perceptions define countries in terms of a number of qualitative characteristics, impressions that have the potential to drive trade, travel and investment and directly affect national economies. Eighty nations – up from 60 in the inaugural rankings – were measured in the report.” [1]

    In contrast, the United Nations Human Development Report 2016 ranks Canada in the 10th spot at par with the United States. [2]

    However, it is important to note major changes have taken place since this report was published; primarily the effects and overall world perception of the USA’s new presidential administration.

    Immigration, Refugees and Citizenship Canada (IRCC) Report on Canada’s Immigration Plan 2017-2017 aims to improve and extend the incoming of Newcomers to 300,000 through its four immigration categories: Economic, Family, Refugees and Protected Persons, and Humanitarian and Other. [3]

    The Economic category is expected to make up 57.3% of the new Immigrants via various programs which include: Federal Skilled Worker Program, Federal Skilled Trades Program, Canadian Experience Class and Atlantic Immigration program which make up the bulk of the above noted figure. Other notable programs within the same category include are the Federal Caregivers, Federal Business, Provincial Nominee Program and the Quebec Skilled Workers and Business.

    When presenting the plan, the Honourable Ahmed Hussen, Minister of Immigration, Refugees and Citizenship expressed “[Canada] will continue to facilitate the legitimate entry of visitors, economic immigrants, sponsored family members and those in need of refugee protection, while guarding the health, safety and security of Canadians… Canada’s immigration plan has many facets. It reunites families and offers protection to displaced and persecuted people while working to attract top global talent that will contribute to our economy.” [4]

    As a country, Canada offers newcomers a new opportunity to follow-up on with their careers path, seek new opportunities, and be a safe haven and above all, increase individuals overall quality of life in a culturally diverse nation.

    Since 2010, the overall number of students entering Canada has steadily increased on a yearly basis by an average of 13%. [5]

    International Students come into the country to attend secondary, College, Trade and University institutions, which year after year are increasing their general student body with a larger representation of International Students.

    From an Economic standpoint, the global interest in Canada by International Students is driven by a genuine interest to remain in Canada after their education. This premise allows students to qualify for Work Permits after graduating from a qualified post secondary program within the Designated Learning Institution List. Please note that not all programs listed by DLI’s qualify for a Post Graduate ...

    Published on 11-17-2017 12:26 PM

    New Legislation Targets H1B Dependent Employers

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    On November 15, 2017, the House Judiciary Committee approved H.R. 170, better known as the Protect and Grow American Jobs Act , clearing the way for the new bill to move forward in the U.S. House of Representatives. H.R. 170’s sponsor, Representative Darrell Issa of California’s 49th Congressional District, issued a Press Release touting his proposed bipartisan legislation as a “common-sense” update to this widely utilized classification that will protect both the H-1B program and U.S. workers. Indeed, Representative Issa reaffirmed that while “[h]ighly skilled individuals that come to America through the H-1B visa program add tremendous value to the U.S. economy…loopholes in the program have allowed a small handful of employers to game the system to displace American workers and crowd out others who legitimately need the limited slots available to recruit individuals with unique skillsets not available here at home.”

    Though subject to amendments ...

    Published on 11-15-2017 03:27 PM

    The Government’s “Nasty” Treatment Of Expert Opinions In Support Of H-1B Visa Petitions

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    USCIS’ current ferocious attack on H-1B petitions has been discussed here , here and here . Backed by the Trump administration, USCIS has openly declared war on H-1Bs. What is most frustrating, in my opinion, is not only the fact that there appears to be a concerted effort to find some way to reject each and every logical, rational, legal argument presented in response to one of the USCIS’ Requests for Evidence (RFE) but that it appears that no argument is too baseless for USCIS to present when issuing a denial of an H-1B petition. Case in point is USCIS’ rejections of expert opinions presented to bolster an employer’s argument that an H-1B position is classifiable as a specialty occupation.

    As a reminder, in order to hire a foreign worker in a specialty occupation under the H-1B category, the employer must show in its petition that the proffered position meets at least one of the following criteria:

    1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
    2. The degree ...
    Published on 11-15-2017 03:17 PM

    5 Takeaways from USCIS IPO’s November 2017 Stakeholders Meeting: New Challenges for the EB-5 Industry

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    On November 7, 2017, the U.S. Citizenship and Immigration Services’ (“USCIS”) Immigrant Investor Program Office (“IPO”) hosted an EB-5 Stakeholders meeting in New York City. The EB-5 community uses these stakeholder meetings to obtain guidance from IPO on recent adjudication trends. Here are five major takeaways from the meeting:

    1. “Sustainment” Requirement. Attorney Bernard Wolfsdorf asked a question impacting mainland-Chinese investors regarding USCIS’ draft June 2017 policy guidance on redeployment. He asked whether, due to the visa backlog for mainland-Chinese investors, USCIS’ policy guidance means that a mainland Chinese investor’s EB-5 capital must be “at risk” for much longer than the EB-5 capital of an investor from any other country (unless Vietnam and India also become backlogged). He further asked whether keeping the investment at risk until the filing of the I-829 might be inconsistent with Congress’ intent at INA § 216A(c)(1)(A) that an EB-5 investment must only be “at risk” for 2 years. USCIS responded that the 2-year period listed in the EB-5 law starts at the beginning of each investor’s respective conditional ...
    Published on 11-14-2017 03:22 PM

    We Spoke, USCIS Listened

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    Last Friday, November 10, 2017, Mona Shah Global in conjunction with the Steven L. Newman Real Estate Institute at Baruch College hosted a joint conference with the Immigrant Investor Program Office (IPO) from USCIS. The one-day event was the first stakeholder conference of its kind ever organized with USCIS, and also the first event to be live-streamed online for a global audience. Featuring numerous speakers and industry leaders, the conference covered some of the most pressing issues and concerns facing the EB-5 market today over a series ...

    Published on 11-13-2017 04:37 PM

    U.S. And Turkey Resume Limited Visa Services

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    On November 6, 2017, nearly one month after suspending nonimmigrant visa services at the U.S. Embassy in Ankara and the U.S. Consulates in Istanbul and Adana due to the arrest of a U.S. Consular Employee in Istanbul, the U.S. Mission in Turkey announced the “limited resumption of visa services in Turkey.” Per the statement, lifting the recent suspension followed “initial high level assurances from the Government of Turkey that there are no additional local employees of our Mission in Turkey under investigation.” According to the U.S. Mission in Turkey, the Turkish Government also provided assurances that “local staff will not be detained or arrested for performing their official duties and that Turkish authorities will inform the U.S. government in advance if the Government of Turkey intends to detain or arrest a member of our local staff in the future.”

    The Statement is short on details concerning what “limited visa services” actually ...

    Published on 11-13-2017 10:55 AM

    The Military’s Strategic and Recruitment Goals Fail When Immigrants Can’t Serve

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    The United States Armed Forces has long valued the contributions of immigrants—from the War of 1812 to the ongoing conflicts in the Middle East, U.S.-born and immigrant soldiers have fought alongside one another with no concern for nationality or immigration status. Yet, within the first several months of the Trump presidency, the administration has created additional and unnecessary barriers for immigrants looking to serve.

    A detailed history of immigrants’ service in the military is outlined in a new report from The National Immigration Forum, For the Love of Country: New Americans Serving in Our Armed Forces . The report details the military’s need for a broader pool of eligible applicants and how immigrants could—if allowed—fulfill that need with critical foreign-language, medical, and cultural skills.

    Approximately 40,000 immigrants serve in the U.S. military, with 5,000 noncitizen soldiers typically enlisting each year. As of 2016, ...

    Published on 11-10-2017 03:09 PM

    A New Era in U.S. Immigration: 5 Things to Know

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    Changes to U.S. immigration law are generally thought to come at the congressional level after public debate about the role of immigration in our country and economy. Yet, government agencies, like U.S. Citizenship and Immigration Services (“USCIS”) within the U.S. Department of Homeland Security (“DHS”) and U.S. Department of State (“DOS”), have power to alter policies without any legislative action in accordance with the delegation of authority provided by Congress. President Trump has directed that USCIS and DOS use this power to transform how they adjudicate U.S. immigration benefits. The U.S. Attorney General has even attacked “ dirty immigration lawyers ” who assist asylum seekers in navigating the complex immigration system. Furthermore, President Trump has appointed individuals who previously worked for the Federation for American Immigration Reform (“FAIR”), a nonprofit regarded as a restrictionist advocacy group, as top officials at USCIS. Here are five things to know about this new era of immigration:

    1. No Deference to Prior Immigration Approvals . USCIS announced on October 23, 2017 that it would no longer defer to prior determinations of eligibility when adjudicating petition extensions involving the same parties and underlying facts as the initial petition. Employers should be ready to provide the same level of documentation for an amendment ...
    Published on 11-09-2017 12:01 PM

    Some Thoughts on President Trump's Call for Immigration Reform in the Wake of the NYC Terror Attack

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    During the 2016 presidential campaign and later as President, Donald Trump called for building a wall between the United States and Mexico, issued three travel bans on immigrants from predominantly Muslim nations, ended the Deferred Action for Childhood Arrivals program for young undocumented immigrants, and embraced aggressive immigration enforcement. It can be no surprise that, after the tragic events in New York City last week involving an immigrant from Uzbekistan, President Trump wasted no time in blaming the immigration system . Unfortunately, he has misstated the facts and made constructive immigration reform less, not more, likely.

    Trump said on Twitter that the driver in the New York attack "came into our country through what is called the ` Diversity Visa Lottery Program,' a Chuck Schumer " — a reference to the Senate's Democratic leader. He also tweeted: "We are fighting hard for Merit Based immigration, no more Democrat Lottery Systems. We must get MUCH tougher (and smarter)."

    In endorsing “merit”-based immigration, Trump was alluding to the Reform American Immigration ...


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