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    Published on 09-21-2017 04:08 PM

    EB-5 Investment at All Time High: It’s Time to Restore Congress’ Original Intent to Admit 10,000 Investor Families

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    U.S. Citizenship and Immigration Services (USCIS) released new data today on the number of Form I-526 and Form I-829 petitions received, approved, denied and pending.

    One thing remains clear: The demand for EB-5 visas has never been higher. Nearly 50,000 Form I-526s have been filed since June 2014, representing about $25 billion of direct foreign investment in the U.S. economy, resulting in a revival of downtown areas in New York, Los Angeles, Seattle, Dallas and many other areas throughout the U.S. EB-5 is without doubt one of the most successful job creating programs the U.S. has ever seen. About 80% of this investment comes from mainland China. Yet, almost half these petitions, or 24,621 Form I-526s, remain pending with USCIS.

    Due to an outdated EB-5 visa quota established in 1990, and the EB-5 program’s recent success, demand for EB-5 visas from mainland Chinese nationals has created a waiting line that is threatening the viability of this critical U.S. job creation program. For the month of October 2017, only applicants who filed before June 22, 2014 are eligible for final interviews. This is because the October Visa Bulletin published by the Department of State established a cutoff date of June 22, 2014. The China visa cutoff date is now moving slowly at the rate of only one week per month. Without changes that increase ...

    Published on 09-20-2017 11:34 AM

    A Few Suggestions To Defend Oneself Against A Misrepresentation Finding Under The 90-Day Rule

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    The State Department has abruptly amended the Foreign Affairs Manual to provide broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas. A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a permanent ground of inadmissibility.

    The updated FAM provision at 9 FAM 302.9-4(B)(3)(g)(2) covers instances of conduct that may be inconsistent with representations that visa applicants made to consular officers when applying for nonimmigrant visas or to DHS officers at US ports of entry at the time of admission. The inconsistent conduct must have occurred within 90 days of entry, and the FAM instructs consular officers to presume that the applicant’s representations about engaging in status compliant activity were willful misrepresentations of his or her intention to seek a visa or entry into the United States. If the foreign national engaged in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry, no presumption of willful misrepresentation arises, although consular officers may still find facts that provide a reasonable belief that the foreign national misrepresented his or her purpose of travel at the time of applying for a visa or admission into the US.

    The FAM cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation:

      1. Engaging in unauthorized employment;
      2. Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B ...
    Published on 09-20-2017 10:34 AM

    17 Tasks You Can Do in 5 Minutes or Less to Ensure I-9 Compliance

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    This’ll keep you up at night: ICE (the Department of Homeland Security’s Immigration and Customs Enforcement) sometimes investigates a business for months without the business’s knowledge before serving a notice of I-9 inspection.

    Though the I-9 might seem simple, virtually every business and HR manager makes mistakes–often simple to fix–that can expose their company to thousands of dollars in fines & penalties. What’s more, there have been lots of changes recently, and chances are, you’re either already making mistakes or could do a few simple things to make your compliance easier (and make it easier to sleep at night).

    But I-9 compliance doesn’t have to be difficult or cumbersome. The tactics in this article make it easy for you. Ready? Let’s dig in!

    (If you have questions, you can always call us for a quick chat at 732.955.7330).

    Contents

    #1: At-a-glance I-9 compliance with this simple tool

    #2: Use this simple tool to prevent I-9 penalties & fines

    #3: Spot fake documents like a CSI pro

    #4: Automatic I-9 compliance: create a monthly recurring appointment for a quick self-audit

    #5: Prevent discrimination by moving I-9s out of personnel files and into their own file

    #6: Purge & shred at a glance: use this simple tool to automatically see which I-9s to retain

    #7: To photocopy or not? The simple answer

    #8: Put it on lockdown: the 4 people who need access to I-9s

    #9: Prevent the problem: No docs, no work

    #10: Start fresh when acquiring a company’s employees: they all need a new I-9

    #11: Use the “smart” I-9 to prevent common (but costly) mistakes

    #12: Why paper is better: easier compliance than electronic I-9 storage

    #13: The 2 questions for pre-screening candidates (without breaking the law)

    #14: Keep it simple: 2 binders for your I-9s: active vs. terminated employees

    #15: 4 printable downloads that keep you current

    #16: Verify work eligibity in seconds

    #17: The simple way to keep current with foreign worker reverifications

    Questions? We have answers

    #1: At-a-glance I-9 compliance with this simple tool

    On the surface, the I-9 seems easy enough, but if you don’t have a way to track current & past employees, what’s needed from each, and when past employee records can be destroyed, you open a potentially very expensive can of worms.

    With this simple tool, you can, at a glance, see exactly what’s needed and from whom. No more guessing or losing sleep over whether you’re in compliance.

    Here’s how:

    Download our simple I-9 Auto-Manager Tool (no cost), that lets you track all your employees in 1 place. You can get access in 10 seconds:

    Where should we send your free I-9 Auto-Manager Tool?


    Then, write in the name of each active employee on a separate row.

    Next, enter their hire date in the Hire column.

    Then, schedule a time on your calendar for 30 minutes next week to fill in all your company’s past employees who were hired in the past 3 years. (When you fill in their Hire and Termination dates, the worksheet will automagically calculate when you can shred the employee’s I-9 per the ISCIS rule of either three years after the date of hire or ...

    Published on 09-19-2017 02:12 PM

    International Entrepreneur Rule Litigation

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    Several plaintiffs have jointly sued the Trump administration's USCIS and Department of Homeland Security over the delay in implementation of the International Entrepreneur Rule . Meltzer Hellrung LLC is proud to represent one of those plaintiffs, Occasion . The lawsuit has been brought in US District Court for the District of Columbia.

    The International Entrepreneur Rule was slated to go into effect in July. The rule would have allowed a small number of entrepreneurs the opportunity to enter and work in the US through parole ...

    Published on 09-19-2017 01:52 PM

    Extreme Hardship Factors Immigration Cases

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    INTRODUCTION

    Background

    Extreme Hardship cases in immigration law comprise the bulk of all cases referred to my practice. In such situations, the client has close family members, including parents, spouse, or children who would suffer extreme hardships either if the client is forced to leave the United States alone, or if the family chooses to relocate with the client to his country of origin—assuming that this is even possible.

    This paper will explore what I have garnered as essential aspects of the forensic evaluation in mitigating extreme hardship immigration cases. It should be noted that many of these cases also involve a criminal or “illegal” matter, such that the respondent or petitioner must prove both extreme hardships and also mitigate the criminal matter. This requires a dual analysis for the mitigation expert.

    It is the contention of this author that the immigration defense lawyer must interweave the criteria for extreme hardships as key mitigating factors, as this truly affords the adjudicator the opportunity to fully consider and understand the client’s psychosocial issues as legal mitigating factors, rather than simply background information established for the sake of general argument. That is, it is crucial to demonstrate a concrete nexus between the legal standard and the underlying psychosocial issues that support the extreme hardship analysis. I have always believed that criminal and immigration mitigation is not simply an effective tool for the sake of argument, but a necessary factual underpinning to support the factors in both statute and case law.

    Case Law

    A few key cases should be noted.

    Matter of Monreal , 23 I&N Dec. 56 (BIA 2001) –
The Board of Immigration Appeals (BIA) attempted to define the meaning of "extreme" and "exceptional and extremely unusual" in the hardship analysis.

    Matter of Recinas , 23 I&N Dec. 467, 470 (BIA 2002) – The BIA found that “the hardship standard is not so restrictive that only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief.” Recinas further noted that any review of “exceptional and extremely unusual hardship” decisions from the Immigration Judge would start with a consideration of the factors in Monreal and Matter of Andazola, 23 I&N Dec. 319 (BIA 2002).

    Matter of Ige , 20 I&N Dec. 880 (BIA 1994) –
Facts must be independently considered and the hardship evaluated ...

    Published on 09-18-2017 12:49 PM

    Eight Paragraphs Of Asylum Officer Assessment Ordered Released In A Freedom Of Information Lawsuit

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    A U.S. District Court judge ordered the Department of Homeland Security to release the first eight paragraphs of an asylum officer assessment: Bayala v. U.S. DHS, 2017 WL 3841828 (D.D.C. 2017).

    Mr. Florent Bayala made a Freedom of Information Act [FOIA] request for the notes and assessment of his asylum officer. The DHS furnished the notes, but asserted that the assessment was entirely exempt. The facts in the assessment were “inextricably intertwined” with exempt material, according to the DHS. However, after an in camera inspection, the Court disagreed.

    5 U.S.C. section 552(b) provides that even if a document in general is exempted from disclosure, ...

    Published on 09-18-2017 12:44 PM

    FEATURED STORY: Diversity Visa Lottery Update

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    Almost anyone who has completed the equivalent of a U.S. high school education, or has worked for at least two years within the last five in a qualifying occupation, is eligible to enter the Department of State’s annual visa lottery program which issues 50,000 green cards to persons from countries with historically low rates of immigration to the U.S. Once selected in the drawing, “winners” must act quickly to be among the first to qualify for their visas.

    DV-2018 Lottery Program
    If you participated in the DV-2018 Lottery Program , you may check online to see if you were selected in the lottery. Please note that the Department of State does not send selectee notifications or letters ...

    Published on 09-15-2017 01:06 PM

    ‘Day Without Immigrants’ Highlights How America Relies on the Immigrant Labor Force

    by


    The various events commemorating the “ Day Without Immigrants ,” held in cities around the country today to fight President Trump’s anti-immigrant policies, underscore a key reality about the United States: we are a nation dependent on immigrants including the undocumented. The Day Without Immigrants was marked by street protests, immigrant workers staying off the job, and kids being kept home from school.

    The message was simple: immigrants, not to mention the many native-born Americans who believe in immigrant rights, are not an insignificant or passive group of people. If Trump persists in his campaign to ramp up deportations and demonize immigrants, he will meet sustained resistance.

    An underlying premise of the Day Without Immigrants that broad swaths of the U.S. economy rely upon the labor of immigrants is undeniable:

    • The nation’s 26.7 million immigrant workers including the undocumented, Lawful Permanent Residents (LPRs), and naturalized U.S. citizens amount to
    Published on 09-14-2017 02:10 PM

    New Immigration Court Directive Could Weaken Due Process

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    The Trump administration released a memorandum this week–effective immediately–which orders the Department of Justice Executive Office for Immigration Review (which manages the immigration courts) to prioritize deportation hearings for certain groups, including any non-citizens who are detained and unaccompanied children who do not have a sponsor. The memo rescinded preexisting immigration court priorities from early 2016 and 2015 that included all other unaccompanied children, families released from custody, and other recent border crossers.

    On its face, the new directive may appear simply bureaucratic or benign, as it primarily narrows the focus of the court docket to those in government custody, perhaps in an effort to minimize government costs on detention. In practice, however, the new memo targets vulnerable children who arrive at the United States alone and who do not have a sponsor in the U.S. with whom they can live, but have yet to be placed in long-term foster ...

    Published on 09-13-2017 11:16 AM

    State Department Toughens Standard For Assessing A Foreign Student’s Ties With Home Country

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    Similar to many other nonimmigrant admission requirements, under INA § 101(a)(15)(F), a foreign national must show that they have a foreign residence which they do not intend on abandoning in order to be admitted in F-1 nonimmigrant student status. As explained below, this requirement has been applied to students in various ways over the years, from strictly applying the requirement in the 1990s to a loosening of the standards under the 2005 State Department Cable .

    In August 2017, the State Department yet again changed the ways in which F-1 visas are adjudicated by amending 9 FAM 402.505(E)(1) “Residence Abroad Required” , to now include the following provision:

    b. Examining Residence Abroad : General rules for examining residence abroad are outlined in 9 FAM 401.1-3(F)(2). If you are not satisfied that the applicant’s present intent is to depart the United States at the conclusion of his or her study or OPT, you must refuse the visa under INA 214(b). To evaluate this, you should assess the applicant’s current plans following completion of his or her study or OPT. The hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application if you are satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT.

    The previous language provided, in relevant part,

    b. The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other short-term visas. The statute clearly presupposes that the natural circumstances and conditions of being a student do not disqualify that applicant from obtaining a student visa. It is natural that the student does not possess ties of property, employment, family obligation, and continuity of life typical of B visa applicants. These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing his or her future plans. Student visa adjudication is made more complex by the fact that students typically stay in the United States longer than do many other nonimmigrant visitors.

    c. The residence abroad requirement for a student should therefore not be exclusively connected to ties. You must focus on the student applicant’s immediate intent. Another aspect to consider: students’ typical youth often means they do not necessarily have a long-range plan, and hence are relatively less likely to have formed an intent to abandon their homes. Nonetheless, you must be satisfied at the time of application for a visa that the visa applicant possesses the present intent to depart the United ...

    Published on 09-13-2017 10:21 AM

    October 2017 Visa Bulletin Released: Fiscal Year 2018 Opens With Good News… and Not So Good News

    by


    The U.S. Department of State (“DOS”) has issued its October 2017 Visa Bulletin , summarizing the availability of immigrant visas for the first time in Fiscal Year 2018, which begins on October 1, 2017.

    Here are five (5) things to know about the new visa bulletin:

    1. EB-1 Current for China and India . For the past couple months, there has been a backlog for Chinese-mainland and Indian nationals for EB-1. With the new fiscal year, the EB-1 category is now current for all nationalities, and visa applications may be filed regardless of the applicant’s priority date. It is unknown how long this category will remain current, but this is great news for the surge of EB-1 applicants who filed I-140 petitions in the past year.
    1. Large Movement of Priority Date for China EB-3 . The September 2017 Visa Bulletin included a cutoff date of January 1, 2012 for China-mainland born EB-3 applicants. It has advanced two (2) years to January 1, 2014. The Department of State (“DOS”) estimates that this cutoff date will move up approximately four ...
    Published on 09-12-2017 10:44 AM

    SEC Suffers One of its First Major Losses in EB-5 Realm

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    Earlier this month, the Federal District Court for the Northern District of Illinois denied the SEC’s request for a preliminary injunction against Seyed Taher Kameli and entities he controlled to (i) stop them from having any further involvement in the EB-5 program and (ii) to halt activities that the SEC alleged were in violation ...


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