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    Published on 02-21-2018 03:51 PM

    Korean Demand for EB-5 Surges – Will Korea be the Next Country to Face Retrogression and Have a Waiting Line?


    The EB-5 program has seen a surge of applicants in the last 5 years, with the vast majority from China. In Second place is Vietnam that will now reach its annual quota limit next month. But right behind is Korea, one of the early leaders in EB-5. The Korean market is both knowledgeable and supplicated in its understanding of the benefits of this investor program. Dwarfed by the Chinese market of the last 5 years, the Korean EB-5 market has recently experienced a “reawakening” primarily because its economy has grown. Uncertainty created by numerous short extensions has only added to this increased demand.  As a result, the recent surge creates the likelihood of a Korean Final Action Date, or cut-off date.

    Changes to the EB-5 program in the next few months are likely, either because of new legislation or the implementation of new regulations first proposed in January 2017.  Either way, it is likely to be more expensive to apply for EB-5 and more difficult to invest in top tier real estate projects as restrictions on Targeted ...

    Published on 02-21-2018 03:47 PM

    BALCA Holds That Foreign Language Requirement Did Not Need To Be Listed In The Advertisements


    Despite the fact that the PERM regulations took effect on March 28, 2005, almost 13 years ago, PERM practitioners continue to struggle with the Department of Labor (DOL) regarding what must be listed in PERM advertisements. Issues surrounding this ongoing battle were discussed in my blogs hereherehere and here. As they say, the struggle is real!

    An employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. When a DOL Certifying Officer (CO) chooses to deny a PERM application due to lack of information in the advertisements, there are a few typical sources of authority that could be cited to justify that denial. Under 20 C.F.R. §656.17(f)(7), advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered the alien.” Based on this authority, a CO could find that an employer failed to inform US workers of conditions of employment that might have made the position more attractive to them, such as a work from home benefit. Under 20 C.F.R. §656.24(b)(2), the CO must make a determination as to whether there “is in the United States a worker who is able, willing, qualified and available for and at the place of the job opportunity.” Based on this authority, the CO can hold that this decision is impossible to make since the ...

    Published on 02-19-2018 04:03 PM

    New U.S. Immigration Public Charge Provisions, The Dawn of a New Era – Do Not Give Me Your Tired, Your Poor...


    Under Section 212(a)(4) of the Immigration and Nationality Act (INA), as amended, an applicant is inadmissible if “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”  USCIS guidance from 2011 defined a public charge as someone likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term ...

    Published on 02-16-2018 03:44 PM

    10 Things Every Departing Alien Needs to Know About IRS "Sailing" Permits


    Before leaving the United States, all aliens (except those listed below) must obtain a “Certificate of Compliance” from the U.S. Internal Revenue Service (“IRS”). This document, also known as a “Sailing Permit” or a “Departure Permit,” must be secured from the IRS prior to leaving the United States. Here are ten things to know about Sailing Permits:

    NOTE: This post is designed to provide practical and useful information on the subject matter covered. It is provided, however, with the understanding that no legal or tax services are being rendered or provided. U.S. tax matters are particularly complicated. If tax assistance is required, the services of a competent tax professional should be sought.

    1. Filing with IRS. To obtain a “Sailing Permit,” a departing alien must file a Form 2063 or Form 1040-C (whichever applies) with IRS. A departing alien cannot apply earlier than thirty (30) days before his/her planned departure date. Do not wait until the last minute in case there are unexpected problems. Both forms have a “Certificate of Compliance” section, which, when signed by the IRS, certifies that the departing alien’s U.S. tax obligations have been satisfied according to available information. The Form 1040-C copy of the signed certificate, or the one detached from Form 2063, is the “Sailing Permit.” It is advisable for aliens to get the “Sailing Permit” from an IRS office around their employment, but it can also be obtained from an IRS office in the area of their departure.
    1. Form 2063. This short form does not include a tax computation. The following departing aliens can get the “Sailing Permit” by filing the Form ...
    Published on 02-15-2018 02:50 PM

    Bills Introduced in Both Chambers Provide Common Sense Solution for Dreamers


    Senators McCain (R-AZ) and Coons (D-DE) introduced the United and Securing America (U.S.A) Act in the Senate this week, which includes a permanent solution for Dreamers as well as border security measures.

    While the recently released White House immigration framework has not enjoyed bipartisan support, versions of this bill in the House of Representatives and Senate have backing from both Democrats and Republicans. This indicates that a narrower approach has the best chance at passage.

    The timing of this bipartisan legislation is significant, as it may represent the first real effort by Senate Republicans to bring an immigration bill to the floor to save Deferred Action for Childhood Arrivals recipients after their promise to do so during last month’s government shutdown.

    In exchange for ending the government shutdown ...

    Published on 02-14-2018 03:10 PM

    ABC’s of H-1Bs (This Is Part 2 Of An 8 Part Series). How Much Do Prospective H-1B Employers Need To Pay To H-1B Employees And Why The Federally Mandated Prevailing Wage Is So Important


    The H-1B visa program permits a United States employer (“employer”) to temporarily employ nonimmigrants to fill specialized jobs in the United States. The Immigration and Nationality Act (the “INA” or the “Act”) requires that an employer pay an H-1B worker the higher of the actual wage or the local prevailing wage, in order to protect U.S. workers and their wages. Under the Act, an employer seeking to hire a foreign national in a specialty occupation on an H-1B visa must receive permission from the Department of Labor (“DOL”) before the foreign national may obtain an H-1B visa. The Act defines a “specialty occupation” as an occupation requiring the application of highly-specialized knowledge and the attainment of a bachelor’s degree or higher. The Act requires an employer seeking permission to employ an H-1B worker to submit and receive an approved Labor Condition Application (“LCA”) from the DOL.

    The employer should be extremely cautious in making attestations on the LCA and complying with the regulations governing it. Knowingly and willingly furnishing any false information in the preparation of the LCA and any supporting documentation, OR even aiding, abetting, or counseling another to do so is a federal offense, punishable by fine or imprisonment up to five (5) years or both. Other penalties ...

    Published on 02-13-2018 12:07 PM

    Prepare for Tough RFEs for Specialty Occupation this H1B Season


    Last year, we saw an unprecedented expansion in RFEs for Specialty Occupation, hitting H1B candidates in computer programmer positions at level 1 wages the hardest. This year, we expect these RFEs to continue to be even tougher and more widespread.

    That means, if you, or your client or employee has a “borderline” job – meaning these jobs don't necessarily require a US bachelor's degree or its equivalent according to the US Department of Labor's Occupational ...

    Published on 02-12-2018 11:23 AM

    President Obama and Latina/o Removals: The Quest for Immigration Reform


    Hoping to help persuade Congress to enact immigration reform, President Barack Obama initially took steps that unsettled some of his most ardent supporters. From the beginning, the administration sought to demonstrate a commitment to enforcement by increasing the number of noncitizens removed from the United States; the hope was that such a demonstration would improve the likelihood that Republicans in Congress would support a compromise immigration reform package.

    To increase removals, the Obama administration refined a pre-existing program known as “ Secure Communities ,” which focused on state and local criminal justice systems to feed the federal removal pipeline. As reconfigured, that program required state and local law enforcement agencies to share information with the U.S. government about noncitizens, including lawful permanent residents as well as undocumented immigrants, who were arrested by state and local law enforcement agencies. See Christopher N. Lasch, Rendition Resistance, 92 N.C. L. Rev. 149, 207–08 (2013) (summarizing the operation of the Secure Communities program under President Obama). Secure Communities further required law enforcement agencies to detain noncitizens eligible for release from state and local custody, so that federal immigration authorities could, at their discretion, directly take custody of noncitizens for possible removal from the United States.

    Besides claiming that the program infringed on state and local police powers, critics of the revamped Secure Communities program pointed to its devastating impacts on immigrants as well as their families and communities. See, e.g., Aarti Kohli, Peter L. Markowitz & Lisa Chavez, Secure Communities by the Numbers: An Analysis of Demographics and Due Process (Chief Justice Earl Warren Institute on Law and Soc. Pol’y, UC Berkeley, Oct. 2011), available at https://www.law.berkeley.edu/files/S...he_Numbers.pdf ; Rachel R. Ray, Insecure Communities: Examining Local Government Participation in US Immigration and Customs Enforcement’s “Secure Communities” Program , 10 Seattle J. ...

    Published on 02-12-2018 11:19 AM

    The Evolving Rights Of Deportable Immigrants As Seen In The Case Of Ravi Ragbir


    Foreign nationals with removal orders are in an extremely vulnerable situation. Even if they are asked to report on a regular basis under an order of supervision, there is no guarantee that a whimsical ICE officer the next they show up to an interview may decide to apprehend this person with handcuffs and expel them from the country. ICE may also decide to make a pre-dawn arrest of an undocumented person at home in front of family members including children , arrest those who are attempting to regularize this status , or even victims of domestic violence seeking to escape their abusers.

    Or if this person is an activist protesting against ICE’s tactics and fighting for the rights of immigrants, ICE could retaliate by arresting him or her with the goal of removing this so called “irritant” from the United States. Indeed, no one appears to be beyond the reach of ICE’s heavy handedness in the Trump era.

    At issue is whether a removable person has been allowed to stay in the US, and regularly report to ICE, can this person one day be suddenly apprehended without the chance to say goodbye to his family?

    This was the very issue raised in Ragbir v. Sessions before Judge Katherine B. Forrest in a petition for habeas corpus in the United States District Court for the Southern District of New York. Ravi Ragbir has lived in the US for over 25 years, but in the last ten years was subject to a final order of removal based on a deportable criminal conviction. ...

    Published on 02-09-2018 02:54 PM

    Regulating Employment: A Barrier to Comprehensive Immigration Reform


    Some thoughts about long term comprehensive immigration reform:

    Few knowledgeable observers would disagree that the revamping of the nation’s immigration laws is a complex matter, both politically and policy-wise. The near-misses with comprehensive immigration reform efforts illustrate the formidable political challenges. In 2013, for example, a bipartisan group of the Senate passed carefully-crafted legislation aimed at reforming the legal immigration system, bolstering border enforcement, and providing a path to legalization for undocumented immigrants in the United States. That legislation, as one might expect, had components that were not altogether satisfying to supporters and opponents of reform. Ultimately, the leadership of the Republican-controlled House of Representatives prevented a vote on that compromise piece of legislation.

    The policy challenges of immigration reform, including reducing the pressures for undocumented immigration, also are formidable. It goes without saying that, as the United States has experienced, immigration reform that would remedy the system’s current shortcomings is hard to come by. The

    Published on 02-08-2018 05:07 PM

    State of the Union Speech Highlights President Trump’s Vision for Massive Reductions in Immigration


    President Trump gave his first State of the Union address to Congress this week, during which he shared his vision for America’s future immigration policy —and it’s bleak.

    The address echoed much of the White House’s restrictive immigration framework released last week, which envisions a path to citizenship for the 1.8 million immigrants eligible for the Deferred Action for Childhood Arrivals (DACA) initiative, but only in exchange for a massive border package, drastic cuts to family immigration, and complete elimination of the diversity visa .

    Like his framework, the president’s speech called for massive cuts to long-standing family reunification programs (what he maliciously labels “chain migration”).

    The President erroneously ...

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