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    Published on 11-29-2017 03:02 PM

    Providing Hope for Chinese Investors


    I have just returned from 2 weeks in China. Not surprisingly, there was not a lot of interest in discussing new EB-5 projects. Especially since the publication of the DHS Ombudsman’s report, the word is out that the waiting list for EB-5 is in excess of 10 years…and getting longer. The word is also out that a solution is not likely to come from EB-5 legislation.

    The options for the Chinese investor are limited, and we discussed all of them in the 7 cities that I visited. Here they are – – the new world for Chinese investors interested in immigrating to the U.S.:

    1. There is some interest in EB-5 (a small percentage of previous demand) on the part of investors who are willing to wait as long as necessary for their numbers to be reached. These investors generally have pre-teen children.
    2. There is keen interest in the option of investment in a “set aside” area (a rural or urban distressed ...
    Published on 11-29-2017 02:49 PM

    Breakthrough in Matter of V-S-G- Inc.: AC21 Beneficiaries Given Opportunity to Be Heard When I-140 is Revoked


    The law generally recognizes that petitioners control their visa petitions. See 8 CFR 103.2(a)(3). A beneficiary cannot force a petitioner to pursue or maintain a visa petition. Therefore, USCIS communicates only with petitioners, not the beneficiaries, with respect to notifications such as Requests for Evidence, approvals, and even a Notice of Intent to Revoke (NOIR) of an approved petition. A beneficiary is not considered an affected party with legal standing with respect to filing appeals and motions. See 8 CFR 103.3(a)(1)(iii)(B).

    However, the traditional distinction between a petitioner, beneficiary and affected party breaks down when the law allows the beneficiary to leave the original petitioner and port to a same or similar job under INA 204(j) that was enacted via the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Although the intent of the original employer who filed the petition to employ the beneficiary may cease to exist, the original petition still remains valid when the beneficiary ports to a same or similar job with a new employer.

    The Appeals Administrative Office (AAO) has adopted Matter of V-S-G- Inc ., Adopted Decision 2017-06 (AAO Nov. 11, 2017), which now recognizes that beneficiaries who have ported to a same or similar to the job under INA 204(j) are entitled to receive notices pertaining to the potential revocation of their approved employment-based I-140 visa petition. The USCIS also issued accompanying guidance in the form of a Policy Memorandum on November 11, 2017. We previously advocated for this outcome here , here and here , and welcome the AAO’s recognition that beneficiaries who have ported are entitled to notification and the opportunity to be heard when their approved I-140 petitions are in jeopardy.

    The ability for a foreign national worker to move to a new job is crucial when there is a delay in the adjudication of the I-485 application for adjustment of status. If an I-485 application has been pending for more than 180 days, under INA 204(j), the I-140 ...

    Published on 11-28-2017 02:03 PM

    Beyond the EB-5 Visa Waiting Line: E-2 Visa Options for Mainland-Chinese Entrepreneurs


    The EB-5 visa waiting line for mainland-Chinese has become so long that many Chinese nationals are now seeking other ways to enter the U.S. often so their children may study at U.S. universities. Some are investigating obtaining U.S. permanent residence through the EB-1C category for multinational managers or executives (or the related nonimmigrant L-1 visa). Other have decided to explore nonimmigrant E-1 treaty trader, or E-2 treaty investor visas. There are 80 countries with treaties, but mainland China and India do not qualify (although citizens of Pakistan and Taiwan do qualify). For the E-treaty visa, the applicant must have obtained citizenship from an E Treaty Country .

    One country that has become popular for E-2 treaty purposes is Grenada because of its “Citizenship by Investment Program”. In this scenario, obtaining an E-visa is a two-step process: First, the person needs to qualify for the Grenada passport, and then, the person must make an investment in the U.S. to qualify for a U.S. E-2 visa.

    Here are five important things to know about the E-2 visa option.

    1. Grenada Citizenship . The first step for a mainland-Chinese national is to obtain Grenada citizenship through the
    Published on 11-27-2017 03:01 PM

    Trump’s Nominee for DHS Secretary Commits to Continuing Kelly’s Legacy on Immigration Enforcement


    The nominee to be the next Secretary of the Department of Homeland Security (DHS), Kirstjen Nielsen, had her confirmation hearing before senators on Wednesday, during which she promised to largely carry on the legacy of her predecessor, General John Kelly.

    This included limiting President Trump’s plans to build a wall along the U.S.-Mexico border . Echoing Kelly’s stance, Nielsen emphasized that “there is no need for a border wall from sea to shining sea.” She told the Senate Homeland Security and Government Affairs Committee (HSGAC) that the border should instead be fortified with additional technology between ports of entry, fencing, and personnel.

    “We’re not going to build a wall where it doesn’t make sense…” Nielsen affirmed.

    Nielsen, who currently serves as White House Deputy Chief of Staff, was nominated in October 2017 by President Trump to replace Kelly as he transitioned to his role as White House Chief of Staff. Nielsen has worked in the homeland and national security sectors for more than two decades, having ...

    Published on 11-24-2017 10:10 AM

    Immigration Policy Under President Trump: Reducing the Number of Noncitizens -- Legal and Undocumented -- in the US



    It has been almost 10 months since President Donald Trump was inaugurated. Not surprising given his campaign's focus on immigration, President Trump has taken a number of major initiatives on immigration enforcement. In my estimation, a central organizing principle of his administration immigration measures has been to reduce the number of noncitizens, legal immigrants as well as undocumented ones, in the United States. Maria Sacchetti and Nick Miroff for the Washington Post refer to the measures as "the wall that no one can see."


    The now iconic wall along the U.S./Mexico border wall was a staple of the Trump campaign events and has been one of his high profile policy initiatives. We will see whether a wall will in fact be built. Trump's endorsement of building a wall has been met with cheers in some circles. The stated goal of the wall is to decrease undocumented immigration from Mexico.

    The various iterations of the "travel ban" or "Muslim ban" made travel from a number of predominantly Muslim nations difficult and uncertain for a time. The ban, combined with "extreme vetting" of Muslim noncitizens seeking to enter the United States, is designed to reduce migration.

    The interior and border security immigration enforcement orders issued shortly after the inauguration, included calls for more enforcement officers, punishment of "sanctuary cities," expanded detention through the end of "catch and release," greatly expanded expedited removal (that some might characterize as summary removals), and much more.

    In recent weeks, President Trump has ended the Temporary Protected Status of tens of thousands ...

    Published on 11-22-2017 04:05 PM

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


    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 04:01 PM

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


    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 03:55 PM

    An Unusual Trip to China


    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 01:52 PM

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


    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 11:26 AM

    New Legislation Targets H1B Dependent Employers


    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 02:27 PM

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


    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 02:17 PM

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


    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 ...

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