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    Published on 01-27-2016 09:45 AM

    United States v. Texas: A Constitutional Dialogue Years in the Making


    Not surprisingly, the Supreme Court granted the petition for certiorari in United States v. Texas, and the nation may receive the final word on the lawfulness of the 2014 program expanding deferred action for the undocumented parents of parents of lawful permanent residents and U.S. citizen children. The case raises important, complex, and significant legal issues with national ramifications. Although the immigration issues are critically important, the more general issues implicated by the case, such as the relative power of the Legislative and Executive Branches in the enforcement of the law, go well beyond immigration.

    The case is rooted in many years of controversy over immigration and immigration reform. The legal issues are technical and have been, and will be, much-debated over the coming months. Many critics have vociferously challenged the Obama administration’s executive action is attempting to arrogate power bestowed by the Constitution on Congress. My firm sense is that the constitutional dialogue is a healthy one about the boundaries on congressional and executive power on immigration.

    To fully understand United States v. Texas, one also must appreciate that it is a product of at least a decade of national debate over immigration. There are many actors in long dialogue on immigration reform.


    Over at least the last decade, Congress has debated various forms of immigration reform legislation. An enforcement-oriented bill passed by the House of Representatives led to memorable public protests in cities across the country in 2006.  To this point in time, no legislation has been passed and frustration exists among many Americans, immigrants, and political leaders.

    In this vein, a potent political movement led by undocumented college students had demanded more narrowly focused reform of the immigration laws. The DREAM Act (Development, Relief, and Education for Alien Minors) has been proposed regularly in Congress, with support from, among others, conservative

    Published on 01-27-2016 09:18 AM

    Attn: Attorneys - Don't be Afraid of Difficult EB2 Cases


    Education RFEs are on the rise because a Bachelor’s degree equivalence must be a single source, and qualified candidates with three-year degrees and degrees that do not actually have the word “degree” in them are running into trouble. Complex education requirements for EB2 Visa candidates have left many lawyers wondering if it’s even worth the time to take on clients with difficult degrees.

    The answer is not to turn away candidates with difficult degrees. Many countries have three-year bachelor degree structures and degrees without the word “degree” in ...

    Published on 01-26-2016 01:21 PM

    Understanding the Legal Challenges to Executive Action


    Published on 01-26-2016 10:28 AM



    Based on the current predictions, the U.S. economy will rebound after 2015's growth rate of 2.1%. What does this mean for the immigration practitioners, professionals, and prospective H-1B employers and employees? Assuming that the economy performs as projected, it is highly likely that we will once again, as we did in 2015, witness the H-1B lottery (technically referred to as “Random Selection Process”) during April 2016. To better prepare for the H-1B cap, this article endeavors to summarize a few practice pointers which every prospective H-1B employer and employee should know.

    Limited Numbers: Not 65,000; There Are Only 58,200 Regular H-1B Visas.

    The current annual cap on the H-1B category is 65,000. However, all H-1B nonimmigrant visas are not subject to this annual cap. Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program designed specifically for the Nationals of Chile and Singapore. Unused numbers in the H-1B1 pool are made available for H-1B use for the next fiscal year. Thus, in effect, only 58,200 H-1B visas are granted each year except the 20,000 additional H-1B visas which are reserved for individuals who have received master’s degrees or higher from a U.S. college or university. In another upcoming article, ...

    Published on 01-26-2016 10:02 AM

    Regional Center EB-5 v. Direct EB-5 Investment


    Time and again I get questions from prospective EB-5 U.S. investor visa applicants from India and other countries such as Brazil and Mexico about whether they should make an EB-5 Regional Center Investment or a Direct Investment. Generally speaking, a Regional Center investment will almost always be a somewhat large scale infrastructure project related to hospitality, health-care, residential and/or commercial development or re-development whereas a Direct EB-5 will likely be an investment in an actual new business that could be a restaurant, technology company or a franchised business. I always say certainly look at both options but pay specific attention to the following basic considerations both positive and negative:

    Regional ...

    Published on 01-25-2016 12:33 PM

    Questions for EB-5 Engagement on Wednesday, Feb. 3, 2016


    Published on 01-25-2016 10:06 AM

    Analysis of the hearing before the Senate Subcommittee on Immigration and the National Interest, "Why is the Biometric Exit Tracking System Still Not in Place?"


    Published on 01-25-2016 09:36 AM

    Perspectives On Immigration In 2016 Through My Crystal Ball


    2016 portends to be an action packed year on immigration. While we continue to watch Donald Trump touting his absurd proposal to  temporarily ban Muslims, we can feel assured that it will likely not go anywhere. This is not the first time that America has witnessed such extreme anti-immigrant sentiments. It happened before in the mid-1800s when the Know Nothing party directed its ire against Irish Catholics, and later on in that century when the Know Nothings faded,  other anti-immigrant demagogues railed against the inferiority of  Jews and Southern European immigrants.

    These earlier demagogues preceding Trump included Samuel Morse,  well known as the inventor of the telegraph and Morse code, who like Trump does with Muslim immigrants warned against Catholic immigrants whom he thought would be more loyal to the Pope:

    How is it possible that foreign turbulence imported by shiploads, that riot and ignorance in hundreds of thousands of human priest-controlled machines should suddenly be thrown into our society and not produce turbulence and excess? Can one throw mud into pure water and not disturb its clearness?

    A leading sociologist of his time in the late 19th century Edward Ross stated that Jews were “the polar opposite of our pioneer breed. Undersized and weak muscled, they shun bodily activity and are exceedingly sensitive to pain.” Regarding Italians, Ross noted that they “possess a distressing frequency of low foreheads, open mouths, weak chins, poor features, skewed faces, small or knobby crania and backless heads.”

    The good news is that all of these anti-immigrant ...

    Published on 01-22-2016 12:03 PM

    With Little Debate, Congress Enacts Broad Range of Immigration Changes in Spending Bill



    Some of the most substantial immigration policy changes enacted by Congress in more than a decade, touching on everything from high- and low-skilled temporary worker visas to border and visa security enhancements and the immigration courts, were quietly tucked into a must-pass spending bill signed into law in December, with little in the way of public debate.

    The immigration provisions were part of the 2016 Consolidated Appropriations Act, which funds the entire federal government for the full fiscal year, for the first time since 2011. Though agreement on the legislation was considered a breakthrough in itself, more surprising but much less widely publicized was the extent of the immigration-related provisions the bill contains.

    What is striking about these immigration measures is not simply the breadth of their reach, but the minimal controversy on and off Capitol Hill surrounding their passage. Equally remarkable is the fact that recently elected House Speaker Paul Ryan (R-WI), in one of his first announcements as the top House Republican, pledged he would not bring up immigration reform legislation for the remainder of the Obama presidency. The inclusion of immigration provisions in must-pass appropriation legislation could potentially signal a new approach for legislative change in the contentious immigration arena.

    New Changes to Immigration Policy

    While the appropriations bill, as expected, funded the Department of Homeland Security’s three immigration agencies at steady-state levels (see below), the immigration riders it includes affect a number of important elements in immigration policy.

    Increases and Changes to Low-Skilled Visas

    Two sets of provisions tucked into the bill alter the H-2B visa program, which admits foreign workers to fill nonagricultural temporary jobs in landscaping, hospitality, and seasonal occupations. The annual allocation of visas for the program is capped at 66,000 under current law. Under the spending bill, returning H-2B workers who received visas in fiscal year (FY) 2013, 2014, or 2015 will not be counted against the 2016 cap if they re-apply for a new H-2B visa this year. H-2B visas can be issued for a period of up to one year, but are typically granted for up to ten months, and can be renewed twice. After three years, an H-2B worker must leave the United States and remain abroad for at least three months before seeking admission again under the program. Opponents of the new provision estimate that the number of H-2B workers admitted in FY 2016 could triple or quadruple (to 250,000) as a result of the changes. The nonpartisan Congressional Budget Office, however, estimates the law will increase the numbers by 8,000.

    Additional changes to the H-2B program will liberalize wage standards and recruitment requirements, and expand the definition of seasonal work. These provisions, supported by business advocates and opposed by labor interests, were championed by Sen. Barbara Mikulski (D-MD) on behalf of her state’s seafood industry.

    Changes to High-Skilled Visa Programs

    A second set of provisions—backed by labor proponents and opposed by business groups—increases fees paid by certain employers to sponsor high-skilled workers for H-1B and L-1 visas. For U.S. companies that employ more than 50 workers, more than half of whom are H-1B or L-1 nonimmigrant visa holders, supplemental fees for sponsoring new foreign workers have been ...

    Published on 01-22-2016 10:36 AM

    Chartered Accountancy/CPA Around the Globe – Which ones are equivalent to a Degree?


    It’s complicated, folks. To date, only the Indian and the UK Chartered Accountancy certification are recognized as degrees. Pakistani and Bangladeshi CA certifications have some government recognition, but the issue is not cut and dry. The rest, including the US CPA, are considered professional certifications, but not degrees.

    Published on 01-22-2016 09:47 AM

    Changes on the Horizon: Discussions of Looming EB-5 Reform


    EB-5’s TEA Reform Drama

    The last six months have seen a lot of drama for the EB-5 Regional Center Program (“the Program”). Starting with the release of S. 1501 in June of last year – one of the first major bills proposing reauthorization and reform of the Program – an avalanche of draft bills, extensions, and revision attempts seems to have bowled over Congress and the EB-5 community. While the final result has been an extension of the Program without any changes until next September 30th, it is clear that reform is on the way.

    One of the largest looming changes is the overhaul of Targeted Employment Areas (TEAs) – surely in response to well-covered controversy. Some critics have speculated as to whether TEAs allow “gerrymandering,” taking the Program away from “its roots,” and have voiced other concerns. Almost every new bill proposal to reform the Program has included changes to the TEA process, and most approaches have differed considerably. It seems safe to say that the future of TEAs will be drastically different – and likely much more complicated.

    Before delving into our predictions of the future of TEAs in EB-5, let’s review the current process.

    TEAs in Current Practice

    According to the federal legislation of the Program, a project location can be certified as a TEA if it meets the requirements for a Rural TEA or a High Unemployment TEA. This flowchart shows the current practice of determining whether a project location is eligible to be a TEA.


    TEA Determination Flowchart, Current Practice

    How to Determine TEA-Eligibility Under Current Legislation
    (Summer Webinar: https://youtu.be/ZxqrWdG1F0o)


    If a project location meets the requirements for a Rural TEA according to the US Census Bureau’s most recent decennial Census (currently, the 2010 Census), then it does not need to be “certified” prior to the submission of EB-5 petitions (I-824s or I-526s). Applicants need only include the relevant Census data with their submissions.

    If a project location is eligible to be a High Unemployment TEA, it must be certified prior to submission of the petition(s) – i.e., a certification letter must be included in the materials sent to USCIS. Currently, certification comes from the state where the project is located, ...

    Published on 01-21-2016 11:22 AM

    EB-5 TEAs – Catching up (and looking ahead)


    With the recent legislative maneuverings occupying the EB-5 world, perhaps lost in the shuffle are some key data items and considerations that will impact TEAs going forward. These updates are important under both the current regulations and also for considering potential legislative changes. For the time being, the current TEA regulations, in which the states have TEA-certifying power for high unemployment area TEAs, are in still in place. As the majority of states perform their annual update from around March to July of each year, and with possible legislative changes on the horizon, it is important to begin looking ahead.

    Below summarizes the newly released data related to ...

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