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    Published on 07-21-2015 03:32 PM

    Further Consequences to Employers for Immigration Non-Compliance



    Since June 2014, the government has introduced various measures to ensure higher standards for, and better compliance with, Canada’s Temporary Foreign Worker Program (TFWP). Measures introduced include:

    • The realignment of recruitment requirements based on salary rather than NOC Code [NOC is the National Occupational Classification – a dictionary of occupations organized by levels of job sophistication]
    • The imposition of a ‘transition plan’ requirement for high wage occupations in a Labour Market Impact Assessment (LMIA) application, to show how the employer will transition the position from the foreign worker to a Canadian. Such plan is to be reviewed for compliance if a later LMIA is sought for the same position.
    • An increased numbers of inspections and audits.

    The government has now announced yet another measure by which it seeks to enforce compliance with the TFWP. Effective December 1, 2015, it will begin imposing ‘Administrative Monetary Penalties’ (AMPs) for non-compliant employers.

    Administrative Monetary Penalties

    As the name suggests, the government will begin imposing monetary penalties for employers who fail to comply with their immigration/labour market ...

    Published on 07-21-2015 03:14 PM

    Opportunity Knocks in Disappointing Decision Vacating Stem Optional Practical Training Rule for Foreign Students


    Adversity is the mother of progress
    Mahatma Gandhi>>

    I was at first greatly disappointed to find out that a federal district court judge vacated the 2008 STEM Optional Practical Training rule that extended practical training to F-1 students by an additional 17 months. However, if one reads Washington Alliance of Technology Workers (WashTech) v. DHS closely, the decision does not look so bad and provides an opportunity for the Obama administration to further expand STEM practical training, as promised in the November 20, 2015 executive actions for skilled workers


    Foreign students can receive up to 12 months of OPT upon graduation. In 2008, the Department of Homeland Security under President Bush抯 administration published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM (Science, Technology, Engineering and Mathematical) fields. Plaintiffs WashTech challenged both the 12 month OPT and the STEM OPT. The challenge to the original 12 month OPT rule was dismissed, but on August 12, 2015, U.S. District Judge Ellen Segal Huvelle vacated the rule that extended OPT by 17 months for a total period of 29 months for STEM graduates. The 2008 rule was published without notice and comment, and the court agreeing with the plaintiffs ruled that the DHS had not shown that it faced a true emergency situation that allowed the agency to issue the rule without notice and comment.


    It is disappointing that Judge Huvelle granted plaintiffs standing in the first place on the flimsy ground that they were currently employed as computer programmers, who were a subset of the STEM market. [Contrast this with the DC Circuit Court of Appeals ruling in Arpaio v. Obama  two days later dismissing Sherriff Arpaio's standing claim on the spurious ...

    Published on 07-20-2015 04:07 PM

    Bring out your EAD!


    During a stakeholders telephone call on July 13, 2015, USCIS advised that plain-clothed USCIS officers will begin conducting home visits in order to retrieve approximately 2,500 three-year employment authorization documents (EADs) that were erroneously mailed out to recipients of Deferred Action for Childhood Arrivals (DACA) after the February 2015 Texas v. U.S. District Court injunction, which stopped the implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded DACA.

    USCIS stated that they have already sent numerous letters and have begun calling affected individuals but advised that they will commence home visits in cases where individuals have still not responded to their requests. These letters have indicated that a DACA grant could even be terminated and the EAD rendered void if the affected individuals fail to comply.

    Initially the home ...

    Published on 07-20-2015 04:01 PM

    Who is the Best Presidential Candidate on Immigration?




    I have been pondering a question lately – who of all the current Presidential would be the best on immigration? 

    We no doubt all know by where current Republican frontrunner Donald Trump stands.  Jeb Bush has written a book on immigration reformHillary Clinton expresses support for immigration reform; however, she was quick last week to blast San Francisco and its sanctuary law in the sad case of Kate Steinle, which makes me worry where she will be when the immigration debate gets tough.

    Some of my progressive friends are enthusiastic about Bernie Sanders, but he has said little about immigration reform and immigration generally.  Given that immigration is the civil rights issue of our century, a candidate’s stand on it in these turbulent times is important.

    At the outset, I must have found myself generally in agreement with Senator Lindsay Graham’s (R-SC) positions on immigration, including his support for comprehensive immigration reform, denunciation of Donald Trump as a “demagogue”, and his refusal to use deportation “to destroy families for the hell of it.” 

    Roque Planas on Huffington Post recently reported on the immigration positions of a candidate who sounds promising on immigration, Martin ...

    Published on 07-17-2015 12:55 PM

    Proposed I-601A Expansion Rule Exciting in Giving Right to Apply to All Family and Employment-based Petition Applicants, Visa Lottery Winners, and Certain Special Immigrants!


    In our article last week, “Status of expanding I-601A provisional waiver to other classes,” I gave a short update on the present progress of the proposed rule, noted that one should not be expected to hold one’s breath with the speed that we have seen the agency take in the promulgation of regulations, and hoped that the expansion regulation would be given priority in the Administration’s agenda. Happily today the Department of Homeland Security (DHS) sent out advance copies of the proposed ...

    Published on 07-17-2015 12:23 PM

    Position Paper on Inconsistencies Incompetence and Obfuscation


    Published on 07-16-2015 01:03 PM

    E-1 & E-2 Visa Processing Changes in Mexico – New Centralized Processing Locations


    The U.S. Embassy in Mexico City recently announced major changes to the E visa application process.  According to the Embassy, increases in overall visa applications created challenges in efficiently processing E visa applications in Mexico City.

    As of July 07, 2015, all E Visa applications in Mexico will be processed as follows:

    • E-1 treaty trader visa applications will be handled by the U.S. Consulates in Monterrey and Tijuana.  If the E-1 biometrics appointment is scheduled at an ASC in Tijuana or Monterrey, the applicant will drop off the supporting documentation at the ASC appointment.  E-1 visa applicants at other ASCs must mail their supporting documentation directly to the U.S. Consulate General in Tijuana or Monterrey.
    • E-2 treaty investor visa applications will be handled by the U.S. Consulate in Ciudad Juarez. If the E-2 biometrics appointment is scheduled at the ASC in Ciudad Juarez, the applicant will drop off the supporting documentation at the ASC appointment. Applicants at other ASCs must mail their supporting documentation directly to the U.S. Consulate in Ciudad Juarez.

    Third Country Nationals ...

    Published on 07-16-2015 12:58 PM

    Three Reasons Conservatives Should Support DAPA


    With Donald Trump's wild rantings of the superior negotiating skills of the Mexican government, and his idea that all undocumented immigrants are criminals (neither of which has any basis in fact, but hey, its a presidential campaign, facts are not relevant), there has been a lot of attention paid to the Obama Administration's DACA and DAPA programs.  The DACA program has been an unqualified success for those 50% or so of eligible people who have signed up for it, has created opportunity for those individuals, and has even filled government coffers at the local, state and federal level.  The DAPA program is only hold  because 26 GOP controlled states decided they did not want undocumented parents of U.S. citizens to have work permits and to be safe from deportation for two years (not including, of course, the millions who do not qualify for the program). From a politically conservative point of view, it is an untenable position for at least three reasons.

    The definition of a conservative "is someone who rises above his personal self-interest and promotes moral and economic values beneficial to all."  Well, if that is the definition, then let's look at it in the context of DAPA.  What are "the moral and economic values beneficial to all" that flow from DAPA? 

    First, there is the most obvious reason--economics.  Someone who has been living in the shadows, perhaps working with no papers and paid in cash, or working with fake papers and getting paid and paying taxes and for social security they will never see, is now in the light of day, working without fear of deportation (for at least two years). There is no permanent benefit that comes from DAPA, nor does such a person have "lawful status."   It is quite obvious that such a person will now be more fully engaged in the "daylight' economy; purchasing cars, paying taxes, saving money, and generally becoming a more integrated member of society. Without a doubt, there is great economic value in this.  Remember, the vast majority of these folks are already working in jobs; getting work permits will formalize this, not take jobs from Americans. Basic economics also tells that that more people making more money means more money will be spent, more taxes will be collected, and more jobs will be created.  

    Second, individuals who apply for DAPA will be, in effect, self-reporting to the USCIS (the benefits side of immigration within DHS), and in turn vetted through the systems and background checks of ICE (the enforcement side of immigration). Everyone who applies for DAPA knows it would be for two years, with extensions dependent on a sitting President. The Democratic candidates have all said they would continue or expand DAPA, and the GOP candidates have ...
    Published on 07-16-2015 12:46 PM

    How Broker Dealers vet EB-5 Projects


    In our previous blog post we introduced Mike Xenick, CEO and President of InvestAmerica Capital Advisors, a broker-dealer affiliated, full-service EB-5 Investment Bank, and strategic partner of e-Council Inc. Mike shared tips on the ways in which investors, business owners, and project developers can vet broker-dealers to make sure that they are professional, skilled, and ethical. Recent allegations of broker-dealers participating in fraudulent activities highlight the importance of carefully selecting the right team of professionals to guide EB-5 and other investment decisions.

    eb5 cartoon

    Perhaps the most important job of a broker-dealer is to perform an initial due diligence analysis of an EB-5 venture and assess the likelihood of success, which is usually done before accepting the engagement. This involves, among other elements, evaluating both the sponsor and the project; reviewing the project’s marketing, offering, and subscription materials; and investigating the accuracy of these materials.[1]

    Since many EB-5 investors and project owners rely on the guidance of broker-dealers, we asked Mr. Xenick to walk us through InvestAmerica’s due diligence process, in which EB-5 ventures are scrutinized to ensure their viability, soundness, and potential for success. The step-by-step overview, outlined below, is essential information for EB-5 investors and project owners, alike.

    Mr. Xenick’s due diligence assessment varies somewhat depending ...

    Published on 07-15-2015 04:09 PM

    H1B Visa Program Shown to Increase Employment and Wage Rates


    The H1B visa program does more than simply create opportunities for highly skilled workers to live in the United States and work. Since its conception in 1990, the H1B program has been shown to stimulate job creation and increase wages for US-born workers with degrees in all professional fields.

    H1B visa holders create jobs in a multitude of ways. To start with, these workers are highly skilled and work specialty ...

    Published on 07-15-2015 03:47 PM

    Immigrants are Less Likely to be Criminals than the Native-Born



    When it comes to understanding the relationship between immigration and crime, anecdotes are no substitute for evidence. And, as a new report from the American Immigration Council explains, the evidence has been clear for more than a century: high rates of immigration are associated with lower crime rates, and immigrants are less likely to commit serious crimes or be behind bars than the native-born. This holds true for both legal immigrants and the unauthorized, regardless of their country of origin or level of education. In other words, the overwhelming majority of immigrants are not “criminals” by any commonly accepted definition of the term.

    Consider the following data presented in the report:

    Higher Immigration is Associated with Lower Crime Rates

    • Between 1990 and 2013, the foreign-born share of the U.S. population grew from 7.9 percent to 13.1 percent and the number of unauthorized immigrants more than tripled from 3.5 million to 11.2 million.
    • During the same period, FBI data indicate that the violent crime rate declined 48 percent—which included falling rates of aggravated assault, robbery, rape, and murder. Likewise, the property crime rate fell 41 percent, including declining rates of ...
    Published on 07-14-2015 04:31 PM

    FDNS site visits voluntary


    In that same meeting [see here], U.S.C.I.S. confirmed that FDNS (Fraud Detection and National Security) Administrative Site Visit and Verification Program visits are voluntary[1]; that if the employer or employee declines to participate in the site visit, U.S.C.I.S. will terminate the site visit and update the compliance review report accordingly; that it will make an attempt to follow up on the compliance review by phone, email, or fax to verify the information on the petition and supporting documents; that a site visit is the fastest and easiest way to verify compliance; that the burden is on the employer to establish ...

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