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    Published on 12-15-2014 01:52 PM

    How Immigration Executive Action Opens Doors for Foreign Entrepreneurs



    Much of the attention on President Obama’s executive action on immigration has focused on his use of prosecutorial discretion to defer deportation for millions of undocumented immigrants, including certain parents of U.S. citizens and Lawful Permanent Residents. But as part of the November announcement, President Obama also signed a memorandum to explore ways to upgrade parts of the immigration system to meet needs of an increasingly global economy. And in a separate memo, Homeland Security Secretary Jeh Johnson outlined how the policy changes at U.S. Citizenship and Immigration Services (USCIS) will support U.S. economic growth. “These new policies and regulations will be good for both U.S. businesses and workers by continuing to grow our economy and create jobs,” Johnson wrote, adding that it will increase efficiency and save resources.

    Johnson’s memo to USCIS covers changes to Optional Practical Training (OPT) for foreign students at U.S. universities in science, technology, engineering, and mathematics (STEM) fields, modernizing the employment-based visa system to decrease backlogs, and other measures. The memo authorizes new ways for foreign entrepreneurs to have more opportunities to come to the U.S. and start businesses here. The “national interest waiver” in the Immigration and Nationality Act (INA) permits certain non-citizens with advanced degrees or exceptional abilities to seek green cards without employer sponsorship if their admission is in the national interest and may be one route for foreign entrepreneurs. The memo directs USCIS to issue guidance or regulation to clarify the standard by which a national interest waiver ...

    Published on 12-15-2014 12:54 PM

    Let's Hope That's What It Means: Does Executive Initiative Really Provide For Early Adjustment Of Status?


    Most of the commentary and attention on the recent blizzard of White House and DHS memoranda on immigration reform quite properly fell on executive initiatives to bring the undocumented and their parents in from the shadows.  This is what the Administration clearly cares most about for logical political reasons. The White House perception, rightly or wrongly, is that the ever growing Hispanic constituency that the President wants to win over simply is not deeply concerned with having a more rational legal immigration system. Yet, there are a variety of positive steps that DHS Secretary Johnson outlined which do offer real benefits to workers and employers alike who know suffer from the sclerotic effects of chronic visa backlogs. The most promising innovation is the anticipated ability for the beneficiaries of approved I-140 petitions to apply for adjustment of status even in the absence of current priority dates. That, we all enthused, was something to rally round..  

    Now that we have had a chance to exhale, a nagging doubt clouds this emerging optimism: Is early adjustment of status really what is contemplated?  While White House briefings and talking points certainly suggested this was the case, a stubborn yet deliberate reading of the various memoranda uncovers no explicit mention of early adjustment, only an intention to foster clarity, predictability, and transferability once the USCIS has approved an employment-based immigrant visa petition, Form I-140. DHS Secretary Johnson offers only the following:

    “ I direct that USCIS carefully consider  other regulatory  or policy changes  to better assist and provide stability to the beneficiaries of approved employment-based immigrant  visa petitions. Specifically, USCIS should consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers.”
    Some doubting voices now raise up the possibility that the next step after I-140 approval will fall short of I-485 submission, perhaps only going so far as to allow for the granting of advance parole travel permission and issuance of employment authorization documents. We do not know if such doubts are justified but write now to explain why, if true, this is a very bad idea especially if it is offered without early I-485 submission as an alternative.

    Let’s start with the reasons why allowing for early adjustment of status makes sense.

    We acknowledge that INA § 245(a) (3) only allows the filing of an I-485 application when the visa is “immediately available” to the applicant. What may be less well known, though no less important, is the fact that the INA itself offers no clue as to what “visa availability” means. While it has always been linked to the monthly State Department Visa Bulletin, this is not the only definition that can be employed. Therefore, we propose a way for USCIS to allow for an I-485 filing before the priority date becomes current, and still be faithful ...

    Published on 12-12-2014 01:32 PM

    Only the Beginning: The Economic Potential of Executive Action on Immigration


    Published on 12-12-2014 11:30 AM

    Unabridged Op-Ed On Some Questions Raised During USCIS EB-5 Stakeholder Engagement-September 10, 2014


    Published on 12-11-2014 01:44 PM

    The Evolving Landscape for EB-5 Escrows


    December 11, 2014 by H. Ronald Klasko

    An important part of my responsibility to my regional center and developer clients is to keep up to date on prevailing trends among migration agents, especially in China (since China represents over 80% of the EB-5 investor market). In doing so, I have noted that one of the biggest changes in the marketplace in the last year involves the escrow account.

    A year or two ago, the standard in the marketplace was a “traditional escrow” whereby each investor’s invested funds remained in escrow until that investor’s EB-5 petition was approved. This worked relatively well when USCIS processing times were six months. As processing times increased to 12 months or 18 months, or in some cases even longer, traditional escrow has been eliminated as an option for many developers who simply can’t wait that long for EB-5 capital to be made available ...

    Published on 12-11-2014 12:30 PM

    Adjustment Under INA 245(i) for Spouses and Children: Distinction Between Those “Grandfathered” and Derivatives


    Over the years we have helped many clients adjust under INA 245(i). Determining whether spouses and children can adjust independently or only as derivatives of the principal applicant requires pointed questions. Also, some individuals who at first glance seem to have limited options can actually benefit from INA 245(i) if we as attorneys ask just the right questions to uncover critical information.

    If the relationship existed on or before April 30, 2001, the spouse or child is considered “grandfathered” by INA 245(i) and can adjust using INA 245(i) independently of the principal applicant. For example, if Robert is covered ...

    Published on 12-10-2014 11:48 AM

    Foreign Students, OPT, and Innovation


    A recent case out of Washington D.C. has raised the interest for people in the U.S. Immigration field and for international students. In the case of Washington Alliance of Technology Works (“WashTech”) v. U.S. Department of Homeland Security (“DHS”), WashTech sued DHS over the approval of the optional practical training program (“OPT”).

    The OPT Program allows students who entered the United States under a student visa to obtain 12 ...

    Published on 12-09-2014 01:28 PM

    Reagan-Bush Family Fairness: A Chronological History


    Published on 12-09-2014 12:43 PM

    Outline Of The Issues Raised From The December 5, 2014 USCIS EB-5 Stakeholder's Meeting


    On December 5, 2014 USCIS held their EB-5 Stakeholder’s Meeting in Washington, DC. This was the first stakeholder’s meeting after President Obama’s November 20 speech relating to his Executive Order. Interestingly, although the USCIS EB-5 Program Chief Nicholas Colucci stated that the Executive Order would have “no direct impact” to the EB-5 Program, at the same time there was an implication that Entrepreneurs (EB-5 investors) would be affected. It remains to be seen whether the Executive Order will avert the possible retrogression of EB-5 Investors from Mainland China in May 2015, as the authors believe it will. [1]

    Overall the meeting was informative, but it did not remove the sense of disconnect between USCIS and the real business world.

    EB-5 Program Updates

    • The program’s popularity was affirmed in the opening lines, when the Director stated that in Fiscal Year 2014, the EB-5 Program has brought approximately $5.5 billion to the US economy! Approximately 11,000 I-526 petitions are pending. This number accounts for a quarter of ALL I-526 petitions filed since the inception of the Program in 1990.

    • There are 600 approved regional centers in the United States. 230, or 40% of the regional centers were approved from Fiscal Year 2013 to 2014! USCIS has terminated 7 regional centers for failing to comply with the I-924A annual filing requirement. In ...
    Published on 12-08-2014 01:44 PM

    Justice, Justice Shall Thou Pursue: Why The Lawsuit Against The Immigration Accountability Executive Actions Is a Waste Of Time And Money


    For I was hungry and you gave me food, I was thirsty and you gave me drink, I was a stranger and you welcomed me

    Matthew 25:35

    A lawsuit was expected as soon as President Obama dramatically announced that his immigration executive actions could impact more than 5 million people. It is already here. On December 3, 2014, Texas took the lead with 18 other states in a lawsuit against the United States asserting that the President’s unilateral Immigration Accountability Executive Actions are unconstitutional. The coalition of states in addition to Texas include Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Mississippi, Montana, Nebraska, North Carolina, South Carolina, South Dakota, Texas, Utah, West Virginia and Wisconsin.

    The complaint essentially alleges that the DHS directive violates the President’s constitutional duty to “take Care that the Laws be faithfully executed” under Article II, §3, Cl. 5 of the United States Constitution. Another basis for the complaint is that under the Administrative Procedure Act, 5 U.S.C. § 553, the President’s executive action is akin to a rule, which needs to be promulgated through notice-and-comment rulemaking. The complaint also cites APA, 5 U.S.C. § 706, which gives a federal court power to set aside an agency action that is, among other things, arbitrary or capricious, contrary to constitutional right or in excess of statutory authority. But it reads more like a white-hot tabloid, and instead of providing a forceful legal basis, loudly proclaims in bombastic fashion several prior utterances of President Obama claiming that he could never bypass Congress. Here are two out of many examples:

    “I am president, I am not king. I can’t do these things just by myself…[T]here’s a limit to the discretion that I can show because I am obliged to execute the law…I can’t just make the laws up by myself.”

    “[I]f in fact I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws. That’s part of our tradition. And so the easy way out is to try to yell and pretend like I can do something by violating our laws. And what I’m proposing is the harder path, which is to use our democratic processes to achieve the same goal. “

    The President still went ahead and changed the law himself despite his many previous assertions that he could not, according to the complaint, as if that ...

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