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    Published on 08-27-2014 01:44 PM

    China EB-5 "Unavailable" for Remainder of FY2014 - What Does This Mean?


    On Saturday, August 23, 2014, Charles Oppenheim, Chief of the Department of State Immigrant Visa Control and Reporting Division, announced that, effective immediately, the EB-5 preference category had become “unavailable” for Chinese applicants.  This announcement was made at the sold-out AILA EB-5 Conference in Chicago during the “China Issues Panel”. The conference recordings will be available on AILA Agora shortly.

    This Practice Alert provides further information and discusses some of the practical implications of this recent announcement.

    • It is important to note that a China EB-5 cut-off date has not been established. Moreover, the Visa Bulletin for September 2015 (which states that China EB-5 is still “Current”) has not been amended. Therefore, this ...
    Published on 08-26-2014 10:48 AM

    Breaking News: EB-5 Visa Numbers Unavailable for Chinese Applicants


    On August 23, 2014, the day we fear has finally come. At the American Immigration Lawyers Association (AILA) EB-5 Conference in Chicago, Mr. Charles Oppenheim, the Chief of Immigrant Visa Control and Reporting Division in the US Department of State announced that the maximum EB-5 visa numbers for the EB-5 applicants from mainland China during FY 2014 has been reached. Mona Shah & Associates Attorney Yi Song shared the China Issue panel with Mr. Oppenheim along with Robert Gaffney of San Francisco and Bernard Wolfsdorf of Los Angeles.

    Effective immediately August 23, 2014, the Employment-Based Fifth preference category for applicants from China has become unavailable for the remainder of the Fiscal Year 2014 (“FY-2014”), or from August 23, 2014 to September 30, 2014. The EB-5 visa numbers will become available again on October 1, 2014 for the new Fiscal Year 2015.

    What does “Visa Unavailability” ...

    Published on 08-25-2014 11:28 AM

    I Was Afraid Of This Happening: “No Deference” Regional Centers That Do Not Deliver Desired I-526 Approvals


    Published on 08-22-2014 09:50 AM

    Pearls Before Swine


    The truth is that few immigrants are our enemies and we are not seeing the wealth inherent in this greatest resource — people.

    Pearls Before Swine

    Many American children grew up hearing the Biblical passage which cautions to “not cast your pearls before swine”. A child hearing that for the first time probably had a vague idea of what pearls were; similar to jewels, something of scarcity and value, therefore each one to be treasured.

    As adults if they perused the Biblical scholars, they might find some divergence on the interpretation, but the main idea is ...

    Published on 08-21-2014 11:32 AM

    Unused Visas: To Recapture or Not to Recapture - That Is The Question


    The Politico Newspaper broke a story earlier this week (which has since been repeated by many other news outlets including the Wall Street Journal)  that Obama met with various business officials to discuss employment-based immigration issues that can be addressed with executive action.  One of those issues was apparently to recapture unused visas.

    That issue caught my eye as it has been on my research to-do list for a while.  The news reports prompted me to research the law as to whether the president has the authority to recapture such unused visas. My opinion is that the law already allows for it.

    Here is what the Immigration Nationality Act says at § 206 (8 USC 1156):

    If an immigrant having an immigrant visa is denied admission to the United States and removed, or does not apply for admission before the expiration of the validity of his visa, or if an alien having an immigrant visa issued to him as a preference immigrant is found not to be a preference immigrant, ...

    Published on 08-20-2014 11:09 AM

    Unauthorized Immigrants Today: A Demographic Profile


    With Congress gridlocked on immigration reform, all eyes have turned to the White House to implement administrative reforms that will address some of the consequences of years of legislative stalemates. While it remains to be seen what those fixes will be, the central question—as always—will be what to do about some or all of the estimated 11.7 million unauthorized immigrants now living in the United States. Tackling this issue effectively involves overcoming a common misperception that unauthorized immigrants consist primarily of barely literate, single young men who have recently crossed the southern border and live solitary lives disconnected from U.S. society. The truth, however, is that unauthorized immigrants include adults and children, mothers and fathers, homeowners and people of faith, most of whom are invested in their communities.

    Data from the U.S. Census Bureau and other sources provide some much-needed social context to the immigration debate. The data reveal that three-fifths of unauthorized immigrants have been here for over a decade. One out of every 20 U.S. workers is an unauthorized immigrant. While unauthorized immigrants are concentrated in California, Texas, Florida, and New York, there are sizeable populations of unauthorized immigrants in other states across the country. Three-fifths of unauthorized immigrants come from Mexico, but significant numbers also come from Central America and the Philippines. Nearly half of all adult unauthorized immigrants have children under the age of 18, and roughly 4.5 million native-born U.S.-citizen children have at least one parent who is an unauthorized immigrant. More than half of unauthorized immigrant adults have a high-school diploma or more education. Nearly half of longtime unauthorized households are homeowners. And approximately two-fifths of unauthorized immigrant adults attend religious services every week. In other words, most unauthorized immigrants are already integrating into U.S. society not only through their jobs, but through their families and communities as well.

    The size of the unauthorized population stands at just under 12 million.

    • The Pew Research Center estimates that there were 11.7 million unauthorized immigrants in the country as of 2012; virtually the same as in 2008.
    • This was down from a high of 12.2 million in 2007, but up from 8.6 million in 2000 {Figure 1}.

    Figure 1: Unauthorized Immigrants in the U.S., 2000-2012

    Source: Jeffrey S. Passel, D’Vera Cohn, and Ana Gonzalez-Barrera, Population Decline of Unauthorized Immigrants Stalls, May Have Reversed (Washington, DC: Pew Research Center, September 23, 2013), p. 9.   

    Unauthorized immigrants account for over a quarter of the foreign-born in the United States.

    • According to Pew, unauthorized immigrants comprised 28 percent of the foreign-born population in 2010.
    • Naturalized U.S. citizens accounted for 37 percent of the foreign-born population, and Legal Permanent Residents (LPRs) were 31 percent {Figure 2}.

    Figure 2: Foreign-Born Population by Legal Status, 2010 

    Source: Jeffrey S. Passel and D’Vera Cohn, Unauthorized Immigrant Population: National and State Trends, 2010 (Washington, DC: Pew Hispanic Center, February 1, 2011), p. 10.

    Unauthorized immigrants account for roughly 1-in-20 workers.

    • Pew estimates that unauthorized immigrants comprised 5.2 percent of the U.S. labor force in 2010, nearly unchanged from the 2009 estimate of 5.1 percent.
    • This is down from a high of 5.5 percent in 2007 and up from 3.8 percent in 2000 {Figure 3}.

    Figure 3: Unauthorized Share of U.S. Labor Force, 2000-2010

    Source: Jeffrey S. Passel and D’Vera Cohn, Unauthorized Immigrant Population: National and State Trends, 2010 (Washington, DC: Pew Hispanic Center, February 1, 2011), p. 17.

    Three-fifths of unauthorized immigrants have been in the United States for more than a decade.

    • According to estimates from the Department of Homeland Security (DHS), 41 percent of unauthorized immigrants in the United States as of 2012 had arrived in the United States during the 1990s, and another 18 percent during the 1980s.
    • 42 percent of unauthorized immigrants had arrived in the United States between 2000 and 2011 {Figure 4}.

    Figure ...

    Published on 08-19-2014 12:24 PM

    The Stalemate over Unaccompanied Minors Holds Far-Reaching Implications for Broader U.S. Immigration Debates


    Originally published on the Migration Information Source, a project of the Migration Policy Institute


    When Congress returns in September from its five-week recess, lawmakers will need to quickly turn to some contentious business left over from July: approving an emergency spending bill to cope with the recent wave of unaccompanied migrant children and families arriving at the U.S.-Mexico border. The issue carries far-reaching practical and political implications, not only for the treatment of unaccompanied minors and border operations, but also for upcoming battles in Congress over spending and immigration policy, and for the future of the broader immigration debate. Looming over all these issues: President Obama’s expected announcement of executive actions to offer some relief to a sizeable share of the nation’s estimated 11.5 million unauthorized immigrants.

    The surge in the arrival of unaccompanied children and families—the vast majority from Central America and primarily entering in Texas’ Rio Grande Valley—has recently declined, with apprehensions for July dropping 50 percent from the prior month. But the decline is unlikely to reduce the political urgency of responding to what observers on all sides have described as the child migration crisis. For the first ten months of fiscal year (FY) 2014 (October 1 through July 31), the Border Patrol had taken into custody an unprecedented 62,998 unaccompanied children (UACs) and 62,856 adults traveling with children (family units). By comparison, during the same time period in FY 2013, 31,491 unaccompanied children and 11,001 family units were taken into custody.

    A confluence of factors—violence and endemic poverty in Central America, increasingly sophisticated smuggling networks, the desire to reunite with long-separated family members in the United States, and U.S. policies that offer increased protections to unaccompanied minors—has given rise to this phenomenon.

    The child migration surge, which began in 2012 but spiked to crisis proportions this fiscal year, has saddled government agencies with significant costs and challenges while garnering intense national media and political attention for most of the summer. In the absence of new funding from Congress, the Obama administration has diverted funds from other Department of Homeland Security (DHS) operations to meet immediate costs. It has also announced several policy changes to address the situation at the border, including accelerated immigration hearings for the child and family arrivals, transfer of immigration judges to border areas, a program to provide legal counsel to some unaccompanied minors, and public service campaigns aimed at discouraging future flows. The administration also has floated the idea of a pilot program in Honduras to process refugee claims in-country.

    Debate Exposes Tactical, Philosophical Differences Between and Within Parties

    Despite broad consensus in Congress over the need to urgently address the child migration crisis, the fraught politics of immigration once again derailed legislative action,  underscoring how entrenched the political challenges over any change to U.S. immigration policy have become. The House passed a $694 million package on August 1, significantly whittling down the administration’s request for $3.7 billion for the shelter and care of child migrants, increased resources for immigration courts, border operations, and aid to Central America. Senate Democrats, who had devised a $2.7 billion package, were unable to gain approval for their proposal.

    The Senate bill, which unlike the House legislation proposed no statutory changes to how unaccompanied minors are treated once they arrive in the United States, cleared an initial procedural vote. But the spending package foundered amid two complicating factors: a handful of Senate Democrats in competitive re-election races indicated that they would not support the measure on final passage unless it contained sharper measures to deter the flow of unaccompanied children. And a group of Republican senators, led by Sens. Jeff Sessions of Alabama and Ted Cruz of Texas, sought legislative changes that would prohibit the Obama administration from expanding the Deferred Action for Childhood Arrivals (DACA) program. The DACA program, implemented in 2012, provides two-year relief from deportation and a grant of work authorization to certain unauthorized immigrants who came to the United States as children; many Republicans view the program as a magnet for the UAC arrivals. Lacking the necessary votes for the spending bill, the Senate leadership withdrew it from the floor. 

    With Republicans bringing DACA into the debate over the child migration crisis, and perhaps hoping to affect the dynamics of the House vote over the emergency spending bill, Senate Majority Leader Harry Reid (D-Nevada) warned that he might attach to the House-passed bill the comprehensive immigration reform legislation that passed the Senate in 2013 but was never taken up by the House.

    In the House, where the emergency spending legislation almost did not make it to the floor, political complexities were even more pronounced. The $1.5 billion package that House Republican leaders had originally planned, which was crafted after a House GOP task force traveled to Central America, was suddenly pared down to $659 million amid doubts that enough Republican support could be obtained. Even then, a faction of House immigration hard-liners, encouraged by Sens. Cruz and Sessions, mounted opposition to the plan over its cost and its failure to include a provision suspending the DACA program. In an embarrassing turn for the brand-new House Republican whip operation, House leaders were forced to pull the bill from the floor on the last day before recess. Fearing the political fallout of returning to their districts without having ...

    Published on 08-18-2014 02:12 PM

    Congress’ “Mission Accomplished” Immigration Moment - For Employers, Now What?


    August 7, 2014

    In June of 2013, after extensive bi-partisan work, the U.S. Senate passed S. 744, its vision of enforcement-rich comprehensive immigration reform.  Many were hopeful as attention shifted to the U.S. House of Representatives to act.  In early-July 2013, House Speaker Boehner stated, “The House is going to do its own job in developing an immigration bill.”  Months later, in late-January 2014, the Speaker released his Standards for Immigration Reform.  After continued delay on advancing immigration reform legislation, Congress was recently forced to respond to the growing migration of Central American children and the need to fund government agencies, but the Senate failed to advance a directed solution and the House approved an inadequate, still-born bill

    Congress closed out its work schedule with the House passing a bill calling for the end of the Administration’s stop-gap measure affording deferred action on deportation for young people residing in the U.S. since June 15, 2007 (“

    Published on 08-15-2014 03:02 PM

    EB-3 Petitioner for Unskilled Laborer Does Not Know When to Quit


    Published on 08-15-2014 11:39 AM

    How to Fix the Border: A Proposed Executive Order to Secure the US-Mexico Border


    Published on 08-14-2014 11:17 AM

    Immigration activists are pressing President Obama to halt deportations for as many undocumented immigrants as possible. This is a “be-careful-what-you-wish-for” situation.


    Attorney General Eric Holder and DHS Secretary Jeh Johnson are preparing recommendations for President Obama on how far he can go in helping undocumented aliens with executive action without exceeding his authority. They will present him with his options before the end of the summer. The White House has said that the president will move quickly when he has this information.[i]

    It is commendable that President Obama wants to help undocumented immigrants who are here to provide a better life for themselves and their families. The attempt to do this with legislation has not succeeded. The Border Security, Economic Opportunity, and Immigration Modernization Act, S744,[ii] was passed more than a year ago, and the House Republicans have not shown any interest in it. And it is apparent that he has the power to do more with executive action. According to the American Bridge Project[iii] President Obama has issued fewer executive orders than any other president since the 19th century, and many Republican presidents have issued executive orders to address immigration issues. Their report highlights 10 instances in which past presidents have used their authority to employ selective prosecution of the immigration laws.[iv]

    On the other hand, anything President Obama can do by issuing an executive order, the next president can undo by issuing his/her own executive order. What would you expect if the next president were a Tea Party Republican? This is one of their core values, “There already is a legal path to citizenship for those wishing to immigrate to the United States. Anyone who decided to get off that path and enter the United States illegally should not be given any sort of amnesty for it is neither fair nor equal treatment under the law.”[v] According to Tea Party Congressman Louie Gohmert, “Either we’re going to enforce our law and remain strong economically and otherwise, or we ignore the rule of law and go to being a third world nation.”[vi]

    Unfortunately, it is not just a matter of what could happen if the next president wants strict enforcement of the immigration laws. Aliens who apply for discretionary relief under the present, sympathetic administration face serious risks to themselves and to their families if they are not completely honest in their applications or circumstances indicate that they are not being honest. This is illustrated by the administration’s policy on how it can use information submitted ...

    Published on 08-13-2014 12:11 PM

    Three Ways President Obama Can Take Executive Action for Business Immigration


    (This article was written a few weeks ago but it is applicable today as it was a few weeks ago). 

    Immigration reform was declared dead last week.  Yes, dead.  After years of fighting to reform our archaic and broken immigration system, and a successful Senate bill that passed in June last year, the House put the final nail in the reform coffin.

    A lamenting President Obama stated he will act alone to make any changes possible.  Unfortunately, as much as he wants to change things drastically, he can realistically accomplish limited actions.  Moreover, timing could not be worse to face a terrible humanitarian crisis at our borders. Thousands of children illegally entering the U.S. only exacerbates the immigration problem we already have.

    With all eyes on  the humanitarian crisis and the President, the hope is that he will find a solution for the 11 million undocumented people that want to come out of the shadows and contribute to our economy.

    But what can the President ...

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