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    Published on 01-23-2014 03:39 PM

    What are the Form I-9 Penalty Trends from 2013 OCAHO Decisions?


    The first thing that stands out about 2013 decisions from the Office of Chief Administrative Hearing Officer (OCAHO) is that there was a major uptick in the number of substantive decisions – 30, up from 11 in 2012.  There were also eight decisions which involved Office of Special Counsel issues – such as discrimination and document abuse. (These decisions will not be discussed in this article.)

    Substantial Reduction in Penalties through Litigation at OCAHO

    Of the 30 substantive decisions concerning I-9 form violations, 29 of them involved the issue of the amount of penalties.  One decision, Ketchikan Drywall Services, Inc., was the acceptance of the 9th Circuit Court of Appeals’ decision affirming $173,250 in penalties. One of the most interesting points in these 28 decisions (discounting the Ketchikan case for the above reason) was the reduction in penalties assessed by OCAHO as compared with penalties actually sought by Immigration and Customs Enforcement (ICE). In 2012, OCAHO reduced penalties sought by ICE by an average of 45%, whereas in 2013, the average reduction increased to 46.5%.

    Examples of OCAHO Decisions and Penalties Sought and Assessed

    Below is a chart setting forth some of the OCAHO decisions, the penalties sought by ICE and the amount assessed by OCAHO.

    Reasons for Reductions ...

    Published on 01-22-2014 02:59 PM

    Retrogression for China in Mid-2014—Not really a reason to be alarmed?

    by Mona Shah and Yi Song

    On January 10, 2014 the Department of State provided a tentative projection for EB-5 retrogression which may occur in or after July 2014 for applicants from mainland China, as such applicants account for more than 80% of the 10,000 EB-5 visa usages. This article discusses what causes retrogression, how the retrogressed visas are processed, why retrogression seems only to affect mainland China EB-5 cases and the consequences of projected retrogression for China in the EB-5 industry, which contrary to some recent scare-mongering opinions, will make little difference to the EB-5 industry.

    What is Retrogression?

    INA §201 limits the employment-based preference immigrants each fiscal year[1] for all categories, not just for EB-5 applicants. In order to apply for, or to adjust status to that of legal permanent resident, an immigrant visa must be available to the applicant at the time of filing the legal permanent resident application. The DOS (Department of State) publishes visa availability each month. If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered “Current.“

    Whenever the total of qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be “oversubscribed” and this particular visa category retrogresses. When visa retrogression occurs, a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. Thus, visa “retrogression” ...

    Published on 01-22-2014 02:28 PM

    Nativist Group Blames Students for Texas Budget Gap



    In a case of creative accounting, the nativist Federation for American Immigration Reform (FAIR) is blaming students for the fiscal woes of Texas. In a new report, FAIR lumps together students who are unauthorized immigrants with U.S.-born students who have unauthorized parents and claims that they are all costing Texas taxpayers astronomical sums in educational expenditures. However, the report (titled The Fiscal Burden of Illegal Immigration on Texans) mistakenly treats the education of these students as nothing more than a “cost” attributable to unauthorized immigration. In reality, the educational expenses targeted by FAIR are an investment in the future U.S. workforce and tax base; an investment that will pay off later as students become taxpaying workers.

    According to FAIR’s calculations, unauthorized immigrants are costing Texas taxpayers $12.1 billion dollars every year. However, $7.4 billion of this estimate, or 61%, consists of K-12 education for the children of unauthorized immigrants—of whom 71% are native-born U.S. citizens. FAIR justifies the decision to include U.S. citizens in its cost estimate by employing some warped logic:

    We chose to include the expenditures on the U.S.-born children of illegal aliens because those costs would not have been incurred if the illegal ...

    Published on 01-21-2014 02:37 PM

    FAQs on EB-5 Quota Backlog

    by H. Ronald Klasko

    From my dealings with my clients – both investors, developers and regional centers – there seems to be a misunderstanding of what the EB-5 quota backlog is and what it means. For this reason, I have decided to write this blog in the form of Frequently Asked Questions. I hope this helps to eliminate any confusion:

    Q.  What is the EB-5 quota?

    A.  Congress has allocated approximately 10,000 visa numbers for EB-5 investors and family members. This quota was established in 1990 and has never been changed. Until recently, because of a lack of demand in the EB-5 category, this 10,000 allocation has been sufficient to meet demand. With the increased demand in recent years – accompanied by increased investment dollars and increased jobs – that number is no longer sufficient.

    Q.  How many EB-5 investors can obtain conditional permanent residence in any year?

    A.  A majority of the EB-5 quota is used up by investors’ family members. The actual number of EB-5 investors who can immigrate in any year depends on the number of family members, but is generally in a range between 3,500 and 4,000.

    Q.  When are EB-5 visa numbers allocated?

    A.  Upon approval of conditional permanent residence – either issuance of a conditional immigrant visa at a U.S. Consulate or adjustment of status to conditional permanent residence in the U.S.

    Q.  There were over 6,500 I-526 petitions filed in the fiscal year ending September 30, 2013 with over 3,600 approvals.  Why was the quota not reached?

    A.  From the time of approval of the I-526 petition until the time of issuance of conditional immigrant visa or approval of conditional permanent ...

    Published on 01-20-2014 02:50 PM

    Summary of Senate Immigration Reform Bill S.744: What it Means for Information Technology (IT) Companies

    by Akshat Tewary

    In June 2013 the U.S. Senate passed a bipartisan comprehensive immigration reform bill, the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S. 744). As of this date, the bill has been stagnating in the House ...

    Published on 01-20-2014 01:44 PM

    The Decline of Deference: BALCA Does Not Speak for the DOL

    by Gary Endelman and Cyrus Mehta

    In the ongoing litigation over the authority of the Department of Labor (DOL) to promulgate H-2B prevailing wage methodology in the Third Circuit,Louisiana Forestry Ass’n v. Secretary of Labor, No. 12-4030, the DOL wrote a letter stating that the Board of Alien Labor Certification Appeals’ decision in Island Holdings LLC , 2013-PWD-00002 (BALCA 3, 2012) did not represent the legal position of the Secretary of Labor. The DOL had issued increased prevailing wage determinations to an employer after it changed its wage methodology through an Interim Final rule that took effect on April 24, 2013. The order to increase wages was issued after the DOL had already certified the labor certification for the H-2B workers at a lower wage. BALCA in Island Holdings invalidated the wage increases on the ground that there was no specific statutory or regulatory authority that would authorize DOL to increase the wage rate at an unknown future date.

    The DOL’s letter to the Third Circuit disregarding the BALCA ruling in Island Holdings would have enormous implications on labor certification practice and administrative law We credit Wendel Hall of C.J. Lake, counsel in the Island Holdings case, for alerting us to the significance of this issue and also bringing it to the attention of DOL itself. If BALCA does not speak for DOL, is it necessary to exhaust administrative remedies before challenging PERM denial in federal court? If BALCA does not speak for DOL, should the Courts pay Chevron style deference to BALCA decision? Can DOL ignore other BALCA decisions on PERM since BALCA does not speak for Secretary of Labor?

    Published on 01-17-2014 10:14 AM

    Are Law Firms Really Different?

    by Ed Poll

    Lawyers are special – principles of economics do not apply to us.

    Mantras like this come and go decade by decade. Small is beautiful, big is better. Big is bad, unless you're too big to fail.

    If you have lived through more than one business cycle, you have heard variations on these mantras many times. The Wall Street Journal recently wrote, "Big Law Mergers Questioned." ...

    Published on 01-16-2014 02:52 PM

    filling out college application forms. What you need to know!

    by Grace Kennedy

    Last night, I received the following e-mail from a client of mine who has an approved DACA petition:

    "Hello. I have the dream act card.

    I am applying for college and was wondering which US residency AND Georgia residency options I should choose. I've attached screenshots of what all of the options on the application look like. Please get back to me as soon as possible (preferably by tomorrow afternoon) because I need to submit the application."

    Sorry this is last minute and thanks for your help."

    Here are the screen shots he sent me.

    For those in DACA status, the answer to this question is "Other." You are not a citizen or lawful permanent resident of the United States if you are in DACA status. A false claim to United States citizenship could cause you very serious problems in the future.
    The answer to the second question, what kind of visa do you hold or intend to obtain?  Check "Other."
    How to answer "How many years have you lived in the United States?"- just tell the truth!

    Do you claim to be a legal resident of Georgia for tuition purposes?   No. For now, most DACA recipients will not be able to get in-state tuition but they may qualify to have the non-resident portion of their tuition waived via a tuition waiver. The DACA non-resident tuition waiver may be combined with other scholarships. You should see what’s available to you by contacting Admissions or the Financial Aid Office at the school you are applying to.

    Originally appeared on Musings on Immigration: An Immigration Attorney's Perspective on Life, Liberty, and Happiness. Reprinted with Permission.

    About The Author

    Grace KennedyGrace Kennedy holds a Bachelor of Laws Degree from the National University of Ireland, Dublin ( Honors, 1999) and a Master of Laws Degree from Emory University School of Law (2001). Ms. Kennedy has extensive experience in immigration related adoption issues, family immigration, bonds, removal defense and international business.

    The opinions expressed in this ...
    Published on 01-16-2014 02:38 PM

    Why Is There a Disparity in DACA Application Rates Among Different Nationalities?

    by Patrick Taurel

    8571247015_b60b0feb92_zA year and a half in, nationals from nearly every country have applied for Deferred Action for Childhood Arrivals (DACA), President Obama’s deportation reprieve program for certain undocumented immigrants brought to this country as children. Despite this diverse participation, nationals of some countries are dramatically underrepresented in the applicant pool. Comparing the latest USCIS DACA statistics against estimates of potentially eligible individuals reveals, for example, that 65 percent of immediately eligible Mexican nationals and 61 percent of Hondurans have applied for DACA. Yet only 34 percent of Koreans and 17 percent of Filipinos have applied. What explains this disparity? It’s complicated, but here’s our best guess.

    To apply for DACA you have to know about the program. As reported by the Center for American Progress, community-based organizations and ethnic media serving nationals of Mexico and other Latin American countries have done an excellent job of informing the community about the program. Relatedly, the Mexican community has enjoyed the overwhelming support of its consular network, which continues to take a number of steps (including releasing their own free smartphone app) to help Mexican nationals learn about and apply for DACA. The DACA outreach effort has been particularly strong in the Spanish-speaking world.

    Further, garnering a critical mass of applicants is key. When enough members of a community go through the DACA application process and come out on the other side not only without a deportation order against themselves or family members — which, for many, is the biggest fear — but with tangible benefits like work authorization, those individuals turn into walking testimonials. They demystify the process & inspire others in the community to take what might be perceived as an intimidating plunge. This domino effect may help explain the relatively high ...

    Published on 01-16-2014 10:03 AM

    Business Leaders Who Support Immigration Reform & Why they Do

    by Derek Whitney

    No matter what the technology or which side of the political aisle, most business leaders as well as politicians seem to agree on one thing. The U.S. immigration system is a mess and needs fixing. How to fix it is another matter. It cannot be ignored, however, that there are millions of undocumented foreign nationals in the United States. They cannot all be located and deported, even if that is the aim. ...

    Published on 01-15-2014 04:00 PM

    "Defining Partnership Of 21st Century": E Visa Possibility For Indian Citizens

    by Michael Phulwani, David Nachman, and Rabindra K. Singh

    U.S. immigration laws specifically authorize the issuance of E visas to nationals of a country that has qualifying treaty[i] of commerce and navigation with the United States. Such qualifying treaties may include treaties of Friendship, Commerce and Navigation (FCNs) and Bilateral Investment Treaties (BITs).

    A BIT is an agreement establishing the terms and conditions for private investment by nationals and companies of one state in another state. This type of investment is called foreign direct investment (FDI). BITs acts as a tool in protecting the FDI in a volatile market. Especially, they protect foreign investments in light of the risks that foreign investors face in many parts of the world, including cancellation of concessions, leases, or licences; expropriation of shares; windfall, royalty, and other taxes; exchange rate risks; prohibition on the repatriation of profits; political or court interference; environmental regulation and remediation responsibility; land rights issues; riots; and protests, to name but a few. Faced with such risks, and given the likelihood that local courts and laws may not provide a speedy, effective and unbiased means of resolving investment disputes, BITs provide foreign investors with an additional level of protection under international law.

    There are two types of E visas: Treaty Trader visa (E-1) and Treaty Investor Visa (E-2). The E-1 visa is applicable to a treaty national entering the U.S. solely to carry on substantial trade, which is international in scope and principally between the U.S. and the foreign state. For E-1 visa, the treaty national must be an essential employee, employed in a supervisory or executive capacity, or possess highly specialized skills essential ...

    Published on 01-14-2014 01:31 PM

    Targeting Immigrant Taxpayers as a Matter of Course

    by Wendy Feliz

    shutterstock_167873873Unfortunately, there is a new fallback position for some members of Congress when it comes to finding ways to save money. That position is eliminating the Additional Child Tax Credit for immigrant taxpayers. This has been proposed in the past by other members of Congress; however, the latest iteration is in the form of an amendment that Senator Kelly Ayotte (R-NH) proposed to “pay for a three-month extension of unemployment benefits by stopping a scheme that currently allow {sic} illegal immigrants to claim the Additional Child Tax Credit.”

    Calling a program which allows immigrant workers to pay taxes and legally claim tax credits a “scheme” distorts reality. Immigrant workers—both undocumented and lawfully present immigrants—like all workers, are required ...

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