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    Published on 10-14-2013 04:07 PM

    November 2013 Visa Bulletin Commentary

    by Tahmina Watson

    visa-passport blog picThe November 2013 visa bulletin was released today. Here’s the pertinent information most of my readers are looking for:


    For ALL countries except Mexico: F2A preference remains the same as last month and Mexico retrogressed a week (that is still great news).


    For all countries except India, China, Philippines, and Mexico: F2B preference advanced 21 days with PD at 22 March 2006;  F4 category advances 14 days to PD at 22 August 2001;  EB2 is current and, and EB3  has SIGNIFICANT movement with PD JUMPING 102 days to 10 October 2010 (you may recall there was a huge jump of 547 days in September 2013).

    For India only: F2B preference advanced 21 days with PD at 22 March 2006;  F4 category advances ...

    Published on 10-11-2013 12:04 PM

    Lawyers on the Move

    by Nicole Black

    It has become conventional wisdom in this country that small businesses are the real engine of economic growth and job creation. Typical examples: the tech startup that becomes a global giant, or the small-service provider that ultimately franchises too many locations.

    Yet one of this country's most successful and pervasive small-business sectors is one many people (often including those who are in it) don't even think of as a business: the solo practitioner. Of the 1.25 million lawyers in the U.S. today, half of them, according to the American Bar Foundation, are solos, while another 15 percent work in firms with two to five lawyers.

    These firms provide the bulk of the legal work for the "other 99 percent" of the population. This large, underserved customer group ...

    Published on 10-11-2013 12:02 PM

    Iraqi Visa Bill Reauthorized Despite Washington Gridlock

    by Amy Grenier

    1960313997_6f61e6d220_oLast Friday, with little fanfare, President Obama signed into law an extension of a popular special immigrant visa program for Iraqi translators/interpreters. The law, which passed unanimously out of both the House and the Senate, extends the program, which expired on September 30, until the end of 2013. This rare agreement in the midst of the shutdown stalemate is a reminder that many immigration issues—particularly humanitarian protections—are fundamentally bipartisan.

    The visa program itself was created under the National Defense Authorization Act of 2008, which authorized the Department of State to issue Special Immigrant Visas (SIVs) for Iraqi nationals who had been translators or interpreters for the U.S. Armed Forces or for the U.S. Embassy (not as contractors). There are similar yet distinct Special Immigrant Visa programs for Afghani translators/interpreters and for Iraqi/Afghani nationals who worked for or on behalf of the United States government. Under the National Defense Authorization Act, SIVs for Iraqi translators were capped at 25,000, but only 20 percent of this amount have been given out to date. Prior to the sunset of the program, there was already significant backlog. Rights organizations have attributed ...

    Published on 10-11-2013 11:56 AM

    When Faced With Unfair L-1 Denial, Attorney Litigates Instead

    by Ann Cun

    If you haven’t been paying attention to the online forums, you would have missed reading about the mass frustration immigration attorneys have faced with L-1 petition denials from USCIS.  It’s not relegated to one category of L-1A or L-1Bs.  Caught in the crossfire are U.S. employers, desperate to bring in their key personnel and managers to expand their U.S. businesses and markets.

    In a recent L-1A case, Roy Watson, Jr., of Watson Law Offices in Bedford, Massachusetts, successfully litigated against USCIS and ultimately received an approval on the L-1A petition initially denied.[1]  Although there’s been a lot of coverage about the substance and merits of the underlying facts of the case and the legal analysis (you can read about it here and access the decision here), this article focuses instead on the procedural and practical issues involved in this case.  Mr. Watson, Jr. was gracious enough to share ...

    Published on 10-10-2013 10:55 AM

    Stop Beating that Dead Horse: THE Premier EB-5 Franchise-Based Regional Center Proposal was Overwhelmingly Inadequate and was Denied in 2010

    by Joseph Whalen (October 3, 2013)

    The Non Precedent AAO Decision found at Nov162010_03K1610.pdf , attempted to justify the designation a Regional Center in Southern California submitted by some sort of an investment “professional” who wanted to help pair immigrant investors with franchise offers. Many of these deals would have cost less than the bare minimum $500,000 EB-5 investment and none would support sufficient job creation to meet EB-5 requirements, even with reasonably calculated “EB-5 indirect jobs”. I previously wrote about this case beginning in September 2012, when it was first posted, and followed up with another article in October 2012, and finally consolidated those articles and the AAO Decision in April 2013. Previous articles were written in order to point out how extremely bad math skills; joined with poor selection of data for inputs, no grasp of the use of an economic model, and a really bad business concept for EB-5, lead to nothing but disastrous results.

    To set the stage for the current topic, I include some excerpts from the above linked decision. This article shall endeavor to illustrate the virtual uselessness of franchises for Regional Center concepts, and, let’s face it; they usually stink for an EB-5 direct or stand-alone investment as well.[1]

    “The director determined that the applicant had not established that the proposed projects would benefit the regional center as a whole,[2] had not provided a sufficient economic analysis that explained how the invested funds would create jobs and had not explained how the $30,000 balance in the regional center's account would cover the initial costs.

    On appeal, the applicant submits a new analysis and evidence that the regional center now has a bank balance of $230,096.78. For the reasons discussed below, the applicant has not overcome all of the director's concerns especially as the direct employment projection for the Holiday Inn Express lacks credibility. In addition, a review of the proposed limited partnership agreement reveals a term that is problematic.

    An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).” At p. 2

    * * * * *

    “Table 14 purports to reflect the amount of an investment required in each sub industry to create the necessary employment. It does not identify any specific franchise that would actually require an investment of this amount. Thus, the plan does not explain how the regional center would locate franchises requiring the large investments identified in Table 14. We reiterate that most of the franchises identified in the plan require an investment of less than $500,000 and very few require an investment of $1 ,000,000 or more. The plan also fails to explain how the limited partnerships investing in the regional center would invest in these small-scale franchises. ...
    Published on 10-09-2013 10:10 AM

    Initial Regional Center Designation PLUS Specific Project Provisional Approval

    by Joseph Whalen

    I am very delighted to report an important advancement in Regional Center Approval Notices. The Pangaea Regional Center straddling border counties in Tennessee and Kentucky was approved on September 13, 2013 and it included a specific project supported by a Matter of Ho-compliant business plan. The following is an excerpt from that Designation Letter and Approval Notice addressing the specific project. This will ensure that investors know upfront which specific project: (1) has received an advance-vetting by USCIS; (2) how many EB-5 investors are being sought; (3) how many jobs are anticipated to be created; and (4) the job buffer. In this case, 25 investor are sought which requires a minimum job count of 250. The projected job count is 318. That means there is a buffer of 68 jobs just in case the underlying “direct” or “base-level” job count is not fully realized on time. This is a good thing folks!

    III. The Project

    Effective the date of this notice, USCIS approves the applicant’s request ...

    Published on 10-08-2013 10:16 AM

    How Long Does It Take for AAO and USCIS to Review Something?

    by Joseph Whalen

    Purposes and Functions of USCIS Petitions, Applications, Motions, and Appeals etc…

    By Joseph P. Whalen (October 5, 2013)

    In the course of my periodic intensive reviews of AAO Administrative Decisions (Non Precedent Decisions) posted on the USCIS website, it has occurred to me that many practitioners have difficulty grasping the differences between the various items listed in the title of this article. I shall endeavor to share my conceptualization of the purposes and functions of them. My understanding should be taken as a given in the numerous articles that I write but I thought it might be helpful to my loyal readers to simply spell it out blandly and bluntly. Here goes!

    USCIS Petitions, Applications, Motions, and Appeals each have a specific purpose and function, as well as statute(s) and/or regulation(s) underlying it. They can be confusing and anywhere from slightly to highly complex.

    USCIS Petitions

    USCIS Petitions, in my mind, are requests for “classification” of one sort or another. These entail establishing some form of qualifying “relationship(s)” and/or specific “qualifications”. Collectively, the relationship(s) and associated qualifications, such as employment experience, required education, and/or specific training are known as “eligibility criteria”.

    All petitions, as far as I can tell, entail establishing facts and/or circumstances in accordance with at least one legal definition , sometimes more than one. There are “family-based”, “employment-based”, and “specific” or “special” varieties of classification petitions. The family-based petitions demand that there be a specific familial relationship in existence at some point, usually “at time of filing” the instant petition. I say usually because I am including the I-360 which is used by widows, widowers, orphaned children, or some parents of a deceased petitioner. In addition, special provisions allow for the continuation of processing for an immigrant visa when a petitioner or primary/principal beneficiary has died prior to completion of the immigration process and/or entry to the U.S. on a valid immigrant visa. These various terms and therefore the relationships are defined by law.

    Family-Based: Spouse, widow(er); child: natural in-wedlock; natural out-of-wedlock which includes the legitimated child or bona fide parent-child relationship; stepchild; adopted child; and orphan; parent is also specifically defined but relates back in most cases to the applicable definition of child; and lastly siblings who are NOT defined unto themselves but are instead defined by reference to having both met the applicable definition of child as applied to a common parent, as defined by law. WOW!

    Employment-Based: There are five (5) broad categories with a variety of sub-classifications or variants of employment-based immigrant petitions and even more non-immigrant worker classifications to contend with. Each variety of visa is dependent on the laws specifically addressing it. These petitions are often misunderstood to be solely reliant upon and sometimes too focused upon establishing the “qualifications” alone without a thought to the specific “relationship(s)” that also must be proven and exist.

    When I speak of “relationships” in the employment-based context I am referring to the “employer-employee” and “business-to-business” relationships most often encountered. There is also the oddball situation where the “importing employer” is also a “relative” of the beneficiary which throws another monkey-wrench into the works.

    The H1-B is a prime example where the prospective or continuing “employer-employee” relationship must be proven, but also for the L-1 intracompany transferee or E1-3 multinational executive or manager, who must demonstrate a qualifying and pre-existing employer-employee relationship between petitioner and beneficiary. The L-1 and E1-3 have an additional relationship issue to contend with beyond that found between employer and employee.

    The “business-to-business” relationship between the beneficiary’s foreign employer and the U.S. employer who is filing the petition must be fully demonstrated and documented to the satisfaction of USCIS. That relationship must be in accordance with the statutory language and as refined either by another statutory provision or applicable regulations or perhaps a precedent decision. There are many times when the “business-to-business” relationship is the critical factor in these petitions. One MUST qualify to file any type of petition. ...

    Published on 10-08-2013 08:33 AM

    The California Domestic Workers Bill of Rights Speaks to the Need for Wise Immigration Reform

    by Guillermo Cantor

    8486029299_b93cd8ab9c_zOn September 26, Gov. Jerry Brown signed into law the California Domestic Workers Bill of Rights (AB241). Only the third state-level measure of its kind in the country after New York and Hawaii passed their own bills, the Bill of Rights represents an historic milestone for domestic workers and advocacy groups seeking social justice for one of our most vulnerable—yet vital—workforces. The victory is also a triumph of the immigrant rights movement in securing basic labor protections for a group of individuals—in particular, immigrant women—who are often isolated and at risk for multiple forms of exploitation.

    Under the California measure, domestic workers are entitled to overtime pay if they work for more than 9 hours a day or 45 hours a week. Less expansive in its safeguards than the original proposal, the law excludes other needed protections such as daily meal and rest breaks, and adequate sleeping accommodations, among others. Still, the Domestic Workers Bill of Rights symbolizes ...
    Published on 10-08-2013 08:29 AM

    OCAHO Breaking New Ground

    Bruce Buchanan

    [Editor’s Note: Today’s blog is authored by Bruce E. Buchanan, an Attorney at the Nashville office of Siskind Susser, P.C.]

    OCAHO has been busy issuing an incredible rate of decisions on I-9 penalty cases, making it nearly impossible to keep up.  Some of the latest decisions, though, are worth highlighting in today’s article.

    Does I-9 Liability Follow the Owner Always?

    United States v. The Red Coach Restaurant (Aug. 2013) involved an employer, Red Coach, operating a bed and breakfast which received a Notice of ...

    Published on 10-07-2013 03:20 PM

    Government Shutdown Affecting Immigration Related Government Functions

    by Jared Leung

    [Editor’s Note: This update is provided by Jared C. Leung, Director of the Immigration Practice Group at Fennemore Craig, P.C. in Phoenix, Arizona.  Republished with permission.]

    This is a quick update of the impact of Federal Government Shutdown on various immigration related government functions / agencies.  Please note that the situation is fluid and the various agencies are updating their status on a regular basis.  Effective October 1, 2013, please note the following:

    USCIS (US Citizenship and Immigration Services)

    • USCIS field office operation – Opened
    • All interviews are carried out
    • Ombudsman Office – Closed
    • For further information, please click here.
    • [E-Verify Program: visit our sister blog for more details here.]

    DOS (Department of States (Embassies and Consulates))

    • Embassies and Consulates are open for regular visa application and U.S. citizen services (passport)
    • Stateside passport application – No report that this has been affected
    • See: www.state.gov

    EOIR & BIA (US Immigration Court and Appeals System)

    • Immigration Courts – Continued for detained cases. Courts ...
    Published on 10-07-2013 03:12 PM

    DOL Destroying §245(I) Confirmation System; Shutdown Effect On Immigration Related Agencies; Recognition Of Parental Rights Allowing Some Removed Aliens To Return To The U.S. For Limited Purpose; Permanent Bar For False Claim Of U. S. Citizenship Modified; Perm Audit Response Must Cover All Issues.

    by Alan Lee, Esq.

    1. The Department of Labor (DOL) gave notice on September 26, 2013 that after the 30 day period of public notice and review, the Office of Foreign Labor Certification (OFLC)'s revised retention schedule was approved by the National ...
    Published on 10-07-2013 02:38 PM

    College Leaders Know Immigration Reform Will Help Their Students and the Country

    by Amanda Peterson Beadle

    4608963722_7c88e503f8_zThe U.S. has long been a destination for students around the world. They come to attend the nation’s colleges and universities, and many wish to stay to pursue job opportunities and make their lives here, but our immigration system throws up barriers at every step of the way. Foreign students add billions of dollars to the U.S. economy each year, and those who remain are more  likely to start businesses and contribute to innovation than their American counterparts. Right now, as the economy struggles back to life, it’s hard to imagine letting such opportunities go to waste. Growing frustration with this dilemma is leading more and more college presidents, professors, and higher education administrators across the country to declare their support for improving the nation’s immigration policies. 

    Most recently, college and university leaders sent letters to their congressional representatives to call for action on immigration reform legislation so that the country can remain competitive globally. The presidents, chancellors, and deans from colleges in 10 states—Arkansas, Colorado, Florida, Louisiana, New Jersey, New York, Oklahoma, Utah, Tennessee, and Utah—signed onto the letters released by the Partnership for a New American Economy. “We ask you to work together to develop a comprehensive, bipartisan solution ...

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