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    Published on 11-02-2017 02:51 PM

    Resisting Trump's call for an end to the Diversity Lottery


    On the heels of the recent, shocking attack by a radical Uzbek Muslim in New York City, President Trump is calling for an end to the diversity visa immigrant lottery, and for strengthening of a merit-based U.S. immigration law system.

    We grieve for the victims, as we ponder solutions to extremist violence, Muslim-inspired and otherwise. As we search for solace and for answers, ...

    Published on 11-01-2017 05:12 PM

    The Empire Strikes Back – USCIS Rescinds Deference To Prior Approvals In Extension Requests


    The Trump administration is deriving great pleasure in causing pain to people who wish to lawfully come to the United States and remain here lawfully. It has caused H-1B carnage as more H-1B visa petitions are being denied than ever before on legally baseless grounds.

    Continuing to rub salt in the wound, the USCIS issued a Policy Memorandum dated October 23, 2017 that rescinds its prior guidance of deferring to prior approvals when adjudicating extension requests involving the same parties and underlying facts as the initial determination. Despite the deference policy, there were broad exceptions under which it would not apply if it was 1) determined that there was a material error with regard to the previous petition approval; (2) a substantial change in circumstances has taken place; or (3) there was new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.

    The new Policy Memorandum in rescinding the prior policy instructs adjudicators with respect to extension requests to thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The Policy Memorandum further reminds that the burden of proof in establishing eligibility is, at all times, on the petitioner under INA § 291 and criticizes the former deference policy for “appear[ing] to place the burden on USCIS to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same.” The Policy Memorandum ...

    Published on 10-31-2017 02:12 PM

    How Discretion Failed One 10-Year-Old Girl and What the Future Holds


    Much has been said about Rosa María Hernández, the latest target of the Trump administration’s immigration policies. The Department of Homeland Security (DHS) has the responsibility and authorization to enforce the immigration laws against those inside the United States without authorization. However, the government’s choice to target a ten-year old girl with cerebral palsy on her way to an emergency gallbladder surgery is remarkable, and points to the failure of prosecutorial discretion.

    Prosecutorial discretion in immigration law refers to the choice made by DHS about whether to enforce the full scope of immigration law against a person or group. Within DHS, United States Citizenship and Immigration Services (USCIS), Immigration Customs Enforcement (ICE) and Customs and Border Protection (CBP) all have the authority to exercise prosecutorial discretion favorably. CBP may exercise this discretion by avoiding specific areas for enforcement or refraining from arresting or detaining someone ...

    Published on 10-31-2017 01:35 PM

    E2 Visa: Countries Eligible for Treaty Investors


    The E-2 visa was designed for individuals from certain treaty countries to make financial investments in U.S. businesses and come to the U.S. to direct and develop their businesses. These countries have a treaty of Commerce and Navigation with the U.S. The E-2 visa is an excellent option for U.S. franchises as visa applications based on these types of businesses tend to have a higher approval rate. The E-2 visa can be issued up to 5 years, though is determined by the consulate officer and the reciprocity schedule with the applicant’s country and the U.S.

    Consular Officer Determines E-2 Visa Length

    For the majority of countries, the visa may be issued for 5 years and most of the time the E-2 visa applicant receives the full 5 years. However, the consular officer may issue the visa for a shorter period (often 2 years). The consular officer might have doubts in the investor’s ability to follow through on the business plan and hire American ...

    Published on 10-30-2017 02:05 PM

    Are You Investing Enough for Your Visa?


    Everyone already knows that the E-2 visa is a solid choice for foreign nationals interested in investing in a U.S. enterprise, but do you know how much to invest? One of the major pitfalls of applying for an E-2 is a misunderstanding of the investment requirements, which can be tricky since the USCIS is relatively vague on the subject.

    What Are the Investment Regulations?

    According to the USCIS, the treaty investor must invest a substantial amount in a bona fide U.S. enterprise. Unfortunately, aside from a few clarifications, there aren’t any specific numbers given to help investors and their attorneys determine how much should be invested. Knowing this, it is important to tread carefully in order to avoid a petition denial. Here are the stipulations given by the USCIS:

    Published on 10-27-2017 02:42 PM

    New USCIS Policy Creates Obstacles for Employers and Foreign Workers


    In a major reversal of longstanding policy, U.S. Citizenship and Immigration Services (USCIS) has created new and unnecessary hurdles for employers and foreign employees temporarily working in the United States. In the past, USCIS followed a streamlined approach when employers filed petition extensions. Now, USCIS officers will be encouraged to redetermine every petition extension as if it was a new filing. The abrupt policy change makes the bureaucratic process even more time-consuming and costly for employers and creates more uncertainty for them and their foreign workers.

    For more than 13 years, USCIS followed a commonsense policy when deciding whether to grant foreign workers the opportunity to extend their employment-based nonimmigrant status. Under ...

    Published on 10-26-2017 12:28 PM

    “Mandatory Bars To Asylum” Training Module For Asylum Officers Released After A Freedom Of Information Request


    A 37-page Asylum Officer Training Module on “Mandatory Bars to Asylum,” dated May 9, 2013, was recently released after a FOIA request by Catholic Charities of Washington DC. A copy is available at the Louise Trauma Center website: www.louisetrauma.com. It is also AILA Doc. 1710 -2563.

    There are six statutory grounds that render an applicant ineligible for asylum, even if the applicant is a “refugee.” [at page 7]:

    -persecution of others

    -conviction of a particularly serious crime

    -commission of a serious nonpolitical crime outside United States

    -danger to security of U.S.

    -participation in terrorist activities

    -firm resettlement

    Additional grounds are stated at pages 7-8:

    -if applicant could be removed to a Safe Third Country

    -previous denial of asylum by an IJ or the BIA, unless there are changed circumstances

    [a previous denial ...

    Published on 10-25-2017 12:38 PM

    R.I.P Yates Memo: 2004-2017


    The Yates Memo, published in 2004, entitled The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity, instructed immigration officers to give “deference” to the findings of a prior approved visa petition when adjudicating petition extensions (i.e. visa renewals), as long as the key elements ...

    Published on 10-25-2017 12:07 PM

    5 Things I Learned from Charlie Oppenheim at the IIUSA 7th Annual EB-5 Industry Forum

    by Bernard Wolfsdorf

    Today, I moderated a panel at the IIUSA 7th Annual EB-5 Industry Forum in Miami, FL titled “Prepared for the Long Haul: Understanding the Visa Backlog Today & Planning Ahead” with Mr. Charles Oppenheim, the Chief of the Immigrant Visa Control and Reporting within the U.S. Department of State (“DOS”). 

    Bernie Wolfsdorf speaking at IIUSA, Miami with Charles Oppenheim, Director of Visa Control, US Department of State & Lee Li, IIUSA Data Analyst. October 24, 2017

    Understanding the EB-5 visa backlog is critical for EB-5 investors, regional centers, and U.S. companies using EB-5 capital for job creation. Here are five things I learned from Charlie:

    1. Cutoff Date for Vietnamese EB-5 Investors.    For the past three fiscal years, Vietnamese EB-5 visa usage ranked #2 behind mainland Chinese.  Since Form I-526 processing times are approximately 21 months, the majority of the Form I-526 filings in FY2015 by Vietnamese could start using visa numbers right now.   There are 672 EB-5 visa applicants currently registered at the NVC, and it is likely that Vietnam will reach its 7% per country cap in FY2018 (which started October 1, 2017 and ends September 30, 2018).  Accordingly, Charlie expects a cutoff date for EB-5 visas to be introduced for Vietnamese investors in the summer of 2018.  This will likely be the same cutoff date for mainland Chinese EB-5 investors.  The critical difference between the two countries, however, is that demand from Vietnam isn’t so large, so that, when new visas become available from FY2019 (in October 2018), the cutoff date will be temporarily removed.   Expect cutoff dates for Vietnamese EB-5 investors at the end of each fiscal year for the foreseeable future.
    1. Cutoff Date for Mainland Chinese EB-5 Investors. Charlie provided an update on the cutoff date for EB-5 investors, indicating that the December 2017 Visa Bulletin for Chinese EB-5 investors will be July 15, 2014.  Charlie also indicated that the best case scenario for the mainland Chinese cutoff date for September of 2018 is October 1, 2014; the worst case would be September 1, 2014.  Charlie also mentioned that the advancement of the cutoff date has slowed down due to larger number of “Rest of World” (ROW) visas and large weekly groupings of Chinese EB-5 visa demand.  Expect slow movement on the Chinese EB-5 cutoff date in the next 12 months.
    1. Cutoff Date for Indian EB-5 Investors.   Charlie reviewed I-526 filing statistics and noted large increases in I-526 petitions filed by Indian nationals in past couple of years.  It is possible that India reaches to the 7% per country cap in FY2020 (October 2019), which would result in the creation of a cutoff date for EB-5 visas to Indian nationals.  This is a key point that must be followed closely.
    1. Difficulty in Predicting Length of EB-5 Visa Waiting Line. Charlie indicated that predicting a solid waiting line is difficult to achieve because of many factors like (a) I-526 denials, which may increase with the current administration; (b) divorce rates during the waiting time; (c) deaths during the waiting time; and (d) dropouts of EB-5 investors who find other immigration solutions or simply fail to move forward with the visa process.  Charlie mentioned this previously happened for family-based 4th preference (adult siblings).
    1. Number of Visas Per I-526 Application. Historical data shows that for each I-526 filed, there is an average of 2.838 visas issued (typically, one for investor, one for spouse, and one for child).  Charlie indicated this was consistent with the numbers he uses when contemplating future visa usage.  However, with more Vietnamese and Indian I-526 petitions filed, it will likely increase due to the larger size of families from those countries, compared to Chinese investors.  On the other hand, it may decrease if Chinese minors become principal applicants due to the current visa backlog and “age-out” concerns.   How many visas used per approved I-526 will affect the waiting line for all affected.

    This post originally appeared on Wolfsdorf Immigration Law Group. Copyright © 2017 Wolfsdorf Connect - All Rights Reserved.

    About The Author

    Bernard Wolfsdorf Bernard Wolfsdorf is the managing partner of the top-rated law firm, Wolfsdorf Rosenthal LLP (www.wolfsdorf.com), and the past national president of the 14,000-member American Immigration Lawyers Association (AILA). Established in 1986, Wolfsdorf Rosenthal LLP is known worldwide for providing exceptional quality legal services. With 19 lawyers and offices in Los Angles and New York, the firm was recently listed as a top-tier immigration practice by Chambers & Partners with several of the firm's attorneys listed in the 2015 International Who's Who Legal. Mr. Wolfsdorf specializes in EB-5 investment immigration in addition to the full range of global immigration ...

    Published on 10-24-2017 11:05 AM

    Stopping H-1B Carnage


    In his inaugural address, President Trump pledged to end what he referred to as “American carnage,” depicting the United States bleakly—as a “land of abandoned factories, economic angst, rising crime”—while pledging “a new era in American politics.”

    To reverse what Trump sees as American carnage, his administration has unleashed carnage on the H-1B visa program. The H-1B visa has become the visible symbol of an immigration program that is thought to no longer protect American jobs and favors the foreign worker. Whether this is factually true is beside the point – it is good for optics and in furtherance of Trump’s campaign slogan of America First. It does not matter that H-1B visas help American firms remain globally competitive, or that foreign workers complement the US workforce rather than replace them, resulting in greater overall efficiency, productivity and jobs. The H-1B visa is the low hanging fruit that the administration uses for target practice by shooting out a Request for Evidence (RFE), which is often a prelude to the denial.

    Consistent with his view of American First, on April 18, 2017, President Trump signed the “ Buy American and Hire American ” Executive Order No. 13788. The EO aims to create higher wages and employment rates for U.S. workers, and directs the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to issue new rules and guidance to protect the interests of U.S. workers in the administration of the immigration system. The EO highlights the H-1B visa program and directs the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries.

    Although the administration has yet to influence any legislation in Congress or change rules, the impact of the EO has hit the H-1B visa program the hardest. It has been seen in the increased number of Requests for Evidence (RFEs) challenging ...

    Published on 10-23-2017 04:43 PM

    China’s Currency Exchange Controls: Is Bitcoin the Perfect Solution?


    One of the most commonly raised questions from our Chinese clients is: How do I get my money out of China?

    It is a well-known fact that under China’s currency exchange controls, Chinese nationals are only allowed to exchange $50,000 annually. In the past years, Chinese investors have been mainly using the following methods to export Chinese currency out of China:

    • Assistance of friends and family. The investor recruits a group of friends and family (usually 11-12 individuals for a $500,000 investment) who exchange $50,000 each and transfer thea said funds to the investor’s account overseas. Widely known as “ant migration,” this method basically turns currency exchange into a team project. Further restrictions placed by the Chinese regulators this year has made the process even more excruciating for the Chinese investors.
    • Parallel transfer. This involves a single intermediary who accepts the RMB funds in China and transfers U.S. Dollars of equivalent value from an account overseas. This method has recently become a regular target ...

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