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    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 ...
    Published on 10-23-2017 03:44 PM

    H1B Alert: CIS is WRONG About Level 1 Wages RFE


    Employment issues are this year's justification for the slew of RFEs CIS issued targeting computer programmers applying for H1B visa status.

    The problem arises when employers mark the occupation as Level 1 Wage on the Labor Conditions Application (LCA) they must file. CIS released a memo in late March indicating that computer programmers at Level ...

    Published on 10-23-2017 03:39 PM

    Chinese Immigrants in the United States



    Chinese Immigrants in the United States The Chinese represent the third-largest immigrant population in the United States, their numbers having grown rapidly in recent decades. The population is atypical in some respects: Far more highly educated and likely to have come via student and employment pathways than the overall U.S. foreign-born population. This Migration Information Source article offers key data on Chinese immigrants , including top destinations, incomes, and English proficiency.


    The United ...

    Published on 10-20-2017 03:57 PM

    An American Could Do the Job


    On April 18, 2017, President Trump signed the Buy American and Hire American (BAHA) Executive Order, which seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering our immigration laws. It also directs DHS, in coordination with other agencies, to advance policies to help ensure ...

    Published on 10-19-2017 11:22 AM

    Employers Beware: Ice Director Warns Of ‘quintupling’ Worksite Enforcement Actions


    In statements made to the Heritage Foundation on October 17, acting Immigration and Customs Enforcement (ICE) Director Tom Homan stated that he has instructed the agency to potentially quintuple worksite enforcement actions next year.

    As reported by CNN , Homan stated that "We've already increased the number of inspections in work site operations, you will see that significantly increase this next fiscal year." Homan further elaborated that "When we find you at a worksite, we're no longer going to turn our heads," Homan elaborated after the event. "We'll go after the employer who knowingly hires an illegal alien[.]”

    Specifically, the news outlet reports that Homan directed agents of Homeland Security Investigations (HSI) to audit how much of their time is spent on worksite enforcement, and to accordingly ...

    Published on 10-19-2017 11:13 AM

    Case Study How to Answer the Level 1 Wage RFE


    The short answer: get help! This is the most difficult RFE we've seen in many years, and definitely the most widespread. The sheer volume of Level 1 Wage RFEs pouring in from CIS onto H1B candidates is insanity. It is more important than ever that we take a stand and answer these RFEs for the sake of the H1B program, US STEM industries, and to continue to attract bright students to the United ...

    Published on 10-18-2017 05:02 PM

    Musings On Our Asylum System – After AG Sessions’ Remarks on ‘Dirty Immigration Lawyers’


    Attorney General Sessions who has been hostile towards increased immigration and views the asylum system as a loophole for unauthorized entry into the US said in recent remarks that “over the years, smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.” He got even more animated as he went on his diatribe about how the credible fear interview process is being gamed by those who would otherwise be expeditious removed. “We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to clients to make false claims to asylum providing them with the magic words needed to trigger the credible fear process,” he said.

    Sure enough, there have been a few lawyers who have filed fraudulent asylum claims and have deservedly faced punishment through criminal convictions. However, the vast majority of these supposedly dirty immigration lawyers are some of the finest people I have known who work with passion to ensure due process, fairness and justice. Mr. Sessions was appropriately rebuked by AILA President Annaluisa Padilla who said, “Attorney General Sessions chose today to deride the American asylum system, the vulnerable populations who seek safety here, and the immigration attorneys who work tirelessly to ensure due process is afforded to everyone,”

    The law surrounding political asylum is extremely complex, and one who fears persecution needs competent representation – and a lot of representation in the asylum arena is pro bono. An asylum applicant’s chances improve exponentially when he or she is represented by a good lawyer. ...

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