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    Published on 08-09-2016 11:41 AM

    Civil Penalties Nearly Double for Form I-9 Violations and Significantly Increase for Other Immigration-Related Violations

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    Due to the implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Public Law 114-74) (“Inflation Adjustment Act”), higher fines and civil penalties have now gone into effect for assessments that occur on or after August 1, 2016. These higher penalties can be applied to violations that occurred after November 2, 2015, the day the President signed the Act into law.

    The Inflation Adjustment Act will be implemented by multiple federal agencies that have authority to assess civil penalties. The following is a summary, by federal agency, of the penalties covering violations for the unlawful employment of immigrant workers; violations related to Forms I-9; immigration-related discriminatory employment practices; and violations of the H-1B, H-2A and H-2B temporary visa for foreign worker programs. The increases in many categories are substantial. The penalties for Form I-9 paperwork violations are increased by an eye-catching 96 percent.

    Department of Homeland Security fines:

    Department of Homeland Security Fines

    Department of Justice fines:

    Department of Justice Fines

    ...
    Published on 08-08-2016 03:23 PM

    Crowdfunding Defined Under Titles II, III and IV

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    Kurt: When we look at crowdfunding we're talking about three rules: Title II, Title III and Title IV.

    Title IV, being Reg A+ investment offerings, requires you to register your securities with the SEC, so that's going to bring more responsibility on you.

    Title III involves raising no more than $1 million.

    So my sense is that Title II, Reg D - Rule 506(c) is probably most applicable to EB-5.

    John Leo: I look at crowdfunding as a great platform to supplement traditional fundraising, or vice-versa - traditional fundraising supplementing the crowdfunding platform. I think you get a much broader look and a much broader pool of investors. 

    Based on our experience, Reg D investors make up 20%- 25% of the investors in the EB-5 projects. Reaching those investors through a crowdfunding platform, whether it's an issuer using their own portal or someone else's portal, is a great way to approach the market.

    I don't think you'll fully fund a deal that way. I really don't think you can fund a $10-million or $20-million EB-5 project through just Reg D, but I do think it's part of the solution. I think you'll be able to attract a lot of investors that you normally would not come into contact with.

    Kurt: When we look at Regulation D, Rule 506, we see it's got two elements. Soliciting solely to friends and family is obviously going to be very limited.

    So when we talk about crowdfunding, we start at this very large idea that you can solicit your offering directly to the public; then we need to narrow it down to where it really applies to the EB-5 ...

    Published on 08-08-2016 01:03 PM

    Immigration Consequences of Marijuana Use for Green Card Holders and Non-Immigrants: Don’t Let Your Dreams and Hard Work Go Up in Smoke/Vapor

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    Twenty-four states, including California, and the District of Columbia have enacted laws which legalize or decriminalize the use and possession of marijuana in some form for medicinal purposes.  Four of these states (Colorado, Washington, Oregon, and Alaska) and the District of Columbia have even legalized marijuana for recreational use.  Yet, the U.S. federal government regulates marijuana under the Controlled Substances Act (“CSA”), Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970.  The CSA prohibits the manufacture, importation, possession, use, and distribution of marijuana and certain narcotics, stimulants, depressants, hallucinogens, anabolic steroids, and other chemicals.  The U.S. Department of Justice (“DOJ”) has reaffirmed its position of enforcing the CSA, despite enactment of these state marijuana laws.  It is thus important to understand that state laws authorizing the use or possession of marijuana, even if used for medicinal purposes, do not change the fact that using marijuana continues to be an offense under federal law.

    The confusion caused by this conflict of laws is substantial, especially as it relates to U.S. immigration status.  Here are ten things lawful permanent residents (green card holders) and non-immigrants should know before smoking and/or ingesting marijuana.

    1. The Immigration and Nationality Act of 1990, as amended (“INA”), states that any ...
    Published on 08-08-2016 11:37 AM

    The United States Can’t Afford a Broken Immigration System

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    International students and professionals are critical to the strength and well-being of communities across the entire United States, yet their impact is too often overlooked or taken for granted. By delaying meaningful immigration reform, we risk losing the valuable contributions made by these immigrants.

    Our Healthcare System Relies on Foreign-Born Professionals

    Our healthcare system relies on foreign-born workers, and the demand for medical professionals from outside our borders will only increase. Currently, twenty five percent of physicians and surgeons working in the United States–plus comparable portions of other healthcare positions–were born elsewhere.

    As the baby boomer population ages, they will increasingly need more medical care. In addition, their retirements will create a deficit of doctors, surgeons, nurses, health aids, dentists, pharmacists, and clinical techs. As a result, the ability to provide healthcare will be significantly strained, furthering a need for immigrant healthcare professionals.

    America also needs more primary care physicians and doctors willing to work in rural areas. U.S.-born doctors tend to gravitate to higher paying specialties as opposed to primary care, and also favor urban areas. As the country continues to diversify, we have a growing need for physicians ...

    Published on 08-05-2016 12:48 PM

    Trump vs. Outstanding Immigrant Khizr Khan

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    It is poetic justice that Khizr Khan, a Muslim and an immigrant, has been able to take on Trump and trounce him. Trump has derided both Muslims and immigrants with the objective of pandering to his base of white male voters.  After Mr. Khan’s strong repudiation of Trump, he is no longer looking as invincible as he did before.

    Mr. Khan, and his wife Ghazala Khan, are the parents of Captain Humayun Khan who was killed in combat in Iraq in 2004. After ordering his subordinates away from a suspicious vehicle, Captain Khan bravely ran forward 10–15 steps and was killed by a suicide car bomber. He was posthumously awarded the Bronze Star Medal and the Purple Heart, and is buried ...

    Published on 08-05-2016 11:57 AM

    How Immigration Restrictions Are like Occupational Licensing

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    Conservatives across the country, from—Michigan to Arizona—are challenging burdensome occupational licenses. “Insiders use the false cover of consumer protection to get laws enacted that keep out new competitors,” Minnesota Republican state Senator Chris Gerlach recently said, explaining his reform bill.

    Visa restrictions are an obvious place to start deregulating labor markets.While a welcome development, conservatives should extend this logic to an even more pervasive form of anti-consumer protectionism: work visa restrictions.

    Work visas are licenses for foreign workers and entrepreneurs to practice their professions in the United States. And just as other occupational licenses artificially inflate prices for consumers, arbitrary visa quotas prevent consumers from accessing services that immigrants would provide. It’s protectionism, and it harms Americans every bit as much as unnecessary occupational licensing.

    Barriers to entry for foreign workers hurt American consumers and businesses.Yet even while the new Republican Party platform calls “excessive licensing requirements” a “structural impediment which progressives throw in the path of poor people,” it claims that it is “indefensible” that the U.S. government allows a million immigrants to live and work in the United States each year.

    The two positions are at odds. Occupational licenses limit the choices of American consumers in a few industries, while visa restrictions do so in every industry.

    Indeed, the research on ...

    Published on 08-05-2016 10:23 AM

    Updates on Minors as Primary EB-5 Applicants, Part 2: Practical Steps

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    As previously written, the Chinese EB-5 backlog (nearly 30 months) creates a real age-out problem for children currently aged 15-20, whether acting as the primary beneficiary or the derivative beneficiary of a Form I-526 petition.  With the waiting line was established only a year ago and the Form I-526 adjudications taking over one year, the EB-5 community may not know USCIS’ position on the new and untested issue of whether minors may file as the EB-5 principal applicant.

    1. At the recent July 28, 2016 EB-5 Stakeholder Engagement, USCIS was asked specifically whether a minor may file as the principal applicant. USCIS indicated that there is no minimum age requirement in the EB-5 regulations and that a minor principal applicant can sign the Form I-526 without a parent’s or guardian’s signature required, which is consistent with its rule and policy regarding the Form I-485 Application to Register for Permanent Residence or Adjust Status.  See 8 CFR 245.2(a)(3)(i).  However, USCIS also indicated that there are “practical issues” with regards to the capacity of a minor principal applicant to enter into contracts, which could call into question whether the contract is actually binding.  USCIS also cautioned that the evidentiary burden is on the minor principal applicant (or his/her legal guardian) to prove contractual capacity. (emphasis ...
    Published on 08-04-2016 02:21 PM

    How Immigrants Strengthen the Economies of all 50 States

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    The economic and political impact of immigration is often discussed at the national level. This makes sense, especially since immigration is a nationwide issue and a federal responsibility. Yet this national focus often obscures the effects of immigration within particular states.

    Perhaps the most systematic and comprehensive effort so far to direct public attention to the effects of immigration within each state comes from the Partnership for a New American Economy; a group which “brings together more than 500 Republican, Democratic, and Independent mayors and business leaders united in making the economic case for streamlining, modernizing, and rationalizing our immigration system.” The Partnership has released a comprehensive set of reports detailing “the contributions of New Americans” in each state.

    As an example of what each of these reports contains, consider California, which has long been a destination of immigrants. Not surprisingly, the economic power and political clout wielded by California’s immigrants is considerable. As of 2014:

    • 5 million immigrants comprised 27 percent of the population and 35 percent of the workforce.
    • Immigrant-owned businesses generated $20.2 billion in business income, and 1.5 million people were employed by firms owned by immigrants.
    • Immigrants paid $49.5 billion into the Social Security and Medicare programs, and had $238.7 billion in spending power.
    • Students on temporary visas comprised 27.5 percent of students earning a doctoral degree in science, technology, engineering, and math (STEM).
    • ...
    Published on 08-04-2016 12:15 PM

    The Increasing Cost of Form I-9 Non-Compliance

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    Imagine it’s your first day of work in the HR department, and you’ve been given the dubious honor of “cleaning up” your employer’s Form I-9 files. Initially, visions of scattered file boxes and forms dance in your head, filled with dusty reminders of individuals hired years ago. There will be dog-eared manila folders, paper clips stretched beyond their size, and un-sticky post-it notes, long since abandoned with the passage of time.

    But then you realize it’s actually much worse than you thought. For when your boss kindly asked you to “clean up” the I-9 forms, he was actually talking about a cleansing of a different sort – the kind which is necessary to correct all of those insidious errors and omissions hiding in plain site on your forms. And as you quickly learn, it’s oh so easy to make a mistake! All it takes is a missing date, incorrect document choice, or a forgotten signature to turn your relatively benign-looking I-9 form into a ticking time bomb of liability.

    A question though inevitably rises as you ponder the mess in front of you – does this really even matter? Surely, the fines for incorrect paperwork violations must be fairly small, right?

    Guess again – as it turns out, the penalties for simple I-9 transgressions can be quite significant, particularly for employers with frequent turnover. For example, during an inspection, a government agency ...

    Published on 08-04-2016 10:33 AM

    District of Columbia v. Ninth Circuit Courts of Appeal: Who Will Be the Bigger Influencer In Interpreting EB-5 Laws?

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    ...
    Published on 08-03-2016 01:35 PM

    How Can the U.S. Attract and Retain STEM Graduates?

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    International doctoral students are significantly more likely than native-born U.S. students to major in and graduate from STEM fields In fact, international students make up about 40 percent of all STEM Ph.D. students, and are expected to comprise half of all STEM Ph.D. graduates by 2020. A new report by the Kauffman Foundation, Will They Stay or Will They Go? International STEM Students Are Up For Grabs, examines why these students choose to come to the U.S., and what they want to do with their degrees after graduation.

    These important questions have huge implications for the U.S. economy. According to the latest study by the Association of International Educators, during the 2014-2015 academic year there were 974,926 international students studying at U.S. colleges and universities. These students contributed $30.5 billion and supported more than 373,000 jobs to the U.S. economy. A separate 2012 report found that “every foreign-born student who graduates from a U.S. university with an advanced degree and stays to work in STEM has been shown to create on average 2.62 jobs for American workers—often because they help lead in innovation, research, and development.”

    Kauffman found that 84 percent of foreign students surveyed said they came to the U.S. for graduate ...

    Published on 08-03-2016 11:42 AM

    "The Line" for Green Cards Is So Long You Might Die of Old Age Waiting

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    Immigrants are often told to “get in line” if they want to stay in the United States. This demand is disingenuous for many reasons. Many immigrants have no line to get into. And even if they do, we are telling them to join these lines when no one even knows how long they are. In many cases, we could be asking immigrants to join a line that they will literally never live to see the end of.

    Immigrants might face a line they will literally never live to see the end of.We don’t know much about who's in these lines until they get to the front, but here’s what we do: Thousands of immigrants come to the United States each year on temporary work visas. While working in temporary status, some of their employers petition on their behalf to obtain green cards for them to stay permanently. If the employer has jumped through all the appropriate hoops, the worker can then apply for a visa, if — and this is a big if — the limit on visas that year has not been reached.

    This is where the line — and the waiting — starts. For lawmakers trying to fix the immigration system, figuring out how many people are at this point in the process is critical. But even they don’t know.

    5 million people are waiting abroad.We do have a good idea how many people are waiting overseas. The State Department keeps track of those numbers and publishes them annually, and we’re quickly approaching 5 million immigrants waiting abroad, which is an astounding number on its own.

    But for temporary immigrants already in the United States, the Department of Homeland Security doesn’t keep track — or doesn’t publish — the number of applicants who are prevented from receiving a green card due to the limits.

    The State Department publishes a monthly visa bulletin that tells people in either line — here or abroad — whether they can apply for a green card. It lists a date, as seen below, next to a visa category. This date is the cutoff. If your employer’s petition was filed after the date listed, you cannot apply for a green card yet.

    Figure 1: Visa Bulletin — Application Final Action Dates for Employment-Based Preferences
    Source: State Department

    These dates can sometimes create ...


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