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    Published on 09-12-2016 11:29 AM

    Six Things to Know about the August 29, 2016 EB-5 Stakeholder Engagement

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    Yesterday the U.S. Department of State (“DOS”) published the October 2016 Visa Bulletin, the first visa bulletin of Fiscal Year 2017. The cut-off dates published in the DOS’ Visa Bulletin each month indicate whether an immigrant visa or green card is available for foreign nationals with approved immigrant visa petitions. Because of per country limitations the wait varies depending on the applicant’s country of birth and the visa ...

    Published on 09-09-2016 10:22 AM

    Posner on Immigration's Crimes Involving Moral Turpitude: "Who talks like that? Who needs to talk like that"?

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    Judge-richard-posner

    If we had an “immigration case of the week” category on this blog, this decision – especially Judge Richard Posner’s concurrence – out of the Seventh Circuit would be the hands down winner.* The case:* Arias v. Lynch, No. 14-2839 (7th Cir. Aug. 24, 2016). The issue:* does a conviction for falsely using a social security number to work under 42 U.S.C. § 408(a)(7)(B) constitute a “crime involving moral turpitude”?**

    The majority opinion illustrates the lingering problems created by then-Attorney General Michael Mukasey’s decision in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) (“Silva-Trevino I”), when DHS sought to depart from the categorical approach by permitting adjudicators to look behind the record of conviction when making CIMT determinations.* In this case, the majority finds that the BIA had essentially misapplies the categorical analysis, even under Silva-Trevino I.

    More importantly, the majority opinion has some great insights to challenge the very notion of treating a conviction for using a false social security number to work as a conviction that should trigger negative immigration consequences:

    “It seems inconsistent with the terms “base, vile, or depraved” to hold that an unauthorized immigrant who uses a false ...

    Published on 09-08-2016 01:23 PM

    Rethinking deportation

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    No, immigration hasn't really been the central talking point in this election. While there are cries for immigration reform and chants against illegal immigration, the flash point isn't immigration, it's deportation. Think about how different the discourse would be if we were arguing about how to let people in instead of only how to keep – and kick – them out.

    Nearly seventy years ago, the Supreme Court described deportation as “a drastic punishment, and at times equivalent to banishment or exile.” Finding the stakes to be high, it refused to read laws resulting in deportation broadly.

    Since then, Congress responded by passing broad deportation laws, and continued to expand them. People who have lawfully lived in the US for nearly their entire lives are deported for minor infractions to countries they never knew. Others who flee persecution are deported to their deaths. Sometimes even US citizens or immigrant veterans who fought for this country are swept up in the deportation machine. We are a country that incarcerates children in for-profit jails. Judges lost the power to stop deportation in sympathetic cases. The immigration law now creates perverse incentives for undocumented people to remain in the United States even if they want to leave and come back legally. The enforcement-first approach has been failing for decades, and its primary weapon is the Grim Reaper of immigration law: deportation. And still they come.

    What the law used to recognize as strong medicine is now available over the counter. It is used by policymakers, politicians, and self-styled commentators. Don't like what someone says? Deport them! Don't like a religion? Deport it! Don't like a candidate? “Maybe they'll deport her.” How many civilizations have fallen after they fractured over such disagreements?

    It's time to rethink deportation as a panacea – or even a prerequisite – toward fixing our immigration system.

    For all the talk, deportation is not well understood. In his immigration speech in Phoenix, Arizona (which was really a deportation speech) Donald Trump boomed, “They're gone,” referring to what he says are 2 million “criminal aliens.” In those two words, Trump unwittingly shed light on three misconceptions about deportation. One, that it's automatic. Two, that it's easy. Three, that it's permanent.

    Deportation is not automatic. Due process does – and has always – applied to all people within the United States, even if the exact process due may vary. The line between legal and illegal immigration status is not as black and white as the current discourse assumes, and so there must be a legal process to determine who gets deported. Many American citizens were once undocumented, or at least subject to deportation. Many documented immigrants may lose their status, only to find another way to regain it. Others are ordered removed, but are granted limited relief – limbo status that does not result in physical removal. Others may win asylum or cancellation of removal.

    Removal proceedings require identification, apprehension and sometimes detention, often for lengthy periods of time while hearings (and possibly appeals) conclude. Even for those with unchallenged final orders of deportation, the actual process of removal from the United States requires obtaining travel documents from the home country – if the home country will accept their citizen back. Given the numbers, it is not as easy as saying “They're gone.” That so many get deported is more a comment on the due process they (didn't) receive rather than actual ineligibility to stay – it's not a stretch to say the deportation machine survives ...

    Published on 09-07-2016 11:51 AM

    Not All Blogs Are Created Equal

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    When done right, a blog can be a living, detailed entity that represents you to the world. When done wrong, a blog can be a chore, an unwelcome expense that produces little return on your effort, or even an ethical minefield. The difference lies in how well you implement fundamental policies.

    1) Policies on purpose

    Blogs must be considered in light of your entire strategy for reaching your target market, not as isolated productions. Achieving that requires policies to define a blog's purpose, including the following:

    • Create a profile of your ideal client who will give you the kind of work that you want, and develop a marketing strategy that focuses on that target, not on everyone.
    • Make sure that your blog supports ...
    Published on 09-07-2016 11:37 AM

    ICE Releases Quarterly International Student Data

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    ICE released the following announcement about international students:

    There are 1.11 million international students with F (academic) or M (vocational) status studying in the United States according to the latest "SEVIS by the Numbers," a quarterly report on international student trends prepared by the Student and Exchange Visitor Program (SEVP), part of U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI).

    The report, released Tuesday by SEVP, highlights July 2016 data from the Student and Exchange Visitor Information System (SEVIS), a web-based system that includes information about international students, exchange visitors and their dependents while they are in the United States.

    Based on data extracted from SEVIS July 7, international student enrollment at U.S. schools increased 5.5 percent compared to July 2015. In July, there were 8,673 U.S. schools with SEVP certification to enroll international students, about a two percent decrease from the previous year.

    Forty-two percent of international students studying in the United States, equaling almost 467,000 individuals, were enrolled in science, technology, engineering and mathematics (STEM) coursework, an increase of 15.2 percent from July 2015. Approximately 407,000 international students from Asia pursued STEM studies, an increase of 17 percent since July 2015.

    The July report includes a special section about European students studying in the United States. As of July 7, European students composed 7.26 percent of international students in the United States, equating to roughly 80,000 students. Fifty-two percent were male and 48 percent were female. This differs from the rest of the world, where nearly 60 percent of international students were male and just more than 40 percent were female. Almost 60 percent of European students hailed from six countries in Europe, including the United Kingdom, France, Germany, Spain, Russia and Italy, and 44 percent of European students were enrolled at schools in three states – California, New York and Massachusetts.

    Among ...

    Published on 09-06-2016 01:44 PM

    Harmonious Coexistence: New Parole for International Entrepreneurs and Old Entrepreneur Pathways Portal

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    U.S. Citizenship and Immigration Services (USCIS)  proposed a rule allowing certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so they may start or scale their businesses in the United States. This is not the first administrative initiative for entrepreneurs. In 2011 the USCIS provided guidance on how foreign entrepreneurs could use the existing nonimmigrant visa system to establish startups in the United States, which culminated in the Entrepreneur Pathways portal. Both the parole rule and the Entrepreneur Pathways should exist alongside each other. Neither is perfect, especially in the absence of a Congressionally mandated startup visa, but if an entrepreneur cannot qualify under the parole policy, every encouragement must be given for the entrepreneur to qualify for a visa through his or her startup under the existing visa system, such as through an H-1B visa.

    First, we introduce the proposed parole rule for international entrepreneurs.

    The proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a “significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.” Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

    • Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
    • Whose startup was formed in the United States within the past three years; and
    • Whose startup has substantial and demonstrated potential for rapid business ...
    Published on 09-06-2016 01:34 PM

    Until Further Notice! Why PERM Applications Must Continue To Be Error-Free?

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    In a recent decision, Matter of Cisco Systems, Inc. 2012-PER-01179 (June 9, 2016), the Board of Alien Labor Certification Appeals (BALCA) reaffirmed its hardline stance that modifications cannot be made to filed labor certification applications under Program Electronic Review Management (PERM). Although this decision hardly comes as a surprise as the mandate that PERM applications must be “letter-perfect” is commonly accepted, it serves as an important reminder to employers and practitioners alike, that the ETA Form 9089 must always be prepared with tremendous care and diligence.

    Matter of Cisco Systems, Inc. involved a denied PERM application filed by the employer for a “software engineer” position. The PERM was denied on the grounds that the employer failed to state the position’s actual requirements. As a brief background on the case, the employer had attested on the ETA Form 9089 that its minimum requirements included twenty-four months of relevant work experience. The employer failed to demonstrate in the description ...

    Published on 09-02-2016 12:27 PM

    Why "Family Detention" is a Misnomer

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    More than two years after the Obama Administration launched its aggressive expansion of family detention in an attempt to “deter” the arrival of asylum-seeking Central American families, numerous problems associated with such practice have been brought to light.

    One such issue is the separation of family units while in U.S. custody. A report released this week by the American Immigration Council, Divided by Detention: Asylum-Seeking Families’ Experiences of Separation, calls “family detention” a misnomer and examines what happens when this practice splits families apart instead of actually keeping loved ones together.

    Through interviews with families that experienced separation during the detention process, conversations with attorneys, and analysis of government policies and documents, Divided by Detention profiles how families arriving together are separated by the government and how that separation impacts their well-being, as well as making it more challenging for families to access asylum or other humanitarian relief.

    The report explains that the “beginning of a prolonged and indefinite separation” from loved ones is likely to occur at Customs and Border Protection’s (CBP) “short-term” detention facilities (called hieleras, or iceboxes) near the U.S.-Mexico border. CBP does not have a clear policy on separating family members in their holding cells and has failed to respond to a Freedom of Information Act (FOIA) request inquiring about the policy. The report states, however, that the detention of families arriving at the U.S. border is not mandatory—CBP has the discretion ...

    Published on 09-02-2016 12:04 PM

    Republicans Will Continue To Reject Comprehensive Immigration Reform Bills Until These Problems Are Resolved.

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    Thirty years ago, Republican President Ronald Reagan signed the last immigration reform bill that had a legalization program, the Immigration Reform and Control Act of 1986 (IRCA).  At the signing ceremony, he said, “IRCA was the product of one of the longest and most difficult legislative undertakings of recent memory.  It has truly been a bipartisan effort, with this administration and the allies of immigration reform in the Congress, of both parties, working together to accomplish these critically important reforms.” 

    IRCA met the political needs of both parties, which is something that no comprehensive immigration reform bill since then has done.  On May 25, 2006, the Senate passed the Comprehensive Immigration Reform Act of 2006, S. 2611, and on June 27, 2013, the Senate passed the Border Security, Economic Opportunity, ...

    Published on 09-01-2016 03:10 PM

    Is Trump’s Ten-Point Immigration Plan a tale told by an idiot, full of sound and fury, signifying nothing?

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    Donald Trump is not an idiot, but his plan cannot be implemented, which makes it sound and fury, signifying nothing.

    1. We will build a wall along the Southern Border.  The United States has been erecting barriers along the border with Mexico since 1990, when it constructed a 66-mile fence along the California coast to deter illegal immigration.  And bills authorizing the erection of barriers along the border with Mexico have been supported by both parties.  In fact, when Hillary Clinton was a senator, she and 26 other Democratic senators voted for the Secure Fence Act of 2006, which authorized the building of 700 miles of physical barriers along the border with Mexico.  Only 17 Democratic senators voted against it.  In the House, 64 Democrats voted for it and 131 against it.  An attempt also has been made to construct a virtual wall across the entire 2000-mile border, the

    Published on 09-01-2016 02:54 PM

    Six Things to Know about the August 29, 2016 EB-5 Stakeholder Engagement

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    On August 29, 2016, the U.S. Citizenship and Immigration Services (“USCIS”) hosted a “make-up” teleconference engagement with members from the Immigrant Investor Program Office (“IPO”) due to the poor technical audio issues at the July 28, 2016 engagement. USCIS did not repeat remarks previously made by IPO Chief Nick Colucci or by IPO Division Chief Lori Mackenzie.

    Here are some interesting issues raised during the recent EB-5 stakeholder engagement:

    1. Update on Minors as Investors. IPO stated there is no age restriction in EB-5 regulations but also indicated that a minor normally lacks legal capacity to enter into certain types of contracts that are necessary to demonstrate the qualifying investment. The discussion indicated that an investor has the burden of proof to alleviate any concerns related to a minor’s capacity to contract and the possible voidability of contracts signed by a minor. Unfortunately, the IPO did not provide guidance on what documents could be used to prove that the investment contracts were binding, and the funds irrevocably committed and they indicated that each case would be analyzed on a case-by-case basis. Additionally, the IPO stated for the first time, that funds gifted by a minor investor’s parents can be wired directly into the projects escrow ...
    Published on 08-31-2016 01:17 PM

    Don’t Fix H-1B RFEs – Avoid Them!

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    More and more H-1B petitions are coming in each year for the same 85,000 annual visas. At the same time, we have seen a sharp increase in the prevalence of RFEs in response to these petitions.

    Why You Don’t Want that RFE

    An RFE is a tool that CIS uses to make a decision about whether or not a candidate’s visa should be approved. While receiving an RFE is an opportunity to strengthen your case, or your client or employee’s ...


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