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    Published on 07-29-2016 10:55 AM

    Double Edged-Sword: The Limiting Power of the “Last Action Rule” in the H-4 Context


    Under the “Last Action Rule” the most recent or last government action affecting someone’s status controls. A common example of this in action is where an employee’s subsequent H-1B Extension Approval extends her H-1B validity and overrides her prior I-94. An individual’s I-94 is valid until 9/30/2016, but the end validity date on her subsequent new H-1B Extension Approval is 10/1/2018. Which controls? Because the H-1B Extension Approval is the last action the government has taken on her status, the H-1B Approval controls/overrides the I-94 and the individual’s H-1B status is extended ...

    Published on 07-28-2016 01:14 PM

    How the Democratic Party Platform Addresses Immigration



    In contrast to the Republican Party Platform on immigration released last week, which was generally negative on immigration and lacked any practical ideas for reforming U.S. immigration, the recently released Democratic Party Platform discusses immigration as a positive for America and identifies specific policy fixes to help update our outdated immigration system. As the platform notes, “immigration is not just a problem to be solved, it is a defining aspect of the American character and our shared history.”

    The platform describes how the current immigration system is separating families and failing to incorporate undocumented immigrants into our society. It also acknowledges that there is a need to create a path to citizenship for those currently in the U.S. without status.

    The platform also describes fixing the immigration visa backlog in an effort to reunite families. Specifically the platform notes, the “immigration bureaucracy is full of backlogs that result in U.S. citizens waiting for decades to be reunited with family members, and green card holders waiting for years to be reunited with their spouses and minor children.”

    It also discusses repealing the ...

    Published on 07-28-2016 11:49 AM

    A Colloquy about the Disappearing Equal Protection Rights of Immigrants


     Jenny-Brooke Condon’s recent article The Preempting of Equal Protection for Immigrants? analyzes important issues surrounding the constitutional rights of immigrants. Professor Condon in essence contends that the current legislative, executive, and scholarly focus on the distribution of immigration power between the state and federal governments has undermined the Equal Protection rights of legal immigrants in the United States. Despite the contentious national debates over immigration reform, immigrants’ rights have generally been of secondary concern in contemporary immigration scholarship, which is now dominated by analysis of immigration federalism. 

    I comment on Professor Condon's article in Washington ...

    Published on 07-28-2016 10:21 AM

    H.R. 5203 and a Shifting Burden of Proof


    This last May, the House Judiciary Committee passed bill H.R. 5203, the Visa Integrity and Security Act of 2016 (VISA Act), which aims to enhance the security procedures for the adjudication of immigrant and nonimmigrant visas at Embassies and Consulates abroad. While Congress has not yet passed it into law, some of the highlights of this piece of legislation include:

    • Mandatory background investigations will be required which include a review of each applicant’s social media activity. [Yet another reason to avoid Twitter and Instagram.];
    • Mandatory genetic/DNA testing in family based applications will be performed to confirm biological relationship between petitioner ...
    Published on 07-27-2016 12:58 PM

    L-1Z Blanket Petition: Swiftly Transfer Global Talent to U.S.


    The L-1Z Blanket petition is a critical visa option that assists multinational companies to quickly transfer qualified global talent to the United States.  As U.S. Citizenship and Immigration Services (“USCIS”) service centers continue to issue high rates of Requests for Evidence (“RFEs”) and restrictively adjudicate L-1A and L-1B petitions, the L-1Z Blanket petition has become a critical method for larger global companies to transfer key staff to work at a U.S. office.

    Introduction to the L-1Z Blanket Petition

    The L-1 nonimmigrant visa allows a U.S. employer to transfer an executive or manager, or a specialized knowledge professional from one of its affiliated foreign offices abroad to an office in the U.S.  Instead of having to file separate, individual L-1 visa petitions with USCIS for each inbound transferee, an L-1Z Blanket petition acts to pre-approve the qualifying corporate relationship among a list of U.S. and foreign corporate entities.  The L-1Z Blanket petition is meant to serve relatively large, establish companies that have multi-layered structures and numerous related business entities but can also be used by companies having an established ...

    Published on 07-27-2016 11:04 AM

    BROWN AROUND TOWN: Much Better Now?


    Published on 07-27-2016 10:27 AM

    The New 24-Month STEM OPT Extension: How to qualify and who will be affected?


    [The first part of the article can be found here; the second part here]

    Employer Responsibilities
    Although the new STEM OPT extension may seem like good news for students, it may also seem like a sugarcoated pill for employers. Employers employing students under the new rule will now be subject to the following responsibilities:

    • Be enrolled in E-Verify and remain in good standing.
    • Report material changes to the STEM OPT student’s employment to the DSO within 5 business days.
    • Implement a formal training program to augment the student’s academic learning through practical experience.
    • Provide an OPT opportunity that is commensurate ...
    Published on 07-26-2016 01:29 PM

    AAO’s Changing Regional Center Termination Methodology


    Published on 07-26-2016 10:18 AM

    Recent Amendments to The Freedom of Information Act Provide Easier And Cheaper Access To Government Documents


    The Freedom of Information Act [FOIA] has been amended to provide easier and cheaper access to government documents. P.L. 114-185, 130 Stat 538, effective June 30, 2016.

    The agency now must show it would suffer harm upon disclosure, for many documents

    Many documents, earlier deemed exempt from disclosure, will remain exempt, only if “the agency reasonably foresees that disclosure would harm an interest protected by an exemption.” In other words, the agency must show it would suffer harm if the document is released.

    This amendment legislatively overrules many published cases. Courts interpreted the earlier version of the FOIA to include a presumption of harm. For example, in National Security Archive v. C.I.A., 752 F.3d 460, 464 (D.C. Cir. 2014), the requester claimed that the CIA had identified no concrete harm that would result from release of a ...

    Published on 07-26-2016 10:08 AM

    Deconstructing the Myth of the Criminal Immigrant


    Donald Trump began his presidential campaign last year by accusing Mexican immigrants who cross the border as being criminals and rapists, and ended with the same sentiment in his acceptance speech of the Republican nomination by thundering that “nearly 180,000 people with criminal records ordered deported from our country are tonight roaming free to threaten peaceful citizens.”

    While every prior Republican nominee in recent times has spoken in glowing terms about immigrants being an asset to America, Trump emphasized only on the dark aspects, and hyped up fears of immigrants being a threat to the American people. This is despite the fact that studies have proved that newcomers are less likely to commit crimes than the native population.

    Still, even if immigrants commit crimes in lesser proportion ...

    Published on 07-25-2016 01:32 PM

    Tim Kaine’s Views on Immigration Policy


    Tim Kaine

    Democratic Presidential Candidate, Hilary Clinton has named Senator Tim Kaine of Virginia as her Vice-Presidential running mate.

    A look into Tim Kaine’s past positions on immigration reveal that he has supported steps towards reforming America’s immigration system, has spoken out against punitive, anti-immigrant measures at the state level, and has made significant efforts to reach out to the immigrant community.

    In 2010, while serving as Chairman of the Democratic National Committee he admonished Arizona’s notorious, anti-immigrant measure SB 1070, calling it “small-minded and short-sighted.”

    Tim Kaine also supported the DREAM Act and as a Senator voted yes on S. 744, the last immigration reform bill to pass the senate.  He also famously gave a floor speech on the need for immigration reform in fluent Spanish while the debate over the legislation waged.

    In 2015, he made public statements in support of the Deferred Action for Childhood Arrivals (DACA) initiative noting that the “DACA program announced by the President has allowed young people to contribute to our communities, live without constant fear of deportation, keep families together and provide economic and educational opportunities for these young recipients.”

    His current Senate website notes that he supports the Obama Administration’s ongoing efforts to expand DACA and implement DAPA. He writes: “I also support efforts to expand the Deferred ...

    Published on 07-25-2016 11:43 AM

    An Explanation of the EB-5 Immigrant Visa Backlog for Chinese EB-5 Investors – How Did We Get Here?


    This post is an updated version of the article included in the NES Financial Navigating a Changing EB-5 Sector: Insights from Experts 2016 Summer eBook, which can be downloaded for free here.


    The immigrant visa backlog for EB-5 investors subject to the China quota threatens to undermine the EB-5 Immigrant Investor Program (“EB-5 Program”).  Chief amongst the many factors that have caused the formation of this backlog are demand from mainland China that constitutes over 80% of investors. Unless and until remedies are created at the legislative and/or executive level to reduce the long waiting times, the ability to use the EB-5 program as an avenue for immigration will decrease.  This article looks to current data released by U.S. Citizenship and Immigration Services (“USCIS”)[1] and the U.S. Department of State (“DOS”)[2] to demonstrate how the immigrant visa backlog for Chinese EB-5 investors has been created.

    EB-5 Visa Allocation

    The Immigration and Nationality Act (“INA”) allocates an annual amount of 10,000 immigrant visas to EB-5 investors and their derivative beneficiaries.[3]  This EB-5 immigrant visa quota was established in 1990, has never been changed, and until recently, has been sufficient to meet the demand for EB-5 immigrant visas.  Immigrant visas issued to each derivative beneficiary are charged to the principal beneficiary’s preference category.[4]  In FY 2015, the DOS issued a total of 8,773 immigrant visas to EB-5 principal and derivative beneficiaries.  Of those issued, 2,919 (33%) were issued to principal beneficiaries, while 5,854 (66.7%) were issued to derivative beneficiaries.  An additional 991 visa numbers were used by USCIS to complete adjustment of status cases in the U.S. Accordingly, with an average of three green cards issued per approved Form I-526 petition, approximately 3,100-3,300 EB-5 investor family units are able to immigrate annually.

    Increased Filings and Processing Times of Form I-526 Petitions

    Despite the many contentious issues in the EB-5 arena resulting in calls for reform, the EB-5 Program has never been more popular among foreign nationals, especially those from China. Over 20,000 petitions remain unadjudicated in the pipeline at the Immigrant Investor Program Office (“IPO”) in Washington, D.C., and another 20,000 approved visa applicants are waiting for final green card interviews to be scheduled. A record breaking 12,852 new Form I-526 petitions were filed during the 6-month period from July 1, 2015 through December 30, 2015.[5] This unprecedented surge was due to the sunset of the program and the announced increase in the minimum investment amount, as well as the possibility of other reforms to the EB-5 Program.  At the same time, the average processing time to adjudicate a Form I-526 petition has increased to 16.6 months as of May 31, 2016.[6]

    Fewer Adjudications, and Increased Denials, of Form I-526 Petitions

    USCIS adjudicated 1,629 Form I-526 ...

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