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    Published on 12-17-2015 12:26 PM

    Congress to Extend Current EB-5 Program Until September 30, 2016 – Changes Other Immigration Programs

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    Congressional leaders reached an agreement and are expected to pass the 2016 Federal Omnibus bill, which will include reauthorizing and extending the EB-5 Regional Center program through September 30, 2016.  This bill will keep the EB-5 program in its current state, without making any reforms.  As a result, the Department of State will continue to schedule Immigrant Visa appointments for foreign nationals with approved I-526 petitions and current Priority Dates.

    After months of speculation surrounding the Regional Center expiration on September 30, 2015 and again on December 11, 2015, the clarity of an extension through September 30, 2016 is welcome news.  The past few months have seen numerous EB-5 reform proposals introduced ...

    Published on 12-17-2015 10:28 AM

    EB-5 Program Will be Extended Until 9/30/16 Without Reform; The Work Begins

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    To all who have been watching the EB-5 legislative saga unwind before us in the last weeks, we are happy to announce that Congressional leaders have come to an agreement to extend the EB-5 program, with no changes, through September 30, 2016. The announcement came last night from IIUSA and the EB-5 Investment Coalition, and has been confirmed by others today.

    This result comes after furious negotiations over draft language circulated over the course of the last ten days broke down, with the vast majority of the industry opposed to language that would have had substantial and devastating, and perhaps ...

    Published on 12-17-2015 10:21 AM

    Congress Extends EB-5 Program for One Year Without Changes

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    ...
    Published on 12-16-2015 10:51 AM

    Congress Seems To Have More Tinkering To Do Before Passing EB-5 Regional Center Program Reform

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    I was convinced that Congress was satisfied with the version of the EB-5 Regional Center Program Reform bill it had worked out. I was wrong and I was not alone in that. Upon reflection though, I can understand Congress' hesitancy. I want to remind the EB-5 stakeholder community about the 2002 EB-5 amendments and what a pain in the neck that was. If you have no idea about those amendments, then please back off of EB-5 and do your homework before proceeding any further. In the wake of the stagnation of the EB-5 program following the issuance of the four 1998, EB-5 Precedent Decisions and the lawsuits that followed, Congress tried to give the investors a break. They passed very convoluted, complex, and mainly useless "ameliorative" amendments in 2002. INS was directed to issue ...

    Published on 12-15-2015 01:29 PM

    Refugee Crisis Deepens Political Polarization in the West

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    Hungary's Viktor Orbán is one of many political leaders to sharpen his anti-immigrant rhetoric amid the European migration crisis. (Photo: Dániel Végel/European Commission)

    Europe’s refugee crisis, which worsened significantly in 2015, has incited forceful and sometimes contradictory rhetoric from politicians across the political spectrum and indeed beyond the continent. The arrival of unprecedented numbers of asylum seekers moving across the Mediterranean and through the Western Balkans has not only strained national asylum systems, but triggered a shift in the political landscape. Populist and far-right groups in Europe have sharpened their rhetoric, using tougher, more enforcement-laden language to reassure voters they have control of a situation many constituents see as slipping from their grasp. These reactions have not been limited to the far right, as mainstream politicians have co-opted such rhetoric in a bid to recapture votes from rising nationalist and anti-immigration opposition parties.

    In some countries, the use of stronger language has gone hand-in-hand with knee-jerk policy responses to restrict refugee flows. The November 13 Paris terrorist attacks set off a new round of fear-mongering, based on early reports that one of the terrorists had a Syrian passport (authorities later confirmed all identified attackers were EU nationals, and the passport found was fraudulent), triggering an announcement from the Polish government that it would rescind its commitment to participate in the European Union (EU) relocation scheme. Such reactions stretched beyond Europe as the debate in the United States turned sharply negative after the Paris attacks, with calls to halt the resettlement of already vetted Syrian refugees and block the additional 10,000 Syrians proposed by the Obama administration for resettlement over the coming year. And in the wake of the shootings in San Bernardino, California by a U.S.-born citizen of Pakistani heritage and his immigrant wife from Pakistan, leading Republican candidate Donald Trump went to the greatest and most controversial extreme yet: advocating a total ban on Muslims entering the United States.

    Some mainstream governing parties in Europe have attempted to balance a more welcoming position toward refugees with a pragmatic security focus, distancing themselves from populist stances. Within days of the Paris attacks, French President François Hollande reconfirmed his country’s intention to welcome 30,000 refugees over the next two years—counter to calls from the far-right Front National to halt new arrivals. Similarly, in the United States, President Barack Obama directly challenged the demands to stop admission of Syrian refugees as contrary to American values. The diversity of policy responses and reactions and the intensity of emotion surrounding the topic have made clear the deepening polarization of Western politics (for more on the impact of this polarization on citizenship laws, see Issue #5: Governments Increasingly Restrict Citizenship).

    Anti-Immigration Rhetoric on the Far Right

    The refugee crisis has consolidated far-right positions in many countries. In Scandinavia, the right’s sharp rhetoric sits in stark juxtaposition to the region’s long history ...

    Published on 12-15-2015 01:21 PM

    SAN BERNARDINO ATTACKS FALLOUT: WILL IT GET HARDER FOR AMERICANS TO MARRY FOREIGN SPOUSES OVERSEAS?

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    The USCIS has promised to review the K-1 visa procedures after the San Bernardino attacks since one of the attackers entered on this visa. The K-1 visa is commonly used by a fiancé of a US citizen spouse to enter the United States, and one of the conditions (with some exception) is that the parties must have met within the past two years prior to filing the application. Once the fiancé enters the United States, he or she must get married to the US citizen within 90 days, and then apply for the green card.

    While it is unfortunate that a foreign terrorist used the K-1 visa, this does not mean that the K-1 visa should be restricted for all fiancés. The K-1 visa provides the only access for a fiancé to enter the US. While one can enter the United States as a visitor to get married, one cannot also enter with the intention of adjusting to permanent residence status in the United States. Curtailing the K-1 visa will also limit the ability of US citizens to seek foreign spouses. Moreover, the ...

    Published on 12-15-2015 11:23 AM

    The Definition of 'Refugee' as Applied to Those Fleeing the War in Syria

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    The question is: Are those people fleeing the war in Syria 'refugees' as defined by American and international law? There has been much political posturing on both sides of this issue but no one seems to have looked at the legal definition. We need to examine this.

    The term refugee is defined under American law in the Immigration and Nationality Act (INA) in 8 USC 101(a)(42):

    (42) The term "refugee" means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country which such person last habitually resided, and who is unable or unwilling to return to and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion….. (Italics added)[i]

    I would conclude that most ...

    Published on 12-14-2015 02:46 PM

    A Shared Challenge: Europe and the United States Confront Significant Flows of Unaccompanied Child Migrants

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    Unaccompanied migrant youth are detained on the Greek island of Lesvos. (Photo: Thomas Andre Syvertsen/International Federation of Red Cross and Red Crescent Societies)

    Tens of thousands of unaccompanied children were among the waves of migrants and asylum seekers fleeing conflict, persecution, and poverty in the Middle East, Africa, and Central Asia who arrived in Europe during 2015. The flow mirrors a similar trend in the United States: 2015 marked the second highest year on record for unaccompanied minor arrivals, following last year’s crisis-level surge. For such children and receiving governments, arrival in Europe and the United States may signal the end of often perilous journeys, but also marks the beginning of a complex set of processing and integration challenges occurring against the backdrop of heated public debate.

    Arrival and Asylum Trends

    Physically exhausted and often needing medical or psychological support, unaccompanied children have flooded into Europe in unprecedented numbers. Sweden expected between 29,000 and 40,000 children traveling alone would arrive by the end of 2015, while Germany estimated it would receive as many as 30,000. Proportionally, both Germany and Sweden were on track to receive more unaccompanied children in 2015 than arrived in the United States during the peak of the 2014 child migration crisis. From 2011 to 2014, the number of unaccompanied children seeking asylum in Europe—largely from Syria, Afghanistan, Eritrea, and Somalia—doubled from about 12,000 to more than 23,000, and the steep upward trend continued in 2015 (see Figure 1). Sweden and Germany have received 50 percent of all such asylum claims, and have struggled to accommodate the increased flows.

    Figure 1. Unaccompanied Minors Seeking Asylum in Germany, Sweden, and the European Union, 2008-14

    Source: Eurostat, “Asylum applicants considered to be unaccompanied minors by citizenship, age and sex, Annual data (rounded),” last updated May 14, 2015, available online.

    Across the Atlantic, following often-hazardous journeys through Central America and Mexico, nearly 30,000 unaccompanied children from El Salvador, Guatemala, and Honduras were apprehended by U.S. Border Patrol in fiscal year (FY) 2015, second only to the 52,000 who arrived at the U.S. border in FY 2014 (see Figure 2). The decrease is largely credited to Mexico’s ramped-up immigration enforcement at its southern border, which has resulted in the apprehension and deportation of tens of thousands of unaccompanied children. Amid criticism that the United States has pressured Mexico to increase its enforcement, some have accused the United States of deferring its protection obligations to this vulnerable group.

    Figure 2. Unaccompanied Central American Minors Apprehended at the U.S.-Mexico Border, FY 2009-15

    Source: Migration Policy Institute (MPI) calculations of data from U.S. Customs and Border Protection (CBP), “Southwest Border Unaccompanied Alien Children,” accessed November 1, 2015, available online.

    The impact of unaccompanied minors is felt most acutely at the local level: Munich was expecting up to 10,000 migrant children by the end of 2015; Berlin an estimated 3,000. Malmö has received more unaccompanied minors than any other Swedish city—up to 100 arrivals per day. In the United States, more than 4,000 unaccompanied children were sent to Houston last year, while Los Angeles County took in 3,000.

    Systems Overwhelmed

    Children traveling alone to Europe or the United States face similar dangers and are particularly at risk of abuse and trafficking. Though the United States and European Union have systems in place to receive such children, the rising flows have overwhelmed accommodations as well as legal and integration processes.

    Under U.S. law, unaccompanied children are released into the least restrictive setting while awaiting immigration court decisions; about 85 percent are reunited with relatives already in the country. Navigating the complex immigration court system has proven one of the biggest ordeals, however, as one year on from the 2014 surge, more than 60 percent of children are still awaiting hearings. Though many have recognizable protection claims, few children have the legal representation critical to articulating their cases—between October 2013 and August 2015, 90 percent of unrepresented children were ordered deported, compared to 18 percent of those with counsel.

    Children traveling alone to Europe are less likely to immediately reunify with parents who have undertaken separate journeys. Although Germany and Sweden provide generous benefits for unaccompanied children, including a guardian, housing, health care, schooling, language classes, counseling, and a small stipend, the overwhelming numbers have severely stretched shelter capacity and made difficult the assurance of quality care. Sweden has resorted to housing children in sports halls and elderly care homes, and with social workers scarce, has delayed guardian appointments.

    Public opinion in some European cities has turned hostile toward child migrants, with critics citing fears of criminality and abuse of benefits. The influx of largely male youth in Hamburg, for example, led to negative media portrayals and heated debate in the city’s mayoral elections. In Malmö, some politicians expressed concern about adults posing as children to abuse Sweden’s generosity, and lamented increased competition over housing (for more on the political rhetoric surrounding the refugee crisis see

    Published on 12-14-2015 02:37 PM

    Completing the preparer and/or translator section of the Form I-9

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    The I-9 was supposed to be an easy, straightforward kind of document – a simple piece of paperwork to record that a company has verified its new hire’s eligibility to work in the United States. To the uninitiated, the whole process really shouldn’t be all that bad. Yet those of us in the trenches know that completing an I-9 properly involves interpreting some often-conflicting instructions, navigating through numerous “gray areas” of the law, and ultimately hoping for the best.

    While this may sound like fun (at least to a lawyer), most of us simply want to know the “correct” way of completing the form so that we can go about our merry ways.

    Which brings us to today’s blog on the “Preparer and/or Translator Certification,” that often-ignored yet very important portion of the Form I-9 which resides directly beneath section 1. For many years, HR and hiring managers have wondered (often aloud in distressed tones) when this section should be completed for their new hire employees. Here are just a few questions which have been asked by these poor souls:

    • Do I (as the HR or hiring manager) need to complete this section if I just answered one or two questions regarding the form?
    • Does the new hire employee always need to sign section 1 if the preparer/translator Is completed?
    • What if multiple people provided assistance to the new hire employee? Should we have ...
    Published on 12-11-2015 03:14 PM

    H-1B Cap Cases Pre-Filing Check-List

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    As we are approaching yet another H-1B Cap Filing season (many firms are already filing their LCAs), Faveo Paralegals thought it might be helpful to have an H-1B Cap Cases pre-filing check-list (PDF attached) to help ensure that your cases are properly filed and that they make it into, what is very likely to again be an H-1B lottery system.

    We hope that you will find the attached checklist helpful.

    ...
    Published on 12-11-2015 03:05 PM

    CONFLICTS-OF-INTEREST and DOUBLE-DEALING versus ETHICS of IMMIGRATION LAWYERS and OTHER SERVICE PROVIDERS in the EB-5 IMMIGRANT INVESTOR PROCESS

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    ...
    Published on 12-10-2015 04:48 PM

    Shine Wears Off Investor Visa Programs as Questions about Economic Benefits and Fraud Lead to Reforms

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    Reports of fraud and questions about economic benefits prompted some governments to reform their immigrant investor visa programs in 2015. (Photo: J Aaron Farr)

    Immigrant investor programs, commonly known as investor visas or golden visas, have faced increasing scrutiny this year as several Organization for Economic Cooperation and Development (OECD) countries experimented with their format to try and maximize economic benefits. A dynamic policy area, investor visa programs have proliferated from island nations of the Caribbean to small European outposts and traditional immigrant destinations such as the United States and Canada. They have proved particularly popular among nationals of China, Russia, and other countries in East Asia and the Middle East. These programs offer various forms of residency rights to foreign nationals in exchange for a significant investment in private-sector assets, such as real estate or business, or directly to the government, through government bond purchases, or giving money to a national development fund. While some countries offer outright permanent residency and even citizenship to immigrant investors, most offer temporary residency rights with an eventual pathway to permanent status.

    In the United States, policymakers are considering significant reforms to the EB-5 investor visa program, ahead of a December 11 deadline that would see a key piece of the program, the regional centers, expire. The program came under intense examination in 2015 following reports of fraud and insider dealings, as well as questions about its economic benefits. The EB-5 program provides legal permanent residence (green cards) to immigrants who invest at least US $1 million (or $500,000 in high-unemployment or rural areas) in commercial enterprises that create or preserve at least ten jobs. But critics charge the economic benefits to poorer areas are, in practice, almost negligible: high-unemployment areas are drawn so broadly that they also include wealthy neighborhoods (such as Manhattan), where many of these commercial enterprises and associated jobs are based. Several legislators have put forward bills to reform the EB-5 program ahead of the December sunset. Beyond seeking ways to ensure investments truly target high-unemployment areas, lawmakers are also under pressure to introduce greater oversight of the regional centers and transparency on the source of funds, following several high-profile cases in which investors were defrauded.

    Canada has also experimented with the format of its long-running immigrant investor program. In January, the government opened the Immigrant Investor Venture Capital Pilot Program, narrowing the focus ...


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