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    Published on 12-01-2015 02:55 PM



    Published on 11-30-2015 11:42 AM

    Learning from Our Past: The Refugee Experience in the United States


    Published on 11-30-2015 11:29 AM

    DHS Proposes New "Smart" Form I-9 and Seeks Public Comment


    Today, the U.S. Citizenship and Immigration Services (USCIS) announced they are seeking public comment on a newly revised “smart” version of the Form I-9 which is designed to reduce technical errors and address frequent points of confusion that arise for both employees and employers along the way.  For all of those I-9 enthusiasts out there, this would be the 13th version of the employment eligibility verification form, which originally debuted (to the chagrin of employers everywhere) as a result of the Immigration Reform and Control Act of 1986.

    While a government form update may seem like a minor affair, the I-9 is no ordinary form. According to the latest labor statistics, employers across the US are hiring roughly 5 million new employees per month (each of whom will require an I-9 form). Moreover, certain industries (such as retail and hospitality) are seeing dramatic spikes in hiring as we enter the holiday season – leading to even greater numbers of I-9s which must be completed.

    So will the I-9 form ...

    Published on 11-27-2015 01:23 PM



    Published on 11-27-2015 12:57 PM

    The Ins and Outs of Pooled Direct EB-5 Investments


    The more well-known avenues to secure a green card via an EB-5 investment include an individual investor either opening his/her own business or investing in a Regional Center project. Recently, another avenue called a “pooled” Direct Investment project has become popular in industries that create a significant number of direct jobs, such as multi-unit restaurants and supermarkets.

    The EB-5 program has three general requirements. The foreign applicant must (1) make a capital investment in the amount of $500,000 or $1,000,000[1]; (2) in a new commercial enterprise (NCE); (3) that creates at least 10 new, permanent, full-time jobs.


    The main difference between a Regional Center project and a pooled Direct Investment project is the job creation requirement. USCIS permits a Regional Center project to count both direct and indirect jobs, while a Direct Investment requires that each individual’s investment in the NCE result in the creation of at least 10 direct W-2 jobs (or preserved jobs in the case of a troubled business) by the NCE.[2]

    Published on 11-27-2015 11:55 AM

    Deportation Didn't End Illegal Migration in the '50s – Legal Immigration Did


    In last night’s Republican presidential debate, Donald Trump argued that President Eisenhower's immigration enforcement plan, called "Operation Wetback" (Trump didn’t use its horrendous name), drastically reduced unlawful immigration in the early 1950s.

    He said:

    Let me just tell you that Dwight Eisenhower. Good president. Great president. People liked him. I liked him. I Like Ike, right? The expression, ‘I like Ike.’ Moved 1.5 million illegal immigrants out of this country.

    Moved them just beyond the border, they came back. Moved them again beyond the border, they came back. Didn’t like it. Moved ‘em waaaay south, they never came back. Dwight Eisenhower. You don’t get nicer, you don’t get friendlier. They moved 1.5 million people out. We have no choice. We. Have. No. Choice.

    The evidence and statements by border patrol and INS officials in the 1950s and afterward disagree with Mr. Trump’s analysis.

    Increased immigration enforcement did not reduced unauthorized immigration in the 1950s. Legal migration did.


    In 1942, the United States government created the Bracero guest worker visa program to allow Mexican farm workers to temporarily work for American farmers during World War II. The government entered into a bilateral labor agreement with Mexico that regulated the migrant’s wages, duration of employment, age of workers, health care, and transportation from Mexico to US farms. 

    Transportation to the farm, housing, and meals were sold by the employers for a low price. Ten percent of the migrant’s wages were deducted ...

    Published on 11-25-2015 02:36 PM

    Form I-864, Affidavit of Support: What if the Petitioner Dies?


    Unfortunately, there are occasions when a petitioner who has filed a Form I-130, Petition for Alien Relative, dies before their relatives immigrate. It may still be possible to complete the immigration process. This article discusses how death alters the normal requirement that the petitioner file a Form I-864, Affidavit of Support.

    Widow(er) of a U.S. Citizen

    No I-864 is required to immigrate as the widow(er) of a U.S. citizen, although a Form I-864W, Affidavit of Support Exemption, should be filed.[1]

    To immigrate as a widow(er), a Form I-360, Petitioner for Widow(er),[2] must be filed within two years of the U.S. citizen spouse’s death, and must prove:[3]

    1. the couple was married (and not legally separated) at the time of the spouse’s death;
    2. the spouse was a U.S. citizen at the time of death (not necessarily during the whole period of the marriage);
    3. the widow(er) has not remarried before acquiring permanent resident status.

    The child of a qualifying widow(er) is also entitled to status as a derivative if accompanying or following-to-join the principal beneficiary.[4] No I-864 is required.[5]

    Surviving Relative Consideration

    In addition to widow(er)s discussed above, other beneficiaries of pending or approved I-130s who (a) resided in the United States at the time of the death of the petitioner and (b) continue to reside in the United States, may immigrate notwithstanding the petitioner’s death.[6]

    A “substitute sponsor” must file an I-864. The substitute sponsor must be a close relative of the beneficiary (e.g., spouse, parent, mother-in-law, father-in-law, sibling, child at least 18 years of age, son, daughter, daughter-in-law, son-in-law, sister-in-law, brother-in-law, grandparent, or grandchild) or a legal guardian.[7]

    Like any sponsor, the “substitute sponsor” must be[8]:

    1. a U.S. citizen, national, or permanent resident;
    2. age 18 or older; and
    3. domiciled in the U.S., including a U.S. territory or possession. (This can be satisfied by proving that the individual “will ...
    Published on 11-25-2015 02:27 PM

    The U.S. Government's Arguments in the Petition for Certiorari in Texas v. United States



    Donald Verrilli, Solicitor General of the United States

    As reported last week on ImmigrationProf, the United States has petitioned for certiorari in Texas v. United States. Solicitor General Donald Verrilli is counsel of record on the petition.  The petition is here.   Lyle Denniston's report on the petition on SCOTUSBlog is here.

    The "Questions Presented" by the United States are as follows:

    The Department of Homeland Security has long engaged in “a regular practice * * * known as ‘de-ferred action,’ ” in which the Secretary “exercis[es] [his] discretion” to forbear, “for humanitarian reasons or simply for [his] own convenience,” from removing particular aliens from the United States. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-484 (1999). On November 20, 2014, the Secretary issued a memorandum (Guidance) directing his subordinates to establish a process for considering deferred action for certain ...

    Published on 11-25-2015 02:18 PM

    Senators Grassley and Durbin Introduce the H-1B and L-1 Visa Reform Act of 2015


    On November 10, 2015, United States Senators Chuck Grassley (R – IA) and Dick Durbin (D – IL) introduced S.2266, the H-1B and L-1 Visa Reform Act of 2015.  Most, but not all, of the proposed reforms within the bill would significantly increase the costs, burdens and penalties for employing H-1B and L-1 workers in the U.S.

    In all likelihood, this bill (full text available here) will not become law.  Nonetheless, much of the proposed language within the bill closely resembles, and in some cases appears to be structured in anticipation of, other legislative attempts to further restrict the H-1B and L-1 programs.  Below are some of the most interesting and controversial proposals contained within Senate bill S.2266 (spoiler alert: If you thought some of the proposed modifications to the H-1B and L-1 programs contained in Senate bill S.744 (BSEOIMA) were onerous, brace yourself!):

    • Mandatory pre-filing H-1B recruitment: H-1B employers would be required to conduct mandatory 30 day recruitment prior to submitting an LCA to the DOL. If any equally or better qualified U.S. worker applies for the job, the H-1B employer must offer the job to the U.S. worker, and the U.S. worker must reject the offer, in order to proceed and submit the LCA.
    • Maximum period of time permitted in H-1B status reduced from 6 years to 3 years. If the H-1B employee is the beneficiary of an approved EB-12, EB-13, EB-2 or EB-3 I-140 petition, then an additional 3 year extension – up to maximum of 6 years – would be possible (AC21 extensions notwithstanding).
    • Third-party placements for H-1B and L-1 workers significantly restricted:
      • No third-party placements for H-1B employees, unless the H-1B employer first requests and receives a waiver from the DOL; and
      • Third-party placements of L-1B employees could not exceed 1 cumulative year, unless the L-1 employer first requests and receives a waiver from the DOL.
    • Non-displacement of U.S. workers:
      • H-1B employers would be required to attest (as part of the LCA process) and maintain records that they have not displaced and will not displace U.S. workers 180 days before, or 180 days after, the “placement” of the intending H-1B worker with the employer.
      • L-1 employers ...
    Published on 11-24-2015 04:03 PM

    Republicans raise legitimate concerns about Syrian refugees, but the bill they have passed to address those concerns would just impose additional layers of bureaucracy on the refugee background investigation process



    The Republicans Identify Security Weaknesses

    The Chairman of the Homeland Security Committee, Representative Michael Thomas McCaul, Sr., (TX-10), is one of the key figures among the Republicans who are expressing concern about the possibility that terrorists from the Islamic State of Iraq and Syria (ISIS or ISIL)[1] will use our refugee program to come to the United States. His Committee began an investigation of this possibility in December 2014. The Committee has concluded, among other things, that the Administration’s proposal to admit more Syrian refugees would have a limited impact on alleviating the overall crisis but could have serious ramifications for U.S. homeland security. It released a report this month, entitled, “The Syrian Refugee Flows,”[2] which includes the following findings:

    Islamist terrorists are determined to infiltrate refugee flows to enter the West and appear to have done so already in Europe. At least one of the terrorists responsible for the Paris attacks is suspected of having entered Europe through refugee flows. Syrian refugees have reported seeing suspected ISIS fighters in their midst, and an international terrorism research organization published a bulletin in September warning that there were a number of reported cases of ISIS infiltration of refugee routes.

    The United States lacks the information needed to confidently screen refugees from the Syria conflict zone to identify possible terrorism connections. Top U.S. counterterrorism officials have been warning for months that the intelligence on the ground in Syria is insufficient. It is difficult both to confirm that Syrian asylum-seekers are who they claim to be and to determine whether they have ties to terrorist groups.

    USCIS official, Matthew Emrich, has said that the government does not have access to any database in Syria that can be used to check the backgrounds of incoming refugees against criminal and terrorist records. Former FBI assistant director Tom Fuentes said, “Our human sources [in Syria] are minimal, and we don’t have a government we can partner with, and that’s a key thing.” According to National Counterterrorism Center Director Nicholas Rasmussen, “the intelligence picture we’ve had of this [Syrian] conflict zone isn’t what we’d like it to be... you can only review [data] against what you have.” FBI Director James Comey testified to the Homeland Security Committee in October that, “we can only query against that [data] which we have collected. So if someone has ...

    Published on 11-24-2015 03:42 PM



    Published on 11-24-2015 03:22 PM

    An Overview of U.S. Refugee Law and Policy


    The United States passed its first official refugee legislation to address the plight of displaced Europeans following World War II.  Most refugees are displaced from their country of origin to a neighboring country, and then resettled to a third country through international organizations. The United States resettles more refugees than any other country, refugees who go on to contribute to our communities and our economy.  

    What is a refugee?

    A refugee, as defined by Section 101(a)(42) of the Immigration and Nationality Act (INA), is a person who is unable or unwilling to return to his or her home country because of a “well-founded fear of persecution” due to race, membership in a particular social group, political opinion, religion, or national origin. This definition is based on the United Nations 1951 Convention and 1967 Protocols relating to the Status of Refugees, which the United States became a party to in 1968. Following the Vietnam War and the country’s experience resettling Indochinese refugees, Congress passed the Refugee Act of 1980, which incorporated the Convention’s definition into U.S. law and provides the legal basis for today’s U.S. Refugee Admissions Program (USRAP).

    A person who meets the definition of a refugee, but who applies for this status from within the United States—either when they are seeking admission at a port of entry or after they have already entered the country in a different status or without status—is an asylee.  The United States processes asylees differently than those who enter the country in refugee status; that process is not addressed in this fact sheet. 

    How many refugees are there in the world?

    • According to UNHCR, at the end of the 2014 there were an estimated 14.4 million refugees (a 19 percent growth from the previous year). According to 2015 statistics, it is estimated that there are over 4.2 million Syrian refugees.
    • The top origin countries for refugees in 2013 were Afghanistan (2.6 million), Syria (2.5 million) Somalia (1.1 million), Sudan (650,000), the Democratic Republic of the Congo (499,600), and Myanmar (480,000).

    How many ...

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