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    Published on 03-03-2016 12:28 PM

    Pope Francis Rightly Shines a Light on Central American Refugees Fleeing Crisis


    February 19, 2016

    On Wednesday, Pope Francis delivered a historic “cross-border” mass that drew 200,000 observers on the Mexican side of the Rio Grande and 30,000 in El Paso, Texas. The pontiff prayed for the more than 6,000 people who have lost their lives desperately trying to cross the border in recent years. Pope Francis preached on a timely issue the plight of Central Americans fleeing violence as they travel north in search of safety and a new life.

    Pope Francis said, speaking just one hundred yards from the border, that forced migration from violence, persecution, and poverty is a “human tragedy” and a “global phenomenon.” To alleviate suffering from this tragedy, governments and aid organizations resettle refugees and provide assistance.

    But this is not enough. Admissions caps remain very low. And a simple reform to change that  allowing private sector funding to increase admissions remains outside of lawmakers priorities list. This prevents compassionate individuals and organizations like the weekly churchgoer, faith groups and congregations, and charities from further saving refugee lives. It’s a deeply flawed policy that needs to be reversed.

    When Pope Francis spoke at the U.S. Congress in 2015, he said that the “world is facing a refugee crisis of a magnitude not seen since the Second World War.”  He is right. The devastating reality is that there are more than 19.5 million refugees around the world. While Syria has received significant attention, a crushing disaster is also happening closer to home.

    Honduras, Guatemala, and El Salvador are home to some of the highest levels of violence in the world. The Council on Foreign Relations reports that forced gang recruitment, violence, and civil war in these countries has pushed thousands out of their homes.

    These “grave injustices,” as the Pope said, drive many north in search of a better life. Many come to America but lack legal status and are not awarded asylum, opening them up to deportation. And since 2014, 83 deported refugees from ...

    Published on 03-03-2016 11:11 AM

    EB-5 Regional Center Certification Requirements


    Kurt: Certifications in the Integrity Act of 2015 require regional centers to have policies and procedures in place to monitor New Commercial Entities (NCE) and the Job-Creating Enterprises (JCE) to ensure they comply with all immigration laws, all federal securities laws, all applicable state securities laws and to describe their due diligence procedures. Greg, could you talk a little about the implications of this bill.

    Greg: What the bill does, without getting too far into the weeds, is address a “new view” of how to regulate the EB5 industry. That is, without relying on the New Commercial Enterprise (NCE) as the only entity responsible for compliance, due diligence and meeting the terms of the EB5 program.

    For that matter, the securities laws are also not going to rely on the JCE or the developer because these entities are not, strictly speaking, "the issuers” of the securities being offered to foreign investors. The concept is, from a USCIS standpoint, that we've given a license to the regional center. So USCIS is saying to the regional centers “We need you to be the sheriff. We're going to put these responsibilities on you.

    We're going to require you to achieve compliance, to do due diligence, to certify compliance and actually to tell us when people are not complying.”

    There's an affirmative obligation to do these things and USCIS is going to look to the regional centers for accountability. This proposed legislation would significantly extend the liabilities associated with these deals specifically and in a clear statutory manner, to the regional centers.

    Published on 03-03-2016 10:26 AM

    High Skilled Worker Rule – Is There Scope For Porting On A Labor Certification?


    Our firm provided selected comments to the  proposed DHS rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers.” These comments are based primarily on three recent blogs:

    Including Early Adjustment Filing in Proposed DHS Rule Impacting High-Skilled Workers Would Give Big Boost to Delayed Green Card Applicants

    Preserving H-1B Extension For Spouse And Freezing Age Of Child In Rule Impacting High-Skilled Nonimmigrant Workers

    The Opportunity to Be Heard: Why New DHS Proposed Regulations Regarding I-140 Petitions Should Incorporate and Expand Upon the Rule of Mantena v. Johnson.

    Our comments focused on areas that others may not have commented on, and may require the DHS and even the DOL to propose supplemental rules. However, if our comments are considered, they will greatly improve the proposed rule.

    The centerpiece of the rule is to grant work authorization to beneficiaries of approved I-140 petitions who are caught in the crushing employment-based backlogs. The requirement of demonstrating compelling circumstances has disappointed beneficiaries, ...

    Published on 03-02-2016 12:29 PM

    Possible Supreme Court Nominee Argued (and Won) Removal Case in the Supreme Court



    Justice Scalia's untimely death has led to much speculation who might be nominated to fill his seat on the Supreme Court.  One of the names mentiond as a possibility is Sri Srinivasan. Srinivasan was born in India and currently is a judge on the U.S. Court of Appeals for the District of Columbia Circuit. In May 2013, the U.S. Senate confirmed Srinivasan to the court of appeals by a vote of 97–0. Srinivasan previously served as Principal Deputy Solicitor General of the United States and argued 25 cases before the U.S. Supreme Court. After law school, Srinivasan served as a law clerk for U.S. Court of Appeals for the Fourth Circuit Judge J. Harvie Wilkinson III and then U.S. Supreme Court Associate Justice Sandra Day O'Connor.

    Srinivasan did two stints at the law firm of O'Melveny & Myers.  While at the firm, Srinivasan was counsel of record in the case of Carachuri-Rosendo v. Holder, in which a unanimous Supreme Court held that a minor drug offense was not an "aggravated felony" under the immigration laws and did not trigger mandatory removal of a lawful permanent resident from the country.  Srinivasan convinced the Court to reverse a lower court ruling to the contrary.  

    Published on 03-02-2016 11:04 AM

    A Visit to Berks Family Detention Center Makes Clear Why They Lost their License


    Advocates, community members, and attorneys gathered outside the Berks County Family Residential Center in Leesport, Pennsylvania on Monday to protest the continued operation of the center. The center was open for business as usual, with approximately 81 parents and children currently detained, despite the fact that the center’s license to operate as a childcare facility expired Sunday. A recent group tour I took of the detention center confirmed for me that the Pennsylvania Department of Human Services was right–it is no place to hold children.

    As my group began our tightly controlled tour of the center, we walked through freshly waxed corridors—which the mothers told us had been cleaned just the day before our visit—a band of toddlers followed us from room to room. The children, ranging in age from one to four-years-old, wore signs written in colored pens and taped on their fronts and backs that translated into English as “Freedom! Freedom!” and “Six months of detention. No more!” and “We are not criminals.”

    Later in the tour, hanging in the doorways of the detention center’s classrooms, we ...

    Published on 03-02-2016 10:29 AM

    Reflections on the Judiciary Committee Hearings on EB-5 Reform Part I: Possible TEA Reform by USCIS


    Published on 03-01-2016 12:23 PM

    Undocumented Immigrants Pay Billions in State and Local Taxes


    Undocumented immigrants contribute to the U.S. economy in many ways. They fill essential jobs, they sustain U.S. businesses through their purchase of goods and services, and—contrary to popular misconceptions—they pay taxes to federal, state, and local governments. Their contributions would be even greater if they had a chance to earn legal status and didn’t have the danger of deportation constantly hanging over their heads. With legal status, they’d be able to change jobs more easily and—as they found better jobs and their wages increased—their economic clout as consumers and taxpayers would rise as well. This is a winning scenario for both the immigrants themselves and the native-born population.

    In a recent report titled Undocumented Immigrants’ State & Local Tax Contributions, the Institute on Taxation and Economic Policy (ITEP) explores in depth not only the present tax contributions of undocumented immigrants, but how much those contributions would increase under two different scenarios. One ...

    Published on 03-01-2016 09:53 AM

    A National Interest Solution to the EB-5 Legislation Impasse


    A long term extension of the regional center EB-5 program failed to pass Congress in 2015 mostly because of intractable differences between rural and urban interests. Various proposals were floated seeking to incentivize rural investments and discourage urban investments by providing a reduced investment amount based on various artificial configurations of census tracts. In the end, no agreement could be reached between the divergent interests.

    What if there were a way to bridge this divide by incentivizing investments in rural areas and possibly also urban high poverty areas while at the same time providing some benefit to investors in urban areas? And what if it could be done in a way that eliminates any need for gerrymandering, any need for creating a new USCIS bureaucracy with TEA adjudication delays and any need for legislating ...

    Published on 02-29-2016 12:21 PM

    A Summary of Justice Scalia’s Major Immigration Opinions


    In light of Supreme Court Justice Antonin Scalia’s untimely passing earlier this month, ImmigrationProf provides this overview of his immigration jurisprudence. His immigration opinions demonstrate that, although Justice Scalia was never one to hide his political views, his firmly held legal principles about statutory interpretation and deference to agency action, deeply influenced his immigration opinions.

    Notable Majority Opinions

    Justice Scalia wrote his first immigration decision for the Supreme Court in 1987 in Kungys v. U.S. The case involved a naturalized citizen who the Department of Justice accused of executing thousands of Jewish Lithuanians in 1941, before he came to the United States. In an action brought to revoke Kungys’s citizenship, Justice Scalia for the Court determined the materiality standard to apply to the “concealment or misrepresentation” clause and the false testimony provision of the “illegally procured” clause of 8 U.S.C. § 1451, which authorizes the revocation of naturalization. Justice Scalia held, in an opinion focusing on the proper interpretation of the statute, that the appropriate standard was whether the concealments or misrepresentations (in this instance, Kungys’ place and date of birth) had a “natural tendency to influence the [government's] decision.” Justice Scalia concluded that Kungys’ misrepresentations in his naturalization petition were not “material.”   The case was remanded to the court of appeals, with Justice Scalia emphasizing the “unusually high burden of proof in denaturalization cases.”

    In INS v. Elias-Zacarias (1992), Justice Scalia for the Court examined whether a Guatemalan asylum-seeker could obtain asylum based on the claim that a guerrilla organization attempted to coerce him into performing military service. Relying on the “ordinary meaning” of the statute, he found that Elias-Zacarias had failed to express a political opinion hostile to the persecutor in refusing to join the guerilla movement and thus could not establish “persecution on account of political opinion.” Consequently, Justice Scalia determined that Elias-Zacarias failed to establish a well-founded fear of persecution with sufficient “clarity necessary to permit reversal” of the Board of Immigration Appeals' finding to the contrary. The practical effect of basing asylum on the asylum-seeker’s, and not the persecutor’s, political opinion ...

    Published on 02-29-2016 10:30 AM

    EB-5 Regional Center Compliance Practices for 2016


    This month, the House and Senate Judiciary Committees held hearings on the future of the EB-5 Regional Center program. At these hearings, members of Congress voiced concerns and suggested reforms reminiscent of those discussed throughout 2015, when Congress introduced, and the EB-5 community feverishly analyzed, a number of legislative proposals for the extension of the EB-5 program. These proposals were noted for their proposed changes to the rules surrounding TEAs and increase in the minimum investment amount, but were just as notable for the heightened compliance or “integrity measures” included to address perceived security and fraud concerns within the program.
    S.1501 – American Job Creation and Investment Promotion Reform Act of 2015, the draft legislation based on S. 1501, S.2415 – EB-5 Integrity Act of 2015, and H.R. 4530 – EB-5 Integrity Act of 2016, referred to collectively as the “draft legislation”, contain mostly the same integrity and compliance provisions. As such, the draft legislation provides a window to the changes in the EB-5 program we will very likely have to adapt to and accept, particularly in reference to new or enhanced compliance ...
    Published on 02-29-2016 09:58 AM

    Has President Barack Obama sabotaged an attempt by Congress to keep terrorists from using the Visa Waiver Program to enter the United States?


    Published on 02-26-2016 02:24 PM

    Canadian Citizenship Laws Set to Change


    Under Canada’s former Conservative government, various amendments to Canada’s Citizenship Act were enacted, with rather restrictive features. Among other matters, the time needed to get citizenship after becoming a permanent resident was increased, time spent in Canada before securing permanent residence was no longer counted, and perhaps most notably, the government could revoke citizenship for certain people convicted of terrorism and related offences.

    Canada’s new Liberal government, elected in November 2015, is set to reverse or change many of the amendments enacted by the prior government, in accordance with its election promises.

    Though not enacted yet, the government has announced that the following changes will soon be forthcoming with regard to Canadian citizenship law.


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