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  • Article: CSPA, EB-5 RETROGRESSION, SILVA-TREVINO CRIMINAL EVIDENCE RULE VACATED, AND H-1B AMENDMENT REQUIRED FOR OFF-SITE WORK. By Alan Lee, Esq.

    CSPA, EB-5 RETROGRESSION, SILVA-TREVINO CRIMINAL EVIDENCE RULE VACATED, AND H-1B AMENDMENT REQUIRED FOR OFF-SITE WORK

    by


    1. The Visa Office of the State Department at the IIUSA 2015 EB-5 Regional Economic Advocacy Conference in April 2015 was helpful in soothing some of the anxiety over the threat of China EB-5 retrogression and the effect that would have on dependent children who might be in danger of aging out. (The visa bulletin for May 2015 shows retrogression of the category for natives of China to 5/1/13). It spoke of the current interpretation of the CSPA (Child Status Protection Act) on the phrase “seek to acquire lawful permanent residence status within one year of visa availability” – that once visa availability is reached, the applicant or dependent applicant has one year to take affirmative steps to immigrate. The Visa Office pointed to U.S.C.I.S. guidance from June 2014 that this requirement is satisfied by the applicant filing form I-485 adjustment of status to permanent residence, DS-260 or DS-230 applications for immigrant visas, form I-824 application for action on an approved application or petition, OR by paying the fee bill from the Department of State. EB-5 overseas applicants were concerned that following approval of I-526 immigrant petitions by alien entrepreneurs, it would take much time for the petitions to reach the next stage of processing by the National Visa Center (NVC) and that DS-260 (the current immigrant visa application form) would not be sent out once the category retrogressed and dependent children would thus not be able to take the next step to preserve their right to immigrate. The Visa Office explained that where a cutoff date is established, the NVC will send a fee bill to those whose petitions were approved prior to the cutoff date in order to allow the applicants to pay the immigrant visa application fees within the 12 month period of time. Besides giving a general sense of relief, this news may decrease the pressure on some EB-5 applicants to now file a second EB-5 case for their child who they believe might not immigrate due to the retrogression. We are given to understand from Ron Klasko’s article, “China EB-5 Market: 2015 (Part 2) – What’s New And Hot In The China EB 5 Market” that second filings are now being considered in that “some investors, at the urging of agents, are filing multiple EB-5 petitions based on multiple investments where their children would likely age out because of the quota retrogression.”


    2. Looking back on the memo cited to above, U.S.C.I.S.’s policy memorandum of June 6, 2014, “Guidance on Evaluating Claims of ‘Extraordinary Circumstances’ For Late Filings When The Applicant Must Have Sought to Acquire Lawful Permanent Residence Within One Year Of Visa Availability Pursuant To The Child Status Protection Act” also set forth the circumstances in compliance with Matter of O. Vasquez, 25 I & N Dec. 817 (BIA 2012), under which it would excuse an alien who failed to timely satisfy the “sought to acquire” requirement. It said that to establish extraordinary circumstances, the applicant must demonstrate that: (1) the circumstances were not created by him or her through his or her own action or inaction; (2) those circumstances were directly related to the applicant’s failure to file the application within the one year period; and (3) the delay was reasonable under the circumstances. Examples included ineffective assistance of counsel where the requirement is met by the applicant setting forth an affidavit of the agreement with counsel on the actions to be taken and what representations counsel did or did not make to the applicant in this regard; communicating with counsel to inform him or her of the allegations and giving him or her an opportunity to respond or the applicant’s showing a good faith effort to so inform; and filing a complaint with the appropriate disciplinary authorities with respect to counsel’s ethical or legal responsibilities and if not, why not. U.S.C.I.S. is allowing cases previously denied on that issue to be reopened on an untimely basis. As U.S.C.I.S. in the past was not receptive to this type of case, there are likely many applicants who could qualify. Time of course has passed by possibly diluting the possibilities of gathering evidence or the wish or need to immigrate using this method. However, those who can prove their case are encouraged to apply now.


    3. Attorney General Eric Holder’s taking back former Attorney General Michael Mukasey’s opinion in Matter of Silva-Trevino, 24 I & Dec. 687 (AG 2008) on April 10, 2015, in Matter of Silva-Trevino, 26 I & N Dec. 550 (AG 2015), is welcome news as that case flew in the face of all established court precedents that the question of whether a conviction existed for immigration purposes depended upon an examination of first – whether the state statute under which the alien was convicted or pleaded guilty contained all of the elements of the federal crime statute required for deportation and if overbroad whether the state would prosecute cases not within the federal statute (the categorical approach), and second - if the statute was divisible with different parts punishing different crimes and one fitting the federal statute, whether it was clear from the record of conviction, e.g. indictment, jury instructions, plea colloquy, judgment of conviction, that the alien had committed all of the elements of the federal offense (the modified categorical approach). Silva-Trevino had gone against this line of reasoning in stating that matters extraneous to the record of conviction could be used to prove that the alien had committed all of the elements of the federal crime necessary for deportation where the categorical and modified categorical approaches failed to do so. In such case, unreliable evidence such as arrest reports or presentence investigation reports could be used. The Supreme Court in a later case, Moncrieffe v. Holder, 133 Supreme Court 1678 (2013) distinctly rejected Silva-Trevino’s reasoning in stating that the phrase “convicted of” required the categorical approach, and that adjudicators could not engage in a circumstance specific analysis of a particular drug conviction to see if the quantity of drugs involved made it an aggravated felony.


    4. The AAO (Administrative Appeals Office) decided in Matter of Simeio Solutions, LLC, 26 I & N Dec. 542 (AAO 2015) that where an H-1B worker moved to work at another location outside the LCA (labor condition application) geographically authorized area of work, that constituted a material change in the terms and conditions of employment and therefore an H-1B amendment was required. An approved LCA from the Department of Labor (DOL) is a necessary part of an H-1B petition that must be included in the H-1B filing. It defines the job title and level, prevailing wage to be paid, that proper notice has been given of the intended H-1B filing, and the geographic area in which the work is to be done. That area is entered on the H-1B petition form. The case is noteworthy because there is now a dichotomy between what the 2 agencies, Department of Labor and U.S.C.I.S., will accept. The petitioning organization attempted to cure the defect by filing for and obtaining a new LCA covering the 2 current geographical locations at which the employee would be working. DOL regulations at 20 CFR §655.735(f)(1) give the option that where an H-1B nonimmigrant’s short-term placement or assignment has reached the workday limit, the employer can file an LCA and after obtaining certification, place any H-1B nonimmigrant in the occupational classification at the worksite in the area pursuant to the LCA. However, U.S.C.I.S. rejected that action in concluding that changes in places of employment not listed on the I-129 H-1B petition constitute a material change to the terms and conditions of employment as specified in the original petition and that the petitioner was required to file an amended form I-129 corresponding to the new LCA that reflected those changes. Now H-1B employers must seriously consider filing H-1B amendments in most situations where the workers will be in locations other than described on the original H-1B petition, especially in light of increased FDNS (Fraud Detection and National Security) site inspections and the problems generated by not finding H-1B employees on the job site. Finally the AAO in a footnote seemed to indicate that it would continue and even be more restrictive in this area in saying that it might in the future be ruling on cases which would not affect the alien’s eligibility for H-1B status but nevertheless would require the filing of an amended or new petition.


      Reprinted with permission.


      About The Author

      Alan Lee, Esq. Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasba and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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