H-1B's to Move Very Fast and Other Immigration Issues Affecting EB-5, CIR, and I-601A, etc.

Alan Lee, Esq.

  1. Nothing is dissuading us that H-1B visa numbers will not be used up within the month of April - the stars are aligning through an uptick in economy and early closure of the H-1B cap quota last year on June 11, 2012. Although there is talk of the cap expanding legislatively to 115,000 from its present 65,000, such as speculative at this point and if enacted would likely take effect around the end of this calendar year or the beginning of the next. The best advice for readers is to begin the H-1B process as soon as possible.
  2. Kindly remember that individuals who are not seeking a 7th year extension and are going back overseas for one year to qualify for another 6 years must wait for an entire year after departing the U. S. to file a new H-1B. They are not allowed to file in April just because the one year will expire sometime between April - September. A person in this situation would best be advised to leave now so that a labor condition application (LCA ) could be prepared and the case filed by April 1 in the next year if the concern is that the cap quota for next year will close fast.
  3. Per the visa bulletin for March, the Department of State will not backlog the China EB-5 quota for immigrant investors as there now appears to be enough numbers for the rest of the fiscal year. But perhaps the reason for the slowdown of Chinese investors is the uncertainty of what is considered an acceptable investment by U.S.C.I.S. In the EB-5 litigation, Carlsson, et al. v. U. S. Citizenship and Immigration Services, et al (in which 18 investors sued the agency for improper denial of residence after they had spent $11.5 million in a project to renovate unused office and warehouse space which would allegedly create a minimum of 278 new jobs for U. S. workers), the case resulted in an undisclosed settlement after the U. S. District Court for the Central District of California had issued a minutes order on 10/3/12 denying plaintiffs' requested temporary restraining order and injunction saying that, on the question of whether the agency was guilty of the charge of "arbitrary and capricious agency action and exceeding statutory authority", it had not acted as charged. Previously, U.S.C.I.S. found insufficient evidence that the capital had been placed at risk; insufficient comprehensive business plan; and lack of analysis based on a reasonable methodology for determining job creation. The econometrics methodology to determine how many jobs would be created was based on tenant occupancy. U.S.C.I.S. concluded that jobs generated by tenants could not be counted as "it is not appropriate to take credit for the employment impacts created by the unrelated business ventures of future tenants." Since the confidential settlement , U.S.C.I.S. issued a guidance memorandum on December 20, 2012, "Operational Guidance for EB 5 Cases Involving Tenant - Occupancy" laying out less than clear parameters of how direct and indirect tenant jobs could be counted and bringing into question how shopping centers and office building projects will continue to qualify in practice.
  4. Per the Transactional Records Access Clearinghouse (TRAC), new NTA's by Immigration and Customs Enforcement (ICE) are down 23.7% through the first 4 months of FY 2013 as compared to FY 2012. In January, 1392 new prosecutorial discretion (PD) cases were closed before the immigration courts, a significant increase from December and a figure in line with the number of PD closures in October and November. Overall PD cumulative closures through the end of January numbered 14,799. On the other end of the spectrum, however, the Obama Administration keeps deporting undocumented immigrants at record pace. As observed by The New York Times in the February 23, 2013, article "Seeing Citizenship Path Near, Activists Push Obama To Slow Deportations", deportations under the President are on track to reach 2 million, or nearly the same number of deportations in the United States from 1892 to 1997. There is of course good reason for the President to keep pushing his tough stance as tightened border security goes hand-in-hand with the willingness of many members in Congress to pass Comprehensive Immigration Reform (CIR).
  5. On the White House CIR plan that was leaked on February 16, 2013, eligible applicants would obtain permanent residence at the earlier of either 8 years or the time that everyone in line on the date of enactment receives their green cards. This is a more generous plan than anything envisioned so far by either party and has the Republicans in an uproar. With another 5 years for citizenship, it would take 13 years for someone to become eligible for citizenship. That is a reason why we believe that those who are eligible for the Administration's new I-601A provisional waiver program which will begin accepting applications on March 4, 2013, should apply. Eligible applicants are those who are the immediate relatives of U. S. citizens (parents, spouses, and children under the age of 21 and unmarried - note that children must be at least 17 under the program) whose permanent departure would cause extreme hardship to a U. S. citizen parent or spouse. The I-601A provisional waiver forgives illegal stay in the U. S. which would bar an individual from returning to the States if he/she traveled outside. (Under The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, most illegal immigrants who remain illegally in the country for 180 days or one year after April 1, 1997, incur a 3 or 10 year bar respectively if they leave and attempt to re-enter). Other bars are not excused or waived. Under the program, applicants who are not eligible to adjust status because of their mode of entry are able to file for a waiver of illegal stay in the U. S. and wait for the result in the U. S. before deciding to travel overseas to attend an immigrant visa interview at an American consulate or embassy. Assuming that the 10 year bar upon return (in most cases) is waived ahead of time, the immigrant visa interview would in all likelihood be fairly routine. Counting the time required for I-130 petition approval, I-601A adjudication, and consular processing, a successful I-601A applicant could possibly receive permanent residence in a year and a half. Comparing CIR and the I-601A program, the adage applies that a bird in the hand is worth two in the bush.

This article © 2013 Alan Lee, Esq.

About The Author

Alan Lee, Esq. 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, and on the New York Super Lawyers list. 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, Muhasha 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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