EB-5 Cutoff, H-1B Cap Cases, Obama Executive Action, Poverty Guidelines 2015, and New G-28's


1. EB-5 cutoff – It is now pretty official that the China EB-5 category will backlog for the month of May 2015 or at the latest June 2015. Those born in China will be affected, not those born in other countries. What this means is that the priority date of the case which is established with the filing of the I-526 Immigrant Petition by Alien Entrepreneur will now assume importance in determining who can file for final immigration. Following the I-526 approval, applicants file either I-485 adjustment of status to permanent residence applications or DS-260 applications for immigrant visas. Those affected would be precluded from filing either one until their priority dates become current once the backlog comes into effect.[1] The best advice for applicants with approved I- 526 petitions who are residing in the U. S. is to apply for the I-485 prior to the backlog coming into effect, and for those who are overseas to attempt to complete their immigrant visa processing by that time. It should be noted that the backlog has no effect upon the filing and adjudication of I-526 petitions, and given the time required to approve petitions (currently 14 months) and the unpredictability of visa movement, the category for China-born could quite possibly be available and current when the petition is approved.

2. H-1B cap cases – Everyone is now in the busy busy season of H-1B’s who does them, and here are just some reminders while doing the processing: All cases do not have to be submitted on April 1st – under the rules, cases are equally acceptable which are filed at any time during the first 5 business days; not all schools are equal for the Masters cap – if the school is a for-profit Institute, and if the petition is selected under the Masters cap, there will be questions concerning eligibility; check the checks – an unsigned check or check in the wrong amount is automatic death in this H-1B season where the cap is expected to be filled in the first 5 business days; and employers should sign in blue ballpoint pens – felt-tip marker signatures that look like stamped signatures on the forms will also result in petition rejections.

3. Obama executive action – The Administration in attempting to please pro-immigrant constituencies and assure them that all possible steps are being done probably did no one a favor in attempting to have Judge Andrew Hanen of the Southern District Court of Texas lift his preliminary injunction. It would be entirely surprising if the judge reversed himself at this point. The difficulty is that his affirmation of his own ruling will provide much fodder for the conservatives and further entrench the view that the President overstepped his bounds of authority. His ruling is expected very soon. The better action was the Justice Department’s going forward with an appeal to the Fifth Circuit Court of Appeals requesting an expedited appeal and a stay of the preliminary injunction. DOJ lawyers have also made the argument to both Judge Hanen and the Fifth Circuit that the preliminary injunction could be lifted for the rest of the country other than Texas, which was the state that provided evidence of potential harm if the expanded DACA and DAPA programs were put into effect.

4. Poverty guidelines 2015 – The new standards are out and as is the norm, poverty guideline levels have increased and not decreased. The average amount of increase over 2014 is approximately $250 per person, a factor to take into account for those preparing affidavit of support forms. The new guidelines can be found on the U.S.C.I.S. website (uscis.gov) as the form I-864 P supplement.

5. New G-28’s – The new authorizations of representation have been published for those who are represented by attorneys and others. The number of pages has expanded from 2 to 4, and any prior versions will be invalid for use on or after April 13, 2015. There has been a huge hubbub about attorneys not receiving original notices of approvals and other actions, and only being sent copies on white paper, which U.S.C.I.S. attributed to a problem in the system which was being adapted to the new G-28’s. The new G-28’s now have 2 new boxes in part 4, #2.a and #2.b. In the former, the client can request DHS to send any notices to the business address of the attorney of record. If the box is not checked, the client will receive the original notices. In the 2nd box, the client can request DHS to send any secure identity documents such as green cards, employment authorization documents, or travel documents to the attorney. If the box is not checked, the secure document goes directly to the client. Attorneys and other representatives should ensure that they have sufficient new G-28 authorizations of representation on hand, especially for problem cases that they are tracking with U.S.C.I.S.

[1] There is a chance that applicants for adjustment of status to permanent residence will be benefited by a change of regulation as the White House briefing on the President’s Executive Actions of November 20, 2014, included a discussion that the ability of individuals with approved employment-based immigrant visa petitions caught in the quota backlogs to file for adjustment of status would be advanced to allow them to obtain the benefits of a pending adjustment.

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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