Visa Lawyer Blog

This past April, a decision came down from the Board of Immigration Appeals (BIA) that addressed an important issue concerning Advance Parole for aliens whose unlawful presence for one year or more would trigger the 10 year ban from the U.S. The BIA decision of Matter of Arrabally and Yerrabelly has clarified what counts as a departure under the INA.

The statute that concerns all immigrants who have been in unlawful presence for one year or more is as follows: "Beginning April 1, 1997, a person who has been unlawfully present in the U.S. for one year or more consecutively and again seeks admission is barred for 10 years from the date of such person's departure or removal from the U.S. INA section 212(a)(9)(B)(i)(II), 8 U.S.C. section 1182(a)(9)(i)(II). In order to trigger the 10-year bar, departure from the U.S. is required, H.R. Conf. Rep. 104-828, 104th Cong., 2d Sess. at 207."

The (BIA) has clarified the term - departure -- in the Matter of Arrabally on April 17, 2012 which will help thousands of immigrant applicants who like Manohar Rao Arrabally have been entangled in the web of statutes, regulations, case law, and agency memorandum.

In this case, Mr. Arrabally and Ms. Yerrabelly, while waiting on their I-485 adjustment of status, found it necessary to return to India to attend to their aging parents, but they were appropriately concerned that the USCIS would deem their adjustment applications abandoned if they left the United States. To prevent their applications from being deemed abandoned, they applied for “advance parole” from the USCIS pursuant to section 212(d)(5)(A) of the Act. See 8 C.F.R. §§ 212.5(f) (providing for the advance authorization of parole); 245.2(a)(4)(ii)(A) (2004) (providing that “the departure of an [adjustment] applicant . . . shall be deemed an abandonment of the application constituting grounds for termination of any pending application for adjustment of status, unless the applicant was previously granted advance parole by the Service for such absences, and was inspected upon returning to the United States”). The respondents’ requests for advance parole were granted, and they traveled to India and back on several occasions between 2004 and 2006, returning each time in accordance with the terms.

In separate notices issued on October 15, 2007, the USCIS informed Mr. Arrabally and Ms. Yerrabelly that their applications for adjustment of status were denied. Specifically, the notices informed the respondents that they were no longer “admissible” to the United States, as required for adjustment of status, because they had departed this country (under grants of advance parole) after having been “unlawfully present” here for 1 year ormore and were seeking admission less than 10 years after having departed, a set of circumstances that rendered them inadmissible under section 212(a)(9)(B)(i)(II) of the Act.

Mr. Arrabally promptly sought reopening of his adjustment application before the USCIS, noting the humanitarian considerations that had prompted his request for advance parole and contending that he and his wife should not be punished for having departed the United States when the DHS knew about, and expressly approved of, those departures by granting them
advance parole. On July 21, 2008, a USCIS Field Office Director issued a decision acknowledging the force of some of the male respondent’s arguments but ultimately concluding that his inadmissibility under section 212(a)(9)(B)(i)(II) of the Act necessitated the denial of his application. In arriving at that conclusion, the Field Office Director invoked Matter of Lemus, 24 I&N Dec. 373 (BIA 2007) (“Lemus I”), in which we held that section 245(i) adjustment is unavailable to aliens who are inadmissible under section 212(a)(9)(B)(i)(II) and are not eligible for a section 212(a)(9)(B)(v) waiver.

On November 21, 2008 the DHS commenced these removal proceedings by filing notices to appear in Immigration Court, charging the respondents with inadmissibility under section 212(a)(7)(A)(i)(I) of the Act. By serving these notices to appear on the respondents, the DHS terminated their parole, thereby restoring them to the status they allegedly held at the time of their last parole into the United States, that is, as intending immigrants who are not in possession of valid admission documents. On February 12, 2009, Mr. Arrabally and Ms. Yerrabelly conceded removability through counsel and sought to renew their adjustment applications before the Immigration Judge. At the conclusion of an evidentiary hearing conducted on August 20, 2009, the Immigration Judge found the respondents inadmissible under section 212(a)(9)(B)(i)(II) of the Act and ineligible for section 245(i) adjustment, and he ordered them removed to India.

Mr. Arrabally and Yerrabelly appealed of the decision to the Board of Immigration Appeal. So the question presented to the Board of Immigration Appeal in this case was "whether the respondents (Mr. Arrabally and Mrs.Yerrabelly) who left the United States temporarily under a grant of advance parole, thereby effected a “departure,” which resulted in their inadmissibility under section 212(a)(9)(B)(i)(II)."

The Board of Appeal held that they did not. --- "An alien who leaves the United States temporarily pursuant to a grant of an advance parole (I-131) does not thereby make a "departure ... from the United States" within the meaning of the section 212(a)(9)(B)(i)(II) (2006). Matter of Lemus, 24. I. & N. Dec. 373 (BIA) (2007). Clarified.

Consequently, Mr. Arraball's and Mrs. Yerrabelly's appeal were sustained in part and the records were remanded to the Immigration Judge for further proceedings. Decided on April 17, 2012. (Matter of Arrabally, & Yerrabelly, 25 I.&N. De. 771 (BIA 2012)).

Since this decision, the local Field Office in San Diego has clarified their stance on handling adjustment of status cases. In particular:

- A currently pending case but where an unlawful presence waiver has been requested but not yet filed, the Local office will notify applicants that an I-601 waiver is not necessary.
- Where the unlawful presence waiver has been filed but not yet adjudicated, it will not necessary to adjudicate waiver case and the local office will move forward with adjudication of the application without the waiver.
- Where the unlawful presence waiver has been denied but the adjustment is still pending, the field office will move forward with adjudication without the wavier since it is no longer required.
- The unlawful presence waiver has been denied, the adjustment has been denied, but the NTA has not yet been issued, if the case was pending on or after 04/17/12 then the local office will do a service motion to reopen since it was an error to deny.

This decision clarifies what it means to depart the U.S. for those who are currently waiting on an adjustment of status. The BIA made the right decision in determining that leaving on an Advanced Parole should not count as a departure within the meaning of the INA and should not be held against those who received Advanced Parole to leave the U.S. while waiting on their adjustment.

California's agency that licenses lawyers wants to admit an illegal immigrant to practice law, an unprecedented request that the state's highest court decided Wednesday to review.

The State Bar of California certified Sergio C. Garcia after he passed a written test and a moral examination, sending it to the California Supreme Court for routine approval. The bar informed the court at the time that Garcia was undocumented. In a unanimous decision, the state high court ordered the bar to explain why an illegal immigrant should be given a legal license and invited briefs from other parties, opening the door to a potentially heated debate over national immigration policy.

Would the issuance of a license imply that Garcia could be legally employed as an attorney? the court asked. What are the legal and public policy limitations, if any, on an illegal immigrant's ability to be a lawyer? May other state agencies that license professionals also admit undocumented immigrants? After reviewing the written arguments, the court may hold oral arguments on the case.

Garcia's case is the first to come before the state's highest court involving an illegal immigrant seeking a legal license, according to a court spokeswoman. Similar cases are pending in Florida and New York. The bar began asking non-citizen applicants their immigration status several years ago.

Garcia was born in Mexico and brought to the United States by his parents when he was 17 months old, according to the Daily Journal, a legal newspaper. He attended college in Chico and works as a paralegal. Garcia has applied for legal status, but the process could take five to 15 years, Garcia's immigration lawyer has said.

Stanford Law professor Deborah Rhode, a legal ethicist, said she would be surprised if the court approved a legal license for Garcia before he obtained residency. "It seems fairly inconsistent with a long line of decisions that officers of the court are forsworn to uphold the law and should not be seen to have defied it," she said. But she also cautioned that Garcia could have a personally compelling case.

"Some of these cases are really heart-wrenching on the facts, especially undocumented immigrants who are brought over to this country at a young age, who go through the school system, who managed to triumph over a lot of obstacles, and who have now invested all this money in a degree," she said.

A spokeswoman for the bar said it would respond to the court's order but declined to discuss Garcia's case. Instead, the spokeswoman provided a summary of requirements for practicing law in California. These requirements included a juris doctor from an accredited law school, a background check and a positive finding of moral character. The summary said applicants must supply a Social Security number but may request an exemption. The summary made no mention of immigration status.

Garcia's immigration lawyer was unavailable.

Jerome Fishkin, a lawyer who is representing Garcia before the bar, responded to a request for an interview with a brief written comment. "We hope that the California Supreme Court adopts the state bar's finding that Sergio meets all legal qualifications to become a California lawyer," Fishkin said. "We will be filing our brief on his behalf." It will be interesting to see how the California Supreme Court will ultimately rule on this issue.

Great News for Arts groups coming to perform in the US. U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO) issued a binding precedent decision addressing the term “culturally unique” and its significance in the adjudication of P petitions for performing artists and entertainers.

The P visa was created to provide opportunities for aliens primarily performing as a group and not individually to tour in the US. The P visa, like the O1 visa, was also created by the Immigration and Nationality Act of 1990. In addition to covering performing and fine artists, the P1 also covers athletes.

It is important to make clear that the O1 visa (aliens of extraordinary ability) enables individuals to enter and work in their field of specialty, the P visa does not allow individuals to work unless they meet the criteria set in the law. This having been said P visa applicants do not have to have reached the pinnacle of their careers like O1 visa applicants, but P visa applicants do need to be nationally, or internationally known. For example, the group may have performed in other countries, or tour their own country and known to the community appreciating their artistic endeavors.

In the case at issue, the Skirball Cultural Center filed a P-3 nonimmigrant petition on behalf of a musical group from Argentina that was denied a performing artists’ visa for failing to establish that the group’s performance was “culturally unique” as required for this visa classification. Due to the unusually complex and novel issue and the likelihood that the same issue could arise in future decisions, the decision was recommended for review.

USCIS’s AAO approved the petition after its review of the entire record, which included expert written testimony and corroborating evidence on behalf of the musical group. The regulatory definition of “culturally unique” requires USCIS to make a case-by-case factual determination.

The decision clarifies that a “culturally unique” style of art or entertainment is not limited to traditional art forms, but may include artistic expression that is deemed to be a hybrid or fusion of more than one culture or region.

The decision is a positive step in allowing a broader range of groups to enter the US and perform. If you have any questions about the P3 visa, feel free to contact us.

In an effort to keep more and more students with science and technology backgrounds in the U.S., DHS has added more science, technology, engineering, and math designated degree programs to the list of qualifying student visa extensions.

The recently added STEM designated-degree programs include pharmaceutical sciences, econometrics and quantitative economics. These programs qualify eligible graduates on student visas for an optional practical training (OPT) extension. Generally, OPT allows eligible international students to remain in the United States for up to 12 months while they gain work experience and receive training related to their programs of study. This is great for a student wanting to gain valuable experience in their field while allowing a company a chance to see if this person would be a good fit and worth sponsoring on another work visa.

For students who graduate with a STEM designated degree, they can remain for an additional 17 months on an OPT STEM extension. A student may be eligible for the 17-Month OPT STEM extension under the following circumstances:

- The degree for your current period of post-completion OPT is a bachelor’s, master’s or doctoral degree in a STEM program listed,
- The employer from which you are seeking work uses the E-Verify Program, and
- A student has not already received a 17-month extension of OPT.

"Attracting the best and brightest international talent to our colleges and universities and enabling them to contribute to their professional growth is an important part of our nation's economic, scientific and technological competitiveness," said Secretary of Homeland Security Janet Napolitano. "International students and exchange visitors bring invaluable contributions to our nation, and this helps empower the next generation of international entrepreneurs, right here in America."

By expanding the list of designated STEM degree programs to include such fields as pharmaceutical sciences, econometrics and quantitative economics, the Department is helping bring the best, most qualified international students to the United States.

These reforms reflect the Obama administration's ongoing commitment to promote policies that embrace talented students from other countries, who come to study in our finest colleges and universities and enrich the nation by allowing highly skilled foreign graduates to extend their post-graduate training in the United States and work in their field of study upon graduation.

Let us hope that with the expansion of the STEM degree program that it will indeed keep more talented students here in the U.S. with the potential to build our Economic infrastructure and stay competitive in the global economy.

Sen. Marco Rubio (R-Fla.) aims to have his alternative to the DREAM Act proposal on paper in the next few weeks and passed by the end of the summer. "Our goal is to pass something this summer in time for kids who plan to go to school this fall," Rubio press secretary Alex Conant said Monday. Rubio's proposal would provide non-immigrant visas to illegal immigrants' children who attend college or serve in the military.

"So just like lots of people come to the United States on work visas or on student visas or tourism visas or whatever, this would be a non-immigrant visa, so it would be a temporary one," Conant said. "It wouldn't be permanent. But the intent here is if they choose to remain in the United States permanently that they could apply for permanent residence just like any other immigrant would."

Rubio's proposal is an alternative to the Democrat-backed DREAM Act, sponsored by Sen. Dick Durbin (D-Ill.), which would grant legal status to illegal immigrants who came to the U.S. when they were young and then go to college or serve in the military. Conant said Rubio's legislation would not mean the immigrants would be deported after their visa runs out.

"They could apply for permanent residence after a certain amount of time without having to return to their country of origin," Conant said. "They'd be like any other immigrant except that they could wait while they're in the United States. The Democrats' DREAM Act doesn't have them leaving the country but, as I said, it creates a special pathway for them."

Rubio's office does not yet have an estimate on how many new visas would be issued under the proposal. Conant said it depends on what the qualifying age for the visas in the legislation will be.

A day earlier, Rubio defended the proposal against criticism that it was a form of amnesty.

"We use the existing immigration system to deal with a humanitarian issue. And that is these children who entered this country illegally or have overstayed visas illegally, through no fault of their own," Rubio said on Fox News Sunday. "These are children, they follow their parents. The parents put them in this predicament."

While the difference might be quite different between the proposal from Sen. Durban and the proposal from Sen. Rubio, it will still come down to whether Congress can come to a compromise on this issue and help these children become U.S. citizens.

Another attestation to our flawed immigration system, this time the end of a great visa program that was abused to the point of disgrace.

The J-1 Summer Work and Travel program, which allows college students to visit for up to four months, is one of the State Department's most popular visas. Participation has boomed from about 20,000 in 1996 to a peak of more than 150,000 in 2008.

The visas are issued year-round, since students come from both hemispheres on their summer breaks. They work all over the country, at theme parks in Florida and California, fish factories in Alaska and upscale ski destinations in Colorado and Montana. The influx has been especially overwhelming for some resort towns.

The State Department announced major changes to cultural-exchange programs following an investigation by the Associated Press that found widespread abuses.

The agency issued new rules for the J-1 Summer Work and Travel Program, which brings more than 100,000 foreign college students to the United States each year.

The changes are the latest in a series of steps the State Department has taken to fix the program since the 2010 AP investigation. The investigation found that some participants were working in strip clubs, not always willingly, while others were put in living and working conditions they compared to indentured servitude.

Many foreign students pay recruiters to help find employment, then don't get work or wind up making little or no money at menial jobs. Labor recruiters charge students exorbitant rent for packing them into filthy, sparsely furnished apartments so crowded that some endure "hotbunking," where they sleep in shifts.

Students routinely get threatened with deportation or eviction if they quit, or even if they just complain too loudly. Some resort to stealing essentials like food, toothpaste and underwear, according to police.

"The vast majority of participating students in this program find it a rewarding experience and return home safely," the State Department said in an e-mail to the AP.

The new rules are meant to ensure that students are treated properly and that they get jobs where there will be interaction with Americans and exposure to U.S. culture.
Some of the rules are effective immediately, while others will take effect in November, including a significant one that would prohibit participants from working in "goods-producing" industries such as manufacturing, construction and agriculture.

The rules also ban participants from working in jobs in which the primary hours are between 10 p.m. and 6 a.m.

"The new reforms for the Summer Work Travel program focus on strengthening protections for the health, safety and welfare of the participants, and on bringing the program back to its primary purpose, which is to provide a cultural experience for international students," Robin Lerner, a deputy assistant secretary for the State Department, said in a statement.

The Work and Travel category allows sponsors to bring foreign university students to the US during their summer vacations to travel and work in the US . Sponsors are encouraged to select visitors who, because of their distance from the US , would most likely not be able to afford to come to the US without temporary work authorization. This is the only J-1 category in which the number of foreign nationals the sponsor helps enter the US must be the same as the number of US students it sends abroad.

Filing for a Green Card after arriving to the US on a Fiance Visa is a very confusing topic for many Immigrants. Once the fiancé(e) has entered the United States he/she must get married within 90 days of the fiancé(e)'s arrival in the United States. Once the marriage takes place the Petitioner must file Form I-485 Adjustment of Status with United States Citizenship and Immigration Services (USCIS) office.

Recent case law, provide some guidance on particular issues affecting the Adjustment of Status of certain applicants. On March 17, 2011, the BIA issued Matter of Sesay, in which it concluded that there is no requirement that a K-1 fiancé(e)’s marriage to the I-129F petitioner remain intact in order for the K-1 to adjust status.

On June 23, 2011, the BIA issued Matter of Le, in which it cited Sesay and ruled that there is no requirement that a K-2 remain under 21 years of age in order for the K-2 to adjust status.

USCIS has drafted guidance related to Matter of Le and Matter of Sesay. This guidance is currently undergoing internal review and should be issued soon.

Also, keep in mind that Sesay addresses only whether a visa as an immediate relative is available. The applicant must still establish the he or she is admissible as an immigrant, and that he or she merits a favorable exercise of discretion. 25 I&N Dec. at 441. Admissibility must exist on the date of adjudication of the adjustment application. 8 CFR 103.2(b)(1).

Please keep in mind though that, a K1 fiance visa holder cannot adjust his or her status to a lawful permanent resident based on a marriage to any one other than the U.S. Citizen petitioner. A person in this situation would have to return to his or her country and apply for an visa at the U.S. embassy abroad.

Feel free to email us with any questions.

We really enjoy seeing cases where individuals who have done everything right are able to succeed in being granted their citizenship. In Naturalization cases, it can be difficult to get an approval if the government decides to fight even one minor part of the record. This recent decision by a U.S. District Court highlights the struggle between an individual and USCIS when the government chooses to carry on the fight with its determination that you should not receive citizenship.

The U.S. District Court for the Northern District of California ruled on March 21, 2012, that Plaintiff Mirsad Hajro was eligible for naturalization. The decision follows a May 27, 2011 order by the court denying a summary judgment motion by the government. USCIS originally denied Mr. Hajro's Form N-400, alleging that the Mr. Hajro gave false testimony with the intent to obtain an immigration benefit, and thus lacked the good moral character required for naturalization.

The facts in question concerned information provided by Mr. Hajro during an interview for his naturalization. Mr. Hajro had served in the Bosnian military and a question arose asking if he had been in possession of any firearms during his time in the military. The court found that the Mr. Hajro did not provide false testimony on either his I-485 or N-400 applications, noting that, in the instances where Mr. Hajro's responses were deficient, he provided reasonable, credible explanations for the omissions. It also found that Mr. Hajro consistently volunteered information to USCIS to enable it to make its decision. As a result, the court held that the plaintiff was a person of good moral character during the relevant three-year period, and was eligible for naturalization.

In related FOIA litigation, on October 13, 2011, the Northern District of California had ordered USCIS to respond to the Mr. Hajro's FOIA request for his A file in 20 days, absent unusual circumstances. On May 7, 2012, the court issued a final judgment in the FOIA litigation, finding that USCIS was in violation of FOIA for the reasons set forth in the October order, and issued a permanent injunction requiring USCIS to comply with FOIA's provisions.

When looking at the motions on this case, it is frustrating to see the government fight this person's citizenship over such a small matter when our resources need to be put to better use. USCIS felt Mr. Hajro was trying to withhold information about his service in the Bosnian military when that was not the case, which the Court properly concluded. USCIS wasted taxpayer money filing motions to get its own determination upheld when as a matter of law Mr. Hajro was allowed to petition the Court to review his entire case De Novo and reach its own conclusion.

The Court's decision highlights a frightening concern over the great discretion USCIS has in making capricious and arbitrary decisions. Without the good lawyers that worked on Mr. Hajro's case, Mr. Hajro would not be able to call himself an American, something every citizen is proud to carry. Cases like Mr. Hajro's are a call for greater transparency in the immigration process, and quite possibly another reason for why the system is in need of a serious overhaul.

To qualify for a national interest waiver (NIW) pursuant to INA §203(b)(2)(B)(ii), a physician must commit to working for a total of five years as a full-time clinical physician either at a facility operated by the Veteran’s Administration or in an HHS-designated Medically Underserved Area (MUA)/Health Professional Shortage Area (HPSA). The following are some tips and information on NIW adjudications.

* Requirement for a Five Year Employment Contract. In a 2007 policy memorandum, USCIS confirmed that the NIW petition may be filed at any time before, after or during the five year commitment period and that the five year commitment need not be completed within any specific period of time. However, the regulations still require the submission of a five year employment contract with the NIW petition filing.

This can present challenges for physicians who may have completed some or all of the qualifying five years of employment before filing the NIW petition. Common sense would indicate that the length of the employment contract need only be five years if the physician had not already completed part of the commitment prior to filing the petition. The literal language of the regulation requires “a full-time employment contract for the required period of clinical medical practice, or an employment commitment letter from a VA facility.”

In the event that the physician had completed all five years of service before filing the petition, the remaining “required period of clinical service” would be zero and the physician should be able to provide evidence of service completion at the time of filing the I-140 petition instead of an employment contract. In the event that the physician had completed a portion of the service requirement before filing the I-140, the physician should be able to present evidence of the completed portion, together with a signed employment agreement for a term covering the balance of the five years.

Instead, USCIS continues to insist upon an agreement dated within 6 months of filing the NIW petition that either runs for a full five year term, or acknowledges whatever time has already been worked toward the commitment with prior employers. For the physician who is currently working for the same employer with whom he or she began her service commitment, the contract can be amended to extend the term for however long is required to reach a maximum of five years.

The contract addendum should have been executed within 6 months prior to the filing of the NIW petition, and should acknowledge the amount of time the physician has already worked for the employer and the fact that the term of the contract is being extended to cover a total of five years of employment.

Physicians who have already completed the full five year term, or who are no longer employed by the employer with whom they began the service commitment should execute an addendum to their current employment contract within 6 months prior to filing the NIW petition in which both parties acknowledge the time the physician previously worked toward completion of the five year commitment.

In the alternative, such physicians could file the NIW petition with a new five year contract with an underserved area employer notwithstanding that some or all of the qualifying five years of employment was completed before filing the NIW petition. This would not mean that these physicians would have to wait an additional five years to be approved for adjustment of status; USCIS will agree to consider the prior employment evidence in the context of the adjustment of status application.

Upon submission of tax returns, pay stubs and a letter from the prior employer, USCIS will credit the previous time worked toward the five year medical service period required for approval of the I-485. Be sure to document that each location is underserved, or was underserved at the time the physician began practice there. However, at the present time, USCIS will not accept this same evidence in support of the I-140 petition because it does not take the form of a five year contract dated within six months prior to filing the NIW I-140 petition.

What Time Counts Toward the Five Year NIW Commitment Period?

Physicians who are subject to the three year J-1 waiver commitment pursuant to INA §214(l) may count that three years of employment toward completion of a five year NIW commitment. In addition, during an August 2011, USCIS confirmed that physicians who completed U.S. residency or fellowship training in a status other than J-1 may also count that training time toward completion of the five year commitment so long as the training occurred at a location that otherwise qualifies under the statute.

When May the Physician Stop Working at a Qualifying Facility?

USCIS confirmed that a physician who has completed the five year qualifying service commitment need not remain employed at a qualifying site until the I-485 is ultimately approved. This is particularly relevant for physicians from India and China who, because of backlogs in immigrant visa availability, may complete their five years of service long before their adjustment of status applications are ultimately approved.

May Specialist Physicians Submit NIW Petitions?

The physician NIW program was initially limited to primary care physicians (internal medicine, family practice, OB/GYN, pediatrics and psychiatry) unless the physician was to be employed at a Veteran’s Administration facility. In 2007, USCIS issued a policy memorandum confirming that specialist physicians working at non-VA facilities are also eligible for a physician NIW, so long as the facility is located in a Physician Scarcity Area (PSA), Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA).

What Types of Medical Practitioners Qualify for the NIW Petition?

An NIW petition under INA §203(b)(2)(B)(ii) may only be filed on behalf of clinical physicians. Dentists, chiropractors, podiatrists, and optometrists do not qualify, although they may meet the evidentiary criteria for a standard NIW petition filed under INA §203(b)(2)(B)(i).

Feel free to email us with any questions.

Recently USCIS provided EB-5 statistics provided for a stakeholder engagement meetig, including information on service-wide receipts, approvals, and denials of I-526s and I-829s; the number of approved EB5 Regional Centers by fiscal year.

The statistics reveal an increase across the board in all EB-5 related filings including I-924 applications for both initial regional center designation as well as amendments to existing regional centers. Individuals also filed the highest level of I-526, EB-5 Immigrant Investor Petitions and I-829, Petitions to Remove Conditions to date.

The Immigrant Investor Program, also known as “EB-5,” was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by immigrant investors by creating a new commercial enterprise or investing in a troubled business. There are 10,000 EB-5 immigrant visas available annually. In 1992 and regularly reauthorized since then, 3,000 EB-5 visas are also set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.

There are two distinct EB-5 pathways for an immigrant investor to gain lawful permanent residence for themselves and their immediate family—the Basic Program and the Regional Center Pilot Program. Both programs require that the immigrant make a capital investment of either $500,000 or $1,000,000 (depending on whether the investment is in a Targeted Employment Area [TEA] or not) in a new commercial enterprise located within the United States. TEA is defined by law as “a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.”

The new commercial enterprise must create or preserve 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident (CPR).

Summary of Statistics:

* 92% of all EB-5 applications submitted to USCIS are for Investors who are investing in Regional Center affiliated commerical enterprises.
* EB-5 Visa usage has increased tremendously with 1,293 Form I-526 petitions receipted in by USCIS in the first quarter of fiscal year 2012 alone.
* In fiscal year 2011, USCIS receipted in a total of 3,805 I-526 petitions. This is a significant increase from a total of 1,955 in 2010 and only 332 applications total in 2005.
* USCIS also received their highest level of I-829 petitions to date in 2011, with a total of 2,345 receipted in as compared to only 768 in 2010.
* Denial rates have also increased. In fiscal year 2011, 39% of I-924 filings for either initial Regional Center Designation and/ or Amendments were denied by USCIS. Individual I-526 adjudications also saw an increased denial rate of 19% in 2011. Interestingly, although I-829 filings in 2011 were at their highest level in the history of the EB-5 program, they only saw a 4% rate of denial.

Fewer undocumented immigrants stopped for traffic violations will face deportation, under newly unveiled changes to a prominent immigration enforcement program.

Known as Secure Communities, the program compels state and local law enforcement officers to enter the fingerprints of anyone they detain into a federal database. Federal immigration officials can cross-reference those fingerprints and initiate deportation proceedings if the detained person is in the country illegally.

The result: many undocumented immigrants being deported over minor breaches like broken tail lights and speeding. The number of deportations stemming from a traffic stop increased sharply last year, amplifying immigration advocates' critique that the Obama administration is failing in its stated goal of targeting immigrants who have criminal records or could undermine public safety.

A task force convened by Department of Homeland Security Secretary Janet Napolitano and comprised of law enforcement officials, immigration attorneys and immigration enforcement union representatives, among others, recently issued a report detailing how critics of Secure Communities believe it is breaking apart families and breeding distrust of law enforcement.

"Many state and local officials believed they were joining a program targeting serious offenders" by participating in Secure Communities, the report's authors wrote, but the impact of Secure Communities has not been limited to convicted criminals, dangerous and violent offenders, or threats to public safety and national security."

In response to the report, the Department of Homeland Security announced changes to how officials will handle immigrants detained at traffic stops. The reform affects immigrants without any prior criminal record. Federal agents will only request that local officers hold immigrants arrested at traffic stops if those immigrants are subsequently convicted. The change will not apply to immigrants stopped for drunk driving. This change is more in line with the DHS memo concerning prosecutorial discretion over cases of low immigration offenders.

Continue reading "DHS Makes Changes to Secure Communities Program So There Are Fewer Deportations From Minor Traffic Stops" »

On February 22, 2012, USCIS held an Information Summit on its recently instituted Entrepreneurs in Residence (EIR) initiative. This past week, USCIS released an Executive Summary on the Information Summit. Several principle themes were addressed at the summit, which the EIR Tactical team will work on addressing in the months to come.

Demonstrating the Legitimacy of Startups through Investments

USCIS acknowledged that many of the unique characteristics of startups and small businesses are also traditional indicators of fraud or ineligibility and asked stakeholders for input on what evidentiary criteria could help USCIS evaluate the legitimacy of startups. Several stakeholders commented that researching the investors of a startup venture can provide reliable information on the startup’s legitimacy. An investor will not invest if he or she doubts the founders and their organization. One stakeholder suggested creating a database of accredited investors to provide reliable information to USCIS. Other stakeholders recognized that it is easy to conduct a background check on domestic investors, but that it can be very difficult to conduct checks on foreign entrepreneurs who provide their own equity. When discussing the
subject of investors, stakeholders asked USCIS to provide further guidance as to how much equity the entrepreneur can own in the enterprise.

Understanding the Organizational Structure of a Startup

USCIS acknowledged that it is less familiar with the organizational structure of a startup than traditional large businesses. Several participants offered several common features of a startup enterprise, and suggested that USCIS could benefit from visiting the work locations of startups and other small business ventures. Several participants noted that a lack of office space had raised concern in their adjudications process. These participants explained that many startups are run out of more informal spaces such as a coffee shop or a living room, and that a lack of office space should not raise immediate concerns of illegitimacy. One participant explained that a startup company should be easily located on an internet search engine, and that internet searches were a reliable way to prove a small business venture’s legitimacy. Another participant explained that the roles and titles in a startup are more fluid. A startup can often lack the features of a big business such as a CEO and a board of directors, and one stakeholder explained that these features are often not established until funding is obtained. Participants emphasized that partnerships with big companies are easier to document than organizational structure. One participant reflected that most early stage companies do not create an organizational chart until USCIS asks for one. Another participant asked USCIS to provide information on how to structure small businesses and startups, and that venture capitalists and entrepreneurs will try and work within these standards.

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