Articles Posted in Immigrant Visas

The EB5 immigrant investor visa has quickly become one of the most positive and popular visa programs and path to a Green Card Visa the United States has ever conceived. Since its creation as part of the Immigration Act of 1990, the visa has risen from obscurity to become a darling of pro-immigration discourse.

This is an update about Indirect Job Creation. These are the jobs held by persons who work outside the newly established commercial enterprise. For example, indirect jobs include employees of the producers of materials, equipment, and services that are used by the commercial enterprise.

According to the update presented below, USCIS interprets the law to require that a regional center focus its EB-5 capital investment activities on a single, contiguous area within the geographic jurisdiction requested by the regional center. USCIS agree that the law does not further mandate that all indirect job creation attributable to a regional center take place within that jurisdiction. USCIS will ensure that its policy reflects this understanding of the law.

This great summary is provided by AILA with the guidance of Tammy Fox-Isicoff. The EB5 program is of great interest to many applicants, especially those with the means to participate. he EB-5, Green Card through investment, was created to promote investments in businesses and to create and preserve jobs in the U.S. You can become a lawful permanent resident by establishing a new commercial enterprise and provide full-time employment to at least ten U.S. citizens, legal permanent residents, or other immigrants with employment authorization.

Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise.

Of these 10,000 visas, 5,000 are set aside for those who apply under a pilot program involving a CIS-designated “Regional Center.”
What is a Regional Center (RC)?

A RC is a proposed business venture often located in a targeted unemployment area supported by an econometric model based on a business plan forecasting indirect and/or direct job creation. Normally, RCs are located in areas of high unemployment or rural areas and require a $500,000 investment. However, some RCs are not located in targeted employment areas and therefore require investments of $1,000,000. An investor in an RC is not required to be actively involved in the management of the investment as long as the investor is a limited partner under the Uniform Limited Partnership Act. An RC normally structures one or more new commercial enterprises (NCE) that receive capital from investors to engage in direct or indirect job creation project or projects.

What does RC designation by USCIS mean?

It means that USCIS has reviewed the proposed business plan, any accompanying econometric model, location, and proposed job creation and has determined that the proposed business plan meets the requirements of The Immigrant Investor Pilot Program, created by Section 610 of Public Law 102-395 on October 6, 1992.

Are all RCs that have received designation from USCIS operational?

No, actually only a small percent of designated RCs are operational and have been the basis for approved I-526 Immigrant Petitions by Alien Entrepreneur. Even a smaller percentage have approved I-829 Petitions to Remove Conditions on Residence.

Is USCIS required to conduct background checks on RC managers or directors?

No.

Does USCIS monitor the performance of RCs?

No. USCIS has sent out questionnaires to RCs, but it is not clear at this time what USCIS is doing with the information obtained from the questionnaires.

Does USCIS publish a list of operational RCs and those with approved I-526 and I- 829 petitions?

While USCIS does publish a list of designated RCs, it does not publish which RCs are operational or which RCs have approved or denied I-526 and/or I-829 petitions.

If an RC is designated by USCIS, are all NCEs formed in the RC automatically
approved?

No, each NCE within the RC must meet the requirements of the requisite investment amount and job creation. If the NCE will be investing in another business, that business must meet the requisite employment creation.

Is there a process whereby USCIS provides pre-approval of an NCE within an RC?

Yes. USCIS has recently created a pre-approval process. However, this process is not taken advantage of by many RCs as the time to obtain pre-approval of an NCE can be extensive, inordinately delaying the NCE from receiving funds from investors. The preapproval process is so new that it has not been adequately time tested.

If USCIS has approved a number of I-526 petitions for an NCE or pre-approved an NCE is it a guarantee that future petitions for the same NCE will also be approved?

No. USCIS will always examine the source and path of funds of the individual investor and failure to carefully document this can result in the denial of the I-526 petition. More baffling is that on frequent occasions, USCIS has raised questions pertaining to NCEs that have a long track record of approvals, and USCIS can also raise questions pertaining to NCEs that have been pre-approved. USCIS has also raised questions concerning an NCE’s qualifications after approving an I-526, at the I-829 stage. Thus, prior approvals for the same NCE, pre-approval of an exemplar petition for an NCE and even the approval of an investor’s I-526 for a particular NCE, does not mean that the NCE will not be further scrutinized by USCIS.

What happens to an investor who invests in an NCE that never gets off the ground?

The initial I-526 petition may be approved based on the business plan and supporting documents, but the I-829 petition to remove conditions on residence will be denied.

If either the I- 526 or I- 829 is denied, will the invested funds be returned to the
investor?

This depends to some extent on the agreement between the investor and the RC. Some RCs hold funds in escrow pending approval of the I-526. Others do not. At the I-829 stage, it is doubtful that funds will be returned if the I-829 is denied as the funds must have been placed at risk in order for the I-526 to be approved in the first place. See Matter of Izumii, 22 I&N Dec. 169 (Assoc. Comm. 1998). The RC cannot provide any guarantee of the return of the invested funds if the I-829 is denied.

What happens to an investor if the I-829 is denied by USCIS?

The investor can renew the I-829 in removal proceedings before an immigration judge. If the I-829 is denied by the judge, the investor can appeal to the Board of Immigration Appeals and to federal court. If the investor does not prevail, the investor can be deported.

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Department of State Visa Office provided explanation of its monthly determination of employment preference cut-of dates and data used in determining employment based cut-off dates for December 2010.

Each month, the State Department subdivides the annual preference and foreign state limitations specified by the Immigration and Nationality Act into monthly allotments based on totals of documentarily qualified Immigrant Visa applicants reported at consular posts and Immigration Offices, grouped by foreign state chargeability, preference category, and priority date.

If there are sufficient numbers in a category to satisfy all reported documentarily qualified demand, the category is considered “Current.” For example: If the monthly allocation target is 3,000 and there is only demand for 1,000, the category will be “Current”. Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for the particular month, the category is “oversubscribed” and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number.

This is an important update for all Religious Workers filing for Permanent Residency. On October 13, 2010, the U.S. Court of Appeals for the Ninth Circuit issued a mandate overturning the permanent injunction ordered by the U.S. District Court for the Western District of Washington allowing special immigrant religious workers to file their Form I-485, Application to Register Permanent Residence or Adjust Status, concurrently with the organizations’ Form I-360.

Effects on Religious Workers

As of November 8, 2010, USCIS will no longer accept any I-485 applications, as well as Applications for Employment Authorization (Form I-765), and/or Applications for Travel Document (Form I-131), filed concurrently with or filed based on pending I-360 petitions from individuals seeking classification as special immigrant religious workers.

The U.S. Department of Labor Employment and Training Administration Office of Foreign Labor Certification, issued a Frequently Asked Questions on Permanent Labor Certifications, titled Round 12.

In that update they answer the employer point of contact questions that is often asked by employers. The answer is that the employer must designate as its point of contact an employee of the employer who is authorized to act on its behalf in labor certification matters pertaining to the specific job opportunity for which certification is sought.

The designated employee may not be the sponsored foreign worker. The employer point of contact will be contacted by the National Processing Center to verify whether the employer is authorizing the filing of the application and sponsoring the foreign worker named therein.

Therefore, an authorized employee’s name and contact information must be listed in Section D of the employer’s submitted ETA Form 9089. It is not acceptable, for example, to reenter the employer’s name listed in Section C of the ETA Form 9089 or provide a generic title such as “HR Manager.”
Moreover, as indicated on the ETA Form 9089 and accompanying instructions, such a person’s name and/or contact information, e.g., the phone number and email address, must be different from the attorney or agent name and/or contact information listed in Section E of the ETA Form 9089, unless the attorney or agent is an employee of the employer. This has been a subject of a few audits in recent years.

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Bad news for Dream Act supporters, On 9/21/10, the Senate failed to reach the 60 votes needed to pass a motion to proceed to consideration of the fiscal 2011 defense authorization bill (S. 3454). Senator Majority Leader Harry Reid (D-NV) had previously announced his intention to offer the DREAM Act as an amendment to the bill. After it was evident that the votes needed to proceed would fall short, Senator Reid switched his vote to “no” in order to preserve his right to bring the bill up again which would mostly likely be during the lame duck session of the 111th Congress.

Senate Republicans were joined by Arkansas Democrats Blanche Lincoln and Mark Pryor in voting down the measure by a vote of 56-43.

Here is what the President of the American Immigration Lawyers Association had to say:

The Department of State released the new visa bulletin for October 2010 on September 9, 2010.

For the month of October, the EB-1 category was current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward 14 days for Chinese nationals (from May 8, 2006 to May 22, 2006), and remained unchanged for Indian nationals (May 8, 2006). In the EB-3 category, the cut-off dates moved forward from October 22, 2003 to November 8, 2003 and from January 1, 2002 to January 15, 2002 for Chinese and Indian nationals respectively.

For the month of September, the EB-1 category was current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward more than two months for both Chinese nationals (from March 1, 2006 to May 8, 2006) and Indian nationals (from March 1, 2006 to May 8, 2006). In the EB-3 category, the cut-off dates moved forward from September 22, 2003 to October 22, 2003 for Chinese nationals while the cut-off dates stayed the same as they were in August for Indian nationals (January 1, 2002).

USCIS has released a new interim memo which clarified the method of analysis by USCIS officers that they must use in adjudicating Form I-140, Immigrant Petition for Alien Workers, filed for 1) Alien of Extraordinary Ability EB1A cases; 2) Outstanding Professor or Researcher EB1B cases; and 3) Alien of Exceptional Ability EB2 cases. The requirements for these types of I-140 petitions have not changed but this new method of evaluating the merits of cases may adversely impact those applying for immigration in these categories. This interim memo is a response to the U.S. 9th Circuit Court of Appeals decision in Kazarian v. USCIS on March 4, 2010. In the Kazarian ruling, the court held that USCIS was being too strict in deciding EB1A petitions by requiring extensive citation evidence and specific types of peer review work in order to meet the EB1A criteria. However, the court did rule that USCIS could consider evidence such as extensive citations in making a final merits review of the case to determine whether an alien is at the very top of his or her field.

In essence, the new USCIS interim memo breaks the evaluation process up into two parts – 1) evaluating whether the applicant meets the baseline criteria for the immigration category and 2) determining whether the applicant’s evidence demonstrates the required high level of expertise for the immigration category. In the second part of the review process the USCIS will evaluate the evidence to see if, as a whole, it proves by a preponderance of the evidence that the applicant is at the very top of his or her field of endeavor. This article will explain how the evaluation will be handled for affected EB1A and EB1B I-140 petitions.

For the first step in evaluating EB1A cases, the officer will check to see if evidence is provided to show that the applicant has met at least three of the following ten criteria:

The Department of Labor (DOL) issued new PERM FAQs on August 3, 2010. The issues addressed by DOL in this round of FAQs include expedite requests, how to document the use of an employee referral program, unsolicited documentation and what constitutes a “business day” for purposes of posting the Notice of Filing. Within the FAQs, DOL states the following:

* Expedite Requests – DOL clarifies that the Office of Foreign Labor Certification (OFLC), as a matter of long-standing policy, will not accept requests to expedite PERM applications;

* Employee Referral Programs (ERP) – DOL states that an employer can document its use of an ERP with incentives by providing dated copies of its notices or memoranda advertising the program and specifying the incentives offered. The employer must document the existence of the ERP, and that its employees were aware of the vacancy of the specific position for which certification is being sought. This can be achieved through posting on the employer’s website. However, the physical Notice of Filing shall not be sufficient for this purpose;

A great update from AILA to our anxious EB3 applicants and blog readers. Many I-140 denials came out of the Service Centers in the past few months. These denials resulted when applicants failed to properly distinguish the required qualifications between professionals and skilled workers on the new Form I-140 which was introduced on January 6, 2010.

Prior versions of Form I-140 had only one box to check for bachelor degreed professionals and skilled workers, and did not make a distinction between the two classifications. Similarly, there is no distinction in the availability of visas as both are classified in the employment-based, third preference category. Thus, the differences between the professional with a Bachelor’s degree and a skilled worker were without a distinction prior to the introduction of the new form earlier this year.

However, this new form does require the petitioner to distinguish between a professional with a Bachelor’s degree and a skilled worker. The definition of professional is set forth in the regulations at 8CFR 204.5(l)(2), which states: