Visa Lawyer Blog

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Update from AILA: Yesterday, Senate Majority Leader Reid filed cloture on the DREAM Act (H.R. 5281) setting the bill up for the critical cloture vote in the Senate expected for Saturday, December 18. The Senate will need 60 votes for the DREAM Act to move forward.

This is the vote we’ve all been waiting for. With only days left in the lame duck session of Congress, there won’t be another chance. You must continue making calls and sending emails to all Senators to urge them to vote “yes” on DREAM when the Senate brings it up for a vote.

All congressional offices should be contacted, but if you live in these states, we REALLY need your support because one of your Senators is a SWING VOTE on DREAM!

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Kuwait’s Labour Ministry has submitted three proposals to the government to help put an end to the controversial sponsorship system.

The proposals are based on studies and recommendations prepared by the ministry, the Arab Labour Organisation and the International Labour Organisation, a source from the ministry has said.

“The ministry took into consideration the specifics of the Kuwaiti labour market as well as the recommendations of international organisations on labour and human rights,” the unnamed source told Kuwaiti daily Al Anbaa on Thursday.

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Great news to report today about private Bills. A private bill is one providing benefits to specified individuals (including corporate bodies). Individuals sometimes request relief through private law when administrative or legal remedies are exhausted, but Congress seems more often to view private legislation as appropriate in cases for which no other remedy is available, and when its enactment would, in a broad sense, afford equity.

From 1817 through 1971, most Congresses enacted hundreds of private laws, but since then the number has declined sharply, as Congress has expanded agency discretion to deal with many of the situations that tended to give rise to private bills. Private provisions also are occasionally included in public legislation.

The private immigration bills passed by the House on today — they had already been passed by the Senate — are the first to be approved in more than five years. The measures now go to President Barack Obama for his signature.

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Client just called and asked for a change of status from B2 visitor to F1 student. I said, great we can help, but when does your status expire. He said, no worries I am good for 10 years!!! Been here for 4 only.

I said: No you are not, the I-94 (little white card in the passport) is what controls your status, this only good for 6 months max. I heard a loud sound of falling and silence. For those who are in the U.S. temporarily as nonimmigrants, the most important date to track is perhaps the expiration date of their I-94 arrival / departure cards. The I-94 is a small card that is usually stapled into one’s passport. It is obtained in one of two ways. It can be issued by a Customs and Border Protection (CBP) officer at the port of entry upon arrival in the United States. It can also be issued by the U.S. Citizenship and Immigration Services (USCIS) when one is granted an extension or change of nonimmigrant status from within the United States.

The I-94 card reflects how long one is permitted to stay in the United States, provided s/he complies with the terms of her/his status. Occasionally, the CBP or USCIS will issue an I-94 card with an erroneous date (either issuing an approval for a longer period than is permitted by law or granting an individual less time than appropriate.) In either case, one should immediately obtain competent legal advice on the proper steps to correct the error.

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New York Mayor Bloomberg said on Friday that the economy is suffering because of Washington’s failure to change restrictive policies, he said, and talented entrepreneurs were taking their ideas to other countries that are only too happy to host them. He was right on the ball with his statements.

“If we keep the best and the brightest out of this country, all the next big things will happen outside this country,” the mayor said during a speech at the New York Stock Exchange.

Mr. Bloomberg has been making the economic argument for immigration reform for months, and his pitch clearly resonated Friday at the annual meeting of the Partnership for New York City, a leading business group. He has created a national task force of mayors and chief executives — many of whom were in the room — to call for a path to legalization for the millions of illegal immigrants who are already in the United States, and for a loosening of green card and visa restrictions to allow for more educated and highly skilled immigrants to move here.

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UPDATE:

Facing GOP objections, Democrats are putting aside the Dream Act. They’re short of the 60 votes needed to advance the measure.

Democratic officials say they’ll to move the House-passed version after the Senate acts on funding the government and extending tax cuts. Republicans have said they won’t agree to consider anything else until those issues are addressed.

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Last night’s House passage of DREAM (216-198) brings us closer than we have ever been to victory! This morning we urge our readers to make final calls to all Senators to urge them to vote for cloture on DREAM.

The Senate is scheduled to vote at 11am and will need 60 votes to win.

The House victory has changed the tone on DREAM and gives our Senators a greater sense of urgency that their individual votes will be the deciding ones for a historic victory on immigration. EVERY VOTE counts so make your final calls now.

Last night DREAM triumphed over partisanship and won the votes of 8 House Republicans and many conservative Democrats. To make DREAM possible, the Senate leadership made the unprecedented move of delaying their voting until today.

The momentum is building on DREAM. Make your calls now so we can get this passed.

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The House voted and passed H.R. 6497, while the Senate moves to a vote on whether to proceed to its own version of the DREAM Act, S. 3992. The senate will be a much more difficult task. The 216-198 vote, mostly on partisan lines, sends the DREAM Act to the Senate, where it was uncertain if supporters had the votes to overcome a certain Republican filibuster against it.

Both bills are strong pieces of legislation which would allow the 65,000 young undocumented students who graduate high school each year to start a pathway to citizenship after completing two years of college or military service. Organizations and individuals from across the country-from California to Kentucky, Oklahoma to New York-have joined together to support the DREAM Act. Thousands of undocumented students and their supportive classmates and teachers have met with their members of Congress, sent letters, held rallies, and staged hunger strikes and other activities in pursuit of making the DREAM Act a reality.

While both bills are similar to the original versions of the DREAM Act introduced in each chamber, they differ in key ways. Under the Senate version of the DREAM Act, applicants are treated as conditional nonimmigrants for ten years before being allowed to apply for permanent residence.

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Here is a quick update from the field. Processing waiver applications is the main work of the USCIS office at the consulate. Naturally, the consulate makes an initial determination of inadmissibility. If the applicant is eligible to submit a waiver, he or she is instructed to phone the Teletech Call Center beginning the following day to schedule a time and date for dropping off the waiver application.

As of early November, applicants who phone the Call Center are receiving appointments in early January, indicating a two-month wait (until recently the consulate was averaging 4-6 week delay). Due to a transition to a new contract, the Call Center is currently unable to provide “on the spot” confirmation of the appointment, but the agents will take down the caller’s information and respond via email or phone when an appointment is available.

On that date, the applicant will be briefly questioned by a consular employee, pay the waiver application fee, and drop off the packet. The waiver application and supporting documents will be passed directly to the USCIS officer, except for medical waivers, which need CDC notice and sign-off by qualifying relative.

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A couple of years ago BusinessWeek published an article about Visas and the Challenges of graduates facing the job market. This post is a quick summary for our readers.

For foreign MBAs, PHD’s and other students in the US, most commonly heard immigration term on school campuses these days is H-1B, as in H1-B visa, for graduates who want to continue to work in the U.S. after finishing school. It refers to the visa that applies to a non-U.S. citizen who will be temporarily employed in a specialty occupation, according to the U.S. Citizenship & Immigration Services (USCIS). There used to be shortage of these visas, which is why international MBA students often start asking about these visas midway through their programs. Now, as a result of the recession, the problem is finding work and not always the shortage of the visas.

But the H-1B is only the beginning of the alphabet soup of forms and work visas that a business-school student can encounter. Indeed, a non-U.S. student needs to acquire a whole new vocabulary that most Americans do not speak. Here is a starter glossary:

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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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