Author: demo_admin

As published in Immigration Daily on May 15,2018

One of the purposes of writing on immigration issues has been trying to get others to see in order to improve immigration law for the sake of justice and humanity. Unfortunately that does not seem to be happening now or in the near future as the levers of power rest with a President, his immigration cohorts (Attorney General Jeff Sessions and senior White House advisor Stephen Miller), and a compliant Republican Party who blatantly disregard the sweeping benefits of immigrants while scourging them by anecdotal examples as deficits and threats to the nation. Anything that does not comport with Mr. Trump’s anti-immigration views is swept under as “fake news” even as he fails to read materials on presidential briefings and instead spends his time watching “Fox and Friends” and other right-wing TV shows to gain ammunition for his rants. He has not told the truth over 3000 times since taking office, twisting reality to his needs.

Can anyone expect a voice of reason in the government to intervene in the field of immigration? No, especially when Mr. Trump’s hand-picked DHS Secretary Kirstjen Nielsen (who controls CBP, U.S.C.I.S., and ICE and has heavily worked to implement the Trump agenda) is lambasted to the point of almost resigning for failing to stop illegal border crossings.

So this article is written as more of a warning to readers of recent and future changes in immigration and how they may affect you. 

1. F, M, J students to be subject to the 3 and 10 year bars for overstay if the violation occurs on August 9, 2018, or after. 

U.S.C.I.S. policy in the past had always been considerate of foreign students, and so those who violated their statuses did not acquire unlawful presence for purposes of the bars unless DHS made a formal denial of an application or a formal finding of violation of status while adjudicating a request for another immigration benefit, or upon receiving a negative decision by an immigration judge. Under a policy memorandum of May 10, 2018, “Accrual of Unlawful Presence and F, J, and M Non-Immigrants”, with a comment period to June 11, 2018, those individuals violating status on or after August 9, 2018, will begin accruing unlawful status on the earliest of the following dates: 

• The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
• the day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
•  the day after the I-94 expires; or
• the day after an immigration judge, or in certain cases, the Board of Immigration Appeals, orders them excluded, deported, or removed (whether or not the decision is appealed). 
  
  

The above move shows the increasingly hostile attitude of the Trump administration towards higher education and perhaps reflects the fact that Mr. Trump does not expect much of his support to come from the educated class. Still the lack of compassion towards those who spend many thousands of dollars to help support the country’s colleges and universities continues to amaze, especially as an unintended violation will likely put the student or scholar on the horns of a dilemma in attempting a reinstatement application as U.S.C.I.S. normally takes more than 6 months to decide such with the result being that choosing to stay instead of leaving before 180 days would subject the student to a 3 year bar in reentering the country if the reinstatement request is denied. (An unlawful presence violation of 180 days subjects an individual to a 3 year bar and one of 1 year to a 10 year bar).

2. Applications for change of status to F-1 student bring into question whether U.S.C.I.S. has revised policy without formall y notifying anyone. 

In the seemingly distant past (before April 2017), individuals applying for change of status to F-1 student only had to file the application with an I-20 student acceptance form in which the schooling would begin within 30 days of the applicant’s status expiration date. Then they could just wait until U.S.C.I.S. reached the case for adjudication no matter how long that event took to occur. In April 2017, U.S.C.I.S. made a distinction among visa categories so that those on B-1 or B-2 statuses attempting to change to F-1 had to maintain their statuses until the date that U.S.C.I.S. made the adjudication, leading many individuals to file at least one application to extend status even after filing for the change of status. Now U.S.C.I.S.’s current website information does not distinguish between B-1 and B-2 and other visas statuses, only stating that, “If your current nonimmigrant status will expire more than 30 days before your F-1 or M-1 program start date and you wish to remain in the United States until your start date, you must find a way to obtain status all the way up to the date that is 30 days before your program start date (“bridge the gap”)… Note that because of processing times, your F-1 or M-1 program start date may be deferred to the following academic term or semester because U.S.C.I.S. did not make a decision on your form I-539 change of status application before your originally intended F-1 or M-1 program start date. In that instance, you will need to obtain status all the way up to the date which is 30 days before your new program start date. If you had already filed an I-539 to bridge the original gap, you may need to file another I-539 to bridge the new gap.” There are already reports of denials of applications for persons in statuses other than B-1 or B-2 and the American Immigration Lawyers Association has put out a call for members to send in examples. The author notes that the U.S.C.I.S. processing times last week for this category were only up to applications submitted in May 2017, one year ago, but on the site being accessed again on 5/12/18, the California and National Benefits service centers were supposedly processing these applications between 2.5 –4.5 months while Vermont was between 9 – 12 months. The inanity of forcing visa applicants for change of status to file additional applications to maintain status only because of the inability of U.S.C.I.S. to timely reach cases for adjudication cannot be overstated.

3. Many green cards, reentry permits, and employment authorization cards will soon not be received. 

As of April 30, 2018, U.S.C.I.S. has implemented a new policy that the above secure documents among others will only be delivered where there is an authorized signature. The agency is phasing in the use of the U. S. Postal Services Signature Confirmation Restricted Delivery service where applicants must either present identification to sign for their documents or designate an agent to sign on their behalf by completing the Postal Service’s PS form 3801, Standing Delivery Order (PDF) or PS form 3801-A, Agreement by a Hotel, Apartment House, or the like (PDF). Applicants can sign up for USPS Informed Delivery to receive delivery status notifications, and also have the option to arrange for pickup at a post office at a convenient time and date by going to the USPS website and selecting “hold for pickup.” U.S.C.I.S. says that the first phase will affect documents that need to be re-mailed because they have been returned as non-deliverable. The problem is that whereas U.S.C.I.S. wishes for more security here, many immigrants are not familiar with computers, new processes, or dealing with postal authorities. This forced secure document delivery method will cause many people inconvenience and the loss of their secure documents with no assurance that it will produce any better result. The author notes that U.S.C.I.S. in early April notified the public that beginning on April 2, it would destroy the above-mentioned secure documents returned as undeliverable by USPS after 60 business days if it was not contacted by the document’s intended recipient to provide the correct address. Is there a justification for the change other than anecdotal evidence that secure documents are being mis-delivered? Does U.S.C.I.S. have statistics on the number that have gone into the wrong hands? If not, why implement a more complex procedure for immigrants to obtain their documents?

4. U.S.C.I.S. Director’s letter to Senator Charles Grassley(R-IA) on the agency’s recent completed efforts and upcoming agenda promising a litany of crackdowns. 

In an April 4, 2018, letter to Sen. Grassley, L. Francis Cissna, U.S.C.I.S. Director, wrote of the different areas on which U.S.C.I.S. was working to implement the Trump “Buy American and Hire American” Executive Order: 

• That U.S.C.I.S. had recently published a policy memorandum clarifying existing regulatory requirements relating to H-1B petitions filed for workers to be employed at one or more third-party worksites including that employers of such must provide itineraries and that U.S.C.I.S. may request detailed documentation, including contracts relating to the employment or assignment of such workers, to ensure that a legitimate employer-employee relationship will be maintained and that the beneficiary will be performing H-1B specialty occupation work for the entire time requested in the petition.
• That when H-1B beneficiaries are placed at third-party worksites, the petitioners must demonstrate that they have specific and non-speculative qualifying assignments for the entire time requested, and while an H-1B petition may be approved for up to 3 years, U.S.C.I.S. may generally limit the approval period to the length of time during which the beneficiary will be in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.
• That U.S.C.I.S. in addition to having dedicated email addresses to make it easier for the public to report suspected fraud and abuse, is initiating a more targeted approach in its H-1B employer site visit program to help it determine among other things whether H-1B dependent employers are actually paying their workers the statutorily required salary to qualify for an exemption from recruitment attestation requirements.
• That administrative site visits are being expanded to include L-1B petitions for specialized knowledge workers and are initially focused on beneficiaries who will primarily work off-site in another company or organization’s location to ensure that they are complying with the requirements from the L-1 Visa Reform Act of 2004.
• That U.S.C.I.S. has published a policy memorandum instructing officers to apply the same level of scrutiny to both initial petitions and extension requests for non-immigrant visa categories.
• That its regulatory plans include two regulations to improve the H-1B program – the first to establish an electronic registration program for petitions subject to numerical limits for the H-1B nonimmigrant classification, and the second to revise the definition of specialty occupation to increase focus on obtaining the best and brightest foreign nationals via the H-1B program, and to revise the definition of employment and employer-employee relationship to better protect U. S. workers in wages.
• That DHS will propose additional requirements designed to ensure workers pay appropriate wages to H-1B visa holders.
• That it is drafting a proposed rule to remove the International Entrepreneur Rule which is currently in effect due to a court order that invalidated the attempt by U.S.C.I.S. to delay it, but noting that at this time, U.S.C.I.S. had not approved any parole requests under the entrepreneur final rule.

5. Memorandum of understanding (MOU) between U.S.C.I.S. and Department of Justice set to target companies employing non-immigrants . 

Both agencies announced on May 11, 2018, a memorandum of understanding to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States. The Department of Justice enforcement component will be the Immigrant and Employee Rights Section (IER) and U.S.C.I.S.’s the Fraud Detection and National Security Directorate (FDNS). In the past, IER’s assignment was immigrant positive to protect immigrants from discrimination by U. S. employers. That was all changed with the “Buy American Hire American” Executive Order which turned the mandate to protecting American workers from being replaced by foreign workers, such act being seen as a form of discrimination against Americans. FDNS’s assignment has always been to make site visits (mainly on nonimmigrant employment cases) to ensure that all the conditions of employment as promised in the petitions are met. In the MOU, a double whammy will now potentially be placed on employers as either agency will be referring companies to the other agency where one of them finds violations. In the understanding’s section on specific referrals, the MOU states that, “If FDNS becomes aware of information relating to suspected employer violations of the statutes and regulations that IER enforces governing the potential misuse of employment-based immigrant and nonimmigrant visa programs to discriminate against available and qualified U. S. workers in favor of employment-based visa workers, FDNS will promptly refer that information to IER when FDNS’s policies and procedures do not require otherwise.” The IER language is likewise that “If IER becomes aware of information relating to suspected employer violations of statutes and regulations governing employment-based immigrant and nonimmigrant visa programs that U.S.C.I.S. enforces, IER will promptly share that information with FDNS… and/or encourage the individual with such information to promptly contact FDNS….” 

Hopefully an understanding of the above 5 topics will allow readers a chance to prepare for events that have already happened and those about to be implemented in the immigration arena. I have chosen the above topics as they are the ones less spoken of, but of course who can ignore the Trump administration’s attempt to militarize the border, separate families and charge the parents who bring in children with felonies, revoke the status of Dreamers and hold their fate hostage to ram through Mr. Trump’s entire anti-immigration agenda, shamefully end Temporary Protected Status (TPS) programs for over 300,000 persons some of whom will face certain death upon return to their home countries, and attempt through Attorney General Sessions to force immigration courts to become more restrictive by cutting down their independence and undoing recognized precedent immigration decisions favoring immigrants by fiat through certifying long decided cases to himself.

 

As published in the Immigration Daily on April 12, 2018.

EB-5 investment into the U. S. by the China-born in the past has proven a boom to U. S. cash starved projects, investors, immigration lawyers, and Chinese agents. Through the practice of gerrymandering almost disconnected parts of municipalities, much of the risk-taking which was supposed to be a component of the law has been removed for investors giving $500,000 (instead of the regular $1 million) for projects in targeted employment areas (TEA’s) for which the unemployment rate is supposed to be at least 150% of the national average. TEA projects abound in the richest areas, Midtown Manhattan being a prime example. However, there is a supreme party killer which has come into being because of the very success of the marketing effort to Chinese nationals – exhaustion of visa numbers as Mainlanders have taken up 85% or more of the world’s EB-5 quota over the years to the point that there is now a tremendous waiting time before China-born can expect to receive a conditional green card from the EB-5 category. U.S.C.I.S.’s Ombudsman estimated in its 2017 annual report that the waiting time for Chinese nationals beginning an investment today could be 10 years or even longer. Currently the EB-5 China availability date has been stuck at July 22, 2014 since October 2017.

The waiting time is intolerable to many investors as it means that, not only do they have to watch their case for a long period of time, but also that their children may age out (over the age of 21) and not be eligible to immigrate at the time that the principal investor’s priority date is reached. Under the Child Status Protection Act (CSPA), a child’s age can only be “frozen” where the child is under the age of 21 (with credit for the time that the I-526 Immigrant Petition by Alien Entrepreneur pended with U.S.C.I.S.) when that priority date is reached and becomes available on the State Department visa bulletin. Even with the reported softening stance of U.S.C.I.S. allowing children to be the principal investors, how young would a child have to be to ensure his or her immigration vis-à-vis the immigration requirement that the investor be legally capable of signing a binding contract?

The backlog situation does not have a solution at present, and may not be resolved as many members of Congress have been put off by the perceived abuses of the program. A fix was not seriously attempted as part of the Omnibus Spending Act which extended the status quo until September 30, 2018.

For many well-to-do Chinese nationals who own or are majority shareholders of companies in China, use of the EB-1C immigration category for multinational executives and managers could be a viable alternative allowing U. S. immigration within 1-2 years. The requirements are that the China company be of reasonable size, and that the U. S. company be more than a tiny company, e.g. China company 100+ employees and U. S. company 10-20 employees. The U. S. company could be directly acquired by either the China company or the majority shareholder. (Beginning a new company from scratch in the U. S. rather than acquiring an existing company would add time and difficulty to the case). Such would satisfy the requirement that the companies be “affiliated.” The person to immigrate would also have to show working experience with the China company as an executive or manager of at least one year out of the past three before filing the petition. As a multinational executive or manager transferring between the China company and the U. S. company, the law would not require advance clearance by the Department of Labor for immigration, and a petition could be directly submitted by the U. S. company for the individual.

Two questions that come up in this context are whether an L-1 visa (nonimmigrant intracompany transferee visa) approval is required before embarking on the immigrant visa petition, and whether this path which involves acquiring a U. S. company is too difficult. The short answer to the first question is that an L-1 approval notice, while helpful, is not a requirement to beginning a permanent residence application for a multinational executive or manager. For the second, while EB-5 investments are quite easy to get into (930 regional investment centers as of April 2, 2018) with regional center heads using tremendous advertising and middlemen to push and shove potential investors to their projects, effort on the part of the individual or China company will generally be required in choosing this path. Companies that are already doing business in the United States could use their network of customers and suppliers to assist, or go through business agencies, advertisements in trade journals or newspapers, or organizations which attempt to put business buyers and sellers together, etc. In addition, this would not have to be a lone effort as the individual or China company could band together with another China company wishing to do the same thing since the law contemplates investment percentage as low as 50% for a recognized “affiliation.”

The EB-1C category is part of the first employment-based preference (EB-1) which is traditionally open for China-born as well as the rest of the world except that in the past two years, the category backlogged from June-September (FY 2016 and FY 2017) for China before springing open again in October. In 2018, the category just backlogged in April, but Charlie Oppenheim, the Chief of the State Department Visa Control and Reporting Division, was unclear as to whether high demand for EB-1 visas would be ongoing, but if not, that China EB-1 final action dates could be advanced late in the summer.

Other advantages of the EB-1C category are not only the faster immigration that will generally include all members of the family and even children who have reached the age of 20 prior to the start of the case, but also the ability of others to work and ultimately immigrate through the same U. S. company, lesser attention to source of funds, on how the funds are transmitted to this country, the possible lesser required amount of investment, and that this form of immigration does not involve a conditional green card. It should be remarked here that as the individual would be coming over as manager or executive, he or she would be expected to work in the U. S. company in that capacity rather than just being a passive investor. But even here, an interested individual could use the same tactic employed in many EB-5 cases of having the spouse be the principal applicant, the only difference being that the spouse would also have to have the qualifying experience of being a manager or executive in the China company for at least one out of the past three years prior to the filing.

The connection between the two companies could eventually allow other managers, executives, and persons of specialized knowledge with qualifying experience in the China company to enter the U. S. quickly on nonimmigrant L-1 intracompany transferee visas to work for the U. S. enterprise. If the U. S. company later wished to petition for their permanent residences, managers and executives could qualify without needing to go through the Department of Labor for PERM labor certification. Those under specialized knowledge would have to obtain a labor certification and qualify under another category, EB-2 for advanced degrees or for persons of exceptional ability, or EB-3 for professionals with a baccalaureate degree or 2 years of required skilled work experience. For the month of April 2018, immigrant visa availability under EB-2 is open to China-born who began their labor certification applications prior to August 1, 2014, and for those under EB-3 who began their papers prior to June 1, 2015. The projected time period for China EB-2 cases is approximately 3-5 years and for EB-3 3 years.

A prime concern in EB-5 investment cases to U.S.C.I.S. is the source of funds to ensure that they are actually from the investor and that the funds are not from illegal sources. Documenting the source of funds is usually a painstaking process. Although there is always a concern with ill-gotten gains, that is not of paramount concern in EB-1C cases, and the funds do not have to emanate from the individual, but can come directly from the China company. Also in EB-5 cases, there is great concern with the transfer of funds to show a paper trail of the funds from the investor in China to an account in the U. S. As the funds do not have to directly come from the individual in an EB-1C multinational executive/manager case, the paper trail could be directly from the company in China through banking institutions to an account in the U. S. or even to the owners of the company to be acquired.

There is no fixed amount of investment in EB-1C as opposed to EB-5 cases, and the expended amount for capitalization can be less. In the scenario of the individual or China company acquiring a U. S. company, many factors are considered in the final price such as the customer base, goodwill, company debt, receivables, inventory, willingness or need to quickly sell, etc. Also the individual or China company would not have to acquire the entire company, but just enough to have majority control. The individual or China company could leave the present U. S. owners with minority shares or even have a joint venture with a partner or partners as long as the individual or China company winds up with at least 50% of the U. S. company.

Finally, once the priority date is reached for an EB-5 case and the individual approved for residence status, he or she is assigned conditional residence for a two-year period of time, and must then file an I-829 Petition by Entrepreneur to Remove Conditions (present fee $3835) to remove the conditional basis of the residence status. The I-829 must show that all conditions promised in the I-526 approval were met. That is not a case for an EB-1C approval which is permanent and does not involve a further application and/or interview in the future.

With the uncertainty and unfavorable outlook of many in Congress surrounding the EB-5 program raising a huge question as to whether the China backlog situation will be remedied, it might well be in the interest of those who fit the above bill to look into the possibilities of EB-1C immigration.