Background

Processing an EB-5 green card petition can take a very long time. The California Service Center currently reports that they are adjudicating cases filed in March 2012. Anecdotal reports suggest that these lengthy processing times also apply to I-924s (Application for a Regional Center) and I-829s (Petition by Entrepreneur to Remove . . . → Read More: Leahy’s EB-5 Amendment to Immigration Reform Bill + Efforts of new EB-5 office = New streamlined EB-5 processing?]]> By Bernard P. Wolfsdorf, Esq. & Minjie Xu, Esq.

Background

Processing an EB-5 green card petition can take a very long time. The California Service Center currently reports that they are adjudicating cases filed in March 2012. Anecdotal reports suggest that these lengthy processing times also apply to I-924s (Application for a Regional Center) and I-829s (Petition by Entrepreneur to Remove conditions). Consequently, EB-5 stakeholders are anxious to see some improvement in the EB-5 adjudications arena.

Leahy’s EB-5 Amendment to Immigration Reform Bill

In April, the U.S. Senate released the comprehensive immigration reform bill (known by some as BESSIE MAE). As initially proposed, the bill failed to provide any specific enhancement to the EB-5 program except to make the oft-renewed program permanent. However, during the bill’s markup in the Judiciary Committee, on May 16, Senator Patrick Leahy (D-VT) offered an amendment designed to make significant improvements to the EB-5 Immigrant Investor Regional Center program.  This amendment was unanimously approved by the Senate Judiciary Committee.  

One of the amendment’s improvements is the ability of EB-5 petitioners to elect Premium Processing (15 day adjudication guarantee) for I-526 petitions for preapproved regional center investments. Functionally, the amendment would allow a regional center to file a petition with USCIS to preapprove a particular investment project before an individual petitioner would file his/her I-526 petition. In order to be preapproved, regional centers would be required to provide: 1) a business plan for a specific capital investment project; 2) investment offering documents; and 3) a credible economic analysis regarding job creation.

This proposed amendment is similar to the current I-924 Amendment petition seeking a preliminary determination of EB-5 compliance for documentation provided as an exemplar Form I-526. (However, currently an I-924 Amendment petition takes a very long time to be adjudicated.) The amendment provides that upon preapproval of the regional center’s business plan, individual Investors may request Premium Processing of their individual I-526 petition.

However, the amendment also proposes Department of Commerce collaboration with USCIS in the adjudication process, which proponents of a streamlined process believe may introduce further delays. Specifically, the amendment provides that the Secretary of Commerce, upon the request of USCIS, shall provide consultation assistance for determining whether a proposed regional center should be designated, terminated, or subject to other adjudicative action, and whether the EB-5 petition has met the job creation requirement.

The amendment further requires that regional centers certify their compliance with securities laws and may foreshadow the Securities and Exchange Commission’s collaboration on regional center adjudication. As an EB-5 offering involves purchase and sale of securities, legal compliance certification could create civil and/or criminal liability for regional centers who run afoul of U.S. securities laws as well as imperil the green cards of individual investors in such programs.

Efforts of new EB-5 office

USCIS opened its new EB-5 office on May 6, 2013 in Washington DC, and has begun to move cases from the California to the DC office.  Dan Renaud—the new EB-5 program chief—announced that the new office, consisting of a variety of disciplines, is very interested in streamlining EB-5 adjudications and in looking to allow applicants to use the new Electronic Immigration System (ELIS) for I-526 petitions. Under the ELIS, individual investors would be able to set up an online account, electronically submit the I-526 form, pay the filing fee, and later access real-time information about their case status. After they open their account, they may submit the supporting evidence for the petition using their ELIS account, and indicate the regional center project which they invested in. In terms of the project related documents, USCIS would create a “library” where each regional center can upload their project documents. This will not only significantly reduce the paperwork the attorney and USCIS need to process, but also enhance the consistency for dozens or hundreds of petitions filed for the same project. Attorneys and environmentalists will be very happy as we will no longer have to print out literally pounds of exactly the same paperwork for each petition that is part of the same project.

Update: On May 23, 2013, USCIS will hold an engagement regarding the new ELIS system for EB-5 applications. The EB-5 online submission is coming!

Conclusion

We praise these proposed efforts on faster processing of EB-5 petitions. Surprisingly, both the legislation and USCIS have discussed dividing the I-526 adjudication into two parts, the project and the investor, each will be handled by economists or adjudicators respectively. This should be a new and positive trend for EB-5 adjudication, and the ELIS system will definitely facilitate this new process. However, the involvement of the Department of Commerce and possibly the SEC, although intended to ensure the compliance of laws, may adversely affect any gains to streamlined EB-5 processing. 

On May 21, the Senate Judiciary Committee referred the comprehensive immigration reform bill (the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 or “BSEIOMA”) out of committee on a 13-5 vote.  The bill will now move to the full Senate where additional amendments may be considered and where a full vote . . . → Read More: Senate Bill Referred Out of Committee Amid Hard-Fought Victories for Some and Heartbreaking Losses for Others]]> By Adam Francoeur, Esq.

On May 21, the Senate Judiciary Committee referred the comprehensive immigration reform bill (the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 or “BSEIOMA”) out of committee on a 13-5 vote.  The bill will now move to the full Senate where additional amendments may be considered and where a full vote by the Senate is expected.

The bill’s key provisions providing for increased border security,  a roadmap to legalization for the estimated 11 million undocumented individuals in the U.S., and reform of the outmoded immigrant and nonimmigrant visa systems remained mostly intact.  However, in what amounts to a sore spot for Democrats and an all-out victory for Republicans, the push for same-sex relationship recognition in BSEOIMA was sacrificed on the altar of bipartisanship and opponents of marriage equality got their pound of flesh.

The other major change to the bill as a result of the Judiciary Committee process was the inclusion of the Hatch amendment for science, technology, engineering and mathematics-based “STEM” H-1B visas.  This amendment increased the annual H-1B cap from a floor of 110,000 to 115,000 per year, exempts STEM field H-1B petitioners from the requirement that they first offer the position to an equally qualified available U.S. worker, and creates a fund to improve U.S. education in the STEM fields.

And now momentum shifts to the full Senate and the more divided House of Representatives as perhaps the best chance to reform our immigration system in nearly 30 years makes its way through the difficult legislative process.

By Adam Francoeur, Esq.

Make no mistake about it—the H-1B program is under siege. The Senate immigration reform bill introduced in April 2013 (the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 or “BSEIOMA”) and referred out of the Senate Judiciary Committee on May 21, 2013, proposes a series of potentially devastating reforms to the . . . → Read More: For Universities and Research Institutions, H-1B Program To Remain Mostly the Same Under New Senate Legislation]]>

By Adam Francoeur, Esq.

Make no mistake about it—the H-1B program is under siege. The Senate immigration reform bill introduced in April 2013 (the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 or “BSEIOMA”) and referred out of the Senate Judiciary Committee on May 21, 2013, proposes a series of potentially devastating reforms to the H-1B program including recruitment requirements, additional fees, and new wage requirements for H-1B employees.  And while the bill offers a substantially higher number of H-1B visas for each fiscal year, they would be more expensive for employers and subject to heavier regulatory burdens for approval. However, Section 4104 of BSEOIMA would exempt “educational or research employer[s]” from many of the harshest proposed changes. Below are some of the most important considerations for these cap-exempt employers under the new legislation:

THE MAJOR CHANGES EXPLAINED
PREVAILING WAGE LEVELS
In what amounts to the biggest change in the prevailing wage requirement system for institutions of higher education and nonprofit research institutions, the 4-tier prevailing wage system would be restricted to ONLY teaching and research positions. Wages to employees in non-teaching/research positions at these institutions, such as such as nurses, programmer analysts, and administrative personnel, would be paid under the newly proposed 3-tier prevailing wage system.  This is likely to lead to increased hiring costs for these employees, many of whom are crucial to the infrastructure and proper functioning of these institutions.

RECRUITMENT CHANGES
Under BSEOIMA, ALL employers, regardless of designation as an institution of higher education or nonprofit research institution, would be required to demonstrate that no U.S. worker is available for the H-1B position by:

1-     Posting the position on a website maintained by the U.S. Security of Labor for at least 30 days (the posting would need to include the process for applying for the position, the title and description of the position, including the location where the work will be performed, the name, city, and zip code of the employer, as well as the wage range and terms and conditions of employment; the minimum education, training, experience, and other requirements for the position); and

2-     Certifying that no U.S. worker has been displaced or will be displaced within 90 days of filing of the H-1B petition (required only if layoffs or job decreases by the same employer in the same job zone within one year period of labor condition application filing).

REMAINS UNCHANGED
CAP EXEMPTIONS
Cap exemptions for educational, nonprofit, and/or research employers would remain exempt under the current system.  The bill would designate cap exempt status for entities defined as “a nonprofit institution of higher education or a nonprofit research organization described in Section 501(c)(3) of the Internal Revenue Service of 1986 and exempt from taxation under 501(a) of that Code.”

“DEPENDENT” DESIGNATION EXEMPTION
In what appears to be an effort to target so-called H-1B “job shops,” BSEOIMA imposes many of its harshest proposals on employers designated H-1B “dependent.”  However, institutions of higher education and nonprofit research entities, as well as employers whose primary line of business is healthcare and who petition for a physician, nurse, or physical therapist, are excluded from such “dependent” designation.  Thus, many of the proposed bill’s harshest changes will not reach universities and nonprofit research entities, or employers who employ healthcare professionals.

In summation, while there is a great deal of scary information out there about proposed changes to the H-1B program, if you are a human resources official at a university nonprofit or healthcare-related research institution wondering how these proposed changes may affect your hiring and recruitment practices, breathe a sigh of relief.  Many of the proposed changes to the H-1B visa program do not impact you, and those that do are relatively modest, especially when compared to the vast majority of other H-1B employers.  For more information and to see how you or your university may be affected, contact us directly.

On May 6, 2013 U.S. Citizenship and Immigration Services (USCIS) opened its new Washington, D.C. EB-5 Program Office, staffed by new GS-14 high-level economists.  These economists will adjudicate all EB-5 filings, starting with new I-924 applications to register Regional Centers.  The current Director of the Vermont Service Center, Mr. Daniel Renaud, has . . . → Read More: EB-5 Program Updates: USCIS Opens New EB-5 Program Office in Washington; New EB-5 Guidance Memo Expected]]> By: Bernard P. Wolfsdorf, Esq.

On May 6, 2013 U.S. Citizenship and Immigration Services (USCIS) opened its new Washington, D.C. EB-5 Program Office, staffed by new GS-14 high-level economists.  These economists will adjudicate all EB-5 filings, starting with new I-924 applications to register Regional Centers.  The current Director of the Vermont Service Center, Mr. Daniel Renaud, has accepted the position of the Acting EB-5 Program Chief.  His Deputy, Mr. Robert Cox, will be Acting EB-5 Deputy Chief.

Presently, adjudications for new I-924 applications and I-526 petitions are taking approximately 18 months and 12 months, respectively.  Because the new EB-5 office will be primarily staffed by new hires, and because it is estimated that training an EB-5 adjudicator can take several months, we do not expect any significant improvement in adjudication times over the next few months of concurrent adjudications at both the California Service Center of USCIS  and the new Washington office.  Nonetheless, a few months thereafter we expect to see considerable improvement in EB-5 adjudication times. On the positive side we did get an EB-5 Regional Center case approved in just three weeks today.

On the positive side, several new EB-5 endeavors are being implemented by USCIS, including:

• EB-5 filings online through ELIS should be implemented on a voluntary basis by the Summer of 2013; and
• USCIS has made a commitment to implement its deference policy, and has indicated that for any situation in which deference is not applied, the project developer and/or Regional Center will be provided an opportunity to present evidence in person and discuss the decision.  This is a particularity valuable development as USCIS has been requesting an inordinate amount of verifiable detail on hypothetical projects which, by definition, are hypothetical, thus creating a “Catch-22” in which one is being asked to provide verifiable details on a hypothetical situation.

Most importantly, a “new” USCIS Guidance Memo is likely to be published within the next few months.  The Memo is expected to include several key changes to EB-5 adjudications, including:

• Confirmation that EB-5 capital can replace bridge financing provided the deal documents show EB-5 money was anticipated from the beginning, or, if the capital that was originally expected became unavailable, and EB-5 capital is now needed to replace the bridge financing.  In both situations USCIS is likely to find that there is a nexus between the capital invested and the jobs that are created;
• Clarification that Regional Center business plans need not meet all of the requirements outlined in Matter of Ho in every case.  At current, USCIS demands that every Regional Center project’s business plan meet every business plan requirement as listed in Matter of Ho; and
• Clarification of USCIS policies concerning the use of precise NAICS codes in regards to job creation.  At current, USCIS wants to see a “direct nexus” and proof that the new jobs will be created within the specific NAICS code of the project.

In addition to these positive developments, Section 2319 of the proposed Border Security, Economic Opportunity, and Immigration Modernization Act, S.744 (2013) (“BSEOIMA”) would make the Regional Center program permanent, and Section 2307 would remove derivatives from the annual limit of 10,000 EB-5 immigrant visas, thereby more than doubling the number of visas available to principal investors.  In addition, Senator Leahy’s office has introduced new amendments to the legislation that significantly improve the program.  It is likely the Senate Judiciary Committee will vote on BSEOIMA by the end of May, and send it for a full Senate vote by Summer, 2013, so there is indeed much to look forward to in the coming months.

This year the Department of State has notified approximately 125,000 “lucky” winners that they are eligible to compete for 50,000 Diversity Visa (“DV”) lottery green cards.  Sadly, roughly 80,000 “winners” will not receive green cards before this Cinderella-like program expires on September 30, 2014 and your green card . . . → Read More: You Won the DV Lottery, Now What?! Now Turn Your Lottery Number Into A Green Card: A Lawyer’s Guide to Navigating The DV Lottery]]> By Bernard P. Wolfsdorf, Esq. and Adam Francoeur, Esq.

This year the Department of State has notified approximately 125,000 “lucky” winners that they are eligible to compete for 50,000 Diversity Visa (“DV”) lottery green cards.  Sadly, roughly 80,000 “winners” will not receive green cards before this Cinderella-like program expires on September 30, 2014 and your green card goes “poof”—up in smoke.  While a lawyer may not have been necessary to apply for the DV lottery, the government is expecting you to get tripped up before the finish line.  Consequently, you will want to carefully consider getting a lawyer to navigate the regulatory requirements and more technical aspects of ensuring that the lottery number you received actually results in a green card.

In fact, the biggest challenge faced by the lucky few who were selected through the annual lottery is ensuring that they are compliant with the DV program before it expires on September 30, 2014.  Here is a brief overview of some of the challenges that lottery winners may face:

The Numbers Game
Lottery “winners” are assigned a rank order number. Of the approximately 125,000 “winners” who have been notified of their selection by the Department of State, only 50,000 will actually qualify for green cards through the visa lottery program.  A knowledgeable attorney can optimize your prospects of successfully processing your green card petition. Since DV lottery visas are issued on a first-come-first-serve basis based on the winner’s rank serial number, timing is EVERYTHING!  Submitting the correct documentation and expeditiously filing is critical to achieving success.

Complying with Technicalities
The State Department mandates strict compliance with the technical rules and regulations.  Strict enforcement of the requirement for entering correct date of birth or spelling of name results in many winners being disqualified every year.

Work Related Eligibility
DV lottery winners who do not have high school diplomas can meet the work requirements by proving they have two years of work experience in an occupation which requires at least two years of education, training or experience within the past five years. However, the State Department and Department of Labor take different positions on the O*NET job zone classification necessary to meet this requirement as well as the Standard Vocational Preparation time for qualifying work experience.

Accordingly, selecting the right processing procedure and carefully documenting and categorizing work experience in accordance with the Department of State and the Department of Labor requirements are crucial to securing a green card. Sadly, persons without high school diplomas are required to prove they have almost professional level work experience, which is counterintuitive as they almost certainly need high school diplomas to get this type of experience.

Deportability and Inadmissibility
DV lottery winners are subject to the complex and often confusing grounds of inadmissibility and deportability including: Public Charge, Visa Overstays, Visa Fraud for Immigrant Intent, and Criminal Grounds.  The public charge provisions require for example, that a family of three must reasonably show they can earn $19,530, or they can be refused on public charge grounds, and found inadmissible. Any one of these issues could mean the difference between getting a green card and finding yourself in removal proceedings, if you are in the U.S., or if you are abroad, you can be not only refused a green card, but also denied the ability to visit or study in the US on account of having expressed immigrant intent.  It is important you understand these issues if you wish to ensure success in completing your green card application, and so that you do not find yourself in removal proceedings.

In conclusion, lottery winners of the 2014 DV lottery face a host of challenges as a result of having “won” the green card lottery.  Failure to demonstrate eligibility in the areas outlined above could mean the difference between obtaining a green card and possible deportation. And while you may not have needed a lawyer to apply for the DV lottery, you could certainly benefit from having an expert help you navigate the path from selection to obtaining a green card. The statistics are clear: only 40% of those notified as “winners” actually get green cards. What happens to the other 60%? Some who do not maintain status and do not complete their application during the limited processing period are placed in deportation proceedings. For those applying from abroad, they are shocked to find their tourist visas denied, and they can also be denied student and trainee visas. If you seek a professional consultation, call us at 1-800-VISA-LAW, or email us to discuss your case.

Last week’s bombing in Boston has taken a political tone like countless other American tragedies before it. In addition to questions about potential terrorist influences abroad and the suspects’ motivations, the revelation that they were a lawful permanent resident and a naturalized U.S. citizen, respectively, allowed the attack to overwhelm the Senate’s . . . → Read More: As Tempers Flare and Progress Falters in the Senate, the Focus on Reform Shifts to the House]]> By Jessica L. Marks, Esq.

Last week’s bombing in Boston has taken a political tone like countless other American tragedies before it. In addition to questions about potential terrorist influences abroad and the suspects’ motivations, the revelation that they were a lawful permanent resident and a naturalized U.S. citizen, respectively, allowed the attack to overwhelm the Senate’s most recent hearing on comprehensive immigration reform. Monday’s hearing should have been focused on how to move its recently introduced reform bill forward. Instead, the hearing devolved into yelling and gavel-banging, with Democrats accusing Republicans of using the bombing to stall the bill’s progress and Republicans taking umbrage with this perceived mischaracterization of their suggestion that reform should not proceed until the alleged “failures of our immigration system” that made the bombing possible are fully understood.

Meanwhile, speculation has intensified over what we can expect from the House plan for immigration reform. Even before the attack in Boston, predictions were that the House would introduce a more conservative bill than the Senate’s, given that the Senate is controlled by Democrats while the House has a Republican majority. Rumors are that this will take the form of a longer timetable for citizenship, assuming one is offered, and an increase in the number of visas available to guest workers. Both issues have the potential to derail reform efforts, but the latter is particularly contentious given that discord over the guest worker program between the AFL-CIO and the U.S. Chamber of Commerce is considered a major factor in the failure to pass immigration reform in 2007.

Readers with GOP Representatives in the House are urged to contact them to stress the need for reform. Failure after coming this far is simply not an option, especially for Republicans:  by 2016, there will be even more Latino voters who will be more than happy to hand Republicans another resounding defeat in the race to the White House if they derail this progress. If the many benefits of immigration reform cannot convince Conservatives to prioritize its passage, perhaps a little self-interest can tip the scales.

This week the U.S. Senate, led by the so-called “gang of eight,” released a bill that has won the cautious approval of the White House and of advocates seeking an overhaul of the broken immigration system and, principally, a roadmap to citizenship for the nearly 11 million undocumented immigrants living in the U.S.  . . . → Read More: Comprehensive Immigration Reform: A Bill at Last!]]> By Adam Francoeur, Esq.

This week the U.S. Senate, led by the so-called “gang of eight,” released a bill that has won the cautious approval of the White House and of advocates seeking an overhaul of the broken immigration system and, principally, a roadmap to citizenship for the nearly 11 million undocumented immigrants living in the U.S.  The bill, released April 17, 2013, is some 800 pages long, so a helpful cliff-notes version of the bill was released.  It serves as the focal point of debate while policy wonks (yours truly) comb through the actual language of the bill.  Based on the accompanying talking points to the bill, so far, this much is clear:

Even More Border Security
In exchange for bipartisan support, many of the programs targeting the “normalization” of the undocumented population are predicated upon border security along the southern U.S. border.  Border security continues to be viewed through a prism of militarization, and the Senate proposal pitches border Governors, money (upwards of 6 billion), and drone technology, and other resources as the fix.

Once a border fencing plan and a long-term plan for border security are in place, the policy solutions targeted at the undocumented population may be activated.  These policy solutions propose a provisional and lengthy extension of legal status named “Registered Provisional Status” or “RPI” status, for undocumented individuals who pay extensive fines and back taxes;  have not committed any felonies, aggravated felonies, three misdemeanors, or any crimes involving moral turpitude; are not inadmissible for criminal, national security, public health, or other morality grounds; have not unlawfully voted in the U.S.; and do not have ANY convictions in foreign countries.

Undocumented Immigrants Must Wait a Very Long Time For A Green Card
Individuals in RPI status will receive work authorization, and once all backlogs have been cleared, and once the border has been certified secure, those in RPI status MAY be eligible for green cards upon payment of an additional fine, demonstrating continuous physical presence, demonstrating payment of taxes and an employment history, as well as a sufficient knowledge of Civics and English.  By imposing so long a wait and so many conditions on status, RPI status risks being sarcastically known to many as RIP status.

Available Immigrant Visas Favor Skilled-Workers
The traditional focal point of the U.S. immigration system has been family unity and most immigrant visas (those that lead to green cards) have been allotted to family members of U.S. citizens and permanent residents.  No longer.  Several of the family-based green card categories may be eliminated, including those provided for siblings.  The Senate bill proposes shrinking family-based immigration to spouses and children of U.S. citizens and permanent residents.  The bill would expand the definition of a U.S. citizen child to include individuals up to the age of 31, and rearrange preference categories based on whether the child is married or unmarried, and whether an intending immigrant’s spouse is a U.S. citizen or permanent resident.  Conspicuously, the definition of spouse continues to be restricted to opposite-sex individuals only.

Immigrant visas previously allotted for family-based immigration and from the diversity visa lottery program (which the proposal eliminates) would be re-allocated to skilled workers.  Individuals holding advanced degrees and those in the science, technology, engineering, and mathematics fields would pick up those available green cards if educated at a U.S. university in a master’s program or higher.  A new “start-up” visa for foreign entrepreneurs would also be created as a component of the Senate bill.

An additional system to allocate immigrant visas known as the “merit-based visa” would be available in the fifth year after the bill’s enactment and would assign number values to various prized attributes including education, employment, length of residence in the U.S., and “other considerations.”  The program envisions talented individuals and those with family-members in the U.S. to score highest, and thus qualify for the 120,000 visas allotted under the merit-based program.

Temporary Visas May Become Harder to Obtain
If passed, the H-1B visa program, the primary mechanism for skilled workers to come to the U.S. on a temporary (non-immigrant) basis, may become more onerous.  The bill targets so-called “job shops” or employment programs that hire a majority of foreign workers in the U.S.  By heavily penalizing these employment programs, the bill seeks to make H-1B visas more available to employers who hire a majority of U.S. workers and have a supplemental foreign work force.

The bill seeks to impose significant wage requirements on U.S. employers who wish to hire foreign workers, and force those employers to conduct recruitment to certify that no U.S. worker is available prior to hiring a foreign worker under the H-1B program.  These provisions will stifle innovation and deprive U.S. technology companies from hiring top international graduates of U.S. and other universities.

The bill would simultaneously create an unskilled visa category, the “W” visa, and regulate this visa in accordance with seasonal shifts in labor needs.  A new federal agency within the Department of Homeland Security, the Bureau of Immigration and Labor Market Research would be established to determine visa availability.

E-Verify For All
The Senate bill imposes mandatory E-Verify, through a phase-in period, for all employers seeking to hire foreign labor and would additionally require all non-citizen employees to obtain a “biometric work authorization card” or “biometric green card” to verify work eligibility.  The bill also proposes a complex photo matching verification system for ALL U.S. workers, including citizens, and a complex federal database for the storing and checking of these photos.  Allegedly, due process measures will be put in place so that legal workers are not prevented from working due to errors in the system or due to employer negligence or misconduct.

Politically, it is difficult to predict if this bill has the legs to pass, but with initial White House approval, and several key groups in Washington lining up in cautious support for the bill, it does appear that the bill’s passage is possible.  Numerous amendments are expected, so it is likely the final bill will look very different from this initial proposal.  Please check back for further updates on comprehensive immigration reform and webinars discussing the details of the current U.S. immigration system and proposed reforms.

In 1990 Congress created the employment-based fifth preference visa category (EB-5) category for foreigners seeking to invest in a business that will benefit the US economy and create or preserve at least 10 full-time jobs for qualified US workers. The amount required to invest is $1 million or $500,000 if the . . . → Read More: Much More than a Green Card for Sale, the EB-5 Program is Good for America!]]> By K. Lara Baharlo, Esq.

In 1990 Congress created the employment-based fifth preference visa category (EB-5) category for foreigners seeking to invest in a business that will benefit the US economy and create or preserve at least 10 full-time jobs for qualified US workers. The amount required to invest is $1 million or $500,000 if the investment is made in a high unemployment or rural area.

Some portray the typical EB-5 investor as an ultra-rich Chinese businessman in the market for a prestigious US green card. One restrictionist group describes EB-5 as a “tacky, troubled program that doesn’t do much for economic development.” Others say the EB-5 program “let[s] the guys in with the money and leave[s] the best and brightest waiting in line.” Meanwhile, participants in the program have their own criticisms, alleging that US Citizenship and Immigration Services (USCIS) is hostile toward EB-5 because it is viewed as a “green card for sale” program that denigrates the US immigration system, and is essentially bad for America.

A fundamental tenet of the EB-5 program is job creation, which is often minimized by program critics. There are economic citizenship programs available in some countries through which an individual can buy a passport for a price. However, the EB-5 program requires much more in that the investment required to put one on the path to permanent residency must, amongst other things, create jobs and be at risk. As such, the “green card for sale” concept is flawed and oversimplifies the EB-5 process.

According to statistics published by IIUSA, the industry trade association for the EB-5 Regional Center Program, almost 100,000 jobs have been created for US workers through the EB-5 program, with nearly $5 billion in capital infused into job creating enterprises in the United States since 2005. These figures should be viewed against an increasingly common backdrop of outsourcing and offshore back-office operations. Should we not welcome a program that creates US jobs and infuses a lagging economy with much needed capital? Already, the US must compete with investor programs that are more attractive due to better administration and less stringent requirements. Although some of these programs are more expensive, they can offer passive investment opportunities and shorter processing times with a higher degree of certainty that the investor will achieve his or her goal of residency.

Yes, the EB-5 program has endured fraud and abuse, but scams and deception are not unique to EB-5. Yes, some Regional Centers have failed to deliver on their promises, and investors and projects have suffered. However, the need for weeding out bad actors must be balanced by the need to provide a predictable and stable program for those with legitimate interests so that the United States can continue reaping the significant benefits of attracting foreign investors, particularly during this time of economic struggle and uncertainty.

America is no longer the overwhelmingly dominant global superpower, and cultural arrogance is not a platform from which to operate a congressionally mandated program. However, the United States is still considered the “land of opportunity” throughout the world and can provide excellent educational and quality of life options for high net worth individuals and their families. Although painful to admit, the US cannot afford to deter the billions in capital and hundreds of thousands of jobs that result from EB-5 investment.

Now is the time for the United States to encourage entrepreneurs, capital inflow and job creation. The EB-5 program is smart business, and the United States should be a world leader in attracting immigrant entrepreneurs who are ready and willing to take on the challenge of making it as investors and job creators in America.

This week the Gang of Eight Senators pushing for a way forward on immigration reform announced that they have come to an agreement concerning the fate of the estimated 11 million undocumented individuals in the United States.  No small feat, the envisioned plan would require individuals seeking status to register with The Department . . . → Read More: One Brick At A Time]]> By Adam Francoeur, Esq.

This week the Gang of Eight Senators pushing for a way forward on immigration reform announced that they have come to an agreement concerning the fate of the estimated 11 million undocumented individuals in the United States.  No small feat, the envisioned plan would require individuals seeking status to register with The Department of Homeland Security, file federal income taxes for their time in the United States, pay a fine, and have a clean criminal record.

With most other “talks” in Washington stalled, this announcement feels rather like a big deal.  Furthermore, because the agreement reached by the bipartisan group of Senators is substantially similar to the plan outlined earlier in the year by President Obama, this new announcement has the feel of progress over politics.

This week’s announcement did not, however, offer answers to  several key questions that have to potential to threaten this progress. We still don’t know how long individuals applying for status would have to wait before being eligible for green cards (the oft-repeated “get in line” paradox), whether border security is a predicate to the outlined pathway, and what to do with the nagging question of whether American workforce competitiveness is starved by endless visa processing and bureaucracy.

For now though, cautious optimism feels appropriate.  And let’s just hope that the release of the new Oz movie wasn’t a comment on our political leadership.

Just when you thought you knew everything there was to know about filling out an I-9, the eagerly anticipated (at least in our office) two-page Form I-9 was finally released on Friday (March 8, 2013) amid much fanfare and excitement (in our office)..  Although the old (02/02/09 and 08/07/09) versions of the form can . . . → Read More: Are Your I-9s in Order? Five Improvements to the New Form I-9 to Help Employers!]]> By Richard Yemm, Esq.

Just when you thought you knew everything there was to know about filling out an I-9, the eagerly anticipated (at least in our office) two-page Form I-9 was finally released on Friday (March 8, 2013) amid much fanfare and excitement (in our office)..  Although the old (02/02/09 and 08/07/09) versions of the form can still be used until May 7, 2013, the new form offers many advantages both for employer and employee and is available for download and immediate use.

However, while the new form is a distinct improvement over previous versions, know that the form is still a challenge.  But have no fear, and get those I-9s in order!

So what has changed on the new form? Below are five improvements that have been incorporated into the new form, which will make life easier for employers and employees alike:

1. There are now separate pages for the employee (or preparer), and for the employer – this delineation makes clearer which part of the form needs to be filled out by the employee and which by the employer. The additional instructions to the employee to STOP at the end of page 1 help avoid a common mistake of previous I-9 versions concerning who should fill out which portion;
2.  More space – employers often ran into space problems with the old form when trying to record all of the necessary information, especially for certain nonimmigrant workers.  Now there is a lot more space, including a dedicated section for a third “List A” document (useful for recording DS-2019/I-20 details for F-1/J-1 employees ),  in addition to clearly designated ‘expiration date’ fields for List B, identity and List C, proof of the right to be employed documents;
3. Boxes instead of lines – with previous versions of the form, many employers would have questions regarding whether the employee had to sign above or below the line. This confusion can now be put to rest as the USCIS has replaced the signature line with a signature box for the employee to sign INSIDE. Nice change, this makes it much simpler!
4. Clearer instructions - a lot of the technical errors unknowingly committed by employers and employees that we have uncovered while supervising internal audits arise from a lack of sufficient instructions and guidelines.  Most of the instructions regarding which documents need to be examined, as well as those regarding the certification section, are much more user-friendly and more detailed in their explanations.;
5. Reverification and rehires -section 3 has now been renamed “reverification and rehires” as opposed to the former “updating and reverification.”  This section was the source of endless confusion for employers because, although the M-274 (Handbook for Employers – updated 03/08/2013) explained that recording changes of name was optional, employers were often unsure whether they needed to update this section whenever there was a name change.  The instructions now appear to indicate that this section ONLY needs be filled out if reverifying that an employee is authorized to work or when rehiring an employee within three years of the form being completed.

Bravo to USCIS for these  improvements that will greatly help the 7,000,000 employers complete this form which is required for all new hires, other than those who are exempt that include only a few classes such as independent contractor, those employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis, and persons hired on or before November 6, 1986, who are continuing in their employment, or people providing labor and are employed by a contractor providing contract services. Everyone else, get your I-9s in order, or face fines, loss of business licenses in some cases and potentially other civil or criminal penalties.

For information see our I-9 FAQ and register now for our upcoming free webinar, Immigration 101 for HR- Work Visa Options and I-9 Updates, including the new I-9 Form & E-Verify, on April 18, 2013 (12.30 PDT).