UNITED KINGDOM: Biometric Residence Permits for All Migrants To Be Rolled Out

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The Home Office will shortly roll out Biometric Residence Permits (BRP) (otherwise known as BID) for all visa applicants applying to enter the UK from overseas. The BRP is a plastic card with details on the applicant’s visa type and visa validity dates. There will be a phased introduction once Parliament has approved the legislation and an upgraded visa application system has been introduced. Pakistan has been proposed as the first country to receive the new permits.

There are no confirmed dates, but the Home Office has indicated that the first roll-out should occur in March, followed by a second roll-out in India, China, and 32 other countries in April, and a roll-out in the United States at the end of May. All remaining countries will implement the new process at the end of July.

Detailed guidance on the new process is expected imminently. The following is an overview:

  • All applicants applying overseas for a visa of more than six months’ duration will receive a notification letter with details on where to obtain the BRP once they arrive in the UK.
  • To enter the UK, applicants will be issued a 30-day short-term travel visa vignette in their passport, which will be valid from their intended date of travel to the UK. If the applicant’s intended travel date is delayed after he or she has submitted a visa application, the applicant may need to apply for a further 30-day travel visa at a cost of £109. This may take up to 15 days to be issued.
  • Within 10 days after arriving in the UK, applicants must go to their nearest designated post offices with their passports to collect their BRPs. The post office selected will be based on the UK address that the applicant has included on the visa application (this can be a work address).

People applying for visas from within the UK will already be familiar with the process, although for these applicants the BRPs are mailed to the applicant or his or her nominated legal representative. With the roll-out of the new process for those applying from overseas, there are no plans for legal representatives to be able to collect the BRP from the post office on behalf of the applicant or be sent the BRP by mail. However, a nominated third party, approved by the Home Office, may collect the BRP on behalf of the applicant in exceptional circumstances; e.g., medical incapacity, visiting VIPs, and refugee support. The Home Office will arrange the third party collection with the relevant post office branch and provide a letter of authorization for the post office official to conduct an identity check.

Sponsors and migrants should be made aware of these changes and the implications if travel to the UK is delayed for any reason. It will be important for migrants to ensure that they collect their BRP within 10 days of arrival to avoid incurring a penalty charge of £125.

News from the Alliance of Business Immigration Lawyers Vol. 7, No. 7B • July 15, 2011

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Headlines:

1. USCIS Changes Timeframes for RFEs – Among other things, the maximum response time for an RFE may not exceed 12 weeks (84 days).

2. USCIS Submits Revision of Basic Pilot Verification MOU to OMB for Review – Comments will be accepted until September 12, 2011.

3. DOS Determines Employment Preference Numerical Limit for FY 2011 – The worldwide employment-based preference numerical limit for fiscal year (FY) 2011 is 140,000.

4. DOS Announces Visa Issuance Agreement Between U.S. and Russian Federation – The new agreement concerns the issuance of nonimmigrant business, tourist, private, and humanitarian visas to the Russian Federation, and business and tourist visas to the U.S., as well as short-term official travel visas to both countries.

5. DOL Orders Prince George’s County Public Schools To Pay $4.2 Million in Back Wages – An investigation by the Department of Labor found Maryland’s Prince George’s County Public Schools system in violation of the H-1B program.

6. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – The intended audience for the July 6 webinar includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects.

7. New Publications and Items of Interest – New Publications and Items of Interest

8. Member News – Member News

9. Government Agency Links – Government Agency Links

Details:

1. USCIS Changes Timeframes for RFEs

U.S. Citizenship and Immigration Services (USCIS) previously gave agency officers the flexibility to determine individual response times for requests for evidence (RFEs) tailored to the circumstances of each case. USCIS released an interim policy memorandum on July 13, 2011, changing the standard timeframes for applicants or petitioners to respond to RFEs because, the agency said, “this delegated flexibility has led to inconsistencies in the RFE process.”

USCIS is amending the standard timeframes listed in Appendix 10-9 of the Adjudicator’s Field Manual (AFM) to include:

  • A standard timeframe of 30 days for the Application to Extend/Change Nonimmigrant Status (Form I-539); and
  • A standard timeframe of 84 days for all other form types, regardless of whether the request is for initial or additional evidence, or whether the evidence is available in the United States or is obtained from overseas sources.

The maximum response time for an RFE may not exceed 12 weeks (84 days), the memo states. However, when an RFE is served by mail, USCIS officers should include additional mailing time for the RFE to reach the applicant/petitioner and for the response to reach USCIS. The standard mailing time established by regulation is three days. As a matter of policy, USCIS has determined that the mailing time should be longer when the applicant or petitioner is residing outside the U.S. USCIS amended the AFM accordingly to include appropriate mailing times in addition to standard response times.

The memo does not apply to asylum applications or applications for relief under Section 203 of the Nicaraguan Adjustment and Central American Relief Act.

The memo is available at http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Interim%20Guidance%20for%20Comment/change-timeframes-rfe.pdf.

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2. USCIS Submits Revision of Basic Pilot Verification MOU to OMB for Review

U.S. Citizenship and Immigration Services (USCIS) submitted for Office of Management and Budget review the memorandum of understanding (MOU) to participate in the Basic Pilot Employment Eligibility Program. USCIS is encouraging comments, which will be accepted until September 12, 2011.

USCIS estimates that 125,015 respondents will complete the MOU, and that 521,134 employers will register to participate in the program.

For more information on the revision and where to send comments, see http://www.gpo.gov/fdsys/pkg/FR-2011-07-13/pdf/2011-17546.pdf.

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3. DOS Determines Employment Preference Numerical Limit for FY 2011

The Department of State (DOS) has determined the worldwide employment-based preference numerical limit for fiscal year (FY) 2011: 140,000. The per-country limit is fixed at 7 percent of the employment annual limit. For FY 2011, the per-country limit is 25,620. The dependent area annual limit is 2 percent, or 7,320.

The worldwide family-sponsored preference limit for FY 2011 is 226,000. See the DOS’s Visa Bulletin for August 2011 for details at http://www.travel.state.gov/visa/bulletin/bulletin_5518.html.

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4. DOS Announces Visa Issuance Agreement Between U.S. and Russian Federation

On July 13, 2011, U.S. Secretary of State Hillary Rodham Clinton and Russian Foreign Minister Sergey Lavrov announced an agreement on the issuance of nonimmigrant business, tourist, private, and humanitarian visas to the Russian Federation, and on business and tourist visas to the U.S., as well as short-term official travel visas to both countries.

The agreement will facilitate travel between the two countries and, DOS said, “benefits the largest segments of our traveling Americans and Russians – business travelers and tourists, traveling both as individuals and in groups, by granting as a rule, on a reciprocal basis, multiple-entry visas valid for 36 months.” The agreement also reduces the documentation required.

The new visa validity periods “will allow for expanded contacts and promote greater mutual understanding between our societies,” DOS said. This agreement will go into effect after an exchange of diplomatic notes in Moscow.

The DOS announcement is available at http://www.state.gov/r/pa/prs/ps/2011/07/168346.htm.

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5. DOL Orders Prince George’s County Public Schools To Pay $4.2 Million in Back Wages

An investigation by the Department of Labor’s (DOL) Wage and Hour Division found Maryland’s Prince George’s County Public Schools (PGCPS) system in violation of the H-1B temporary foreign worker visa program.

DOL investigators found that PGCPS illegally reduced the wages of 1,044 foreign teachers hired under the H-1B program by requiring them to use their own money to pay a $500 anti-fraud fee to the Department of Homeland Security, as well as a $1,000 attorney’s fee and a $3,500 placement fee. DOL held that under federal law, the school district should have paid those fees.

“All employers, including school systems, are required to follow the law. That includes the legal duty to pay every teacher hired the full wages he or she is owed,” said Nancy J. Leppink, acting administrator of the Wage and Hour Division.

Due to the willful nature of some of the violations, PGCPS also was assessed $100,000 in civil money penalties and was debarred for two years from filing new petitions, requests for extensions, or requests for permanent residence for foreign workers under any employment-based visa program. DOL noted that “[v]iolations are willful when an employer knew or acted in reckless disregard [of] whether its actions were impermissible.”

Some H-1B employers may be unaware of which fees they must pay and which fees an H-1B worker may pay. Consult your ABIL attorney for guidance on this issue.

The DOL’s news release is available at http://www.dol.gov/opa/media/press/whd/whd20110357.htm.

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6. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals

Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the United States, but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, but each has advantages, disadvantages, and limits.

A three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest In the USA, the association of EB-5 regional centers, helps guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. Each 90-minute webinar in the series explains immigration options and offers practical real-world strategies:

  • Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held on April 13. (A recording of the webinar is available for purchase.) Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
  • Session 2: EB-5 regional center applications and project pre-approval petitions, was held July 6 at 3 p.m. (ET). (A recording of the webinar is available for purchase.) Moderated by Laura Danielson. Presenters: Bryan Funai, H. Ronald Klasko, and Steve Trow.
  • Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, to be held August 16 at 3 p.m. (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

All participants will receive a file with the PowerPoint presentation, relevant articles, and resources before each session, as well as a recording of the webinar. The cost is $89 for an individual session or $249 for all three sessions, live or recorded. For more information, see https://www.abil.com/news_detail.cfm?NEWS_ID=96. To register, go to: https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, contact Lauren Anderson at lauren@abil.com or visit https://abil.com.

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7. New Publications and Items of Interest

Analysis of H.R. 2164, the Legal Workforce Act. The National Foundation for American Policy has released a policy brief, “We Should Trust, But Not E-Verify: An Analysis of H.R. 2164,” which argues that “H.R. 2164, the Legal Workforce Act, would make the American workplace less free, ensnare U.S. workers in government agency errors, expand the size and role of government and is likely to be ineffective in reducing the illegal immigration population in the United States.” Among other things, the policy brief notes that the Congressional Budget Office (CBO) estimated that mandating E-Verify nationwide would increase federal spending by approximately $6 billion from 2009 to 2013 and by about $12 billion from 2009 to 2018. The brief states that the CBO estimated the 2008 bill would lead to a decline of $17 billion in tax revenue over 10 years, caused primarily by pushing undocumented workers into the underground economy.

The policy brief is available at http://www.nfap.com/pdf/EVerify_NFAP_Policy_Brief_July2011.pdf.

Boosting the economic contribution of employment-based immigration. The Migration Policy Institute has released “Eight Policies to Boost the Economic Contribution of Employment-Based Immigration” by Demetrios G. Papademetriou and Madeleine Sumption. Drawing on experiences from Asia, Europe, North America, and the Pacific region, the policy memo presents eight strategies developed by immigrant-receiving countries to increase the economic contribution of employment-based immigration. These policies “represent best practices that policymakers can rely on to create effective and efficient economic-stream immigration systems,” the memo states. The policies discussed “focus on selecting immigrants with a range of skill levels, retaining those with the greatest potential to succeed, engaging employers constructively in the immigration process, and facilitating immigrant integration.”

The policy memo is available at http://www.migrationpolicy.org/pubs/competitivenessstrategies-2011.pdf.

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8. Member News

H. Ronald Klasko and Stephen Yale-Loehr will speak at the Invest In the USA association meeting in Washington, DC, on September 15, 2011. Mr. Klasko will speak on current EB-5 policy and administrative issues; Mr. Yale-Loehr will speak on legislative strategies to renew the EB-5 regional center program through Congress. For more information, go to http://iiusadc915.eventbrite.com/.

Cyrus Mehta recently published “Right to Appointed Counsel in Removal Proceedings? The Supreme Court May Have Opened the Door in Turner v. Rogers,” which argues that Turner v. Rogers can be used favorably by immigration advocates seeking to establish a right to appointed counsel in immigration removal proceedings. It is available at http://www.cyrusmehta.com/News.aspx.

Mr. Mehta also recently released a new blog entry, “Immigration Lessons from the Fall and Rise of Strauss-Kahn, Part II,” available at http://cyrusmehta.blogspot.com/2011/07/immigration-lessons-from-fall-and-rise.html.

Angelo Paparelli has posted a new blog entry, “Race to the EAD: Revitalizing Depressed American Cities Through State Immigration Initiatives.” The blog suggests an initiative to allow states to submit economic revitalization proposals under which federally approved projects would allow promising and worthy nonimmigrant and conditional immigrant investors and entrepreneurs, as well as state-recommended recipients of deferred action, to obtain a renewable EAD in reasonable time period increments. The blog is available at http://bit.ly/mUSdKz.

Mr. Paparelli also recently co-authored “Global Mobility Management – A Primer for Chief Legal Officers and HR Executives,” available at http://www.whoswholegal.com/news/features/article/28998/global-mobility-management-primer-chief-legal-officers-hr-executives/.

Bernard Wolfsdorf was named corporate immigration lawyer of the year for the second year in a row by Who’s Who Legal. For more information, see http://www.whoswholegal.com/news/features/article/29126/an-interview-bernie-wolfsdorf-corporate-immigration-award-winner-2011/.

The new Chambers Global 2011 lists several members of the Alliance of Business Immigration Lawyers (ABIL) in its North America section, including:

Go to http://www.chambersandpartners.com/Global to search for a particular lawyer. Chambers USA 2011 is now also online; go to http://www.chambersandpartners.com/USA to search for a particular lawyer.

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9. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/bulletin/bulletin_1360.html

Visa application wait times for any post: http://travel.state.gov/visa/temp/wait/wait_4638.html

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EB-5 & Other Investor News from the Alliance of Business Immigration Lawyers Vol. 1, No. 3 • July 01, 2011

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Headlines:

1. USCIS Holds Immigrant Investor Quarterly Meeting – USCIS discussed case processing times and statistics, visa usage, and use of the governmental logo; regional center economic analysis; and stakeholder suggested topics and questions, including targeted employment areas, solicitation of funds before official RC designation; the use of multiple legal organization plans, and reorganized and restructured businesses versus troubled businesses.

2. USCIS Proposes EB-5 Changes; Comment Period Closed – USCIS has proposed significant changes to the administration of the EB-5 immigrant investor program’s intake and review process.3. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals4. Member News – Member News5. EB-5 Government Agency Links – EB-5 Government Agency Links

Details:

1. USCIS Holds Immigrant Investor Quarterly Meeting

U.S. Citizenship and Immigration Services (UCSIS) released its latest data on EB-5 filings and regional centers (RCs) at its June 30, 2011, “EB-5 Immigrant Investor Quarterly Engagement” stakeholders meeting. USCIS presented updates on case processing times and statistics, visa usage, guidance for annual reporting filings, and use of the governmental logo; RC economic analysis, including methodology and simple multiplier examples; and stakeholder suggested topics and questions, including targeted employment areas (TEAs), solicitation of funds before official RC designation; the use of multiple legal organization plans, and reorganized and restructured businesses versus troubled businesses. There was also an open forum Q&A.

The following is a summary of selected points from USCIS’s presentation:

RC data. USCIS noted that there are currently 147 approved regional centers (RCs) operating in 39 states, including the District of Columbia and Guam. Most (90 to 95 percent) of the individual Form I-526 (Immigrant Petition by Alien Entrepreneur) petitions filed each year are filed by those who are investing in RC-affiliated commercial enterprises. There are 83 initial RC proposals pending at USCIS, and nine RC proposals seeking to amend approved RCs.

USCIS figures continue to show a steep increase in the number of RC filings and EB-5 visa approvals. The agency reported 146 initial RC proposal filings in the first and second quarters of FY 2011, compared to 110 initial filings in all of FY 2010. The number of amended RC proposal filings also increased by the end of the second quarter to 55, an amount equal to 131 percent of the 42 filings received for all of FY 2010.

The agency also reported that it has issued a higher percentage of approvals of RC filings. In the first and second quarters of FY 2011, the agency approved 25 initial RC proposals and denied 11, an approval rate of 69 percent. This was a big increase from FY 2010, when USCIS approved 36 and denied 30, an approval rate of 55 percent. The approval rate of amended RC proposals in the first and second quarters also rose to 78 percent, with 21 approvals and 6 denials. By comparison, in FY 2010 USCIS approved 42 amended RC proposals and denied 11, an approval rate of 71 percent.

USCIS also reported significant increases in individual I-526s and I-829s (Petition by Entrepreneur to Remove Conditions). In the first and second quarters of FY 2011, USCIS received 1,601 I-526 petitions, compared to 1,955 for all of FY 2010. The increase in the number of I-829 petitions was even more dramatic, with 1,150 received in the first and second quarters. By comparison, USCIS received 768 I-829 petitions in all of FY 2010.

In the first and second quarters of FY 2011, the agency approved 407 I-526 petitions and denied 96, while in all of FY 2010 USCIS approved 1369 and denied 165. USCIS approved 166 I-829 petitions and denied 26 in the first and second quarters, compared to approving 274 and denying 56 for all of FY 2010.

USCIS also reported that although the target processing time for I-526 petitions is 5 months, actual processing times are reaching 5.5 months; however, some in the field have said it is closer to 7 months. USCIS’s target processing time for both initial and amended RC proposals is 4 months; the agency reported current processing times of 4.5 months for initial RC filings but only 1 month for amended filings. For I-829 filings, the agency reports that it is beating its target processing time of 6 months; USCIS said current processing time for I-829 filings is 1 month. USCIS said it strives to finalize EB-5 cases within 30 days after responses to requests for evidence (RFEs) are received.

USCIS is on track to approve a record number of EB-5 visas. Its preliminary estimate is that 2,129 EB-5 visas were issued in the first and second quarters of 2011, compared to 1,885 in all of FY 2010. The previous record was 4,218 EB-5 visas issued in FY 2009.

TEA designations. USCIS said it is reviewing policy on TEA designations, keeping in mind that it must fulfill its responsibility to ensure statutory and regulatory compliance while not rendering a state’s TEA designation immaterial.

Soliciting EB-5 funds before designation approval. One questioner asked whether there is any restriction on an RC soliciting EB-5 funds before it receives its approved designation as an RC. USCIS said there is no specific prohibition on a proposed RC soliciting EB-5 funds before it receives its approved designation, but noted that the agency is aware that some prospective RCs have inappropriately represented on websites and in promotional literature that the entities have already received the RC designation. “Prospective regional centers may not make any representations that could potentially mislead an investor into believing that the entity has been approved for the regional center designation prior to the actual regional center approval by USCIS,” the agency noted.

Legal organization plans. Another questioner asked, when a U.S. business is unsure what legal organization would be best, may it submit several options with an RC petition or amendment? Will USCIS approve the ones that are acceptable and reject the ones that are not, without denying the entire petition? USCIS responded that an RC application may contain more than one legal organization plan. If upon review one or more of the legal organization plans do not appear to be EB-5 compliant, then USCIS will issue an RFE. If upon final adjudication USCIS determines that one or more legal organization plans are qualifying, USCIS would approve the RC application, and the legal organization plans that were deemed acceptable would be specified in the RC approval notice.

“Reorganized or restructured” versus “troubled.” The agency noted that there appears to be some confusion regarding the difference between a “reorganized or restructured business” and a “troubled business” for EB-5 purposes. USCIS explained that the “reorganized or restructured business” concept relates to the requirement that the commercial enterprise in which the EB-5 investor will invest must be “new,” which is defined in 8 CFR § 204.6(e) as “a commercial enterprise established after November 29, 1990.” USCIS also noted that 8 CFR § 204.6(h)(2) provided that a “new” commercial enterprise may consist of the “purchase of an existing business and simultaneous or subsequent restructuring or reorganization such that a new commercial enterprise results.” USCIS pointed out, however, that 8 CFR § 204.6(h) has been superseded by a subsequent statutory amendment (§ 11036 of Public Law 107-273) that eliminated the requirement that the investor had to establish the new commercial enterprise. Presently, an investor only has to invest in a new commercial enterprise.

USCIS noted that Matter of Soffici, 22 I&N Dec. 158 (INS Assoc. Comm’r 1998), is a binding precedent decision that provides a detailed discussion regarding the factors that must be established to demonstrate that a commercial enterprise is new by virtue of being reorganized or restructured.

USCIS noted that if an immigrant investor makes an investment in a business that is already operating and does not meet the “troubled business” requirements, he or she may only be credited with jobs created as a result of the investment. Under Soffici, a petitioner who acquires a pre-existing business must show that the investment has created, or at least has a reasonable prospect of creating, 10 full-time positions in addition to those existing before acquisition. The petitioner must, therefore, present evidence concerning the pre-acquisition level of employment. Simply maintaining the pre-acquisition level of employment is not sufficient unless the petitioner shows that the pre-existing business qualifies as a “troubled business.”

USCIS noted that the “troubled business” concept relates to the crediting of job creation through the preservation of jobs in an existing business that has incurred substantial net losses. The regulations define “troubled business” as a business that has been in existence for at least two years, has incurred a net loss during the 12- or 24-month period before the priority date on the entrepreneur’s I-526, and the loss for such period is at least equal to 20 percent of the troubled business’s net worth before the loss. For purposes of determining whether the troubled business has been in existence for two years, USCIS noted that successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.

In the context of an RC investment project, USCIS said, “an acceptable economic analysis may demonstrate the preservation of indirect as well as direct jobs in a ‘troubled business’ through the EB-5 investment activity.”

In summary, the agency noted that issue of whether a business has been “restructured or reorganized” is related to establishing whether a business can be considered a new commercial enterprise. A “troubled business” must only be shown to have been “reorganized or restructured” if the commercial enterprise was established by November 29, 1990.

Use of governmental logos. USCIS said that it will be reviewing RC websites and promotional material as part of the I-924A review for inappropriate use of Department of Homeland Security and USCIS branding as well as material that is non-EB-5 compliant. The agency emphasized that it is illegal to use a governmental logo on nongovernmental EB-5 materials or websites.

Guidance on annual report filings. USCIS said it plans to devote a substantial portion of its September EB-5 stakeholder meeting to guidance on annual report filings for Forms I-924A that are due at the end of the year. USCIS said it has developed queries to generate RC-associated individual petition statistics. The data generated through these queries are still being validated but should be available at the September EB-5 stakeholder meeting.

USCIS also discussed RC economic analysis, including methodology and simple multiplier examples. USCIS’s agenda and full presentation are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=948723cbea6bf210VgnVCM100000082ca60aRCRD&vgnextchannel=61ca6ec2ac3ee210VgnVCM100000082ca60aRCRD.

The full list of RCs by state is available at http://www.uscis.gov/eb-5centers/.

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2. USCIS Proposes EB-5 Changes; Comment Period Closed

U.S. Citizenship and Immigration Services (USCIS) has proposed significant changes to the administration of the EB-5 immigrant investor program’s intake and review process. The deadline for comments was June 17, 2011.

USCIS is proposing three fundamental changes to the way it processes certain regional center (RC) filings. First, USCIS proposes to accelerate its processing of applications for “job-creating projects that are fully developed and ready to be implemented.” USCIS will also give these EB-5 applicants and petitioners the option to request Premium Processing Service, which guarantees processing within 15 calendar days for an additional fee.

Second, USCIS proposes the creation of new specialized intake teams with expertise in economic analysis and the EB-5 program requirements. EB-5 RC applicants will be able to communicate directly with the specialized intake teams via e-mail to streamline the resolution of issues and address questions or needs related to their applications.

Third, USCIS proposes to convene an expert Decision Board to render decisions regarding EB-5 RC applications. The Decision Board will be composed of an economist and adjudicators and will be supported by legal counsel.

USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=a4b57b52e5800310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The proposal is available at http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Operartional%20Proposals%20for%20Comment/EB-5-Proposal-18May11.pdf.

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3. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals

Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the United States, but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, and each has advantages, disadvantages, and limits.

A three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest In the USA, the association of EB-5 regional centers, helps guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. Each 90-minute webinar in the series explains immigration options and offers practical real-world strategies:

  • Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held on April 13. (A recording of the webinar is available for purchase.) Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
  • Session 2: EB-5 regional center applications and project pre-approval petitions, was July 6 at 3 p.m. (ET). Moderated by Laura Danielson. Presenters: Bryan Funai, H. Ronald Klasko, and Steve Trow.
  • Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, to be held August 16 at 3 p.m. (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

All participants will receive a file with the PowerPoint presentation, relevant articles, and resources before each session, as well as a recording of the webinar. The cost is $89 for an individual session or $249 for all three sessions, live or recorded. To register, go to: https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, contact Lauren Anderson at lauren@abil.com or visit https://abil.com.

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4. Member News

The new Chambers Global 2011 lists various ABIL members in its North America section, including Mark Ivener, H. Ronald Klasko, Charles Kuck, Sharon Mehlman, Angelo Paparelli, Bernard Wolfsdorf, and Stephen Yale-Loehr. Go to Chambers Global to search for a particular lawyer. Chambers USA 2011 is now also online; go to Chambers USA to search for a particular lawyer.

Many members of the Alliance of Business Immigration Lawyers (ABIL) (both U.S. and Global) were named in the “International Who’s Who of Corporate Immigration Lawyers 2011,” including:Eugene Chow

Laura Devine

Kehrela Hodkinson

H. Ronald Klasko

Marco Mazzeschi

Sharon Mehlman

Cyrus Mehta

Angelo Paparelli

Bernard Wolfsdorf

Stephen Yale-Loehr

Robert Loughran was quoted in a cover story on Mexican immigrant investors in the Austin American Statesman in June 2011 in an article entitled, “Austin Beginning to Compete with Other Texas Cities for Wealthy Immigrants from Mexico.” Mr. Loughran highlighted how the quality of life in Austin has contributed to an influx of wealthy Mexican investors.

Mr. Wolfsdorf was also named corporate immigration lawyer of the year, for the second year in a row, by Who’s Who Legal. For more information, see http://www.whoswholegal.com/news/features/article/29126/an-interview-bernie-wolfsdorf-corporate-immigration-award-winner-2011/.

Mr. Yale-Loehr spoke on a panel regarding advanced EB-5 immigrant investor issues at the American Immigration Lawyers Association annual conference in San Diego in June 2011.

Mr. Klasko and Mr. Yale-Loehr will speak at the Invest In the USA association meeting in Washington, DC, on September 15, 2011. Mr. Klasko will speak on current EB-5 policy and administrative issues; Mr. Yale-Loehr will speak on legislative strategy to renew the EB-5 regional center program through Congress. For more information, go to http://iiusadc915.eventbrite.com/.

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5. EB-5 Government Agency Links

USCIS Web Page on EB-5 Immigrant Investors: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextchannel=facb83453d4a3210VgnVCM100000b92ca60aRCRD&vgnextoid=facb83453d4a3210VgnVCM100000b92ca60aRCRD

USCIS Policy and Procedural Memoranda on EB-5 Investors: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextchannel=f1f051b4b1af3110VgnVCM1000004718190aRCRD&vgnextoid=f1f051b4b1af3110VgnVCM1000004718190aRCRD

Immigrant Investor Regional Centers List: http://www.uscis.gov/eb-5centers

Form I-526, Immigrant Petition by Alien Entrepreneur: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=79a7105b5904d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=7d316c0b4c3bf110VgnVCM1000004718190aRCRD

Form I-829, Petition by Entrepreneur to Remove Conditions: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d4f63591ec04d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=7d316c0b4c3bf110VgnVCM1000004718190aRCRD

Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=7387e6b2fc57c210VgnVCM100000082ca60aRCRD&vgnextchannel=7d316c0b4c3bf110VgnVCM1000004718190aRCRD

Form I-924A, Supplement to Form I-924: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=256866fcd667c210VgnVCM100000082ca60aRCRD&vgnextchannel=7d316c0b4c3bf110VgnVCM1000004718190aRCRD

News from the Alliance of Business Immigration Lawyers Vol. 7, No. 7A • July 01, 2011

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Headlines:

1. ICE To Audit 1,000 Employers Nationwide for I-9 Violations – The new actions bring the FY 2011 I-9 audit total to 2,338, surpassing the FY 2010 record.

2. USCIS Summarizes Stakeholder Engagement on L-1B Interpretation of ‘Specialized Knowledge’ – USCIS released an executive summary on the L-1B nonimmigrant classification with respect to interpretation of the term “specialized knowledge.”

3. House Judiciary Committee Approves Bill To Reauthorize Temporary Nurse Program – The committee approved a bill that would reauthorize for an additional three years the H-1C temporary visa program for nurses in health professional shortage areas.

4. Senate Holds Hearing on DREAM Act of 2011 – The Senate Subcommittee on Immigration, Refugees and Border Security held a hearing on the Development, Relief, and Education for Alien Minors (DREAM) Act of 2011 on June 28, 2011.

5. Democrats Reintroduce Comprehensive Immigration Reform Bill – Among other things, the bill would mandate the use of an employment verification system, establish a federal commission on immigration, and offer an earned path to citizenship for undocumented people already in the United States.

6. Sen. Lamar Smith Introduces Mandatory E-Verify Bill – The bill seems likely to pass the House and has already been endorsed by key business associations.

7. DOS Speaks on J-1 Summer Work Travel Interim Final Rule – The Department spoke about the new regulatory amendments that take effect July 15, 2011.

8. USCIS, Mississippi Implement New E-Verify Tool – USCIS launched a new feature that allows its E-Verify program to validate the authenticity of Mississippi driver’s licenses used by employees as I-9 identity documents.

9. North Carolina Governor Signs E-Verify Bill – The law mandates that counties, cities, and employers with at least 25 employees use E-Verify to verify the work authorization of new hires, excluding certain seasonal temporary employees.

10. ABIL Global: The EU Blue Card and the Dutch Knowledge Migrant Scheme; New Netherlands Legislation – This article compares the European Union Blue Card with the Dutch Knowledge Migrant Scheme, and summarizes several new pieces of legislation.

11. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – The intended audience for the July 6 webinar includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects.

12. New Publications and Items of Interest – New Publications and Items of Interest

13. Member News – Member News

14. Government Agency Links – Government Agency Links

Details:

1. ICE To Audit 1,000 Employers Nationwide for I-9 Violations

U.S. Immigration and Customs Enforcement (ICE) reported that it is auditing approximately 1,000 U.S. employers, of a range of sizes and in every state, to ensure compliance with I-9 employment authorization verification procedures. ICE has not specified which companies are affected, but it is expected to be focusing on critical sectors, to include agriculture and food; banking and finance; chemical; commercial facilities; commercial nuclear reactors, materials and waste; dams; defense industrial base; drinking water and water treatment systems; emergency service; energy; government facilities; information technology; national monuments and icons; postal and shipping; public health and health care; telecommunications; and transportation systems.

It was reported that the new actions bring the fiscal year 2011 I-9 audit total to 2,338, surpassing the fiscal year 2010 record of 2,196.

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2. USCIS Summarizes Stakeholder Engagement on L-1B Interpretation of ‘Specialized Knowledge’

On June 13, 2011, U.S. Citizenship and Immigration Services (USCIS) launched “Records and Information from DMVs for E-Verify (RIDE),” a new feature that allows the agency’s E-Verify program to validate the authenticity of Mississippi driver’s licenses used by employees as Form I-9 identity documents.

More than 80 percent of employees present driver’s licenses to establish their identities when undergoing the I-9 employment authorization verification process. By enabling E-Verify to compare driver’s license data against state records, USCIS said, RIDE will improve E-Verify’s accuracy and help combat document fraud while observing safeguards to protect employees’ personal data. “RIDE helps combat document fraud by enabling E-Verify to confirm the authenticity of an additional identity document,” USCIS said. For example, previously, if an employee presented a driver’s license to establish his or her identity and a Social Security card to establish his or her authorization to work, E-Verify would only have been able to confirm the validity of the Social Security card. RIDE enables E-Verify employers in Mississippi to confirm the validity of both documents.

The new E-Verify RIDE feature builds on existing technology and infrastructure that the Mississippi Department of Public Safety (MDPS) and other state public safety departments use in conjunction with the American Association of Motor Vehicle Administrators. Mississippi is the first state to partner with USCIS to implement RIDE.

The U.S. House of Representatives Committee on the Judiciary approved a bill (H.R. 1933) on June 23, 2011, to help hospitals in inner-city neighborhoods and rural areas that have difficulty in attracting nurses. Specifically, the bill would reauthorize for an additional three years the H-1C temporary visa program that allows foreign nurses to come to the U.S. to work in health professional shortage areas. The bill was reported favorably to the House floor by voice vote.

The prior H-1C program allowed 500 foreign nurses per year to work in the United States. H.R. 1933 would reduce that number to 300 per year. The bill would benefit about 14 hospitals around the country.

House Judiciary Committee Chairman Lamar Smith (R-Tex.), the bill’s sponsor, praised the Committee vote: “A number of American hospitals have great difficulty attracting nurses. These include hospitals that serve mostly poor patients in inner-city neighborhoods and some hospitals in rural areas. For example, St. Bernard Hospital in Chicago is the only remaining hospital in an area of over 100,000 people and almost all of its patients live in poverty. St. Bernard almost closed its doors in 1992, primarily because of its inability to attract registered nurses. I introduced H.R. 1933 to help St. Bernard and other similar hospitals. The bill reauthorizes the H-1C program for an additional three years. Just as nurses ensure care for the sick, the H-1C program ensures continued care for patients in inner-city and rural communities.”

The Senate Subcommittee on Immigration, Refugees and Border Security held a hearing on the Development, Relief, and Education for Alien Minors (DREAM) Act of 2011 on June 28, 2011. Sen. Dick Durbin (R-Ill.) opened the hearing. Witnesses included Janet Napolitano, Secretary of the Department of Homeland Security; Arne Duncan, Secretary of the Department of Education; Dr. Clifford Stanley, Under Secretary of Defense for Personnel and Readiness; Ola Kaso, a DREAM Act student; Lt. Col. Margaret Stock, and Steven Camarota, Director of Research for the Center for Immigration Studies.

Secretary Napolitano said the Obama administration “strongly supports the DREAM Act.” She noted that in the closing days of the 111th Congress, the DREAM Act passed the House of Representatives with bipartisan support and fell a few votes short in the Senate. She commended Sen. Durbin and the 34 co-sponsors who have signed onto the bill thus far. She said the DREAM Act would ” allow the Department to devote a greater portion of limited DHS resources to removing individuals who actually pose a risk to public safety or security.” She said the DREAM Act would do this “by providing a firm but fair way for individuals brought into our country as children – through no fault of their own – to obtain legal status by pursuing higher education, or by serving in the U.S. Armed Forces for the country where they have grown up and which they consider their home.”

She noted that, as introduced in the Senate, the DREAM Act “establishes a rigorous process for those who entered the United States illegally as children to obtain conditional permanent resident status by proving that they meet several strict requirements.” Those applying for conditional permanent resident status, she said, would also need to submit biometric and biographic data and undergo security and law enforcement background checks and a medical examination. Without the DREAM Act, Secretary Napolitano said, “young people will continue to be caught up in the immigration removal system, siphoning resources away from other, more pressing needs.” She said that it does not make sense from a law enforcement or public safety perspective “to devote limited enforcement resources on young people who pose no threat to public safety, who were brought to this country illegally by no fault of their own and have grown up here, and who want to contribute to our country by serving in the military or going to college.”

Sen. Robert Menendez (D-N.J.) and six other Democrats reintroduced the Comprehensive Immigration Reform Act of 2011 (S. 1258) on June 22, 2011, a bill that would mandate the use of an employment verification system, establish a federal commission on immigration, and offer an earned path to citizenship for undocumented people already in the United States.

The 679-page bill is similar to legislation introduced by Sen. Menendez and other Democrats in September 2010. Senate Majority Leader Harry Reid (D-Nev.), along with Sens. Patrick Leahy (D-Vt.), Dick Durbin (D-Ill.), Charles Schumer (D-N.Y.), and Kirsten Gillibrand (D-N.Y.), co-sponsored the legislation. The bill includes measures to strengthen border security, enhance worksite enforcement of immigration laws, and requirements that the estimated 11 million undocumented people in the U.S. register with the government, pay taxes, learn English, pay a fine, pass a background check, and wait in line for permanent residence.

The bill also includes a mandatory employment verification system, and enforcement measures such as additional resources for the Border Patrol; expanded penalties for passport and document fraud; new requirements for the Department of Homeland Security to track entries and exits at the border; rules governing detention to ensure that U.S. citizens are not unlawfully detained; and new criminal penalties for fraud and misuse of Social Security numbers.

House Judiciary Committee Chairman Lamar Smith (R-Tex.) recently introduced the “Legal Workforce Act” (H.R. 2164), a bill that would require all businesses to verify the legal status of workers using the online E-Verify system. The bill seems likely to pass the House and has already been endorsed by key business associations, including the U.S. Chamber of Commerce, the National Restaurant Association, the National Association of Home Builders, and the National Federation of Independent Business.

Opponents of the bill argue that there are not enough U.S. workers available to fill the estimated 8 million jobs held by undocumented workers, 90 percent of which are non-agricultural. Statements from SEIU, the National Immigration Law Center, and others echoed the idea that an E-Verify mandate without a path to legalization for undocumented workers already in the United States would undermine the U.S. economy.

The text of the bill is available at http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.2164:.

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7. DOS Speaks on J-1 Summer Work Travel Interim Final Rule

On June 20, 2011, a Department of State spokesperson answered a question about an interim final rule, effective July 15, 2011, that amends regulations on the J-1 Summer Work Travel (SWT) program. The spokesperson noted that given the size of the program, with approximately 120,000 college and university student participants in 2010, the Department has decided to “enhance safeguards,” including:

  • A pilot program for six countries (Belarus, Bulgaria, Moldova, Romania, Russia, and Ukraine) aimed at thwarting the potential for abuse of summer work travel participants who come from those countries; and new program-wide regulations designed to strengthen and clarify current program oversight and administration requirements
  • A special e-mail address and a toll-free telephone number, available 24 hours per day and 7 days per week, to enable students to have ready, direct contact with the Department about program complaints or issues
  • On June 13, 2011, U.S. Citizenship and Immigration Services (USCIS) launched “Records and Information from DMVs for E-Verify (RIDE),” a new feature that allows the agency’s E-Verify program to validate the authenticity of Mississippi driver’s licenses used by employees as Form I-9 identity documents.More than 80 percent of employees present driver’s licenses to establish their identities when undergoing the I-9 employment authorization verification process. By enabling E-Verify to compare driver’s license data against state records, USCIS said, RIDE will improve E-Verify’s accuracy and help combat document fraud while observing safeguards to protect employees’ personal data. “RIDE helps combat document fraud by enabling E-Verify to confirm the authenticity of an additional identity document,” USCIS said. For example, previously, if an employee presented a driver’s license to establish his or her identity and a Social Security card to establish his or her authorization to work, E-Verify would only have been able to confirm the validity of the Social Security card. RIDE enables E-Verify employers in Mississippi to confirm the validity of both documents.The new E-Verify RIDE feature builds on existing technology and infrastructure that the Mississippi Department of Public Safety (MDPS) and other state public safety departments use in conjunction with the American Association of Motor Vehicle Administrators. Mississippi is the first state to partner with USCIS to implement RIDE.

    North Carolina Governor Beverly Purdue signed HB 36 into law on June 23, 2011. The new law mandates that counties, cities, and employers with at least 25 employees use E-Verify to verify the work authorization of new hires. The law does not apply to seasonal temporary employees who are employed for 90 or fewer days during a consecutive 12-month period.

    The law specifies that the Commissioner of Labor may subpoena employment records relating to “the recruitment, hiring, employment, or termination policies, practices, or acts of employment” as part of an investigation of a valid complaint.

    The text of the ratified bill is available at http://www.ncga.state.nc.us/Sessions/2011/Bills/House/HTML/H36v7.html.

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10. ABIL Global: The EU Blue Card and the Dutch Knowledge Migrant Scheme; New Netherlands Legislation

EU Blue Card and Dutch Migrant Scheme

The European Union (EU) Blue Card is a residence and work permit for highly skilled non-EU/EER nationals, so-called third-country nationals. The EU Blue Card does not provide full access to the EU labor market as such, but only to the labor market of the EU Member State that has issued the EU Blue Card.

The implementation date of the European Directive on the EU Blue Card (2009/50/EG) was June 19, 2011. The Netherlands has implemented the EU Blue Card in the Dutch Immigration regulations.

Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the United States, but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, and each has advantages, disadvantages, and limits.

A three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest In the USA, the association of EB-5 regional centers, helps guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. Each 90-minute webinar in the series explains immigration options and offers practical real-world strategies:

  • Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held on April 13. (A recording of the webinar is available for purchase.) Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
  • Immigration enforcement actions in 2010. The Department of Homeland Security’s Office of Immigration Statistics has published “Immigration Enforcement Actions: 2010.” The short annual report, which presents information on the apprehension, detention, return, and removal of foreign nationals during 2010, notes, among other things, that DHS returned 476,000 foreign nationals to their countries of origin in 2010 without a removal order. Mexican nationals accounted for 83 percent of the 516,992 aliens apprehended in 2010. The next leading countries were Guatemala, El Salvador, and Honduras. Those four countries accounted for 94 percent of all apprehensions. The report is available at http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement-ar-2010.pdf.Stories from Cuba. NAFSA: Association of International Educators has launched a website, “Connecting Our World,” and has posted a collection of stories from Cuba pursuant to the new expansion of U.S. academic travel to Cuba. The interactive site asks readers to share stories from their travels and studies in Cuba. The stories collected so far are available at http://www.connectingourworld.org/?page_id=2088.

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13. Member News

Robert Loughran (bio: https://www.abil.com/lawyers/lawyers-loughran.cfm?c=US) was quoted in the June 23, 2011, edition of the Texas Tribune. Commenting on the potential unintended effects of state bills and a recent ICE memo on detaining and removing immigration status violators from the U.S., Mr. Loughran noted, “Once you detain someone you have to take action on that file. And very few people have the courage to stand up and do the release. I have specifically seen cases and worked on cases where the government has been unable to articulate what its concern or danger is, and you cannot get a single officer to put a signature on a release.” He said that could lead to non-offenders and even witnesses to crimes being held for weeks or even years, which could also swell jail populations and cost cities and counties millions in detention costs. The article is available at http://www.texastribune.org/texas-legislature/82nd-legislative-session/students-federal-memo-complicate-sanctuary-cities/.

Mr. Loughran has been selected for inclusion in the 2011 edition of Texas’ Best Lawyers. Attorneys listed in this guide are only those attorneys listed in The Best Lawyers in America. Inclusion in The Best Lawyers in America is based entirely on peer review. The attorneys are asked, “If you could not handle a case yourself, to whom would you refer it?” According to his peers, Mr. Loughran is the attorney on whom they would depend for matters of immigration law.

Mr. Loughran has been selected to be a presenter at the Alliance of Business Immigration Lawyers (ABIL) Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals. Mr. Loughran will provide his expertise regarding how to successfully navigate the back end of the EB-5 process for both individual investors and regional centers. The webinar will be held August 16, 2011, at 3 p.m. EST. For more information, contact Lauren Anderson at lauren@abil.com or visit http://abil.com.

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm