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EB-5 & Other Investor News from the Alliance of Business Immigration Lawyers Vol. 1, No. 4 • September 20, 2011

September 20, 2011/in EB-5 Investor News /by ABIL

Headlines:

1. USCIS Institutes Direct E-Mail Communication for Regional Center Applicants – Form I-924 applicants now are able to communicate directly with USCIS adjudicators via e-mail.

2. USCIS Announces Increase in RC Filings, EB-5 Approvals at Quarterly Meeting – USCIS Director Alejandro Mayorkas said the EB-5 program is a high priority and the agency realizes its job-creating potential.3. House Holds Hearing on Immigrant Investor Program and Job Creation – House Judiciary Committee Chairman Lamar Smith noted that the regional center pilot project, which is almost two decades old, has become the most used part of the investor visa program.4. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – A recent three-part webinar series, presented by ABIL and co-sponsored by Invest In the USA, the association of EB-5 regional centers, helped guide individual investors and others, as well as U.S. companies interested in attracting foreign investors and wealthy individuals.5. New Publications and Items of Interest – New Publications and Items of Interest6. Member News – Member News7. EB-5 Government Agency Links – EB-5 Government Agency Links


Details:

1. USCIS Institutes Direct E-Mail Communication for Regional Center Applicants

USCIS is implementing the first phase in a series of proposed enhancements to the EB-5 immigrant investor program. Beginning on September 13, 2011, Form I-924 (Application for Regional Center Under the Immigrant Investor Pilot Program) applicants now are able to communicate directly with USCIS adjudicators via e-mail.

USCIS intends to monitor the progress of this new line of communication to assess whether changes are needed and to implement any needed changes on a “real-time basis.” Feedback in response to the use of the direct line of communication for the I-924 may be e-mailed to opefeedback@uscis.dhs.gov.

USCIS said it “is eager to implement all of the proposed enhancements to the EB-5 program that it first announced on May 19, 2011.” USCIS is exploring how it can accelerate the implementation of premium processing, “which customarily takes months due to the need to revise the applicable forms.” USCIS said it is hiring economists and other experts who will enhance and accelerate the adjudication process and also help constitute the Decision Board that was first described on May 19.

A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=efccf0aec9262310VgnVCM100000082ca60aRCRD&vgnextchannel=facb83453d4a3210VgnVCM100000b92ca60aRCRD. Information on the proposed enhancements to EB-5 processing is available at http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Operartional%20Proposals%20for%20Comment/EB-5-Proposal-18May11.pdf.

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2. USCIS Announces Increase in RC Filings, EB-5 Approvals at Quarterly Meeting

U.S. Citizenship and Immigration Services (USCIS) released its latest data on EB-5 filings and regional centers (RCs) at its September 15, 2011, “EB-5 Immigrant Investor Quarterly Engagement” stakeholders meeting, showing that regional center (RC) filings and EB-5 approvals continued to increase. Included in the discussion were updates on I-924 information use, guidance for annual report filings, inquiries on service errors, removal of conditions, part-time versus full-time positions, duration of employment, acquisitions of existing businesses, indirect jobs, troubled businesses, job creation records, regional center geographic boundaries, and multiple investors. There was also an open forum Q&A.

USCIS Director Alejandro Mayorkas said the EB-5 program is a high priority for USCIS and that the agency realizes its job-creating potential. He noted that the implementation of premium processing will take time because the agency must draft a new form, but he said USCIS will try to speed up adjudications anyway. He also said that a decision board will be implemented soon for regional center applications, and that the agency realizes the board needs to be staffed with experts. To that end, USCIS has hired an economist and three business analysts, and is open to hiring more if needed.

Mr. Mayorkas also said USCIS is working on an EB-5 policy memorandum but will not issue a final memo until the agency receives more comments from EB-5 stakeholders.

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

RC data. USCIS noted that there are currently 173 approved RCs operating in 40 states, including the District of Columbia and Guam, which was an increase of 26 since the last stakeholder meeting. Over 90 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.

USCIS figures continue to show a steep increase in the number of RC filings and EB-5 visa approvals. The agency reported 176 initial RC proposal filings in the first three quarters of fiscal year (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 third quarter to 73; there were 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 three quarters of FY 2011, the agency approved 46 initial RC proposals and denied 23, an approval rate of 67 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 three quarters also rose to 84 percent, with 32 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 three quarters of FY 2011, USCIS received 2,608 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 1,753 received in the first three quarters. By comparison, USCIS received 768 I-829 petitions in all of FY 2010.

In the first three quarters of FY 2011, the agency approved 999 I-526 petitions and denied 224, an approval rate of 82 percent, while in all of FY 2010 USCIS approved 1,369 and denied 165, a higher approval rate of 89 percent. USCIS approved 436 I-829 petitions and denied 34 in the first three quarters, an approval rate of 93 percent, compared to approving 274 and denying 56 for all of FY 2010, an approval rate of 83 percent.

USCIS also reported that the target processing time for I-526 petitions is 5 months, and the target processing time for both initial and amended regional center proposals is 4 months. USCIS said it is “currently making adjustments to improve the accuracy of EB-5 case processing times that are published on the USCIS website and will post the case processing times once this process is finalized.” USCIS noted that the California Service Center strives to finalize EB-5 cases within 30 days after responses to RFEs are received.

USCIS is on track to approve a record number of EB-5 visas. Its preliminary estimate is that 3,706 EB-5 visas were issued as of September 12, 2011, compared to 1,885 in all of FY 2010. The previous record was 4,218 EB-5 visas issued in FY 2009.

Common issues resulting in RFEs or denials in I-924 applications. USCIS noted the following reasons why an application may receive an RFE or denial, and included some tips on how to properly complete various sections of the I-924:

1. Business Plan and Economic Analysis for Each Requested Industry Category (Form I-924, Part 7):

A. The application is not supported by a business plan and economic analysis for at least one investment project with sufficient detail to show in verifiable detail how capital investment offerings in the requested industry will create jobs;

B. Insufficient evidence and/or narrative that describes the investment project activities that the regional center will engage in for each requested industry category, to include;

  1. The proposed number of investors for the project(s);
  2. The timeline for starting and completing the projects to demonstrate the requisite job creation;
  3. A financial plan or budget including capital required and expenditures for the investment projects.

2. Reliability and Appropriateness of Data Sources for Economic Model Inputs (Form I-924, Part 7):

A. The application of national or state data in the economic model when more accurate regional data is readily available to demonstrate the economic impacts/job creation of the regional center’s investment projects;

B. The data source for economic or business activity estimates for a given investment project; e.g., the data sources for estimates regarding total revenue generated or for the estimated construction costs (if applicable) for a given project.

3. Choosing and Identifying Appropriate NAIC Codes (Form I-924, Part 7):

A. NAIC code should be appropriate to the requested industry;

B. An overly broad NAIC code may not be representative of the requested industry. For example, “NAIC Code 62” includes assisted living facilities but also covers hospitals. There may be a more appropriate [code] for the requested industry;

C. An overly narrow NAIC code may be too restrictive for the scope of the contemplated investment project(s) in the requested industry.

4. Exemplar Form I-526s submissions should be documented with evidence with the level of detail required for an I-526 petition so that the exemplar petition if approved will facilitate the review of individual Form I-526 petitions (Form I-924 instructions, page 1). An exemplar Form I-526 petition should therefore:

A. Include a Matter of Ho compliant business plan and an associated economic analysis;

B. Include project timeframes for milestones: project commencement, key construction or implementation dates, completion date, and time line for the requisite job creation;

C. Clearly request approval for an exemplar I-526 and include a copy of an exemplar I-526;

D. Include all documents needed for I-526 approval excluding an investor’s capital investment information;

E. Identify the amount and source of non-EB5 financing needed for the project.

I-924A annual report filings. USCIS noted that a Form I-924A filing will be required for all approved regional centers for FY 2011 on or before December 29, 2011. There is no filing fee for the I-924A. The I-924A supplement to the I-924 is used by approved regional centers to meet the yearly RC reporting requirement in 8 CFR 204.6(m)(6). Each approved regional center now must file the I-924A to report regional center-related activities for the preceding fiscal year within 90 days of the end of the fiscal year (on or before December 29 of the calendar year in which the fiscal year ended).

USCIS said it plans to publish on its website summarized regional center data “to be responsive to requests for this information from a broad spectrum of USCIS’ external stakeholders, to include members of Congress, other federal agencies, state agencies, and major media outlets.” This information will include attributes of the regional center-affiliated capital investments, such as the geographic areas and industry categories receiving investment capital; the volume of regional center-affiliated capital invested; and the number of jobs created or maintained as a result of the capital investments.

Geographic regions. USCIS responded to a question about what criteria are used in determining the appropriate geographical boundary for a regional center that has one initial “shovel-ready” project but is planning future projects in a larger geographical area, but the details and location of the future projects are unknown:

  • A regional center may be granted jurisdiction over a limited geographic area for the purpose of concentrating pooled investment in defined economic zones.
  • A regional center must demonstrate in the Form I-924 that its activities will focus on the requested geographic region, and not simply on isolated and unrelated areas within the region.
  • It may be more appropriate for the regional center to initially request a geographic area that is in keeping with the economic impacts of the existing project, and then subsequently file an amendment request for an expanded geographic area as the details and location of future projects become known.

USCIS’s agenda and full presentation are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=13c5f5873e661310VgnVCM100000082ca60aRCRD&vgnextchannel=e0b081c52aa38210VgnVCM100000082ca60aRCRD (scroll down to the links at the bottom).

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

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3. House Holds Hearing on Immigrant Investor Program and Job Creation

On September 14, 2011, the House of Representatives’ Subcommittee on Immigration Policy and Enforcement held a hearing on the EB-5 investor visa program. House Judiciary Committee Chairman Lamar Smith (R-Tex.) opened the hearing by declaring that the “number one job of Congress is to create jobs.” He said the investor visa program plays a part in achieving that goal. “The regional center pilot project, which is almost two decades old, has become the most used part of the investor visa program,” Rep. Smith noted. “Investment through a regional center is attractive to potential investors because they are relieved of the responsibility of running a new business and they can count indirect job creation towards the job creation requirement.” He said that the Association to Invest in the USA “has estimated that the regional center program has created or saved over 65,000 jobs in the U.S. and has led to the investment of over $3 billion in the U.S. economy,” and noted that the program is set to expire on September 30, 2012. Rep. Smith said the hearing would focus on how to continue bringing entrepreneurs to the U.S. while rooting out fraud and abuse.

Witnesses included William Stenger, President and Chief Executive Officer, Jay Peak Resort, Vermont; Daniel Healy, Chief Executive Officer, Civitas Capital Group, Texas; Jason Mendelson, Managing Director, Foundry Group, Colorado; and Shervin Pishevar, Managing Director, Menlo Ventures, California.

Mr. Stenger suggested that:

  • Congress should make the EB-5 program permanent so regional centers can concentrate on quality, long-term job-creating programs. He said that short-term extensions cripple its effectiveness because projects cannot plan correctly and potential investors do not have confidence due to the uncertainty.
  • U.S. Citizenship and Immigration Services (USCIS) should make every effort to be as efficient as possible with EB-5 case processing so that predictability can become a program asset instead of a program concern.
  • Premium processing should be allowed for EB-5 cases desiring it.
  • Regional center projects should be provided with a Business Plan Review and pre-approval before an I-526 submission takes place. Once an agreed-upon business plan is approved, it should not be revisited unless there is a substantial change.

Mr. Healy highlighted the job-creating aspects of the EB-5 program in difficult economic times, and also noted that the program costs taxpayers nothing and has an overall positive fiscal impact because of fees and taxes paid over time, in addition to jobs created. He argued strongly that unused EB-5 visas should not be reallocated to other categories and urged that Congress soon reauthorize the program permanently. “With each passing day, the uncertainty surrounding the program’s reauthorization increases, making EB-5 capital more difficult to raise and therefore hampering the job-creation goal of the program,” he noted. Mr. Healy also recommended that USCIS make premium processing available soon, which will allow regional center operators to plan for the future. (At the stakeholder meeting on September 15, 2011, USCIS Director Alejandro Mayorkas said premium processing would take time because a new form must be developed. See the full report on the stakeholder meeting in this issue.)

Mr. Healy also discussed the “exemplar” process, which refers to the ability of a regional center manager to obtain pre-approval for a project business plan before coordinating investors’ submissions of hundreds of individual petitions. “It is vitally important that this process be streamlined and that decisions by USCIS be final and not subject to reinterpretation by USCIS in the context of an individual investor’s I-526 petition,” he said.

Mr. Healy shared his personal experience with relying on an approved exemplar petition, which cost $6,230 to submit and took eight months to adjudicate, only to have investors receive requests for evidence (RFEs) “on issues that should have been addressed at the exemplar stage.” He said the process “must be reformed, standardized and streamlined so that it serves its intended purpose: eliminating uncertainty for regional centers and individual investors with respect to a particular project’s compliance with EB-5 requirements, leaving only factors related to the individual investor to be adjudicated at the I-526 stage.”

Mr. Pishevar shared his own success story as an immigrant entrepreneur, and said that reforming the legal immigration process “so that highly motivated, well-intentioned immigrant entrepreneurs who want to grow their businesses in America must be a Congressional priority.” He also said that “growing bipartisan support for the Startup Visa proposal is indeed promising.” Passing legislation encompassing much-needed reform would be a clear win for both sides of the aisle and Members of Congress need to do all that they can to break this logjam.” Mr. Pishevar noted that “this is not a Republican issue or a Democratic issue. It is an American competitiveness issue where there is a clear opportunity to create jobs and foster innovation here.”

Rep. Smith’s statement and the statements of the witnesses are available at http://judiciary.house.gov/hearings/hear_09142011.html.

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4. 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 recent 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, helped guide individual investors and others, as well as U.S. companies interested in attracting foreign investors and wealthy individuals. Each 90-minute webinar in the series explained immigration options and offered 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 on 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, was held on August 16 at 3 p.m. (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

The cost is $89 for an individual session or $249 for all three sessions, recorded. For more information, contact Lauren Anderson at lauren@abil.com.

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5. New Publications and Items of Interest

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories will be released on November 8. For more information or to order, visit https://www.abil.com/green_card.cfm.

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6. Member News

Steve Clark moderated Session 3 of the ABIL webinar series, “U.S. Investment Visas and Green Cards for Foreign Nationals.” Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, was held on August 16, 2011. Panelists included ABIL members Robert Loughran as well as Stephen Yale-Loehr and H. Ronald Klasko.

Mr. Yale-Loehr was quoted in Bloomberg Businessweek. In comments on the EB-5 program, he said, “This is a unique way for immigration to enhance the U.S. economy … at no expense to the U.S. taxpayer.”

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

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7. EB-5 Government Agency Links

USCIS Web Page on EB-5 Immigrant Investors

USCIS Policy and Procedural Memoranda on EB-5 Investors

Immigrant Investor Regional Centers List

Form I-526, Immigrant Petition by Alien Entrepreneur

Form I-829, Petition by Entrepreneur to Remove Conditions

Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program

Form I-924A, Supplement to Form I-924

https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2011-09-20 12:32:272019-04-15 12:36:03EB-5 & Other Investor News from the Alliance of Business Immigration Lawyers Vol. 1, No. 4 • September 20, 2011

News from the Alliance of Business Immigration Lawyers Vol. 7, No. 9B • September 15, 2011

September 15, 2011/in Immigration Insider /by ABIL

Headlines:

1. USCIS Institutes Direct E-Mail Communication for Regional Center Applicants – Beginning on September 13, 2011, Form I-924 applicants are able to communicate directly with USCIS adjudicators via e-mail.

2. DOL Releases H-2A Employer Filing Tips – The tips remind employers about common mistakes that may result in processing delays for temporary agricultural workers.

3. USCIS Considers Changes to Employment Authorization Policies for TPS Beneficiaries – USCIS is considering regulatory changes affecting the work authorization of temporary protected status beneficiaries and applicants.

4. SEVP Updates SEVIS Instructions, List of Approved Schools – The Student and Exchange Visitor Program has updated instructions and the list of approved schools for SEVIS.

5. U.S. Consulate in Mumbai Resumes H and L Visa Processing – The resumption in processing follows a hiatus since March due to infrastructure problems.

6. USCIS Publishes CNMI Transitional Worker Final Rule – The rule establishes a transitional worker nonimmigrant visa classification (CW) for workers in the Commonwealth of the Northern Mariana Islands.

7. Immigration and Customs Training Complex Opens in Georgia – The ICE-funded project provides a central classroom location for all ICE Academy basic and specialized training programs.

8. ABIL Global: Germany Institutes New Requirements for Electronic Travel Permit – Germany Institutes New Requirements for Electronic Travel Permit

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

10. Member News – Member News

11. Government Agency Links – Government Agency Links


Details:

1. USCIS Institutes Direct E-Mail Communication for Regional Center Applicants

USCIS is implementing the first phase in a series of proposed enhancements to the EB-5 immigrant investor program. Beginning on September 13, 2011, Form I-924 (Application for Regional Center Under the Immigrant Investor Pilot Program) applicants are able to communicate directly with USCIS adjudicators via e-mail.

USCIS intends to monitor the progress of this new line of communication to assess whether changes are needed and to implement any needed changes on a “real-time basis.” Feedback in response to the use of the direct line of communication for the I-924 may be e-mailed to opefeedback@uscis.dhs.gov.

USCIS said it “is eager to implement all of the proposed enhancements to the EB-5 program that it first announced on May 19, 2011.” USCIS is exploring how it can accelerate the implementation of premium processing, “which customarily takes months due to the need to revise the applicable forms.” USCIS said it is hiring economists and other experts who will enhance and accelerate the adjudication process and also help constitute the Decision Board that was first described on May 19.

USCIS said it will provide more information at its national stakeholder engagement on September 15. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=efccf0aec9262310VgnVCM100000082ca60aRCRD&vgnextchannel=facb83453d4a3210VgnVCM100000b92ca60aRCRD. Information on the proposed enhancements to EB-5 processing is available at http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Operartional%20Proposals%20for%20Comment/EB-5-Proposal-18May11.pdf.

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2. DOL Releases H-2A Employer Filing Tips

The Department of Labor’s Office of Foreign Labor Certification has released “H-2A Employer Filing Tips.” Based on 16 months of processing experience at the Chicago National Processing Center, the filing tips remind employers about common mistakes that may result in processing delays for temporary agricultural workers. Included are tips on pre-filing, forms, and recruitment.

The filing tips are available at http://www.foreignlaborcert.doleta.gov/pdf/650090_slaughter_H-2A_filing_tips_8-29-11.pdf. A FAQ on the H-2A program is available at http://www.foreignlaborcert.doleta.gov/pdf/H-2AFAQsRound3fnl.pdf.

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3. USCIS Considers Changes to Employment Authorization Policies for TPS Beneficiaries

On September 8, 2011, U.S. Citizenship and Immigration Services’ Office of Policy and Strategy and Office of Public Engagement held a teleconference to discuss the employment authorization of temporary protected status (TPS) beneficiaries and applicants.

USCIS initiated a review of the current policies related to TPS in 2010. During this review, USCIS noted that 8 CFR § 244.12:

  • Allows TPS beneficiaries and applicants who have TPS withdrawn or denied to remain authorized for work until their employment authorization documents (EADs) expire, rather than upon withdrawal or denial; and
  • Extends the employment authorization of TPS beneficiaries or applicants whose TPS has been withdrawn or denied through any appeal to the Administrative Appeals Office (AAO) and/or a de novo determination during removal proceedings.

USCIS explained that TPS beneficiaries are authorized to work based on their status. TPS applicants who are found to be prima facie eligible for TPS may also receive employment authorization as a “temporary treatment benefit” while their TPS applications remain pending. USCIS is considering a regulatory change that would terminate their employment authorization if TPS is withdrawn or denied, rather than allow it to exist until the expiration of their EADs. Additionally, USCIS is considering:

  • Whether a person who has appealed a TPS denial or withdrawal decision to the AAO or who has sought de novo review of such a decision in removal proceedings should be permitted, in certain circumstances, to request that USCIS issue an EAD while his or her TPS request is under review; and
  • If so, what limitations, if any, should be placed on the EADs that may be issued while an AAO appeal is pending or while the TPS request is under review in removal proceedings.

The USCIS notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ad140013f0602310VgnVCM100000082ca60aRCRD&vgnextchannel=994f81c52aa38210VgnVCM100000082ca60aRCRD.

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4. SEVP Updates SEVIS Instructions, List of Approved Schools

U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program (SEVP) released updated instructions on September 7, 2011, for users of the Student and Exchange Visitor Information System (SEVIS). The instructions include information for new users, users with deleted SEVIS access, those deleting or terminating access, and password resets. Also, on September 1, SEVP released an updated list of approved schools, along with an approved schools map.

The updated instructions are available at http://www.ice.gov/doclib/sevis/pdf/sevis-instructions-to-all-users-pics-access.pdf. The latest list of approved schools is available at http://www.ice.gov/doclib/sevis/pdf/ApprovedSchools.pdf. The map is available at http://www.ice.gov/sevis/map/approvedschoolsmap.htm.

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5. U.S. Consulate in Mumbai Resumes H and L Visa Processing

The U.S. Consulate General in Mumbai recently announced the resumption of interviews for H and L visas, after a stoppage beginning in March 2011 due to aging infrastructure. In 2010, Indian applicants received 65 percent of all H-1B visas issued worldwide. All interviews will be conducted at the Lincoln House Consulate building, located at 78, Bhulabhai Desai Road, until further notice. Visa appointments may be made online via VFS at http://www.vfs-usa.co.in/ApplnForms/SchduleMenu.aspx. The announcement is available at http://mumbai.usconsulate.gov/interviews-and-appointments.html.
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6. USCIS Publishes CNMI Transitional Worker Final Rule

U.S. Citizenship and Immigration Services (USCIS) published a final rule on September 7, 2011, that establishes a transitional worker nonimmigrant visa classification (CW) for workers in the Commonwealth of the Northern Mariana Islands (CNMI). The CW classification allows employers in the CNMI to hire nonimmigrant workers who are otherwise ineligible to work.

A foreign worker may be eligible for CW status if he or she is:

  • Ineligible for a nonimmigrant or immigrant classification under the Immigration and Nationality Act;
  • Entering or staying in the CNMI to work as a needed foreign national worker to supplement the resident workforce;
  • The beneficiary of a petition filed by a legitimate employer who is doing business in the CNMI;
  • Not present in the United States, other than the CNMI;
  • Lawfully present in the CNMI or, if not present, intending to enter the CNMI with a visa; and
  • Admissible to the United States or has received any necessary waiver of a ground of inadmissibility.

An employer may be eligible to petition for a CW worker if the employer:

  • Is conducting a legitimate business, as defined in the final rule;
  • Has considered all available U.S. workers for the position;
  • Offers terms and conditions of employment consistent with the nature of the employer’s business in the CNMI;
  • Is complying with federal and CNMI employment requirements;
  • Files a Form I-129CW, Petition for CNMI-Only Nonimmigrant Transitional Worker, and a CW-1 Classification Supplement with USCIS; and
  • Submits the appropriate filing fees.

In most cases, employers may file for multiple beneficiaries on the same form. The filing fees needed to obtain CW status include:

  • A $325 fee for the Form I-129CW;
  • A mandatory CNMI education funding fee of $150 per beneficiary per year; and
  • A biometric fee of $85 if the worker is located in the CNMI.

A limited number of CW visas are available each fiscal year, based on the CNMI government’s estimate of nonresident workers. The numerical limitation for fiscal year (FY) 2011 is 22,417 and for FY 2012 will be 22,416. The final rule mandates that the limitation must drop annually and that the Department of Homeland Security determine the fiscal year limitation for CW workers for subsequent fiscal years beginning in FY 2013.

The CW visa classification is valid only in the CNMI and provides no basis for travel or work in any other part of the United States, except for nationals of the Philippines, who may travel between the Philippines and the CNMI through the Guam airport. The final rule also provides for the grant of derivative CW status to spouses and minor children of CW workers.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3b0403dca1042310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The final rule is available at http://www.gpo.gov/fdsys/pkg/FR-2011-09-07/html/2011-22622.htm. A Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=378603dca1042310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. For more information and announcements on immigration benefits specific to the CNMI, see http://www.uscis.gov/cnmi.

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7. Immigration and Customs Training Complex Opens in Georgia

A new training complex for U.S. Immigration and Customs Enforcement (ICE) special agents and officers recently opened in Georgia, co-located with the Federal Law Enforcement Training Center (FLETC). The new ICE Academy complex includes four computer labs, nine classrooms, two electronics labs, and two breakout rooms.

The ICE-funded project provides a central classroom location for all ICE Academy basic and specialized training programs. The classroom complex will house ICE’s two basic training programs: ICE Enforcement and Removal Basic Law Enforcement Training and ICE Homeland Security Investigations Special Agent Training. Specialized ICE programs designated for the building include technical enforcement, Spanish language, and instructor development courses.

In fiscal year 2010, the ICE Academy trained nearly 4,000 ICE employees, enrolled in more than 30 training programs. FLETC serves as an interagency law enforcement training organization for 90 federal agencies. In addition, the organization provides training to state, local, campus, tribal, and international law enforcement agencies. During FY 2010, over 65,000 students trained at the FLETC centers. Since its inception in 1970, nearly 940,000 law enforcement officers and agents have been trained at the largest law enforcement training organization in the country.

Headquartered on a 1,600-acre campus at Glynco, FLETC also operates facilities in Artesia, NM; Charleston, SC; and Cheltenham, MD. Additionally, FLETC has oversight responsibility on behalf of the Department of Homeland Security for the International Law Enforcement Academy (ILEA) at Gaborone, Botswana; assists in the management of the ILEA in Bangkok, Thailand; and supports training at each of these ILEAs, as well as the ILEA in Budapest, Hungary, and San Salvador, El Salvador.

The announcement is available at http://www.fletc.gov/news/press-releases/fletc-opens-2.5m-state-of-the-art-ice-academy-classroom-complex.

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8. ABIL Global: Germany Institutes New Requirements for Electronic Travel Permit

Since September 1, 2011, applicants for a German electronic residence permit (elektronischer Aufenthaltstitel or eTA) must attend an in-person meeting at the foreigner’s office (together with any family members). Fingerprints and biometric photographs will be taken. The conventional residence permit (adhesive label), the residence card and permanent residence card, and the replacement ID in paper form are being replaced by the electronic residence permit, which will be granted in a credit card-style format.

The electronic residence permit is equipped with a contact-free chip inside the card on which biometric features (photograph and two fingerprints), ancillary conditions (special requirements), and personal data are saved. In addition, the chip is capable of being used as an electronic identity document and qualified electronic signature. The photograph is saved on the body of the card and on the chip. Two fingerprints will also be saved on the chip for all residents of non-member states age 6 and up. For that reason, it is necessary to appear in person for the application.

Only official entities (such as the police of aliens authorities) are authorized to access the photograph and fingerprints. Ancillary conditions are saved on the chip and on a unique supplementary sheet that comes with the electronic residence permit.

Authorized service providers such as banks and official authorities may offer electronic services in which the holder identifies himself or herself electronically using the electronic residence permit. This simplifies the process of such activities as logging into Internet portals, filling out forms, and verifying one’s age on the Internet or at machines. Only providers who possess state authorization will receive access to the holder’s data. In addition, the holder must confirm the transfer of his or her personal data with a six-digit PIN number. The service providers are not able to read the biometric features when using the online identification function.

The electronic residence permit can also save a certificate with a qualified electronic signature. This provides electronic residence permit holders with the option of signing legally effective digital documents if desired.

The permits are not produced by the foreigner’s offices and must be picked up. However, there is no need for the applicant to appear in person and it is possible to grant a power of attorney to allow another person to pick up the permit.

Finally, any permit that was granted before September 1, 2011, will remain valid until no later than April 30, 2021.

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9. New Publications and Items of Interest

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories will be released on November 8. For more information or to order, visit https://www.abil.com/green_card.cfm.

E-Verify/Form I-9 Webinars. The Department of Homeland Security is offering free webinars on E-Verify and the Form I-9 process. Upcoming webinars include the “E-Verify Overview,” to be held on Tuesday, September 27, at 2 p.m. EST, and Wednesday, September 28, at 10 a.m. EST; “E-Verify for Existing Users,” to be held on Thursday, September 29, at 11 a.m. EST; “E-Verify for Federal Contractors,” to be held Wednesday, September 28, at 2 p.m. EST; “Form I-9 Webinar,” to be held Thursday, September 22, at 10 a.m. EST; and “E-Verify Self-Check,” to be held Friday, September 16, at 2 p.m. EST, Thursday, September 22, at 2 p.m. EST, and Tuesday, September 27, at 10 a.m. EST. For more information or to register, see http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=413628ac1dc0c210VgnVCM100000082ca60aRCRD&vgnextchannel=413628ac1dc0c210VgnVCM100000082ca60aRCRD.

GAO report on DHS ten years after 9/11. In a new report, the U.S. Government Accountability Office (GAO) notes that the terrorist attacks of September 11, 2001, led to profound changes in U.S. government agendas, policies, and structures to confront homeland security threats facing the nation. Most notably, the Department of Homeland Security (DHS) began operations in 2003 with key missions that included preventing terrorist attacks from occurring in the U.S., reducing the country’s vulnerability to terrorism, and minimizing the damages from any attacks that may occur. DHS is now the third-largest federal department, with more than 200,000 employees and an annual budget of more than $50 billion. Since 2003, the GAO has issued over 1,000 reports on DHS’s operations in such areas as border and transportation security and emergency management. The report addresses DHS’s progress and challenges in implementing its homeland security missions since it began operations, and issues affecting implementation efforts.

The GAO report is available at http://www.gao.gov/new.items/d11919t.pdf.

Enhancements to DOL enforcement website. The Department of Labor recently updated its enforcement database website. Among other things, the website provides data on Wage and Hour Division (WHD) compliance, such as all concluded WHD compliance actions since FY 2007, including whether any violations were found and the back wage amount, number of employees due back wages, and civil money penalties assessed. See http://ogesdw.dol.gov/raw_data_summary.php.

USCIS Ombudsman upcoming events. The USCIS Ombudsman’s Office plans several upcoming events, including open houses on Monday, September 26, 2011 (4 to 6 p.m.) and Tuesday, September 27, 2011 (12 noon to 2 p.m.). The open houses will feature an informal discussion of the 2011 Annual Report, recent recommendations, the Ombudsman’s Case Assistance Online Pilot Program, and case assistance. Also, the Ombudsman’s first annual conference is scheduled for October 20, 2011. For more information, e-mail CISOmbudsman.PublicAffairs@dhs.gov or call (202) 357-8100.

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10. Member News

ABIL members and firms named to the 2012 “Best Lawyers” list include:

INDIVIDUALS

Francis Chin

Laura Danielson

Steve Garfinkel

Kehrela Hodkinson

Mark Ivener

H. Ronald Klasko

Charles Kuck

Edward Litwin

Robert Loughran

Sharon Mehlman

Cyrus Mehta

Angelo Paparelli

Julie Pearl

William Reich

Steve Trow

Bernard Wolfsdorf

Stephen Yale-Loehr

FIRMS

Chin & Curtis, LLP

FosterQuan, LLP

Fredrikson & Byron, PA

Garfinkel Immigration Law Firm

Klasko, Rulon, Stock & Seltzer, LLP

Kuck Immigration Partners LLC

Larrabee, Mehlman, Albi & Coker LLP

Maggio + Kattar PC

Cyrus D. Mehta & Associates, PLLC

Pearl Law Group

Serotte Reich & Wilson

Trow & Rahal, P.C.

For more information, see http://www.bestlawyers.com/.

Several ABIL members were also named among the “Nation’s 20 Most Powerful Immigration Attorneys” by HR Executive Magazine, including:

H. Ron Klasko

Angelo Paparelli

Julie Pearl

Bernard Wolfsdorf

For the full list, see http://www.humanresourceexecutive-digital.com/humanresourceexecutive/20110616?pg=52#pg52.

Charles Kuck appeared on Fox News on September 4, 2011, to debate immigration “amnesty” programs with Dan Stein of the Federation for American Immigration Reform.

Cyrus Mehta has posted several new blog entries. “Personal Reflections 10 Years After 9/11 As An Immigration Attorney” is available at http://cyrusmehta.blogspot.com/2011/09/reflecting-on-911-after-10-years-as.html. “Going Beyond the Politics of Discretion in the American Immigration System” is available at http://cyrusmehta.blogspot.com/2011/09/going-beyond-politics-of-discretion-in.html.

Angelo Paparelli has posted several new blog entries. “A Decade After 9/11: The Fear of Lax Immigration Enforcement Still Haunts America” is available at ” http://bit.ly/mYzTUW. “Executive Craftsmanship: Job Creation through Existing Immigration Laws” is available at http://www.nationofimmigrators.com/immigration-reform/executive-craftsmanship-job-creation-through-existing-immigration-laws/.

Stephen Yale-Loehr was quoted in “For Illegal-Immigrant Students, New Policy on Deportations Offers Limited Relief,” published in the Chronicle of Higher Education on September 1, 2011. Commenting on the Obama administration’s new policy to suspend removals for low-risk undocumented students and others, Mr. Yale-Loehr said, “This policy merely continues their legal limbo.” The article is available at http://chronicle.com/article/For-Illegal-Immigrant/128866/?key=T2t2d1RhaiRIZnxlajlEbzdTaXI8ZhkkMCZHbitwblpXFw%3D%3D.

Stephen Yale-Loehr and H. Ronald Klasko spoke at the Invest In the USA association meeting in Washington, DC, on September 15, 2011. Mr. Klasko spoke on current EB-5 policy and administrative issues; Mr. Yale-Loehr spoke 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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11. 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

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2011-09-15 00:00:542019-09-06 13:22:33News from the Alliance of Business Immigration Lawyers Vol. 7, No. 9B • September 15, 2011

News from the Alliance of Business Immigration Lawyers Vol. 7, No. 9A • September 01, 2011

September 01, 2011/in Immigration Insider /by ABIL

Headlines:

1. DOL Suspends Prevailing Wage Determinations – Processing of prevailing wage determinations (PWDs), redeterminations, and Center Director Reviews have been suspended temporarily; prevailing wage requests filed since early June 2011 are still pending.

2. Ombudsman Recommends That USCIS Improve EAD Process – The Ombudsman noted that many problem areas remain unaddressed.

3. Obama Administration Announces Focus on High-Risk Cases in Removal Proceedings – Secretary of Homeland Security Janet Napolitano announced that the Obama administration plans to focus removal efforts on high-priority cases such as convicted felons and others posing a threat to public safety, and to initiate a related interagency case-by-case review.

4. USCIS Announces Extension of Deferred Enforced Departure for Liberians – Employment authorization is extended automatically for eligible Liberian nationals covered under deferred enforced departure (DED) through March 31, 2012.

5. ABIL Preparing Amicus Curiae Brief on Extraordinary Ability Case – This decision will critically affect the adjudication of immigrant petitions for persons of extraordinary ability, outstanding professors or researchers, and exceptional ability immigrants.

6. USCIS Issues Policy Memo on B-2 Extensions for Cohabiting Partners and Other Household Members of Principal Nonimmigrants – The new policy memorandum on B-2 extensions for cohabiting partners and other household members of principal nonimmigrants clarifies, among other things, that one or more extensions are appropriate in the exercise of discretion for household members, including the cohabitating partner of a principal nonimmigrant visa holder, when other eligibility requirements are met.

7. USCIS Redesigns Customer Service Center 1-800 Options – USCIS shortened and reorganized the menu options.

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

9. Member News – Member News

10. Government Agency Links – Government Agency Links


Details:

1. DOL Suspends Prevailing Wage Determinations

The Department of Labor (DOL) recently announced that the Office of Foreign Labor Certification’s (OFLC) National Prevailing Wage Center (NPWC) has suspended temporarily processing of prevailing wage determinations (PWDs), redeterminations, and Center Director Reviews. The NPWC handles PWDs for the PERM labor certification, H-1B, H-1B1 (Chile/Singapore), H-2B, and E-3 programs. As a result of the suspension, prevailing wage requests filed since early June 2011 are still pending. Previously, such requests were routinely processed in three to four weeks.

DOL also published a final rule on wage methodology for the H-2B (temporary nonagricultural employment) program, effective September 30, 2011.

In response to practitioners’ inquiries concerning pending requests, the NPWC has been issuing the following e-mail:

The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule will be published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC. If you have further questions concerning your PWD, please contact 202-693-3010.

The American Immigration Lawyers Association (AILA) published notes on a stakeholder call with the Department of Labor (DOL) about this topic. Among other things, Dr. Bill Carlson, a representative from the Office of Foreign Labor Certification, said that DOL was very aware of the impact of the prevailing wage hold and that the agency has been reviewing all appropriate suggestions from stakeholders. However, in considering possible suggestions, he stated that DOL was not considering any proposal that would require waiving regulatory requirements. DOL must issue all of the H-2B wage redeterminations before September 30 to comply with the court order. The stakeholder notes say that after DOL has cleared the H-2B wage redeterminations, it will then move resources to H-2B processing and must process those cases within 30 days. As those are processed, DOL will begin working on PERM and H-1B wage requests.

The Department of Labor’s final rule, published at 76 Fed. Reg. 45667 (Aug. 1, 2011), is available at http://www.gpo.gov/fdsys/pkg/FR-2011-08-01/pdf/2011-19319.pdf. AILA’s notes are available at http://xa.yimg.com/kq/groups/15854395/1728587735/name/AILA-DOL%20stakeholder%20call%208-18-11.pdf.

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2. Ombudsman Recommends That USCIS Improve EAD Process

The Ombudsman for U.S. Citizenship and Immigration Services (USCIS) recently made recommendations focused on delays due to processing and adjudications issues of employment authorization document (EAD) applications. The Ombudsman noted that although USCIS has implemented procedures to resolve certain issues, many problem areas have not been addressed. When processing is delayed, the Ombudsman noted, “individuals and employers experience significant adverse consequences such as job loss and disruption in business operations.” The Ombudsman recommended specific actions that USCIS can take to improve the EAD process, including:

  1. Establishing methods at local offices to facilitate immediate resolution;
  2. Establishing a uniform processing time goal of 45 days for adjudication and 60 days for issuance of an EAD;
  3. Improving monitoring and ensuring real-time visibility through an automated system for tracking processing times;
  4. Following established internal procedures for issuing interim EADs in cases where background checks are pending; and
  5. Issuing replacement EADs with validity dates beginning on the date the old EAD expires.

The Ombudsman identified several ways to implement these recommendations that build upon existing USCIS processes.

The Ombudsman’s recommendations are available at http://www.dhs.gov/xlibrary/assets/cisomb-employment-authorization-documents-07182011.pdf.

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3. Obama Administration Announces Focus on High-Risk Cases in Removal Proceedings

On August 18, 2011, Secretary of Homeland Security Janet Napolitano announced that the Obama administration plans to focus removal efforts on high-priority cases such as convicted felons and others posing a threat to public safety, and to initiate an interagency case-by-case review to ensure that both those currently in removal proceedings and new cases placed in removal proceedings meet those priorities. Secretary Napolitano cautioned that this process “will not provide categorical relief for any group.”

A related memorandum from U.S. Immigration and Customs Enforcement (ICE) issued in June on prosecutorial discretion notes:

The following positive factors should prompt particular care and consideration:

  • veterans and members of the U.S. armed forces;
  • long-time lawful permanent residents;
  • minors and elderly individuals;
  • individuals present in the United States since childhood;
  • pregnant or nursing women;
  • victims of domestic violence; trafficking, or other serious crimes;
  • individuals who suffer from a serious mental or physical disability; and
  • individuals with serious health conditions.

In exercising prosecutorial discretion in furtherance of ICE’s enforcement priorities, the following negative factors should also prompt particular care and consideration by ICE officers, agents, and attorneys:

  • individuals who pose a clear risk to national security;
  • serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind;
  • known gang members or other individuals who pose a clear danger to public safety; and
  • individuals with an egregious record of immigration violations, including those with a record of illegal re-entry and those who have engaged in immigration fraud.

The new focus on only deporting high-priority cases, such as criminals, does not amount to an amnesty program for others, as Secretary Napolitano noted. Nor does the new policy necessarily mean that people whose removal cases are stayed can obtain work permits. They will remain in immigration limbo: not in removal proceedings but not legal either. A consumer advisory warning immigrants about the limited nature of the administration’s new policy is at http://www.aila.org/content/default.aspx?docid=36705.

Secretary Napolitano’s letter is available at http://blogs.suntimes.com/sweet/11-8949_Durbin_Dream_Act_response_08.18.11.pdf. The ICE memo is available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf. An ICE FAQ about the new policy is at http://www.ice.gov/doclib/about/offices/ero/pdf/immigration-enforcement-facts.pdf.

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4. USCIS Announces Extension of Deferred Enforced Departure for Liberians

U.S. Citizenship and Immigration Services (USCIS) announced on August 16, 2011, its intention to extend employment authorization automatically for Liberian nationals covered under deferred enforced departure (DED) through March 31, 2012. USCIS’s announcement follows President Obama’s announcement of his decision to extend DED through March 31, 2013, for qualified Liberians and those persons without nationality who last habitually resided in Liberia. The six-month automatic extension of existing employment authorization documents (EADs) for eligible Liberians will permit them to continue working while they file their applications for new EADs. The new EADs will be effective for the full 18 months of the DED extension.

Although DED was scheduled to end for Liberian nationals on September 30, 2011, the administration decided that there are compelling foreign policy reasons to continue deferring enforced departure.

Liberians not eligible for DED include:

  • Those who did not have temporary protected status (TPS) on September 30, 2007, and are therefore not covered under current DED;
  • Certain criminals (e.g., aggravated felons and persons convicted of two misdemeanors);
  • Persons subject to the mandatory bars to TPS; and
  • Other ineligible persons as described in the President’s related memorandum.

In addition to automatically extending the validity of EADs for Liberian nationals covered under DED, USCIS published a notice in the Federal Register with instructions for these individuals on how to obtain employment authorization for the remainder of the DED extension. Liberian nationals covered under DED also must include the Application for Employment Authorization (Form I-765) and a filing fee of $380 or a fee waiver request.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=db50a859e04d1310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The President’s memorandum is available at http://www.whitehouse.gov/the-press-office/2011/08/16/memorandum-president-regarding-deferred-enforced-departure-liberians. The Federal Register notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-08-25/html/2011-21842.htm.

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5. ABIL Preparing Amicus Curiae Brief on Extraordinary Ability Case

The Alliance of Business Immigration Lawyers (ABIL) is preparing an amicus curiae (“friend of the court”) brief to the Administrative Appeals Office (AAO) in response to U.S. Citizenship and Immigration Services’ (USCIS) recent request concerning the appeal of a denied immigrant petition for a foreign national seeking to be classified as an alien of extraordinary ability. This decision will critically affect the adjudication of immigrant petitions for persons of extraordinary ability, outstanding professors or researchers, and exceptional ability immigrants. In ABIL’s view, USCIS misread the U.S. Court of Appeals for the Ninth Circuit when it reviewed an AAO decision dismissing the appeal of an extraordinary ability petition. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).

Among other things, the Kazarian court firmly reminded both the USCIS and the AAO that they must carefully apply the statutory and regulatory requirements when performing their duties. Although the “extraordinary ability” visa requirements are restrictive, the AAO cannot impose arbitrary requirements on applicants. By forcing the USCIS and the AAO to make their determinations based on the regulations exactly as written, the Ninth Circuit has assured that the burden placed on future “extraordinary ability” visa applicants will not be higher than what the immigration regulations require. The Kazarian court scolded USCIS for making up and applying extra-regulatory evidentiary requirements, yet USCIS has responded by requiring a “final merits determination” analysis.

The amicus brief will be prepared by ABIL members Bernard Wolfsdorf, Cyrus Mehta, Robert Loughran, Charles Kuck, and Angelo Paparelli. Sadly, the implementation of USCIS’s erroneous policy has resulted in almost one-third, or about 12,000, first preference immigrant visa numbers going “unused” last year as the top foreign nationals in the sciences, arts, education, business, or athletics have been turned away in droves, only to make other countries more competitive.

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6. USCIS Issues Policy Memo on B-2 Extensions for Cohabiting Partners and Other Household Members of Principal Nonimmigrants

U.S. Citizenship and Immigration Services’ new policy memorandum on B-2 extensions for cohabiting partners and other household members of principal nonimmigrants does not change eligibility requirements for change of status to B-2, or extension of B-2 status. Rather, it clarifies that such a change and/or one or more extensions are appropriate in the exercise of discretion for household members, including the cohabitating partner of a principal nonimmigrant visa holder, when other eligibility requirements are met.

When evaluating an application for change to or extension of B-2 status based on cohabitation, the memo states, the cohabitating partner’s relationship to the principal nonimmigrant in another status will be considered a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification. When considering a change of status and/or multiple extensions for the cohabitating partner or other household member, the finite nature of the stay, rather than the duration of the stay or number of extensions sought, is controlling with respect to nonimmigrant intent. For example, the visit should be considered temporary even if the status may be extended several times over several years to match an extended course of study undertaken by the principal. However, while the I-539 (B-2) application must be adjudicated on its own merits, the memo notes, a finding that the principal nonimmigrant lacks nonimmigrant intent is a negative factor in the exercise of discretion.

The policy memorandum is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2011/August/Cohabitating_Partners_PM_081711.pdf.

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7. USCIS Redesigns Customer Service Center 1-800 Options

U.S. Citizenship and Immigration Services (USCIS) recently redesigned its Interactive Voice Response System (IVR), accessible via the National Customer Service Center. Among other things, USCIS shortened and reorganized the menu options. The new IVR has three main menu options, a decrease from the 10 options previously in place. The three new options are Immigration Services, Immigration Information, and Special Programs and Other Resources.

The NCSC main number is 1-800-375-5283. Those who are outside the United States and have filed an application or petition with a USCIS Service Center may call 785-330-1048 to check the status of their case via an automated system.
For more information, see http://www.aila.org/content/default.aspx?docid=36776 and http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=943696981298d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=ddce0b89284a3210VgnVCM100000b92ca60aRCRD.

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8. New Publications and Items of Interest

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories will be released on November 8. For more information or to order, visit https://www.abil.com/green_card.cfm.

Reforming employment-based immigration. The National Foundation for American Policy recently published “Reforming America’s Regulations and Policies on Employment-Based Immigration,” a policy brief that makes recommendations and advocates making changes to the U.S. immigration system to attract and keep highly skilled foreign-born workers in the U.S. The report is available at http://www.nfap.com/pdf/ReformingEmploymentBasedImmigration.NFAPPolicyBrief.Aug2011.pdf.

E-Verify “Self Check” available in Spanish, additional states. U.S. Citizenship and Immigration Services (USCIS) recently announced that “Self Check,” a free online E-Verify service that allows workers to check their own employment eligibility status, is now available in Spanish and accessible to residents in 16 additional states: California, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, Ohio, South Carolina, Texas, Utah, and Washington. Self Check initially was launched in March 2011 for residents of Arizona, Colorado, Idaho, Mississippi, Virginia, and the District of Columbia. The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=080477c3bddc1310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The Spanish-language version of E-Verify Self Check is available at http://www.uscis.gov/portal/site/uscis-es/menuitem.e693c9cf3c2f7d18d52fae1074a191a0/?vgnextoid=3ad29bacc22e0310VgnVCM100000082ca60aRCRD&vgnextchannel=3ad29bacc22e0310VgnVCM100000082ca60aRCRD.

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9. Member News

Charles Kuck was quoted on CNN.com on August 26, 2011. A day after new Obama administration guidelines focusing removal efforts on high-risk cases were released, Mr. Kuck argued in court that his clients’ cases should be dropped under the new guidelines. The clients were released from a detention center. “These kids were detained for months. We had previously asked for their release numerous times,” he said. “It was only after the memo came out that they were released.”

Cyrus Mehta has posted several new blog entries. The blog “Final Immigration Lesson from the Dismissal of the Strauss-Kahn Case” analyzes the concern that in the future immigrants may be more reluctant to come forward and press charges if they have been victims of sex crimes. The blog is available at http://cyrusmehta.blogspot.com/2011/08/final-immigration-lesson-from-dismissal.html. “Fewer People To Get Deported Under New Policy: Has the Administration Finally Come To Its Senses?” discusses a new policy to identify low-priority removal cases for the exercise of prosecutorial discretion. The blog is available at http://cyrusmehta.blogspot.com/2011/08/fewer-people-to-get-deported-under-new.html.

Angelo Paparelli has posted several new blog entries. The blog “A Cancer Within the Immigration Agency” discusses USCIS’s new Fraud Detection and National Security Directorate. The blog is available at http://www.nationofimmigrators.com/enforcementusice/a-cancer-within-the-immigration-agency/index.html. “In Praise of Immigrant DREAMers” discusses undocumented youth who dream of living out their aspirations in the U.S. The blog is available at http://www.nationofimmigrators.com/immigration-reform/in-praise-of-immigrant-dreamers/.

Stephen Yale-Loehr was quoted in the August 18, 2011, edition of the New York Times (“Fewer Youths To Be Deported in New Policy”). Commenting on the Obama administration’s new policy of focusing on high-priority threats to public safety when making removal decisions, Mr. Yale-Loehr said the new policy could benefit “illegal immigrants who were stopped for traffic violations and thrown into deportation proceedings, as well as people whose only violation of immigration law is that they stayed beyond the expiration of their visas or worked here illegally.” The article is available at http://www.nytimes.com/2011/08/19/us/19immig.html.

Mr. Yale-Loehr co-wrote an article that was referenced in “Reforming America’s Regulations and Policies on Employment-Based Immigration,” released on August 17, 2011, by the National Foundation for American Policy. Mr. Yale-Loehr’s article, “Attracting the Best and Brightest: A Critique of Current U.S. Immigration System,” was originally published in 38 Fordham Urban Law Journal 183 (2010).

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10. 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

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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