GERMANY: Immigration Documents Going Electronic

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The conventional residence permit, 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.

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.

AUSTRALIA: Caution When Dismissing Sponsored Employees

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Sponsors should be cautious when considering dismissal of 457 visa holders. As with their Australian counterparts, 457 visa holders have access to employment remedies under the Fair Work Act. Even where a sponsored employee’s employment is terminated under an employment agreement, the dismissal may still be held to be harsh, unjust, or unreasonable. Under Australian immigration law, when a sponsored employee’s employment is terminated, he or she has just 28 days to regularize visa status or leave Australia.

If sponsors fail to comply with relevant workplace law, Fair Work Australia may order one of two sanctions: compensation or reinstatement. This could also affect the sponsor’s continued ability to sponsor expatriates.

When determining whether a dismissal is harsh, unjust, or unreasonable, Fair Work Australia takes into account, among other factors, whether:

  • there was a valid reason for the dismissal;
  • the person was notified of the reason;
  • the person was given an opportunity to respond to any reason related to his or her capacity or conduct; and
  • the person received a warning about unsatisfactory performance before the dismissal.

In Webster v Mercury Colleges Pty. Ltd., Fair Work Australia held that termination of a sponsored teacher was unfair because of the serious financial consequences to the teacher and the social dislocation that was inevitable as a result of his summary dismissal.

In Richard Patemella v Electroboard Solutions Pty. Ltd., the tribunal held that the dismissal was harsh because the employee was not given any warning that his employment was at risk, limiting his opportunity to mitigate his job loss and, as a result, his ability to remain in Australia.

The Fair Work Act requires employees in Australia, including sponsored visa holders, to lodge an unfair dismissal claim with Fair Work Australia within 14 days of their dismissal unless the tribunal is satisfied that there are exceptional circumstances for the delay. The recent decision in Usman Ali v Industries Services Training Pty. Ltd. held that the potentially severe impact on a 457 visa holder of losing his job constituted exceptional circumstances justifying a one-day delay in lodging an unfair dismissal claim.

News from the Alliance of Business Immigration Lawyers Vol. 8, No. 1B • January 15, 2012

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Headlines:

1. China, India Visa Number Priority Cut-Off Dates Move Forward – The China and India cut-off dates continue to move forward, in some cases at a rapid rate.

2. U.S. Consulate in Chennai Stops Processing Immigrant Visa Petitions – The U.S. embassy in New Delhi and U.S. consulate in Mumbai are now the only acceptance centers in India for immigrant visa applications.

3. Justice Dept. Settles with University of California San Diego Medical Center – The Department had alleged that the medical center subjected newly hired non-U.S. citizens to excessive demands for documents to verify their employment eligibility.

4. USCIS Considers Allowing Provisional Waivers for Immediate Relatives – USCIS is considering regulatory changes that will allow certain immediate relatives of U.S. citizens to request provisional waivers before departing the United States for consular processing of their immigrant visa applications.

5. USCIS Seeks Comments on Draft L-1 Templates – In addition to comments on the individual draft templates, USCIS also seeks stakeholder input on broader issues.

6. Pakistani Students Come to U.S. Under Global Undergraduate Exchange Program – Global UGRAD-Pakistan provides an international academic exchange experience at a U.S. college or university for 200 emerging student leaders from underserved demographic groups or geographic areas in Pakistan.

7. Brazil’s ‘Science Without Borders’ Program Sends 650 Students to United States – Brazilian President Dilma Rousseff’s “Science Without Borders” program will support as many as 101,000 outstanding Brazilian students for international study in the areas of science, technology, engineering, and mathematics in the next four years.

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. China, India Visa Number Priority Cut-Off Dates Move Forward

The Department of State’s Visa Bulletin for February 2012 shows that the China and India cut-off dates continue to move forward, in some cases at a rapid rate.

For February, the China employment-based second preference cut-off date has advanced a year to January 1, 2010. Also for February, the China employment-based third preference cut-off date is December 1, 2004, advancing a month and a half from January’s cut-off date, when it was October 15, 2004. The third preference “Other Workers” category remains unchanged at April 22, 2003.

For February, the India employment-based second preference cut-off date is January 1, 2010, also advancing a year. Also for February, the India employment-based third preference cut-off date is August 15, 2002, advancing a week from January’s cut-off date. The third preference “Other Workers” category for India in February is August 15, 2002, a two-week advance from January. The Visa Office explained in the February bulletin:

China and India: Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low. This fact has required the continued rapid forward movement of the cut-off date, in an attempt to generate demand and maximize number use under the annual limit. Once the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off. Readers are once again advised that an eventual need to retrogress the cut-off date is also a distinct possibility.

Also, in the January bulletin, the Visa Office noted:

The China and India Employment Second preference cut-off date has been advanced at a rapid rate in recent months. As previously noted, this action was intended to generate significant levels of new filings for adjustment of status at U.S. Citizenship and Immigration Services (USCIS) offices. USCIS has reported that the rate of new filings is currently far below that which they had anticipated, prompting an even more aggressive movement of the cut-off date for January and possibly beyond. While this action greatly increases the potential for an eventual retrogression of the cut-off at some point during the year, it also provides the best opportunity to utilize all numbers available under the annual limit.

The February 2012 bulletin notes that those categories with a “Current” projection will remain so for the foreseeable future. The Visa Office estimates that other employment-based categories not discussed above could also advance by up to one month per month in the near future, including the Worldwide, Mexico, and Philippines categories, depending on demand. The Visa Bulletin for February 2012 is available at http://www.travel.state.gov/visa/bulletin/bulletin_5640.html.

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2. U.S. Consulate in Chennai Stops Processing Immigrant Visa Petitions

As of January 1, 2012, the U.S. Consulate General in Chennai, India, is no longer processing immigrant visa petitions. The U.S. embassy in New Delhi and U.S. consulate in Mumbai are now the only acceptance centers in India for immigrant visa applications. Applicants currently in the process of petitioning for an immigrant visa may e-mail ChennaiIVU@state.gov for clarification of their status.
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3. Justice Dept. Settles with University of California San Diego Medical Center

The Department of Justice reached an agreement on January 4, 2012, with the University of California San Diego Medical Center, resolving a complaint filed on December 6, 2011, alleging that the medical center failed to comply with proper employment eligibility verification processes for noncitizens authorized to work in the United States.

Specifically, the Department’s complaint alleged that the medical center subjected newly hired non-U.S. citizens to excessive demands for documents to verify their employment eligibility but did not require the same of U.S. citizens.

Under the terms of the settlement agreement, the medical center agreed to implement new employment eligibility verification policies and procedures that treat all employees equally regardless of citizenship status. In addition, the medical center agreed to pay a civil penalty of $115,000, conduct supplemental training of its human resources personnel on their responsibilities to avoid discrimination in the employment eligibility verification process, and work with the Department to ensure compliance with proper employment eligibility verification processes across all University of California campuses, medical centers, and facilities.

The Department’s announcement is available at http://www.justice.gov/opa/pr/2012/January/12-crt-006.html.

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4. USCIS Considers Allowing Provisional Waivers for Immediate Relatives

U.S. Citizenship and Immigration Services (USCIS) announced on January 9, 2012, that it intends to change its current process for filing and adjudicating certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant visa application.

Specifically, USCIS is considering regulatory changes that will allow certain immediate relatives of U.S. citizens to request provisional waivers before departing the United States for consular processing of their immigrant visa applications. A person would be able to obtain such a waiver only if a Petition for Alien Relative, Form I-130, is filed by a U.S. citizen on his or her behalf and that petition has been approved, thereby classifying the person as an “immediate relative” for purposes of the immigration laws, and he or she demonstrates that the denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent “qualifying relative.” The qualifying relative for purposes of the waiver is not necessarily the immediate relative who filed the immigrant visa petition on the relative’s behalf.

USCIS’s notice of intent, published in 77 Fed. Reg. 1040 (Jan. 9, 2012), is available at http://www.gpo.gov/fdsys/pkg/FR-2012-01-09/pdf/2012-140.pdf. A related USCIS blog is available at http://blog.dhs.gov/2012/01/uscis-proposes-regulatory-change-to.html.

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5. USCIS Seeks Comments on Draft L-1 Templates

U.S. Citizenship and Immigration Services (USCIS) seeks comments on draft request for evidence (RFE) templates for Forms I-129: L-1 intracompany transferee (blanket petition, L-1A manager or executive, L-1A new office (first year), and qualifying relationship/ownership and control/doing business.

In addition to comments on the individual draft templates, USCIS also seeks stakeholder input on broader issues:

  1. What are the top five issues you have with RFEs in the classifications that are currently under review?
  2. What improvements can be made to the current RFE process in these classifications?
  3. What types of evidence are frequently unavailable for these classifications when requested, and why? What evidence could be submitted as an alternative?

USCIS said it is also reviewing RFE templates for these categories:

  • E-12 Outstanding Professor and Researcher immigrants
  • E-13 Multinational Executive and Manager immigrants
  • F Student nonimmigrants
  • M Vocational Student nonimmigrants
  • J Exchange Visitor nonimmigrants
  • L Intracompany Transferee nonimmigrants
  • O Extraordinary Ability or Achievement nonimmigrants

Information and instructions are available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=95e92d40ee989210VgnVCM100000082ca60aRCRD&vgnextchannel=95e92d40ee989210VgnVCM100000082ca60aRCRD. The draft templates are available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=a6aafa4b01b38210VgnVCM100000082ca60aRCRD&vgnextchannel=a6aafa4b01b38210VgnVCM100000082ca60aRCRD.

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6. Pakistani Students Come to U.S. Under Global Undergraduate Exchange Program

The Department of State’s Bureau of Educational and Cultural Affairs announced that 100 students from Pakistan have arrived in the United States and participated in the Global Undergraduate Exchange Program’s (Global UGRAD-Pakistan) orientation in Washington, DC, from January 3-7, 2012.

Launched in 2010, Global UGRAD-Pakistan provides an international academic exchange experience at a U.S. college or university for 200 emerging student leaders from underserved demographic groups or geographic areas in Pakistan. The undergraduate students participate in one semester of non-degree study in the United States. Half of the 200 participants arrived in August 2011 for the fall semester. While in the United States, participants take part in local community service projects, engage in cultural enrichment activities, and complete a U.S. studies course.

The spring 2012 Global UGRAD-Pakistan Fellows will be placed at 71 accredited two- and four-year higher education institutions in 34 states. The Department said that through their programs of study and integration into U.S. communities, Global UGRAD-Pakistan students gain a broader, more nuanced knowledge of the United States, which will help them to increase mutual understanding between the United States and Pakistan in the future.

The Global UGRAD-Pakistan program is a part of the Department’s Global Undergraduate Exchange Program, a scholarship program enabling students worldwide to study for one semester or academic year at colleges and universities across the United States. The program is administered by the cooperating agency, the International Research & Exchanges Board (IREX).

The announcement is available at http://www.state.gov/r/pa/prs/ps/2012/01/180144.htm. Additional information about the Global Undergraduate Exchange Program is available at http://exchanges.state.gov/ugrad.html. Information about the Pakistan program is available at http://www.irex.org/project/global-undergraduate-exchange-program-pakistan-global-ugrad-pakistan.

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7. Brazil’s ‘Science Without Borders’ Program Sends 650 Students to United States

The Department of State announced on January 5, 2012, that 650 Brazilian students arrived in the United States in the first week in January to study in over 100 U.S. universities in 42 states. These students are the first wave of participants in Brazilian President Dilma Rousseff’s “Science Without Borders” scholarship program to come to U.S. classrooms.

Last year, President Barack Obama announced the “100,000 Strong for the Americas” initiative to increase international study with a target of 100,000 students from Latin America and the Caribbean studying in the United States, and a reciprocal 100,000 students from the United States studying in the Latin American and Caribbean regions.

Additionally, President Rousseff’s “Science Without Borders” program will support as many as 101,000 outstanding Brazilian students for international study in the areas of science, technology, engineering, and mathematics in the next four years. Up to half of them will study in the United States. The Department said, “Our partnership with Brazil continues to grow and this investment through educational exchanges will continue to benefit our societies for generations to come.”

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8. New Publications and Items of Interest

Stakeholder teleconference on consular notification of immigrant/nonimmigrant approvals. U.S. Citizenship and Immigration Services’ Operations Directorate invites interested stakeholders to participate in a teleconference, “Consular Notification Process on Immigrant and Non-immigrant Approvals as Related to Visa Issuance,” on Wednesday, February 1, 2012, from 2 to 3:30 p.m. eastern time. The notice is available at http://content.govdelivery.com/bulletins/gd/USDHSCIS-2467d3. For more information or to register by January 23, e-mail Donna Kane, USCIS Vermont Service Center Community Engagement Officer, donna.kane@dhs.gov, with your full name and the organization you represent.

Effects of USCIS adjudication procedures on fraud detection. The Department of Homeland Security’s Office of Inspector General (OIG) has released “The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Services Officers.” The OIG interviewed 147 managers and staff, and received 256 responses to an online survey. The OIG identified a range of possible improvements to practices in areas such as performance measurement, training, and collaboration between adjudications and fraud detection staff. The report notes that USCIS has taken important steps to improve security and fraud detection, and makes 11 recommendations for improvement. It is available at http://www.oig.dhs.gov/assets/Mgmt/OIG_12-24_Jan11.pdf.

Foreign students’ contribution to U.S. economy. Foreign students and their families spent more than $20 billion in the United States during the 2010-2011 academic year, according to a new NAFSA: Association of International Educators report. California, New York, and Texas welcomed the largest numbers of foreign students, and those states and others across the country benefited from spending by these students and their families on living expenses, tuition, and fees. For more information, see http://www.nafsa.org/PressRoom/PressRelease.aspx?id=29459. The report is available at http://www.nafsa.org/publicpolicy/default.aspx?id=29416.

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.

For more information or to order, visit http://www.greencardstories.com/. A related website has been launched at http://www.greencardstories.com.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration.

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9. Member News

Cyrus Mehta has published a new blog entry. “What the Proposed Provisional Waiver Rule Means for Those Facing 3- or 10-Year Bars” is available at http://cyrusmehta.blogspot.com/2012/01/what-proposed-provisional-waiver-rule.html.

Angelo Paparelli has published a new blog entry. “Power-Mad Career Immigration Bureaucrats Cry Wolf, Spook DHS Leaders” is available at http://www.nationofimmigrators.com/uscis/power-mad-career-immigration-bureaucrats-cry-wolf-spook-dhs-leaders/index.html.

Stephen Yale-Loehr was quoted in an article by the Associated Press (AP) that was picked up by a number of other media outlets, including the CBS and Fox websites. In an article about the U.S. citizen teen from Texas who was recently “deported” to Colombia by mistake, he noted that hundreds of U.S. citizens are wrongfully deported or detained every year. “There are a variety of legitimate reasons why somebody might not appear to be a U.S. citizen at first glance,” he said. “It’s the duty of the U.S. federal immigration agency to make sure that we do not detain and deport U.S. citizens erroneously. And this, unfortunately, happened in this case.” The AP article is available at http://www.google.com/hostednews/ap/article/ALeqM5hH1xagZjjL6pSarfTF7G8coc44vg?docId=98357e780b644bdeb7371380be9d1fb9. CBS’s pick-up of the AP story is at http://www.cbsnews.com/8301-201_162-57354271/texas-teen-mistakenly-deported-reunites-with-mom/ and Fox’s is available at http://latino.foxnews.com/latino/news/2012/01/07/texas-teen-mistakenly-deported-to-colombia-is-back-in-us/.

Mr. Yale-Loehr also was quoted in Crain’s New York Business online on January 8, 2012, and in the print edition on January 9. Mr. Yale-Loehr noted that potential EB-5 investors are getting skittish because the EB-5 program’s reauthorization depends on a dysfunctional Congress. “It behooves Congress to reauthorize this program. Whether they can do it in a timely manner, that’s a political crapshoot.” The article is available at http://www.crainsnewyork.com/article/20120108/ECONOMY/301089981/1009.

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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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EB-5 & Other Investor News from the Alliance of Business Immigration Lawyers Vol. 2, No. 1 • January 01, 2012

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Headlines:

1. USCIS Announces Several Thousand EB-5 Green Cards Issued So Far in First Quarter of FY 2012, Releases Latest Stats – Between October and mid-January, 2,364 EB-5 green cards were issued. At that rate, over 9,000 EB-5 visas might be issued this fiscal year, which is very close to the statutory cap of 10,000.

2. USCIS Announces ‘Entrepreneurs in Residence’ Initiative, Summit; Discusses EB-5 Enhancements – The initiative builds upon USCIS’s recent efforts to promote startup enterprises and spur job creation, including enhancements to the EB-5 immigrant investor visa program.3. USCIS Issues Draft EB-5 Memo – USCIS sought stakeholder input on “foundational issues” before providing greater detail.4. USCIS Proposes EB-5 Immigrant Investor Rule – The processes outlined in the proposed rule would provide an additional two-year period for certain immigrant investors to meet the EB-5 investment and job-creation requirements.5. Senate Judiciary Committee Holds Hearing on EB-5 Regional Center Program – Sen. Patrick Leahy, noting that current authorization for the program expires at the end of September 2012, advocated a permanent authorization.6. AAO Denies RC Application to Build Resort Suites – The AAO found that the applicant’s proposal was a marketing strategy to attract buyers for vacation suites rather than investors of capital in a new commercial enterprise.7. New Publications and Items of Interest – New Publications and Items of Interest8. Member News – Member News9. EB-5 Government Agency Links – EB-5 Government Agency Links

Details:

1. USCIS Announces Several Thousand EB-5 Green Cards Issued So Far in First Quarter of FY 2012, Releases Latest Stats

The Department of State issued 2,364 EB-5 green cards between October 1, 2011, and mid-January 2012, U.S. Citizenship and Immigration Services (USCIS) announced at its quarterly EB-5 stakeholders meeting on January 23, 2012. At that rate, over 9,000 EB-5 visas might be issued this federal fiscal year, which is very close to the statutory cap of 10,000.

USCIS refused to discuss what it would do about pending EB-5 petitions if Congress fails to renew the regional center pilot program by September 30, 2012. Approximately 92 percent of I-526 petitions (Immigrant Petition by Alien Entrepreneur) filed each year are filed by investors in regional centers. Historically, about 80 to 85 percent of I-526 and I-829 EB-5 petitions are approved each year. The California Service Center (CSC) now has four teams of EB-5 adjudicators, an increase from one team a year ago. Despite the increased staffing, case adjudication times have not improved because of the increase in case filings.

USCIS also announced that it would defer to state determinations on what constitutes a targeted employment area (TEA) for EB-5 purposes. The agency will check the data behind states’ methodology, however. USCIS did not say whether a single census tract may qualify as a geographic area. USCIS said that would be covered in written materials not yet available publicly, and referred stakeholders to its December 2009 memorandum for further details (available at http://www.uscis.gov/USCIS/Laws/Memoranda/Static%20Files%20Memoranda/Adjudicating%20of%20EB-5_121109.pdf).

USCIS acknowledged that many regional center applications are being held up at headquarters pending resolution of economic methodology issues. The USCIS hopes to resolve those issues soon. USCIS is analyzing all the I-924A forms submitted by regional centers and will draft a report that includes regional center-specific information sometime this year. The USCIS acknowledged growing pains in determining what constitutes a “shovel-ready” project for EB-5 purposes. It hopes to address this issue later this year when it revises the I-924 form to provide greater consistency.

USCIS also released its latest data on EB-5 filings and regional centers (RCs):

  • RC approvals continue to increase. As of January 28, 2012, there are 217 approved RCs operating in 40 states, including the District of Columbia and Guam.
  • The agency reported 41 initial RC proposal filings in the first quarter of fiscal year (FY) 2012, compared to 192 initial filings in all of FY 2011 and 110 initial filings in all of FY 2010. The number of amended RC proposal filings was 17 by the end of the first quarter; there were 86 filings received for all of FY 2011 and 42 filings received for all of FY 2010.
  • In the first quarter of FY 2012, the agency approved 14 of the 41 initial RC proposals and denied 22, an approval rate of 39 percent. In FY 2011, when USCIS approved 80 and denied 51, an approval rate of 61 percent. The approval rate of amended RC proposals in the first quarter of FY 2012 was 57 percent, with 4 approvals and 3 denials. By comparison, in FY 2011 USCIS approved 43 amended RC proposals and denied 7, an approval rate of 86 percent.
  • USCIS also reported significant increases in individual I-526s and I-829s (Petition by Entrepreneur to Remove Conditions). In the first quarter of FY 2012, USCIS received 1,293 I-526 petitions, compared to 3,805 for all of FY 2011. USCIS received 250 I-829 petitions in the first quarter of 2012. By comparison, USCIS received 2,345 I-829 petitions in all of FY 2011.
  • In the first quarter of FY 2012, the agency approved 1,076 I-526 petitions and denied 222, an approval rate of 83 percent, while in all of FY 2011 USCIS approved 1,563 and denied 11, an approval rate of 93 percent. USCIS approved 1,067 I-829 petitions and denied 46 in all of FY 2011, an approval rate of 96 percent.

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

The next USCIS stakeholder engagement meetings are scheduled for May 1, 2012 (general EB-5 discussion); July 26, 2012 (regional center discussion); and October 18, 2012 (general EB-5 discussion). See http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e0138e0732344310VgnVCM100000082ca60aRCRD&vgnextchannel=e0b081c52aa38210VgnVCM100000082ca60aRCRD for additional details on the engagement meetings.

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2. USCIS Announces ‘Entrepreneurs in Residence’ Initiative, Summit; Discusses EB-5 Enhancements

As part of the Obama administration’s “Startup America” efforts to encourage high-skilled immigration into the U.S. under existing laws, U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas announced the “Entrepreneurs in Residence” initiative to use “industry expertise to strengthen USCIS policies and practices surrounding immigrant investors, entrepreneurs and workers with specialized skills, knowledge, or abilities.”

Director Mayorkas announced the initiative in October at the High Growth Entrepreneurship Listening and Action Session at AlphaLab in Pittsburgh, before the quarterly meeting of the President’s Council on Jobs and Competitiveness with President Obama. Director Mayorkas said the introduction of expert views from the private and public sectors “will help us to ensure that our policies and processes fully realize the immigration law’s potential to create and protect American jobs.”

USCIS will launch the “Entrepreneurs in Residence” initiative with a series of informational summits with industry leaders to gather strategic input. Informed by the summits, the agency will create a tactical team including entrepreneurs and experts, working with USCIS personnel, “to design and implement effective solutions.” Director Mayorkas said the initiative “will strengthen USCIS’s collaboration with industries at the policy, training, and officer level[s], while complying with all current Federal statutes and regulations.”

The first information summit is planned for February 22, 2012, in Silicon Valley, California, from 8:30 a.m. to 5:30 p.m. Those interested should e-mail public.engagement@dhs.gov by February 3, 2012. Include your full name and the organization you represent, if any, in the body of the e-mail and reference “Entrepreneurs in Residence” in the subject line of the e-mail.

The initiative builds upon USCIS’s recent efforts to promote startup enterprises and spur job creation, including enhancements to the EB-5 immigrant investor visa program. USCIS said that since August, it has been conducting a review of the EB-5 process, working with business analysts to enhance related adjudications, implementing direct access to adjudicators for EB-5 regional center applicants, and launching new specialized training modules for USCIS officers.

At a related press conference, Director Mayorkas explained that “[w]e as an agency have been focused in the absence of legislative action to create newer broader pathways for the best and brightest from around the world to come to the United States and really take advantage of the opportunities here to enable our economy to grow and to create jobs for American workers.” He said that the administration is “reviewing our policies and our processes to ensure that we are capturing the existing laws and the legislative intent behind those laws.”

Director Mayorkas said that “Entrepreneurs in Residence” and what it represents “cuts across all visa lines and is not limited to the EB-5 program by any measure.” He said that DHS will be looking at the initiative’s applicability in the arts and entertainment arenas, the O and P visa lines, and the H-1 categories.

He also noted that DHS does not plan to bring in a large cadre of experts, but rather “to start tactically and surgically” with a small group of people, some working on strategy and some on tactics. He said that DHS is still working out the details and will release more information on next steps later.

USCIS’s statement on “Entrepreneurs in Residence” is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=bd537158910e2310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A transcript of a related press conference held in October 2011 is available at http://www.uscis.gov/USCIS/News/2011/October%202011/transcript_eir_11Oct11.pdf. Information about the Entrepreneurs in Residence Summit that will be held on February 22, 2012, is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=180cfac2f5825310VgnVCM100000082ca60aRCRD&vgnextchannel=e0b081c52aa38210VgnVCM100000082ca60aRCRD.

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3. USCIS Issues Draft EB-5 Memo

U.S. Citizenship and Immigration Services (USCIS) released a draft memorandum to address “certain foundational issues” in the EB-5 immigrant investor program. USCIS seeks stakeholder input on these foundational issues before providing greater detail and addressing additional issues.

On a conference call held on November 9, 2011, to discuss the draft memo, Mr. Mayorkas said that it differs from other policy memos in that it gives adjudicators the context of the EB-5 program: that it is important because it creates jobs for U.S. workers. Mr. Mayorkas said that this context should guide adjudicators. USCIS subsequently released a revised memo on January 11, 2012, and held a related stakeholder meeting the next day.

Among other things, the memo lays out the preponderance of evidence standard: “[T]he petitioner must establish each element by a preponderance of the evidence. That means that the petitioner must prove to us that what he or she claims is more likely so than not so. This is a lower standard of proof than the standard of ‘clear and convincing,’ and even lower than the standard ‘beyond a reasonable doubt’ that applies only to criminal cases. The petitioner does not need to remove all doubt from our adjudication, but must instead show that what he or she presents is more probable than not.”

In general, the memo will only take effect when USCIS finalizes it. However, effective immediately, USCIS generally will defer to a state’s targeted employment area (TEA) designation. The memo notes: “USCIS is to give deference to the state’s designation of the physical boundaries of the geographic or political subdivision that will be the targeted employment area.” It adds, however, that “USCIS must ensure compliance with the statutory requirement that the proposed area designated by the state in fact has an unemployment rate of at least 150 percent of the national average rate. For this purpose, USCIS will review state determinations of the unemployment rate and, in doing so, USCIS can assess the method or methods by which the state authority obtained the unemployment statistics.”

The memo states that acceptable data sources for purposes of calculating unemployment include “Local Area Unemployment Statistics produced by a government agency, U.S. Census Bureau data, and data from the American Community Survey. State unemployment determinations should be based on the most recent publicly available data from the source relied upon.”

The memo also clarifies that while the immigrant’s investment must result in the creation of jobs for qualifying employees, it is the new commercial enterprise that creates the jobs. An investor’s money that goes into a new commercial enterprise can be used in a variety of ways, including bridge financing, hiring personnel, or operating the company.

USCIS Director Alejandro Mayorkas said the draft memorandum is a “work in progress,” and that the agency is sharing it now “to obtain valuable real-time input and to define a collaborative approach with the stakeholder community.” He noted that the draft memorandum “is not operative and will not guide adjudication decisions until it is published in complete and final form. Current policy memoranda continue to guide our adjudications.” Mr. Mayorkas said that USCIS plans to consolidate all existing EB-5 memos into one. The second draft released on January 11 incorporated comments received from stakeholders.

Initial comments were taken until December 9, 2011. Additional opportunity to comment is available now that the second draft has been released.

The revised draft memorandum released on January 11, 2012, and a cover message are available at http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Draft%20Memorandum%20for%20Comment/EB5_coverandmemo_2ndpost.pdf. The original draft memo and a statement from Mr. Mayorkas are available at http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Draft%20Memorandum%20for%20Comment/EB_5_Adjudications_Policy3.pdf.

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4. USCIS Proposes EB-5 Immigrant Investor Rule

U.S. Citizenship and Immigration Services (USCIS) published a proposed rule on September 28, 2011, that would enable the agency to process certain EB-5 immigrant investor applications approved between 1995 and 1998.

The proposed rule would implement provisions of the 21st Century Department of Justice Appropriations Authorization Act that apply to a group of immigrant investors who had a Form I-526, Immigrant Petition by Alien Entrepreneur, approved between January 1, 1995, and August 31, 1998. Specifically, the rule would enable USCIS to process cases for approximately 580 principal immigrant investors and their dependents whose I-526 petitions were approved during that period and who, before November 2, 2002, sought to:

  • Register for permanent residence or adjust their status (using Form I-485); or
  • Remove conditions on permanent residence obtained as an entrepreneur (using Form I-829).

The processes outlined in the proposed rule would provide an additional two-year period for most of these immigrant investors to meet the EB-5 investment and job-creation requirements. This rule would not impact any other applications or petitions filed under the EB-5 program.

Comments were accepted until November 28, 2011. The proposed rule is available at http://www.gpo.gov/fdsys/pkg/FR-2011-09-28/pdf/2011-24619.pdf. USCIS corrected the docket number for the proposed rule on October 4, 2011; see http://www.gpo.gov/fdsys/pkg/FR-2011-10-04/pdf/2011-25463.pdf.

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5. Senate Judiciary Committee Holds Hearing on EB-5 Regional Center Program

The Senate Judiciary Committee held a hearing on December 7, 2011, on “Reauthorizing the EB-5 Regional Center Program: Promoting Job Creation and Economic Development in American Communities.” Witnesses included Bill Stenger, President and CEO, Jay Peak Resort; David North, Fellow, Center for Immigration Studies; and Robert C. Divine, Shareholder, Baker, Donelson, Bearman Caldwell & Berkowitz, P.C. Sens. Patrick Leahy (D-VT) and Charles Schumer (D-NY) issued related statements.

Sen. Leahy noted that current authorization for the EB-5 regional center pilot program, which has been in existence for 18 years, expires at the end of September 2012. He advocated enactment of permanent authorization legislation that he introduced in March 2011 (S. 642). Sen. Leahy noted that in 2011, the EB-5 program is expected to have created an estimated 25,000 jobs and provided direct investments in U.S. communities of $1.25 billion. He said that if the full number of visas allocated to the program are used, based on investment and job creation requirements, the program “has the potential to create or preserve 100,000 jobs per year, with contributions of $5 billion in foreign capital investment. And these benefits come at no cost to American taxpayers.”

Sen. Leahy noted that in addition to administrative efforts by U.S. Citizenship and Immigration Services (USCIS), he has been working for months with interested parties and USCIS “to put together a legislative framework to make significant improvements to the overall program.” He said the framework would “provide USCIS with additional authorities to ensure that this important program maintains the highest level of integrity and efficiency.” He added, “It is time for a permanent authorization to provide investors with the certainty and predictability they need to invest and conduct business with confidence.”

Sen. Schumer outlined several examples of USCIS-approved “job-creating” regional center projects in New York:

  • Steiner Studios, a film production studio in Brooklyn, which received $65 million in EB-5 funding to assist with expansion;
  • Global Vascular Institute, on the Buffalo Niagara Medical Campus, where EB-5 funding helped support development of the new institute, creating jobs and improving health care access for the people of Buffalo;
  • Acadia Realty Trust, which received $200 million in EB-5 funding to assist with the construction of the City Point project in downtown Brooklyn;
  • SJM Company, which received $72 million in EB-5 funding to assist with the redevelopment of the George Washington Bridge Bus Station; and
  • Dermot Company and Harry’s Restaurant, which received $96 million in EB-5 funding to assist with the redevelopment of the Battery Maritime Building and Pier A in Lower Manhattan.

Sen. Schumer said he was proud to co-sponsor S. 642 with Sen. Leahy to permanently authorize the program.

Mr. Stenger testified that the region where Jay Peak Resort is located has the most significant unemployment and economic challenge of any region in Vermont. He said that since 2005, Jay Peak has developed several EB-5 projects, creating over 2,000 jobs in the region, and that the EB-5 investments are expected to create that many jobs again over the next two years. “We are seeing this employment creation at Jay Peak and our surrounding communities in this terribly troubled economy solely because of the EB-5 foreign investor program,” he said.

The statements of Sens. Leahy and Schumer, along with the witnesses’ written testimony, are available at http://www.judiciary.senate.gov/hearings/testimony.cfm?id=9b6937d5e931a0b792d258d9b365f21d&wit_id=9b6937d5e931a0b792d258d9b365f21d-0-5.

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6. AAO Denies RC Application to Build Resort Suites

U.S. Citizenship and Immigration Services (USCIS) recently published an Administrative Appeals Office (AAO) decision affirming denial of a proposal for a regional center designation. The AAO found that the applicant’s proposal was a “marketing strategy to attract buyers for vacation suites rather than investors of capital in a new commercial enterprise.”

Specifically, the AAO said that the evidence incontrovertibly established that the applicant proposed that “investors” would purchase a vacation suite as either a “primary residence,” “second home,” or “investment property.” The AAO affirmed the California Service Center director’s determination that such a real estate purchase of a private residence, even if still under construction, “is not an at-risk investment of capital that can be credited with direct or indirect job creation.” The purchase of individual residential suites by alien “investors,” even if concentrated in one resort complex, is also not the type of “pooled investment” concept Congress envisioned for the regional center program, the AAO noted. In summary, the AAO said:

[T]he applicant has proposed an investment plan whereby alien investors would make independent, passive, personal real estate investments that garner them no equity ownership in a new commercial enterprise. Instead of presenting a plan for a pooled equity investment of capital into a new commercial enterprise, the applicant has merely put forth a marketing strategy to attract sufficient buyers to fund later phases of development. This plan does not meet the letter or spirit of [the law and regulations] designed to encourage pooled investments in a new commercial enterprise benefitting a geographic region.

The April 26, 2011, decision is available at http://www.uscis.gov/err/K1%20-%20Request%20for%20Participation%20as%20Regional%20Center/Decisions_Issued_in_2011/Apr262011_01K1610.pdf.

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7. 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.

For more information or to order, visit http://www.greencardstories.com/.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available at http://www.abilblog.com/.

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8. Member News

Laura Danielson was quoted on November 3, 2011, in Dolan Media Newswires Finance & Commerce (Minneapolis, MN) in an article on the EB-5 category for foreign investors. She noted that many designated regional centers don’t produce a lot of deals, but the small number of centers that do can often assemble $150 million at one time, with 100 or so foreign investors contributing $500,000 to $1 million each. Ms. Danielson also noted that “[t]he University of Minnesota has one of the largest (if not the largest) Chinese student populations in the country. I think that there are great synergies between these students, their families and Minnesota that would make Minnesota a popular regional center.” She also said she sees significant potential in a Minnesota-based EB-5 regional center helping to bring foreign investment into economically depressed urban areas such as north Minneapolis.

H. Ronald Klasko and Stephen Yale-Loehr spoke at an American Immigration Lawyers Association EB-5 conference on October 21, 2011, in San Antonio, Texas. Mr. Klasko spoke on a panel, “Winning the End Game: Removal of Conditions,” and Mr. Yale-Loehr spoke on a panel, “Concentrating EB-5 Investment Impact—Creating and Representing Regional Centers.”

Mr. Yale-Loehr was quoted in Crain’s New York Business online on January 8, 2012, and in the print edition on January 9. Mr. Yale-Loehr noted that potential EB-5 investors are getting skittish because the EB-5 program’s reauthorization depends on a dysfunctional Congress. “It behooves Congress to reauthorize this program. Whether they can do it in a timely manner, that’s a political crapshoot.”

Mr. Yale-Loehr also was quoted in the Puget Sound Business Journal on December 2, 2011. He noted that “the biggest thing fueling the growth of the [EB-5 investor] program has been the capital crisis in the United States.”

Mr. Yale-Loehr was featured on a one-hour radio talk show on WAMU on September 28, 2011, about the EB-5 program. (Click on “Listen.”)

Mr. Yale-Loehr spoke on EB-5 immigrant investor issues at a conference sponsored by the New York City chapter of the American Immigration Lawyers Association on December 1, 2011, at the Marriott Marquis hotel in New York City.

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9. 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

News from the Alliance of Business Immigration Lawyers Vol. 8, No. 1A • January 01, 2012

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Headlines:

1. ETA Announces 2012 Adverse Effect Wage Rates for H-2A Workers – The AEWRs range from a low of $9.30 per hour in Mississippi and Louisiana to a high of $12.26 per hour in Hawaii.

2. USCIS Changes Stand-Alone I-130 Filing Locations – USCIS has changed the filing locations for Form I-130, Petition for Alien Relative.

3. California Steel Foundry Fires a Third of Its Workers After I-9 Audit – The audit had identified about 200 employees allegedly working without legal status.

4. Justice Dept. Accuses Arizona Sheriff of Civil Rights Violations; Federal Judge Issues Ruling – A Civil Rights Division investigation found that the Maricopa County Sheriff’s Office engages in racial profiling of Latinos and unlawfully retaliates against individuals who criticize MCSO’s policies or practices; and a federal judge ruled that MCSO’s deputies may not detain people based solely on the suspicion that they may be in the U.S. illegally.

5. USCIS Ombudsman Now Requires Form DHS 7001 for EAD Cases – Those who have already submitted an EAD case inquiry do not need to submit the DHS 7001, but the form must be completed for all future inquiries.

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

7. Member News – Member News

8. Government Agency Links – Government Agency Links

Details:

1. ETA Announces 2012 Adverse Effect Wage Rates for H-2A Workers

On December 22, 2011, the Department of Labor’s Employment and Training Administration (ETA) announced the 2012 adverse effect wage rates (AEWRs) for the employment of temporary or seasonal nonimmigrant foreign workers to perform agricultural labor or services (H–2A workers). AEWRs are the minimum wage rates employers must offer and pay to H–2A workers and workers in corresponding employment for a particular occupation and area so that the wages of similarly employed U.S. workers will not be adversely affected. The Department’s H–2A regulations provide that employers must pay their H–2A workers and workers in corresponding employment at least the highest of: (i) the AEWR; (ii) the prevailing wage; (iii) the prevailing piece rate; (iv) the agreed-upon collective bargaining wage, if applicable; or (v) the federal or state minimum wage in effect at the time the work is performed.

The AEWRs range from a low of $9.30 per hour in Mississippi and Louisiana to a high of $12.26 per hour in Hawaii.

The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-12-22/pdf/2011-32842.pdf.

 

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2. USCIS Changes Stand-Alone I-130 Filing Locations

U.S. Citizenship and Immigration Services (USCIS) announced that effective January 1, 2012, it has changed the filing locations for Form I-130, Petition for Alien Relative. Domestic petitioners should mail their stand-alone I-130 applications to either the Chicago Lockbox or the Phoenix Lockbox, depending on where they reside in the United States.

There will be no change in filing locations when submitting an I-130 along with Form I-485, Application to Register Permanent Residence or Adjust Status. Individuals filing these forms together should continue to mail them to the Chicago Lockbox facility. Petitioners filing from overseas addresses in countries without USCIS offices should also continue to file at the Chicago Lockbox facility. Petitioners residing in a country with a USCIS office may send their I-130s to the Chicago Lockbox, or may file their I-130s at the international USCIS office having jurisdiction over the area where they live.

Those who submit their I-130 packages to the incorrect Lockbox location may experience a delay in processing. The new filing locations are available on the Form I-130 Direct Filing Locations webpage at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=6583ecb23683a210VgnVCM100000082ca60aRCRD&vgnextchannel=fe529c7755cb9010VgnVCM10000045f3d6a1RCRD.

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3. California Steel Foundry Fires a Third of Its Workers After I-9 Audit

Pacific Steel Casting Company, based in Berkeley, California, has fired about a third of its workers after U.S. Immigration and Customs Enforcement (ICE) conducted an I-9 work authorization audit in February 2011 and identified about 200 employees allegedly working without legal status.

Elisabeth Jewel, a Pacific Steel spokesperson, said, “It’s terribly disruptive. We have highly trained employees and to lose them is very damaging.” In some cases, the workers had been with the company for decades and have children in local schools who are growing up in the United States.

The Berkeley City Council passed a resolution in June noting that the targeted workers are skilled and “inject hundreds of thousands of dollars into our local economy each month and support other businesses and families. The company and the workers pay taxes that support local schools and services.” The council noted that Pacific Steel’s suppliers could also be harmed by the action, and that the audit and consequent firing of the workers will force them “into an underground economy where illegal wages and conditions are prevalent.” Pacific Steel is the fourth largest foundry in the United States.

In a related action, the American Civil Liberties Union and several unions filed a Freedom of Information Act (FOIA) request in September 2011 seeking records relating to I-9 audits and “silent raids” such as the one ICE conducted on Pacific Steel. An ICE spokesperson reportedly said that in fiscal year 2011, ICE criminally charged 221 owners, employers, managers, or supervisors; conducted more than 2,496 I-9 audits; and initiated 3,291 worksite enforcement investigations, all up from 2010 numbers.

The Berkeley City Council resolution is available at http://www.ci.berkeley.ca.us/uploadedFiles/Clerk/Level_3_-_City_Council/2011/06Jun/2011-06-28_Item_41_Urging_the_U.S._Department_of_Homeland_Security.pdf. The FOIA request is available at http://www.aclunc.org/news/press_releases/asset_upload_file731_10448.pdf.

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4. Justice Dept. Accuses Arizona Sheriff of Civil Rights Violations; Federal Judge Issues Ruling

Thomas E. Perez, U.S. Assistant Attorney General, sent a letter on December 15, 2011, to the Maricopa County Attorney, Bill Montgomery, accusing the Maricopa County Sheriff’s Office (MCSO) in Arizona of engaging in a “pattern or practice of unconstitutional policing.”

Meanwhile, a federal judge ruled on December 23, 2011, that Maricopa County’s deputies may not detain people based solely on the suspicion that they may be in the United States illegally. U.S. District Judge Murray Snow noted, among other things, that Sheriff Arpaio “has made public statements that a fact-finder could interpret as endorsing racial profiling.” A separate federal grand jury investigation of the MCSO related to criminal abuse of power continues.

Mr. Perez’s letter notes that a Civil Rights Division investigation found that MCSO engages in racial profiling of Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about or criticize MCSO’s policies or practices. MCSO’s “deputies, supervisory staff, and command staff” perpetrated the alleged violations.

The Civil Rights Division also found reasonable cause to believe that MCSO operates its jails in a manner that discriminates against limited English proficient (LEP) Latino inmates, who it said are punished “routinely” for failing to understand commands given in English and are denied critical services provided to other inmates.

The investigation uncovered a number of instances in which MCSO initiated immigration-related crime suppression activities in the community after receiving complaints that described no criminal activity, but rather referred to circumstances such as individuals with “dark skin” congregating in one area, or individuals speaking Spanish at a local business. “The use of these types of bias-infected indicators as a basis for conducting enforcement activity contributes to the high number of stops and detentions lacking in legal justification,” Mr. Perez said.

Mr. Perez noted that the bias affects MCSO from the top down. Maricopa County Sheriff Arpaio, for example, labeled as “intelligence” a letter explicitly equating skin color with law-breaking and instructed a subordinate to address it. Such instances “are striking examples of how Sheriff Arpaio has promoted a culture of bias in his organization and clearly communicated to his officers that biased policing would not only be tolerated, but encouraged.”

The Civil Rights Division also found that MCSO deputies are encouraged to make high-volume pretextual traffic stops in targeted locations. “We have identified and interviewed Latinos who, though legally present in the United States, were arrested or detained without cause as a consequence of these operations.” Further, MCSO’s Criminal Employment Squad (CES) deputies, tasked with interdicting undocumented persons by enforcing state forgery and identity theft statutes, “routinely raid businesses in a manner that harms innocent Latino workers. Specifically, CES’s deputies typically detain and investigate the immigration status of all employees at a raided worksite, whether or not the employees are listed in the warrant authorizing the raid. The CES targets worksites where most, if not all, of the employees are Latino,” the letter states.

MCSO officials also have resorted to official harassment to silence critics, the letter says. For example, former Chief Deputy David Hendershott filed “unfounded complaints” with the Arizona State Bar against five attorneys, alleging ethical violations. The attorneys had publicly criticized MCSO’s tactics. Similarly, Mr. Hendershott, acting in his official capacity, filed complaints with the Arizona Commission on Judicial Conduct against judges who had publicly criticized MCSO and Sheriff Arpaio or had rendered decisions deemed detrimental to MCSO’s interests. All of the bar and judicial complaints were dismissed as insufficient to warrant an investigation, the letter notes, adding that Sheriff Arpaio participated as a named plaintiff in a civil federal racketeering suit filed against the same targeted judges and a number of other county officials. The claims against the judges echoed the complaints Hendershott had filed; the suit eventually was abandoned. “The arrests and harassment undertaken by MCSO have been authorized at the highest levels of the agency and constitute a pattern of retaliatory actions intended to silence MCSO’s critics,” Mr. Perez noted.

These violations, along with the absence of clear policies and procedures to ensure effective and constitutional policing and oversight, “have contributed to a chronic culture of disregard for basic legal and constitutional obligations,” Mr. Perez said, adding that the Civil Rights Division found “additional areas of serious concern,” including MCSO deputies using excessive force against Latinos, and MCSO’s implementing its immigration enforcement program in a way that has created a “wall of distrust” between MCSO officers and Maricopa County’s Latino residents, and that “has significantly compromised MCSO’s ability to provide police protection” to residents.

Mr. Perez told Maricopa County that effective resolution of these issues will require a comprehensive written agreement along with federal judicial oversight. “We prefer to resolve this matter without resort to further litigation, although we will not hesitate to file suit, if necessary,” the letter states, setting a deadline of January 4, 2012, for a response to an invitation for “constructive dialogue.” Mr. Perez noted that the Civil Rights Division’s investigation was delayed when MCSO “repeatedly refused to provide the United States with access to pertinent material and personnel,” which was resolved by means of a lawsuit.

MCSO released Sheriff Arpaio’s response implying that political motivations of the Obama administration and Congressional Democrats are behind the actions and noting, among other things, that “2 Democrat Latino US Congress men from Arizona, joined by several other Latino Legislatures want me to resign my office. All of these same Democratic elected officials, throughout the years, have been criticizing my enforcement of State and Federal Illegal immigration laws.” Conversely, Sheriff Arpaio noted, “Candidates for President of the United States – Herman Cain and Michelle Bachmann recently visited me in my office, Texas Governor Rick Perry and Mitt Romney also called me – all interested in my successful enforcement of illegal immigration and asked for my endorsement. Recently in New Hampshire, I endorsed Texas Governor Rick Perry for President of the United States.” (Typographical errors in original.)
Mr. Perez’s letter includes a description of the findings, a legal discussion, and remedial measures required, such as training for deputies; establishment of policies and procedures; data collection and risk management; developing and implementing a complaint, investigation, and disciplinary system; a comprehensive language access program for LEP individuals in jail and in the community; and community outreach. The letter is available at http://www.justice.gov/crt/about/spl/documents/mcso_findletter_12-15-11.pdf. Sheriff Arpaio’s response is available at http://www.mcso.org/MultiMedia/PressRelease/DOJ%20presser%20response%20121511.pdf.

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5. USCIS Ombudsman Now Requires Form DHS 7001 for EAD Cases

U.S. Citizenship and Immigration Services’ Ombudsman’s Office requests that those submitting case inquiries complete Form DHS 7001, Case Problem Submission Worksheet, for all cases, including those related to applications for an employment authorization document (EAD). The Ombudsman is requiring completion of the DHS 7001 to comply with applicable privacy rules. In the past, the Ombudsman allowed case inquiries without the DHS 7001 regarding EAD applications falling outside normal processing times. For same-day submission in urgent cases, the Ombudsman encourages people to use Ombudsman Online Case Assistance when submitting inquiries. Those who have already submitted an EAD case inquiry do not need to submit the DHS 7001, but must complete the form for all future inquiries.

The DHS 7001 is available at http://www.dhs.gov/xlibrary/assets/cisomb_dhsform7001.pdf or may be completed online at https://cisombvos.dhs.gov/vos/form7001.aspx (Ombudsman Online Case Assistance).

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6. New Publications and Items of Interest

OIG report on New Delhi embassy. The Department of State’s Office of Inspector General has published a report on the embassy in New Delhi, India, and constituent posts. Among the recommendations are several for ensuring uniform adjudications of H visa applications and revocation of H petitions. The report notes that because of the rapidly expanding bilateral relationship between the United States and India, and the growing Indian economy, the nonimmigrant visa workload could double by 2020. The OIG recommends that stakeholders in the Department of State initiate long-range workload planning and a long-term strategic plan for facilities in India, including the possibility of more posts. The report is available at http://oig.state.gov/documents/organization/169305.pdf.

ABIL Global Comparative Investment & Immigration Options Webinar. The Alliance of Business Immigration Lawyers (ABIL) will present a webinar, “ABIL Global Comparative Investment & Immigration Options,” on January 12, 2012, at 12 a.m. EST/5 a.m. GMT. This webinar will help guide investors and entrepreneurs who are looking for options in various countries. ABIL will cover the immigration options through investment in Australia, Canada, the United Kingdom, and the United States. All participants will receive a file with the PowerPoint presentation, relevant articles, and resources before the webinar, as well as a recording of the webinar afterwards. The cost is $50 to participate live or to receive the recorded version of the webinar. Register at https://securec9.ezhostingserver.com/abil-com/abil_global_comparative_webinar_signup.cfm. For more information, contact Lauren Anderson at lauren@abil.com.

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.

For more information or to order, visit http://www.greencardstories.com/.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration.

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7. Member News

Charles Kuck wrote an op-ed that was published in the December 28, 2011, edition of the Atlanta Journal Constitution. “Path to Legality Falls Way Short” is available at http://www.ajc.com/opinion/path-to-legality-falls-1278722.html.

Cyrus Mehta has published a new blog entry. “It’s 9:00 A.M. – Do You Know Where Your H-1B Employee Is? An Overview of FDNS Site Visits” is available at http://cyrusmehta.blogspot.com/2011/12/its-9oo-am-do-you-know-where-your-h-1b.html.

Angelo Paparelli has published several new blog entries. “The 2011 Nation of Immigrators Awards – the IMMIs” was published at http://t.co/h43UjSyI. “The Immigration Appeaser-in-Chief Should Try Some New Ammunition” is available at http://bit.ly/tfjcvH. “Immigration Governance Unmasked” is available at http://bit.ly/tvSylM.

Mr. Paparelli was recently quoted in the Los Angeles Times and in an Associated Press video about his client, an ex-slave from Egypt and now a U.S. citizen, Shyima Hall. The article is available at http://www.latimes.com/news/local/la-me-1216-shyima-hall-20111216,0,1583100.story and the video is available via Huffington Post at http://www.huffingtonpost.com/2011/12/15/shymia-hall-citizen_n_1151877.html?.

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8. Government Agency Links

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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