News from the Alliance of Business Immigration Lawyers Vol. 9, No. 6A • June 01, 2013
1. Senate Committee Approves Comprehensive Immigration Reform Bill – On May 21, 2013, the Senate Judiciary Committee approved an amended S. 744, the “Border Security, Economic Opportunity and Immigration Modernization Act of 2013,” by a bipartisan vote of 13-5. The bill now goes to the Senate floor.
2. Signaling Flexibility Within Limits, USCIS Releases Final Version of EB-5 Policy Memo – USCIS has released the final version of a long-awaited memorandum on EB-5 adjudications policy that went through four iterations beginning in November 2011.
3. CBP Releases Travel Tips, Improvements in Arrival Process for International Travelers – The agency released its “Top 10 Travel Tips.”
4. Federal Judge Enjoins Arizona Sheriff’s Office From Immigration Enforcement, Racial Profiling – A federal judge ruled that the Maricopa County Sheriff’s Office engaged in impermissible racial profiling and enforcement of federal immigration law.
5. USCIS Issues Reminder About New I-9 Version, Releases Q&A’s on Monitoring and Compliance – As of May 7, 2013, employers must use the latest version of the I-9 employment eligibility verification form for new hires.
6. ABIL Global: Applying to Naturalize as a British Citizen – Are You of Good Character? – The United Kingdom’s Home Office announced changes to the way it assesses criminal convictions, affecting how it will assess the “good character” requirement for naturalization applications.
7. New Publications and Items of Interest – New Publications and Items of Interest
8. Member News – Member News
9. Government Agency Links -Government Agency Links
1. Senate Committee Approves Comprehensive Immigration Reform Bill
On May 21, 2013, the Senate Judiciary Committee approved an amended S. 744, the “Border Security, Economic Opportunity and Immigration Modernization Act of 2013,” by a bipartisan vote of 13-5. A full Senate vote is likely in June.
The comprehensive immigration reform legislation was developed by a “Gang of Eight” bipartisan group of senators and introduced on April 17. The Gang of Eight includes Sens. Marco Rubio (R-Fla.); John McCain (R-Ariz.); Lindsey Graham (R-SC); Jeff Flake (R-Ariz.); Chuck Schumer (D-NY); Robert Menendez (D-NJ); Michael Bennet (D-Colo.); and Richard Durbin (D-Ill.). Numerous amendments were proposed during committee markups, and some were accepted.
Among other things, the bill would offer a pathway to legal permanent residence through “registered provisional immigrant status” for 10 years for an estimated 11 million undocumented persons who arrived in the United States before December 31, 2011; introduce a new visa for lower-skilled, nonagricultural foreign workers; and reduce the backlogs in the employment and family preferences. It also would create a startup visa for entrepreneurs. It would include an increase in visas for both high- and low-skilled workers. The limit on H-1B workers would increase from 65,000 to 110,000 annually, although companies with at least 15 percent foreign workers would have to meet certain conditions.
A move to give same-sex spouses equal rights under immigration law failed.
Kenneth Palinkas, president of a union representing 12,000 U.S. Citizenship and Immigration Services (USCIS) immigration adjudications officers and staff, issued a statement on May 20, 2013, opposing the legislation. Noting that his union, the National Citizenship and Immigration Services Council, was not consulted when the “Gang of Eight” crafted the legislation, he charged that S. 744 “will damage public safety and national security and should be opposed by lawmakers.” Among other things, he said USCIS has been turned into an “approval machine” that “serves illegal aliens and the attorneys which represent them,” and blamed an “onslaught of refugees” for “the strain put on our Social Security system” that is depleted “as soon as their feet touch U.S. soil.” The National Immigration and Customs Enforcement Council (NICEC), a union for ICE officers, blasted the legislation in a letter to Congress signed by Mr. Palinkas also.
Department of Homeland Security (DHS) officials countered Mr. Palinkas’ statement, stating that many safeguards were added in recent years, such as an anti-fraud unit created in 2010, an increase in anti-fraud officers, scrutiny of employee decisions, a focus on security threats, and expansion of requirements for biometric screening. Commenting on one of the programs Mr. Palinkas criticized, deferred action for childhood arrivals, the New York Times quoted Peter Boogard, a DHS spokesperson, as noting that “[r]everting back to a system that treats violent criminals the same as children brought to this country through no fault of their own would only undermine the integrity of the immigration system and force law enforcement agencies to divert limited resources from focusing on those who pose real threats to their communities.” A New York Times editorial on May 21, 2013, called the letter to Congress “a screed, a grab bag of misdirection, scary talk and lies.” The editorial concluded, “The country is better served by the saner, more responsible law-enforcement officials, like the sheriffs, police chiefs and attorneys general who have lined up behind the bill, saying the current system undermines law enforcement by forcing the undocumented to live in anonymity and fear.”
Among other reactions, immigration activists in the Senate committee room chanted, “Yes, we can!” when the bill passed. A nonprofit association for the IT industry, CompTIA, also applauded the compromise bill. CompTIA released a statement noting that “[m]any of our membership are small and medium-sized technology firms that benefit from a strong pipeline of talent throughout the industry. … [W]e were pleased to see included in the legislation language akin to the INVEST and STEM visas. Allowing STEM advanced degree holders to remain in the U.S. with a green card gives [tech businesses] an opportunity to recruit talent that they might not otherwise have access to. Allowing foreign entrepreneurs willing to stay and invest in our country also makes sense, as more than a quarter of all technology and engineering businesses launched in the U.S. between 1995 and 2005 had an immigrant founder.”
LIST OF AMENDMENTS & THEIR OUTCOME IN THE MARKUPS
2. Signaling Flexibility Within Limits, USCIS Releases Final Version of EB-5 Policy Memo
U.S. Citizenship and Immigration Services (USCIS) has released the final version of a long-awaited memorandum on EB-5 adjudications policy that went through four iterations beginning in November 2011.
The memo begins by reviewing the purpose and structure of the EB-5 immigrant investor program and reviews terminology and definitions, noting that the program’s purpose is “to promote the immigration of people who can help create jobs for U.S. workers through their investment of capital in the U.S. economy.”
Regarding the “preponderance of the evidence” standard, the memo notes that adjudication of EB-5 petitions and applications must establish each element by showing that what is claimed is “more likely so than not so.” This is a lower standard of proof than the “clear and convincing” or “beyond a reasonable doubt” standards. “The petitioner or applicant does not need to remove all doubt from our adjudication,” the memo states. Even if an adjudicator has some doubt, if the petitioner or applicant submits “relevant, probative, and credible evidence” that leads to the conclusion that the claim is more likely than not, or probably true, the petitioner or applicant has satisfied the standard of proof.
The memo allows a degree of flexibility in certain areas, such as “to account for the realities and unpredictability of starting a business venture,” although it cautions that this is not an “open-ended allowance.” The memo notes, for example, that the EB-5 program allows an immigrant investor to become a lawful permanent resident, without conditions, if he or she has established a new commercial enterprise, substantially met the capital requirement, and can be expected to create within a reasonable time the required number of jobs. All of the goals of capital investment and job creation need not have been fully realized before the conditions on the immigrant investor’s status have been removed. Rather, the memo states, the regulations require the submission of documentary evidence that establishes that it is more likely than not that the investor is in “substantial” compliance with the capital requirements and that the jobs will be created “within a reasonable time.”
USCIS has some latitude in interpreting what constitutes “within a reasonable time,” the memo notes, adding that the regulations require that the business plan submitted with the Form I-526, Immigrant Petition by Alien Entrepreneur, establish a likelihood of job creation “within the next two years.” Because the law contemplates two years as the baseline expected period in which job creation will take place, the memo explains, jobs that will be created within a year of the two-year anniversary of the immigrant’s admission as a conditional permanent resident or adjustment to conditional permanent resident status may generally be considered to be created within a reasonable period of time. Jobs projected to be created beyond that time horizon “usually will not be considered to be created within a reasonable time, unless extreme circumstances, such as force majeure, are presented,” the memo warns.
Following the theme of flexibility with limits, the memo acknowledges that business strategies “constantly evolve.” Therefore, the Form I-924, Application for Regional Center, provides a list of acceptable amendments, including “changes to organizational structure or administration, capital investment projects (including changes in the economic analysis and underlying business plan used to estimate job creation for previously approved investment opportunities), and an affiliated commercial enterprise’s organizational structure, capital investment instruments or offering memoranda.” The memo notes, however, that such formal amendments to the regional center designation are not required when a regional center changes its industries of focus, geographic boundaries, business plans, or economic methodologies, unless the regional center elects to pursue an amendment because it seeks certainty in advance of adjudication.
The memo also notes that unless there is reason to believe that a prior adjudication involved an objective mistake of fact or law, USCIS should not reexamine determinations made earlier in the EB-5 process. Absent a material change in facts, fraud, or willful misrepresentation, the memo states, USCIS should not re-adjudicate prior USCIS determinations that are subjective, such as whether the business plan is comprehensive and credible or whether an economic methodology estimating job creation is reasonable.
Other topics the memo discusses include targeted employment areas; new commercial enterprises; purchases of existing businesses that are restructured or reorganized; expansion of existing businesses; pooled investments in non-regional center cases; evidence of the establishment of, or investment in, a new commercial enterprise; job creation; qualifying employees; the sequence of individual investor filings; business plans; and the impact of “material changes” to a project.
3. CBP Releases Travel Tips, Improvements in Arrival Process for International Travelers
U.S. Customs and Border Protection (CBP) announced on May 22, 2013, that it is easing the international arrival process with new technology and procedures, including automating the I-94 Arrival/Departure Record and expanding self-service kiosks.
CBP said that additional steps travelers can take to smooth their arrival process include familiarizing themselves with U.S. rules and regulations before departing. The agency released its “Top 10 Travel Tips” (edited):
- Join Trusted Travelers through Global Entry, SENTRI, or NEXUS.
- Know the required travel documentation for your trip. (Hint: you will need a passport for air travel!) (See http://www.travel.state.gov/.)
- If you are from a Visa Waiver country, don’t leave home without your Electronic System for Travel Authorization (ESTA). More on getting your Electronic System for Travel Authorization before boarding your flight.
- For those traveling by air or sea on a visa, CBP has automated the I-94. Find your I-94 number HERE.
- Complete your Customs Declaration (your flight staff will hand out the form) before you deplane. What is eligible for duty exemptions?
- Know what merchandise you can bring to the United States. See HERE.
- Many agriculture products can bring damaging pests and diseases into the country; check to see what may be harmful. See HERE.
- Allow for lines at ports of entry. Summer is a busy travel season; be prepared and work with CBP officers as they do their job. See HERE.
- Monitor border wait times. Know what ports of entry have lighter traffic, or use an alternate to avoid delays. See HERE.
- Take it with you! CBP
CBP also announced the opening of a seasonal border station at Ely, Minnesota, from May 25 until September 7, 2013, to help with the busy summer tourist season.
CBP ANNOUNCEMENT, including the travel tips
ANNOUNCEMENT ABOUT SEASONAL BORDER STATION
4. Federal Judge Enjoins Arizona Sheriff’s Office From Immigration Enforcement, Racial Profiling
In Melendres v. Arpaio, G. Murray Snow, a federal judge for the District of Arizona, ruled on May 24, 2013, that the Maricopa County Sheriff’s Office (MCSO), under Sheriff Joseph Arpaio, engaged in impermissible racial profiling and enforcement of federal immigration law by singling out Latino day laborers and others.
Patrols by MCSO included using traffic stops as a pretext to detect occupants of vehicles who may be in the United States without authorization. Among the issues in the lawsuit were whether the MCSO was permitted under the Fourth Amendment of the U.S. Constitution to question, investigate, and/or detain Latino occupants of vehicles it suspects of being in the United States without authorization when it has no basis to bring state charges against such persons, and whether the MCSO uses race as a factor in forming suspicion or probable cause. The court noted that MCSO lost authority to enforce the civil administrative aspects of federal immigration law when ICE cancelled that authority under its “287(g) program,” which had delegated authority to enforce federal immigration law to a maximum of 160 MCSO deputies under Immigration and Nationality Act § 287(g).
The court ruled that the MCSO is permanently enjoined from detaining Latino occupants of vehicles in Maricopa County based only on a “reasonable belief,” without more, that they are in the United States without authorization. The MCSO is further permanently enjoined from using race or Latino ancestry as a factor in determining whether to stop any vehicle in Maricopa County with a Latino occupant, and from enforcing federal immigration law.
The court noted that the MCSO “continues to engage in law enforcement efforts against unauthorized aliens, and continues to aggressively assert its authority to do so.” In doing so, the court said, the MCSO erroneously trained its patrol deputies that they had authority to continue enforcing federal immigration law. “To the extent that MCSO implemented faulty instruction from ICE through the racially biased policies and practices governing its enforcement operations, its own implementation of those operations was also significantly flawed by its failure to observe normal standards of police conduct,” the court noted.
5. USCIS Issues Reminder About New I-9 Version, Releases Q&A’s on Monitoring and Compliance
U.S. Citizenship and Immigration Services (USCIS) issued a reminder that as of May 7, 2013, employers must use the latest version of the I-9 employment eligibility verification form for new hires. The new form has a revision date of “03/08/13 N” in the lower left corner of the first instructions page. It expires on March 31, 2016.
Q&As ON THE E-VERIFY MONITORING & COMPLIANCE FUNCTIONS
USCIS I-9 BLOG explaining details about the new form
6. ABIL Global: Applying to Naturalize as a British Citizen – Are You of Good Character?
Those applying to naturalize as British citizens need to be aware that criminal convictions and non-custodial offences can be taken into account when their applications are assessed. On December 13, 2012, the Home Office announced changes to the way it assesses criminal convictions, affecting how it will assess the “good character” requirement for naturalization applications. Criminal convictions will no longer be considered “spent” but instead will be evaluated according to a “sentence-based threshold.”
Where an individual has been convicted of an offense, the length of time he or she must wait before applying to naturalize as a British citizen is now dictated under the “sentence-based threshold” approach, as follows:
- A sentence of 4 years or more of imprisonment: the application will be refused, regardless of when the conviction occurred
- A sentence between 12 months and 4 years of imprisonment: the application will be refused unless 15 years have passed since the end of the sentence
- A sentence of up to 12 months of imprisonment in the last 7 years: the application will be refused unless 7 years have passed since the end of the sentence
- A non-custodial offense: the application will be refused if the conviction occurred in the last 3 years
The majority of people affected by this change likely will fall under the non-custodial offense category.
Most commonly, unpaid fines and notices that have been referred to a court due to non-payment, where the court orders the fine to be paid, can be treated as a non-custodial offense. Similarly, where an individual has been issued a police caution (warning), this too can be assessed against the non-custodial sentencing threshold.
These changes make it mandatory for individuals to declare any offenses or convictions ever received either in the United Kingdom or abroad. Where an offense occurred abroad, it will be considered in line with the equivalent UK offense and the relevant sentencing threshold applied.
If you are concerned about a future application to naturalize as a British citizen, speak to your ABIL Global legal representative.
7. New Publications and Items of Interest
Report on U.S.-Canada Entry/Exit Project. The Department of Homeland Security (DHS) and the Canada Border Services Agency (CBSA) released a joint report on May 14, 2013, on Phase I of the Entry/Exit project, part of the Beyond the Border Action Plan. The report outlines progress made to establish a coordinated Entry/Exit information system and further enhance security along the U.S.-Canada border. Under the pilot project, DHS and CBSA exchanged routine biographic entry information. The program tested the concept of an Entry/Exit system for both countries through the exchange of information, such that an entry into one country becomes an exit from the other.
Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
This comprehensive guide is designed to be used by:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.firstname.lastname@example.org.
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 has won five national awards. It was named a Nautilus book award silver medal winner, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012 and was a finalist for the International Photography Awards. The writer, Saundra Amrhein, was nominated as a finalist on the short list for the 2011 Santa Fe Writers Project Literary Awards. Green Card Stories is also featured on National Public Radio’s photo blog.
For more information, e-mail Lauren Anderson at email@example.com or see the Green Card Stories website.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL blog.
8. Member News
The following ABIL members were listed in Chambers USA 2013:
H. Ronald Klasko
Several ABIL members will speak at the upcoming American Immigration Lawyers Association conference to be held June 26-29, 2013, in San Francisco, California:
- Steve Clark will speak on “Fundamentals: Labor Certification 103: The Basics of Audits, Supervised Recruitment & Denials”
- Bryan Funai will speak on “Masters: Advanced E-1/E-2 Visa Issues”
- Kehrela Hodkinson will speak on “Basics of Consular Processing in Family Cases”
- H. Ronald Klasko will speak on “Masters Business: Hot Topics With EB-5 Regional Centers”
- Charles Kuck will speak on “How to Handle DOL and USCIS Investigations”
- Sharon Mehlman will speak on “Things I Hate About PERM”
- Cyrus Mehta will speak on “Masters: EB-1 in the Age of Kazarian”
- Angelo Paparelli will speak on “Globalization, Technology, and Telecommuting: Does Where You Are Mean Anything Anymore?”
- Julie Pearl will speak at the AILA “Global Forum on the Role of Technology in Global Immigration”
- Bernard Wolfsdorf will speak on “Essentials of EB-5 and Other Investor Visa Options at the Urban Tavern for New Members Division”
- Mr. Wolfsdorf and Stephen Yale-Loehr will speak on “EB-5: The Essentials of Investment”
Robert Loughran authored “Checklist for Global Immigration Policy Formation,” published on May 13, 2013, in the HR Houston Newsletter.
Mr. Loughran will speak on the strengths and weaknesses of utilizing EB-5 regional centers as funding mechanisms at the Texas Economic Development Conference (TEDC)’s 2013 Mid-Year Conference on Wednesday, June 5, 2013.
Mr. Loughran was recently appointed to the Texas State Bar Standing Committee on Laws Relating to Immigration and Nationality, and AILA’s National Committee on Business Immigration.
Mr. Loughran spoke on a panel on May 22, 2013, at the Governor’s Small Business Forum on International Trade at the Hotel Austin in Austin, Texas. The topic was the legal and immigration implications involved in international trade.
Sharon Mehlman and Angelo Paparelli will speak on June 5, 2013, at the American Council for International Personnel’s Annual Symposium in Pentagon City, Virginia. The topic of their presentation is “Extraordinarily Confusing: EB-1 and EB-2 Options for Your Superheroes.”
Ms. Mehlman also spoke at the following:
- May 22, 2013, San Diego Employers Association, Employment Law Update, “Immigration Law Update for the Hospitality Industry”
- May 15, 2013 Society for Human Resources Management (San Diego), “Employment Eligibility Verification, New Form I-9 – Are you Prepared?”
- May 9, 2013, Park Avenue Presentations webinar, “The New Form I-9. Everything You Need to Know About This Difficult Two-Page Form”
- May 7, 2013, LawLogix Webinar, “The Mandatory New Form I-9: Q&A With Experts”
Cyrus Mehta spoke at the Federal Bar Association’s Immigration Seminar held on May 17-18, 2013, in Memphis, Tennessee, on “CSPA & Child Citizenship Act of 2000.”
Mr. Mehta has published a new blog entry. “An Immigration Attorney’s Response to Statement of USCIS Union President Opposing Senate Immigration Bill, S. 744”
Mr. Paparelli has published several new blog entries. “The Immigration Scandal at DHS – Just As Bad As At IRS” “Immigration’s Minnesota Nice, Sen. Al Franken Helps Small Businesses and Regular Folks With the I-9 Process”
Julie Pearl will moderate a panel session on “Behind the DHS Curtain: The Life of a File” on June 5, 2013, at the American Council for International Personnel’s Annual Symposium in Pentagon City, Virginia.
Ms. Pearl spoke at LawTech Day on May 23, 2013, in San Francisco, California, contributing to a discussion about the latest trends in technology innovation at law firms.
Stephen Yale-Loehr gave a media briefing for journalists on May 17, 2013, at the Hall of States in Washington, DC. He analyzed the changes being made to the immigration bill in the Senate Judiciary Committee markup and predicted that the Senate would pass significant immigration reform but that the House probably would not pass a bill this year. He noted that crafting a comprehensive immigration bill is “like playing Rubik’s Cube with five different people…who all have the same Rubik’s Cube and are twisting it in different directions. To get it all to come together at the end so that you have one solid color is going to be very difficult.” Mr. Yale-Loehr was quoted in an article about the briefing in the Cornell Chronicle. He was also quoted about the briefing in Bloomberg’s Bureau of National Affairs Workplace Immigration Report on May 17.
Bernard Wolfsdorf, Wolfsdorf Immigration Law Group, received Who’s Who Legal‘s 2013 Lawyer of the Year award for Corporate Immigration.
Mr. Wolfsdorf moderated a panel on the I-526 petition process and latest request for evidence trends at the Third Annual EB-5 Investment Summit: Dealmakers Conference on May 30, 2013.
9. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin
Visa application wait times for any post