News from the Alliance of Business Immigration Lawyers Vol. 10, No. 4B • April 15, 2014

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Headlines:

1. H-1B Cap Reached for FY 2015 – USCIS received about 172,500 H-1B petitions during the filing period that began April 1, including petitions filed for the advanced degree exemption.

2. White House To Propose New Regs, Steps To Attract Entrepreneurs – Among other things, proposed regulations will include rules authorizing employment for spouses of certain high-skill workers on H-1B visas and enhancing opportunities for outstanding professors and researchers.

3. Pro Bono Success Story: Kuck Immigration Partners – Kuck Immigration Partners recently handled a pro bono case for a mentally ill client who was being detained at the Stewart Detention Center (SDC) in Lumpkin, Georgia.

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

5. Member News – Member News

6. Government Agency Links – Government Agency Links

Details:

1. H-1B Cap Reached for FY 2015

U.S. Citizenship and Immigration Services (USCIS) announced that the fiscal year (FY) 2015 H-1B cap was reached as of April 7, 2014. The agency will reject and return with the filing fees non-duplicate cap-subject petitions that were not selected.

USCIS received about 172,500 H-1B petitions during the filing period that began April 1, including petitions filed for the advanced degree exemption. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced-degree exemption. The agency conducted the selection process first for the advanced-degree exemption. All advanced-degree petitions not selected then became part of the random selection process for the 65,000 limit.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • extend the amount of time a current H-1B worker may remain in the United States;
  • change the terms of employment for current H-1B workers;
  • allow current H-1B workers to change employers; and
  • allow current H-1B workers to work concurrently in a second H-1B position.

Premium processing. USCIS also announced that it would begin premium processing for H-1B cap cases by April 28, 2014. USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time.

USCIS will continue to accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for a Nonimmigrant Worker, while premium processing is unavailable. Petitioners may also upgrade a pending H-1B cap petition to premium processing once USCIS issues a receipt notice.

While the Form I-797, Notice of Action (receipt notice), indicates the date USCIS received the premium processing fee, the 15-day processing period will begin by April 28. This allows USCIS to take in the anticipated high number of filings, conduct the lottery to determine which cases meet the cap, and prepare the volume of cases for premium and regular processing.

The 15-day processing period for premium processing service for H-1B petitions that are not subject to the cap, or for any other eligible classification, continues to begin on the date that the request is received.

F-1 students and the “cap-gap.” The period of time when an F-1 student’s status and work authorization expire through the start date of his or her approved H-1B employment period is known as the “cap-gap.”

The cap-gap occurs because an employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1.

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the cap-gap period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

USCIS ANNOUNCEMENT

INFORMATION ON PREMIUM PROCESSING

INFORMATION ON CAP-GAP ISSUES

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2. White House To Propose New Regs, Steps To Attract Entrepreneurs

The Obama administration released a fact sheet on April 7, 2014, summarizing efforts to strengthen entrepreneurship, including a series of proposed regulations and other steps.

Among other things, the Department of Homeland Security is set to publish soon several proposed rules intended to make the United States more attractive to talented foreign entrepreneurs and other high-skill immigrants. The proposed regulations will include rules authorizing employment for spouses of certain high-skill workers on H-1B visas and enhancing opportunities for outstanding professors and researchers.

Also planned is the launch of “Entrepreneur Pathways,” an online resource center “that gives immigrant entrepreneurs an intuitive way to navigate opportunities to start and grow a business in the United States,” the fact sheet says.

Additionally, the Department of State will launch two new exchange programs for entrepreneurs in the Western hemisphere. The Small Business Network of the Americas (SBNA) Fellowship Program will connect incubators across the hemisphere “to share best practices in entrepreneurial development and unlock market access for small businesses across the region,” the fact sheet states. The Professional Fellows Program will bring Salvadoran, Guatemalan, and U.S. officials together for a six-week internship and training program focusing on professional development, problem-solving, and networking.

WHITE HOUSE FACT SHEET

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3. Pro Bono Success Story: Kuck Immigration Partners

This is the second installment of a new feature: pro bono success stories from Alliance of Business Immigration Lawyers firms. Today’s story is from Kuck Immigration Partners.

Kuck Immigration Partners recently handled a pro bono case for a mentally ill client who was being detained at the Stewart Detention Center (SDC) in Lumpkin, Georgia. The client had been detained for almost 5 months by U.S. Immigration and Customs Enforcement (ICE).

Kuck Immigration Partners attempted to obtain an adequate mental health evaluation and to secure his release on humanitarian grounds, but ICE rejected these efforts. After witnessing the client’s mental deterioration, Kuck Immigration Partners filed a federal habeas corpus petition arguing that the client’s prolonged detention and exposure to solitary confinement violated the U.S. Constitution. Before the petition was scheduled to be heard in federal court, ICE released the client for humanitarian reasons.

Managing Partner Charles H. Kuck expressed his gratitude to the U.S. Attorney’s office in Columbus, Georgia, for their direct involvement in finding a workable solution to the client’s continued detention before the federal court hearing. Since his release, the client’s prior reinstatement of an order of removal has been vacated, and he has been served with a Notice to Appear in immigration court at a future date.

The case was especially rewarding because the client should now be able to receive treatment for his medical needs, and will have the support of his U.S. citizen wife and children as he prepares his asylum claim based on persecution he suffered due to his status as a former Mexican police officer.

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4. New Publications and Items of Interest

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.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.’

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.

This publication provides:

  • 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 [email protected].

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.

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5. Member News

Cyrus Mehta has published a new blog entry. “Why We Should All Be Mad About the H-1B Visa Cap”

Stephen Yale-Loehr was quoted in an article on the H-1B cap being reached in the first week petitions were accepted. Mr. Yale-Loehr noted that even the higher numbers of H-1B visas proposed in legislation might not be enough to meet demand. He said the number of H-1B petitions filed “ebbs and flows depending on the economy” but noted that the fact that employers must rely on a lottery to determine whether they can hire the workers they want “shows how broken our immigration system is.” The article was published on April 7, 2014, in Bloomberg BNA Daily Labor Report.

Mr. Yale-Loehr was quoted on CNN Politics in an article about the Obama administration and immigration reform. He noted, “I think the President has a difficult decision to make here. The courts have upheld wide discretion on immigration matters. He could make noncriminals the lowest deportation priorities. … But there is a penalty he could pay through using executive action rather than waiting for Congress to act on immigration reform.”

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6. 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. 4, No. 1 • April 01, 2014

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Headlines

1. USCIS Holds Teleconference With EB-5 Stakeholders – Nicholas Colucci, the new director of USCIS’s Immigrant Investor Program Office, led the teleconference.

2. USCIS Releases New EB-5 Statistics; Chinese Petitions Surge – Chinese investors now account for more than 80% of EB-5 visas issued, up from 13% a decade ago.

3. State Dept. Reports EB-5 Category Will Remain ‘Current’ for Foreseeable Future – The Department of State’s Visa Bulletin for March 2014 states that the EB-5 category will remain “Current” for the foreseeable future.

4. SEC Obtains Settlements in $158 Million Fraud – The fraudulent scheme offered the investors a stake in a hotel and conference center in the Chicago, Illinois, area. Investors wired a minimum of $500,000 each plus a $41,500 “administrative fee” to the defendants’ bank accounts.

5. Rep. Polis Introduces EB-5 Reform Bill in House of Representatives – Among other things, the bill would make the EB-5 program, set to expire in September 2015, permanent.

6. Sen. Coburn Queries All Regional Centers – Sen. Coburn explained that the information gathered would help the committee better understand the EB-5 program.

7. DHS OIG Report on EB-5 Regional Center Program Stirs Controversy – The Department of Homeland Security’s Office of Inspector General released a controversial new report on the EB-5 regional center program that includes recommendations.

8. USCIS Warns of Scams Exploiting EB-5 Immigrant Investor Program – In coordination with USCIS, which administers the EB-5 program, the SEC has taken emergency enforcement action to stop allegedly fraudulent securities offerings made through the EB-5 program.

9. New Publications and Items of Interest – New Publications and Items of Interest10. Member News – Member News11. EB-5 Government Agency – EB-5 Government Agency

Details:

1. USCIS Holds Teleconference With EB-5 Stakeholders

U.S. Citizenship and Immigration Services (USCIS) held a teleconference on February 26, 2014, with EB-5 stakeholders. Nicholas Colucci, the new director of USCIS’s Immigrant Investor Program Office, led the teleconference.

Among other things, USCIS said that it is now adjudicating I-924 regional center petitions and I-526 alien entrepreneur petitions in the Washington, DC, field office, but that it continues to adjudicate I-829 removal of conditions and I-485 adjustment of status petitions at the California Service Center for the time being.

USCIS also said it is moving toward greater use of its Electronic Immigration System (ELIS) and has implemented it for intake of I-526 petitions. The agency said it plans to offer webinars on the features of the document library, which allows regional centers to provide electronic versions of certain documents.

USCIS noted that regional center geographic area expansion must be contiguous to approved geographic areas. USCIS said it reviews such expansions on a case-by-case basis to determine whether the expansion will promote economic growth, frequently focusing on the supply chain and labor pool.

Targeted employment areas (TEAs) have been a hot topic for EB-5 stakeholders. USCIS noted that a TEA need not be singular and a new commercial enterprise can be principally located in, doing business in, and creating jobs in a collection of TEAs.

USCIS also confirmed that a high unemployment TEA must be established by a letter from an authorized body of the government of the state in which the new commercial enterprise is located, certifying that the geographic or political subdivision of the metropolitan statistical area, or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business, has been designated a high unemployment area.

As of February 1, 2014, USCIS had approved approximately 440 regional centers. The agency said the average processing time for both regional center cases and direct EB-5 cases is 11 months, but that processing may take longer temporarily due to staffing issues. The agency also said it is planning new EB-5 regulations and a policy guidance manual.

LIST OF EB-5 REGIONAL CENTERS BY STATE

This article is based on multiple reports; USCIS has not yet released a summary of the teleconference.

2. USCIS Releases New EB-5 Statistics; Chinese Petitions Surge

U.S. Citizenship and Immigration Services (USCIS) has released statistics for fiscal years 2008 through 2013 on I-526 immigrant petitions for alien entrepreneurs and I-829 petitions by entrepreneurs to remove conditions.

I-526. The statistics show that at the end of FY 2013 (September 30, 2013), there were 7,131 I-526 petitions pending. By contrast, at the end of FY 2008, there were only 853 petitions pending.

I-829. The statistics show that at the end of FY 2013, there were 1,345 I-829 petitions pending. By contrast, at the end of FY 2008, there were only 454 petitions pending.

Recent reports have noted a surge in petitions by Chinese entrepreneurs. Chinese investors now account for more than 80% of EB-5 visas issued, up from 13% a decade ago.

I-526 STATISTICS

I-829 STATISTICS

3. State Dept. Reports EB-5 Category Will Remain ‘Current’ for Foreseeable Future

The Department of State’s Visa Bulletin for March 2014 states that the EB-5 category will remain “Current” for the “foreseeable future.” This is a relief for many EB-5 immigrant investors and attorneys, because the Department of State had earlier warned that EB-5 visas might hit the 10,000 annual cap some time this fiscal year. If so, the Department of State would have to issue a cutoff date for EB-5 investors, forcing many of them to wait longer for an EB-5 visa.

As stated in the previous article, over 7,000 I-526 EB-5 petitions are pending at U.S. Citizenship and Immigration Services. That does not include spouses and children of principal EB-5 applicants. Thus, it is only a matter of time until the EB-5 category retrogresses. It is unclear when that will happen.

VISA BULLETIN FOR MARCH 2014

4. SEC Obtains Settlements in $158 Million Fraud

On March 17, 2014, the U.S. District Court for the Northern District of Illinois, Eastern Division, entered a consent judgment against defendants Anshoo R. Sethi, A Chicago Convention Center, LLC (ACCC), and Intercontinental Regional Center Trust of Chicago, LLC (IRCTC), for their roles in raising approximately $158 million from over 250 Chinese investors as part of a fraudulent offering that targeted foreign nationals who sought to invest in the United States via the EB-5 program, as alleged in the SEC’s February 2013 complaint.

The fraudulent scheme offered the investors a stake in the “World’s First Zero Carbon Emission Platinum LEED certified” hotel and conference center in the Chicago, Illinois, area. Investors wired a minimum of $500,000 each plus a $41,500 “administrative fee” to the defendants’ bank accounts. False claims made by the defendants to investors included that several major hotel chains had signed on to the project, that the defendants had acquired all the necessary permits and approvals for construction, that they would contribute land valued at over $177 million, and that the project was likely to generate more than 8,000 jobs. The SEC’s complaint also notes that the defendants made false and misleading statements, and provided falsified documents, to U.S. Citizenship and Immigration Services.

The final judgment provides the following relief:

  • joint-and-several liability for over $11.5 million in disgorgement and prejudgment interest, subject to offsets for certain amounts refunded or credited to investors;
  • permanent injunctions against future violations of Section 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder;
  • an order enjoining and restraining defendants for 20 years from offering or selling securities issued by any of the defendants or issued by any entity owned or controlled by Sethi;
  • a civil penalty of $1 million against defendant Sethi;
  • civil penalties against ACCC and IRCTC;
  • ACCC and IRCTC agreeing to wind up and dissolve after satisfying their payment obligations.

The defendants will satisfy their payment obligations, at least in part, by paying over the funds frozen in certain bank accounts pursuant to the court’s asset freeze order in this case and also by selling property held in ACCC’s name.

The SEC filed its case on February 6, 2013, and obtained a temporary restraining order and asset freeze against Sethi, ACCC, and IRCTC. On April 19, 2013, the court granted the SEC’s motion to return to investors the entire $147 million of principal that had been frozen pursuant to the SEC’s motions. The agreed-upon settlement resolves, among other things, the disposition of approximately $11 million in administrative fees paid by investors, which are the only funds remaining to be returned.

Sethi, ACCC, and IRCTC neither admitted nor denied the SEC’s allegations.

SEC’S ANNOUNCEMENT OF THE SETTLEMENTS

SEC’S COMPLAINT DETAILING THE CHARGES

5. Rep. Polis Introduces EB-5 Reform Bill in House of Representatives

Rep. Jared Polis (D-Colo.) recently introduced “The American Entrepreneurship and Investment Act of 2014,” a bill that would make the EB-5 program, set to expire in September 2015, permanent. The bill would also make various changes to the program. “The EB-5 program provides significant injections of capital and talent to our economy and, with the improvements we make in this bill, will ensure that the best and brightest minds from around the world continue to come here with their ideas and business,” Rep. Polis said.

Highlights include, among other things:

  • making adjustments to targeted employment area designations;
  • tying the minimum investment amount to the Consumer Price Index;
  • including part-time employees who work at least 35 hours per week in the definition of “full-time employment”;
  • establishing a preapproval procedure for business plans;
  • allowing concurrent filings of EB-5 petitions for immediate family members;
  • allowing premium processing of EB-5 petitions;
  • providing national interest waivers for physicians working in shortage areas of veteran facilities and entrepreneurs and job creators who have been engaged in a new commercial enterprise that has benefited the U.S. economy and satisfied certain employment creation requirements; and
  • eliminating per-country quotas for EB-5 immigrant visas, with a goal of alleviating the backlog in the Chinese visa category

MORE INFORMATION

6. Sen. Coburn Queries All Regional Centers

Sen. Tom Coburn (R-Okla.) recently sent a letter to all EB-5 regional centers asking about their participation in the EB-5 immigrant investor program. As the ranking member of the Senate’s Homeland Security and Governmental Affairs Committee, Sen. Coburn explained that the information gathered would help the committee better understand the EB-5 program.

His wide-ranging questions covered such topics as the annual amount of investment and number of individuals by country of origin making investments; the name, address, and description of each business in which the regional center has made an investment and the number of jobs created; a list of current or former corporate officers of the regional center, including titles, positions, and dates of employment; and the name and address of any individual or entity with which the regional center has an agreement to provide legal, accounting, recruiting, or consulting services, along with a description of the services provided.

The letter is dated February 14, 2014. IIUSA, the trade association of EB-5 regional centers, responded with a letter outlining information about the program. IIUSA noted that the EB-5 regional center program is designed as a competitive marketplace, so many of those arrangements and relationships “are considered by our members to be proprietary and confidential.”

IIUSA noted that much of the information being requested is captured on Form I-924A and is therefore on file at U.S. Citizenship and Immigration Services (USCIS). Regional centers must file this form annually. IIUSA added, “It is important to note that our members may consider specific information included on Form I-924A to be proprietary and confidential, and to our knowledge USCIS has treated it so in responding to Freedom of Information Act (FOIA) requests for it.”

IIUSA also noted that a FY 2012 study found that the program’s economic impact increased dramatically over the previous two years by contributing more than $3.39 billion to U.S. GDP, supporting over 42,000 U.S. jobs, and generating over $712 million in federal/state/local tax revenue.

IIUSA’S RESPONSE

7. DHS OIG Report on EB-5 Regional Center Program Stirs Controversy

The Department of Homeland Security’s Office of Inspector General (OIG) released a controversial new report on the EB-5 regional center program that includes four recommendations.

OIG report highlights. As background, Congress enacted the employment-based fifth preference (EB-5) green card category in 1990 to stimulate the U.S. economy through direct job creation and capital investment by foreign investors. Congress added a regional center pilot program to the EB-5 category in 1992 to pool investor money in a defined industry and geographic area to create both direct and indirect jobs.

An EB-5 investor must invest $500,000 if his or her investment is in a high unemployment area or a rural area. Otherwise the investor must invest $1 million. Each foreign investor must create or preserve at least 10 full-time jobs for qualifying U.S. workers within 2 years.

The OIG report notes several conditions that prevent U.S. Citizenship and Immigration Services (USCIS) from administering and managing the EB-5 regional center program effectively. First, the laws and regulations governing the program do not give USCIS authority to deny or terminate a regional center’s participation based on fraud or national security concerns; the program extends beyond the current USCIS mission. Second, USCIS is unable to demonstrate the benefits of foreign investment in the U.S. economy.

Additionally, the report notes, USCIS has difficulty ensuring the integrity of the regional center program. According to the OIG, USCIS does not always ensure that regional centers meet all program eligibility requirements, and USCIS officials differently interpret and apply regulations and policies. Also, the report claims that USCIS does not always document its decisions and responses to inquiries, making the program vulnerable to perceptions about internal and external influences.

As a result, the report states, USCIS is limited in its ability to prevent fraud and national security threats and cannot demonstrate that the program is improving the U.S. economy and creating jobs for U.S. citizens, as intended by Congress.

OIG recommends that USCIS: (1) update and clarify its regulations; (2) develop memoranda of understanding with the Departments of Commerce and Labor and the Securities and Exchange Commission to provide expertise and involvement in the adjudication of applications and petitions for the EB-5 regional center program; (3) conduct comprehensive reviews to determine how EB-5 funds have actually stimulated growth in the U.S. economy in accordance with the intent of the program; and (4) establish quality assurance steps to promote program integrity and ensure that regional centers comply with regulatory requirements.

Reaction. IIUSA, the industry trade association that represents over 130 EB-5 regional centers that serve over 40 states and territories and account for over 95% of the capital flowing through the EB-5 regional center program, said it was “puzzled” by the OIG’s findings and conclusions. IIUSA said that many of the reforms the OIG identified as necessary were already underway, and that USCIS had refuted other criticisms in its response to the report.

For example, IIUSA noted that USCIS has created a new Immigrant Investor Program Office staffed by trained economists, experts in business and immigration law, and fraud and national security specialists, now led by a former director of the Treasury Department’s Financial Crimes Enforcement Network. All EB-5 related adjudications are being relocated to this office. IIUSA also noted that USCIS has clarified its guidance for adjudicators in a comprehensive May 2013 EB-5 policy memorandum and has strengthened interagency relationships.

IIUSA said these and other rebuttals in the USCIS response “should raise significant questions about the credibility of the report,” which was “further undermined by the recent resignation of [Charles Edwards, DHS’s Acting Inspector General], who himself was under investigation.”

The OIG report notes that USCIS agreed with three of the four OIG recommendations. Details of the OIG’s analysis and USCIS’s response are included in the report, “United States Citizenship and Immigration Services’ Employment-Based Fifth Preference (EB-5) Regional Center Program,” OIG-14-19.

IIUSA’S STATEMENT in response to the report

8. USCIS Warns of Scams Exploiting EB-5 Immigrant Investor Program

The U.S. Securities and Exchange Commission’s (SEC) Office of Investor Education and Advocacy and U.S. Citizenship and Immigration Services (USCIS) have jointly issued a warning to individual investors about fraudulent investment scams that exploit the EB-5 immigrant investor program.

In coordination with USCIS, which administers the EB-5 program, the SEC has taken emergency enforcement action to stop allegedly fraudulent securities offerings made through the EB-5 program. USCIS explained that business owners apply to USCIS to be designated as “regional centers” for the EB-5 program. Regional centers offer investment opportunities in new commercial enterprises that may involve securities offerings. The fact that a business is designated as a regional center by USCIS does not mean that USCIS, the SEC, or any other government agency has approved the investments offered by the business, or has otherwise expressed a view on the quality of the investment. The SEC and USCIS are aware of attempts to misuse the EB-5 program as a means to carry out fraudulent securities offerings. For example, in a recent case, SEC v. Marco A. Ramirez, the SEC and USCIS worked together to stop an alleged investment scam in which the SEC claims that the defendants, including the “USA Now” regional center, falsely promised investors a 5 percent return on their investment and an opportunity to obtain an EB-5 visa. The promoters allegedly started soliciting investors before USCIS had designated the business as a regional center. The SEC alleged that while the defendants told investors their money would be held in escrow until USCIS approved the business as eligible for EB-5, the defendants misused investor funds for personal use, such as funding their Cajun-themed restaurant. According to the SEC’s complaint, the investors did not obtain even conditional visas as a result of their investments through the USA Now regional center.

In another case, SEC v. A Chicago Convention Center, the SEC and USCIS coordinated their efforts to halt an alleged $156 million investment fraud. The SEC alleged that an individual and his companies used false and misleading information to solicit investors in the “World’s First Zero Carbon Emission Platinum LEED certified” hotel and conference center in Chicago, including falsely claiming that the business had acquired all necessary building permits and that the project was backed by several major hotel chains.

According to the SEC’s complaint, the defendants promised investors that they would get back any administrative fees they paid for their investments if their EB-5 visa applications were denied. The defendants allegedly spent more than 90 percent of the administrative fees, including some for personal use, before USCIS adjudicated the visa applications.

USCIS noted that as with any investment, it is important to research thoroughly any offering that purports to be affiliated with EB-5. USCIS recommended the following steps:

  • Confirm that USCIS has designated the regional center. If you intend to invest through a regional center, check the list of current regional centers on USCIS’s website. If the regional center is not on the list, exercise extreme caution. Even if it is on the list, understand that USCIS has not endorsed the regional center or any of the investments it offers.
  • Obtain copies of documents provided to USCIS. Regional centers must file an initial application (Form I-924) to obtain USCIS approval and designation, and must submit an information collection supplement (Form I-924A) at the end of every calendar year. Ask the regional center for copies of these forms and supporting documentation provided to USCIS.
  • Request investment information in writing. Ask for a copy of the investment offering memorandum or private placement memorandum from the issuer. Examine it carefully and research similar projects in evaluating the proposal. Follow up with any questions you may have. If you do not understand the information in the document or the issuer is unwilling or unable to answer your questions to your satisfaction, do not invest.
  • Ask if promoters are being paid. If there are supposedly unaffiliated consultants, lawyers, or agencies recommending or endorsing the investment, ask how much money or what type of benefits they expect to receive in connection with recommending the investment. Be skeptical of information from promoters that is inconsistent with the investment offering memorandum or private placement memorandum from the issuer.
  • Seek independent verification. Confirm whether claims made about the investment are true. For example, if the investment involves construction of commercial real estate, check county records to see if the issuer has obtained the proper permits and whether state and local property tax assessments correspond with the values the regional center attributes to the property. If other companies have purportedly signed onto the project, go directly to those companies for confirmation.
  • Examine structural risk. Understand that you may be investing in a new commercial enterprise that has no assets and has been established to loan funds to a company that will use the funds to develop projects. Carefully examine loan documents and offering statements to determine if the loan is secured by any collateral pledged to investors.
  • Consider the developer’s incentives. EB-5 regional center principals and developers often make capital investments in the projects they manage. Recognize that if principals and developers do not make an equity investment in the project, their financial incentives may not be linked to the success of the project.
  • Look for warning signs of fraud. Beware if you spot any of these hallmarks of fraud:
  • – Promises of a visa or becoming a lawful permanent resident. Investing through EB-5 makes you eligible to apply for a conditional visa, but there is no guarantee that USCIS will grant you a conditional visa or subsequently remove the conditions on your lawful permanent residency. USCIS carefully reviews each case and denies cases where eligibility rules are not met. Guarantees of the receipt or timing of a visa or green card are warning signs of fraud.
  • – Guaranteed investment returns or no investment risk. Money invested through EB-5 must be at risk for the purpose of generating a return. If you are guaranteed investment returns or told you will get back a portion of the money you invested, be suspicious.
  • – Overly consistent high investment returns. Investments tend to go up and down over time, particularly those that offer high returns. Be suspicious of an investment that claims to provide, or continues to generate, high rates of return regardless of overall market conditions.
  • Unregistered investments. Even though a regional center may be designated as a regional center by USCIS, most new commercial enterprise investment opportunities offered through regional centers are not registered with the SEC or any state regulator. When an offering is unregistered, the issuer may not provide investors with access to key information about the company’s management, products, services, and finances that registration requires. In such circumstances, investors should obtain additional information about the company to help ensure that the investment opportunity is bona fide.
  • Unlicensed sellers. Federal and state securities laws require investment professionals and their firms who offer and sell investments to be licensed or registered. Designation as a regional center does not satisfy this requirement. Many fraudulent investment schemes involve unlicensed individuals or unregistered firms.
  • Layers of companies run by the same individuals. Some EB-5 regional center investments are structured through layers of different companies that are managed by the same individuals. In such circumstances, confirm that conflicts of interest have been fully disclosed and are minimized.

USCIS noted that if an investment through EB-5 turns out to be in a fraudulent securities offering, the investor may lose both his or her money and a path to lawful permanent residence in the United States. USCIS said any EB-5 offering should be carefully vetted before investing money and hope of becoming a lawful permanent resident in the United States.

USCIS ALERT That page also has links to the alert in Chinese, Korean, and Spanish.

9. New Publications and Items of Interest

Improving the EB-5 program. Brookings-Rockefeller’s Project on State and Metropolitan Innovation released a report in February 2014, “Improving the EB-5 Investor Visa Program: International Financing for U.S. Regional Economic Development.” The report notes that although use of EB-5 financing has increased dramatically in recent years as a source of regional economic development, the program faces some major challenges. First, immigrant investors encounter a complicated network of intermediaries with little regulatory oversight, which discourages investment. Immigrants also bear the burden of compliance with program requirements, although they have little control over the investment process. Second, there is generally little coordination between regional centers and local economic development agencies (EDAs), even though these entities often share similar goals and could develop mutually beneficial partnerships. Finally, there is a dearth of reliable and publicly available data that would enable better monitoring and evaluation of the economic effects of regional center investments.

The report recommends designating an oversight role for the Department of Commerce to supervise the adjudication of regional centers, standardize data and methodology, and better monitor program impact; creating incentives for partnerships between regional centers and EDAs, thus aligning similar goals in mutually beneficial arrangements; and generating high-quality, multi-variable public data on regional centers to facilitate better evaluation of the program.

REPORT

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.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.’

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.

This publication provides:

  • 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 [email protected].

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.

10. Member News

The following ABIL members and firms are included in the Chambers Global Rankings for Business Immigration:

INDIVIDUALS
Mark Ivener
H. Ronald Klasko
Charles Kuck
Sharon Mehlman
Cyrus Mehta
Angelo Paparelli
Julie Pearl
Bernard Wolfsdorf
Stephen Yale-Loehr

FIRMS
Bener Consultancy
FosterQuan, LLP
Ivener & Fullmer LLP
Klasko, Rulon, Stock & Seltzer, LLP
Laura Devine Solicitors
Pearl Law Group
Seyfarth Shaw, LLP
Veirano Advogados
Wolfsdorf Immigration Law Group

Laura Devine and Nicolas Rollason are listed in the United Kingdom rankings and Isa Soter is listed in the Latin American rankings.

Eugene Chow has published a new article on EB-5 and Hong Kong investment programs.

Steven Clark addressed the Massachusetts Bar Association on February 6, 2014. The CLE topic was the nuts-and-bolts of EB-5 investor petitions for direct investment or regional centers.

H. Ronald Klasko, Bernard Wolfsdorf, and Stephen Yale-Loehr spoke about the EB-5 immigrant investor program at the Invest in America Summit on March 22-23, 2014, at the Jing An Shangri-la Hotel in Shanghai, China.

Mr. Klasko recently published several blog entries. “Chinese EB-5 Quota Retrogression – Part 2” “FAQs on EB-5 Quota Backlog”

Mr. Klasko spoke on “EB-5, Where Are We Now?” at the annual meeting of the Mexico City Chapter of the American Immigration Lawyers Association in Bogota, Colombia. Mr. Klasko gave a legislative update on the EB-5 program and reviewed documenting lawful sources of funding, developments in adjudications, and “musts” when dealing with regional centers.

Angelo Paparelli has published several new blog posts: “EB-5 Immigration Lawyers Wear Too Many Hats” “Senator’s Saucy Request Roils EB-5 Regional Centers”

Mr. Wolfsdorf was recently quoted on CNNMoney in an article on a dramatic surge in Chinese applicants for the EB-5 program. “The program has literally taken off to the point [that] in China, the minute anybody hears I’m an immigration lawyer, the first thing they say is, ‘Can we get an EB-5 visa?’ ” “There is a panic being created in China about the demand [getting] so big that there is going to be a visa waiting line,” he said.

Mr. Wolfsdorf has published a new blog. “Predictions for the Year of the Horse: 5 Reasons Why the EB-5 Program Will Flourish in 2014“

Mr. Wolsforf, founding Partner of Wolfsdorf Rosenthal LLP, has been named Corporate Immigration Lawyer of the Year for 2014 by Who’s Who Legal for the fifth consecutive year. Mr. Wolfsdorf received this distinction after garnering the most votes from over 500 of the top-rated immigration lawyers in the world.

11. EB-5 Government Agency

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. 10, No. 4A • April 01, 2014

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Headlines:

1. File H-1B Petitions for FY 2015 Now! – USCIS anticipates receiving more than enough petitions to reach both caps by April 7.

2. USCIS, Healthcare.gov Provide Highlights of Immigration Status Effects on ACA Eligibility – Immigration status can affect eligibility for health care benefits under the Affordable Care Act.

3. USCIS Holds Teleconference With EB-5 Stakeholders – USCIS discussed targeted employment areas, among other things.

4. State Dept. Waives Visa Fees for Participants in 2014 Special Olympics Summer Games and 2015 Special Olympics World Summer Games – Approximately 250 accredited delegation members are expected to attend the 2014 Games, and 6,500 members will attend the 2015 Games.

5. Hockeytown-Hockey Country Debacle Heats Up – Well, now, it does seem to be April 1. Parts of this article are actually true, but we won’t say which parts.

6. Pro Bono Success Story: Miller Mayer – With this issue, we inaugurate a new feature: pro bono success stories from Alliance of Business Immigration Lawyers firms. Our first story is from Miller Mayer, an ABIL member firm in Ithaca, New York.

7. ABIL Global: Canada – Canada plans to close the federal Investor Program.

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. File H-1B Petitions for FY 2015 Now!

U.S. Citizenship and Immigration Services (USCIS) is accepting H-1B petitions subject to the fiscal year (FY) 2015 cap starting on April 1, 2014. Cases will be considered accepted on the date that USCIS receives a properly filed petition with the correct fee. USCIS will not rely on the date that the petition is postmarked.

The congressionally mandated cap on H-1B visas for FY 2015 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS anticipates receiving more than enough petitions to reach both caps by April 7. The agency said it will use a random selection process to meet the numerical limit. Non-duplicate petitions that are not selected will be rejected and returned with the filing fees.

Due to the high level of premium processing receipts anticipated, combined with the possibility that the H-1B cap will be met in the first five business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized intake of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases no later than April 28, 2014. USCIS guarantees a 15-calendar-day processing time.

USCIS will continue to accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for Nonimmigrant Worker, while premium processing is unavailable. Petitioners may also upgrade a pending H-1B cap petition to premium processing once USCIS issues a receipt notice.

While the Form I-797 receipt notice indicates the date USCIS received the premium processing fee, the 15-day processing period will begin no later than April 28, 2014, as noted above. This allows for USCIS to take in the anticipated high number of filings, conduct the lottery to determine which cases meet the cap, and prepare the volume of cases for premium and regular processing.

The 15-day processing period for premium processing service for H-1B petitions that are not subject to the cap, or for any other eligible classification, continues to begin on the date the request is received.

USCIS ANNOUNCEMENT

INFORMATION ON PREMIUM PROCESSING

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2. USCIS, Healthcare.gov Provide Highlights of Immigration Status Effects on ACA Eligibility

U.S. Citizenship and Immigration Services disseminated a stakeholder alert on March 13, 2014, noting that immigration status can affect eligibility for health care benefits under the Patient Protection and Affordable Care Act (ACA), popularly known as Obamacare. USCIS encourages stakeholders to visit http://www.healthcare.gov to learn more, including the most common immigration documents that may be submitted when applying for health insurance; options for families; how immigration status affects eligibility for insurance; and how to verify citizenship and immigration status.

The ACA website provides a long list of documents that can be used to show immigration status.

The website also provides the following list of eligible immigration statuses for health coverage through the “Marketplace”:

  • Lawful permanent resident (LPR/green card holder)
  • Asylee
  • Refugee
  • Cuban/Haitian entrant
  • Paroled into the U.S.
  • Conditional entrant granted before 1980
  • Battered spouse, child, or parent
  • Victim of trafficking and his or her spouse, child, sibling, or parent
  • Granted withholding of deportation or withholding of removal, under the immigration laws or under the Convention Against Torture (CAT)
  • Individual with nonimmigrant status (including worker visas, student visas, and citizens of Micronesia, the Marshall Islands, and Palau)
  • Temporary Protected Status (TPS)
  • Deferred Enforced Departure (DED)
  • Deferred Action Status (Deferred Action for Childhood Arrivals (DACA) isn’t an eligible immigration status for applying for health coverage)
  • Applicant for:
  • – Special Immigrant Juvenile Status
  • – Adjustment to LPR status with an approved visa petition
  • – Victim of trafficking visa
  • – Asylum who has either been granted employment authorization, OR is under 14 and has had an application for asylum pending for at least 180 days)
  • – Withholding of deportation or withholding of removal, under the immigration laws or under the Convention Against Torture (CAT) who has either been granted employment authorization, OR is under 14 and has had an application for withholding of deportation or withholding removal under the immigration laws or under the CAT pending for at least 180 days)
  • Certain individuals with an employment authorization document:
  • – Registry applicants
  • – Order of supervision
  • – Applicant for cancellation of removal or suspension of deportation
  • – Applicant for legalization under IRCA
  • – Applicant for TPS
  • – Legalization under the LIFE Act
  • Lawful temporary resident
  • Granted an administrative stay of removal by the Department of Homeland Security
  • Member of a federally recognized Indian tribe or American Indian born in Canada
  • Resident of American Samoa

The website notes that this information will only be used for determining access to health coverage in the Marketplace and will not be used for immigration enforcement purposes. Also, use of health care services through the Marketplace will not be considered a public charge.

U.S. Residents Living Abroad

The Affordable Care Act requires all “applicable individuals,” including lawful permanent residents (LPRs), to maintain minimum essential health care coverage. The “minimum essential coverage” is required on a monthly basis, but only during those months that qualify people as “applicable individuals.” The penalties for failing to obtain coverage only apply to required coverage months. Applicable individuals must maintain minimum essential coverage for each month, qualify for an exemption, or pay a penalty when filing their federal income tax returns, starting with their 2014 returns.

All LPRs living outside the United States are considered “applicable individuals.” The Affordable Care Act provides that U.S. tax residents, including LPRs, whose tax home is outside the United States and who are not physically present in the United States for at least 330 full days within a 12-consecutive-month period, are treated as having minimum essential coverage for that 12-month period. In general, such individuals qualify for the foreign earned income exclusion under section 911 of the Internal Revenue Code. We do not know yet whether individuals will be required to elect the foreign earned income exclusion to be deemed as having minimum essential coverage or whether a separate form will be developed for this purpose.

LPRs qualifying as having minimum essential coverage need take no further action to comply with the minimum essential coverage requirement during the months they qualify. LPRs with a tax home outside the United States who spend less than 330 full days outside the country within a 12-month period must maintain minimum essential coverage for the applicable period or pay the penalty for failing to do so.

LPRs who seek to claim a section 911-type foreign earned income exclusion to get out of the mandate under ACA should beware of adverse consequences on their LPR status. Living outside the United States for 330 days or more in itself could lead to a finding of abandonment if the LPR cannot successfully establish that his or her visit abroad was temporary under court precedents. Even if LPRs assert that their trips abroad were temporary, claiming a section 911 benefit to avoid the health insurance coverage under Obamacare could bolster the government’s charges that they abandoned their status. Taking a section 911 exemption can also impair the applicant’s ability to show that he or she did not disrupt continuity of residence during the relevant 5- or 3-year period for naturalization purposes. INA § 316(b) states that an absence from the United States of more than 6 months but less than 1 year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence.

Penalty for Failure to Maintain Minimum Essential Coverage

LPRs and other applicable individuals who fail to maintain required minimum essential coverage must pay a penalty, known as the “individual shared responsibility payment.” The annual penalty is calculated in one of two ways, and the applicable individual will pay the higher of:

  • 1% of the applicable individual’s yearly worldwide income up to a maximum amount. Only the amount of income above the tax filing threshold, or $10,150 for an individual, is used to calculate the penalty. The maximum penalty is the national average yearly premium for a “bronze plan,” which will be calculated in 2014 at around $4500.
  • $95 per person for 2014 ($47.50 per child under 18). The maximum penalty per family using this method is $285.

The applicable individual will owe 1/12th of the annual payment for each month they or their dependents do not have coverage and are not exempt. The payment will be due when LPRs file their 2014 tax returns in 2015.

LPRs and other noncitizens should consult a competent tax professional before making essential decisions regarding their obligations under the Affordable Care Act. LPRs living abroad for significant periods are always at risk of losing their permanent residence status and should contact their ABIL attorney about steps that should be taken to maintain it.

MORE INFORMATION

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3. USCIS Holds Teleconference With EB-5 Stakeholders

U.S. Citizenship and Immigration Services (USCIS) held a teleconference on February 26, 2014, with EB-5 stakeholders. Nicholas Colucci, the new director of USCIS’s Immigrant Investor Program Office, led the teleconference.

Among other things, USCIS said that it is now adjudicating I-924 regional center petitions and I-526 alien entrepreneur petitions in the Washington, DC, field office, but that it continues to adjudicate I-829 removal of conditions and I-485 adjustment of status petitions at the California Service Center for the time being.

USCIS also said it is moving toward greater use of its Electronic Immigration System (ELIS) and has implemented it for intake of I-526 petitions. The agency said it plans to offer webinars on the features of the document library, which allows regional centers to provide electronic versions of certain documents.

USCIS noted that regional center geographic area expansion must be contiguous to approved geographic areas. USCIS said it reviews such expansions on a case-by-case basis to determine whether the expansion will promote economic growth, frequently focusing on the supply chain and labor pool.

Targeted employment areas (TEAs) have been a hot topic for EB-5 stakeholders. USCIS noted that a TEA need not be singular and a new commercial enterprise can be principally located in, doing business in, and creating jobs in a collection of TEAs.

USCIS also confirmed that a high unemployment TEA must be established by a letter from an authorized body of the government of the state in which the new commercial enterprise is located, certifying that the geographic or political subdivision of the metropolitan statistical area, or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business, has been designated a high unemployment area.

As of February 1, 2014, USCIS had approved approximately 440 regional centers. The agency said the average processing time for both regional center cases and direct EB-5 cases is 11 months, but that processing may take longer temporarily due to staffing issues. The agency also said it is planning new EB-5 regulations and a policy guidance manual.

LIST OF EB-5 REGIONAL CENTERS BY STATE

This article is based on multiple reports; USCIS has not yet released a summary of the teleconference.

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4. State Dept. Waives Visa Fees for Participants in 2014 Special Olympics Summer Games and 2015 Special Olympics World Summer Games

The Department of State has waived fees for applications (i.e., machine-readable visa) and visa issuances (i.e., reciprocity) for certain participants in the 2014 Special Olympics Summer Games Invitational taking place in Los Angeles, California, from June 6 to 8, 2014, and the 2015 Special Olympics World Summer Games taking place in Los Angeles from July 25 to August 2, 2015. Approximately 250 accredited delegation members are expected to attend the 2014 Games, and 6,500 members will attend the 2015 Games. The included roles are:

  • Athletes and Unified Partners (athletes without an intellectual disability who train and compete on teams with persons with intellectual disabilities);
  • Coaches, trainers, referees, and judges;
  • Other supporting staff accredited to the Games (e.g., medical doctors, nurses, therapists, Special Olympics staff from regional offices, and technical delegates to oversee each sport);
  • Heads and assistant heads of the delegation;
  • Medical doctors participating in the Healthy Athletes Program;
  • Global Messengers (former athletes acting as spokespersons during the Games); and
  • Police officers who will participate in the final leg of the Torch Run.

The Department has authorized U.S. consular posts worldwide to issue multiple-entry B-1/B-2 visas to qualifying applications. International media are not included in the fee waiver and will need to apply and qualify for I visas. “The same holds true for all petitionable classifications, such as temporary workers, entertainers, and cultural exchange groups,” the Department cable states.

RELATED CABLE, which includes additional information about applicable dates and other facts.

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5. Hockeytown-Hockey Country Debacle Heats Up

Following Governor Rick Snyder of Michigan’s proposal to attract 50,000 immigrants with advanced degrees or exceptional abilities in the sciences, arts, or business to Detroit to help revive the depressed economy there, on April 1 traffic was suddenly diverted at the Detroit-Windsor Tunnel and Ambassador Bridge by unnamed forces. Orange traffic cones blocked vehicles attempting to enter the United States. Fishy e-mails turned up stating, “Time for some traffic problems at Detroit-Windsor!” “Got it!” A shadowy anti-immigrant group subsequently took credit while pulling a trout off one of the e-mails, stating that, “Our city is overrun by Canadians! We should rename it the Shamebassador Bridge, eh?!”

Meanwhile, a new bridge proposal for Detroit-Windsor was stymied due to a lack of funds from Washington, DC, for a mandatory $250 million U.S. Customs plaza, required any time a bridge is built at a U.S. border. Nobody took credit for that. When pressed at a press conference for answers about financing the plaza, a rogue Department of Homeland Security spokesperson simply said, “Who you lookin’ at? Are you lookin’ at me?” He then cut the journalist’s microphone and threatened to deport everyone in the room if they didn’t leave immediately. Asked later about the advisability of the optics of that scene, this being a democracy with freedom of speech, the spokesperson said, “If it’s good enough for Darrell Issa, it’s good enough for me. If I get mad enough, I may send out a scathing letter too.” In response, Kirk Hockey of the state’s Department of Transportation blurted, “Puck that!” He acknowledged that the whole thing was a “sticky issue” but was “moving forward.” Fingers were pointed and subpoenaes were issued all around, in passive yet impassioned voices. The Michigan legislature vowed to get to the bottom of what’s now being called the “Hockeytown-Hockey Country Debacle.”

Governor Snyder retorted, “This is all nonsense. Everybody knows Canadians are welcome here!” Meanwhile, Canadians continued to sneak in via checkpoints at Washington, Idaho, Maine, Montana, North Dakota, Minnesota, New Hampshire, New York, Vermont, various airports, and on the backs of snowbirds headed to Florida.

Parts of this article are actually true, but we won’t say which parts. Happy April Fool’s Day!

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6. Pro Bono Success Story: Miller Mayer

Miller Mayer recently received good news regarding a pro bono case that has spanned over two years. In a happy collaboration between our firm’s litigation and immigration groups, and with the generous help of the Buffalo, New York, district immigration office and immigration court, a 47-year-old mentally handicapped Canadian citizen gained legal immigration status and public benefits support for the first time in his life. This support came just in time, as his mother, upon whom he has depended his entire life, is ill with cancer. Our local hospital’s “nurse navigator” acted as the go-between for our firm and a deserving, undocumented family that has been living in our area since 1972. The immigration agency assisted in gently apprehending the handicapped client in our office so that he could apply for a green card in immigration court. The immigration court assisted in kindly arranging a telephonic hearing, thereby not necessitating the handicapped man’s physical presence. And the Social Security Administration, after initially denying the man’s benefits application, was finally compelled by our litigation associate to review and approve the benefits request without a hearing. After many years without health insurance, vocational, or any kind of state support, this family has peace of mind that their handicapped brother will not be left alone when his mother becomes unable to care for him.
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7. ABIL Global: Canada

Canada plans to close the federal Investor Program.

On February 11, 2014, Canada’s Economic Action Plan (EAP) announced the government’s intent to terminate both the Federal Immigrant Investor Program (IIP) and Federal Entrepreneur Program (EN). In doing so, it plans to eliminate several thousand backlogged applications.

The IIP and EN programs have been cornerstones of Canada’s business-oriented immigration programs. In 2011, approximately 10,000 immigrants entered Canada through the IIP, while almost 1,000 entered through the EN.

Although the programs have been longstanding business immigration programs, in recent years they suffered from significant backlogs in processing. Investors, for instance, had to wait at least 54 months for visa issuance, while many entrepreneurs faced even longer processing times.

The current inventory of backlogged applications for the IIP stands at 65,000. Citizenship and Immigration Canada (CIC) anticipates that it would take more than six years to process these cases. To move forward with programs that will more accurately capture the types of investors needed in Canada, CIC has decided to eliminate many of the files currently in the backlog.

However, to date, no official announcement has been made as to which applications will be processed and which applications will be returned to the applicants.

CIC pointed out in its press release that the minimum investment amount for IIP applicants, which is $800,000, is significantly lower than that of investor programs in countries such as the United Kingdom, Australia, and New Zealand. It also noted that investors who arrive in Canada are likely to pay lower taxes than immigrants who come to Canada through programs such as the Federal Skilled Worker Program.

In its backgrounder, CIC explained:

The existing IIP is of limited economic benefit to Canada. There is very little “new” money coming into Canada. Almost all initial investments made through the program come from loans from Canadian banks to provincial governments.

The amount of IIP capital actively invested in economic development initiatives has been disappointing. The requirement for provinces to guarantee repayment of IIP investments after five years limits their ability to invest funds into more high-risk initiatives that tend to reap greater rewards for Canada in terms of true innovation and job creation. Fifteen years after provinces and territories were factored into the equation, less than half of the funds are actively invested.

By doing away with the current IIP and EN programs, the government will “pave the way for new pilot programs that will actually meet Canada’s labour market and economic needs.” These pilot programs will enable Canada to remain competitive in the global economy.

CIC mentioned that the pilot programs will complement the Start-Up Visa program, a former pilot program that is now a permanent part of Canada’s immigration system. Two programs have already been mentioned as replacements for the IIP and EN streams. One will be a new Immigrant Investor Venture Capital Fund and the other a new Business Skills Program.

Details of the new pilots will be announced in the coming months.

The Canadian province of Québec manages its own Investor Program, which requires net assets of at least CAD $1.6 million legally acquired, management experience, and a no-interest loan of CAD $800,000 made to Québec for a five-year period. The Québec Investor Program remains open to French-speaking applicants who have an advanced intermediate level of French as evidenced by a recognized French test.

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8. New Publications and Items of Interest

ACA resources. The National Immigration Law Center (NILC) has released webinar recordings and NILC has posted general resources on health care issues for immigrants.

Ombudsman recommendations on work eligibility for Conrad 30 spouses. On March 24, 2014, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman released recommendations on employment eligibility for spouses of foreign medical doctors accepted into the Conrad 30 program. Under this program, each state may receive up to 30 physicians each year to provide medical services to rural, inner city, and other medically underserved communities. USCIS currently does not permit spouses to change to an employment-authorized nonimmigrant status, even where the dependent independently qualifies for such status.

OSC antidiscrimination posters. The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) announced that its antidiscrimination poster is now available in additional languages. OSC has published translations of its poster in Arabic, Chinese, French, Haitian Creole, Korean, Russian, Spanish, Tagalog, and Vietnamese.

These translations are available on OSC’s worker information page and employer information page.

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.

 

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.’

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.

This publication provides:

  • 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 [email protected].

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.

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9. Member News

The following ABIL members and firms are included in the Chambers Global Rankings for Business Immigration:

INDIVIDUALS
Mark Ivener
H. Ronald Klasko
Charles Kuck
Sharon Mehlman
Cyrus Mehta
Angelo Paparelli
Julie Pearl
Bernard Wolfsdorf
Stephen Yale-Loehr

FIRMS
Bener Consultancy
FosterQuan, LLP
Ivener & Fullmer LLP
Klasko, Rulon, Stock & Seltzer, LLP
Laura Devine Solicitors
Pearl Law Group
Seyfarth Shaw, LLP
Veirano Advogados
Wolfsdorf Immigration Law Group

Laura Devine and Nicolas Rollason are listed in the United Kingdom rankings and Isa Soter is listed in the Latin American rankings.

Cyrus Mehta chaired the PLI Immigration Basics 2014 seminar on March 13, 2014. WEBCAST

Julie Pearl co-presented at the annual conference of the Arizona Relocation Alliance (ARA) on March 21, 2014, in Phoenix, Arizona, on global business traveler compliance.

Bernard Wolfsdorf, Founding Partner of Wolfsdorf Rosenthal LLP, has been named Corporate Immigration Lawyer of the Year for 2014 by Who’s Who Legal for the fifth consecutive year. Mr. Wolfsdorf received this distinction after garnering the most votes from over 500 of the top-rated immigration lawyers in the world.

Mr. Wolfsdorf was recently quoted on CNNMoney in an article on a dramatic surge in Chinese applicants for the EB-5 program. “The program has literally taken off to the point [that] in China, the minute anybody hears I’m an immigration lawyer, the first thing they say is, ‘Can we get an EB-5 visa?’ ” “There is a panic being created in China about the demand [getting] so big that there is going to be a visa waiting line,” he said.

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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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