News from the Alliance of Business Immigration Lawyers Vol. 11, No. 10A • October 01, 2015

Headlines:

1. State Dept. Moves Many Filing Dates Back From Previously Released October Visa Bulletin; Lawsuit Filed -On September 24, 2015, the Department of State issued an update that supersedes the previously released October Visa Bulletin. By moving many filing dates back, the update radically changed the recently announced benefit offered by a revised procedure for determining immigrant visa availability and filing adjustment of status applications. A lawsuit is challenging the change.

2. USCIS Resumes Final Adjudications of Employment-Based Adjustment Applications After Brief Suspension -USCIS resumed final adjudication of employment-based adjustment applications on October 1, 2015, when visa numbers were again available.

3. White House Announces New Measures Under Citizenship Initiative -Among other things, USCIS began accepting and processing credit card payments for the naturalization application and biometrics fee. USCIS also said it is entering into a formal partnership with the U.S. Department of Agriculture to provide temporary office space for USCIS officers in agricultural and rural communities that have significant numbers of immigrants but are not located near a USCIS office.

4. ABIL Global: Netherlands -The Dutch government introduced the Startup Visa in 2015; requirements and early experiences are discussed.

5. New Publications and Items of Interest -New Publications and Items of Interest

6. ABIL Member/Firm News -ABIL Member/Firm News

7. Government Agency Links -Government Agency Links

Details:

1. State Dept. Moves Many Filing Dates Back From Previously Released October Visa Bulletin; Lawsuit Filed

On September 24, 2015, the Department of State issued an update that supersedes the previously released October Visa Bulletin. By moving many filing dates back, the update radically changed the recently announced benefit offered by a revised procedure for determining immigrant visa availability and filing adjustment of status applications. The revised process allows foreign nationals who have immigrant visa petitions based on family or employment to file adjustment of status applications once their priority dates are listed on a separate chart on the monthly Visa Bulletin, “Dates for Filing Applications.” In the prior version of the October Visa Bulletin, these dates were significantly earlier than the priority dates available for final adjudications.

With the latest change for October, the Department of State moved the dates back substantially. In a statement announcing the change, U.S. Citizenship and Immigration Services explained that following consultations with the Department of Homeland Security, the dates for filing applications for some categories in the family-sponsored and employment-based preferences were adjusted “to better reflect a timeframe justifying immediate action in the application process.”

The change means that potentially thousands of applicants who had already gathered documents, prepared applications, paid for medical examinations, and incurred other costs based on the previous dates now may have to wait many months to take the next steps in their green card cases, unless the situation changes. An informal survey of immigration lawyers revealed that about 80-90% of people who were eligible to apply for adjustment of status under the original Visa Bulletin were adversely affected by the changes announced by USCIS and DOS.

A class action challenging the new change was filed in the U.S. District Court for the Western District of Washington at Seattle on September 28, 2015. The complaint notes that in the absence of relief, plaintiffs and class members, “who have spent thousands of hours and millions of dollars preparing adjustment applications in reasonable reliance on the binding agency policy statements DOS published, will be irreparably harmed and left without any remedy for Defendants’ unlawful actions.” The complaint asks the court to declare, among other things, that the September 24 revision of the October 2015 Visa Bulletin constitutes unlawful agency action in violation of the Administrative Procedure Act. The Alliance of Business Immigration Lawyers (ABIL) filed a declaration supporting the complaint, and individual ABIL lawyers also filed declarations as experts. ABIL also plans to file an amicus brief in the litigation.

Below are a few examples of the extreme changes:

EB-2 China: Moved from 5/1/2014 to 1/1/2013 (1 year 5 months)
EB-2 India: Moved from 7/1/2011 to 7/1/2009 (2 years)
EB-3 Philippines: Moved from 1/1/2015 to 1/1/2010 (5 years)
FB-1 Mexico: Moved from 7/1/1995 to 4/1/1995 (3 months)
FB-3 Mexico: Moved from 10/1/1996 to 5/1/1995 (1 year 5 months)

The Visa Bulletin indicates when immigrant visas are available based on priority date. The priority date is the date on which the applicant’s relative or employer filed the immigrant visa petition on the applicant’s behalf. In case of employer sponsorship through labor certification, the priority date is the date the labor certification was filed with the Department of Labor. Certain immigrants may also “recapture” earlier priority dates established by other immigrant visa petitions on their behalf.

CLASS ACTION COMPLAINT

USCIS ANNOUNCEMENT

LATEST CHART, along with information on when to file

2. USCIS Resumes Final Adjudications of Employment-Based Adjustment Applications After Brief Suspension

U.S. Citizenship and Immigration Services (USCIS) announced on September 24, 2015, that it had suspended through September 30, 2015, the adjudication of all employment-based Form I-485 (Application to Register Permanent Residence or Adjust Status) adjustment applications pending with USCIS through that date, because the Department of State reported that the statutory cap was reached for the employment-based preference categories for fiscal year (FY) 2015.

USCIS resumed final adjudication of employment-based adjustment applications on October 1, 2015, when visa numbers were again available. USCIS noted that applicants filing an I-485 on or after October 1 should review the “When to File” section on the Visa Bulletin Info Web page to determine whether they are eligible.

ANNOUNCEMENT

VISA BULLETIN INFO WEB PAGE

3. White House Announces New Measures Under Citizenship Initiative

The Obama administration recently announced several new measures as part of its citizenship initiative. For example, on September 19, 2015, U.S. Citizenship and Immigration Services (USCIS) began accepting and processing credit card payments for the naturalization application and biometrics fee. Previously, the fees could only be paid with a check or money order.

USCIS also said it is entering into a formal partnership with the U.S. Department of Agriculture for the Farm Service Agency to provide temporary office space for USCIS officers in agricultural and rural communities that have significant numbers of immigrants but are not located near a USCIS office. Services under this pilot program will include biometrics collection, interviews for applications or petitions, informational appointments, and general presentations on immigration benefits.

USCIS also has begun live question-and-answer sessions on Twitter with USCIS experts answering non-case-specific questions.

The Department of Homeland Security’s Office of Immigration Statistics estimates that 8.8 million permanent residents (green card holders) are eligible to apply for citizenship. A recent analysis showed that the median time spent as a permanent resident before becoming a U.S. citizen was seven years. USCIS noted that green card holders who meet all eligibility requirements may apply for citizenship after five years, or after three years if they are married to a U.S. citizen.

4. ABIL Global: Netherlands

The Dutch government introduced the Startup Visa in 2015; requirements and early experiences are discussed.

On January 1, 2015, the Dutch government introduced a residence permit scheme for start-up companies. What are the requirements and what are the first experiences with this new permit scheme?

General

The Dutch government is keen on enhancing the ecosystem for startup companies with the goal of becoming a top-three startup hub within Europe. One of the instruments is a facilitated residence permit scheme for the owners of startup companies.

The general scheme for entrepreneurs has proven inadequate to accommodate the visa and residence needs of this category of businesses, mainly because of too-severe requirements in terms of capital demands and (forecasted) financial results. For startup companies, these demands often are hard to meet. A specific visa has been introduced where these demands don’t apply. The “startup visa” can be issued to the owners of startup companies that have been selected by, and have signed a contract with, a Dutch facilitator; i.e., a company that offers professional support for setting up and growing startup businesses.

Requirements

To sponsor a startup visa application, the facilitator must prove its expertise and reliability. This is assessed by the Ministry of Economic Affairs (MEA) upon request of the Immigration and Naturalization Service (IND). The main requirements are a proven track record of accompanying startups for at least two years, and a solid financial position.

The applying startup entrepreneur must substantiate that the product or service that is being developed is innovative, and that he or she will likely qualify for a permit based on the general points system within one year. This aspect is also assessed by MEA. The startup must provide a detailed milestone plan that includes:

the role the applicant fulfills in the startup;
the concept of the product or service the startup will deliver;
the innovativeness of the product or service; and
the milestones that need to be reached throughout the first year to take the startup from a mere concept to an actual undertaking.

The contract between the startup and the facilitator must describe:

the nature of the accompaniment and advice from the facilitator;
the conditions under which the accompaniment is offered; and
the stake that the facilitator has in the startup, if any.

Other Aspects

The startup visa is granted for one year and cannot be renewed. All persons participating in the startup company (e.g., as shareholders) are eligible for startup visas.

The anticipated total processing time is approximately four weeks. The first application was made on January 1, 2015, and was granted within five weeks. During that time, first the facilitator’s track record was approved, and subsequently the innovativeness of the startup was assessed. In essence, both the MEA and the IND proved to be able to move very fast under this scheme.

Results So Far

Since the introduction of the scheme, about 10 permits have been granted, and about 50 applications are still pending or have been denied. Although this could relate to “startup” problems and is not necessarily a reflection on the new scheme, the government’s special envoy for the improvement of the startup ecosystem, Neelie Kroes, has reportedly said that the number of visas granted should have been much higher by now, and that the new scheme is “a failure.”

5. New Publications and Items of Interest

The 2015 edition of the Global Business Immigration Practice Guide has just been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

The latest edition adds chapters on Ghana and Peru. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

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.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

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.

The list price is $359, but a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584.

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

6. ABIL Member/Firm News

On September 17, 2015, more than 100 real estate developers, EB-5 regional centers, and other members of the EB-5 community attended Klasko Immigration Law Partners’ full-day seminar, “The Successful EB-5 Project: Development, Marketing and Compliance.” The seminar was held exclusively for EB-5 regional centers and developers interested in working with EB-5 financing. Speakers covered the entire EB-5 process, from the decision whether to include EB-5 in the capital stack to the last investor’s condition removal, and provided attendees with information to help navigate this complex and evolving program. H. Ronald Klasko said, “We hosted our second EB-5 seminar this year because we couldn’t accommodate everyone on the waiting list for our February seminar. Given the very favorable reaction of our clients and the EB-5 community, we intend to make this a regular event.”

Mark Ivener spoke on September 18, 2015, on the “EB-5 Green Card Program” at International Trade: Global Flows and the Digital Age, 4th Annual California Asian Business Summit, CalAsian Chamber of Commerce, Hilton OC Costa Mesa, California.

Robert Loughran will present on October 22, 2015, on “USCIS Policy Trends: An In-Depth Look at What’s Driving EB-5 Adjudication & Administration” at the IIUSA 5th Annual EB-5 Market Exchange in Dallas, Texas. The conference is the largest gathering of EB-5 professionals annually with over 500 attendees from around the world.

Mr. Loughran, who recently returned from Iraq, published an article in the September 2015 newsletter of the bilateral U.S.-Arab Chamber of Commerce. The article outlines the immigration challenges facing U.S. firms staffing projects in Iraq.

Mr. Loughran spoke at a U.S. Commerce Department-hosted event in Oslo, Norway, on September 14, 2015. The presentation focused on immigration options for individuals investing in the United States. He also spoke at a Chamber of Commerce & Industry of Southern Sweden event in Malmö, Sweden, on the same topic the next day.

Cyrus Mehta has authored several new blog entries. “It’s Déjà Vu All Over Again: State Department Moves Many Filing Dates Back From Previously Released October 2015 Bulletin” “Sophie Cruz and Pope Francis: Shattering Myths About Immigrants”

Lynn Susser will speak on October 15, 2015, at 2 p.m. on “Preparing for Client Travel Issues—CBP and Consulates,” an American Immigration Lawyers Association Webinar. FOR MORE INFORMATION OR TO REGISTER

Stephen Yale-Loehr was quoted in The Atlantic in “Should Congress Let Wealthy Foreigners Buy Green Cards?“, published on September 21, 2015. Mr. Yale-Loehr noted that “[t]here have been some rare but highly publicized failures in the EB-5 program.” He also said, among other things, that most wealthy foreigners who want to come to the United States “are doing it because they want the green card and it’s the fastest or best way to get a green card.”

Mr. Yale-Loehr was quoted in Fusion in “Deaf Mexican Immigrants Are Declaring Asylum in the U.S.—And Winning,” published on September 28, 2015. He said applying for asylum because of deafness was a unique and “creative interpretation” of the law. He noted that historically, people applying for asylum have a less than 50% chance of obtaining it, so the success of deaf immigrants so far is striking. “It’s sort of like granting asylum to gay[s] and lesbians and other persecuted minorities. The mere fact that these people have gone through the asylum gauntlet successfully means that they were able to prove that they have a real fear of persecution.”

7. 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: