The Visa Bulletin for January 2015 is now available.
One of the most frustrating things about being an immigration lawyer has always been the fact that there were so many people we were unable to help. Immigration laws have been narrow, unforgiving and out of balance with the needs of the country. For those who argue that those who are undocumented or who want to live in this country need to “get in the back of the line”, the best response is simply, “there is no line”.
President Obama’s Executive Action announced last week was a courageous step in the right direction. Millions of people for whom there was no line will soon be given the opportunity to get into the system. If this immigration action is an impetus to get Congress to enact something more permanent, that would be best of all. However, the value of obtaining Employment Authorization Documents, Social Security Numbers, Driver’s Licenses and all of the privileges such documentation bestows should not be underestimated. Once people have these documents, it is difficult for the government to take them away, especially from millions of people.
Our firm, along with many other immigration firms throughout the country, is keeping a list of potentially eligible applicants for Obama’s Action as well as potential comprehensive immigration reform that may eventually become law. Although we are consulting with potential clients to examine their situations and determine their likely eligibility for benefits, we are not actually accepting cases at this time as the details of what will be required have not yet been released.
I suggest that those of you who have been living in the shadows start interviewing and locating an immigration lawyer or firm that has a list. Once you feel comfortable with the firm, ask to be placed on the list and contacted when it is possible to move forward with your case. Past experience has shown that most reputable firms will have accepted the maximum number of cases relatively early on. Being on a list can increase the likelihood that competent immigration representation will be available when you need it. Although Obama’s executive actions do not have a deadline per se, the next President can invalidate the executive order upon taking office. This is an opportunity that should not be passed by.
Since President Obama announced his Executive Action that shakes up our current immigration system and will, at least temporarily, offer millions of people who are currently undocumented an opportunity to remain and work in the United States, immigration lawyers have been fielding a high volume of calls. Many people want to know what they can do now and how this action affects them. As important as what you should be doing immediately, is what you should not be doing.
1. Hire a “notario” or other Individual who is not authorized to represent you
In many countries, to become a “notario” requires as much education as to become a lawyer and those who hold this title have undergone a rigorous course of study. This is not the case in the United States. In the US, a notary is authorized to verify the authenticity of signatures and perform similar tasks. It is not a profession and no particular course of study is required. You should not hire a notary to represent you for an immigration matter. Not only would you be wasting valuable time and money, but a notario, or incompetent attorney for that matter, can leave you in a worse position than where you started. http://www.stopnotariofraud.org has valuable information on protecting yourself from notario fraud.
2. Hire a lawyer to start the process immediately
Although the executive action has been outlined, details have not yet been published and cases are not yet being accepted. This will take several months. So although you may want to review the available information and consult with an immigration lawyer about your specific circumstance, there is not enough information to move forward with a deferred action case (other than under than under the original DACA) until more details have been released.
3. Leave the USA
Many aspects of the executive order will apply to people who have lived continuously in the United States for a specified period of time. Therefore, unless you are required to do so, you should remain in the United States to apply for the benefits when they become available.
1. Collect documentation to establish your eligibility
Documents such as birth and marriage certificates, passports, visas, I-94 cards, previously issued approval notices, denials, educational and work experience documentation, along with English translations should be obtained. Other documents such as leases, tax returns and utility bills may be helpful to establish your presence in the United States. Copies are generally accepted by the USCIS.
2. Consult with a qualified immigration lawyer to review your likely eligibility and add your name to their list
Although starting the process now is ill-advised, consulting with an experienced immigration lawyer is something you can do immediately. (S)he will help determine your eligibility, and answer any questions you may have. You will want to meet a prospective lawyer with whom you can work in the future. As with most areas of law, experience and a practice devoted exclusively to immigration law are generally good signs. You can find an immigration lawyer by asking family, friends or colleagues. If that does not yield results, searching online can generally give you an idea of a particular lawyer’s reputation.
If the lawyer or firm with whom you consult keeps a list of potentially qualified candidates, be sure to be placed on the list so that you can be contacted should the lawyer be able to assist you in the future. In the past, when legalization programs have been announced, most reputable immigration law firms reached their capacity and had to stop accepting new cases. This is another reason that it may be a good idea to get your foot in the door if you meet or hear of an attorney with whom you would like to work.
3. Preparing funds for USCIS filing fees, possible back taxes, and professional fees
Benefits offered by the Executive Action won’t be free. Filing fees, back taxes, legal and possible accountant fees need to be taken into account. Although the fees have not yet been determined, one can expect that the total could well run several thousand dollars.
Stay tuned as I will be updating this page as new information becomes available on the President’s Executive Action and any action by Congress.
By: Emily Pierce, Associate Attorney at Maged Rost
Almost 25 years ago, Congress established the fifth employment-based visa category, commonly referred to as EB-5. This immigrant visa category allowsforeign nationals to obtain green cards through an investment in a new commercial enterprise that benefits the U.S. economy and creates at least 10full-time jobs for U.S. workers.1 While direct investment is a wise choice for some foreign nationals, it can be difficult for an individual to obtain sufficient evidence to satisfy the complex EB-5 statute.
Congress soon recognized the heavy burden that the statute and regulations placed on immigrant investors. In response to the problem, Congress established a temporary pilot program in 1993 that permitted investments through “regional centers.”2 The pilot program remains authorized today, and it reduces pressure on investors in two significant ways.
First, the pilot program allows private and governmental agencies to be certified as regional centers.3 This is helpful to investors because the regional center assumes responsibility for most of the burdensome documentcollection, recordkeeping, and economic reports that a foreign national may not be interested in managing. Additionally, regional centers provide a way for multiple investors unknown to one another to contribute to the same enterprise, allowing for more expansive projects and potentially greater job creation.
Second, the pilot program modified the original job creation requirement. Now, an investor may be able to qualify for a green card upon evidence that jobs will be created either directly or indirectly.4
“Direct jobs” are those that establish an employer-employee relationship between the commercial enterprise and the people it employs. When a foreign national engages in a direct investment, only the creation of direct jobs will satisfy the 10-job rule. In contrast, “indirect jobs” are those held by people who work outside the enterprise, including producers of materials, equipment, and services used in the business. “Induced jobs” are a sub-category of indirect jobs, and these also count toward the employment creation requirement. Induced jobs are those created when direct and indirect employees spend their new or increased incomes on consumer goodsand services.5
Each foreign national interested in obtaining a green card through a capital investment must decide whether to invest directly or through a regional center. The decision is extremely important, and should be made only after careful consideration and consultation with experienced immigration and business attorneys.
1 8 USC § 1153(b)(5), INA § 203(b)(5).
2 Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriates Act of 1993, Pub. L. No. 102-395, § 610 (1992).
3 8 C.F.R. § 204.6(m)(3).
4 8 C.F.R. § 204.6(m)(7).
5 Memo, Neufeld, Acting Assoc. Director, Domestic Operations, USCIS, HQ 70/6.2, AD 09-38 (Dec. 11, 2009).
The following is the latest on Executive Action from uscis.gov:
On November 20, 2014, the President announced a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.
These initiatives include:
- Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years
- Allowing parents of U.S. citizens and lawful permanent residents who have been in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks
- Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens
- Modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs
- Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee
|Important notice: These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available.|
USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible. Some initiatives will be implemented over the next several months and some will take longer.
Over the coming months, USCIS will produce detailed explanations, instructions, regulations and forms as necessary. The brief summaries provided below offer basic information about each initiative.
While USCIS is not accepting requests or applications at this time, if you believe you may be eligible for one of the initiatives listed above, you can prepare by gathering documents that establish your:
- Relationship to a U.S. citizen or lawful permanent resident; and
- Continuous residence in the United States over the last five years or more.
Below are summaries of major planned initiatives by USCIS, including:
- Who is eligible
- What the initiative will do
- When you can begin to make a request
- How to make a request
|1. Deferred Action for Childhood Arrivals (DACA) program|
|2. Deferred action for parents of U.S. citizens and lawful permanent residents|
Notes: USCIS will consider each request for Deferred Action for Parental Accountability (DAPA) on a case-by-case basis. Enforcement priorities include (but are not limited to) national security and public safety threats.
|3. Provisional waivers of unlawful presence|
Notes: Currently, only spouses and minor children of U.S. citizens are allowed to apply to obtain a provisional waiver if a visa is available.
|4. Modernize, improve and clarify immigrant and nonimmigrant programs to grow our economy and create jobs|
|5. Promote the naturalization process|
Key Questions and Answers
Q1: When will USCIS begin accepting applications related to these executive initiatives?
A1: While USCIS is not accepting applications at this time, individuals who think they may be eligible for one or more of the new initiatives may prepare now by gathering documentation that establishes their:
- Relationship to a U.S. citizen or lawful permanent resident; and
- Continuous residence in the United States over the last five years or more.
USCIS expects to begin accepting applications for the:
- Expanded DACA program approximately 90 days after the President’s November 20, 2014, announcement; and
- Deferred action for parents of U.S. citizens and lawful permanent residents (Deferred Action for Parental Accountability) approximately 180 days after the President’s November 20, 2014, announcement.
Others programs will be implemented after new guidance and regulations are issued.
Q2: How many individuals does USCIS expect will apply?
A2: Preliminary estimates show that roughly 4.9 million individuals may be eligible for the initiatives announced by the President. However, there is no way to predict with certainty how many individuals will apply. USCIS will decide applications on a case-by-case basis and encourages as many people as possible to consider these new initiatives. During the first two years of DACA, approximately 60 percent of potentially eligible individuals came forward. However, given differences among the population eligible for these initiatives and DACA, actual participation rates may vary.
Q3: Will there be a cutoff date for individuals to apply?
A3: The initiatives do not include deadlines. Nevertheless, USCIS encourages all eligible individuals to carefully review each initiative and, once the initiative becomes available, make a decision as soon as possible about whether to apply.
Q4: How long will applicants have to wait for a decision on their application?
A4: The timeframe for completing this new pending workload depends on a variety of factors. USCIS will be working to process applications as expeditiously as possible while maintaining program integrity and customer service. Our aim is to complete all applications received by the end of next year before the end of 2016, consistent with our target processing time of completing review of applications within approximately one year of receipt. In addition, USCIS will provide each applicant with notification of receipt of their application within 60 days of receiving it.
Q5: Will USCIS need to expand its workforce and/or seek appropriated funds to implement these new initiatives?
A5: USCIS will need to adjust its staffing to sufficiently address this new workload. Any hiring will be funded through application fees rather than appropriated funds.
Q6: Will the processing of other applications and petitions (such as family-based petitions and green card applications) be delayed?
A6: USCIS is working hard to build capacity and increase staffing to begin accepting requests and applications for the initiatives. We will monitor resources and capacity very closely, and we will keep the public and all of our stakeholders informed as this process develops over the course of the coming months.
Q7: What security checks and anti-fraud efforts will USCIS conduct to identify individuals requesting deferred action who have criminal backgrounds or who otherwise pose a public safety threat or national security risk?
A7: USCIS is committed to maintaining the security and integrity of the immigration system. Individuals seeking deferred action relief under these new initiatives will undergo thorough background checks, including but not limited to 10-print fingerprint, primary name, and alias name checks against databases maintained by DHS and other federal government agencies. These checks are designed to identify individuals who may pose a national security or public safety threat, have a criminal background, have perpetrated fraud, or who may be otherwise ineligible to request deferred action. No individual will be granted relief without passing these background checks.
In addition, USCIS will conduct an individual review of each case. USCIS officers are trained to identify indicators of fraud, including fraudulent documents. As with other immigration requests, all applicants will be warned that knowingly misrepresenting or failing to disclose facts will subject them to criminal prosecution and possible removal from the United States.
Q8: What if someone’s case is denied or they fail to pass a background check?
A8: Individuals who knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to obtain deferred action or work authorization through this process will not receive favorable consideration for deferred action. In addition, USCIS will apply its current policy governing the referral of individual cases to Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear before an immigration judge. If the background check or other information uncovered during the review of a request for deferred action indicates that an individual’s presence in the United States threatens public safety or national security, USCIS will deny the request and refer the matter for criminal investigation and possible removal by ICE, consistent with existing processes.
Q9: If I currently have DACA, will I need to do anything to receive the third year of deferred action and work authorization provided by the executive initiatives?
A9: The new three-year work authorization timeframe will be applied for applications currently pending and those received after the President’s announcement. Work authorizations already issued for a two-year period under the current guidelines will continue to be valid through the validity period indicated on the card. USCIS is exploring means to extend previously issued two-year work authorization renewals to the new three-year period.
Q10: Will the information I share in my request for consideration of deferred action be used for immigration enforcement purposes?
A10: Information provided in your request is protected from disclosure to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless you meet the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance. Individuals who are granted deferred action will not be referred to ICE. The information may be shared, however, with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including:
- Assisting in the consideration of the deferred action request;
- To identify or prevent fraudulent claims;
- For national security purposes; or
- For the investigation or prosecution of a criminal offense.
This policy covers family members and guardians, in addition to you.
Q11: What is USCIS doing to assist dependents of U.S. armed services personnel?
A11: USCIS is working with the Department of Defense to determine how to expand parole authorization to dependents of certain individuals enlisting or enlisted in the U.S. armed services.
At 8 PM tonight, the President will address the American people to announce details about his immigration action. Two elements that are predicted: (1) remove age limit for individuals to be eligible under DACA, and (2) work authorization and reprieve from deportation for parents of US citizens and legal permanent residents.
Republicans are up in arms over the President’s anticipated action. How can the GOP best handle the situation? Simply pass comprehensive immigration reform. The Senate passed a bill in 2013 and the House leadership has refused to bring the matter up for a vote. Such a move would avoid the poison that some factions of the GOP would spew as they considered actions such as defunding the government, filing a lawsuit or derailing the President’s action in any way they can.
According to cnbc.com: “…President Obama will announce an immigration order on Friday.” The website further states that he will be making a statement on immigration on Thursday night.
This could prove to be a historic week and we will be reviewing, analyzing and opining on the topic in the coming weeks. There are so many questions and the level of anticipation is high, both among immigrants, their employers and other interested parties.
By: Emily Pierce, Associate Attorney at Maged Rost
A financial investment in the United States economy is a popular way for foreign nationals to obtain green cards. Our website www.americainvestorvisa.com and a previous blog post introduce the two ways to structure this type of investment: either through a regional center or through a direct investment.
Regardless of the structure of the investment, USCIS always requires documentary evidence to establish that each investor obtained his or her capital through lawful means. Since investment capital may come from a variety of sources, the documents to trace the funds for each EB-5 case will differ depending on the investor’s specific circumstances.
Some of the most common sources of funds include:
- Proceeds from the sale of property or real estate;
- Earned income;
- Inheritance; and
- Any combination of these.
In consultation with an experienced immigration attorney, an investor will be able to ascertain the best way to document his or her source of funds. In addition to documentary evidence, USCIS also will consider statements made by the investor that describes the source of funds and explains any expected but unavailable evidence.
In addition to evidence of an investor’s particular source of funds, USCIS expects every investor to provide the following documents, if applicable:
- Foreign business registration records;
- Corporate and personal tax returns filed by or on behalf of the investor within the past five years either inside or outside the United States;
- Evidence of all pending civil, criminal, and/or administrative actions involving the investor for the past fifteen years; and
- Certified copies of any monetary judgments entered against the investor within the past fifteen years, either inside or outside the United States.
As a final note, it is crucial that any documents submitted as part of any immigration petition, including an EB-5 petition, are accompanied by a certified English translation, if applicable. Without a certified English translation, USCIS will not consider the document as part of the record, which could lead to delays or denial of a petition.
Please return to this blog in the coming weeks for more detailed posts regarding regional centers, direct investments, and other EB-5 related topics.
 8 C.F.R. § 204.6(j)(3).
 8 C.F.R. § 103.2(b)(3).
According to foxnews.com: “President Obama is planning to unveil a 10-part plan for overhauling U.S. immigration policy via executive action — including suspending deportations for millions — as early as next Friday, a source close to the White House told Fox News.”
I will update this blog with breaking news on immigration reform. Next week could mark the beginning of an interesting, yet bumpy ride ahead!