December 5th, 2013 by H. Ronald Klasko
In my last blog, I mentioned that I recently successfully represented a regional center developer before the new Decision Board in connection with a regional center application and exemplar I-526 for which the key issue was job creation based on tenant occupancy methodology. Although no decision is precedential and each case is dependent upon the facts and presentation, I can share three insights that may be instructive.
First, the main lesson is that tenant occupancy as a job creation methodology is not dead. It may be on life support, but not dead. Second, the Decision Board process is a very worthwhile one for developing a dialogue and for focusing on the key information that is required for a successful resolution of a petition. Finally, the facts and the evidence must be extremely strong for tenant occupancy jobs to be counted.
I believe that the key facts that led to the approval of our petition were the following:
We identified, with evidentiary support for our conclusions, the mix of tenants that would eventually lease the premises. We did not do so by name, but by type of tenant – restaurant, medical office, etc. We proved the likely mix of tenants by a preponderance of the evidence.
We proved by a preponderance of the evidence that the tenants in the new mixed-use project will produce “net new jobs” and not just be relocated tenants that would leave empty space elsewhere. We were able to do so by proving that tenants are at “full occupancy” in the area, which is defined as vacancy rates at or below 3%. We were also able to prove that vacated space is filled with a new tenant within one to two months.
We proved a combination of excess demand for the type of space in question together with proof that the extra supply of space would not create any excess capacity.
We showed that the extra space would “correct market imperfections”, including abnormally high rents and abnormally high unemployment, and specifically that the increased supply of space was essential to growth in employment and reduction in rents.
We presented an expert economic opinion setting forth a “reasonable economic methodology” for projecting tenant occupancy jobs. The expert opinion concluded that the applicant’s job projection is consistent with the proposed “reasonable economic methodology.”
Finally, we provided an analysis explaining how the documentation was fully compliant with the USCIS Guidance Memorandum on Tenant Occupancy dated December 20, 2012. A key element of the presentation was emphasizing that the Guidance Memorandum requires a showing of either “constraint on the supply of appropriate commercial space” or “excess demand for such space.” Although in our case we presented documentation to establish both constraint on supply and excess demand, we emphasized that approving either one or the other by a preponderance of the evidence was sufficient to meet the standards of the Guidance Memorandum.
In summary, my advice to clients remains as it was before this approval. Reliance on tenant occupancy jobs, other than for increasing a job cushion, is highly risky business. However, given the right facts and a cogent evidentiary and legal presentation, for a project where tenant occupancy jobs are critical, it may be possible to achieve a successful result.
November 19th, 2013 by Matthew Galati
On June 27, 2013, after months of hard-fought negotiations on both sides of the aisle and political spectrum, 68 senators voted to pass S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act.” Without a doubt, this Bill was truly bipartisan. Forged during marathon negotiations between the so-called “Gang of Eight” as well as the Chamber of Commerce and AFL-CIO, there are elements in S. 744 to please and annoy just about everybody. This attempt at modernizing our immigration system gave us the prospects of liberalizing the computation of the annual immigrant visa quotas, increased border security, additional numbers and procedural restrictions on H-1B visas, making the EB-5 Regional Center program permanent, and eliminating the Diversity Visa and family-based immigrant category for siblings of US citizens. And, of course, the vote on S. 744 signaled a bipartisan approval of a pathway to citizenship for DREAMers, the undocumented, and those out of status, which is perhaps the most controversial element of all.
But after June 27, not much else happened.
Following Independence Day, House Speaker John Boehner indicated that the House would not take up the Senate Bill. The idea, instead, was to approach fixing the immigration system in a more piecemeal process through a series of bills. During the August recess, members of our local AILA chapter met with eastern Pennsylvanian Republican House members from arguably “swing” districts, but each toed the party line. Once Congress went back into session after Labor Day, the attention shifted to the deadline on the continuing resolution to fund the government with a looming shutdown and debt ceiling default. Despite a national effort of the political Left to bring the issue back to the forefront of the media narrative, pundits were already calling the effort dead. The day after the shutdown started, a group of Democrats introduced H.R. 15, largely similar to S. 744, which even attracted limited Republican support. Once the government reopened its doors following the shutdown, the President urged the House to pass immigration reform by the end of the year.
But again, not much else happened.
It’s now approaching Thanksgiving. Congress in session until this Thursday and then closed for the rest of the calendar year except for December 2-13. Speaker Boehner has ruled out the prospects for voting on anything comprehensive this year. As far as 2013 goes, it is safe to pronounce immigration reform as dead. The House’s third-ranking Republican has confirmed as much.
As we approach 2014, the prognosis for passing immigration reform is not nearly as strong as it was heading into this year, but there exists a few windows of opportunity for the House to pass a comprehensive bill.
Congress will go back into session on January 7. However, we must consider the figurative “elephant in the room” or perhaps better said as those elephants waiting in the wings. Next year will be the midterm elections where every House member’s candidacy will be decided at the polls on November 4. But the real battles happen months in advance. Next Spring, a majority of the states will be holding their primary elections. Considering how the primary elections tend to bring out the base of both sides of the aisle, it is difficult to imagine a scenario where House Republican primary hopefuls will run on a pro-comprehensive reform platform given the leadership’s (and much of the base’s) opposition to comprehensive legislation to date.
The period in between the primary elections and the general election may, however, provide some opportunity. As we saw in 2012, Latinos (a group associated by the political media as being staunchly pro-comprehensive reform), skewed heavily towards President Obama and the Democrats. Although this year provided less of a litmus test given the relatively few off-year races, immigration-related issues did provide somewhat of a wedge in this month’s Virginia Gubernatorial election where anecdotal evidence supports the notion that Latino support helped carry the Democratic candidate to victory in a very close race.
Will there then be pressure for House Republicans to push for a vote on a comprehensive bill in 2014? It’s certainly possible. However, one must consider that many analysts only consider a relative handful of House seats to be competitive given the nature of the majority of Congressional districts. With this as the status quo, it is difficult to imagine a scenario with the Speaker reversing course with the support of his party. On the other hand, there is always the possibility of a headline-grabbing event occurring that will galvanize support, the efforts of coordinated grassroots campaigns coming to fruition, or a shift in the political winds that opens up more venues for electoral competition. In other words, one can never count out the effects of a political “game changer.”
Finally, one must also consider the possibility of immigration reform occurring in the so-called “lame duck” session between the general election and the swearing in of the 114th Congress. The 2010 post-midterm lame duck session garnered a margin just short of defeating a filibuster on the DREAM Act. Perhaps late 2014 will be different.
But the biggest challenge to immigration reform in 2014 could be time. The House Majority Leader has released the legislative calendar for next year and there are relatively few working days in D.C. This calendar grants members at least one week off every month, in addition to the entire months of August and all but two days in October. Given that another debt ceiling and budget battle looms, and that the citizenry will face another polarizing election cycle, it’s easy to imagine nothing getting done in D.C. in this short period of time.
But until the last day of the 113th’s Second Session, many supporters will continue to hold out hope that the work already done towards Comprehensive Reform comes off life support and begins to breathe on its own again.
November 14th, 2013 by H. Ronald Klasko
I recently represented clients in two proceedings before the new USCIS Decision Board. One involved an ultimately successful exemplar I-526 petition and regional center designation based upon tenant occupancy jobs. I will report on that in my next blog.
The other involved the sale of a regional center. Based upon that case, I can state somewhat more confidently than before what I believe the USCIS position to be in this murky subject matter area.
The USCIS position appears to be that the acquisition of a regional center can be accomplished by the purchase of stock, but not by the purchase of assets. USCIS has not stated a legal basis for this conclusion, nor has it suggested the ramifications of a completed asset purchase.
Assuming the stock of a regional center is purchased, is there a necessity to file a regional center amendment application? The USCIS position appears to be that such an amendment application is optional. That position is consistent both with the instructions to Form I-924 and with the May 30, 2013 comprehensive policy memorandum. Both reference the possibility – but not the requirement – of filing an amendment application to notify USCIS of a change in the “organization or administration” of the regional center. A change in stock ownership is not a change in organization or administration. However, if there are new owners of the regional center, there probably is a change in the organization or administration.
Should the optional amendment application be filed? The answer may not be the same in every context. Counsel should be consulted on this decision.
If there is a change in the organization or administration and the regional center opts to file an amendment application, does the pendency of the amendment application prevent the regional center from doing business as usual, including marketing for investors and having investors file I-526 petitions? The USCIS position appears to be that the regional center can do business as usual while such an amendment application is pending.
I want to emphasize two points. First, what I purport to be the USCIS position is extrapolated from statements made by USCIS during the course of RFEs, NOIDs and ultimately a decision from the Decision Board. None of these is precedential, nor were these positions ever clearly stated. Rather, the USCIS position appears to be evolving.
Second, different regional center designation approval notices have different language regarding changes in ownership. A regional center seeking to be sold, and individuals or companies seeking to acquire a regional center, should review the language in the regional center approval notice and consult with counsel prior to making a decision on the appropriate course of action.
November 13th, 2013 by William Stock
In the largest fine ever in an immigration case, on October 31, 2013, the U.S. Department of Justice settled for $34 million from Infosys Limited. The complaint alleged that Infosys had engaged in “systemic visa fraud and abuse of immigration processes” – that it had abused the B-1 business visitor visa program by bringing foreign national employees into the United States to perform work that was not authorized under the classification and had violated regulations regarding the employment of work-authorized H1-B visa holders. The settlement, however, dealt with Infosys’ failure to maintain accurate employment verification records for its US citizen and foreign national employees in the United States. What explains the discrepancy?
In the settlement, Infosys conceded that it committed civil violations of 8 U.S.C. § 1324a, which prohibits employers from hiring any individual (citizen or non-citizen) for employment in the United States without verifying that individual’s identity and employment authorization status using Form I-9, Employment Eligibility Verification. According to the Justice Department, more than 80% of the company’s I-9 forms for all of its US employees from 2010 and 2011 contained “substantive violations” – paperwork errors that were not fixable by reference to the employees’ documents, such as failure to complete the form within three days of hire, or failure to update and re-verify the employment authorization status of those employees present in the United States on visas authorizing temporary employment.
While the civil “paperwork” violations were settled, however, the criminal charges were dropped. The complaint filed with the settlement agreement alleged that Infosys brought foreign national employees into the United States as B-1 business visitors in order to perform functions that are not authorized under that classification and for which an H1-B visa is otherwise required. The Justice Department’s allegations are, at first blush, reasonable: noting that B-1 visas are much cheaper for the company to obtain than H-1Bs, the government alleged that Infosys told employees to describe the scope of their activities in the US in such a way that they would be eligible for B-1 visas, and provided letters confirming that scope, while writing contracts with government contractors that billed the employee’s activities as having been performed “off shore.” The allegation is that Infosys thereby engaged in criminal violations, specifically 18 U.S.C. §§ 371 (conspiracy), 1001 (false representations to government officials), and 1546 (passport and visa fraud); as well as 31 U.S.C. § 3729 (false claims for payment to government contractors).
Once the scope of business activities allowed under – indeed, encouraged by – the B-1 category is considered, however, it becomes much less clear that Infosys’ conduct prior to 2010 violated any of the restrictions on the B-1 category – which may have been a large factor in the government’s decision not to insist that Infosys plead guilty to any criminal charge. In order to understand why Infosys’ conduct was quite likely legal, it is necessary to review the various restrictions on the scope of activity in which B-1 visitors can engage.
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November 4th, 2013 by H. Ronald Klasko
As promised in my earlier blog, I am reporting on my findings regarding the Chinese EB-5 market following my visit to China during which I presented my clients’ projects to agents, investment bankers and advisors to high net worth individuals. Here is what I found:
The market is very good right now. The Chicago Convention Center scare is over, and SEC involvement is not a significant concern.
There is a lot of interest in two issues: the possible increase in the minimum investment amount and the possible EB-5 quota retrogression. The former is not a large concern; the latter is. The sense is that very few Chinese investors would be dissuaded by a minimum investment amount of $750,000 (some would say the same thing about $1,000,000). However, a significant EB-5 quota backlog could deter a large number of investors. Absent legislation, EB-5 quota waiting lists could be the biggest challenge in the coming months.
Direct EB-5 is hot. The quicker processing time is certainly one of the reasons. The interest in pooled direct EB-5 is certainly one of the biggest changes in the marketplace in recent years.
Most of the agents, especially the larger agents, realize that traditional escrow (released upon approval of each investor’s I-526 petition) is no longer realistic for regional center EB-5s because of the extended processing times (it may still be realistic for direct EB-5 petitions which have a significantly shorter processing time). Based on meetings with a large number of agents, the consensus is that most would be willing to consider one or all of the following: release upon I-526 filing with developer guarantee; release upon first I-526 approval; 80-20 holdback (20% of the total EB-5 money remains in escrow and the rest is released to the project).
Administrative fees of $45,000 to $50,000 are very accepted in the Chinese marketplace.
Agents are aware that there are few exemplar I-526 approvals on the market. Exemplar approvals, while helpful, are not critical for marketing.
The geographical location of a project appears to be less critical. Although New York, Washington, San Francisco and Los Angeles are still the preferred locations, most agents are willing to consider good projects in other locations.
Agents give significant weight to the reputation of the developer and the reputation of the professional project team (immigration lawyer, securities lawyer, economist and business plan writer).
Job cushion is a critical issue. However, the amount of job cushion that is considered sufficient varies, generally between 10% and 30%.
Approximately half of the agents with whom I spoke are willing to consider a project that is outside of the current approved regional center geographic boundaries. In such a case, the expanded geography would have to be approved as part of the investor’s I-526 petition.
EB-5 as a percentage of the total capital stack remains a critical issue. More agents than previously look for projects where EB-5 is less than 50% of the capital stack. The amount of developer equity in the project is very important.
Real estate-based projects remain the most popular. Some believe that there is a glut of hotels on the market.
Government money in a capital stack is very significant.
Although agents prefer that EB-5 money be in a first position in the capital stack, many will consider EB-5 money in a second position if there is significant developer equity behind the EB-5 money.
Generally, agent compensation is on the rise. More – but not all – agents want points on the deal than previously.
I expect to be back in China in four or five months, and I will be interested in seeing if any of the above will have changed.
October 28th, 2013 by William Stock
We recently received a full vindication in United States District Court on behalf of our client, CAMO Technologies, an IT consulting firm based in Woodbridge, New Jersey. Like many consulting firms in the IT space, CAMO sponsors a significant number of its employees for H-1B visas and permanent residence in the United States, as it provides IT services to fill the demands of US companies. In 2010, the Department of Labor was brought in to investigate complaints of underpayment of wages, and finding none, instead charged the company with “willfully violating” the Labor Condition Application (LCA) regulations by failing to post notices of its LCA filings to its workers at some of the sites at which they were employed.
In fact, the company posted at its own location, gave a copy of each employee’s LCA to that employee, and made a good faith effort to post at third-party sites where those employees worked. They also maintained documentation of their posting efforts at third party sites. DOL, however, charged them with a “willful violation” of the LCA regulations, and claimed CAMO owed approximately $193,000 in civil money penalties (CMP) and should be debarred from filing H-1B and other immigrant and nonimmigrant petitions for a period of two years.
I represented CAMO Technologies before the Administrative Law Judge, who looked at CAMO’s records and determined that they had made a good faith effort to comply with the regulations, and that they believed their posting procedures to be compliant based on their past interactions with DOL investigators. The ALJ sided with CAMO, and found that their good faith negated any willfulness, and accordingly dismissed the DOL’s claims for CMPs and debarment. The DOL then appealed the ALJ’s decision to the Administrative Review Board (ARB) within the Department of Labor, where the DOL obtained a final agency determination that CAMO had willfully violated the regulations, and accordingly ordered that CAMO should pay the $192,625 in CMPs and be debarred for two years from the H-1B and immigration program.
The final agency action needed to be challenged in federal court under the Administrative Procedures Act (APA), which governs all federal agencies such as the Department of Labor. The APA allows a federal court to set aside any final agency action which is “arbitrary or capricious” or otherwise not in accordance with the law or evidence in the record. I assembled a team of attorneys from Hangley Aroncheck, partner Alan Promer and associate Dylan Steinberg, as well as KRSS associate Matt Galati, and brought suit on CAMO’s behalf against the DOL under the APA challenging the ARB’s order. We argued that there was no substantial evidence in the record supporting the ARB’s decision, and that the ARB could not find that CAMO had willfully failed to comply without considering the evidence of their good faith attempts at compliance.
Judge William Martini of the District of New Jersey granted CAMO’s motion for summary judgment, denied the government’s cross-motion for summary judgment, and vacated the ARB’s order imposing CMPs and debarment. We are very pleased with this result for CAMO, which upholds the original decision in their favor by the Department of Labor’s administrative law judge. The government has 60 days to decide whether to appeal Judge Martini’s decision to the Third Circuit Court of Appeals.
While we are happy CAMO’s good faith efforts were recognized, H-1B employers are reminded that the regulations do require actual posting of notices to the worksites where H-1B employees perform services, and that the Department of Labor is becoming much more aggressive in enforcement of this posting requirement, particularly against companies in the IT space. For further guidance or a review of your company’s LCA practices, please contact a member of our worksite enforcement team.
October 8th, 2013 by H. Ronald Klasko
In this blog, I want to share some of my recent experiences relating to new procedures implemented by USCIS in connection with the processing of I-924 applications. It appears that the goal of these new procedures is to speed up the processing of I-924 applications, prevent repetitive RFEs and deal with issues that can be clarified by direct communication with adjudicators rather than by the lengthy and time-intensive procedures that were previously utilized.
The first new procedure involves “Requests for Clarification”, which can be in the form of email requests or requests for telephonic conferences. This appears to occur mostly or exclusively following a response to an RFE. If questions remain following the response, USCIS has begun to send an email request for clarification rather than a second RFE. The request for clarification generally comes with a very short response time (usually 2 weeks or less). Experience so far indicates that extension of that time period is possible. On occasion, instead of or in addition to the email request, the USCIS adjudicator requests a telephone conference with the principals and the attorney to resolve any outstanding issue.
I certainly view this as a favorable development and certainly far better than multiple RFEs. The major problem is issuing a second RFE in the guise of a request for clarification. In at least one instance, I have seen a request for clarification that requested far more information and documentation than the RFE requested. Since the request for clarification comes with a far shorter response time than an RFE, I, on behalf of the AILA EB-5 Committee, will be advocating for the use of the request for clarification procedure to really clarify discrete issues rather than to request substantial documentation with very short response times.
The other new procedure of note is the long-awaited implementation of the EB-5 Decision Board. This is a new procedure available only in connection with I-924 applications for dealing with complex issues that need to be resolved before a regional center designation application and/or an exemplar project can be approved. Thus far, only a relative handful of Decision Board interviews have been completed. I will share my experience with two such Decision Board interviews, as well as a third on which I was consulted.
The process is initiated by an email Notice of Interview. The interview is usually scheduled about one month in advance. The Notice indicates the issues to be discussed at the interview, although in at least one instance USCIS wanted to explore an issue not raised in the Notice of Interview.
The applicant has a choice of attending the interview in person or telephonically. In-person interviews are scheduled at the California Service Center in Laguna Niguel. My experience is that the in-person interview is far preferable for achieving a dialogue with USCIS on the issues of concern. During the telephonic interview on which I participated, the USCIS personnel chose to remain anonymous and did not show any interest in engaging in a dialogue regarding areas of concern or reactions to positions that I advocated on behalf of my client.
The in-person interviews appear to be very different. All USCIS personnel are identified – usually including an EB-5 economist, the EB-5 adjudicator assigned to the case, and the head of the EB-5 unit. At least in the interviews of which I am aware, most or all of the questions are asked by the EB-5 economist, who comes prepared with a list of questions and issues to be resolved. The interview is a hybrid of an informal meeting and a formal legal proceeding. Witnesses are sworn in, new evidence can be presented but there is no formal record or recording of the proceeding. It is possible to present additional evidence following the interview. Given that there is no official record of the proceeding, I suggest that it is important to present a written record of the evidence provided and at least a summary of the testimony presented. USCIS has committed to issuing a final decision within 30 days of the interview.
There are certainly indications that USCIS processing times of I-924 applications are starting to speed up. Hopefully, these new procedures will contribute to this trend.
October 7th, 2013 by Ebiho T.Ahonkhai
We have received many inquiries regarding the impact of the partial government shutdown on new and pending I-526 Petitions at U.S. Citizenship and Immigration Services (CIS) and consular immigrant visa applications processed by the Department of State (DOS).
As the I-526 Petition falls under the umbrella of “fee-paying” immigration – related services, stakeholders should not fear a cessation of operations in the EB-5 Program. Unlike other government agencies, such as the Department of Labor, CIS is nearly entirely self-funded. Application filing fees account for a significant portion of this agency’s budget. It is important to note, however, that CIS could suffer delays where it utilizes resources of “non-essential” agencies to effectuate the provision of its own services and where such sister agencies suffer a reduction in staffing or complete closure.
DOS has confirmed that most passport agencies and consular operations will continue, to the extent that current funds remain available. If such funds are depleted, however, DOS could temporarily suspend the issuance of visas or permit such processing only in exigent circumstances. Certain operations may face interruption, where, for example, such activities are conducted in a government building that is unsupported and effectively “shut-down,” owing to a lapse in government appropriations. We encourage visa applicants to monitor the website of the consulate at which they seek to apply for visa processing, to obtain current information.
September 18th, 2013 by H. Ronald Klasko
There have always been a number of advantages to forming a regional center. A developer who forms a regional center can sponsor as many projects as it wishes. Only a regional center project can count direct and indirect jobs. The regional center format allows for the use of the “loan model” in which the NCE loans money to the developer.
Over the last 12 to 18 months, and especially since May 30, 2013, the value of a regional center – and the benefits of a regional center designation – have increased very significantly. There are many reasons for this conclusion.
Prior to May 30, a regional center was limited to sponsoring projects in the specific industry code for which it received authorization. This required pursuing the lengthy amendment process every time a project delved into a non-approved industry code. The amendment process frequently took more than a year before the project could be marketed to investors.
The May 30 USCIS EB-5 Policy Memorandum eliminated this disadvantage completely. Regional centers are no longer limited to designated industry codes. They are free to move forward with projects in any industry code. This is a huge benefit.
The change in the USCIS policy regarding geographical limitations of a regional center is noteworthy, although somewhat less significant. Regional centers are still limited to designated geographical areas even after the May 30 Policy Memorandum. However, the geographical areas can be expanded as part of the I-526 process without the necessity of waiting a very long period for a regional center amendment to be approved. It remains to be seen whether investors will be interested in investing in a project that requires USCIS approval of a geographical expansion of the regional center in order for the investor’s I-526 petition to be approved.
On the positive side, there are some recent indications that USCIS has a more expansive view of the appropriate geographical expanse of a regional center. While entire state or multiple state regional centers were virtually unheard of in I-924 adjudications for two or three years, more recent adjudications in this area have been less restrictive.
In the category of “for every cloud there is a silver lining”, another increasingly significant advantage of a regional center designation is the ability to sponsor third party projects. This is nothing new, so why is it worth mentioning it in an article about how regional centers have become more valuable in recent times? The reason is the “cloud” – processing times for new regional centers, which have often exceeded 18 months. Project developers faced with a choice of waiting 18 months for approval of a regional center before commencing marketing of a project have increasingly made the rational decision to pay often substantial sums to an existing regional center to sponsor the project. The end result is that the marketing to investors can commence virtually immediately, and the money can get into the project ten or more months sooner. The silver lining is that many regional centers have profited and are profiting from this overhanging cloud.
Finally, it is important to note that the burden required to get a regional center approved has diminished since May 30. USCIS appears to be serious regarding the lesser standards and lesser documentation required for the use of a hypothetical project as the basis for the creation of a regional center. Although there may be important marketing advantages to having the regional center approved with an exemplar project, those advantages may be offset by the lower standards required for a regional center approval based on a hypothetical project. Rather than delaying the filing of the regional center application until everything necessary for an exemplar approval has been executed and compiled, in many cases it is more prudent to get the regional center approved based on a hypothetical project while compiling the necessary documentation to meet exemplar standards and having that documentation ready for the investors’ I-526 petitions.
Being an approved regional center constitutes a very serious responsibility both to the U.S. government and to investors investing in projects sponsored by the regional center. The good news is that it is a responsibility that carries with it great rewards. These rewards are greater today than ever before.
September 17th, 2013 by William Stock
Two KRSS attorneys — partner William A. Stock and associate Matthew T. Galati – received a favorable decision yesterday from a federal judge in the District of New Jersey. KRSS represented a local church and brought suit against USCIS over an illegal federal regulation that had stopped the church from sponsoring a pastor as an immigrant religious worker. In a decision issued yesterday, United States District Judge Renee Marie Bumb found the regulations at 8 C.F.R. § 204.5(m)(4) and (m)(11) to be ultra vires – that is, promulgated beyond the scope of USCIS’ power under the Immigration and Nationality Act. Subject to the government’s opportunity to appeal, the offending regulations have been stricken by the Court, which has ordered USCIS to approve the petition. This important case may allow many immigrant religious ministers and other religious workers the opportunity to qualify for lawful permanent residence even if they have minor gaps in their lawful status or work authorization in the United States.
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