Archive for June, 2010
Tuesday, June 29th, 2010
The USCIS Quarterly EB-5 Stakeholders Meeting took place on June 16, 2010. Most of the meeting was a review of USCIS policies and procedures on EB-5s.
Two new interpretations were revealed – one relating to targeted employment area investments and one relating to troubled businesses. Both are controversial.
USCIS opined that both the new commercial enterprise and the capital investment project (or job-creating enterprise) must be principally doing business in a targeted employment area in order to qualify for the reduced capital investment. This came as a surprise to many stakeholders who had believed that only the job creating enterprise must be in a TEA.
USCIS also opined that all of a troubled business’ jobs must be saved in order for any investor to qualify for condition removal. In other words, if a company has 100 jobs, and the investments of 9 investors saved 90 jobs, none of the 9 investors would get their conditions removed since all 100 jobs were not saved. Again, this interpretation came as a surprise to most EB-5 representatives.
USCIS did little to clarify what constitutes a “material change” that requires the filing of a new I-526 petition. USCIS stated: “When the evidence demonstrating compliance with the capital investment and/or job creation requirements is significantly different than what was proposed in the Form I-526 petition”, the change is material. This apparently means that even if the capital investment was sustained and the requisite jobs have been created, a new I-526 petition is required despite all of the job creation having occurred if the business plan changed from what had been envisioned when the EB-5 petition was filed. Again, this position of USCIS is subject to challenge.
Tuesday, June 22nd, 2010
Does the EB-5 program belong at USCIS? That is a question actively being discussed in meetings I have attended both with Congressional offices and with high-ranking USCIS officials. Although issues of source and tracing of funds sometimes involve complicated financial documents and transactions, USCIS officials have experience dealing with similar issues in L-1, E-2 and other contexts. However, USCIS adjudicators have no relevant experience or financial or economic expertise to bring to bear on issues of regional center certifications, evaluation of econometric reports and approval of development projects in the exemplar I-526 procedure.
If not USCIS, then where? The most obvious answer is the Department of Commerce, where the Invest in America function resides. The mission of that unit is to encourage investment in the U.S., including supporting EB-5 regional centers. Arguably, the Department of Commerce would bring both an appreciation of the importance of the EB-5 program (and especially the regional center EB-5 program, which accounts for more than 95% of the EB-5 petitions), as well as a higher level of financial and economic expertise and training.
A big question is whether a two agency procedure is advantageous. Presumably, if such a dichotomy of jurisdiction were to occur, the Department of Commerce would deal with regional center certifications, exemplar I-526 petitions and approval of the investment enterprise in connection with both individual and regional center I-526 filings. This would leave to USCIS dealing solely with the source of funds and tracing of funds issues in adjudicating the I-526 petition.
There are some obvious analogies. Perhaps the most obvious one is the labor certification procedure whereby the Department of Labor must issue a labor certification before USCIS can adjudicate an I-140 petition. USCIS does not re-adjudicate what has already been adjudicated by the Department of Labor. Another analogy might be the blanket L-1 petition procedure whereby USCIS approves the blanket, and the U.S. Consulate then adjudicates the L-1 visa application and does not revisit the determination of the corporate relationship.
This two agency solution is not without controversy. Some believe that any procedure that involves two agencies will likely increase — rather than decrease — processing times. In any event, as more questions are raised regarding USCIS policies and adjudications in the EB-5 area, it is a topic that may be worthy of — and may get — further attention.
Friday, June 18th, 2010
On June 16, 2010 the USCIS Office of Public Engagement held an immigration stakeholders meeting to discuss the latest developments in the EB-5 Immigrant Investor program. Klasko Law attorneys participated in the call and learned of the newest updates and information directly from USCIS relating to the EB-5 program. A PowerPoint provided by USCIS listing the latest statistics related to the program is available here.
For more information on the EB-5 program please visit our website http://www.eb5immigration.com/
Thursday, June 17th, 2010
USCIS proposed filing fee increases for several applications on June 9, 2010. The proposed fee rule would increase the average application and petition fees by approximately 10 percent, and also proposes to adjust fees for the premium processing service.
The proposed fee structure reduces fees for five individual applications and petitions as a result of lower processing costs:
- Petition for Alien Fiancé (Form I-129F);
- Application to Extend/Change Nonimmigrant Status (Form I-539);
- Application to Adjust Status From Temporary To Permanent Resident (Form I-698);
- Application for Family Unity Benefits (Form I-817); and
- Application for Replacement Naturalization/Citizenship Document (Form N-565).
However, the proposed rule also increases fees for several individual applications and petitions. In a significant increase, the filing fee for Form I-140 will increase from $475 to $580. Form I-485 will increase again by another $55, making the proposed fee $1065. The fee for premium processing will increase from $1000 to $1225. Most other applications increase between $5 and $50.
USCIS encourages formal comments on the proposed rule through www.regulations.gov. The comment period runs for 45 days, beginning June 11, 2010 and ending July 26, 2010. The fee increase fact sheet and other related information can be found here.
Wednesday, June 16th, 2010
Developers seeking capital under the EB-5 program have 3 options available to them. Each of these options has advantages and disadvantages.
One option is applying to be designated as a regional center. A second option is seeking to have an already-designated regional center “adopt” the developer’s project. The third option is to have prospective investors in a pooled investment project file individual EB-5 petitions.
A new article entitled “Three Options for Developers Seeking Capital under the EB-5 Program” has been added to our EB-5 website www.eb5immigration.com. This article provides a list of advantages and disadvantages of each of the three options.
Tuesday, June 15th, 2010
On June 11, 2010, USCIS issued an update count of Fiscal Year 2011 cap-subject numbers. Approximately 22,200 H-1B cap-subject petitions counting towards the 65,000 general cap were receipted in by the Service. Only 9,400 H-1B petitions for aliens with advanced degrees from U.S. institutions have been receipted in counting towards the 20,000 Master’s cap. (more…)
Monday, June 14th, 2010
Last week, an application for Preliminary Injunction and a Complaint (Broadgate, Inc., et al v. USCIS, et al) were filed in the U.S. District Court of the District of Columbia, challenging the USCIS’s application of the January 8, 2010, Neufeld Memorandum’s definition of employer-employee relationships.
As Klasko Law previously reported, the H-1B guidance issued by USCIS earlier this year reinterpreted the H-1B program to place added emphasis on the relationship between the employee and employer as a basis for eligibility for the visa classification. The memorandum asserted that it would no long recognize employees hired by staffing agencies and assigned to work at third party worksites because the USCIS no longer considered such arrangements did not constitute a valid employer-employee relationship. Almost immediately after issuance of the memorandum, employers who had previously had no issues in obtaining H-1B status for their employees across a variety of industries that include healthcare, information technology, education, engineering and manufacturing reported receiving extensive requests for evidence and denials of petitions.
The Compliant claims that the USCIS violated mandatory rule marking procedures under the Administrative Procedures Act (APA), which requires that the agency conduct an analysis of the impact of the new rule on small business and entities per the Regulatory Flexibility Act. Moreover, the compliant asserts that the USCIS failed to follow proper rule making procedures by seeking to legislate through memorandum. Federal regulations require that agencies amend rules through posting in the Federal Register and allowing for notice and comment from the public. Finally, the complaint alleges that the rule is arbitrary and capricious because it targets a specific business model that has been regularly recognized under immigration law without good cause or public hearing.
Klasko Law will continue to provide our clients with updates regarding the status of the Neufeld memorandum.
Friday, June 11th, 2010
According to the Department of State July 2010 Visa Bulletin, based on current indications of demand, the best case scenarios for cut-off dates which will be reached by the end of FY-2010 are as follows:
Employment First: Current
China and India: March or April 2006
Worldwide: June through September 2004
China: October through December 2003
India: February 2002
Philippines: June through September 2004
Worldwide: It may be necessary to establish a cut-off date for September.
Employment Fifth: Current
Thursday, June 10th, 2010
USCIS announced that on June 13, 2010, it will launch a redesigned E-Verify web interface. According to USCIS, the new design will have a clean and modern design, easy and intuitive navigation, and clear and simple language. The agency also stated that the improvements are aimed at enhancing the program’s security, accuracy and efficiency. The most notable changes are a new home page, case alert functionality, a new verification screen and enhanced case management features.
For more information on the redesign please visit the new resource we have added to our Worksite Compliance website or contact your Klasko Law attorney.
Monday, June 7th, 2010
Science education and research is a global endeavor. The recently released NSF Survey of Earned Doctorates
reported that 33% of the 41,000 PhDs awarded in science and engineering in the U.S. in 2008 went to non-U.S. citizen visa holders. What is more, these highly skilled and trained scientists are not leaving, with a separate study
by the Oak Ridge Institute for Science and Education (ORISE) finding that 62% of foreigners who came to the U.S. for their doctorates were still working here five years later. The implication then is that a large part of the scientific workforce in the U.S. consists of and relies upon foreign talent.
These statistics supporting the role of the U.S. in the globalization of academic science belie a common impediment that foreign scientists face: a challenging visa process that has seen a recent resurgence in delays for students and a low cap on permanent-resident visas for those aspiring to remain and work here. For international scientists, the immigration and visa process in the U.S. is a legitimate concern.
To help international science PhDs understand the intricacies involved in studying and working in the US, Science Alliance hosted the event “Navigating Immigration and Visa Issues: A Primer for Postdocs and Young Scientists” March 8, 2010, at the Academy. Leading the discussion were Suzanne Seltzer, Partner, and Kate Kalmykov, Associate, from Klasko, Rulon, Stock & Seltzer, LLP, a law firm that specializes in immigration and nationality law. In their talk, they stepped through the alphabet of visa options available to foreign scientists, from H-1Bs, O-1s and J-1 Waivers, and addressed factors for those wishing to establish permanent residence status.
Tune in to the E-Briefing to learn more.