Archive for February, 2011
Wednesday, February 23rd, 2011
I am often consulted by permanent resident clients who have been spending, or are planning to spend, significant time abroad and want to avoid losing their hard-earned permanent resident status. These clients normally come with one of two preconceptions:
1) As long as I visit the United States at least once every six months, I’ll be fine; or
2) If I leave for any length of time, I’ll put my status in jeopardy.
The actual rules are much more complex and nuanced, but fortunately, can often be used correctly to maintain status for significant periods of residence abroad.
The two most important rules for permanent residents to know are 1) abandonment can be an issue at any time, even where the permanent resident visits the United States each six months; and 2) CBP at the airport cannot actually “take away” permanent resident status (though they can try to cajole/pressure the permanent resident to give it up voluntarily).
If you are planning any significant time overseas, please review our Green Card Holder’s Guide to Travel, Residing Abroad and Preventing Loss of Permanent Resident Status, or have a consultation with one of our lawyers.
Thursday, February 17th, 2011
U.S. Citizenship and Immigration Services (USCIS) announced that the new E-Verify “self-check” will be available to the public on March 18, 2011. This self-check will provide individuals with the opportunity to check their employment eligibility prior to accepting employment and it will allow individuals to correct any potential errors that are contained in the government databases that E-Verify uses to confirm identity information and employment eligibility.
The new self-check will involve two processes. First, the individual will provide some basic identity data such as their name, address, date of birth and social security number. This information is submitted to a third party identity service. This service will develop two questions that only the individual would be able to answer. If the individual is able to answer the questions, his or her identity is authenticated and he or she can move to the second step – the E-verify query.
During the E-Verify query, the individual will be asked to provide additional information that he or she would normally supply to an employer during the I-9 process. This information includes the alien number, passport number, Form I-94 number, and/or lawful permanent resident card or work authorization document (EAD) number. After communicating with the E-Verify system through the web, the self-check will alert the individual that he or she (1) is work authorized; (2) has a potential mismatch with data contained in the Social Security Administration’s databases; or (3) has a potential mismatch with information contained in the various immigration databases maintained by the Department of Homeland Security.
If the individual’s E-Verify query results in any potential mismatches with social security or immigration records, the individual will be asked if he or she would like to resolve the problem. If the individual chooses not to resolve the matter, then E-Verify will close the case. However, if the individual does wish to resolve the error, he or she will be given detailed instructions on how to correct the error with either the SSA or DHS. This new self-query was devised to allow individuals the opportunity to correct these errors before it became a problem after hiring.
In an effort to protect the identity of the individuals using the E-Verify self-query, E-Verify does not share information with USCIS that is received through this process. Additionally, if the individual cannot answer the identity questions and he or she cannot move forward with the self-check, his or her record is deleted by the E-Verify system. That being said, there are some disclosures that can be made to agencies outside of DHS.
Employers also should be very cautious about the E-Verify self check. Klasko reminds its clients that they cannot require applicants for positions to use the E-Verify self-check. This would constitute pre-screening prior to offering a position and having that position accepted by the employee, which results in a violation of the anti-discrimination provisions of the E-Verify rule. Contact your Klasko Law attorney for more information.
Thursday, February 17th, 2011
Working in the trenches of the EB-5 process, I am often asked how this important program could be improved to better meet the national interest that it furthers.
In no particular order, here are my thoughts:
1. Either USCIS must provide far more extensive business training to EB-5 examiners or it should partner with another agency in the government that can provide such expertise.
2. USCIS must increase the number of fully-trained adjudicators in order to bring processing times of both individual EB-5 petitions and regional center applications to acceptable levels commensurate with the needs of developers for capital on pending projects.
3. Both the regional center application process and the project pre-approval (exemplar I-526) process must be consultative rather than adversarial and must be completed promptly.
4. The notorious December 2009 “Neufeld Memo” must be rescinded and replaced with a policy that is both consistent with the regulation and that recognizes that business plans constantly change. Irrespective of a “material change” in the business plan, if an investor has sustained his investment and created 10 jobs, his conditions should be removed. (more…)
Tuesday, February 15th, 2011
USCIS has announced that it will begin issuing employment authorization documents (EAD cards) and advance parole travel documents on a single card to applicants for adjustment of status (green card applicants). Previously, USCIS issued separate documents to evidence a foreign national’s ability to work in the U.S. and travel internationally while his or her green card application was pending. Applicants received an EAD card to evidence their ability to work in the U.S. and they received a separate paper document on Form I-512, or Advance Parole, for the applicant to travel internationally.
USCIS stated that the new card will look similar to the old EAD cards but they also will state “Serves as I-512 Advance Parole.” The new card is more secure and durable than the paper advance parole documents the Service used to issue. Applicants who apply concurrently for an EAD card on Form I-765 and Advance Parole on Form I-131 along with or after filing Form I-485 will be issued the new card.
Friday, February 4th, 2011
It seems I was incorrect last week when I noted that the E-1-1 RFE template was published without the final Kazarian guidance. It turns out that the guidance had been posted, albeit somewhat furtively. There was no email or announcement from the Office of Public Engagement (OPE), and when asked, was told that since the interim memo was already posted, the finalized memo was just inserted in its place. It therefore was not categorized as a ‘new’ document. In addition, it was sorted under the day it was signed (Dec 22), not the day it was actually posted (Jan 14).
In any case, we do now have the final Kazarian memo and I can see why it was hiding. Whereas the E-1-1 RFE template contains a clear articulation of the regulatory criteria and the evidence that should be provided to establish each criterion, the Kazarian memo suggests that even “objectively meeting the regulatory criteria” does not demonstrate that you’ve met the criteria. As examples, it states that “publishing scholarly articles…regardless of the caliber, should satisfy the regulatory criteria in part one. However for the analysis in part two, the alien’s publications should be evaluated to determine whether they were indicative of being one of a small percent of the top of the field.” It applies this same logic to judging the work of others, and ostensibly, to all the other regulatory criteria as well.
The interesting thing about this ‘new’ section of the Adjudicator’s Field Manual (AFM) is that it is pretty much the same as the ‘old’ section of the AFM. The old section also centered on the idea that each criterion has to independently demonstrate extraordinary ability, a position that was repeatedly rejected by federal courts. See e.g. Buletini v. INS, Gulen v. Chertoff, Muni v. INS, and Racine v. INS.
The ‘new’ AFM, however, takes this even one step further. Even if it is successfully demonstrated that the beneficiary objectively and subjectively meets three criteria, immigration adjudicators are instructed that they can dismiss all of this evidence, if “when considering the petition in its entirety” they believe the beneficiary is nevertheless not extraordinary. There are no defined standards that adjudicators must follow to make this all important determination; rather, it seems to be in their individual discretion. Concepts such as due process and fundamental fairness seem to be gone, as objective evidence is rejected in favor of “I’ll know it when I see it”.
Thursday, February 3rd, 2011
I am frequently asked my opinion of the EB-5 program. My response goes something like this. It is a great example of a win-win-win government program — as long as it is not destroyed by actions or inactions of USCIS and by actions or inactions of regional centers.
Let’s analyze both parts of the equation. The regional center EB-5 program provides capital for infrastructure and real estate development at a time when capital is often unavailable from traditional sources. Win!
In addition, it creates jobs for U.S. workers. Win-Win!
It provides a method of obtaining permanent residence for wealthy, entrepreneurial foreign nationals who often would have no other method available to do so. Win-win-win!
However, what’s the flip side? USCIS restrictive interpretations, changing rules in midstream and processing delays have created a less than friendly environment for potential investors. In my next blog, I will discuss specific recommendations for how USCIS could make the environment more amenable to attracting investors.
The other potential challenge to the ongoing and future success of the EB-5 program is regional centers themselves. It may take only one unscrupulous or incompetent regional center operator to bring down the entire program if investors get bilked and litigation and/or media attention follows.
Already, competition by regional center marketers overseas has produced questionable practices and questionable claims that have the potential to put the program in disrepute or result in clampdowns by foreign governments to protect their citizenry against such claims.
Both of these deterrents to the future success of the EB-5 program are serious and need to be addressed. If addressed, a potentially terrific government program will reach its full potential.