Director Mayorkas’ proposal has three major elements.

One element of great importance is providing for accelerated processing (target two months) and premium processing (15 day processing) for “shovel ready” projects. This would apply to the regional center designation application, the exemplar I-526 project preapproval and the petitions of the investors in these projects. Although the definition of “shovel ready” is ambiguous and might better be defined as a project for which the developer is ready to seek investment capital, the concept is a very important one. Present processing times are unrealistic, and developers cannot be expected to wait the 12 to 18 months necessary for a regional center to be approved, a project to be approved, and an investor’s petition to be approved.

The second key component of the Mayorkas proposal involves the hiring of qualified expert personnel to adjudicate regional center designation applications and project pre-approval applications. Director Mayorkas proposes to add economists and business analysts for this purpose. Economic development specialists might also be added to the USCIS staff. The issues to be adjudicated in these applications are both complex and technical, and the Immigration Service needs to bring to the task professionals experienced in dealing with these issues.

The third major component of the Mayorkas proposal is to change the regional center and project pre-approval process from an adversarial to a consultative process. The Director proposes to change the present petition filing/RFE/RFE response process into one where the developer would have the right to a hearing with the expert professionals described above in order for the Service to articulate any questions or concerns and for the developer and his team of professionals to provide answers. This should result in faster, better and more informed adjudications.

The public has had an opportunity to comment on the proposal. Although commenters no doubt suggested improvements to the proposal, there is no question that implementation of the proposal, with whatever changes are deemed appropriate, will be a major step forward in making the EB-5 program more attractive for businesses seeking capital. This would be consistent with President Obama’s Select USA Initiative to attract more foreign direct investment into the U.S.

Although the proposal is a major step forward, it means nothing unless and until it is actually adopted by USCIS. The public eagerly awaits notification of its implementation.

The Court remanded the case to the Third Circuit for further consideration in light of its rationale in Chamber of Commerce of the United States v. Whiting. As we mentioned last month, the Court’s ruling in Whiting will have nationwide effects and may lead to varying state law approaches to immigration-related laws and penalties.

It is important to note, however, that while the law at issue in Whiting and that enacted by Hazleton have some similarities, the Supreme Court has only upheld non-federal laws dealing with employment eligibility and the corresponding penalties for noncompliance. It remains to be seen how the Third Circuit will reconsider the legal issues presented by the Hazelton ordinance.

The decision has far-reaching effects outside of Arizona. By upholding the law, the Supreme Court has cleared the way for 50 different state laws regarding employment eligibility verification and the penalties for noncompliance. As such, employers need to be aware of the laws in their state when hiring new personnel. For further information regarding E-Verify, visit our Worksite Compliance web site. Contact your Klasko Law attorney if you have specific questions regarding employment eligibility verification for your company or organization.

A caveat against reading too much into the NVC action: recall that it was imperfect information-sharing between USCIS and the State Department that led to the July 2007 “Visagate” debacle, and NVC likely has a small minority of the overall number of visa petitions with India and China EB priority dates in 2006 and early 2007, since so many of those beneficiaries could file for adjustment of status in July of 2007.

It’s also possible that NVC is simply trying to get cases set up with fees paid and documents submitted in case the numbers stay current for the rest of the fiscal year – but applicants would lose their filing fees if the numbers retrogress later this year.

We will have to wait for the May Visa Bulletin from the State Department, likely released by April 13 or so, for more detailed information on the State Department’s thinking.

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.

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.

Part 6 of Form I-129 contains the new “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.”  The new Certification requires the employer to certify that it has reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”).  The employer certifies, with respect to any technology to which the employee will have access on the job, that a license from the Department of Commerce or Department of State is not required to release the technology to the foreign national (or, in the rare case that a license is required, the employer will restrict the beneficiary’s access to the technology until a license is obtained).

What Are the EAR and ITAR Regulations?

The EAR regulations (found at 15 CFR Parts 770-774) and the ITAR regulations (found at 22 CFR Parts 120-130) prevent controlled technology with sensitive military, law enforcement, anti-terrorism, or similar applications from being exported or released to other countries.  An employer who releases controlled technology or technical data to a foreign national in the course of his or her employment, even if the employment is in the United States, is deemed to have “exported” that technology to the person’s country or countries of citizenship.  More detailed information on the topic of “deemed exports” is available from the Department of Commerce’s deemed export page.  The EAR and ITAR regulations require employers to obtain export control licenses before releasing controlled technology or technical data to foreign nationals in the United States. 

Which Employers Are Likely to Require Licenses?

Employers who are military contractors or subcontractors are most likely to be affected, but both universities and private employers will be affected by the changes to Form I-129.  In general, most types of commercially-available technology are not controlled under the EAR and ITAR regulations, or are exempted from the licensing requirement because they are commercially available.  However, employers dealing with certain advanced scientific and manufacturing equipment, as well as certain software and software systems, may be subject to licensing requirements for employees from certain countries, depending on whether the technology has military, law enforcement or counterterrorism applications in addition to its normal, civilian uses.

What Additional Responsibilities Are Required Now of All Petitioning Employers?

With the new I-129, all employers sponsoring H-1B, H-1B1 Chile/Singapore, L-1, and O-1A nonimmigrants must now determine whether an export control license is needed for the nonimmigrant employee before the petition can be prepared.  Employers may be able to make such a determination for all employees of a particular type; for example, if an employer only hires physical and occupational therapists on H-1B visas, the employer may be able to consult an export control lawyer, or obtain an advisory opinion from the Department of Commerce, that such employment does not involve controlled technologies.  For other employees, a case-by-case assessment with the assistance of an export control lawyer may be necessary. 

Personnel responsible for H-1B petitions also must determine the appropriate person within the organization to contact regarding the organization’s export control compliance, who can help identify whether the technology and technical data that will be used by or available to the alien beneficiary in the course of his or her employment is controlled under the EAR and ITAR regulations .  Your Klasko Law attorney can work with your in-house export control compliance specialist to help develop a protocol between Human Resources, General Counsel and others involved in the immigration process to document that the organization has reviewed the issue and determined that no license is necessary.  If your organization does not have that capability in-house, we can help your organization select outside counsel to make an initial determination regarding export compliance, and help establish a clearance protocol with them if necessary.

The protocol developed will enable employer to document how and when the EAR and ITAR determination was made, and to keep that information in the H-1B employee’s file, should it ever be requested.  Such documentation will then be available in the case of an audit, a site visit or a request for evidence pertaining to the employer’s export control compliance. 

The deemed export control regulations are complex, but your Klasko Law attorney can help your organization get ready for the new attestations on Form I-129.    If your organization sponsors H-1B, H-1B1 Chile/Singapore, L-1, and O-1A nonimmigrants, contact us to determine how the deemed export attestation will affect your organization’s immigration compliance.

As Klasko previously reported, the U.S. Department of Justice (DOJ) filed suit in the United States District Court for the District of Arizona against the State of Arizona and Governor Janice Brewer in her official capacity.  The lawsuit claims that Arizona’s state immigration law, S.B. 1070, unconstitutionally interferes with the federal government’s ability to regulate immigration.  The law makes the failure to carry immigration documents a crime and it gives the police power to detain anyone suspected of being in the country illegally.

In her opinion granting the preliminary injunction, Judge Bolton stated that the United States is likely to succeed on the merits that several sections of S.B. 1070 are preempted by federal law.  Specifically, Judge Bolton enjoined Arizona from enforcing Section 2(B) of S.B. 1070, which requires that “an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person.”  This section of the law has been heavily criticized that it allows Arizona law enforcement to engage in racial profiling. 

Judge Bolton also enjoined Section 3, which makes it a crime for “the failure to apply for or carry alien registration papers,” and Section 5, which makes it a crime “for an unauthorized alien to solicit, apply for, or perform work.”  Finally, Judge Bolton enjoined Section 6, which authorizes “the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.” Judge Bolton further explained that “the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance of equities tips in the United States’ favor considering the public interest.” 

Now that the Court has decided on the motion for preliminary injunction, the lawsuit will proceed to a hearing on the merits of the case, and Judge Bolton will decide whether Arizona’s law as a whole is preempted by federal law.  While the case proceeds, Arizona is stopped from enforcing the above provisions by Judge Bolton’s preliminary injunction.

One tool for administering a corporate immigration policy is to request that applicants confirm, early in the screening process, whether they will require immigration sponsorship.  Because applicants who are US citizens, permanent residents, asylees, refugees, and temporary residents under the 1986 amnesty law are protected from citizenship status discrimination, some employers believe that any pre-hire inquiry into immigration status is prohibited, even where the job applicant does not fall into one of those categories.

In an exchange of correspondence posted to his blog, attorney Angelo Papparelli recently received guidance from the Office of Special Counsel at the Justice Department, which is responsible for enforcing the anti-discrimination provisions.  He  requested guidance from OSC about how an employer could determine whether job applicants presenting employment authorization documents were only authorized to work because of a pending application for adjustment of status.  Such job applicants will only be able to continue their employment authorization if their application for permanent residence continues, and may need to present evidence to USCIS of their change in job.

OSC clarified that because temporary visa holders and applicants for adjustment of status to permanent residence are not protected from citizenship status discrimination, “an employment decision made exclusively on the basis of an individual’s status as a temporary visa holder or as an applicant for adjustment of status to permanent residence would not run afoul of the anti-discrimination provision.”  Employers can, therefore, feel free to make decisions about whether or not to hire an applicant who is a temporary visa holder or an applicant for adjustment of status in accordance with their corporate immigration policy.

OSC also provided guidance on the kinds of inquiry an employer wishing to discover information about an applicant’s immigration status may ask prior to making a hiring decision.  OSC approved use of a somewhat complicated question, albeit one which makes clear what information the employer is requesting about an employee’s need for future visa sponsorship.  OSC approved the following two questions for inclusion on job applications, so long as they are asked of all job applicants:

1.  Are you legally authorized to work in the United States?   _____ Yes _____ No

For purposes of the following question “sponsorship for an immigration-related employment benefit” means “an H-1B visa petition, an O-1 visa petition, an E-3 visa petition, TN status and ‘job flexibility benefits’ (also known as I-140 portability or adjustment of status portability) for long-delayed adjustment of status applications that have been pending for 180 days or longer.”  (Please ask us if you are uncertain whether you may need immigration sponsorship or desire clarification.)

2.  Will you now or in the future require “sponsorship for an immigration-related employment benefit?”  _____ Yes _____ No

This guidance is particularly helpful for employers conducting job searches for technically trained personnel, many of whom may have initiated the permanent residence process with other employers.  If you need further guidance on particular situations, please feel free to contact your Klasko, Rulon, Stock & Seltzer, LLP attorney.

Arizona’s S.B. 1070 has caused significant controversy since being enacted on April 23, 2010. The law makes the failure to carry immigration documents a crime. It also gives the police power to detain anyone suspected of being in the country illegally. The law has received criticism that it gives police the power to engage in racial profiling, particularly against the many Hispanics residing in Arizona. In fact, S.B. 1070 was immediately criticized by the Obama administration in April, and this suit marks yet another step in the federal government’s fight against the patchwork of state-enacted immigration laws popping up around the country.

Leading up to the suit, the DOJ consulted with Arizona officials, law enforcement officers and groups, and civil rights advocates to gain a full picture of how the law is affecting both citizens and aliens alike in Arizona.  In fact, the law suit is supported by Arizona law enforcement officials, including the Chiefs of Police of Phoenix and Tucson, who filed declarations with the lawsuit stating that S.B. 1070 will hamper their ability to effectively police their communities.  The DOJ has stated that “Arizona impermissibly seeks to regulate immigration by creating an Arizona-specific immigration policy that is expressly designed to rival or supplant that of the federal government.  As such, Arizona’s immigration policy exceeds a state’s role with respect to aliens, interferes with the federal government’s balanced administration of the immigration laws, and critically undermines U.S. foreign policy objectives.”

The DOJ has asked for a preliminary injunction to stop enforcement of the suit based upon irreparable harm caused by the law’s operation. The case has been assigned to Federal Judge Susan Bolton. Judge Bolton has scheduled a preliminary hearing on the injunction for July 22, 2010. No doubt the outcome of this case will affect other states contemplating passing similar immigration-related state legislation.