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.

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.

Hi,
I read about a PLUS Pilot program employed at the Texas service center (TSC) under which the entire I-140 and I-485 package is reviewed by one officer? Does this translate into faster processing times for the I-485 especially if your PD is current?

The aim of TSC’s PLUS Pilot Program is to adjudicate concurrently filed I-140/I-485 petitions within 90 days.  To accomplish this, the same officer is adjudicating both the I-140 and the I-485.  However, we have been told that the I-140 and I-485 units have not been merged, and not every concurrently filed petition is adjudicated under “the Plus.”

In our experience, only about 50% of concurrently filed petitions tend to receive this expedited review, which can result in a decision on permanent residence only three to four months after filing.

Readers are also well advised to consider that the faster decision may not be a grant, but may be a Request for Evidence, and that the purpose of the PLUS program is to make a fast decision whether to RFE the I-140 so as to avoid giving the applicant an employment authorization document and advance parole document if the officer is not sure that the I-140 can be approved.

Although the government has published a list of TARP recipients, no such comprehensive list of FRA Section 13 recipients exists. However, in its new guidance, the government explains which entities are considered to be recipients of Section 13 funds. The determination depends upon the type of borrowing arrangement between the entity and the Federal Reserve. Interestingly, the guidance explains that once a recipient has paid back the funds received under Section 13, they are no longer subject to the H-1B additional attestation requirements.

Employers that receive funding under the Troubled Asset Relief Program (TARP) or FRA Section 13  funding will be required to take additional steps when filing H-1B temporary worker petitions with the United States Citizenship and Immigration Service. Specifically, these employers will be required to make attestations as part of the H-1B application that they took good faith steps to recruit U.S. workers for the position for which the H-1B worker is sought and that no U.S. worker was displaced by the H-1B worker in an equivalent position.