On January 27, 2012  New York

Mona Shah & Associates is thrilled to announce that former Board of Immigration Appeal (BIA) Judge Lory D. Rosenberg joins Mona Shah & Associates as of counsel in January 2012! BIA is the highest administrative body for interpreting and applying immigration laws. The Board’s principal mission is to ensure that the immigration laws receive fair and uniform application.

Judge Lory D. Rosenberg was appointed to the Board in August 1995, served on as an appellant immigration judge on the BIA until 2002. She also teaches immigration and refugee law as an adjunct professor at Washington College of Law, American University and she is the interim Policy and Advocacy Director of Refugee and Migrant Rights at Amnesty International. She has directed immigration education, training, and federal litigation support programs, and has provided direct business, professional and family immigration and naturalization representation, as well as removal defense services, to private and non-profit clients.

A 1976 graduate of Northeastern University School of Law, holding a B.F.A. from New York University, Ms. Rosenberg served as Director of the American Immigration Law Foundation Legal Action Center from 1991 to 1995, practiced immigration law for 18 years in both the private and pro bono sectors, and was a co-founder of the Centro Presente legal and pro bono program for Central American refugees.

Judge Rosenberg’s publications include Immigration Law and Crimes (West Law Group 1997); The Fair Hearings Pleadings Manual (AILF 1992); The Legalization Handbook (Clark Boardman Co. 1987); and she is a contributor to Immigration Law and Defense (West Law Group 1997) and Massachusetts Criminal Defense (Butterworth 1991). She was a featured columnist for Benders Immigration Bulletin, and regularly engages in federal appeals and pro bono amicus litigation. Judge Rosenberg is a frequent lecturer at national and regional seminars, winner of several awards for excellence, and a three-time elected Director of the American Immigration Lawyers Association Board of Governors.

Judge Rosenberg was Chairperson of the AILA Amicus Committee. She is a member of the National Immigration Project, the National Lawyers Guild, the Federal Bar Association, and the bars of the Commonwealth of Massachusetts and the District of Columbia.

Lory D. Rosenberg is an attorney entrepreneur and owner of IDEAS Consultation & Coaching, LLC, an expert consulting and mentoring practice in immigration & refugee law.  She has extensive experience as an immigration law analyst, author, mentor, practitioner, teacher, trainer, litigator, and decision-maker involving immigration law and policy.

Her principal business, IDEAS (Immigration Defense & Expert Advocacy Solutions) Consultation & Coaching, LLC offers comprehensive case and issue evaluation, cutting-edge research, on-point strategies, and written arguments and articles, as well as expert testimony and direct representation on a broad range of immigration matters.

Judge Rosenberg has rich experience in immigration law. She is a great asset to Mona Shah & Associates on complicated legal matter regarding immigration appeals, immigration and refugee law, criminal defense and consulate processing. She remains good working relations with various US consulates worldwide.

The Immigration Policy Center release 50 state fact sheets updated with most current government and academic data. The fact sheets and infographics highlight the growing economic and political power of Latinos and Asians immigrants in 50 separated states. We are going to investigate NY and NJ:

The Political and Economic Power of Immigrants, Latinos, and Asians in the Empire State

According to the infographic, which is released by Immigration Policy Center, there are 25.1% of New Yorkers are Latino or Asian. Meanwhile, Asian-owned businesses in New York have sales and receipts of $ 50.5 billion, Latino-owned $ 18.2 billion. The purchasing power of New York’s Latino population and Asian population are $ 81.3 billion and $ 54.1 billion.

Other immigration population’s data:

• 22.2% of New Yorkers are foreign born.
• 51.7% of immigrants in the state are eligible to vote
• 17.5% of registered voters are New Americans
• 76,146 foreign students contribute $ 2.3 billion to the state economy
• 31.5% of foreign-born adults have a bachelor’s degree or higher.
• 89.7% children with immigrant parents are U.S citizens
• 85.7% children with immigration parents are English Proficient.
• Immigrants are 27.3% of the state’s workforce. 4.7% of the workforce is unauthorized.

The Political and Economic Power of Immigrants, Latinos, and Asians in the Garden State

                 According to the infographic, which is released by Immigration Policy Center, there are 26% of New Jerseyans are Latino or Asian. Meanwhile, Asian-owned businesses in New Jersey have sales and receipts of $ 29.9 billion, Latino-owned $ 10.2 billion. The purchasing power of New Jersey’s Latino population and Asian population are $ 39.3 billion and $ 33.8 billion.

Other immigration population’s data:

• 21% of New Yorkers are foreign born.
• 49.9% of immigrants in the state are eligible to vote
• 18.8% of registered voters are New Americans
• 14,246 foreign students contribute $ 414.7 million to the state economy
• 40% of foreign-born adults have a bachelor’s degree or higher.
• 87.5% children with immigrant parents are U.S citizens
• 87.4% children with immigration parents are English Proficient.
• Immigrants are 27% of the state’s workforce. 8.6% of the workforce is unauthorized.

USCIS Stakeholder Meeting on January 12, 2012

Introduction:

On January 12, 2012 USCIS held a stakeholder meeting in Washington, DC with Director Mayorkas aiming to collect constructive comments on the recently issued draft of EB-5 Adjudication Policy Memorandum. The meeting was conducted in a conversation and discussion format, with 25 representatives from Regional Center, law firms, bar association and projects interested in EB-5 finance. The meeting lasted approximately 2.5 hours.

Noted Changes and Further Analysis:

1. 1.      Wholly owned enterprise within a portfolio of businesses:

USCIS tends to accept more flexible business models in the EB-5 investment. The memorandum gives an example to illustrate the “wholly owned enterprise”: in an area in which the minimum investment amount is $1,000,000, the investor can satisfy the statute if the commercial enterprise deploys $600,000 toward one business that it wholly owns, and $400,000 toward another business that it wholly owns. (In this instance, the two wholly-owned businesses would have to create an aggregate of ten new jobs between them).

Director Mayorkas and the meeting participants seemed to disagree on how to define “wholly owned enterprise”. There is no disagreement that this example should apply to the regional center scenario. However, in the later examples given by Director Mayorkas that suppose there are 3 investors invested money in 3 hotels wholly owned one regional center, the first two hotels failed to create any jobs, the third hotel creates 30 jobs, the Director emphasized that in this scenario only the third investor satisfies the EB-5 job creation requirement. The attendees at the meeting disagreed radically commenting on the impracticality to separate the investment in the regional center escrow account and the impossibility to allocate whose money creates what.

Director Mayorkas tended to define the new commercial enterprise as each particular project under one regional center, as the regional center usually runs multiple projects, while the participants tended to push the boundary of the “wholly owned enterprise” to cover the entire regional center, which may further loosen the requirement on the job creation allocation on each EB-5 investors.

There is no agreement reached at the end of this portion of discussion. To be on the safe side, it is advisable that the regional center should always provide sufficient evidence to prove that each project creates enough jobs that should satisfy the job creation requirement for all EB-5 alien entrepreneurs.

1. 2.     Reasonable time

At the meeting, Director Mayorkas also discussed “reasonable time” requirement at I-829 stage as to the timeline of how many jobs are created by the new commercial enterprise. The notion is that USCIS is unwilling to give a specific bright line standard to “reasonable time”, it varies from industry to industry. It is mentioned that the investment documents and the business plan should specify the allocation of the job creation in a specific time period. If the jobs are not yet created at the I-829 stage, the business documents should clarify the reason for the delay, the specific business plan for the next phase, the timeline of the job creation, and whether there is the likelihood of completion for the project.

The attendees expressed their concerns on the USCIS unilateral judgment on what defines “reasonable time”. In the matters governed by administrative agencies, there is no case law for the lawyers to refer to. So far the moral in this matter is that USCIS tends to approve short period of time as “reasonable time”, unless there is a credible justification supported by specific business plan for the delay. Director Majorkas also inquired for specific “fact patterns” on this matter, as to what constitutes “reasonable time” for different project in different geographic area in different industries.

1. 3.     USCIS Enforcing Laws of Foreign Jurisdiction

The attendees expressed concerns on a recent RFE requiring evidence to prove the administrative fee apart of the minimum investment $500,000 is also obtained through lawful means. Director Mayorkas confirmed that the standard will not be loosened in this matter, as it is difficult to separate the EB-5 investment funds from the administrative fee because the foreign investor usually wired the money overseas in one transaction. Director Mayorkas mentioned USCIS will have to oversee the funds are “clean money” from the investor’s home country.

The discussion further extended to whether USCIS should enforce other countries’ law. The attendees mentioned that the USCIS should not have enforcing power outside its jurisdiction. It should not request further evidence on the matters of other countries’ foreign currency law, securities law, tax law, etc. The author believed this is an inevitable tendency in the US government; a notorious example would be the Foreign Corruption Practices Act. It is advisable for the investors to put into extended evidence on complying with laws and regulation of their home country.

1. 4.     Targeted Employment Area

The January 11, 2012 memorandum addressed the targeted employment area and the state’s designation power. In the redline version of the memo, USCIS added “USCIS must ensure compliance with the statutory requirement that the proposed area designated by the state in fact has an unemployment rate of at least 150 percent of the national average rate.”

“Acceptable date sources for purposes of calculating unemployment include Local Area Unemployment Statistics produced by a government agency, US Census Bureau data, and data from the American Community Survey. State unemployment determinations should be based on the most recent publicly available data from the source relied upon. This is likely to be USCIS’ intention to rectify the gerrymandering in the census tracks in certain geographic area.

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The New York State Bar Association (NYSBA) Annual Meeting will be themed “Justice for All”. One of the panels will discuss “Enhancing Representation in Immigration Matters”. The landmark decision dated March 31, 2010 Padilla v. Kentucky requires that non-citizen immigrants in criminal proceedings be informed that they could be deported if they are convicted. As Justice Stevens mentioned in his opinion, some non-citizen immigrants might choose to accept a prison term over being expelled from the country. To address the issue of immigration representation, a special committee on immigration representation is established in NYSBA.

Sources from New York State Bar News

这次，纽约州律师协会（NYSBA） 的年会主题是“集体正义”。
　其中的一个专门委员会将会讨论到＂移民的法律代理事项＂在2010年5月31日，美国最高法院因帕蒂利亚诉肯塔基州案的裁决而作了一项重大的决定；即如果非美国公民的外来移民，在美国境内被定了罪，若那此人将会依照刑事诉讼法，可能被驱逐出境，该移民有权利在认罪前得到通知．根据美国最高法院大法官，约翰·保罗·斯蒂文斯的裁决，有些外来移民的回应则是宁愿选择接受有期徒刑，也不愿被驱逐出境．纽约州律师协会为了解决这一类移民代理的问题，建立了一个特别委员会．

消息来源：纽约州律师协会动态新闻

Washington, DC

US State Department at its Oct. 26 daily briefing in Washington, D.C. acknowledged the recent fake university petitioned visas for students and it turned out those schools are not even real educational institution. Tri Valley University in California is an example of such scam.

The founder of the school SU, Xiaoping misrepresented Tri Valley University to potential students, leading them to believe that physical classes were offered, instead of a curriculum of all online classes, which is prohibited for international students.

Tri Valley University enrolled 1,500 students mostly from India. Several TVU students previously enrolled in the sham school were fitted with ankle monitors which allowed them to travel within a 50-mile radius of Tri Valley University. Many of the students have received Notices of Intent to Deny their applications for reinstatement of designation as international students, and thus face imminent deportation as they fall out of legal immigration status.

Immigration and Custom Enforcement (ICE) continued to list the sham Tri Valley University on its Web site of approved schools for several months after the university was raided and shut down. TVU did not lose its status immediately after the raids and closure and that ICE listed the school as an approved institution until criminal charges were filed in April against the founder Susan Xiao-Ping Su, and four other individuals.

These students were then blocked by Susan Su from transferring to a new school. When these students contacted immigration officials they were told that the school was on the approved list and that they should go back to Su to inquire about any concerns, stated Peddibhotla, an immigration attorney who helped some Tri Valley students reinstate their status, adding that no clear criteria has been established about which students will be reinstated and which will be denied.

Yi Song, Esq.

Washington, DC

The U.S. Department of State highlights existing efforts to attract future leaders from abroad to take advantage of the exceptional educational opportunities in the United States. Worldwide, the maximum wait for a student visa appointment is fewer than 15 days. Foreign students can apply for their visas up to 120 days before their academic programs begin. International education grew by nearly 9 percent during the 2010/11 academic year, and foreign students studying in the United States brought $21.3 billion into the domestic economy.

Today, Director Alejandro Mayorkas, USCIS Director, announced the agency’s launch of an enhanced Employment Authorization Document (EAD) and a re-designed certificate of citizenship (Form N-560). These changes have been made to strengthen the nation’s security as well as prevent fraud. USCIS issued its first set of EADs today and will commence the use of the re-designed certificates on October 30t

According to Director Mayorkas, the new features of the EAD will “better equip workers, employers and law enforcement officials to recognize the card as definitive proof of authorization to work in the United States.”

The Service noted that previously issued EADs will remain valid until the expiration dates noted on them. However, Certificates of Citizenship that have already been issued remain valid indefinitely.

USCIS plans to continually enhance its document security features as technology improves over time. Today marks one step forward in that direction.

Problematic Developers

The El Monte Regional Center attracted only two foreign investors in three years. It is set up to attract foreign investors to contribute to the Transit village project. The developer, Transit Village, LLC proposed building a $1 billion residential and commercial village around a Metropolitan Transportation Authority regional bus station.

In 2009, two executives from the Transit Village LLC, Jogh Leung and Jean Lang, were arrested on felony charges of fraud and embezzlement. Later the company was acquired by Cross Ocean Holdings, a company owned by Chinese developer Bang Zhao Lin. Transit Village LLC is suing El Monte for US$18 million  money it says it lost on the project. The city and developers are engaged in multiple bankruptcy battles.

Funnel Money from Foreign investors

Another reason El Monte Regional Center raises a red flag to the city officials is that Transit Village’s current holding company executive Jenny Pei Lin, was among one of the people who are now in hiding because of the failure of a similar fraudulent investment project San Bruno. Chinese investors are claiming a group of individual defrauded them of US$3 million, meant for a proposed Chinese restaurant, through the San Bruno EB-5 program. The foreign investors are funneling money, but that money is then misappropriated. The project failed EB-5 visas were denied. When the investors asked for their money back, they got the run around, including one man  Sammy Lee  possibly faking his death at a karaoke bar.

Second Regional Center Ever Shut Down

El Monte Regional Center was only the second time federal authorities have shut down a regional center since the EB-5 pilot program started in 1992. The only other regional center ever closed by USCIS was Victorville program in July 2010. The Victorville program focuses on logistics airport wastewater facility. According to USCIS the project was likely unviable a material misrepresentation of the capital investment opportunities that are available.

Yi Song, Esq.

Source from: EB-5 Visa News

Sale of House Overseas

Appropriate financial management is highly recommended for EB-5 immigrant investors. For example, the sale of property located overseas is subject to 20% tax under current US tax regime. If the investors could plan ahead and sell the house before obtaining the green card, they could save the tax payment.

Tax home and 183 days requirement

Many investors entered the US with a B1/B2 visa before obtaining their green cards through EB-5 immigrant investor programs. It’s recommended that the investors should count the days they spend in the US each year. If a foreign national spends more than 183 days in the US in a calendar year, his/her tax home is considered to be in the US. Thus he/she is obligated to file a US tax return. The 183 days requirement is rather complicated; it combines the range of the past three years. The total days counted for the tax filing purpose are full days in the current year, plus 1/3 of the days spent in the US from last year, plus 1/6 of the days spent in the US from two years ago.

Will IRS ever find out I did not disclose overseas assets?

Many ask how could IRS find out about my assets overseas? In fact, as the information technology develops, the IRS has more and more access to investors financial information. For example, the conditional permanent resident will receive the IRS K-1 form from their respective regional center. IRS can easily tell who are new immigrants and will put in more effort and time to investigate the financial background of new immigrants. From an accounting point of view, it is highly suspicious if a conditional permanent resident does not disclose any overseas assets, including bank account, stock or shares in overseas company.

Tax filing for conditional green card holder

Conditional green card holder is obligated to file a US tax return in the very year that the conditional permanent residency is obtained. If the investor obtained the conditional permanent resident on December 31, he/she is still obligated to file a US tax return for the entire year. If the tax has already been paid and deducted in other countries, the investors are entitled to relevant tax credits in the US. If a foreign national works overseas for over a year, the first USD 90,000 income is tax exempt in the US. The exemption only applies to work income and business income. It does not include investment capital, stock trading proceeds, interests, sale of property, insurance, etc. For investors who obtained their conditional permanent residency in later month of the year can plan their traveling accordingly in order to benefit from the tax shield.

Yi Song, Esq.

Source from World Weekly, Edit. 47, June 26, 2011

Mona Shah & Associates have been following the progression of the DREAM Act and is pleased to report that California has enacted the bill. On Saturday, October 08, 2011, Governor Jerry Brown signed the second part of the legislation allowing undocumented student immigrants to apply for financial aid and lower tuition fees. Included with financial aid, students can also apply for Cal Grants – cash awards based on academic performance  starting in 2013. Jerry wrote, The DREAM Act benefits us all by giving top students a chance to improve their lives and the lives of all of us. California now joins Texas and New Mexico, the only other states to allow undocumented students access to state financial aid for college. Although different from the federal proposed DREAM Act, which is aiming for citizenship, we hope the California DREAM Act is a stepping stone for granting other state DREAM Acts and, the ultimate goal, the federal DREAM Act.

~ Rebecca S. Singh, Esq.