1. Hot Topics
2. EB-5 News & Updates
3. Employment – Based Updates
4. USCIS News
5. Removal News: Practice Pointer
6. MSA in the News

     > Relief for DREAMers: The Deferred Action Process

On June 15, 2012, Janet Napolitano, Secretary of Homeland Security, announced the “Deferred Action” process for certain individuals who were brought to the U.S., through no fault of their own, as young children, provided they meet the established criteria. Such cases are understandably considered “low enforcement priorities”. Although the guidance took immediate effect, USCIS and ICE expect to begin implementation of the application process within sixty (60) days of the announcement. Therefore, requests should not be submitted at this time.

What Exactly is Deferred Action?

Deferred action is a discretionary determination to defer removal action (i.e. the deportation) of an individual as an act of prosecutorial discretion. In the context of the June 15, 2012 announcement, the relief will be granted to those who qualify for a period of two (2) years and is subject to renewal. It should be noted that deferred action does not confer any substantive rights or pathway to a green card or citizenship. Deferred action is not amnesty, it is not immunity, it is not permanent, and it is not legal status. Deferred action is NOT a change in immigration law. Congressional action, through legislation, would be necessary for the granting of such rights. Deferred action may be terminated or renewed at any time at the agency’s discretion.

Why Deferred Action?

Secretary Napolitano succinctly explained the rationale for the process: “Our nation’s immigration laws must be enforced in a firm and sensible manner…they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.”

What are the Eligibility Requirements for Deferred Action?

To be eligible for deferred action, individuals must:

1. Have entered the U.S. under the age of sixteen (16)
2. Have continuously resided in the country for at least five (5) years preceding the date of this memorandum and be present in the United States on June 15, 2012
3. Be currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States
4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety
5. Not be above the age of thirty (30)

In addition to the above, all individuals requesting deferred action from USCIS must complete a background check. Interested MSA readers will find very informative FAQs issued by the Department of Homeland Security located at: http://www.dhs.gov/ynews/releases/20120612-napolitano-announces-deferred-action-process-for-young-people.shtm  

Concluding Remarks

Given the agency’s limited resources, MSA is in complete agreement with DHS’ decision to continue to focus its attention on the removal of those persons who pose a danger to national security or a risk to public safety, including violent criminals, felons, and repeat offenders. However, it is important to realize that deferred action is merely a temporary reprieve for DREAMers. More than ever before, there is an urgent need for the passage of comprehensive immigration reform, including the DREAM Act. The MSA team will keep our readers updated regarding when and how requests for deferred action may be submitted. Stay tuned.

       > The Supreme Court Rules on Arizona’s SB 1070: Limit Placed   

           on Arizona’s Overreach on Immigration

On June 25, 2012, the Supreme Court of the United States (SCOTUS) ruled that the authority to enforce immigration laws rests squarely with the federal government. The ruling has limited the extent to which states may craft legislation designed to enforce immigration laws. In a 5-3 ruling, SCOTUS struck down three (3) of the four (4) provisions of the “Arizona Support our Law Enforcement and Safe Neighborhoods Act” (commonly referred to as “SB 1070″), which the Obama administration argues are pre-empted under federal law. Although SCOTUS agreed that Arizona’s attempt to limit illegal immigration through the creation of laws and penalties to punish undocumented immigrants was pre-empted, through a narrow reading of the provision, it nevertheless found that a provision requiring local police to investigate the legal status of suspected undocumented immigrants (Section 2(B)) was not pre-empted on its face. Notwithstanding this fact, the Court has left the door open to future lawsuits based on racial profiling and other violations.

Section 2 (B) of SB 1070 requires state and local police officers to attempt to determine the immigration status of any person lawfully stopped if “reasonable suspicion” exists that the person is unlawfully present in the United States. The section also requires state and local authorities to determine the immigration status of any person placed under arrest, regardless of whether the person is suspected of being in the country unlawfully.

Conclusion

There is an urgent need to fix our country’s broken immigration system through comprehensive immigration reform. As a number of states have followed Arizona’s lead, reasonable concerns are being raised regarding the protection of the civil and constitutional rights of all Americans against racial profiling laws.

     > Bipartisan Bill Introduced to Permanently Authorize EB-5 Immigrant  

        Investor Regional Center Program

On May 24, 2012, after months of negotiation, Senator Patrick Leahy (D-Vermont) introduced legislation, which if passed, will grant the permanent authorization to the EB-5 Immigrant Investor Regional Program. The current authorization expires in September 2012. Senator Leahy believes that “Vermont has been a model for the success of the EB-5 Regional Center Program” and that, once enacted, “the measure… will also pave the way for [his] efforts to improve and build upon the EB-5 Regional Center Program,… to ensure stability for investors and entrepreneurs, and to ensure that [USCIS] has the tools it needs to keep this program a strong, secure, and vital part of our economy.” Thus far, Senator Leahy has managed to secure short-term extensions of the pilot program through Congress. The mentioned bill is co-sponsored by Senator Chuck Grassley (R-Iowa), the Senate Judiciary Committee’s Ranking Member. The bill will also extend the voluntary E-Verify program and two (2) visa programs – for religious workers and the “Conrad 30″ for foreign medical graduate physicians.

The Tangible Benefits of the Vermont Regional Center

Vermont’s Regional Center (RC) has been a successful private-public partnership between the State of Vermont and a number of businesses in the state. In fact, two (2) highly successful ski resorts in the state – Jay Peak and Sugarbush, are active participants in the pilot project. Both resorts have attracted business and tourism to the state, stimulating the local economy, and creating jobs. Other EB-5 projects in Vermont are also being contemplated at this time.

Back to the Basics

For those unfamiliar with the EB-5 Regional Center Program, the program was created in 1993 and attracts foreign investors who are interested in becoming lawful permanent residence (i.e. green card holders) as a result of investing in the U.S. economy. Through the program, EB-5 investors must invest at least $500,000 USD into a project managed by USCIS approved regional center. Thereafter, the investor submits his/her immigrant petition. Once the petition is approved, the investor is granted a conditional two (2) year green card. Prior to the expiration of the two (2) years, the investor must show that his/her investment has created at least ten (10) jobs as a result of his/her investment in addition to other USCIS mandated requirements. Additional information on the EB-5 Regional Center Program can be found on our website at: http://www.mshahlaw.com/eb-5-program 

At present, there are over 220 Regional Centers throughout the country with many more applications pending with USCIS. The program has attracted more than a billion dollars of foreign direct investment to the U.S. as well as created thousands of new domestic jobs.

What’s Next?

Having been introduced into Congress on May 24, 2012, the bill is currently in the first stage of the legislative process. Thereafter, it will be considered by the appropriate Committee. The bill must then pass the House and the Senate before being signed into law by the President. The MSA team is hopeful that the program will be permanently authorized.  

      > New Policy Regarding TEA Designations in California

On June 19, 2012, the newly-established Governor’s Office of Business and Economics Development (“Go-Biz”), charged with making Targeted Employment Area (TEA) designations, announced its new policy for certifying Targeted Employment Areas (TEAs). In an effort to assist investors who are interested in investing in EB-5 projects with the $500,000 USD inside California, the state plans to post the list of designated areas although certifications will be issued on an individual basis. Further details regarding this new policy is located at: http://business.ca.gov/Programs/EB5Program.aspx  

According to Go-Biz, only the published “certified list of TEAs in California” will qualify for TEA designation. Interested MSA readers may find the list at: http://www.business.ca.gov/Portals/0/AdditionalResources/Reports/2011%20Certificate%20of%20High%20Unemployment%20TEA%20Areas.pdf.  

Based on the announcement, if a project is not physically situated in a metropolitan statistical area (MSA), county, city, or census tract on the certified list, GO-Biz will not issue a TEA designation letter. It is very important to note that the aggregation of census tracts will no longer be permitted. In addition, TEA letters issued within the last four (4) years will be “grandfathered” up until a specific date which will be announced in the near future.  

Closing Remarks

MSA understands that Go-Biz’s new policy shift has been made in an effort to ensure transparency, consistency, efficiency, and attracting investment to predictably-determined high unemployment areas. Gerrymandering, which includes the practice of aggregating several census tracts to meet TEA definitions, is a risky practice, which should be avoided as much as possible. MSA commends the state of California in taking this precautionary measure to protect EB-5 investment funds and projects within TEA areas.

      > H-1B Quota for FY 13 Reached on June 11, 20012

On June 12, 2011, USCIS made a formal announcement that the H-1B quota/cap for fiscal year (FY) 2012 was reached on Monday, June 11, 2012 for the regular cap and on June 7, 2012 for the advanced degree cap. The USCIS has stated that the agency will reject any H-1B cap cases filed against the FY 13 cap that are delivered on or after June 12, 2012. It should be noted that USCIS did not provide any information on the need to use a lottery system for this year’s cap.  

To be considered “filed”, a properly completed and signed petition must be received by USCIS. Advanced degree cap cases should have been delivered to USCIS by June 7th to have been counted against the cap. The regular cap cases should have been delivered by June 11th. Excess advanced degree cap petitions filed between June 7th and June 11th were counted against the regular cap.

USCIS will make a decision to either approve or deny each case accepted under the H-1B cap, as long as certain basic requirements are met. Some of the requirements include: inclusion of correct filing fees; submission of the proper form(s) with appropriate signatures, and delivery to the correct filing location.

Conclusion

The FY13 cap was reached earlier than in former years – the FY 12 and FY 11 caps were reached on November 22, 2011 and January 26, 2011, respectively. Given these statistics, it is very important for prospective employers and employees to start planning earlier in anticipation of a busy FY14 cap season. Such cases may be filed as early as April 1, 2012 with requests for employment start dates on or after October 1, 2013. If you were unable to file during FY13, you may wish to consider discuss your immigration options with one of the very qualified attorneys at MSA.

      > List of STEM Eligible Degrees Expanded

The Department of Homeland Security (DHS) recently announced an expanded list of approved degree programs in the fields of science, technology, engineering, and math (STEM) that qualify eligible graduates on student visas for the seventeen (17) month optional practical training (OPT) extension. This change is said to be a part of a series of administrative reforms designed to attract international students. The official announcement is available at: http://www.dhs.gov/ynews/releases/20120511-expanded-stem-degree-programs.shtm.

STEM Basics

As part of the Optional Training (OPT) program, international students who graduate from colleges and universities in the U.S. are allowed to remain in the country to receive work experience in their respective fields for up to twelve (12) months. In April 2008, DHS created a new program allowing certain students to obtain extensions of the standard 12-month OPT period. Under the new provisions, students completing designated science, technology, engineering, or math (STEM) programs become eligible for a 17-month OPT extension. Therefore, cumulatively, graduates of STEM-approved degree programs are eligible for a total OPT period of twenty nine (29) months.

The Expanded List

The expanded list includes a number of new computer and engineering degrees, many of which have been assigned the catch-all designation of “other” to include programs that do not fit within the more specific designations. Some examples are: Civil Engineering, other; Computer Engineering, other; Electrical, Electronics and Communications Engineering, other; and Computational Science and Management Science and Quantitative Methods, other. Other STEM degree categories include: Bioinformatics, and Computational Biology, other; Sustainability Studies; Human Computer Interaction; Food Science and Technology, other; and Biomathematics. For additional details, please visit: http://www.ice.gov/doclib/sevis/pdf/stem-list.pdf to view the expanded STEM degree program.

E-Verify Registration Required

Each employer of STEM extension students must be registered with USCIS’ E-Verify program. Applications for STEM extensions must be filed prior to the expiration of the standard twelve (12) month period. The employer is required to report to the student’s Designated School Official (DSO) when s/he is terminated from, or leaves, employment.

Conclusion

Undoubtedly, the expansion of the STEM designated degrees qualifying even more international students to be eligible for twenty nine (29) months of OPT is welcomed news. F-1 students who are unsure whether they may eligible for the additional STEM extension period should discuss their issues with their DSO or a qualified immigration attorney.

      > Influx of STEM Related Bills Being Introduced in the Senate

There has been a recent influx in the number of STEM (science, technology, engineering and math) related bills in the Senate in the recent past. It is anticipated that there will likely be at least a few more STEM related proposals. While there is a slim chance that these bills will pass both Houses before elections in November, one point seems clear – there is a bi-partisan consensus that the U.S. is better off retaining foreign students who are earning or have earned advanced degrees in a STEM field. In this regard, we briefly mention a few of these bills.  

On May 15, 2012, U.S. Senator John Cornyn (R-TX) introduced the Securing the Talent America Requires for the 21st Century or “STAR Act” (S. 3185). Recognizing that the U.S. has been losing many entrepreneurs and job creators to competitors abroad, the legislation is designed to retain top foreign students earning graduate degrees in STEM areas from American universities. Referring to statistics showing that almost fifty percent (50%) of U.S. Master’s and Ph. D. degree recipients in STEM – related fields are from foreign countries, the Senator realizes that incoherent immigration policies are to blame for the many international students who are forced to leave the U.S. The bill would allocate 55,000 immigrant visas for eligible STEM graduates of qualifying U.S. research institutions who have job offers in related fields through eliminating the Diversity Visa lottery program. The press release is accessible at: http://www.cornyn.senate.gov/public/index.cfm?p=NewsReleases&ContentRecord_id=b7883ec9-d2bc-421f-95f5-8658fc6df914 

The StartUp Visa Act 2.0 (S. 3217) was recently introduced by Senators Moran (R-KS), Warner (D-VA), Rubio (R-FL) Coons (D-DE), and Blunt (R-MO).  Under the bill, the Senators propose to attract foreign talent and “jump start” the economy through the creation of an Entrepreneur Visa for immigrants who establish businesses in the U.S. that create American jobs. The proposal recognizes that creating a business investment/job creation friendly path to citizenship is a sure way to attract foreign born entrepreneurs. The bill also proposes green cards for foreign/international students who have graduated from American Universities holding degrees in STEM fields.

The “Sustaining our Most Advanced Researchers and Technology Jobs Act of 2012″ (“SMART Jobs Act”) (S. 3192) was introduced on May 16, 2012 by Senators Alexander (R-TN) and Coons (D-DE). This bill would allow students in pursuit of masters or doctorate degrees in STEM fields in the U.S. to enter on a new F-4 non-immigrant visa. Once the STEM graduates secured full-time employment in the field, they would then be allowed to adjust their status to lawful permanent residents (LPR). Additional information on this bill, including its legislative breakdown, is available at: http://www.coons.senate.gov/media/2012-05-16-SMARTJobs-Summary.pdf  

Conclusion

Given the number of bills introduced in the recent past related to job creating business visas, it is safe to say that Congress realizes that there is a problem with the current employment – based. The real challenge will be to work with other stakeholders to create a program that is likely to make it through the legislative process and ultimately become law.

      > USCIS Blogs on Adjustment of Status Myths

In its blog, the Beacon, USCIS recently posted information on three (3) common myths pertaining to the adjustment of status (AOS/I-485/green card process). As the MSA team frequently receives adjustment of status question, we believe that our readers will find the following clarifications to be helpful.

Myth 1: USCIS must make a decision on your I-485 Application within 180 days after your interview.

FACT: There is NO time limit on when USCIS must make a decision after an interview on an AOS case. Moreover, it should be noted that not all I-485 cases even require an interview. Most I-485 interviews involve family-based (FB) cases rather than employment (EB) cases. USCIS has stated that, although there is no time limit to make a decision on an adjustment (green card), the agency nevertheless strives to adjudicate such cases within four (4) months.

Myth 2: You will receive a decision on your green card application at the interview.

FACT: Unfortunately, this is not always the case. There are instances where an officer is unable to provide a decision on-the-spot because additional information may be required, a visa number may not be available, security checks may not have been completed, or additional time may be required to review a case if there are complex issues involved. It should be noted that the fact that a decision is not made at the time of interview does not necessarily mean that the application will be denied.

Myth 3: In marriage-based adjustment of status cases, a wife must take her husband’s surname

FACT: USCIS does not require a female applicant to take her husband’s last name. A married woman may choose to adopt her husband’s surname or keep her maiden name. She may also hyphenate or use other variations of the names. Moreover, the husband may decide to take his wife’s name or to use a variation of both names, including hyphenation.

      > USCIS Launches Electronic Immigration Benefits System

On May 22, 2012, USCIS announced the launch of the first phase of its electronic immigration benefits system for filing requests for certain immigration benefits, referred to as “USCIS ELIS”. The launch of the system is part of USCIS’ transformation initiative to transition away from a paper-based filing system in an effort to significantly streamline its functions and save costs. Currently, USCIS operates on a paper file-based system, with documents and files moving physically from office to office, as necessary.

USCIS ELIS allows for the filing of specific requests to extend or change non-immigrant stays using the Service’s electronic online system, rather than traditional mail or courier services. According to the Service, there are many benefits to be gained by using its electronic system. These include being able to file applications and paying fees online, experiencing shorter processing times, and the ability to update user profiles, receive notices, and respond to requests electronically.

Initial Availability Limited: Specific I-539′s

The initial release of USCIS ELIS only allows for the filing of the application to extend or change nonimmigrant status (Form I-539). Moreover, not all uses of the I-539 are included in the online option. The ELIS system may be used to apply for extensions of status for those who are currently in B-1,B-2,M-1,or M-2 status. In addition, F-1s who were admitted with I-94 cards showing a date certain (not duration of status (i.e. “D/S”) may also use the system. Non-immigrants who wish to change their status to B-1, B-2, F-1, F-2, J-1, J-2, M-1, or M-2 may also take advantage of USCIS ELIS. Finally, F-1 or M-1 students seeking to reinstate status are able to access the system. MSA readers should note that they may continue to file paper-based I-539 applications even for those cases that may be electronically filed using USCIS ELIS.

Conclusion

      > Proving EAD Eligibility after Administrative Closure of Removal  

         Proceedings

The National Benefits Center (NBC) recently informed the American Immigration Lawyers Association (AILA) that foreign nationals with pending I-485 applications, EOIR-40, or EOIR-42A/B Forms in deportation or removal proceedings continue to have that application pending for purposes of eligibility for employment authorization if the proceedings are administratively closed prior to the adjudication of the form by the Immigration Judge. To show that such applicants are eligible for EADs, the NBC recommends that attorneys submit the following:

1. Evidence that the I-485, EOIR-40 or EOIR-42A/B is pending – a stamped copy of the application showing the qualifying application has been renewed or filed with the Court is sufficient, and 
2. A copy of any record or order from the court indicating that the proceedings have been administratively closed

MSA thanks the NBC for sharing this very useful practice advisory through AILA.

Former Board of Immigration Appeals, Judge Lory D. Rosenberg, (who joined the firm as Of Counsel earlier this year), has been working closely with Mona Shah on a series of articles related to EB-5 and Removal, shortly to be published. Lory served as an appellate immigration judge on the U.S. Department of Justice Board of Immigration Appeals (BIA) between 1995-2002, deciding over 20,000 appeals and is an expert in EOIR and examining immigration law and policy.

      > MSA’s Attorneys–Mona Shah and Yi Song Speak at EB-5 Workshop in  

         Nashville, TN

Mona Shah, Esq. recently served as a guest speaker at The EB-5 Workshop in Nashville, TN on June 13, 2012, sponsored by ILW. Mona’s presentation focused on perfecting I-525 petitions and the interplay between EB-5 and removal issues. Mona has successfully used her expertise in filing approximately 180 EB-5 investor petitions with USCIS for investors from China, Vietnam, India, the United Arab Emirates, the UK, and Russia for the Time Square Hotel (TSH) Project, the Brooklyn Navy Yard project, the Steiner Studios project for the New York City Regional Center (NYRC), amongst others

Yi Song, Esq. Spoke about country specific issues (China), such as Chinese property and corporate law amongst others. The range of RFE’s coming from USCIS has started to necessitate specialist opinions in certain areas.   

      > MSAs Articles Published on Immigration Law Weekly’s &  

         LexisNexis Websites

The MSA team is pleased to announce the recent publications of two (2) EB-5 related articles. Each article is mentioned briefly mentioned below.

The first article, entitled “Country Specific Issues in EB-5 Practice – China” was published online by both Immigration Law Weekly (ILW) and LexisNexis. The article, authored by Ms. Yi Song, Esq., a licensed Chinese (and American) attorney, provides an overview of relevant Chinese laws that should be understood when submitting EB-5 petitions for investors from China. Given our extensive EB-5 practice and experience with investors from China, MSA has realized that, due to a lack of familiarity with the nuances and intricacies of Chinese law, USCIS commonly issues RFEs on issues that can only be explained by referencing Chinese laws. In her article, Yi provides brief overviews on a number of China-specific issues related to the country’s taxation system, corporate law, banking laws, property law, and marriage law. Yi’s very informative article may be accessed on ILW’s website at: http://www.ilw.com/articles/2012,0612-song.shtm  

The second article, entitled “Construction Jobs Count in EB-5 Projects: Can We Count the Jobs with Confidence?” is co-authored by MSA’s principal Ms. Mehreen (Mona) Shah, Esq. and Ms. Yi Song, Esq. Their article focuses on the development and practical application of EB-5 rules pertaining to the job creation requirement for construction jobs. In their article, both Mona and Yi thoroughly examine the existing USCIS guidelines, salient issues raised in the Service’s RFEs, AAO decisions, and relevant case law. A copy of the article is located on LexisNexis at:

http://www.lexisnexis.com/community/corpsec/blogs/vent-cap-blog/archive/2012/06/20/construction-jobs-count-in-eb-5-projects-can-we-count-the-jobs-with-confidence.aspx

Mona Shah & Associates                 

       Attorney At Law        

299 Broadway, Suite 1005 / Tel: (212) 233 – 7473 / Email: info@mshahlaw.com

New York, NY 10007 / Fax: (212) 233 – 4877 / Web: www.mshahlaw.com