|
|
Maggio + Kattar
11 Dupont Circle NW, Suite 775
Washington, DC 20036
202.483.0053 t
202.483.6801 f
www.maggio-kattar.com
|
|
|
|
JOIN US TODAY FOR THE WEBINAR!
From I-9 to E-Verify: 7 Key Steps to Ensure Compliance
Join Maggio + Kattar Managing Shareholder Jim Alexander and HR Operations Consultant, Theresa Nahajzer, today, June 11, 2013 at 1pm EDT as they share the 7 Steps that all employers should follow to stay in compliance. The program will discuss navigating common pitfalls of the new I-9 Form as well as provide an overview of the online tools involved with the employment eligibility verification process.
U.S. employers were required to begin using the 11th "new" version of the I-9 Form on May 7th to verify employment authorization. With the most recent set of changes, the I-9 Form expanded from one to two pages and the accompanying instructions similarly ballooned from three to six pages. The general employer compliance principles and processes, however, remain largely unchanged through all I-9 Form versions. U.S. Citizenship and Immigration Services' attempt to "assist" employers with more abundant and reader-friendly instructions, as well as a revised employer handbook of 66 pages, underscores the continuing complexity plaguing employers in accurately and timely completing the employment verification process. In an environment of more frequent I-9 audits, discrimination claims, and E-Verify "desk audits," employers cannot afford to be complacent in their compliance efforts.
To RSVP to the program and receive log-in information, please email us at events@maggio-kattar.com. | |
|
|
Client Profile: M + K Client Granted 11th Hour Stay of Removal Before Scheduled Deportation to Iraq
|
Maggio + Kattar client Ali was recently granted a stay of removal by Immigration and Customs Enforcement (ICE), the evening before his scheduled deportation to Baghdad, Iraq on May 31, 2013. ICE was prepared to go forward with this deportation despite the fact that Iraq recently experienced one of the worst waves of sectarian violence since the start of the war, leading to the deaths of over than one thousand people in just the past month. On May 30, 2013, the U.N. Special Representative to Iraq noted that the country was on the verge of exploding into widespread violence.
Ali has lived in the United States for more than twelve years, and he is a well-respected massage therapist at a local gym. He has a large circle of friends and colleagues who have praised him for his unparalleled massage therapy skills, his humor, his kindness, and his compassion towards others. Ali is a hard-working individual of excellent character, who has volunteered to provide massage therapy for Iraq war veterans free of charge.
Ali came to our office a few weeks before he was scheduled to be deported to Iraq. While Ali has always been afraid of returning home, he suffered from ineffective lawyering during his immigration court proceedings. His former lawyers never informed him of the possibility of applying for asylum. As a result, his immigration court proceedings eventually culminated in the issuance of a final order of removal. Following this removal order, ICE placed him under an Order of Supervision in 2007 and he has diligently reported over the years.
During a report date this April, Ali was told to prepare for deportation in May. Maggio + Kattar worked to file a request for a stay of removal and to prepare a motion to reopen his immigration court proceedings, based both on the ineffective assistance of counsel he received, as well as the recently changed country conditions in Iraq. Both of Ali's brothers have worked for U.S. security companies in Iraq and have been threatened. As an Iraqi who has been living in the U.S. for many years, Ali would be immediately suspected of, at a minimum, pro-American political opinions and, at worst, of being an American spy if forced to return to Iraq.
Despite the strong support that Ali had, ICE indicated that it was likely to deny the stay. Maggio + Kattar was prepared to accompany Ali to the airport on May 31, 2013, and Ali had already arranged for his Lhasa Apso puppy to be raised by a friend. We initially received information from ICE's local office that the requested stay had been denied. However, a short time later, we received a follow up phone call that the local office's decision had been reversed and a six month stay of removal had been granted. Ali will now have the opportunity to file a motion to reopen his immigration court proceedings and present evidence of his eligibility for asylum.
It is striking that the United States is continuing deportations to Iraq despite the recent spike in violence. A person like Ali, who has lived in the United States for many years, would be an instant target upon return. Basic humanitarian principles would suggest that the United States should not be deporting individuals to countries where their lives will be in imminent danger.
It is especially striking that this deportation was to occur just as Congress is making progress in advancing immigration legislation, and the administration has made clear that its priorities are to focus on individuals with criminal records or who pose a risk to the security of the United States. Based on the administration's stated goals, Ali is not a priority for enforcement. On the contrary, many of Ali's supporters have noted that he is exactly the kind of individual that the United States should be fighting to keep. Maggio + Kattar will continue to fight for Ali, as well as to advocate for other individuals who are American in all but their legal status. |
New USCIS EB-5 Policy Memorandum Instructs Adjudicators to Use Flexibility in Advancing Congress' Objective of Encouraging Foreign Investment and Job Creation in the U.S. |
On May 30, United States Citizenship and Immigration Service (USCIS) released a long-awaited 27 page Policy Memorandum (PM) augmenting and clarifying its existing guidance for the adjudication by its officers of EB-5 applications and petitions. Given the continued and sustained interest on the part of international investors in relocating to the U.S., and the notoriously complex regulations which govern the EB-5 process, the PM has been keenly anticipated, and provides valuable insights into the EB-5 Program itself and the ways in which USCIS officers should apply the regulations in their EB-5 adjudications.
The new PM instructs USCIS adjudicators to use flexibility in evaluating EB-5 applications, , to promote investment and encourage job creation in the U.S. The PM is a welcome, if belated, effort to help EB-5 adjudicators navigate the fiercely complex regulatory environment that has made this visa category so challenging to utilize, and should be studied carefully by attorneys with existing EB-5 practices or who are considering moving into this practice area, as well as by individual investors who are interested in relocating permanently to the U.S.
The purpose of the EB-5 program is to create jobs.
As USCIS makes clear to its adjudicators in the very first paragraph of the PM, the purpose of the EB-5 visa is to create jobs by facilitating the entry of entrepreneurs willing to invest their personal capital in the establishment of job creating entities in the U.S. EB-5 adjudications require the submission of documentation establishing that the immigrant investor is putting his own legally derived funds at risk by investing in a new commercial enterprise in the U.S. (defined as an enterprise that was established after the EB-5 program went into effect in 1990) and that the investment has resulted or will result in the creation ( or in certain instances, the preservation) of at least 10 new full-time jobs.
Potential investors often place too much importance on demonstrating their ability to make the minimum required investment--either 500,000 or 1 million USD, depending on where the enterprise will be located--rather than on the job creation aspects of their application. An EB-5 submission that fails to satisfactorily document job creation will fail, no matter what the size of the investment may be.
USCIS will use preponderance of the evidence to adjudicate EB-5 cases.
The PM instructs USCIS adjudicators to use "preponderance of the evidence" rather than the more strict "clear and convincing" and "beyond a reasonable doubt" evidentiary standards in adjudicating EB-5 applications. This standard requires the petitioner to show that what he or she claims in the EB-5 submission is "more likely than not" to be true in order for the application to be approvable. Significantly, USCIS cautions its adjudicators that the petitioner does not need to remove all doubt from the adjudication; the submission of "relevant, probative, and credible" evidence will support a conclusion that the petitioner has satisfied USCIS' standard of proof for approval.
What does USCIS consider to be the key components of a successful EB-5 case?
As set forth in the PM, USCIS considers the three principal issues for determination in adjudicating EB-5 cases to be:
1) Has the applicant invested the required amount of his own capital;
2) Is the capital invested in a new commercial enterprise;
3) Does the capital investment create the required number of jobs.
Each of these seemingly straightforward issues becomes immensely complicated in the process of adjudicating an EB-5 application, and in this context, USCIS's PM is of particular utility for individuals and their attorneys who wish to maximize their chances of having their EB-5 petitions approved, as it provides valuable insight into the approach its adjudicators are being asked to take in handling these cases.
The required amount of capital must be invested.
USCIS adjudicators define "capital" broadly in EB-5 cases, based on regulatory language and precedent decisions, to include not only cash, equipment, and other tangible property, but also an investor's promissory note to pay for borrowed funds, so long as it is secured by assets owned by the investor that are not being used to set up or fund the company in which the immigrant is investing. Crucially, the investor must also be able to demonstrate by a "preponderance of the evidence" that the funds being invested were obtained by lawful means. This can be more challenging for some investors than others, especially if the documentation that is provided to confirm the source and movement of the funds is not extensive. USCIS EB-5 adjudicators, as with consular officers who adjudicated E1 and E-2 nonimmigrant visas, require credible evidence that the applicant's investment funds are "at risk" in order to sustain the EB-5 application.
The minimum amount of capital investment that must be documented in the EB-5 application is either $1,000,000 or $500,000, depending on the location of the commercial enterprise in which the applicant is investing. The lower investment amount is permitted in a "targeted employment area", which is either a rural area or an area that has experienced a rate of unemployment at least 150% above the national unemployment rate. USCIS adjudicators must conclude that the jobs being created by the investment are located in a targeted area in order for the investor to benefit from the lower capital requirement.
The investment must be in a new commercial enterprise.
USCIS seeks to define "commercial enterprise", in a manner consistent with the realities of the business world, to mean "for profit" activity engaged in lawful business in a variety of acceptable business forms. Under the regulations, a business established after November 29, 1990 qualifies as a new commercial enterprise for EB-5 purposes. EB-5 adjudicators can also consider a company established prior to this date to be a new commercial enterprise if the company will be restructured or expanded as a result of its receipt of the EB-5 investor's funds, resulting in a "substantial change" in the net worth or the numbers of employees. "Substantial" means a 40% increase either in the company's net worth or the number of its employees.
The investment must create at least 10 full-time jobs.
USCIS considers job creation to be the "critical element" of the EB-5 program, and will examine each EB-5 submission carefully to determine whether the requisite number of full time positions will be created as a result of the investment. It is not enough that an investor's money creates jobs-the jobs themselves must arise in the commercial enterprise in which the applicant's funds are being invested. A full time position is defined as one that requires a minimum of 35 working hours a week, and must be held by a qualified employee-either a U.S. citizen, legal permanent resident, or other immigrant lawfully authorized to work in the U.S., such as an asylee or refugee. Jobs held by the investor, his spouse, or children as well as any held by work-authorized nonimmigrants, cannot be used to satisfy the EB-5 requirements.
Commercial enterprises can be located within and associated with a Regional Center.
USCIS will accept EB-5 petitions based on qualifying investment in an individual commercial enterprise or as part of a commercial enterprise located within a Regional Center authorized to pool individual EB-5 capital investments in a larger commercial enterprise or group of enterprises under the terms of the Immigrant Investor Program. The principle advantage for EB-5 investors of a Regional Center investment is that they are able to rely on the indirect creation of jobs caused by their investment and that of other EB-5 investors in the Center, to meet the EB-5 requirements. Successful EB-5 Regional Centers use "reasonable economic methodologies" to demonstrate how their individual EB-5 investors' funds lead to the indirect creation of the requisite number of indirect jobs.
We expect this PM to provide welcome guidance for investors and attorneys alike as they continue to battle changing government adjudication standards in this important area. In our current economic climate, encouraging foreign investment and job creation is paramount to the U.S. economy's growth and sucess. |
"Gang of 8" Immigration Reform Bill Emerges From Committee and Moves to Senate Floor |
In April 2013, a group of eight United States Senators released details of proposed legislation to reform the current, antiquated immigration system. After going through the Senate Judiciary Committee, the draft legislation has now been moved to the Senate floor. The bill includes sweeping changes to family and employment-based immigration. It also creates a path to citizenship by creating a new Registered Provisional Immigrant (RPI) status which will likely benefit millions of undocumented individuals currently in the country.
Following introduction of the bill, hundreds of amendments were introduced, many of which were designed to strip away the substance of the bill. However, the Senate Judiciary Committee was able to work to preserve the heart of the bill and the various positive reforms contained therein. There were several amendments of note that did become part of the bill, including: requiring that ICE provide a copy of the A file (immigration file) to a noncitizen at the beginning of a removal proceeding; creating limitations on the use of solitary confinement in detention; terminating the asylee or refugee status of any noncitizen who returns to the country from which they sought protection from persecution; raising the base H-1B cap to 115,000 and simplifying the cap adjustment formula; and reforming the grant of employment authorization documents for VAWA, T and U visa applicants.
On May 21, 2013, the Senate Judiciary Committee passed S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act out of committee by a vote of 13-5. Senate Majority Leader Harry Reid has vowed to bring the bill up quickly for a vote on the floor. The Senate's goal is passage by July 4th, and Senate Chuck Schumer of New York recently stated on Meet the Press that he believes the bill will pass with 70 votes. That will certainly put pressure on the House of Representatives to pass the immigration bill as well. Maggio + Kattar will continue to monitor the legislative developments as the bill makes its way through Congress. |
Ninth Circuit Court of Appeals Chips Away at Consular Non-Reviewability -- Sort Of |
The Ninth Circuit Court of Appeals decision in the case of Fauzia Din vs. John Kerry, Janet Napolitano, and others, published on May 23, has generated a certain amount of excitement within the legal community as an apparent frontal assault on the long-standing doctrine of non-reviewability of consular visa decisions. In its decision (a divided ruling of 2-1), the 9th Circuit Court reversed the District Court's decision to dismiss the case on the basis of consular non-reviewability. Specifically, the government had argued that the mandamus request by U.S. citizen Fauzia Din, following a denial by a consular officer of her husband's immediate relative immigrant visa petition, should not be reviewable by the courts.
Ms. Din's husband was denied issuance of an immigrant visa by a consular officer on June 7, 2009 and provided written notification informing that his visa had been denied "under section 212(a) of the INA, 8 U.S.C. 1182(a)". He was further advised that "there was no possibility of a waiver of this ineligibility". When pressed to clarify why his visa had been denied, the consular section responded, in an email, that the immigrant visa had been denied under Section 212(a)(3)(B), which renders an applicant inadmissible for conduct that involves "terrorist activities". The consular section's message also advised that it was not possible to provide a detailed explanation of the reasons for the denial and that the requirement that the applicant be provided a detailed explanation of the reason for a visa denial (INA 212 (b)(2), 8 U.S.C.(b)(2)-(3)) does not apply to notice of the reason for denials involving criminal or terrorist activity.
Ms. Din's counsel attempted to find out more about her husband's visa denial from the Visa Office, but was advised that it was not possible to provide a more detailed explanation for the basis of his 3(B) denial. Ms. Din herself visited both the U.S. embassies in Kabul and Islamabad to press for clarification, but was rebuffed by both on the same basis. In bringing the writ of mandamus, Ms. Din alleged that her husband's visa application had not been lawfully adjudicated, and that waiving the provision of notice of reason for denial for applicants deemed inadmissible on terrorist grounds is unconstitutional as applied to her. The District Court dismissed Ms. Din's claims based on their interpretation that the doctrine of consular non-reviewability barred her from challenging the consul's decision. In addition, the District Court concluded that she did not have standing to challenge the visa denial notice provision.
The 9th Circuit reversed the District Court's findings and remanded the case for further proceedings concluding that the Government had not put forward a "facially legitimate and bona fide reason for the visa denial", and noting that Ms. Din had standing to challenge the visa denial provision of the law. Thus, on the face of it, the decision would appear to be a significant blow to the long-standing doctrine of consular non-reviewability of visa decisions. However, a careful reading of the entire decision reveals that the Court's ruling is not as sweeping as it might appear and leaves considerable leeway for consular officers to continue to render 3(B) denials that are not subject to judicial review.
As set forth in the 9th Circuit's decision, the majority's primary concern is that merely advising Ms. Din that her husband's visa had been denied under section 212(a)(3)(B) without providing any more specificity as to which kind of "terrorist activity" set forth in the statute was involved, provides no factual basis on which to understand and challenge the decision. The Court noted that Section 3(B) has ten subsections identifying different categories of aliens who may be inadmissible for terrorism reasons, six different subsections defining terrorist activities, and seven subsections defining "engaging in terrorist activities". None of these provisions were cited by the consular officer who denied Ms. Din's husband's visa-a flaw which the Court concluded made it impossible to identify a legitimate statutory basis for the visa denial.
The Court's ruling, however, leaves a clear path for consular officers to continue to deny visas under section 3B without reviewability, so long as the written notification of visa denial conveys more specificity as to the subsection of section 3(B) on which the denial is based. The Court does not instruct consuls to reveal the evidence available to them that forms the basis for a 3(B) denial, nor does it create a channel for review of all 3(B) denials. Rather, it charges the government with providing a clearer statutory basis for such denials-in other words, to provide more specific statutory justification for them. Under the 9th Circuit's logic, Ms. Din's husband could have been denied under section 212 (a)3)(B)((IV)(bb), for example, for being a member of a "political, social, or other group that endorses or espouses terrorist activity", which would be a more specified finding than the sweeping 3(B) denial, and would meet the Court's standard of a denial that is "facially legitimate and bona fide". As such, it would have been shielded from review under the doctrine of consular non-reviewability, which the Court notably declined to challenge. Consular officers, once aware of the decision, will quickly adapt their written 3(B) denial notifications to provide the degree of specificity the 9th Circuit requires.
The vigorous denial from the dissenting judge gives further evidence that too much can be read into the majority's ruling. Advocates for the elimination of the doctrine of consular non-reviewability will be likely be disappointed; while Din places consular officers on notice that they must provide clearer statutory explanations for their 3(B) denials, their ability to render them without having to reveal the evidentiary basis for the decision remains unchallenged. |
Employment-Based Immigrant Visa Numbers Make Significant Gains in June 2013 |
The June 2013 Visa Bulletin included significant gains in the employment-based third preference (EB-3) category, for the second month in a row. The Department of State's Visa Bulletin controls which applicants for an immigrant visa may proceed to the final step of the process for U.S. legal permanent residence (a green card) via U.S.-based adjustment of status or by consular processing. The employment based third preference category applies to individuals in positions that require, at a minimum, 2 years of work experience or a bachelor's degree.
The June Visa Bulletin notes that the EB-3 cut-off date for China is September 1, 2008; for India, January 8, 2003; for Mexico, September 1, 2008; and for Philippines, September 22, 2006. For all other countries, the cut-of date is September 1, 2008. Last month, by way of comparison, the corresponding cut-off dates in the EB-3 category were December 1, 2007 (China, Mexico, and All Chargeability Areas -- except those listed); December 22, 2002 (India); and September 15, 2006 (Philippines).
For the employment-based first preference (EB-1) category, immigrant visa numbers continue to be immediately available for all nationalities. The second preference employment-based category (EB-2) is also current for most countries, with the exceptions of those born in mainland China (July 15, 2008); and India (September 1, 2004).
The Department of State's Visa Office has cautioned that the recent movement is not expected to continue in the coming months, however. Rapid forward movement in cut-off dates is often followed by a dramatic increase in demand for immigrant numbers within three to six months. Once this dramatically increased demand begins, the forward movement of the priority dates will begin to slow or will even stop for a period of time. |
Temporary Protected Status Extended for El Salvador through March 2015 |
The Department of Homeland Security (DHS) has extended Temporary Protected Status (TPS) for El Salvador through March 9, 2015. Nationals or citizens of El Salvador must re-register during the 60-day re-registration period that began on May 30th and runs through July 29, 2013.
TPS is designated to establish a temporary safe haven in the United States for nationals of a foreign state when it has been determined that there is an armed conflict within the state posing a serious threat to the personal safety of the country's nationals or if there has been a natural disaster such as a flood, earthquake, epidemic, or environmental disaster that substantially disrupts living conditions in a foreign country, or there are extraordinary and temporary conditions that prevent a country's citizens from safely returning.
During a period of TPS, an individual is eligible to legally remain in the United States for the designated period and any designated extensions. In addition, the foreign national is eligible to apply for an unrestricted work permit (Employment Authorization Document) and a travel document (Advance Parole). The temporary work authorization for nationals from El Salvador has been automatically extended through March 9, 2014. As noted in a prior Compliance Corner, it is critical that employers update I-9s for all individuals covered under the extension.
Countries whose nationals have a current designation of TPS include Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan and Syria. For a complete list including relevant dates for the designation,please click here. |
|
|
Please visit our website which we recently updated with a new look and feel, more user friendly features and expanded coverage of important immigration topics via our blog.
We welcome your comments and suggestions for content and feature stories at info@maggio-kattar.com . |
M+K Immigration Community Forum: Legal Strategies and Advocacy Efforts: Immigration and the LGBT Client
|
Under existing law, if a couple's marriage is valid where it is performed, it is valid for purposes of immigration law. Importantly for the LGBT client, however, the Defense of Marriage Act ("DOMA") currently prohibits recognition of any same-sex marriages. If DOMA is struck down, it is likely that same-sex individuals will be eligible for a range of benefits under the immigration laws from which they are currently excluded. These benefits include: the right to be petitioned for by a same-sex U.S. citizen spouse; the right to be granted derivative status as the spouse of a nonimmigrant visa holder, or to be included in that spouse's green card application; derivative asylee or refugee benefits; and the right to be considered as a qualifying relative for purposes of cancellation of removal.
Earlier this year, the Supreme Court heard oral arguments in two important cases bearing on the rights of LGBT individuals -- Hollingsworth v. Perry and United States v. Windsor. While we will not likely know the results of these arguments until the end of June, some observers of the Court's oral arguments seemed doubtful that the Court is ready to issue a broad decision in favor of a constitutional right to gay marriage throughout the country. If DOMA is struck down, this will have wide-ranging implications for married same-sex couples where one member of the couple is a foreign national.
Maggio + Kattar will be hosting an immigration community forum "Legal Strategies and Advocacy Efforts: Immigration and the LGBT Client" on Thursday, June 20, 2013 from 9:00 - 11:00 a.m. This forum will address the representation of members of LGBT clients by identifying current and potential legal strategies available to assist LGBT clients and as well as on-going legislative initiatives. The forum will be moderated by Maggio + Kattar Shareholder, Jim Alexander, and we will include panelists: Michael Sisitzky, Immigration Equality; Mark Shmueli, Law Offices of Mark Shmueli; and, Todd Pilcher, Dzubow & Pilcher.
To join us at our upcoming forum to learn more about these issues, please RSVP to: events@maggio-kattar.com.
|
|
|
Anna Gallagher moderated a panel on Ethics in Immigration Law at the District of Columbia Bar Association's Continuing Legal Education (DC - CLE) Program on June 4th.
Meg Hobbins is co-chair of the DC - CLE program's inaugural Family Based Immigration Boot Camp to be held on Thursday, July 18th. She is also Editor of the publication "Family-Based Immigration Law: A Practitioner's Guide" which will be available for purchase from the DC-CLE program beginning in late July 2013.
Anna Gallagher was recently chosen as the Litigation Committee Chair of the American Immigration Lawyers Association's (AILA) Washington DC Chapter. Anna has also been selected to chair the AILA Immigration and Customs Enforcement (ICE) National Liaison Committee. |
|
