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Top 10 Most Viewed Posts On The Insightful Immigration Blog In 2017

12/29/2017

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By: Cyrus D. Mehta, ABIL Lawyer
​The Insightful Immigration Blog

Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs in 2017. While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them.

2017 was marked by President Trump’s turbulent impact on the immigration system. It started with the travel ban aimed against countries with mainly Muslim populations and enhanced interior enforcement, but then went onto undermining legal immigration, including attacks on H-1B visas. Although the Trump administration has not been able to slow down immigration through legislative changes in Congress or through rule making, it has achieved its stated objectives through shifts in policy that create more obstacles in the immigration process. The DACA program was cancelled and refugee admissions have been virtually halted. Immigrants have also been stereotyped, without basis, by conflating them with crime or by viewing them as taking away American jobs.  Our blogs critically reflect on all these developments and also endeavor to portray immigration as being in the national interests of America. We have not feared voicing our criticism as we believe it is the right thing to do on behalf of our clients and the nation. The Trump administration’s move to restrict immigration is not based on a rational policy, but driven solely by fear, xenophobia and stemming out of a eugenics movement sanctioned by the President. This was evident in a recent New York Times article that described President Trump angrily disparaging bona fide Haitian visitors by assuming they all had AIDS and Nigerian visitors who would “never go back to their huts.”   President Trump’s sentiments reflect the true underpinnings behind his administration’s new immigration policy, and the most effective way to react is to condemn them on grounds that they are not in keeping with long cherished American values as a nation of immigrants.

Our blogs also educate readers on new developments, such as on various aspects of the high skilled worker rule or on new decisions clarifying L-1 visas for functional managers or the national interest waiver. It is important to inform people on how they can maximize opportunities while the Trump administration is trying its best to restrict them.

The good news is that the Trump administration’s efforts to destabilize the immigration system have met with effective resistance through the courts, media, and advocacy. We proudly believe that our blogs are also part of this effort.

We do hope that 2018 bodes better for immigration, and wish all of our supporters and well-wishers a very happy New Year notwithstanding the challenges that lie ahead!

  1. Entry Level Wage Blues
  2. Analysis of the 60-Day Grace Period for Nonimmigrant Workers
  3. A Few Suggestions to Defend Oneself Against the 90-Day Rule
  4. Is There a Hidden Agenda? Suspension of Premium Process for All H-1B Petitions
  5. Matter of Dhanasar: The New National Interest Waiver Standard
  6. Raise Act Will Hurt Immigration, Americans and America
  7. Stopping H-1B Carnage
  8. 7 Points to Remember Regarding Resume Review in the PERM Process
  9. Filing Under the FY2018 H-1B Cap; New Developments in H-1B Cap Exemption
  10. Dealing with the Dreaded RFE – Reflections of an Immigration Lawyer

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2017 In Review

12/28/2017

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By: Alexander D. McShiras, Associate of ABIL Member, Kirby Gamblin Joseph
​Joseph Law Firm Blog
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​This holiday season, I would like to reflect on the past year in the world of immigration law. It has been a tumultuous one, to say the least.

In late January, upon the inauguration of President Trump, there were a flurry of executive orders that aimed to restrict and isolate immigrants and further divide the United States, a country of immigrants.  The most controversial and litigated Executive Order was the January 27, 2017 Travel Ban (aka Muslim Ban 1.0).  After extensive litigation that overturned the first ban, the Trump administration came out with their second Travel Ban in March 2017 (aka Muslim Ban 2.0). After more litigation, Trump issued a third travel ban on September 24, 2017 (aka Muslim Ban 3.0).

This third version of the ban places permanent restrictions on travel for citizens of Iran, Libya, Syria, Yemen, Somalia, Chad, and North Korea. It also blocks travel of certain Venezuelan government officials and their families. This travel ban has been in litigation since it was issued and was blocked by federal judges in two states. The case involving this ban is before the Supreme Court. On November 20 the government attorneys asked the Supreme Court to allow the full ban to take effect while the case is in litigation. On December 4, the Supreme Court allowed the travel ban to be implemented even while litigation remains pending. Until the Supreme Court rules on the merits of the case, the ban is in effect. There are multiple Courts of Appeals which have limited the extent to which the ban can be implemented, but these rulings have been stayed pending the Supreme Court’s decision on the merits.

In most cases, citizens of the countries on the above list will be unable to emigrate to the United States permanently and many will be barred from working, studying or vacationing here.  Iran, for example, will still be able to send its citizens on student exchanges, though such visitors will be subject to enhanced screening. Somalis will no longer be allowed to emigrate to the United States, but may visit with extra screening.

Another prominent change in 2017 has been the announcement in September that the DACA program is ending. The Trump administration made this announcement on September 5 and gave people until October 5 to send in their renewal applications only. DACA will end for good on March 5, 2018, unless Congress acts before that date. Several prominent democrats and republicans in Congress have been working on a bipartisan solution called the Dream Act. Numerous democrats, including Senate minority leader Chuck Schumer, stated that they would use their leverage regarding legislation for the federal budget in an effort to pass the Dream Act. However, facing a government shutdown, which would end the funding of CHIP and other important government programs, the Democrats caved and Congress passed a temporary resolution to fund the government. Although only temporary, the resolution stripped democrats of some leverage they had, until the budget measure again comes up for a vote. That is expected to be early in 2018, but it is unknown whether anything will be done before the March 5, 2018 deadline set by the Trump administration.
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Overall, it has been a very difficult year for the immigrant community. Many are left in limbo as it appears their cases are getting buried under a plie of bureaucratic red tape. Cases are taking longer and longer to be decided and getting a request for evidence has become commonplace, no matter how strong the case. The Joseph Law Firm is working hard with our clients to fight back and to zealously represent their interests. “The arc of the moral universe is long, but it bends towards justice.”

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EB-5 Update: What to Expect in the Year of the Dog?

12/20/2017

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By: Bernard P. Wolfsdorf, ABIL Member and Partner Joseph Barnett
Wolfsdorf Immigration Blog

Dogs are loyal, reliable, and predictable, which is why we love them.  These are exactly the qualities we need in the EB-5 arena to keep the job-creating immigration program a stimulus for economic development in the future.  Since September 2012, Congress has pushed reform on the EB-5 Regional Center Program down the line nine times, and it appears it will do so again prior to December 22, 2017.  Most likely we will get another short Continuing Resolution extension to January 19, 2018, followed by regulations designed to reform the program, or new legislation, or possibly even both.

But don’t wag your tail too hard.  Unfortunately, the long-standing uncertainty surrounding the EB-5 Regional Center program has created significant confusion in the marketplace, with a potential to cause irreparable harm to U.S. companies that are relying on EB-5 investment.  This is not a case where a barking dog doesn’t bite… according to recent statistics, there was a 62% decrease in the number of Form I-526 filings from Q3 to Q4 of FY 2017.

Predictability, and a solution for the lengthy Chinese waiting line, is critical for the continued viability of the EB-5 Program.  As is relief for child derivatives who may “age out” and who should be allowed to keep their parent’s priority date.  For the thousands of parents who saved and invested for their children’s future, discovering that their children may no longer qualify for an immigrant visa because USCIS refuses to follow congressional intent to allow entry of 10,000 investor families (not 3,000 investors and their families) is tragic.  Congress’ inability to come to an agreement on EB-5 reform has created a dog’s dinner.

Congress needs to be bold again and take a giant leap forward to save hundreds of U.S. companies creating thousands of jobs for U.S. workers.  While the Fairness for High-Skilled Immigrants Act of 2017, which would amend the Immigration and Nationality Act to eliminate the “per country” numerical limitation for employment-based immigrants, is gaining steam, it does not go far enough.  It’s time that Congress recognizes the vital importance of the EB-5 Regional Center, and to be dogged in their negotiations to save the program.

We must see changes to the EB-5 Regional Program in the Year of the Dog, either through a legislative reform package in Congress or the U.S. Citizenship & Immigration Services (USCIS) will move forward with a final rule on regulations, to maintain this important economic engine.
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Update on the International Entrepreneur Rule: A New Hope…. Until the Empire Strikes Back

12/20/2017

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By: Joseph Barnett, Partner of ABIL Member, Bernard P. Wolfsdorf
Wolfsdorf Immigration Blog

The International Entrepreneur Rule (“IER”) is back in the news, as the U.S. District Court for the District of Columbia recently granted summary judgment against the U.S. Department of Homeland Security (“DHS”) for its delay of the implementation of the Obama-era immigration rule which allowed certain foreign entrepreneurs to obtain immigration “parole” to the temporarily enter the U.S., despite lacking a visa or green card.  The purpose of the IER is to provide an alternative to a “Start-Up” visa which was part of the stalled Comprehensive Immigration Reform in 2013 and to prevent the “brain drain” that occurs when entrepreneurs who wish to start businesses in the U.S. cannot qualify under current visa categories.

Our firm previously blogged about IER in August 2016 when the Advanced Notice of Rulemaking was circulated, and in January 2017when the final rule was published in the Federal Register.

Entrepreneurs who are interested in applying under the IER must submit a Form I-941, Application for Entrepreneur Parole.  However, the instructions to Form I-941 contain requirements that are different from the requirements contained in the final rule published in January 2017. Specifically:

  • The instructions require a 15% ownership stake in the start-up entity; 10% for extensions and amendments, whereas the January 2017 final rule only requires 10% ownership for the initial application and 5% ownership for amendments and extensions).

  • The instructions require proof of formation in the last three years, whereas the January 2017 final rule allows work for entities formed within the last five years

  • The instructions state that within the last year the applicant must have received an aggregate of $100,000 in government grants or $345,000 from qualified investors, whereas the January 2017 final rule requires only $250,000 of aggregate funding from qualified investors and gives an 18-month timeframe to aggregate either private or public funds.
Compounding the confusion surrounding the IER is the Trump Administration’s explicit lack of support surrounding the IER, despite the economic benefits and “merit” such entrepreneurial activity would bring to the U.S.  In fact, DHS may end up rescinding the IER.  As is the case with other U.S. immigration benefits, it’s becoming tougher and tougher to qualify as the government seeks enact new rulesmaking it tougher for foreign nationals to work in the U.S.

The Trump Administration has indicated an intention to terminate this program creating uncertainty. However, for those with no other options, who fully understand the potential risk of applying for a benefit that can be terminated, we are ready to try and help those seeking such entrepreneur status.

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Big Brother is Watching–4 Things to Know about Applying for U.S. Visas and Citizenship in the Digital Information Age

12/20/2017

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By: Matthew Beatus, Senior Associate of ABIL Member, Bernard P. Wolfsdorf
Wolfsdorf Immigration Blog

In the aftermath of 9/11, numerous measures designed to enhance security and streamline visa processing were implemented to identify and eliminate vulnerabilities in the visa processing system. The passage of the USA PATRIOT Act in 2001, followed by the Enhanced Border Security and Visa Entry Reform Act (a/k/a the “Border Security Act”) and the Homeland Security Act in 2002, accelerated these efforts by mandating: increased coordination of law enforcement and intelligence agencies; inter-agency data sharing; implementation of an integrated entry and exit control system; the establishment of terrorist lookout committees; foreign student monitoring; biometric collection; mandatory interviewing; and the intensification of security check measures. These procedures created a rigorous framework, making immigration applications at U.S. Embassies and Consulates abroad a daunting exercise. The combination of these statutory provisions, together with the steady stream of other changes—including the introduction of additional security clearance procedures for nationals from predominantly Muslim countries,  changes to the automatic revalidation provision, increasing applicability of the Technology Alert List (“TAL”), enforcement of export controls, and a growing scrutiny of visa violations including overstays and unauthorized employment issues, as well as other minor criminal convictions—completely changed the U.S. immigration playing field.  Given the current status of how digital information sharing can impact U.S. immigration applications, the following are four basic facts and tips that foreign nationals should know before applying for U.S. immigration benefits:

  1. The government retains records of your past visa applications; remaining consistent and accurate across various applications is critical. Whenever an individual applies for a U.S. visa or Lawful Permanent Residency status, the government asks the individual to provide significant information about themselves, such as their residential and employment histories, criminal arrest records, educational history, etc.   The government retains all of these applications.  In years past, an old immigration application might have never come to the attention of an Immigration Officer.  However, now that we are in a digital age where records and documents are easily obtainable and searchable, past immigration applications are increasingly being cross-referenced by Immigration Officers when new applications are filed. ‌‌
    Discrepancies between a prior and new immigration application can become very problematic.   If a visa applicant lists two different answers for one single question, one of those answers must be inaccurate.  If a visa applicant has provided inaccurate information, then it could be determined that he or she misrepresented themselves to the government, which could very well lead to the denial of the immigration application and have a long-term impact on future immigration applications.
  2. The government can Google you! In September 2017, The Department of Homeland Security (“DHS”) issued an update to the Federal Register that updates and expands the government’s capability to use various information sharing programs in researching visa applicants as they go through the visa application process.  As news outlets began reporting on the new policy, many foreign nationals currently in the U.S. and applying for U.S. visas abroad were alarmed at the policy’s inclusion of social media accounts and aliases as an area that the government researches during the immigration application process.  As DHS officials clarified,   “DHS, in its law-enforcement and immigration-process capacity, has and continues to monitor publicly-available social media to protect the homeland.”   In other words, DHS has always had the ability to monitor information publicly available on the internet, so the Federal Register update, in many regards, has not drastically changed currently existing government policy and practices.‌
    Anecdotal evidence  indicates that immigration officers are more frequently searching publicly available information on people and businesses before and during the visa application process.  For employment-based visa applicants, a social media account, such as a Facebook or LinkedIn profile should be scrutinized carefully to ensure that all the information provided to the public is accurate and corresponds to information provided to the government on visa application forms.‌
    Publicly available accounts and online personas could also bring to light other potential grounds of inadmissibility.  For instance, foreign nationals might accidentally publicly display actions that could be considered illegal activities.  Of course, individuals should never commit crimes, and it should go without saying that it is not a good idea to publicly post about the commission of crimes if one is committed, but sometimes there may be things that an individual does not consider to be illegal, although the federal government would disagree.  The best example that comes to mind would be marijuana-related activities.  Foreign nationals should be wary and remember this.  Even though marijuana is now legal in many states, it is still an illegal controlled substance on the federal level.  The public admission of marijuana use could serve as an immigration ground of inadmissibility, either due to controlled substances law violations (i.e., possession of a controlled substance), or due to public health considerations (i.e., marijuana use could be determined as indicative of habitual drug and alcohol use, in general).
  3. Governments and government agencies are sharing information more than ever. We live in a digital age, and information is more easily shareable than ever before. Government agencies at the federal level share information about individuals and businesses more than ever before.  Local and state law enforcement agencies are able to share and communicate information to the federal government.  The U.S. government has information-sharing programs with many foreign allies.  Visa applicants should assume that any information about themselves in any single government database can and will be discovered by the U.S. government when a visa application is made.  If a visa application does not fully disclose all relevant requested information, it is possible that an immigration officer will make a determination that the visa applicant has misrepresented themselves.
  4. Visa applicants need to be accurate, consistent, and mindful. The Trump administration’s explicitly stated goal is to reduce and curb lawful immigration to the U.S.  While there have not been any new laws or regulations passed to bring such plans to fruition formally, the culture of the federal agencies that execute U.S. immigration programs has changed drastically in recent months.   The feeling among practitioners and employers is that DHS and the U.S. Department of State are actively looking for ways to deny applications that in months and years previously would likely have been approved without issue.  Increased information sharing and more readily accessible information on the internet are powerful tools that the government can use to find ways to challenge and deny visa applications.  Foreign nationals need to be very careful when submitting new U.S. immigration applications.  Applicants for visas, permanent residency, and U.S. citizenship should review all past immigration applications that they have a record of in order to make sure that their new applications remain accurate and consistent.  If missing some applications, one can file a Freedom of Information Act (FOIA) request in an effort to obtain copies of prior applications. Moreover, immigration applicants need to be very careful with what they put out to the world on internet, and must understand that their online personas can have real world impacts when it comes to immigration applications, and beyond.
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Calling Out President Trump’s Hoax: The Green Card Lottery and Family Fourth Preference Have No Connection To Terrorism

12/18/2017

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By: Cyrus D. Mehta, ABIL Lawyer and Associate Sophia Genovese
​The Insightful Immigration Blog

Despite the President’s most recent comments, individuals that immigrate to the United States via the Diversity Visa program and family-based petitions are not chosen out of a bin and are certainly not the “worst of the worst.” To the contrary, individuals who come to the United States through these mechanisms undergo rigorous screenings and can face several years, sometimes decades, of processing and waiting.

Trump’s most recent anti-immigration comments were sparked by the Halloween attack in New York City resulting in the tragic death of eight individuals, as well as the failed bomb attack in Times Square last week. The alleged Halloween attacker, Sayfullo Saipov, entered through the Diversity Visa program in 2010. Ceasing this political opportunity to further propel his anti-immigrant rhetoric, Trump declared that the Diversity Visa program brings in “the worst of the worst” and called on Congress to end the program. The individual who attempted to bomb the New York City subway at Times Square, Akayed Ullah, had entered through a fourth preference family-based petition. He was the child of the beneficiary of an approved I-130 petition filed by his parent’s US citizen sibling. Trump again jumped on the opportunity to criticize another lawful method of immigration and declared that such “extended-family chain migration” is “incompatible with national security.”

Given the backlogs in family-based preference categories and the rigorous screenings in both family-based petitions and the Diversity Visa program, it is difficult to understand how the President believes they are easily manipulated processes for dangerous individuals to enter the United States. Logically speaking, if someone truly wanted to exert harm on Americans, there are several other ways to do so without having to go through the hassle of the diversity visa program or family-based petitions.

The modern-day Diversity Visa program was created by Congress through passage of the Immigration Act of 1990 and officially went into effect October 1, 1994. The purpose of the program is to “further enhance and promote diversity” by allowing individuals from countries with low rates of immigration to the United States the opportunity to obtain a green card. There have been many examples of immigrants who have succeeded and benefitted America through this program. In order to apply for the program, an individual must be from a low-sending country and have a high-school education or its equivalent. For FY 2019, individuals from every country but Bangladesh, Brazil, Canada, China (mainland), Colombia, the Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, the Philippines, South Kora, the United Kingdom, and Vietnam are eligible to apply. If applicants fail to submit their registration within the rigid timelines, fail to meet the requirements explained above (i.e. do not possess a high-school education or its equivalent), or generally fail to follow the instructions in the application carefully, they will immediately be disqualified from consideration. Even being one of the nearly 100,000 individuals initially selected in the lottery is not a guarantee for admission, especially if the applicant has triggered one of the many grounds of inadmissibility in the Immigration and Nationality Act. Instead, lottery winners undergo rigorous background checks and interviews, all of which must be completed within a strict timeframe.

There was a time in our history where immigrants came to the country without being subjected to rigorous selection criteria, and only with a dream of starting a new life and doing well through sheer determination and hard work. This was America’s secret sauce – its ability to attract and assimilate people regardless of their status in society and only with a burning desire to succeed. The Diversity Visa program is redolent of America’s past, which still gives anyone who can qualify subject to rigorous screening – whether from Scandinavia or sub-Saharan Africa – a chance to dream, work hard and succeed in America.

Similarly, individuals seeking to immigrate through family-based petitions face crippling backlogs, in addition to the comprehensive security screenings prior to entering the United States. For many of these families, the process of immigrating to the United States can take upwards of several years or even decades. For example, if a US citizen originally from Mexico filed an I-130 on behalf of their married son or daughter, their child can expect to wait at least another 21 years, if not longer, before they can apply for their immigrant visas. And even once their priority date becomes current, there is no guarantee that a consular officer will find them admissible for entry into the United States. It has now become fashionable, even by the likes of USCIS Director Francis Cessna, to criticize so called chain migration as not being desirable and providing a conduit for immigrants to come to the United States to do harm. But this is just subterfuge by immigration restrictionists to curtail family-based immigration in exchange for the proposed RAISE Act. Although the RAISE Act purportedly promotes merit based immigration through a points system, it will keep out most, even many highly skilled individuals, and it is thus no wonder that mostly xenophobes have welcomed it so far.

Chain migration is not a legal term, it is a political term, which is conveniently bandied around by those who oppose immigration, including Trump appointed officials like the USCIS Director who should be objectively administering the law rather than infecting it with Trump’s and his own personal biases. For any rational immigration system to work, minor children of the sponsored person, whether through employment or family-based immigration, along with the spouse, must also be let in. If only the principal beneficiary is admitted on a permanent basis, no one will ever want to immigrate to the United States. While this may be the dream of xenophobes, to deny spouses and children of the sponsored immigrant to get green cards would be cruel and create an unworkable system. The honest xenophobic politician or government official should just advocate shutting down immigration altogether rather than hypocritically espouse it, but only object to chain migration. Objecting to chain migration means that you are advocating a total shut down of immigration. Moreover, every foreign national who has been admitted into the United States as a permanent resident can ultimately naturalize provided they meet the eligibility criteria. A citizen, whether naturalized or born in the United States, should be able to sponsor family members. If there was a sub-class of citizens who could not under law sponsor relatives out of fear that it would foster chain migration, there would be two tiers of citizens in America. This would go against the values of this country that treats all its citizens equally and gives them equal opportunities in all spheres of life. Worse still, it would Balkanize America. The second-class citizens would not feel integrated and assimilated into the fabric of the country. America has succeeded brilliantly and has become great because all citizens are considered Americans no matter who their parents are or where they came from.

An individual with a vendetta against the United States and seeking to exert harm on Americans is not going to go through the pain of such a process. Putting logic aside, as this Administration has done from the start, Trump has nevertheless deemed these methods of lawful entry to be incompatible with national security and avenues through which terrorists are able to sneak in. Immigration, through the chain migration bogeyman, has unfortunately become a focal point of this Administration’s racist and xenophobic rhetoric. They have and will continue to cling on to any and all violent acts committed by immigrants and use it as justification to severely limit immigration to the United States, despite the fact that immigrants are less likely to commit violent crimes than native born Americans.

Ascribing an entire population for the acts of an isolated few, who likely became radicalized in the United States long after their initial admission as immigrants, is ludicrous. Even a native born US citizen can become radicalized. Indeed, we do not see outrage against white American men every time a native-born white male shoots up a school, church, movie theater, concert, or literally any other venue imaginable. Nor have we seen substantive gun reform in an era of alarmingly high rates of deadly shootings. But yet, on the rare occasion that an immigrant does commit a crime, suddenly all immigrants have to answer for it and any avenue through which the violent individual entered the United States is criticized.   While there is clearly a logical nexus between a gun and a person’s evil intent, it is hard to find such a similar nexus with a person’s propensity to do harm and congressionally mandated visa programs. This is another one of Trump’s many hoaxes. Recall the one when he claimed that he would have won the popular vote against Clinton had 3 million illegal voters not voted in her favor.

Simply closing the door to all immigrants because a few individuals committed crimes will do nothing but hurt America in the long run. We have provided exhaustive evidence throughout our blogs describing the various ways in which immigrants have benefited the United States. Immigrants with all sorts of backgrounds contribute to the United States, and it is fallacious to think that only those with limited skills contemplated under the RAISE Act will. It is unclear why we have to continue justifying immigration in the face of such clear evidence. The solution will ultimately lie at the ballot box. Trump repeatedly criticized Ralph Northam in Virginia and Doug Jones in Alabama for being weak on the border and not supporting his wall. Yet, both defeated the candidates that Trump repeatedly promoted on Twitter as being tough on illegal immigration and supporting the wall. Scapegoating immigrants for electoral advantage may have succeeded once for Trump, but might not every time. The tide will turn as people realize that America’s greatness is being diminished if it no longer has access to its secret sauce.

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Why are the January Visa Numbers for the EB-5 Regional Center Program Unavailable for January 2018? And What’s In Store for the Year of the Dog?

12/14/2017

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By: Bernard P. Wolfsdord, ABIL Lawyer and Partner Joseph Barnett
​Wolfsdorf Immigration Blog

​The U.S. Department of State (“DOS”) has just published the Visa Bulletin for January 2018, and the Final Action Dates for the EB-5 $500,000 (I5) and $1 million (R5) investment in the EB-5 Regional Center categories have been listed as “Unavailable”. The Visa Bulletin states:
The continuing resolution signed on December 7, 2017 extended this immigrant investor pilot program until December 22, 2017. The I5 and R5 visas may be issued until close of business on December 22, 2017, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after December 22, 2017.
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The final action dates for the I5 and R5 categories have been listed as “Unavailable” for January. If there is legislative action extending them for FY-2018, the final action dates would immediately become “Current” for January for all countries except China-mainland born I5 and R5 which would be subject to a July 22, 2014 final action date.
So, in a nutshell, no EB-5 regional center visas can be issued in January 2018, unless Congress extends the EB-5 Regional Center program beyond. In some ways it is helpful that the regional center program is linked to many other key programs that require re-authorization. Presently, the expectation is that Congress will pass another short term Continuing Resolution to January 19, 2018. Thereafter, there are several possibilities as to what may occur, but the two most likely are yet another short-term extension to April 2018, or possibly to September 2018. If EB-5 reform legislation is not enacted before April 2018, it is likely that DHS’ EB-5 regulations (including a minimum investment amount increase, TEA changes, and other “integrity” reforms), currently scheduled to be finalized by April 2018, will be implemented. The USCIS’ new director L. Francis Cissna has made it clear that he favors regulations over policy memoranda, and we can likely expect to see him support regulatory changes.

On a related issue, DOS also recently announced that, as of November 1, 2017, there are 30,259 EB-5 cases registered at the National Visa Center (NVC) processing center, waiting for final interviews, and in the case of mainland Chinese EB-5 applicants, waiting for their priority dates to become current. This is an increase of nearly 23% from last year. Note, when trying to calculate the waiting line for Chinese applicants with pending Form I-526s, merely adding the number of pending, initial EB-5 applications to the number of people in line at the National Visa Center and with pending adjustment applications, is not likely to provide a precise answer to determine the mainland Chinese waiting line.  Why?  Neither USCIS nor NVC factor in the attrition rate. There are simply too many variables. For this reason, the State Department tends to provide a best case and worst-case scenario in terms of wait times. Also because of these variables, the DOS is reluctant to make long term predictions where there is no “clear visibility on number usage”. Is there an issue or problem, yes? How bad is the problem, it is serious? However, there are several solutions. At this time however, it is important to understand the attrition rate will be impacted by several variables. There are visa petition denials, and final immigrant visa interview denials, and there are people that drop out, and there are people that get divorced. There are even people who die. Hence, our four Ds: Denial, dropout, divorce and death all contribute to attrition.

While we have been hoping congress will correct the program to 10,000 investors, not 3,000 investors and their families. Unfortunately, that doesn’t seem likely at this time absent successful litigation.

There is however some potential good news for mainland Chinese investors in the EB-5 waiting line.  A new bill has been introduced in the U.S. House of Representatives called the Fairness for High-Skilled Immigrants Act of 2017 which would amend the Immigration and Nationality Act to: (1) eliminate the per country numerical limitation for employment-based immigrants and (2) modify the Chinese Student Protection Act of 1992 to eliminate the provision requiring the reduction of annual Chinese immigrant visas to offset status adjustments under such Act.  This immigration bill has significant congressional support, with 301 current co-sponsors (nearly 70% of all representatives in the House of Representatives). Moreover, Senator Grassley and Representative Goodlatte, the two most powerful politicians in the Senate and House handling this immigration issue, have indicated they support the “Hatch” proposal, which, in general, endorses H.R. 392. If enacted, Chinese EB-5 investors with priority dates in 2014 and 2015 would be able to obtain an immigrant visa much more quickly, as one’s place in the waiting line will no longer dependent on the nation of chargeability. 
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Though there is still too much uncertainly to determine what will occur, it appears there is hope that meaningful EB-5 reform will occur in the coming year.
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Klasko’s Criteria for Analyzing an E-2 Start-Up Business

12/13/2017

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By: H. Ronald Klasko, ABIL Lawyer
Klasko Immigration Law Partners, LLP Blog

Readers of our blogs know that we are working with nationals of many countries that do not have bilateral investment treaties with the U.S. to obtain E-2 visas following acquisition of citizenship in Grenada, which has such a bilateral investment treaty. Many of our investor clients look to us for advice on choosing a business opportunity in the U.S. that will qualify for issuance of an E-2 treaty investor visa.

We are pleased to share the criteria that we use in analyzing potential E-2 business opportunities for our clients:

  • Amount of investment required: There are two different legal requirements that we consider in analyzing the appropriate investment amount – – substantiality and proportionality. The substantiality test requires that the amount of the foreign investor’s investment is a substantial proportion of the amount necessary for the business to be viable and profitable. The proportionality test requires us to compare the investor’s investment with the total investment in the business. The investor’s investment should be a high percentage of that amount, and especially high if the total amount of the client’s investment is not a very large amount.
 
  • Number of employees: There is no exact number of employees that the investment enterprise must have. However, a significant number of employees, especially U.S. employees, can be helpful in meeting a third legal requirement – – the marginality requirement. While we prefer a business that has W-2 employees, a business that employs a significant number of independent contractors may also qualify.
 
  • Develop and direct requirement: The investor must “develop and direct” the business. If the investor will not be the day-to-day manager of the business, we review the management contracts to make certain that the investor will be in a position to confer with, advise and oversee the day-to-day manager. If the investor does not speak English, our analysis includes provisions made for the investor to communicate with the day-to-day manager.
 
  • Management of the business: If the investor does not intend to actively manage the business, we need to analyze whether the business provides a manager or a management company. For example, with franchise businesses, some franchisors do – – and some don’t – – provide management services for the franchisee’s business.
 
  • Viability/Profitability of the business: While we do not hold ourselves out as financial or business analysts, where possible we work together with financial and business professionals to ascertain the likely viability and profitability of the business. This will be discussed in detail in the E-2 business plan. Since the investor’s E-2 status is dependent on the continuation of the business, a business that fails during the term of the E-2 visa can place the investor’s legal status in the U.S. in jeopardy. In addition, many of our clients are hoping to extend their E-2 visa following the expiration of the initial 5-year visa issuance. The continuing profitability and viability of the business is critical for that purpose.
 
  • Nationality requirement: A separate legal requirement is that the investor own at least 50% of the business of which he invests (unless other nationals of his country own at least 50%).
 
  • Real, operating commercial enterprise: Although we believe that the E-2 visa does not require that the business actually be operating when the investor obtains his E-2 visa, there are a minority of U.S. consulates that impose this requirement. Therefore, in our analysis of the E-2 business, we prefer a business that can have operations commence in advance of the investor obtaining the E-2 visa.
 
  • Refund to investor: Related to the previous issue, we prefer there is some mechanism for the investor to recoup most of the investment if the E-2 visa is not issued. This analysis must take into account the irrevocable nature of the investor’s investment once the E-2 visa is issued.
​
Although the concept of third country citizenship combined with E-2 visa applications is relatively new, preparing E-2 applications for citizens of treaty countries is not at all new for our firm. We have successfully handled thousands of E-2 applications over many years, and the criteria listed about are the product of that experience.

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New York State Bar Association v Avvo: Will the Uberization of Immigration Law Practice Overcome Outdated Advertising Rules Governing Lawyers

12/11/2017

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By: Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

​Companies like Avvo are using their marketing platform to provide more opportunities for younger and solo lawyers to gain clients and thus level the playing field.  Avvo Legal Services seeks to disrupt the traditional legal model where a client seeks out a lawyer based on his or her reputation rather than on a web-based network, and the lawyer sets the fee. One of the immigration services Avvo offers is a “family based green card” for $2995 that involves preparing and filing the requisite forms, but no representation at an adjustment of status interview or to respond to a Request for Evidence.  The consumer pays $2995 to Avvo directly, but may choose the attorney in the Avvo network that they want to work with. That attorney has 24 hours to directly contact the consumer/client, and do the work as they would any other client. When the work is completed, Avvo releases the funds to the attorney, and in a separate transaction withdraws from the attorney’s account a $400 marketing fee.

Under this unique business model, which I have termed as the Uberization of immigration practice in a prior blog,  the immigration attorney is contracting with Avvo as a vendor to gain clients and business through its superior marketing reach. Avvo views this new service as benefitting both lawyers and clients. The lawyer will rely on Avvo to get business and also get paid easily, without keeping track of billable hours or worrying about trust accounts. It would also help lawyers build their practices as it would lead to further work by the same client, according to Avvo.  The client is also benefitted as s/he will get access to a legal service that is both affordable and fixed, and will also understand exactly what legal service is being purchased. Avvo Legal Service should be distinguished from the “Avvo rating” a lawyer may receive, which is ethically permissible.

The question is whether paying the marketing fee to Avvo is ethically impermissible when an attorney receives a matter through the Avvo legal services platform.  The New York State Bar Association issued Ethics Opinion 1132 holding that a lawyer may not pay the current marketing fee to participate in Avvo Legal Services because the fee includes an improper payment for a recommendation in violation of New York Rule 7.2(a). Under 7.2(a), “a lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client…” At issue for the NYSBA Committee on Professional Ethics was whether the lawyer is paying the fee to obtain marketing and advertising services from Avvo or whether it was giving Avvo something of value to recommend the lawyer to clients. The former scenario would not be a violation of Rule 7.2(a) while the latter would be. The NYSBA, in concluding that paying a marketing fee violated Rule 7.2(a),  analyzed Avvo’s business model in great detail. Avvo gives each lawyer a rating from a scale of 1 to 10. While Avvo never describes a rating as a recommendation, the NYSBA opined that the Avvo website extols the benefits of being able to work with highly-rated lawyers.  While a lawyer is not precluded from advertising bona fide professional ratings generated by third parties in advertisements, Avvo is not a third party, according to the NYSBA,  as it benefits financially if potential clients hire the lawyers rated by Avvo. The NYSBA’s conclusion was bolstered by Avvo’s satisfaction guarantee by which the client is guaranteed a refund of the full amount, even Avvo’s marketing fee, if the client is not satisfied. “This guarantee contributes to the impression that Avvo is ‘recommending’ the lawyers on its service because it stands behind them to the extent of refunding payment if the client is not satisfied,” according to the NYSBA.

While the NYSBA dwelt a lot on what constitutes a recommendation under Rule 7.2(a), it skirted discussing whether the Avvo service would in reality compromise the attorney’s ability to competently represent the client. That analysis is more relevant than whether there was a violation of an archaic advertising rule.  There is a growing recognition that the advertising rules governing lawyers are outdated and need an update in light of the use of social media by attorneys to both market and communicate with clients. Many immigration lawyers, firms, and non-profits providing legal services to indigent clients rely on social media such as LinkedIn, Twitter and Facebook. They use social media not just for advertising but also as part of advocacy efforts to raise awareness on immigration issues. If any message disseminated on social media constitutes an attorney advertisement, it triggers additional requirements that may be impossible to comply with in a social media post. Reform of the advertising rules should focus primarily on lawyer communications that are false or misleading. All other requirements in an advertisement such as requiring the words “Attorney Advertising” and requiring the name, principal law office address and telephone number of the law firm are outdated in an era dominated by tweets.

Rather than focus on the advertising rules that are outdated, including splitting hairs on what constituted a recommendation under Rule 7.2(a), the NYSBA could have opined on other aspects of the Avvo service that limits both the competence and independence of the attorney.

The NYSBA highlighted three salient issues, which it said it was not deciding on:
  • The fact that Avvo sets the amount of the legal fee for each service raises questions about whether a participating lawyer can deliver competent legal services for Avvo’s chosen price and whether a lawyer is allowing Avvo to interfere in the lawyer’s independent professional judgment regarding how much time to spend on a matter.
  • The marketing fee raises questions about whether lawyers who participate in Avvo Legal Services are improperly sharing legal fees with a nonlawyer.
  • Avvo’s satisfaction guarantee raises questions about confidentiality. If clients call Avvo to complain, does the “documentation” that Avvo asks for or receives include “confidential information” within the meaning of Rule 1.6(a)?  How does Avvo avoid receiving confidential information when evaluating whether to refund the legal fee a client has paid through Avvo?
Even if we leave alone the concerns of fee splitting with a non-lawyer, a “family -based green card” is not like ordering a ride through Uber, where you know that any driver in a functioning vehicle and GPS, will take you to your destination.  But unlike an Uber car ride, there are many traps and pitfalls in family -based immigration practice, even when it appears relatively straight forward. One’s eligibility for adjustment of status based on a marriage to a US citizen spouse is also subject to variables. If the client’s arrival in the US was not through a straight forward inspection at a port of entry, then the case immediately becomes more complex. If the client is potentially inadmissible for a host of reasons, including claiming to be a US citizen when seeking employment many years ago, that too would throw the Avvo $2,995 family based green card package out of the window. The client will disappointingly realize that the Avvo family green card package and price is virtually meaningless, and would rather seek out an attorney who has the reputation and expertise to handle difficult family -based immigration cases. There are other variations even if the client appears prima facie eligible to adjust status. For example, the marriage may have been bona fide at its inception, but the spouses are quarreling and living separately, and still desire to cooperate on the green card for the sake of the children. This too requires the agile immigration attorney to appropriately advocate for the client by educating and allaying the suspicion of malevolent intent by a USCIS examiner that the marriage presently under consideration not be viable so long as it was bona fide at its inception. See Matter of Boromand, 17 I&N Dec. 450 (BIA 1980); Matter of McKee, 17 I&N Dec. 332 (BIA 1980).

There are other problematic aspects of immigration legal services provided by Avvo.  It offers a 15-minute immigration advice session for $39. After 15 minutes, the telephone line gets cut off. It is difficult to provide a comprehensive consultation on an immigration law issue in 15 minutes. While the client may have the option of following up with the attorney, the very fact that Avvo suggests that a 15-minute consultation can satisfy the client’s need in a complex area of the law may be misleading. Avvo also provides a service where an attorney will review immigration applications that the client has prepared pro se, but that is fraught with dangers and pitfalls as referenced in the marriage example preceding. 8 CFR 1003.102(t) provides for sanction of an immigration practitioner who fails to submit a Notice of Entry of Appearance as Attorney or Representative who has engaged in practice or preparation. Under the terms of the Avvo arrangement, since the client will be filing pro se after the attorney reviews it, the attorney will not be able to submit a Notice of Appearance if the attorney’s review of the form is considered to be “practice or preparation.” Presumably Avvo, as an intermediary in connecting a potential client to a lawyer and as a non -legal entity, would not be entering a Notice of Appearance.

The NYSBA opinion has been issued by a voluntary organization and is non-binding. To the best of this author’s knowledge, no New York lawyers have been disciplined because they paid a marketing fee to Avvo. Other state bars have also issued opinions,  here, here and here,  that raise concerns about fee splitting. Fee splitting is a concern if it undermines the independence of the lawyer. Avvo says it does not as it is made totally transparent to the consumer of legal services and could be a violation of the First Amendment. The key issue is that a client who uses Avvo Legal Services should be made completely aware of the scope of the services and its variation, which at least in the immigration context, may not be the case. Perhaps, one way to alleviate the concern of a bar association’s professional ethics committee is to make sure that the lawyer and prospective client have a phone call first to discuss the scope of the matter before the client purchases the service on the Avvo platform. If the issues presented by the prospective client are more complex than advertised, then Avvo should provide the ability for the lawyer to modify the fees based on the new scope of representation. As Avvo has pointed out, the NYSBA opinion “actively discourages lawyers from using technology to reach out to clients who see an increasing gap between them and meaningful access to the legal system.”     This may be true, but the consumer must also be made aware whether his or her case fits the service that Avvo markets on behalf of the law. A lawyer may undertake limited representation and unbundle legal services, which Avvo facilitates, but the limitation must be reasonable under the circumstances pursuant to New York Rule 1.2(c). Thus, the 15-minute consultation should probably be extended to at least 30 minutes or even longer. Perhaps, the service promoted by Avvo of reviewing a pro se client’s naturalization or I-130 petition should be halted unless some understanding is reached by the disciplinary counsel in the Department of Homeland Security and the Executive Office for Immigration Review regarding the scope of 8 CFR 1003.102(t).

NYSBA Formal Opinion 1132 against Avvo will not be the last word. The professional ethics committee of the NYSBA too acknowledges that the “lawyers and clients who are using Avvo Legal Services suggest that the company fills a need that more traditional methods of marketing and providing legal services are not meeting” and “[f]uture changes to Avvo’s mode of operations – or future changes to the Rules of Professional Conduct – could lead us to alter our conclusion.” For now, at least, lawyers who choose to pay a marketing fee to Avvo after they connect with a client through its platform do so at their own peril. Avvo, though, has promised to defend these lawyers if disciplinary action is taken against them.
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How to Avoid Immigration Scams

12/6/2017

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​By: Charles Kuck, Past ABIL President
Musings on Immigration Blog

There are many immigrants the U.S. who are seeking legal advice and guidance from reputable sources regarding various immigration matters. The trouble is, while there are plenty of them available, including Kuck Immigration Partners in Atlanta, there are also scammers out there looking to take your money and provide you with assistance that doesn’t actually benefit you. Whether you are looking to obtain permanent residency or want help with applying for an employment-based visa, be sure the person you are seeking help and assistance from is qualified to provide it you.​

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Sadly, there are many individuals out there who claim they work for a legitimate law firm or non-profit that can help you, but in actuality, they are looking to take advantage of you.

How can I avoid getting caught up in an immigration scam?
  1. Don’t accept help from someone who can promise you the world. What we mean by this is if someone is making promises to you that seem farfetched or too good to be true, there is a good chance they are. Many immigration matters such as filing an application for a green card or submitting a petition for a family-based visa involve lengthy processes that take time and money. Rather than risk giving someone hundreds of dollars and losing out on your opportunity to obtain the documentation you are seeking, come speak with a licensed attorney who specializes in only immigration law, like the lawyers at our firm.
  2. Use the internet and “Google” to search for the lawyer’s name. If you cannot find it right away, or the attorney does not have an actual website, then find someone else to help.  Using rating services like Avvo.com, Google reviews, and Facebook Reviews, can help you get qualified and experienced immigration assistance.
  3. If you receive an email stating you were selected in the Diversity Immigrant Visa Program, it is a scam. U.S. Customs and Immigration Services (USCIS) will never send correspondence about being selected for this through email.

According to Time, “more than 11 million people applied for the annual U.S. visa lottery” in 2014 alone which indicates there are plenty of individuals who are looking to obtain their visa or green card so they can live and work here in the U.S. legally. The fact is, scammers are aware of this which is why they prey upon vulnerable individuals who are desperate for help or simply want assistance with the process but aren’t aware of how to file the paperwork on their own.
​
  1. Always check to ensure that the correspondence you are receiving through email is from uscis.gov or is affiliated with uscis.gov. Be sure the web address ends with .gov. If you are asked to pay to download USCIS forms, it is a scam. USCIC will never ask to you to pay to download forms as they are always free to retrieve.
  2. If you get a phone call purporting to be from “immigration,” USCIS, ICE or even the IRS or Social Security, asking for money, or threatening you with legal action or deportation if you do not comply with their request quickly, call a qualified immigration lawyer first. Generally speaking, NO government agency asks for money, and 99.9% of these calls are scams.
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