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Regulations v. Legislation – On the Brink of EB-5 Reform

4/9/2018

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


​Chinese Translation: 行政新规和立法改革 – EB-5 变革在即
Vietnamese Translation: Quy định và Pháp luật – Trên đường cải cách EB-5
Korean Translation: 이민규정 vs. 개정법안 – 눈 앞에 닥친 EB-5 투자이민법 개정


Recent tweets from U.S. Citizenship and Immigration Services (“USCIS”) indicate that administrative changes to the EB-5 Program are a priority in Fiscal Year 2018.  It now appears almost certain the proposed regulations from over one year ago will be finalized very soon.

EB-5 visas are intended to provide lawful permanent residence to foreign nationals who promote economic growth in the United States. We are working to reform and modernize the program and have proposed a rule to better reflect Congressional intent. https://t.co/NDUvSlAuVe

— USCIS (@USCIS) March 23, 2018

Our proposed rule would amend how targeted employment areas are designated to ensure that the reduced investment threshold is reserved for areas intended by Congress. https://t.co/NDUvSlAuVe

— USCIS (@USCIS) March 23, 2018

Our proposed EB-5 rule would increase investment levels and end gerrymandering. The changes would help true high unemployment and rural areas. https://t.co/NDUvSlAuVe

— USCIS (@USCIS) March 23, 2018
​The new USCIS Director Lee Francis Cissna (who previously was detailed to Senator Chuck Grassley’s staff on the Senate Judiciary Committee), has made it clear he wants new EB-5 regulations soon. Senator Grassley (R-IA) has attempted to reform the EB-5 Program with legislative changes, without success.  Last month, after legislative proposals to reform the EB-5 Program failed to reach consensus, Senator Grassley expressed his frustration at the “moneyed interests” proposals that blocked his reforms.

WAKE UP HOUSE&SENATE LEADER don’t extend EB5 in Omni Goodlatte and I worked compromise BUT Manhattan real estate moguls reject/ So r u yr after yr going to melt in front of these moneyed interests??

— ChuckGrassley (@ChuckGrassley) March 16, 2018
Last week, Senator Grassley sent a letter to the U.S. Department of Homeland Security (“DHS”) leadership, urging DHS to implement the regulations “without further delay.” Senator Grassley wrote:
​We are writing to urge your Department to take immediate steps to finalize proposed regulations published in the Federal Register on January 13, 2017, entitled “EB-5 Immigrant Investor Program Modernization.”1 As the Chairmen and a former Chairman of the committees with jurisdiction over the fifth preference employment-based immigrant visa program (the “EB-5 program”), we believe these regulations advance the national interest and should be implemented without further delay.
​
EB-5 reform will now almost certainly come by regulations (Regs), not legislation (Legs).  This distinction is critical, as regulatory reforms may cause some adversely affected parties to litigate against the regulations and seek judicial review under the Administrative Procedures Act.
​
The following are three important EB-5 reforms included in the “EB-5 Immigrant Investor Program Modernization” proposal:
1.  Increased Minimum Investment Amount.  DHS proposes to increase the minimum investment amount from $500,000 to $1.35 million for investments in a Targeted Employment Area (“TEA”) or from $1M to $1.8M for investments not located in a TEA.  In addition, DHS is proposing to make regular Consumer Price Index-based adjustments in the minimum investment amount every 5 years.

Our Take: We believe an increase in the minimum investment level may be inevitable after 28 years with no change, however we are hopeful that DHS will not raise the amount this much suddenly as it may stifle the program. We need gradual staged price increases to give the market time to adapt.  On the other hand, an increase in the minimum investment amount may help shorten the waiting line for those already stuck, mainly Chinese investors. This will reduce the waiting line by ensuring unused visa can continue to be used by China. Rumor is the final amount will be something more moderate than that proposed.


2.  TEA Reforms. DHS proposes to eliminate state and local designation of high unemployment areas and to prevent TEA “gerrymandering” by only looking to the actual census tract or “directly adjacent” census tracts in which the new commercial enterprise is principally doing business.

Our Take: This proposal could dramatically shift where EB-5 capital will be used, as investors would likely prefer to pay less for the same immigration benefit, and the reforms will limit TEA designations.  We expect APA lawsuits on this proposal, although it does appear that 8 U.S.C. § 1153(b)(5) provides significant authority to DHS, through the U.S. Attorney General, to prescribe regulations in this regard.

3.  Priority Date Retention. DHS proposes to allow an EB-5 immigrant petitioner to use the priority date of an approved EB-5 immigrant petition for a subsequently filed EB-5 immigrant petition for which the petitioner qualifies.

Our Take: This is particularly important for applicants mainly from China who are waiting in the lengthy visa waiting line, as it provides some relief to those who may become ineligible for an EB-5 visa through circumstances beyond their control (e.g., the termination of a regional center or an underperforming or failing investment project). In the past manty could simply refile but now they must wait years for their EB-5 visa priority date to become current. Sadly, this does not appear to go far enough to protect derivative child beneficiaries, who could “age out” because of the long waiting times, but we can be hopeful. Chinese and Vietnamese applicants who may age-out should consider filing as principal applicants.

​Hopefully, Congress will overcome its dysfunctional bi-partisanship and fix the EB-5 program that has generated at least $20 billion in investment in the last 3-4 years. Since EB-5 is often about 1/3 of the capital; stack, it is estimated that over $50 billion worth of projects have got off the ground because of EB-5. This has created thousands of jobs and continues to be a viable avenue for high net worth immigrants, that massively benefits job creation and the U.S. economy.
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An Era of Exclusion: Ongoing US Immigration Policy Changes Under the Trump Administration

4/6/2018

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By: Bernard P. Wolfsdorf, ABIL Lawyer; Joseph Barnett, Partner; Matthew Beatus and Robert Blanco, Senior Associates
​Wolfsdorf Immigration Blog

Note: This article was originally published by Who’s Who Legal

In 2017, the Trump administration assumed control over the White House with an explicit immigration agenda that included building a border wall and passing laws aimed at limiting lawful immigration. The policy agenda was quickly put into action when the president issued numerous executive orders during his first month in office that put immigration at the centre of his presidency. Trump has continued to back restrictionist immigration legislation throughout his first year in office. Although no formal legislation has been signed into law as of the writing of this article, the president has successfully instilled restrictionist cultures at the various federal agencies in charge of US immigration through his executive power, signalling that his anti-immigrant position appears to be more than empty rhetoric. Immigrants, individual states, and pro-immigration advocates have been forced to turn to the judicial branch to seek relief.

The Trump immigration agenda in 2017 initially focused on attacking the weakest, most vulnerable immigrant populations. The initial travel bans of early 2017 predominantly impacted refugees and asylum-seekers from unstable and repressive Muslim countries. Later in the year, President Trump ordered an end to the Obama-era Deferred Action for Childhood Arrivals (DACA) programme that protected undocumented immigrants who arrived in the US as children. As of the writing of this article, a federal district court judge has issued an injunction to the end of the DACA programme pending the result of a lawsuit that seeks to keep the programme alive. The Trump administration attempted to end DACA in spite of the fact that a majority of Trump supporters actually favoured the continued existence of the DACA programme. The Trump administration has also eliminated the Temporary Protected Status (TPS) programmes for vulnerable groups of individuals from Haiti, Nicaragua and, most recently, El Salvador; the administration also sought to eliminate TPS status for Hondurans as well, but then acting DHS secretary Elaine Duke extended the Honduran programme to 5 July 2018. Moreover, in an effort to further to coerce so-called “sanctuary cities” into complying with his draconian immigration agenda, President Trump threatened major metropoles with the cessation of federal funding unless they agree to actively cooperate with US Immigration and Customs Enforcement (ICE) officials in the detention and removal of undocumented individuals. Although the Trump administration promised increased federal funding as a reward for compliance, cities that have complied have yet to receive promised funds. Generally speaking, the Trump administration has sought to bring carnage to lives of the most vulnerable immigrants in our country – those who have sought refuge in a country that was founded on its ethos of welcoming the tired, poor, and huddled masses yearning to breathe free.

The Trump administration has also devastated employment-based immigration, although through less explicit means. In February 2017, President Trump criticised the US’s current employment-based immigration system and suggested that it attracted and retained only “lower skilled immigration”. The solution, claimed Trump, was to transition the US to a “merit-based” immigration system that would attract and retain only the best and brightest foreign talent to the US. While the characterisation of the current US system as one that favours lower skilled immigration is inherently false – a vast majority of visa and green card categories that currently exist are for individuals that would necessarily be classified as high-skilled, specialised and/or professional workers – one cannot disagree that seeking to attract the best and the brightest talent is a worthy goal. President Trump’s corporate immigration policies claim to protect US jobs, with the simplistic assumption that any job given to a foreign worker could and should have gone to a US citizen. However, this ignores the realities of corporate immigration. If US workers were so readily available for these positions, employers would not bother with the added expense, uncertainty and lengthy processing time to petition foreign employees for work authorisation. In fact, the actions of the Trump administration have actually worked to consistently undermine the ability of US employers to attract and retain the best and brightest talent.

President Trump’s Buy American and Hire American Executive Order directed relevant federal agencies to “rigorously enforce and administer the laws governing entry into the United States of workers from abroad”; to “propose new rules and issue new guidance … to protect the interests of United States workers in the administration of our immigration system”; and to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries,” among other items. Although new legislation has not been enacted to date, the “rigorous enforcement” of immigration laws and the “proposed new rules and new guidance” from relevant federal agencies has created an atmosphere of extreme uncertainty for US employers and foreign national professionals alike. Immigration law practitioners quickly understood that the “rigorous enforcement” of immigration laws actually meant that government agencies would actively seek to delay, deny, and otherwise obfuscate immigration applications. From early 2017, Requests for Evidence (RFEs) have been issued by US Citizenship and Immigration Services (USCIS) with increasing regularity – and this assertion is based on more than simply anecdotal evidence. The issuance of RFEs for H-1B visa petitions filed during the most recent filing period grew by 44 per cent compared to last year, and H-1B denials have increased approximately 10 per cent since last year (as of November 2017, with approximately 80,000 petitions still pending). Moreover, these RFEs and denials have often included incorrect or improper interpretations and applications of US immigration laws, and/or ignore or mischaracterise evidence submitted in immigration filings. Previously unthinkable delays, complications, and denials transcend petition adjudication with USCIS. Even after USCIS has approved an immigration petition, US Embassies and Consulates abroad have found ways to challenge and deny visa issuance required for foreign nationals to travel to the US to take up their offered employment positions. While a culture of “no” was pervasive among immigration adjudicators after 9/11, the Trump administration has fostered a culture of “got you”. In other words, we now see that immigration officers are finding ways not only to say “no”, but also to close the door on legitimate immigration cases using technicalities and broad deferential, non-reviewable authority. Collectively, the culture and actions of the federal agencies charged with executing US immigration laws have created an atmosphere of fear and uncertainty for US employers and foreign nationals alike.

Unfortunately, the Trump-era immigration policy has been marked by unpredictability and exclusion. In the EB-5 investment immigration arena, President Trump’s involvement complicates a programme that already has plenty of uncertainty. A broad overhaul of the programme, including an increase in the minimum investment amount, new government oversight authority and new definitions of targeted investment areas has yet to occur, despite two years of proposed legislation and government regulations. Instead, the programme has been extended in short-term increments without change, often at the eleventh hour. Although President Trump has refrained from commenting on EB-5, his son-in-law Jared Kushner is an active participant in the programme, using EB-5 foreign capital for his real estate development projects. These events loom over an existing programme subject to the same inconsistent and restrictive adjudications seen throughout the immigration service. The uncertainty of the future of the EB-5 programme is particularly troubling, as it is a vehicle for billions of dollars of investment into the US, that also includes the creation of countless employment positions for US workers.

In the end, rather than protect US workers, the recently enacted policies have marred the reliability of the US as a sound investment and business climate. Indeed, if US employers cannot have a modicum of certainty when it comes to their ability to retain the world’s best and brightest talent, it will only be a matter of time before they relocate to a country that can offer the sort of reliability that business depends upon. If these restrictive policies remain, it could have extremely serious long-term implications for the future of the US economy. A recent study has shown that the enrolment of new foreign students declined an average of 7 per cent this past year. Foreign student enrolment is a major contributor to the US economy, directly generating US$39 billion in revenues per year – this is not to mention the indirect revenues generated by the millions of foreign students in the US who are also active consumers. Yet in addition to the loss of direct revenue from the loss of foreign students, another, more troubling concern arises: without this revenue, many US universities are being forced to cut programmes, and lose professors and instructors who are seeking to benefit American students and therefore improve the US workforce for years to come. If such programmes and resources continue to be cut from our universities, it is unclear how US workers can be developed and protected in the long term. This single example should serve as an important reminder that a diminished, restrictive immigration policy can have far-reaching impacts that can ultimately undermine the policy’s stated protectionist goal.

Still, as new legislation has yet to be passed and enacted into law, there is hope that US immigration policy can potentially be repaired and improved. In summer 2017, President Trump ultimately came out in support of the Reforming American Immigration for Strong Enforcement Act (the RAISE Act), which, if enacted, would reduce the number of worldwide family-sponsored immigrants to a maximum of 88,000 for each fiscal year. The RAISE Act would also: eliminate preferences for the extended and adult family members of US residents, including adult parents of US citizens, adult siblings of US citizens; reduce the number of refugees accepted by half per year; and completely eliminate the Diversity Visa Lottery (which allocates green cards to applicants based upon metrics related to country of origin). Nevertheless, the bill has not received the widespread support needed to be voted into law.

Until new legislation is enacted, the government’s restrictive and contrarian immigration policy can still be challenged and overcome through persistent and effective legal counsel. Immigration lawyers throughout the US regularly share information on developing adjudication trends, as well as solutions to the new challenges as they become apparent. We are bringing legal challenges to decisions that are made without proper bases in law and fact. Perhaps most importantly, we are actively advocating against restrictive laws and policies that will cripple our immigration system, as well as the American economy.

                                                                             ***
A year ago we published an article that concluded with a prediction that increased difficulties for corporate immigration matters were on the horizon. Unfortunately, this prediction has come to pass in many respects. Yet, it is our opinion that the US remains one of the best nations for business investment and operations, and that the current challenges to US immigration are a temporary aberration – not the new normal. How long this temporary aberration will last cannot be known with certainty, but the progress of legislative reform over the next year, as well as the upcoming 2018 mid-term elections, should provide clearer indications.


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EB-5 Program to Be Extended to September 30, 2018 – Regulations to Increase Investment Amount Likely Meanwhile USCIS Approves Minors as Principal EB-5 Investors

3/20/2018

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By: Wolfsdorf Rosenthal LLP, Law Firm of Bernard P. Wolfsdorf, ABIL Lawyer
​Wolfsdorf Rosenthal Immigration Blog

​Invest in the USA (“IIUSA), the national EB-5 Regional Center trade organization, announced today that the EB-5 Immigrant Investor Visa and Regional Center Program Comprehensive Reform Act (the “EB-5 Reform Act”) will not be included in the omnibus appropriations legislation this week. The legislation does however, include an extension of the current EB-5 Regional Center Program through September 30, 2018 with no changes in the minimum investment amount.

Wolfsdorf Rosenthal LLP is a strong proponent for reform and predictability to the EB-5 Regional Center Program, but only if it provides a fair deal to current EB-5 investors who are waiting their turn to immigrate. We also support future reform attempts which include meaningful provisions to increase the number of immigrant visas to EB-5 investors and reduce the backlog for Chinese and Vietnamese investors (and possibly in the future, for Indian and South Korean investors too) who are presently subject to the 7% per country allocation of only 696 visas per year, or 58 visas per month limitation for each country.

In our prior blog making predictions about the EB-5 program we stated: “Most likely we will get another short Continuing Resolution extension, followed by regulations designed to reform the program, or new legislation, or possibly even both.”

This appears to be accurate with a likely extension to September 30, 2018, and likely regulations in the next few months with a chance of legislation also.

The good news from USCIS that affects applicants for EB-5 from China, Vietnam and possibly other countries that may be backlogged in the next 1-2 years is there appears to be an option for relief to parents with children who would “age out” as derivative beneficiaries.

The USCIS has begun to approve the Form I-526 petitions of principal applicants who were minors at the time of signing the relevant EB-5 investment agreements. These cases have to be structured in a way to ensure they conform to USCIS guidelines for minors.

Here are four things to know about this important update.
1.  Significance of Approvals for Chinese Investors. By allowing Chinese minors to be the principal EB-5 applicant, the USCIS has opened the door for more opportunities to invest in U.S. companies and create jobs for qualifying U.S. workers through the EB-5 Program. The significance of these Form I-526 approvals cannot be understated. The USCIS Ombudsman estimated in its 2017 Annual Report that an EB-5 investor from China may need to wait 10 years to obtain a visa to enter the U.S. after making the investment in a U.S. company, though reform to the EB-5 Program can modify this. For many Chinese nationals, the purpose of EB-5 investment is to provide their children with educational opportunities in the U.S. that are not available in China. While we are hopeful Congress may fix this, the long EB-5 visa backlog could prevent some derivative children from obtaining an immigrant visa. This is because a derivative child must obtain a green card before turning 21 years of age. There is likelihood that many of these children will “age-out” and will not be issued green cards. The Child Status Protection Act (“CSPA”) only allows a derivative child to subtract the time the immigrant visa petition (Form I-526) was pending from his or her age, but this cannot be done until a visa is available based on the Filing Date. Wolfsdorf Rosenthal has now had approvals for people age 15 at the time of filing but the legal theory for this success applies equally to children even younger at the time of filing. USCIS’ approval of these cases will increase demand for EB-5 investments in China where the minor is filing as the principal applicant.

2.  What does USCIS Question? USCIS is questioning whether a minor may file as the principal EB-5 applicant, as opposed to being listed as a derivative beneficiary on a parent’s application. USCIS has previously confirmed that there is no minimum age requirement in the EB-5 regulations and that a minor principal applicant can sign the Form I-526 without a parent’s or guardian’s signature required[1]. USCIS has publicly stated that a minor must show adequate legal capacity to enter into contracts such that the investment contract is irrevocable and thus a “committed investment” within the meaning of regulations. USCIS has issued Requests for Evidence (“RFEs”) to minor petitioners, questioning whether the minor’s age renders the contract unenforceable (and thus, the capital not “at risk”) due to the availability of a “guaranteed return.” USCIS’ wants to make sure the minor cannot repudiate the investment and avoid liability under the relevant EB-5 investment agreements. The RFEs invite minors to submit additional evidence to persuasively argue compliance under their facts and under the applicable law.

3.  Uniform Transfer to Minors Act. USCIS has approved Form I-526 petitions in which a minor’s parent, acting as a custodian for the minor under a state’s Uniform Transfers to Minors Act (“UTMA”), transfers funds to the new commercial enterprise and signs the relevant EB-5 investment agreements on behalf of the minor. The custodial relationship between the parent and minor is created when the parent signs the subscription agreement and other relevant investment agreements using a form mandated by the state UTMA, which for a security is designated as “_________ (name of parent) as custodian for _________________ (name of minor) under the _____________ (name of state) Uniform Transfers to Minors” During the period of custodianship, the parent acts as a fiduciary for, and has control over, the investment in the new commercial enterprise, but the actual title in (ownership of) the investment is irrevocably vested in the minor. By using the correct UTMA language when signing the applicable investment contracts, the parent creates a binding, non-voidable commitment to investment on behalf of the minor that is enforceable under applicable state laws of the United States.

4.  Minors Traveling to or Living in the United States Without Their Parents. Despite the like waiting line for China-born EB-5 applicants, USCIS may still have concerns with minor EB-5 investors travelling alone to live in the United States without their parents. The minors will likely be over 18 by the time they are lawful permanent residents but in the interim, the waiting line issue could be resolved sooner resulting in the child principal becoming eligible eve earlier. The U.S. Customs and Border Protection (“CBP”) generally requires notarized written consent letter from both the minor’s parents. The parents may also appoint a U.S. resident or citizen as legal guardian for the minor when he/she receives the permanent residence.

​USCIS’ acceptance that a minor may file as the principal EB-5 applicant is a huge relief to current and future investors. It is important that sound legal arguments responding to RFEs specific questions are used. Obtaining independent legal opinions from respected U.S. and Chinese contract and securities attorneys are essential in convincing USCIS of the legal basis behind contractual capacity, formation, and enforceability.
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10 Things to Know About the New EB-5 Reform Act

3/13/2018

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By: Wolfsdorf Rosenthal LLP, Law Firm of Bernard P. Wolfsdorf, ABIL Lawyer
​Wolfsdorf Immigration Blog

On March 8, 2018, a draft of the EB-5 Immigrant Investor Visa and Regional Center Program Comprehensive Reform Act (the “EB-5 Reform Act”) was released.  This new proposal is similar to earlier congressional reform attempts but also includes new provisions that would dramatically affect the EB-5 industry – both in the short-term and long-term.  If passed, the Act would authorize the EB-5 Regional Center Program – currently set to expire on May 23, 2018 – until September 30, 2023.  This longer-term extension is welcome news, as it would provide the certainty that the EB-5 industry has lacked during the past few years.
As of the publication of this blog, it does not appear that the EB-5 Reform Act has been formally introduced into Congress for debate or discussion.  Nevertheless, it’s possible that the legislation will be attached to the Omnibus bill that would fund the federal government through the remainder of the fiscal year, which is expected to be released this week.  It’s likely that if the EB-5 Reform Act is not passed in the next couple weeks, any legislative reform to the EB-5 Program before September 30, 2018 is unlikely. In summary, this may be the last chance for this year, as mid-term elections will undoubtedly freeze further action for the year.
​
Here are ten things to know about the EB-5 Reform Act.
1.  Increased Minimum Investment Levels. The EB-5 Reform Act would increase the minimum investment amount from $500,000/$1,000,000 to $925,000/$1,025,000, depending on the type and location of the immigrant investor’s capital investment project.   The lower investment threshold is applicable primarily to capital investment projects located in rural or priority urban investment areas, or within a closed military installation; or through a small business investment fund.  The qualifying investment amount would be adjusted every three years.  Additionally, the EB-5 Reform Bill provides that USCIS may prescribe regulations to increase the qualifying capital investment amount.

2.  Reserved and Unused Visas. Also known as “set asides,” the EB-5 Reform Act provides that a portion of the annual number of EB-5 visas be reserved for immigrant investors who invest in rural areas (1,450), priority urban investment areas (1,450), or in infrastructure projects (200).  Any of these visas which go unused in each year would be available for immigrant investors who invest in these types of projects in subsequent years.

3.  Job Creation. The EB-5 Program is a job creation program with a U.S. immigration benefit.  The EB-5 Reform Act increases the job creation requirement to 12 U.S. employees.  However, it reduces the job creation requirement to only 9 U.S. employees for capital investment projects located in rural or priority urban investment areas, or in a BRAC; or a small business investment fund.  

Because of these three significant changes, and the potential for children to “age out” because of limited EB-5 visa availability, we expect many Regional Centers may seek projects which meet these criteria. However, anecdotal evidence is that many existing projects will qualify for the set-asides so the 4 benefit will largely be used up very quickly.

4.  More Stringent Source of Funds Requirements. Investors include needing to document the lawful source of the investment as well as for administrative costs and fees. It is now also specified in the definition of “capital” unsecured promissory notes or promissory notes secured by foreign property cannot be used as EB-5 capital. It is not clear whether this excludes mortgage loans obtained by foreign investors using their foreign properties as collateral.

5.  Moratorium on Filings and the Transition Period. Starting on the date of enactment, and continuing for 120 days thereafter, USCIS would not be authorized to accept or any new Form I-526 or Form I-924 application.  During this time, USCIS would continue to adjudicate pending applications, and would work to revise and update its forms and systems to be able to implement each provision of the EB-5 Reform Act.  Once the moratorium is lifted, there are separate rules for a “transition period” that begins on 121 days after the date of enactment until 365 days thereafter. Only petitions representing 7,000 foreign nationals (principal investor and their family members) will be accepted during the transition period and these petitions can be based on a minimum investment amount of $925,000. Petitions that are not accepted during the transition period after the 7,000-visa limit has been reached will be required to pay the investment amount depending on the type and location of the immigrant investor’s capital investment project.

6.  Exemplar Requirement. A Regional Center will be required to file a Form I-924 for each capital investment project through a new commercial enterprise, which must include any conflicts of interest which exist or may arise among the Regional Center, the new commercial enterprise, the job creating entity, and any principals/attorneys thereof; and any fees, ongoing interest, or other compensation to be paid to agents, finders, or broker dealers involved in the offering of capital investment project, along with each such persons name and contact information.

7.  Not Enough Relief for Potential “Age Out” Children. The EB-5 Reform Act provides that one child of a principal investor who has obtained conditional lawful permanent residency, and whose conditional lawful permanent residency is terminated may continue to be considered a derivative child of the principal alien, in the event a subsequent petition is filed within one year after such termination and if the child remains unmarried. Unfortunately, the EB-5 Reform Act provides no relief to immigrant investors with children who may “age out,” such as priority date retention for any subsequently filed Form I-526s. It does allow concurrent filing of I-485 Adjustment of Status applications if the visa number is current.

8.  Additional Fees; Premium Processing for Regional Centers. Under the EB-5 Reform Act, Regional Centers would be required to pay an annual fee of $20,000 into the “Employment Creation Visa Integrity, Fraud Prevention and Detection Fund,” though this amount is reduced to $10,000 for Regional Centers “with 20 or fewer total investors in the preceding fiscal year in its new commercial enterprises.” Regional Centers would also have the option to pay a premium processing fee of $5,000 for Form I-924 filings.  Additionally, USCIS would have the authority to increase the Form I-526 filing fee to comply with the requirement of placing $1,000 of the current Form I-526 filing fee into the Employment Creation Visa Integrity, Fraud Prevention and Detection Fund.

9.  Regional Center Integrity Measures. Like prior reform attempts, the EB-5 Reform Act places additional record-keeping, background checks, and due diligence requirements on Regional Centers.  Included in these requirements are new compliance measures for direct and third-party promoters, and for disclosures of conflict of interests paid to such promoters.  The proposed bill also continues to provide additional government oversight on Regional Center activities, such as audits and site visits.
​
10.  Limited Judicial Review. Throughout the EB-5 Reform Act, there are numerous times in which USCIS’ determinations are limited, or even not subject to judicial review. This is particularly worrying due to the prevalence of litigation against USCIS for “arbitrary and capricious” decision-making in the EB-5 context.
​While this bill is slightly better than the prior similar proposal, it does nothing to protect investors who have already committed capital to the program expecting to be able to immigrate within a reasonable time. The U.S. government’s change in the visa allocation places those investors from China and now Vietnam that is also backlogged, into a substantial disadvantage. These investors anticipated that approximately 10,000 visas were available at the time they invested, only to discover that the U.S. government has now retroactively cut the visa supply to favor a subset category. This is plainly bad policy and undermines the U.S. government’s credibility and the very basis for the program.
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New U.S. Immigration Public Charge Provisions – The Dawn of a New Era – "Do Not Give Me Your Tired, Your Poor ….”

2/16/2018

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By: Bernard P. Wolfsdorf, ABIL Lawyer and Senior Associate Robert J. Blanco
Wolfsdorf Immigration Blog


Under Section 212(a)(4) of the Immigration and Nationality Act (INA), as amended, an applicant is inadmissible if “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”  USCIS guidance from 2011 defined a public charge as someone likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.”

Under this narrow definition, many forms of public benefits would not render someone a public charge.  USCIS specifically stated that “non-cash benefits and special-purpose cash benefits not intended for income maintenance are not subject to public charge considerations” and proceeded to list fourteen different benefits not subject to a public charge consideration.

However, an immigration officer will now look at many factors and base this determination on the totality of circumstances.

Consistent with recent immigration restrictions and policy changes, it appears that USCIS intends to broaden its interpretation of public charge determinations.

The Department of Homeland Security recently published proposed rulemaking indicating changes that could be implemented shortly.  According to the draft rule, the following benefits will now be considered for purposes of public charge inadmissibility:

  1. Supplemental Security Income (SSI);
  2. Temporary Assistance to Needy Families (TANF);
  3. State or local cash benefit programs for income maintenance (often called State “General Assistance,” but which may exist under other names);
  4. Any other federal public benefits for purposes of maintaining the applicant’s income, such as public cash assistance for income maintenance;
  5. Certain Benefits under the Medicaid Program;
  6. Government-provided subsidies for premium payments under the Patient Protection and Affordable Care Act or other government subsidized medical insurance programs;
  7. Supplemental Nutrition Assistance Program (SNAP) (formerly called “Food Stamps”);
  8. Special Supplemental Nutrition Program for Women, Infants, and Children (WIC);
  9. State Children’s Health Insurance Program (CHIP) (formerly called “SCRIP”);
  10. Transportation vouchers or other non-cash transportation services;
  11. Housing assistance under the McKinney-Vento Homeless Assistance Act, as amended, or the Housing Choice Voucher Program (section 8), U.S. Housing Act of 1937, as amended;
  12. Energy benefits such as the Low-Income Home Energy Assistance Program (LIHEAP);
  13. Institutionalization for both long-term and short-term care at government expense;
  14. Certain educational benefits, including, but not limited to, benefits under the Head Start Act, as amended; and
  15. Any other Federal, State, or local public benefit program, except for those benefits described in § 212.24.
The draft rule only specifies two types of public benefits that will not be considered for purposes of public charge inadmissibility – 1) emergency or disaster relief and 2) educational and child care block grants.

Public charge inadmissibility will consider many factors, including the foreign national’s age, health, family status, assets, and education and skills.  Benefits given to a foreign national’s dependent family members, including U.S. citizen children can also cause a public charge finding.  Heavily weighted factors include whether the foreign national is authorized to work but is unemployed, has previously received public benefits, or has a costly medical condition, among others.

Notably, these changes will only effect public benefits received on or after the effective date of the final rule, so benefits received previously should be analyzed under the current public charge guidance.  These rules are not final and could change before they are implemented.  However, it appears that public charge inadmissibility will be a point of emphasis going forward.  Foreign nationals who have received any kind of public benefit should consult with an experienced immigration attorney to carefully consider whether a public charge ground of inadmissibility is likely.


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Six Things All California Employers Must Know About the New Immigrant Worker Protection Act (AB 450)

1/2/2018

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By: Bernard P. Wolfsdorf, ABIL Lawyer and Richard Yemm, Partner
Wolfsdorf Immigration Blog

On January 1, 2018, the new Immigrant Worker Protection Act or AB 450, became effective. The law is designed to protect an estimated three million plus undocumented Californian employees, of whom over half are active in the workforce, from Federal immigration enforcement through workplace raids.

​Here are six things that California employers, both private and public, need to know about the new law:
​
1.  Employers may not voluntarily consent to an immigration enforcement agent entering any non-public areas at a place of labor. This does not apply if the agent provides a “judicial warrant.”

2. Employers may not grant voluntary consent to an immigration enforcement agent to access, review, or obtain employee records without a “subpoena or judicial warrant” (with certain exceptions, such as if an immigration enforcement agent issues a Notice of Inspection (NOI) of I-9s/other records needing to be maintained under federal immigration regulations).
​
3.  Employer must give written notice to employees (plus the authorized representative, i.e. collective bargaining representative, if any, of any immigration review of employment records, e.g. I-9s, within 72 hours of receiving the request e.g. the union, if any.
The notice must:
a.  Be posted in the language the employer normally uses to communicate with employee;
b.  Include the name of the immigration agency conducting the inspection;
c.  Include the date the employer received the notice;
d.  Explain the nature of inspection (to the extent known);
e.  Include a copy of the Notice.
4.  Employers cannot reverify the employment eligibility of a current employee, except as otherwise required by federal law.

5.  Employers must provide a copy of the written immigration agency notice within 72 hours of the employer’s receipt of the results of the inspection (the “Notice of Suspect Documents” (“NSD”)) to certain “affected employees” (employees identified by the immigration agency as ones who may lack work authorization), in addition to a written notice of the obligations of the employer and the affected employee arising from the results. This notice must be hand-delivered if possible, otherwise by mail and email, and should contain:
​​a.  A description of any deficiencies identified in the notice;
b.  The time period for correcting deficiencies;
c.  The time and date of any meeting with the employer to correct deficiencies;
d.  Notice that the employee has the right to representation during any meeting scheduled with the employer.
6.  Employers can face civil fines of up to $5,000 for a first violation and up to $10,000 for subsequent violations, if they fail to provide the required notices.
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Marry a Prince, become a Duchess, and Lose your American Citizenship? Could the Royal Wedding Create a Nationality Headache? Musings of an Immigration Lawyer

12/1/2017

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By: Bernard P. Wolfsdord, ABIL Lawyer, and Robert J. Blanco, Senior Associate Attorney
Wolfsdorf Immigration Blog

​The recent announcement that England’s Prince Harry is engaged to American, Meghan Markle has generated worldwide excitement and interest.  As immigration lawyers, it made us reflect on the issues relating to dual nationality.

While Meghan’s marriage will most likely make her eligible for U.K. citizenship, she is also likely to be named the Duchess of Sussex.  Will the U.K. demand that she renounce her U.S. citizenship?  If she doesn’t renounce her U.S. citizenship, will her becoming a duchess be an expatriating act, whereby she could lose her U.S. citizenship?
​
Article I, Section 9, Clause 8 of the U.S. Constitution, commonly referred to as the Emoluments Clause, states:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
It appears that there is nothing that directly prevents an “ordinary” U.S. citizen who does not hold office from receiving a foreign title and using it as she pleases, unless it leads her to pledge allegiance to a foreign power.  Such a pledge of allegiance would, in the past, automatically lead to a loss of U.S. citizenship.
​
In the 11th Congress (1809-11), an amendment to the Constitution was passed but never ratified by the states.  The proposed amendment stated:
​If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them.
Today, the U.S. does allow dual nationality, although it is generally disfavored.  The Supreme Court ruled in Afroyim v. Rusk, 387 U.S. 253 (1967) that Congress may not divest a person of U.S. citizenship absent voluntary renunciation.  Before the Supreme Court made this ruling, many women who married foreign nationals and lived abroad were stripped of their passports simply by taking an oath of allegiance. Currently, the U.S., following Supreme Court rulings, merely fails to recognize the second passport and requires that all U.S. citizens use only their U.S. passports to enter the U.S.  So, even if Meghan becomes a U.K. citizen, she still must use her U.S. passport to visit the U.S., unless she has renounced her U.S. citizenship.

The U.S. Department of State warns that naturalizing in a foreign country, or taking an oath of allegiance to a foreign country are potentially expatriating acts under INA § 349 (8 U.S.C. 1481), as amended.  However, U.S. citizens are subject to loss of nationality only if they perform certain specified acts voluntarily and with the intention to relinquish U.S. nationality.  Will Meghan’s acceptance of the tile of Duchess of Sussex be both voluntary and with the intention of renouncing?  It would appear not.  Fortunately for her, a natural born citizen cannot merely lose her citizenship without the intent to relinquish.

The second interesting issue concerns any children Meghan and Prince Harry may have.  A child born abroad to a U.S. citizen may automatically derive U.S. citizenship through his or her parent.   Specifically, under INA § 301(g), a child born to one U.S. citizen parent and one foreign national parent will acquire U.S. citizenship at birth if the U.S. citizen parent was physically present in the United States for at least 5 years, including at least 2 years after turning 14 years of age.  Given this requirement, any children born in the U.K. would automatically become U.S. citizens at birth, unless of course, Meghan renounces her citizenship first.  Since Prince Harry is fifth in line to the British throne, could a U.S. citizen technically become the King or Queen of England?

This seems highly unlikely as any U.S. citizen would almost certainly be required to renounce their citizenship before becoming a British monarch.
​
The complex nationality issues don’t end there.  For instance, if Meghan renounces her U.S. citizenship and subsequently divorces, how would she regain her U.S. citizenship?  Would she need to be sponsored for a green card through her U.S. citizen parents in the family-based first preference category and be stuck in the 6 to 8 year waiting line to get a green card?  What if her parents are no longer living and she has no other U.S. citizen relatives to sponsor her green card?  Would she lose her U.K. citizenship and become a stateless refugee?  Heavy is the head that wears the crown.
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Three Reasons Conservatives Should Support DAPA

7/15/2015

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Charles Kuck, ABIL Past President
Musings on Immigration

With Donald Trump's wild rantings of the superior negotiating skills of the Mexican government, and his idea that all undocumented immigrants are criminals (neither of which has any basis in fact, but hey, its a presidential campaign, facts are not relevant), there has been a lot of attention paid to the Obama Administration's DACA and DAPA programs.  The DACA program has been an unqualified success for those 50% or so of eligible people who have signed up for it, has created opportunity for those individuals, and has even filled government coffers at the local, state and federal level.  The DAPA program is only hold  because 26 GOP controlled states decided they did not want undocumented parents of U.S. citizens to have work permits and to be safe from deportation for two years (not including, of course, the millions who do not qualify for the program). From a politically conservative point of view, it is an untenable position for at least three reasons.

The definition of a conservative "is someone who rises above his personal self-interest and promotes moral and economic values beneficial to all."  Well, if that is the definition, then let's look at it in the context of DAPA.  What are "the moral and economic values beneficial to all" that flow from DAPA?
First, there is the most obvious reason--economics.  Someone who has been living in the shadows, perhaps working with no papers and paid in cash, or working with fake papers and getting paid and paying taxes and for social security they will never see, is now in the light of day, working without fear of deportation (for at least two years). There is no permanent benefit that comes from DAPA, nor does such a person have "lawful status."   It is quite obvious that such a person will now be more fully engaged in the "daylight' economy; purchasing cars, paying taxes, saving money, and generally becoming a more integrated member of society. Without a doubt, there is great economic value in this.  Remember, the vast majority of these folks are already working in jobs; getting work permits will formalize this, not take jobs from Americans. Basic economics also tells that that more people making more money means more money will be spent, more taxes will be collected, and more jobs will be created.

Second, individuals who apply for DAPA will be, in effect, self-reporting to the USCIS (the benefits side of immigration within DHS), and in turn vetted through the systems and background checks of ICE (the enforcement side of immigration). Everyone who applies for DAPA knows it would be for two years, with extensions dependent on a sitting President. The Democratic candidates have all said they would continue or expand DAPA, and the GOP candidates have all said they would eliminate it.  Essentially, DAPA means that 4to 5 million people who are currently deportable, typically for either entering the U.S. illegally, or overstaying a visa (not a crime), will freely give their names, addresses, fingerprints and other personal data to the DHS.  Obviously, that means 4-5 million fewer people for the officer and agents at ICE to look through to find those they actually need to and deport within their allocated budget from Congress.  The program is fiscally sound, self-funded by the participants (as Ted Cruz learned), and should it be cancelled, and should Congress allocate $400-600 billion dollars to remove everyone, it would be mean that 4 to 5 million people would be easier to find.

Third, the DAPA recipients are all parents of U.S. Citizens or permanent residents. That means that all of them, yes, all of them, are either currently eligible for  permanent residence, or will be when their child is 21 and a U.S. citizen.  The only thing stopping the vast majority of them from applying for permanent residence when their child is eligible to sponsor, is the law created by Congress in 1996 which says that if you entered the US illegally you cannot get a green card here, and must go home for 10 years before returning. By receiving DAPA,  you are keeping families together (morally right), and you ensuring that the parents are able to provide for their US citizen children (economically beneficial). reducing poverty and claims for government services for the children.  If you really want to focus on deportation, then deporting the parents of U.S. citizens who have no criminal record and who's only crime MAY be a misdemeanor illegal entry, then perhaps morally and economically, is not the best place to start.

There are other conservative reasons for supporting DAPA.  Most of those are biblically related, and I will leave those for another post.  Suffice it to say that DAPA should not have been necessary.  Conservatives in Congress should have argued for a strong enforcement and security based plan that would have also strongly encouraged folks to come out of the shadows.  But the House GOP refused to even consider any immigration reform package, forcing Obama to create DAPA.  Real conservatives would actually create a program that works better for America and for Immigrants, but it appears that there are few real conservatives in Congress.  And, THAT will cost the GOP and conservatives the next presidential election.
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President Obama -- Publish the DAPA Regulation (And Why He Won't)!

6/30/2015

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Charles Kuck, ABIL Past President
Musings on Immigration

We found out this week that the "new" panel that will hear the actual DAPA appeal in the 5th Circuit Court of Appeals is actually the old panel.  Judges Smith and Elrod were the majority decision in motions panel which declined to lift the stay put in place by Judge Hanen from the Federal District Court in Texas.  Using polemics better suited for a political rally, Judge Hanen put a stop to DAPA and expanded DACA just as they were about to go into effect.  Judges Smith and Elrod, although less "dynamic" in their political tilt, made it clear that they were swayed by Judge Hanen and not by the rather lackluster lawyering of the Department of Justice, and refused to lift the stay.

Most advocates for reasonable immigration reform (and quite of few active Republicans) were deflated when news broke on the makeup of the panel.  There had been much hope created when the panel earlier in June had asked for briefings from both sides on whether or not the appeals panel to hear the case in July was bound by the findings and decisions of the motions panel that heard the case previously in the 5th Circuit (they are not).  But the likelihood of either judge changing their position on the DAPA and expanded DACA memo borders on 0%.

What can Obama do?  He can do what he should have done in February (and likely what he should have done in November 2014).  Publish the proposed DAPA and expanded DACA policy in the Federal Register and comply with the Administrative Procedures Act (APA).  Neither Judge Hanen, nor Judges Smith and Elrod struck down DAPA and expanded DAPA on constitutional grounds. Which is good, since the policy changes are not unconstitutional.  Rather, the change in policy was stopped because Obama did not comply with the APA by first publishing the proposed changes and giving them the force of regulation.

The process of complying with the APA, if the rule is considered an "emergency" rule i straightforward. An emergency rule can be made effective in 60 days.  Non-emergency rules can take longer. But think about it. we are now four months post the Stay ordered by Judge Hanen. Complying with the law here would have meant that we would have DAPA in place, or at the very least be very much closer to implementation than we are today.

So, why has Obama not complied with the APA?  Let me give two reasons.

First, Obama does not think he has to, and by doing so he diminishes the "power" of the presidency. There is recent Supreme Court Precedent backing this position.  In Perez v. Mortgage Bankers Association, the Supreme Court held that:
The APA distinguishes between two types of rules: So-called “legislative rules” are issued through notice-and-comment rulemaking, and have the “force and effect of law,” Chrysler Corp. v. Brown, 441 U. S. 281, 302–303. “Interpretive rules,” by contrast, are “issued . . . to advise the public of the agency’s construction of the statutes and rules which it administers,” Shalala v. Guernsey Memorial Hospital, 514 U. S. 87, 99, do not require notice-and comment rulemaking.
. . . .
Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures to amend or repeal that rule.
As such, the Obama administration may feel that DAPA and expanded DACA are "interpretive rules" that do not require APA compliance, and that by doing so he would eviscerate the administration's victory in Perez.

Second, and perhaps the real explanation, Obama believes that prolonging the fight over DAPA and expanded DACA into the presidential election cycle helps Democrats in their fight against a fractured GOP.  It is quite clear given the recent crazy talk from Donald Trump and Scott Walker (and an even nuttier know-nothing Ann Coulter), that many members of the GOP have no idea how to win back the minority vote in America.  Obviously, there are GOP contenders, like John Kasich and Jeb Bush who get it, but the vitriol is overshadowing common sense.  Perhaps Obama knows (because he did it himself by intentionally delaying immigration reform in 2008), that by keeping the anti-immigration side of the GOP on high alert and in full crazy bloom, he can maximize the chances that the GOP cannot win back the White House in 2016.

The reader can decide what Obama's motivation is, but the situation is this: DAPA and expanded DACA--designed to help millions is delayed.   The 5th Circuit will reaffirm its prior decision.  The Supreme Court may or may not take the case. If it takes the case, it will not issue a decision until June 2016, In the meantime millions of parents of US citizens will languish in an underground economy, families will be torn apart and separated by Obama's fully operating "enforcement priorities" memo, the GOP controlled Congress will allow the tail to keep wagging the dog on immigration reform, and we will be no closer to a real solution on immigration reform.  Thanks Obama.  Thanks for nothing.
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The GOP and Immigration Reform, and Obama and Executive Orders

11/10/2014

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Charles Kuck, ABIL Past President
Musings on Immigration


THE GOP AND IMMIGRATION REFORM

The GOP will control both the Houses of Congress come January 19, 2015.  Mitt Romney, in a massive shift from his 2012 presidential campaign position, says that one of the first things the GOP will do is pass some sort (unclear what exactly) of "immigration reform" and put it on the President's desk in 2015.  Two things about this.

First, if Mitt Romney had said this during the campaign in 2012, we would be calling him President Romney today.  It is rather off of Romney to say this now, particularly since he is taking heat from the likes of Glenn Beck in doing so.  If Romney really believed this, one has to ask, did he have a change of heart? Or, is he cynically duping people into supporting GOP candidates, with no real intention to address a key part of our economic future as a country?

Second, what does "immigration reform" mean when used by Mitt Romney and the GOP today? Inspired by the classic line uttered by Inigo Montoya to Fazini in "The Princess Bride" when Fazini kept misusing the word "inconceivable," "I do not believe that word means what you think it means."
"Immigration Reform" to the many members of the GOP means exactly what Ted Cruz says it means, as reflected in his proposed amendment to the bi-partisan Immigration Reform bill that passed the Senate in 2013;
Cruz’s amendments would have (1) eliminated the legalization-first, security-later structure of the Gang of Eight bill while still creating a way to legalize those now here illegally; (2) increased certain types of legal immigration; and (3) removed what might be called the moral hazard of rewarding those who came here illegally with citizenship and federal benefits.
So, when the GOP talks about passing an "immigration reform," it must be uunderstood that it will not be far-reaching, it will be punitive, it will create a second class of person in the U.S., and it will be a slow process to even obtain a work permit.  Because, anything other than deporting everyone is "amnesty."

OBAMA

As to President Obama and his approach to immigration reform, we can only say two words:  "screwed up."  This phrase applies both to to his "plan" for executive action, and his delay in implementing executive action to "save" Democratic Senators from having to defend it on the campaign trail.

First, while it is always easy to have 20/20 hindsight, it is quite clear that Democrats lost the support of large numbers of Hispanics because of Obama's failure to act, and what was seen by many Hispanics as a betrayal of their support for Obama in 2008 and 2012.  There were actually billboards in North Carolina (where Kay Hagan lost re-election by a very small percentage and where Obama won in 2008 and 2012 with massive Hispanic turnout), paid for by Hispanic advocacy groups urging Hispanics NOT to vote for Hagan.  To say the entire election turned on Obama's betrayal of the Hispanic and Asian immigrant communities of his failure to press reform or executive action before the election would not be completely accurate, but it clearly played a part in a dismal turnout for what was an historical Democratic voting base.

Second, his plan for "executive action" is hardly an "amnesty"for 11 million people as some politicians have claimed, and more importantly, it is clearly still not ready for prime time.  In his first press conference post-election, Obama was clear that he WILL (Really This Time) issue "some" executive action on immigration, which he would be happen to undo if Congress passes "immigration reform."  Do you see the problem here.  Neither side is actually using "immigration reform" in the same way.  And, Obama cannot actually "legalize" anyone to actual immigration status in the U.S.  He can give work permits based upon the parole authority Congress has given the executive branch (and which numerous president's have used before), but he cannot give "amnesty."

EXECUTIVE ORDERS

What do I think Obama will do?

Despite all the false starts, Obama has no choice but to issue an executive order or amend regulations, but he will do so AFTER budget discussion are resolved and Congress departs for they year, likely after December 11, when it appears the Congress will go home for the holidays.

First, I believe (and this is based on my analysis not actual administration promises) that Obama will give a limited work authorization to a relatively narrow group of undocumented workers.  He will do this by using the existing law, and if were smart it would go something like this.  The GOP wants all undocumented immigrant to go home. Of course, if they were all arrested by ICE and put into removal (deportation) proceedings, they would be allowed to go through the immigration court system.   At least 62% of undocumented immigrants have been in the U.S. for 10 years or longer. Current U.S. law, passed by a GOP Congress in 1996, says that if you have lived in the U.S. longer than 10 years, have a US citizen child, spouse or parent, and are a person of "good moral character, then you can apply for "cancellation of removal," which comes with a work permit. They would NOT get any status, but the work permit could be used to get drivers licenses in most states.  People would come out of the shadows for the first time in 28 years.   Now, you are not likely to win that case (only 4,000 people a year can be approved), but the cases drag on for years because of the nightmare that is the immigration court system.  If Obama gives people who fit this definition a work permit (not status), he is doing EXACTLY what the GOP would do if they could arrest each of these folks, and Obama is getting their biometrics and data from them with no effort.   Now, I doubt Obama could spin this as good as me, and for sure the GOP would call this amnesty, but, it is the easiest win for Obama with the Hispanic community, and it is the easiest to justify.

Second, I believe that Obama will also issue regulations that will recapture unused immigrant visa numbers from past years for employment based immigrants waiting in the proverbial "line."  This recapture will involve adding another 200,000 or so immigrant visas and making them immediately available. This would pay off big for businesses, particularly in high tech, whose employees wait more than a decade for a green card.   Again, this is defensible, as the visas were made available by Congress already and were only not used because of USCIS incompetence in handling immigrant (legal) visa processing.

Of course, he could do a lot more, but do not expect a President who has shown so little backbone on a HUGE variety of issues to do more than that.

And, finally, don't forget that if Obama does these two simplest things, which he is legally allowed to do, the GOP will scream "impeachment" at the top of their lungs.
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