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Report and Comments on EB-5 Meetings in Washington

9/29/2011

by H. Ronald Klasko, ABIL Lawyer
Klasko, Rulon, Stock & Seltzer, LLP

I share the following comments after spending two days in Washington, DC attending the Congressional EB-5 hearing and the EB-5 Stakeholders Meeting, as well as listening to the meeting with USCIS Director Mayorkas: Premium processingis unlikely to be implemented in the very near future. My best estimate is the first half of calendar year 2012, and maybe the first quarter. It will likely be limited to regional center designation applications and exemplar I-526 (project pre-approval) petitions. There is a possibility that individual I-526 investor petitions will be eligible for premium processing at a later date. In the meantime, regional centers and investors should file petitions in the normal fashion. If premium processing is implemented, almost certainly it will apply to pending petitions.

There appears to be agreement between Republicans and Democrats in the House of Representatives for a long term and hopefully permanent extension of the regional center pilot program. The biggest area of disagreement may be whether, as part of the extension, Congress implements a new EB-6 program for venture capital financing of startup ventures in the U.S. If so, there is some indication that at least the Republicans in the House of Representatives may want to take the visa numbers for the EB-6 program out of the EB-5 quota. EB-5 advocates will be arguing against any attempt to reduce EB-5 numbers.

USCIS has already hired three new business analysts and is in the process of hiring one or more economists. Hiring and training these individuals will be a critical part of implementing premium processing and implementing the proposed Decision Board, which would allow for in-person or telephonic discussions between regional centers and CIS prior to decisions on regional center designations and project pre-approvals.

Even without premium processing, regional center designation applications and project pre-approval applications will likely be processed more promptly than the present 8 to 10 months. Now that USCIS has mostly completed the November 2010 filings, and since there were far fewer filings in the months following November 2010, processing times should improve. It is not as clear that processing times will improve on the investors’ I-526 petitions.

USCIS will not commit to a formal position on three legal issues “for several weeks” and likely will include most or all of the positions in a new policy memorandum. The three issues are:

Deference to safe designation letters with respect to geographical areas of TEAs;
EB-5 money used to pay down bridge financing;
Definition of “material change” for purposes of condition removal and what must be done in the event of a material change.
It appears likely that CIS will agree that it should defer to state designation of geographical areas of TEAs and that EB-5 money can be used to pay down bridge financing. Until issuance of a policy memorandum, there are indications that CIS adjudications on these issues have been more favorable since we had our meeting with Director Mayorkas on August 10. The material change issue will likely be the subject of a separate USCIS stakeholders engagement meeting prior to issuance of any memorandum.

Following our August 10 meeting, it appears that USCIS is rethinking its policy on exemplar. Hopefully, the policy memorandum will include a commitment that, if the documentation regarding the regional center and the project in the investor’s I-526 petition is identical with the exemplar 526, CIS will be bound by the approval of the exemplar. Unless and until that happens, there does not appear to be any good reason for waiting the necessary time for approval of the exemplar 526 if it will be filed independently of a regional center designation application. If it will be filed concurrently with a regional center designation application, since the processing time will be the same as the regional center designation processing time, it may be sensible to continue filing the exemplar 526 for the first project.

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Off-Message Immigration Bureaucrats Undermine the President's Jobs Push by Refusing L-1 Specialist Visas to Indian Citizens

9/18/2011

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by Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

With the President's supporters pleading for action, Barack Obama at last has pivoted to jobs. "Pass this bill [the American Jobs Act]" has become his oft-shouted mantra. Surprisingly, however, career bureaucrats within the Departments of State and Homeland Security apparently haven't read his September 8 speech to Congress and instead are taking affirmative steps to prevent job creation. Examples of this misbehavior are abundant across all work visa categories, as this blog has shown. For the sake of illustration, however, let's get granular and consider the latest trends in visa refusals for a single category, the L-1B "intracompany transferee" visa, available to workers within a global firm possessing "specialized knowledge."

The problem has become especially acute with the recent flood of L-1B petition and visa denials involving citizens of India, thus raising the concern that the Indian refusals may be founded on unlawful bias, such as citizenship status, national origin, or race discrimination, or, upon the counterintuitive Congressional and media claims that the inbound dispatch of L-1 workers contributes to the claimed offshoring of jobs.

American businesses count on L-1B workers to design and develop innovative products, fulfill contracts and manage important projects on which U.S. jobs for American workers depend. With global competition accelerating, a significant delay in granting L-1B visa benefits to a deserving candidate, such as by a consular officer's unexplained return of an approved petition to USCIS for readjudication, a burdensome, boilerplate USCIS request for additional evidence, or an outright denial by either agency -- any one or all of these actions can lead to the loss of American jobs to employees of our competitors abroad.

For those unfamiliar with this nonimmigrant category, the L-1B intracompany transferee classification, together with the L-1A for executives and managers, has been around since 1970.  The L-1B allows a U.S.-based business to transfer workers from the employ of a foreign affiliate that is under at least 50% common ownership or control with the U.S. petitioner in the combined global enterprise. The visa applicant must have been employed for at least one year abroad by a foreign affiliate out of the last three years, performing in a job involving specialized knowledge, and must seek to work for a related entity in the U.S. in a like capacity. Individual petitions for L-1B visa classification are submitted to U.S. Citizenship and Immigration Services (USCIS), Regional Service Centers (RSCs), which forwards their petition approvals to a U.S. consulate or embassy abroad where the consul interviews the L-1B visa applicant. Consular officers also interview "blanket" L-1 visa applicants from larger companies to determine whether either of the alternative definitions of specialized knowledge apply and an L-1B visa should be issued.

A few years back, larger global enterprises could instruct their candidates (specialized-knowledge professionals with a relevant college degree) to apply directly at a U.S. consular post abroad under an approved blanket L-1 petition as long as he or she had gained only six months' worth of specialized knowledge, rather than the one year minimum required now, which in either case is still a comparatively brief period required by statute.

The term "specialized knowledge" has had a tortuous and tortured history within the legacy immigration agencies. The trend as late as 1988 had been to interpret the term very strictly, culminating in a case, Matter of Sandoz Crop Protection Corp., which equated specialized knowledge with a level significantly above even "proprietary" or "patented" knowledge:

The petitioner's proprietary interest must be such that the knowledge required is clearly different from that held by others employed in the same or similar occupations. Different procedures are not a proprietary right within this context unless the entire system and philosophy behind the procedures are clearly different from those of other firms, they are relatively complex, and they are protected from disclosure to competition.

A petitioner's ownership of patented products and processes or copyrighted works, in and of itself, does not establish that a particular employee has specialized knowledge. In order to qualify, the beneficiary must be a key person with materially different knowledge and expertise which are critical for performance of the job duties; which are critical to, and relate exclusively to, the petitioner's proprietary interest; and which are protected from disclosure through patent, copyright, or company policy.

Later that year, however, a policy memorandum from legacy Immigration and Naturalization Service (INS), clarified that this interpretation of specialized knowledge was “more restrictive than Congress or the [INS] intended" and instructed adjudicators to apply the new clarification so that the L-1B would be "more flexible and useful to international businesses":

The problem stems from using a too literal definition of the term "proprietary knowledge" wherein the knowledge must relate exclusively to or be unique to the employer's business operation. Using this narrow interpretation of proprietary knowledge excludes numerous employees of international companies who were intended by Congress to be accommodated under the L classification.

Since the passage of the Immigration Act of 1990 (IMMACT 90), "specialized knowledge" has required (consistently with the 1988 INS clarification) either "special knowledge possessed by [the applicant] of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets," or "an advanced level of knowledge or expertise in the organization's processes and procedures."

In addition, in the preamble to the proposed regulations implementing IMMACT 90, the former INS acknowledged that “the intent of [IMMACT 90] as it relates to the L classification was to broaden its utility for international companies." Two INS Headquarters memos, in 1994 and 2003, and a 1994 State Department cable to the post in Madras (now Chennai), India reaffirmed the IMMACT 90 expansion of L-1B specialized knowledge. The 1994 State Department cable is significant because -- as shown below -- the very same Visa Office and consular post are at the epicenter of unlawful, revisionist and newly restrictive interpretations of specialized knowledge:

Consuls should satisfy themselves that the applicant possesses knowledge that is not general knowledge held commonly throughout the industry but is truly specialized. The [Visa Office] notes this should not be construed to mean that an individual's expertise must be narrowly held within the company. The fact that the knowledge is held widely within the sending entity does not preclude it from being specialized.

With respect to the issues of remuneration of L-1 employees, there is no requirement (as for H-1Bs) that an individual be paid the prevailing wage. [Consular officers] must be satisfied that the applicant will not become a public charge. Beyond that, it does not appear to [the State Department's Visa Office] that the applicant's compensation may be addressed by [Consular officers].

Nothing of legal substance has changed since the IMMACT 90 Congress legislated an expansive interpretation of the specialized knowledge eligibility criteria, save for rogue (and now off-message) actions to restrict L-1B approvals, especially if the applicant is an Indian citizen.

The trouble began in earnest with a 2004 Visa Office cable described as "clearly of greatest significance to the Indian Posts," and then with the USCIS Administrative Appeals Office (AAO), which published a 2008 non-precedent case involving an Indian software engineer, followed by USCIS adjudicators at the RSCs who have relied on that case to issue unwarranted L-1B RFEs and petition refusals, and by January, 2011 changes of heart by the State Department's Visa Office (relying on the same AAO case) and the consular posts in India.

More recently, however, the USCIS Office of Public Engagement (OPE), responding commendably to stakeholder concerns, held a May 12, 2011 Listening Session on the L-1B category.  The OPE's notes understate the intensity of complaints voiced during the call:

An overwhelming majority of stakeholders asserted that the existing regulatory definition of “specialized knowledge” and USCIS policy memoranda which relate to this issue are fine as written, and there is no need to issue any new policy memorandum. Some stakeholders provided feedback indicating that the definition of “specialized knowledge” should be interpreted more broadly than is currently being practiced at the Service Centers. Stakeholders noted that USCIS is interpreting the definition too narrowly as evidenced by the Requests for Evidence (RFE) and denials which are being received by many petitioners for this category. One stakeholder stated that it appears that USCIS has made a change in its interpretation in recent years without any change in the law. . . .

Next Steps

USCIS will provide additional guidance and training to USCIS officers adjudicating L-1B petitions.

If the USCIS has indeed offered "additional guidance and training to USCIS officers adjudicating L-1B petitions," the lessons have not been learned.  Job destruction by way of L-1B denials at the RSCs continues unabated, notwithstanding the President's jobs campaign. The same can be said of the consular posts in India where, especially since March, employers and immigration lawyers have witnessed a steady increase in unwarranted L-1B refusals.

Applicants have reported that interviews -- lasting but a few minutes -- are perfunctory, supporting documents are ignored. Consular officers are prejudging the case (often filling in the L-1B visa refusal notice at the start of the interview), and concluding that any passing reference to a company other than the petitioner warrants the unjustified conclusion that the knowledge must not be specialized. Moreover, notwithstanding the 1994 State Department cable, consuls are asking irrelevant questions about wages paid, while disregarding the value of supplemental stipends for housing, food and travel in the U.S., and ignoring the instruction that specialized knowledge may be held widely within the foreign affiliate ("[the] fact that the knowledge is held widely within the sending entity does not preclude it from being specialized").

The State Department defends its high Indian refusal rate by suggesting that the posts in India receive more L-1B applications and approve more L-1B visas than any other U.S. consulates or embassies worldwide. Neither State nor USCIS has explained, however, why "specialized knowledge" is simply far more difficult to establish for citizens of India than for nationals of any other country, and why an outdated set of L-1B eligibility standards applies much more to Indians than to other visa applicants.

In the absence of clear answers by State or USCIS to these apparently discriminatory and unlawful practices adversely affecting Indian applicants and their petitioning U.S. employers, the task of revealing the truth and redressing wrongs must turn to another government agency or the media. Within the federal government, the Department of Homeland Security's Office of Civil Rights and Civil Liberties (OCRCL) is endowed with explicit legal authority to investigate.  All that is required to initiate an OCRCL investigation is for disadvantaged parties to file a well-documented complaint alleging that invidious discrimination has occurred or that the cherished, constitutionally-derived (5th Amendment) civil liberty -- due process of law -- has been violated.

While some Indian L-1B aspirants may pray to the "Visa God," they and others can also seek and hopefully receive more immediate relief by pursuing the OCRCL's decidedly terrestrial solution.

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Reinterpreting the Automatic Conversion Provision of the CSPA to Help DREAM Kids

9/16/2011

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by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

The DHS has commendably issued policies urging prosecutorial discretion in recent months recognizing its inability to deport all undocumented immigrants, and designating certain deportable deserving discretion immigrants under a low priority status. Especially noteworthy is the June 17 Morton Memo on prosecutorial discretion, which urges against enforcement of individuals who came to the US as children, and who have successfully graduated from high school or are pursuing college or advanced degrees. Although DREAM Act legislation failed in December 2010, the DHS has nevertheless announced policies that would stay or terminate the deportation of those who came to the US as children and would otherwise have qualified under this legislation to gain legal status.

While the DHS has been using administrative action to ameliorate the hardships for DREAM kids, why can’t it reinterpret a provision in the Child Status Protection Act more consistently with the statute? INA § 203(h)(3), called the automatic conversion provision, has been the subject of much litigation lately, but all this would be unnecessary if the DHS only interpreted it consistent with its plain language and allowed children who were otherwise not eligible under the age protection formula of the CSPA to automatically convert to the new category they may be entitled to and retain the priority date of the original petition.

INA §203(h)(1), introduced by Section 3 of the CSPA, provides the formula for determining the age of a derivative child in a preference petition even if the child is older than 21 years. To qualify as a child under INA §101(b)(1), one must be below the age of 21 and unmarried. The age is determined by taking the age of the alien on the date that a visa first became available (i.e. the date on which the priority date became current) and the immigrant visa petition (Form I-130 or I-140) was approved, whichever came later, and subtracting the time it took to adjudicate the petition (time from petition filing to petition approval). Based on this formula, if the child’s age falls below 21 (even if he or she is over 21 at the time of visa availability), the child is protected under the CSPA. Specifically, §203(h)(1)(A) also requires the alien to have “sought to acquire” LPR status within one year of visa availability.

But what if the child is not protected under this formula? The automatic conversion provision could still come to his or her assistance. This is how §203(h)(3) reads:

Retention of priority date –If the age of an alien is determined under paragraph 1 [which sets forth the age protection formula] to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition

Like the facts in the latest 5th Circuit decision in Khalid v. Holder, which sensibly interprets the automatic conversion provision, assume that a non-citizen child is 11 years old when his mother’s sister, a US citizen, files an I-130 petition for his mother on January 12, 1996. By the time that the priority date becomes current under the Family Fourth preference in February 2007, the child is 22 and cannot unfortunately avail of CSPA’s age protection formula. His mother, who has now become a Lawful Permanent Resident (LPR) files an I-130 petition on November 23, 2007 for her 22 year old son under the Family 2B preference. It makes no sense for the son to wait another 8 years or longer for the Family 2B date to become current. Under the plain meaning of the automatic conversion provision, §203(h)(3), the earlier priority date of the mother’s sister’s I-130, January 12, 1996, can be retained under the new I-130 petition filed by the mother on behalf of her 22 year old son. If the priority date is retained, her son will not need to wait and can potentially adjust his status immediately under the current January 12 1996 priority date. Under the broad “grandfathering” provision of INA §245(i), since he was the derivative beneficiary of his mother’s I-130 petition filed long before April 30, 20001, he can file an application to adjust status even though he is no longer maintaining status presently.

While it is beyond the scope of this blog to explain the detailed holding behind Khalid v. Holder, and the government’s counter arguments, it is worth mentioning that the 5th Circuit cited with approval an earlier unpublished decision of the Board of Immigration Appeals in Matter of Garcia, No. A79 001 587, 2006 WL 2183654 (BIA June 16, 2006) with identical facts:

In this instance, the principal beneficiary of the original petition was the respondent's mother, who became a lawful permanent resident of the United States once a visa number became available to her in 1996. The respondent was (and remains) her mother's unmarried daughter, and therefore the "appropriate category" to which her petition was converted is the second-preference category of family-based immigrants, i.e., the unmarried sons and daughters of lawful permanent residents. Furthermore, the respondent is entitled to retain the January 13, 1983, priority date that applied to the original fourth-preference petition, and therefore a visa number under the second-preference category is immediately available to the respondent.

If Matter of Garcia was followed by the DHS in 2006, there would have been no need for such expensive and needless litigation, and many thousands of children who aged out due to delays in the burgeoning backlogs under the family and employment preferences would have been permanent residents today. Unfortunately, three years later, in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), the BIA reached the opposite result and disregarded Garcia under the rationale that the automatic conversion provision, §203(h)(3), only affirmed limited conversions acknowledged by regulation. For instance, 8 C.F.R. § 204.2(a)(4) provides for “retention” of a priority date for a minor child who was accompanying or following to join a principal beneficiary parent on a second-preference spousal Family 2A petition but then turned 21 before the mother could become a LPR. Under 8 C.F.R. § 204.2(a)(4), if a child ages out prior to the parent being issued the immigrant visa, a separate I-130 petition for that son or daughter is then required, although the original priority date is retained if the subsequent petition is filed by the same petitioner. Khaled v. Holder correctly rejects Wang’s strained interpretation since §203(h)(3), reading it in conjunction with subparagraphs (1) and (2), makes reference to both second preference family petitions and derivatives of all family and employment petitions. It is thus illogical to only consider the reference to the second preference petitions, where minors have been able to retain the original priority date, and to ignore derivatives of all other employment and family petitions, even though explicitly mentioned in §203(h)(3), who can also automatically convert to the “appropriate category” and “retain the original priority date.”

Admittedly, two other circuits have come out differently. The Ninth Circuit in Osorio v. Mayorkas decided that §203(h)(3) was ambiguous and paid Chevron deference to the BIA’s constricted interpretation of this provision in Matter of Wang. The Second Circuit in Li v. Renaud, on the other hand held that the provision was unambiguous, but nevertheless reasoned the provision would only allow someone to retain the priority date to a petition that was filed by the same petitioner. Thus, in the example in Khalid v. Holder, the original petitioner was the child’s aunt, and the new petitioner is his mother, and according to the Second Circuit in Li, which David Isaacson has critically commented on in a prior blog, there could be no automatic conversion.

While it is not the purpose here to discuss the merits of the various holdings, from a policy perspective and in the spirit of the Morton memo on prosecutorial discretion, it would make sense if the Administration withdrew its opposition to a broader interpretation of §203(h)(3) and followed Khaled v. Holder across the country. Currently, Khaled v. Holder is only binding within the 5th Circuit, which comprises Mississippi, Texas and Louisiana. To achieve this, Attorney General Holder would have to issue a new decision reversing Matter of Wang, and consistent with Matter of Garcia and Khaled v. Holder. The Attorney General, through the BIA, has done this before and can do it again if there is truly a will to implement policy consistent with the Morton memo. For example, in Matter of Silva, 16 I&N Dec. 26 (BIA 1976), the BIA acquiesced in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), and allowed 212(c) relief for LPRs in deportation proceedings who had not previously departed and returned, despite its earlier contrary holdings in Matter of Francis and Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971). Of course, if the government still wants to contest, this matter is ripe for review in the Supreme Court due to splits within the circuits, but one questions the wisdom of the government in further contesting this issue when it otherwise supports prosecutorial discretion for DREAM kids.

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USCIS Announces Increase in RC Filings, EB-5 Approvals at Quarterly Meeting

9/15/2011

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from ABIL EB-5 Investor News

U.S. Citizenship and Immigration Services (USCIS) released its latest data on EB-5 filings and regional centers (RCs) at its September 15, 2011, "EB-5 Immigrant Investor Quarterly Engagement" stakeholders meeting, showing that regional center (RC) filings and EB-5 approvals continued to increase. Included in the discussion were updates on I-924 information use, guidance for annual report filings, inquiries on service errors, removal of conditions, part-time versus full-time positions, duration of employment, acquisitions of existing businesses, indirect jobs, troubled businesses, job creation records, regional center geographic boundaries, and multiple investors. There was also an open forum Q&A.

USCIS Director Alejandro Mayorkas said the EB-5 program is a high priority for USCIS and that the agency realizes its job-creating potential. He noted that the implementation of premium processing will take time because the agency must draft a new form, but he said USCIS will try to speed up adjudications anyway. He also said that a decision board will be implemented soon for regional center applications, and that the agency realizes the board needs to be staffed with experts. To that end, USCIS has hired an economist and three business analysts, and is open to hiring more if needed.

Mr. Mayorkas also said USCIS is working on an EB-5 policy memorandum but will not issue a final memo until the agency receives more comments from EB-5 stakeholders.

The following is a summary of selected points from USCIS's presentation:

RC data. USCIS noted that there are currently 173 approved RCs operating in 40 states, including the District of Columbia and Guam, which was an increase of 26 since the last stakeholder meeting. Over 90 percent of the individual Form I-526 (Immigrant Petition by Alien Entrepreneur) petitions filed each year are filed by those who are investing in RC-affiliated commercial enterprises.

USCIS figures continue to show a steep increase in the number of RC filings and EB-5 visa approvals. The agency reported 176 initial RC proposal filings in the first three quarters of fiscal year (FY) 2011, compared to 110 initial filings in all of FY 2010. The number of amended RC proposal filings also increased by the end of the third quarter to 73; there were 42 filings received for all of FY 2010.

The agency also reported that it has issued a higher percentage of approvals of RC filings. In the first three quarters of FY 2011, the agency approved 46 initial RC proposals and denied 23, an approval rate of 67 percent. This was a big increase from FY 2010, when USCIS approved 36 and denied 30, an approval rate of 55 percent. The approval rate of amended RC proposals in the first three quarters also rose to 84 percent, with 32 approvals and 6 denials. By comparison, in FY 2010 USCIS approved 42 amended RC proposals and denied 11, an approval rate of 71 percent.

USCIS also reported significant increases in individual I-526s and I-829s (Petition by Entrepreneur to Remove Conditions). In the first three quarters of FY 2011, USCIS received 2,608 I-526 petitions, compared to 1,955 for all of FY 2010. The increase in the number of I-829 petitions was even more dramatic, with 1,753 received in the first three quarters. By comparison, USCIS received 768 I-829 petitions in all of FY 2010.

In the first three quarters of FY 2011, the agency approved 999 I-526 petitions and denied 224, an approval rate of 82 percent, while in all of FY 2010 USCIS approved 1,369 and denied 165, a higher approval rate of 89 percent. USCIS approved 436 I-829 petitions and denied 34 in the first three quarters, an approval rate of 93 percent, compared to approving 274 and denying 56 for all of FY 2010, an approval rate of 83 percent.

USCIS also reported that the target processing time for I-526 petitions is 5 months, and the target processing time for both initial and amended regional center proposals is 4 months. USCIS said it is "currently making adjustments to improve the accuracy of EB-5 case processing times that are published on the USCIS website and will post the case processing times once this process is finalized." USCIS noted that the California Service Center strives to finalize EB-5 cases within 30 days after responses to RFEs are received.

USCIS is on track to approve a record number of EB-5 visas. Its preliminary estimate is that 3,706 EB-5 visas were issued as of September 12, 2011, compared to 1,885 in all of FY 2010. The previous record was 4,218 EB-5 visas issued in FY 2009.

Common issues resulting in RFEs or denials in I-924 applications. USCIS noted the following reasons why an application may receive an RFE or denial, and included some tips on how to properly complete various sections of the I-924:

1. Business Plan and Economic Analysis for Each Requested Industry Category (Form I-924, Part 7):

A. The application is not supported by a business plan and economic analysis for at least one investment project with sufficient detail to show in verifiable detail how capital investment offerings in the requested industry will create jobs;

B. Insufficient evidence and/or narrative that describes the investment project activities that the regional center will engage in for each requested industry category, to include;

The proposed number of investors for the project(s);
The timeline for starting and completing the projects to demonstrate the requisite job creation;
A financial plan or budget including capital required and expenditures for the investment projects.

2. Reliability and Appropriateness of Data Sources for Economic Model Inputs (Form I-924, Part 7):

A. The application of national or state data in the economic model when more accurate regional data is readily available to demonstrate the economic impacts/job creation of the regional center's investment projects;

B. The data source for economic or business activity estimates for a given investment project; e.g., the data sources for estimates regarding total revenue generated or for the estimated construction costs (if applicable) for a given project.

3. Choosing and Identifying Appropriate NAIC Codes (Form I-924, Part 7):

A. NAIC code should be appropriate to the requested industry;

B. An overly broad NAIC code may not be representative of the requested industry. For example, "NAIC Code 62" includes assisted living facilities but also covers hospitals. There may be a more appropriate [code] for the requested industry;

C. An overly narrow NAIC code may be too restrictive for the scope of the contemplated investment project(s) in the requested industry.

4. Exemplar Form I-526s submissions should be documented with evidence with the level of detail required for an I-526 petition so that the exemplar petition if approved will facilitate the review of individual Form I-526 petitions (Form I-924 instructions, page 1). An exemplar Form I-526 petition should therefore:

A. Include a Matter of Ho compliant business plan and an associated economic analysis;

B. Include project timeframes for milestones: project commencement, key construction or implementation dates, completion date, and time line for the requisite job creation;

C. Clearly request approval for an exemplar I-526 and include a copy of an exemplar I-526;

D. Include all documents needed for I-526 approval excluding an investor's capital investment information;

E. Identify the amount and source of non-EB5 financing needed for the project.

I-924A annual report filings. USCIS noted that a Form I-924A filing will be required for all approved regional centers for FY 2011 on or before December 29, 2011. There is no filing fee for the I-924A. The I-924A supplement to the I-924 is used by approved regional centers to meet the yearly RC reporting requirement in 8 CFR 204.6(m)(6). Each approved regional center now must file the I-924A to report regional center-related activities for the preceding fiscal year within 90 days of the end of the fiscal year (on or before December 29of the calendar year in which the fiscal year ended).

USCIS said it plans to publish on its website summarized regional center data "to be responsive to requests for this information from a broad spectrum of USCIS' external stakeholders, to include members of Congress, other federal agencies, state agencies, and major media outlets." This information will include attributes of the regional center-affiliated capital investments, such as the geographic areas and industry categories receiving investment capital; the volume of regional center-affiliated capital invested; and the number of jobs created or maintained as a result of the capital investments.

Geographic regions. USCIS responded to a question about what criteria are used in determining the appropriate geographical boundary for a regional center that has one initial "shovel-ready" project but is planning future projects in a larger geographical area, but the details and location of the future projects are unknown:

A regional center may be granted jurisdiction over a limited geographic area for the purpose of concentrating pooled investment in defined economic zones.
A regional center must demonstrate in the Form I-924 that its activities will focus on the requested geographic region, and not simply on isolated and unrelated areas within the region.
It may be more appropriate for the regional center to initially request a geographic area that is in keeping with the economic impacts of the existing project, and then subsequently file an amendment request for an expanded geographic area as the details and location of future projects become known.

USCIS's agenda and full presentation are available here (scroll down to the links at the bottom).

The full list of RCs by state is available here.

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House Holds Hearing on Immigrant Investor Program and Job Creation

9/14/2011

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from ABIL EB-5 Investor News

On September 14, 2011, the House of Representatives' Subcommittee on Immigration Policy and Enforcement held a hearing on the EB-5 investor visa program. House Judiciary Committee Chairman Lamar Smith (R-Tex.) opened the hearing by declaring that the "number one job of Congress is to create jobs." He said the investor visa program plays a part in achieving that goal. "The regional center pilot project, which is almost two decades old, has become the most used part of the investor visa program," Rep. Smith noted. "Investment through a regional center is attractive to potential investors because they are relieved of the responsibility of running a new business and they can count indirect job creation towards the job creation requirement." He said that the Association to Invest in the USA "has estimated that the regional center program has created or saved over 65,000 jobs in the U.S. and has led to the investment of over $3 billion in the U.S. economy," and noted that the program is set to expire on September 30, 2012. Rep. Smith said the hearing would focus on how to continue bringing entrepreneurs to the U.S. while rooting out fraud and abuse.

Witnesses included William Stenger, President and Chief Executive Officer, Jay Peak Resort, Vermont; Daniel Healy, Chief Executive Officer, Civitas Capital Group, Texas; Jason Mendelson, Managing Director, Foundry Group, Colorado; and Shervin Pishevar, Managing Director, Menlo Ventures, California.

Mr. Stenger suggested that:

Congress should make the EB-5 program permanent so regional centers can concentrate on quality, long-term job-creating programs. He said that short-term extensions cripple its effectiveness because projects cannot plan correctly and potential investors do not have confidence due to the uncertainty.
U.S. Citizenship and Immigration Services (USCIS) should make every effort to be as efficient as possible with EB-5 case processing so that predictability can become a program asset instead of a program concern.
Premium processing should be allowed for EB-5 cases desiring it.
Regional center projects should be provided with a Business Plan Review and pre-approval before an I-526 submission takes place. Once an agreed-upon business plan is approved, it should not be revisited unless there is a substantial change.

Mr. Healy highlighted the job-creating aspects of the EB-5 program in difficult economic times, and also noted that the program costs taxpayers nothing and has an overall positive fiscal impact because of fees and taxes paid over time, in addition to jobs created. He argued strongly that unused EB-5 visas should not be reallocated to other categories and urged that Congress soon reauthorize the program permanently. "With each passing day, the uncertainty surrounding the program's reauthorization increases, making EB-5 capital more difficult to raise and therefore hampering the job-creation goal of the program," he noted. Mr. Healy also recommended that USCIS make premium processing available soon, which will allow regional center operators to plan for the future. (At the stakeholder meeting on September 15, 2011, USCIS Director Alejandro Mayorkas said premium processing would take time because a new form must be developed. See the full report on the stakeholder meeting in this issue.)

Mr. Healy also discussed the "exemplar" process, which refers to the ability of a regional center manager to obtain pre-approval for a project business plan before coordinating investors' submissions of hundreds of individual petitions. "It is vitally important that this process be streamlined and that decisions by USCIS be final and not subject to reinterpretation by USCIS in the context of an individual investor's I-526 petition," he said.

Mr. Healy shared his personal experience with relying on an approved exemplar petition, which cost $6,230 to submit and took eight months to adjudicate, only to have investors receive requests for evidence (RFEs) "on issues that should have been addressed at the exemplar stage." He said the process "must be reformed, standardized and streamlined so that it serves its intended purpose: eliminating uncertainty for regional centers and individual investors with respect to a particular project's compliance with EB-5 requirements, leaving only factors related to the individual investor to be adjudicated at the I-526 stage."

Mr. Pishevar shared his own success story as an immigrant entrepreneur, and said that reforming the legal immigration process "so that highly motivated, well-intentioned immigrant entrepreneurs who want to grow their businesses in America must be a Congressional priority." He also said that "growing bipartisan support for the Startup Visa proposal is indeed promising." Passing legislation encompassing much-needed reform would be a clear win for both sides of the aisle and Members of Congress need to do all that they can to break this logjam." Mr. Pishevar noted that "this is not a Republican issue or a Democratic issue. It is an American competitiveness issue where there is a clear opportunity to create jobs and foster innovation here."

Rep. Smith's statement and the statements of the witnesses are available here.

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USCIS Institutes Direct E-Mail Communication for Regional Center Applicants

9/13/2011

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from ABIL EB-5 Investor News

USCIS is implementing the first phase in a series of proposed enhancements to the EB-5 immigrant investor program. Beginning on September 13, 2011, Form I-924 (Application for Regional Center Under the Immigrant Investor Pilot Program) applicants now are able to communicate directly with USCIS adjudicators via e-mail.

USCIS intends to monitor the progress of this new line of communication to assess whether changes are needed and to implement any needed changes on a "real-time basis." Feedback in response to the use of the direct line of communication for the I-924 may be e-mailed to [email protected].

USCIS said it "is eager to implement all of the proposed enhancements to the EB-5 program that it first announced on May 19, 2011." USCIS is exploring how it can accelerate the implementation of premium processing, "which customarily takes months due to the need to revise the applicable forms." USCIS said it is hiring economists and other experts who will enhance and accelerate the adjudication process and also help constitute the Decision Board that was first described on May 19.

A related Q&A is available here. Information on the proposed enhancements to EB-5 processing is available here.

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Evaluating an Electronic I-9 Program – the Devil is in the Details

9/12/2011

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by Sharon Mehlman, ABIL Lawyer and Kimberley Best Robidoux
The I-9 and E-Verify Blog

There are some wonderful electronic I-9 programs out there, and like any other product on the market, some that are not so good.   So, Buyer Beware!  There have been articles and postings on issues of compliance and what to look for when purchasing an electronic I-9 program. However, the focus of this posting is slightly different and addresses issues that we have been encountering with increased frequency in our practice.   It is what we would call a “compliance loophole” and it has to do with whether a system can be compliant if all of its components may not be. The USCIS Handbook for Employers (M-274) lists some of the factors that USCIS (and ICE) are focused on to determine compliance and those will not be discussed here. As a reminder, neither USCIS, ICE or any other government agency involved in worksite enforcement has or will give a “seal of approval” to a specific electronic I- 9 program. Therefore, we can’t stress enough that it is the employer’s responsibility to make sure that any program that they purchase and use is compliant.

The Initial Review of an Electronic I-9 Program

An employer looking for an electronic I-9 program will typically engage in a formal “Request for Proposal” process or simply gather recommendations from colleagues and research publicly available sources (Internet search, trade show literature, etc.). Either way, the employer will likely have a laundry list of “requirements,” not least of which is whether the system will help them achieve total compliance with the I-9 rules in the M-274 Handbook. To make this assessment, they will ask the vendor some fundamental questions, see a few demos, and occasionally talk with counsel.

So let’s assume that the system has been reviewed and the employer determines that the overall program is compliant with the M-274 guidelines. Is that enough? The answer, in our opinion, is NO. While the assumption might be that a system either is or is not compliant, there is another level which is often overlooked – and that is, are any/all options within the program compliant? This issue is where we believe that employers (and even certain electronic I-9 program vendors) may be at risk.

The assumption, that all available options within a program are also compliant, is a dangerous one to make and in our experience, where some programs fall short. When an employer sees a demo of an I-9 system and reads all of the literature, they naturally assume that all options made available to them within the system would be in compliance and if specific ones are not, the vendor will advise appropriately. Many vendors, on the other hand, often take the position that it is the employer making the ultimate decision on which options to choose and they should seek legal counsel in doing so to make sure the options are in compliance. Some vendors will advise that in general, the employer should seek legal advice but not usually on an option-by-option basis. In addition, many employers do not have current legal counsel and it may seem like overkill to hire someone for this issue.

In reality, most employers simply won’t seek legal advice, and that will be to their detriment, in the case of an ICE audit. (In defense of the electronic I-9 vendors, we understand that they have many different clients to answer to and that the clients may be requesting or even demanding that options be made available for perceived efficiency, regardless of compliance. However, it is the opinion of the authors that those vendors should require the employers to affirmatively acknowledge that the options that they are requesting may not be in compliance based on current agency (including USCIS/ICE) guidance.)

Compliant or Non-Compliant?

At this point, you may be thinking – what are they talking about? We haven’t seen this with any programs that we’ve reviewed. The unfortunate fact is that employers don’t always dive deeply enough into all of the available options nor do they get attorneys involved in reviewing a system in detail. Attorneys themselves also may not be familiar enough with the electronic programs to know the available options and advise accordingly.

The following are some examples we’ve seen where options may change a program from compliant to non-compliant:

1.       Address in Section 1 of Form I-9

Section 1 of Form I-9 requests the employee’s “Street Address.” This appears to be asking where the person lives, as compared to a mailing address for example. However, some employers have allowed employees to use a P.O. Box in this section. In June of 2011, USCIS issued FAQs regarding Form I-9 completion and one of the questions asked was whether a P.O. Box could be used in Section 1 of Form I-9. USCIS stated that only a street address could be used in that section. (See FAQ listed on the I-9 Central portion of USCIS.gov)

Simple enough – right? Well, did you know that in spite of this guidance there are electronic I-9 programs on the market that allow the employer the option to use either a P.O. Box or a street address in Section 1 of the electronic form? The reasoning is that some employers, perhaps advised by their own counsel or driven by consensus, still want to have the option to accept a P.O. Box. In some instances, letting the employer know that this option is not compliant will get them to retreat from their position but for others, maybe not. It is the opinion of the authors that only options which are in compliance with current USCIS guidance should be given as options in the I-9 programs. We can understand that there are some issues of I-9 completion that are not black and white and where even ICE and USCIS disagree. In those, we would agree with providing options in the program with the caveat that the employer should discuss with legal counsel. However, for those issues where clear guidance has been provided, the focus should be on compliance and not preference and convenience.

2.       Pre-population of employee information

Some electronic I-9 programs have the ability to connect to other existing programs that an employer may have, such as an HRIS database. Certain data fields are then sent from the HRIS system to the electronic I-9 program, and the I-9 is subsequently pre-populated with the new hire’s information, such as name, date of birth, address and social security number. The employee can then review and correct Section 1 as needed and then sign and date the form. This may be seen as a convenience for the employer and the employee – but is it compliant?

According to the Form I-9 (and the M-274) only the employee may complete Section 1 of the form. If anyone provides assistance to the employee with completion of the section, the preparer/translator section of the Form should be completed as well. Therefore, if Section 1 is completed due to the employer’s pre-population, this is not in compliance unless the preparer/translator section of the form is also completed. This issue was recently confirmed by Harold Beasley, Jr., Worksite Enforcement Supervisor, ICE at the AILA Annual Conference in San Diego.

Some programs allow the employer to turn this function off or on, others do not. Most do not automatically complete the preparer/ translator section when the feature is on, and there is also the complicated issue of “who” would be listed as the preparer/translator in that instance. Would it be the person signing section 2 or can a computer program itself be listed? Again, is it the employer’s responsibility or the vendor’s responsibility to address these issues?

3.         Changes to the list of acceptable documents

According to the M-274, you may use an electronic I-9 form as long as “no change is made to the name, content, or sequence of the data elements and instructions and no additional data elements or language are inserted.” (see page 24 of the 6/1/11 version of the M-274). In many of the programs, options have been added to make the process more efficient. In addition, these options seek to simplify the process so that common errors can be avoided.

One example is having only certain documents, and not others, appear on the drop down menu for Section 2. The available options are based on which box is checked in Section 1, regarding a person’s status. For example, if the person checks the box that they are a US citizen, the option for a permanent resident card will not appear. If a person checks that they are a permanent resident, a US passport card or passport will not appear. Some programs do this automatically, while others have this as a feature to be turned on or off.

Since an employer is required to provide the individual with the list of acceptable documents when completing the I-9 form, is this “assistance” in compliance? Does the filtered drop down menu noted above amount to an employer requesting or advising as to which documents can and cannot be provided? There are differences of opinion on this and at a minimum, it is important that the full list of documents be available to the employee somewhere, either in paper or electronically elsewhere in the program. In addition, this question was specifically asked to the Dept. of Justice Office of Special Counsel (OSC) by an electronic I-9 software vendor in May of 2011. OSC stated that they could not provide specific information on a particular program. However, they were concerned that under certain circumstances this type of option in a program could lead to an OSC claim. (See letter available on the OSC web site here.) In light of this OSC opinion, it is important to make sure that an option regarding this feature be reviewed carefully with an attorney.

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A Decade after 9/11: The Fear of Lax Immigration Enforcement Still Haunts America

9/11/2011

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by Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Today, the 10th anniversary of the terrorist savagery of September 11, 2001, the nation pauses to remember the fallen and reflect on how our country has changed in the decade past. PBS and The New Yorker offer worthy contemplations on the changes since 9/11 and today, and two immigration lawyers, Cyrus Mehta and Jonathan Montag, on opposite coasts, ponder the immigration aftermath of the tragedy. (My own writings not long after the event are here, here, here and there.) Amid the many reflections, Twitter has been even more abuzz than usual. One exchange of tweets caught my eye. Michelle Malkin, anti-immigration commentator on Fox News, argued with a fellow who maintained that the none of the 9/11 hijackers were undocumented immigrants. She posted a link and got him to admit that although all of them had entered legally, three had overstayed their visas. She ended the exchange with this coup de grâce:

@michellemalkin "You are willfully blind to the nexus between lax immigration enforcement & homeland security. Shame."

Few objective observers would deny that immigration enforcement and homeland security are linked, or that too lax an enforcement regimen could well threaten our country's safety. But a fundamental question remains. Has the federal government properly achieved the right balance in the middle between the extremes of super-enforcement -- a hermetically sealed country that would atrophy without external refreshment -- and a breezily open-door approach that allows the bad to enter with the good? Has it balanced immigration enforcement with immigration benefits?

My answer would be mostly "no." The problem originated with Congress's effort to try and fix things. It placed the benefits-conferring function of the abolished Immigration and Naturalization Service within the Homeland Security Department when it should have remained under the Attorney General at Justice. No adjudicator can focus on eligibility for benefits when the mission and message of homeland security is that if there is the slightest, even phantasmagorical, doubt, keep people out.

Thus, we see the penchant for adjudicator rejection by any means necessary at U.S. Citizenship and Immigration Services and at U.S. consular posts abroad of worthy immigration-benefits requests. It matters not if the means are pretextual, circuitous, dilatory or disingenuous. Any boilerplate Request for Evidence, Denial, Refusal or Revocation based on spurious grounds will do. The Congressionally-induced and media-generated perception of pervasive fraud as a straw-man for delay and refusal likewise will suffice. Hypocrisy, thus, is salved by the false ointment of feigned patriotism.

Real patriotism, in my view, would bear in mind these anti-Malkinesque messages, also found on Twitter:

@USConGenChenna
#Obama: "We remember that among the nearly 3,000 innocent people lost that day were hundreds of citizens from more than 90 nations. #911"

@USConGenChennai
#Obama: "As a nation of immigrants, the United States welcomes people from every country and culture. #911"

In other words, we as a nation must heed the "Call to Courage" and "Reclaim . . . Our Liberties," as the ACLU reports. Yes, of course, we must perform all manner of security checks, fully and efficiently, thoughtfully scrutinize all immigration benefits requests for compliance with law in good faith, and keep out the dangerous and undeserving.

But never tie the tourniquets so tightly that you cut off our limbs. The torch-bearing Lady Liberty, who lights the Golden Door, must never become an amputee.

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Reflecting on 9/11 After 10 Years as an Immigration Attorney

9/9/2011

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by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

In the spring and summer of 2001, and the days just prior to September 11, 2001, things were not going so badly for immigrants. Although the Section 245(i) deadline of April 30, 2001 had expired, hundreds of thousands of people had managed to file their applications before the deadline to hopefully benefit from this provision and ultimately adjust status in the US even though they were in the US unlawfully. A week before September 11, Presidents Vicente Fox of Mexico and Bush were in serious negotiations on an immigration deal that would have granted benefits to undocumented immigrants, especially those from Mexico. In the same week, on September 6, 2001, a compromise was reached between the Senate and the House (the Senate had earlier passed its version) to extend the Section 245(i) provision to April 30, 2002, which would have allowed those unlawfully in the US to adjust status, albeit under more limited terms.

It was on that beautiful crystal clear Tuesday morning, September 11, just as I was leaving my Manhattan apartment for the office, worried about an impending deadline for an immigration case that a neighbor told me that a plane had crashed into the first tower. I went back home, and saw the second plane crash into the second tower on my television set. Before one could realize the horrific extent of the calamity that tragically killed just under 3,000 people, the towers came crashing down. It was difficult to realize then as I watched agape with horror how much would change for me as an immigration lawyer. I was the Chair of the Committee on Immigration and Nationality Law of the New York City Bar, and our next meeting was scheduled on September 13. I decided we should go ahead with the meeting and not call it off. It was important to have this meeting as our work was cut out, and I prepared remarks for the members of the committee. On September 12, it was important to send a loud and clear message that immigration was completely separate from terrorism. This became the most critical mission for the immigration lawyer and it remains so even ten years later.

Less than ten days after September 11, the Executive under Attorney General Ashcroft tweaked the rules to make it easier to detain immigrants. The expanded regulation, which took effect on September 20, 2001, authorized INS to hold any non-citizen in custody for 48 hours or an unspecified “additional reasonable time” before charging the person with an offense. In the post 9/11 sweep, immigrants from mainly Muslim countries were detained and deported in secret. Although they were detained because of immigration violations, it was under the pretext of investigating them for suspected links to terrorism. In the end, the 1000+ immigrants who were detained and deported in secret were not charged or convicted of terrorism. I remain surprised that not more noise has been made about this. As all this was happening, I wondered whether immigrants caught in the post 9/11 sweeps were being subjected to the same treatment as Japanese-Americans who had been interned after the Pearl Harbor attacks. Were not certain immigrants after 9/11 being broadly profiled in the same way under expanded powers in the name of national security as Japanese-Americans after Pearl Harbor? Was this another dark period in American history, and would we ever learn history’s lessons?

As if this were not enough, the Bush Administration implemented Special Registration, which applied to males from 26 countries, 25 of which had significant Islamic populations. Dutifully, 85,000 people lined up to register, thinking that they should cooperate with the government. 13,000 men who were found to have immigration violations, many of whom may have been on the path to getting green cards, were placed in deportation proceedings. Those who failed to register during the filing window continue to be affected even today, and may be unable to apply for an immigration benefit even through marriage to a US citizen. Special Registration confirmed my worst fears that race and religion were being used as proxies for individualized suspicion and guilt. In the end, Special Registration did not catch a single terrorist or make our country safer. Instead, it separated families, created more burdens on the government to administer the program, and in the end special registration was disbanded because it was a colossal failure.

The INS was dismantled and folded into the Department of Homeland Security bureaucracy. A new agency within DHS, Immigration and Customs Enforcement (ICE) came into being, which continues to expand and deport immigrants with even greater zeal. Databases got integrated, and fingerprints of all visitors needed to be taken at ports of entry. Visa interviews became mandatory and visa grants got delayed due to security checks. Many of the delays were needlessly caused due to the fact that one’s name matched a name in the humongous government database.

Yet it is a testament to the power and clout of immigrants that the basic underlying architecture of American immigration law did not change after September 11. There were no drastic cutbacks in visa quotas or categories. People continued to receive nonimmigrant visas and green cards. Foreign students continued to come to study at US universities of all stripes. The practice of immigration law continued in the same way. The only difference was that everything was seen through the prism of national security. Even a garden variety bona fide marriage case between a US citizen and foreign national spouse would only be approved after every aspect of the spouse's information was extensively checked against error-prone national data bases.

While the immigration system was left intact, including the draconian provisions from the 1996 immigration law, the September 11 attacks unfortunately prevented it from being improved and to keep pace with globalization. The 245(i) extension that was about to happen the week before September 11 never saw the light of day. The deal that was made between Presidents Bush and Vicente to legalize the status of millions of productive undocumented immigrants was put into cold storage. The immigration system continued to break, and then crash, but Congress was never interested in fixing it, perhaps based on a subconscious fear that immigration equated to terrorism. The immigrant visa preferences remain hopelessly oversubscribed resulting in waits lasting more than a decade. The H-1B cap limit of 65,000 has never been expanded, save for an additional measly 20,000 under a special advance degree cap. Several efforts to achieve Comprehensive Immigration Reform in Congress have failed. The last effort to pass the DREAM Act in December 2010 also failed. Even business immigration, which can spur growth and more jobs, has gotten bogged down because of national security concerns. There are admittedly other forces also at work. The sluggish economy, along with joblessness, can also serve as a disincentive for immigration reform, along with nativist backlash. But the main bogeyman has been national security, largely as a result of the trauma caused by the 9/11 attacks. Various states are competing with each other to pass laws that will punish suspected immigrants who are not in lawful status. And then there is the combustible mix of Islamophobia and Xenophobia, which got unleashed nearly 10 years after September 11.

I was all set to move downtown prior to September 11, 2001 to spanking new offices, and when the attacks happened, I did not break my new contract and moved in the hope that the area would get rejuvenated, and the immigration system would too. It took a long time for downtown to break itself from the doom and gloom of 9/11, but it did. Today, it has become a vibrant and bustling neighborhood with attractive restaurants, and I see each day with some joy the new World Trade Center rising like a phoenix, along with many other residential towers along with the opening of swanky new restaurants and shops. After ten years, I fervently hope that the immigration system will also break itself free from the shackles of the September 11 attacks. I yearn for a new immigration system like the new WTC that will invigorate the economy and attract the best from all over the world like we did before September 11. I also hope for an immigration system that will recognize the dignity of the individual and restore due process.

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Executive Craftsmanship: Job Creation through Existing Immigration Laws

9/4/2011

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by Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

The dog days of August are behind us, yet the economic doldrums persist. Unemployment remains unchanged and unacceptably high at 9.1%. The White House forecasts that it will stay there through the New Year and then likely drop only a tenth of a percentage point for all of 2012. Congress returns this week to Washington. Vituperation in lieu of legislative action will soon begin. The media kerfuffle over the timing of the Obama-Jobs speech enraged most citizen observers. Meantime, pundits are asking about the content of the President's speech: Will he go large to appease dispirited Progressives? Or, will he propose modest measures that "the Left [won't] understand" in the hope of winning bipartisan support.

American politicians and special interests seem to have forgotten the "vigorous virtues [of self-reliance, personal responsibility, industriousness and a passion for freedom]," as David Brooks, op-ed columnist for the New York Times, observes. Brooks argues, convincingly, that as a result of this forgetfulness (I would call it blind and callous indifference) a "specter [is] haunting American politics: national decline."

The descent, however, is not inevitable. It can be reversed. A largely unseen, silent, law-abiding yet shackled group within our midst embodies all of the vigorous virtues. They are the sojourners from abroad who are yoked to the constricting terms and conditions of a U.S. employer's work visa petition. These hard-working souls are prohibited by law and dubious agency interpretations from using their ideas, talents, capital and energy to start companies and hire American workers.

Fortunately, no act of Congress is required to unleash these innovators, entrepreneurs and job creators and empower them to work their magic.

The White House already knows it possesses the authority through executive action in immigration matters. The Administration's recalibration of its immigration enforcement priorities has evoked little public outcry. Disinformation, however, is spreading but failing to gain much traction. The "Backdoor Amnesty" dog has no legs and won't hunt.

If unauthorized immigrants with positive equities warrant legitimate administrative relief, as they clearly do, why not reward the more deserving foreign citizens who have patiently waited and played by the rules?

The President should therefore continue trying to jump start job-creation and allow the next generation of Apples, Googles and as yet unimagined supercompanies to take root in American soil and thrive. The White House's early steps "to Promote Startup Enterprises and Spur Job Creation" have been criticized, however, in this blog and elsewhere, as overly narrow and unhelpful. These missteps are not failures. They are merely invitations to persist, as the iconic American innovator, Thomas Edison, reminds us ("I have not failed. I've just found 10,000 ways that won't work").

Here then are my suggestions to President Obama for administrative reform of the legal immigration system, as presented to attendees at an outstanding event convened on August 31 in Los Angeles by January Contreras, the USCIS Ombudsman ("Listening Session to Explore Small and Start-Up Business Immigration Issues"):

Instruct U.S. Citizenship and Immigration Services (USCIS) to rescind the January 8, 2010 "Neufeld Memorandum" on employer-employee relationships and replace it with a regulation expressly allowing immigration self-sponsorship by owner-entrepreneurs in a broad array of work visa categories for employment on company premises and at customer sites.
Instruct USCIS and the State Department to issue -- on an expedited basis -- replacement or initial regulations interpreting the following laws in the expansive and job-creating spirit that Congress intended: The Immigration Act of 1990, the American Competitiveness and Workforce Improvement Act of 1998, and the American Competitiveness in the Twenty-First Century Act of 2000. These regulations should, e.g., broaden eligibility for all categories of the L-1 Intracompany Transferee visa, particularly for start-up operations, function managers and specialized knowledge personnel.
Instruct USCIS to focus on improving the quality of adjudications by improving the corps of adjudicators who make employment-based immigration decisions:
- Impose stricter hiring requirements, including the minimum of a relevant bachelor's degree (if it takes that to receive an H-1B visa, the same should apply to grant one), strong writing and analytical skills.
- Cause the Small Business Administration to provide training to adjudicators on the characteristics, contributions and challenges of small businesses and startups.
- Review performance metrics and institute sanctions for improper issuance of Requests for Evidence, Notices of Intent to Deny and Revocation notices, while rewarding positive behaviors.
Instruct USCIS to grant nonimmigrants in lawful immigration status the benefits of “parole in place” and open-market work authorization upon submission of proof that they will open a business, buy a home, hire U.S. workers or devise an innovative technology, good or service.
Instruct USCIS to allow beneficiaries of approved employment- or family-based immigrant visa petitions whose place in the visa queue is backlogged to apply for adjustment of status (thereby entitling them to open-market work permits until they reach the front of the visa line and can receive green card approval).
Instruct USCIS to allow Premium Processing of employment-based Administrative Appeals Office appeals and all Motions to Reopen or Reconsider along with the tolling of unlawful presence penalties and the grant of employment authorization during the pendency of non-frivolous filings.
Instruct the Labor Department to add entrepreneurs and investors to the pre-certified Schedule A labor certification exemption, and allow an entity owned by such individuals to self-sponsor for green card status.
Instruct USCIS to publicize its 2008 Notice prohibiting internal retaliation against small businesses, define “retaliation” broadly and pursue violations aggressively.
Instruct USCIS to eliminate the Directorate, Fraud Detection and National Security (FDNS), and instruct U.S. Immigration and Customs Enforcement (ICE) to exercise all investigative and enforcement functions involving alleged immigration benefits fraud and immigration-related national security concerns.
Instruct ICE to investigate only those small business violations based on articulable and reasonable cause that a violation of the INA has occurred. Stop the guilty until proven innocent approach currently in use.
Instruct USCIS to appoint an Associate Director who reports directly to the Director and who is solely responsible for promoting and facilitating the grant of employment based immigration benefits and reporting actions by USCIS personnel that impede, impair or deny the grant of such benefits to deserving parties. This Associate Director would also have authority to intervene under the Homeland Security Act when the State Department takes actions that unreasonably interfere with or deny immigration benefits to startups and small businesses.
Require strict compliance by all immigration agencies with the notice-and-comment requirements of the Administrative Procedure Act and the small-business-impact analysis required under the Regulatory Flexibility Act, and phase out the practice of issuing guidance by policy memorandum.
Instruct and empower the Small Business Administration’s Office of Advocacy to review and recommend changes to DHS, DOL and DOS rules that adversely affect job creation, entrepreneurship, investment and innovation by small businesses and start-ups.

As we await the President's address to a joint session of Congress, many anticipate that at least one proposal will be to rebuild our nation's existing infrastructure -- the roads, bridges, waterways, and rails. Let's hope he also includes legitimate administrative fixes to our creaking and crotchety LEGAL immigration infrastructure. American citizens looking for jobs deserve nothing less.

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Report and Comments on EB-5 Meetings in Washington

Off-Message Immigration Bureaucrats Undermine the President's Jobs Push by Refusing L-1 Specialist Visas to Indian Citizens

Reinterpreting the Automatic Conversion Provision of the CSPA to Help DREAM Kids

USCIS Announces Increase in RC Filings, EB-5 Approvals at Quarterly Meeting

House Holds Hearing on Immigrant Investor Program and Job Creation

USCIS Institutes Direct E-Mail Communication for Regional Center Applicants

Evaluating an Electronic I-9 Program – the Devil is in the Details

A Decade after 9/11: The Fear of Lax Immigration Enforcement Still Haunts America

Reflecting on 9/11 After 10 Years as an Immigration Attorney

Executive Craftsmanship: Job Creation through Existing Immigration Laws

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