June 2013 Newsletter
In This Issue
Senate Committee Approves Comprehensive Immigration Reform Bill
On May 21, 2013, the Senate Judiciary Committee approved an amended S. 744, the "Border Security, Economic Opportunity and Immigration Modernization Act of 2013," by a bipartisan vote of 13-5. A full Senate vote is likely in June.
The comprehensive immigration reform legislation was developed by a "Gang of Eight" bipartisan group of senators and introduced on April 17. The Gang of Eight includes Sens. Marco Rubio (R-Fla.); John McCain (R-Ariz.); Lindsey Graham (R-SC); Jeff Flake (R-Ariz.); Chuck Schumer (D-NY); Robert Menendez (D-NJ); Michael Bennet (D-Colo.); and Richard Durbin (D-Ill.). Numerous amendments were proposed during committee markups, and some were accepted.
Among other things, the bill would offer a pathway to legal permanent residence through "registered provisional immigrant status" for 10 years for an estimated 11 million undocumented persons who arrived in the United States before December 31, 2011; introduce a new visa for lower-skilled, nonagricultural foreign workers; and reduce the backlogs in the employment and family preferences. It also would create a startup visa for entrepreneurs. It would include an increase in visas for both high- and low-skilled workers. The limit on H-1B workers would increase from 65,000 to 110,000 annually, although companies with at least 15 percent foreign workers would have to meet certain conditions.
A move to give same-sex spouses equal rights under immigration law failed.
Kenneth Palinkas, president of a union representing 12,000 U.S. Citizenship and Immigration Services (USCIS) immigration adjudications officers and staff, issued a statement on May 20, 2013, opposing the legislation. Noting that his union, the National Citizenship and Immigration Services Council, was not consulted when the "Gang of Eight" crafted the legislation, he charged that S. 744 "will damage public safety and national security and should be opposed by lawmakers." Among other things, he said USCIS has been turned into an "approval machine" that "serves illegal aliens and the attorneys which represent them," and blamed an "onslaught of refugees" for "the strain put on our Social Security system" that is depleted "as soon as their feet touch U.S. soil." The National Immigration and Customs Enforcement Council (NICEC), a union for ICE officers, blasted the legislation in a letter to Congress signed by Mr. Palinkas also.
Department of Homeland Security (DHS) officials countered Mr. Palinkas' statement, stating that many safeguards were added in recent years, such as an anti-fraud unit created in 2010, an increase in anti-fraud officers, scrutiny of employee decisions, a focus on security threats, and expansion of requirements for biometric screening. Commenting on one of the programs Mr. Palinkas criticized, deferred action for childhood arrivals, the New York Times quoted Peter Boogard, a DHS spokesperson, as noting that "[r]everting back to a system that treats violent criminals the same as children brought to this country through no fault of their own would only undermine the integrity of the immigration system and force law enforcement agencies to divert limited resources from focusing on those who pose real threats to their communities." A New York Times editorial on May 21, 2013, called the letter to Congress "a screed, a grab bag of misdirection, scary talk and lies." The editorial concluded, "The country is better served by the saner, more responsible law-enforcement officials, like the sheriffs, police chiefs and attorneys general who have lined up behind the bill, saying the current system undermines law enforcement by forcing the undocumented to live in anonymity and fear."
Among other reactions, immigration activists in the Senate committee room chanted, "Yes, we can!" when the bill passed. A nonprofit association for the IT industry, CompTIA, also applauded the compromise bill. CompTIA released a statement noting that "[m]any of our membership are small and medium-sized technology firms that benefit from a strong pipeline of talent throughout the industry.... [W]e were pleased to see included in the legislation language akin to the INVEST and STEM visas. Allowing STEM advanced degree holders to remain in the U.S. with a green card gives [tech businesses] an opportunity to recruit talent that they might not otherwise have access to. Allowing foreign entrepreneurs willing to stay and invest in our country also makes sense, as more than a quarter of all technology and engineering businesses launched in the U.S. between 1995 and 2005 had an immigrant founder."
The text of the bill as introduced is available here. The list of amendments and their outcome in the markups is available here. The NICEC letter is available .
Signalling Flexibility Within Limits, USCIS Releases Final Version of EB-5 Policy Memo
U.S. Citizenship and Immigration Services (USCIS) has released the final version of a long-awaited memorandum on EB-5 adjudications policy that went through four iterations beginning in November 2011.
The memo begins by reviewing the purpose and structure of the EB-5 immigrant investor program and reviews terminology and definitions, noting that the program's purpose is "to promote the immigration of people who can help create jobs for U.S. workers through their investment of capital in the U.S. economy."
Regarding the "preponderance of the evidence" standard, the memo notes that adjudication of EB-5 petitions and applications must establish each element by showing that what is claimed is "more likely so than not so." This is a lower standard of proof than the "clear and convincing" or "beyond a reasonable doubt" standards. "The petitioner or applicant does not need to remove all doubt from our adjudication," the memo states. Even if an adjudicator has some doubt, if the petitioner or applicant submits "relevant, probative, and credible evidence" that leads to the conclusion that the claim is more likely than not, or probably true, the petitioner or applicant has satisfied the standard of proof.
The memo allows a degree of flexibility in certain areas, such as "to account for the realities and unpredictability of starting a business venture," although it cautions that this is not an "open-ended allowance." The memo notes, for example, that the EB-5 program allows an immigrant investor to become a lawful permanent resident, without conditions, if he or she has established a new commercial enterprise, substantially met the capital requirement, and can be expected to create within a reasonable time the required number of jobs. All of the goals of capital investment and job creation need not have been fully realized before the conditions on the immigrant investor's status have been removed. Rather, the memo states, the regulations require the submission of documentary evidence that establishes that it is more likely than not that the investor is in "substantial" compliance with the capital requirements and that the jobs will be created "within a reasonable time."
USCIS has some latitude in interpreting what constitutes "within a reasonable time," the memo notes, adding that the regulations require that the business plan submitted with the Form I-526, Immigrant Petition by Alien Entrepreneur, establish a likelihood of job creation "within the next two years." Because the law contemplates two years as the baseline expected period in which job creation will take place, the memo explains, jobs that will be created within a year of the two-year anniversary of the immigrant's admission as a conditional permanent resident or adjustment to conditional permanent resident status may generally be considered to be created within a reasonable period of time. Jobs projected to be created beyond that time horizon "usually will not be considered to be created within a reasonable time, unless extreme circumstances, such as force majeure, are presented," the memo warns.
Following the theme of flexibility with limits, the memo acknowledges that business strategies "constantly evolve." Therefore, the Form I-924, Application for Regional Center, provides a list of acceptable amendments, including "changes to organizational structure or administration, capital investment projects (including changes in the economic analysis and underlying business plan used to estimate job creation for previously approved investment opportunities), and an affiliated commercial enterprise's organizational structure, capital investment instruments or offering memoranda." The memo notes, however, that such formal amendments to the regional center designation are not required when a regional center changes its industries of focus, geographic boundaries, business plans, or economic methodologies, unless the regional center elects to pursue an amendment because it seeks certainty in advance of adjudication.
The memo also notes that unless there is reason to believe that a prior adjudication involved an objective mistake of fact or law, USCIS should not reexamine determinations made earlier in the EB-5 process. Absent a material change in facts, fraud, or willful misrepresentation, the memo states, USCIS should not re-adjudicate prior USCIS determinations that are subjective, such as whether the business plan is comprehensive and credible or whether an economic methodology estimating job creation is reasonable.
Other topics the memo discusses include targeted employment areas; new commercial enterprises; purchases of existing businesses that are restructured or reorganized; expansion of existing businesses; pooled investments in non-regional center cases; evidence of the establishment of, or investment in, a new commercial enterprise; job creation; qualifying employees; the sequence of individual investor filings; business plans; and the impact of "material changes" to a project.
The 27-page memo is available here.
CBP Releases Travel Tips, Improvements in Arrival Process for International Travellers
U.S. Customs and Border Protection (CBP) announced on May 22, 2013, that it is easing the international arrival process with new technology and procedures, including automating the I-94 Arrival/Departure Record and expanding self-service kiosks.
CBP said that additional steps travelers can take to smooth their arrival process include familiarizing themselves with U.S. rules and regulations before departing. The agency released its "Top 10 Travel Tips" (edited):
The CBP announcement including the travel tips is available here. The announcement about the seasonal border station is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/local/05212013_4.xml. A FAQ on the I-94 automation is available here.
USCIS Issues Reminder About New I-9 Version, Releases Q&A’s on Monitoring and Compliance
U.S. Citizenship and Immigration Services (USCIS) issued a reminder that as of May 7, 2013, employers must use the latest version of the I-9 employment eligibility verification form for new hires. The new form has a revision date of "03/08/13 N" in the lower left corner of the first instructions page. It expires on March 31, 2016.
Q&A's on the E-Verify monitoring and compliance functions are available here.
A USCIS I-9 blog explaining details about the new form is available here. The new form is available here.
New Publications and Items of Interest
Report on U.S.-Canada Entry/Exit Project. The Department of Homeland Security (DHS) and the Canada Border Services Agency (CBSA) released a joint report on May 14, 2013, on Phase I of the Entry/Exit project, part of the Beyond the Border Action Plan. The report outlines progress made to establish a coordinated Entry/Exit information system and further enhance security along the U.S.-Canada border. Under the pilot project, DHS and CBSA exchanged routine biographic entry information. The program tested the concept of an Entry/Exit system for both countries through the exchange of information, such that an entry into one country becomes an exit from the other.
The report and a related announcement are available here.
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
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