New York & New Jersey Immigration Lawyer Blog

The EB-5 visa, also known as the immigrant investor visa, allows immigrant entrepreneurs and investors to come to the U.S. if they meet certain criteria related to the amount of their investments and the number of jobs they can create for American workers. While the processing time for EB-5 visa petitions is less than many other types of visas, it can still take months that the prospective immigrant, not to mention the immigrant's business venture and the American workers who need jobs, would prefer to spend getting the business started. Federal law gives preference to EB-5 visa petitions affiliated with an approved Immigrant Investor Regional Center, and U.S. Citizenship and Immigration Services (USCIS) has developed criteria for expediting certain Regional Center-affiliated petitions.

Wait Time for EB-5 Petitions

The U.S. State Department's Visa Bulletin for May 2013 states that the government is current on processing EB-5 petitions, but the process can still take months, if not longer. An immigrant seeking admission the the U.S. with an EB-5 visa must embark on numerous time-sensitive undertakings, including the formation of or investment in a commercial enterprise with a stake of up to $1 million, and the creation of at least ten full-time jobs for authorized U.S. workers.

Regional Center Priority

Regional Centers are third-party businesses, which may be public or private, approved by USCIS to assist EB-5 visa petitioners. A Regional Center may, in exchange for an administrative fee, handle aspects of the investment for the visa petitioner, particularly job creation. Congress created a pilot program in 1992 that established a priority for EB-5 petitions affiliated with a Regional Center by guaranteeing a fixed number of visas set aside each year. Pub. L. 102-395 § 610.

Continue reading "Requesting Expedited Processing of an EB-5 Immigrant Investor Visa Petition" »

Senator Charles Schumer of New York, joined by a bipartisan group of seven senators, introduced Senate Bill 744, the "Border Security, Economic Opportunity, and Immigration Modernization Act," on April 16, 2013. The bill tries to address a wide range of concerns, ranging from promoting immigrant entrepreneurship to providing for the millions of undocumented immigrants currently residing in the U.S. At more than eight hundred pages, the bill covers a far wider range of issues than we could hope to summarize. Various media outlets have created their own summaries of the bill, so here is our list of a few provisions of interest to immigrants, businesses, and families.

Path to Legal Residency

For the roughly 11 million undocumented immigrants believed to be living in the United States, the bill provides a means of obtaining work authorization and eventual permanent residence. It makes these benefits conditional, however, on the achievement of certain benchmarks by the Department of Homeland Security (DHS). Once DHS has submitted a plan for enhanced border security, with a budget of up to $4.5 billion, undocumented immigrants who have been present in the U.S. since December 31, 2011 may pay a fine and obtain provisional immigration status, the ability to obtain parole to travel outside the country, and work authorization. S. 744, § 2101 (113th Cong.) Qualified immigrants may then be able to adjust status to lawful permanent resident.

Continue reading "Lawmakers Introduce Immigration Reform Bill in Congress" »

High demand for skilled immigrant workers led to one of the briefest H-1B visa petition periods in recent years, with U.S. Citizenship and Immigration Services (USCIS) announcing that the number of petitions it received met or exceeded the annual statutory cap in just five days. The agency anticipated this before it began accepting petitions for fiscal year 2014, and it announced changes to its "premium processing" system to account for the expected high volume of petitions. In order to process the high volume of petitions subject to the annual cap, USCIS is using a lottery system to select petitions for approval. USCIS will continue, during this time, to accept petitions for current H-1B visa holders seeking to extend or modify their visas.

The H-1B visa, a temporary, nonimmigrant visa for highly-skilled workers coming to the U.S. for a "specialty occupation," is subject to an annual cap of 65,000. Employers petition on behalf of the prospective immigrant for a specific job. Types of jobs eligible for an H-1B visa often involve computer programming, but include many jobs in the science, technology, engineering, and mathematics (STEM) fields. The first 20,000 petitions filed for individuals with master's degrees or higher from a U.S. college or university are not subject to the cap. The remaining petitions must compete for limited available visas. USCIS began accepting H-1B petitions for fiscal year 2014 on April 1, 2013, and the number it received reached the 65,000-visa cap by April 5. This was therefore the "final receipt date," when USCIS stopped accepting new H-1B petitions.

Continue reading "H-1B Visa Cap for Fiscal Year 2014 Reached in Just Five Days, USCIS to Hold Lottery" »

U.S. Citizenship and Immigration Services (USCIS), as part of a general effort to consolidate its policies and procedures, has issued a draft memorandum for the EB-5 investor visa, which allows immigrant investors and entrepreneurs to obtain green cards if they meet certain benchmarks. The new memorandum does not necessarily change existing policies or procedures related to the EB-5 program, but rather collects the existing policies and procedures in a single document.

Beginning in November 2011, USCIS Director Alejandro Mayorkas called on the agency to "improv[e] its administration of the...EB-5 program." In a memo dated November 9, 2011, he announced reforms to the EB-5 adjudication process, including the addition of "economists with business analysis expertise" to augment the EB-5 adjudicators and a consulting firm to improve adjudication efficiency. The final step of the the process, he announced in that memo, is consolidation of the EB-5 policies into a "single overarching agency policy memorandum." The recently released memorandum represents that final step.

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U.S. Citizenship and Immigration Services (USCIS) released the first volume of a planned twelve-volume comprehensive Policy Manual (the "Manual") earlier this year. The first volume, actually designated as Volume 12, covers policies related to citizenship and naturalization. It took effect January 22, 2013, and takes the place of a "field manual" and a set of policy memoranda with rather inefficient organization. The Manual is the result of several years of review of the decade-old immigration agency's policies and procedures. It will hopefully bring greater organization and efficiency to USCIS, although from the standpoint of immigration attorneys and advocates, that lack of organization sometimes works to the benefit of clients.

Previous USCIS Resources

USCIS officially came into being on March 1, 2003, thanks to the Homeland Security Act of 2002. The former Immigration and Naturalization Service (INS) split into three separate agencies within the newly-created Department of Homeland Security, with USCIS charged with "national immigration services." This includes processing of most petitions and applications for immigration benefits. Prior to the Manual, the two primary sources of USCIS policies and procedures were the Adjudicator's Field Manual (AFM) and the set of immigration policy memoranda maintained by USCIS on its website.

Continue reading "First Volume of USCIS's Planned 12-Volume Policy Manual Addresses Citizenship and Naturalization" »

American families who wish to adopt a child from abroad face an array of challenges. While federal immigration law places few, if any, barriers to citizenship for a child adopted by U.S. citizen parents once the child is in the U.S. and the adoption is complete, the process of actually getting the child to the U.S. can be difficult, depending on the laws of the child's home country. Several countries have instituted bans on intercountry adoptions with the U.S., including adoptions that were in progress. This has prevented some families, who have already met and bonded with the children they want to adopt, from bringing them home.

The AP reported on the "Kyrgyz 65," a group of Americans who are trying to adopt sixty-five children from Kyrgyzstan in central Asia. The adoption process stalled in 2008, when the Kyrgyz government halted international adoptions because of alleged corruption. Kyrgyz government officials were accused of "dealing in what was effectively a trade in children," according to the AP. The situation grew even more complicated in April 2010, when an uprising deposed the country's president, who fled to neighboring Kazakhstan and then to Belarus. Two months later, ethnic violence broke out between Kyrgyz, who constitute the majority ethnic group, and minority Uzbeks.

Kyrgyzstan's new president signed a law in May 2011 establishing new guidelines for adoptions, but much of the law still has not taken effect. The Kyrgyz government shut down adoptions again in July 2012 because of corruption charges. While some of the Americans have given up in the roughly five years since their adoption processes started, about fifteen families continue to travel to Kyrgyzstan to visit the children, and they regularly send letters and packages. The U.S. State Department last updated its adoption information for Kyrgyzstan in June 2011.

Continue reading "American Families Struggle with Foreign Bans on Intercountry Adoptions" »

A proposal issued on January 28, 2013 by a group of eight U.S. senators, entitled the "Bipartisan Framework for Comprehensive Immigration Reform" (the "Framework") offers an outline of at least two possible new forms of employment-based immigration. One method would apply to immigrants with advanced technical degrees, and the other would allow lower-skilled workers in industries like agriculture to come to the U.S. to work, with the number of visas adjusted based on economic conditions. The proposed green card programs are very ambitious, and the Framework provides no specific details about whether some of their features would even be feasible.

Bipartisan Framework for Comprehensive Immigration Reform

Eight senators, including Democrats Charles Schumer of New York and Robert Menendez of New Jersey, issued the Framework as part of a broad national discussion on immigration reform. The Framework identifies four "legislative pillars": 1. allowing undocumented immigrants in the U.S. to gain citizenship while improving border security, 2. immigration reforms that strengthen American families and the economy, 3. improved verification of employment eligibility, and 4. employment-based immigration that meets the needs of America's workforce and protects workers. The Framework's proposals for the second and fourth pillars include recommendations for employment-based green cards.

STEM Green Cards

One proposal would create a new category of green card for immigrants who obtain advanced degrees in the fields of science, technology, engineering, or mathematics (STEM) from American universities. A bill that would have created such a green card category died in the Senate late last year, based on objections to the bill's elimination of the entire diversity visa program. Some sort of reform in this area is necessary, as research suggests that the U.S. is facing a shortfall in workers with STEM degrees. According to a May 2012 report from the Partnership for a New American Economy and the Partnership for New York City, the growth of the U.S. workforce has slowed to under one percent, and the country could face a shortfall of 230,000 STEM-educated workers by 2018.

Continue reading "Bipartisan Proposal for Comprehensive Immigration Reform Includes New Employment-Based Green Card Opportunities" »

During his second inaugural address on Monday, January 21, 2013, President Barack Obama emphasized the need to attract skilled workers and students from abroad, and the need for immigration reform to achieve that goal. Demand for highly-skilled workers in fields involving science, technology, engineering, and mathematics (STEM) vastly outpaces the available supply of work visas, with the government routinely approving fewer than half of the petitions filed each year. Caps on the number of visas immigration authorities may issue each year, particularly H-1B skilled worker visas, are largely responsible for the gulf between supply and demand. Both political parties agree on the need to expand access to immigrants in STEM fields, but they do not agree on how to do it.

President Obama has addressed the need for immigration reform affecting skilled worker visas several times recently. In his second inaugural address, he spoke of the need to "enlist[ immigrants] in our workforce rather than expel[ them] from our country." He made a much more stark reference to the problems faced by American businesses in his 2012 State of the Union Address, stating that immigrants who cannot remain in the U.S. after obtaining STEM degrees from American universities will go home and "invent new products and create new jobs" there instead of here.

Continue reading "Inaugural Address Includes Call for Immigration Reform to Attract More Workers in High-Tech Fields" »

The number of employer audits conducted each year by U.S. Immigration and Customs Enforcement (ICE) has increased significantly in the past five years. The Obama administration has reportedly made investigation and enforcement of employment regulations a central feature of its immigration policy. The goal is to penalize companies that knowingly employ unauthorized individuals, and to deter other companies from doing so. Employers that do not maintain adequate records may face fines, even if they do not employ any unauthorized workers.

All employers must collect employment authorization verification forms, known as Form I-9, from employees and new hires. Employees and new hires must submit copies of documentation that demonstrates their identity and their eligibility to work within the United States. Employers are responsible for verifying that these documents appear authentic on their face. In practice, this puts managers and human resources officials in charge of authenticating government documents, a task for which they may not be qualified.

ICE may conduct an audit or inspection of a company's employment records by serving the company with a Notice of Inspection. This gives the company three business days to produce its I-9 records, as well as such other employment records as ICE inspectors may require. Inspectors must notify the business of any violations or discrepancies identified in their review, and the business has ten business days to correct any problems. After that period is up, ICE may assess penalties against the company.

Continue reading "I-9 Audits on the Rise, According to Federal Immigration Authorities" »

U.S. Citizenship and Immigration Services (USCIS) has allegedly undercounted the number of H-1B visa petitions it has approved during the past five years, according to several immigration advocates. Documents obtained through a Freedom of Information Act (FOIA) request showed that, since fiscal year 2008, the agency has approved about 45,000 fewer H-1B visas than the maximum amount allowed by law. H-1B visas allow employers to hire highly-skilled workers for positions where no qualified U.S. citizen or permanent resident is available. Various delays and roadblocks in the application process already make H-1Bs difficult to obtain. A possible undercount by the government presents even greater difficulties for employers.

Foreign workers in "specialty occupations" may obtain H-1B visas to come to the U.S. temporarily to work in a specific job. Occupations that require a worker to apply "a body of highly specialized knowledge," both "theoretical[ly] and practical[ly]," may qualify for a visa. 8 U.S.C. § 1184(i)(1). Employers who wish to hire a foreign worker may petition USCIS for an H-1B visa. They must obtain Department of Labor certification for the position indicating that no qualified U.S. citizen or permanent resident worker can fill the job. Federal law limits the total number of H-1B visas that USCIS may issue per year, not including exempt petitions involving advanced degrees, to 65,000. 8 U.S.C. § 1184(g)(1), 8 C.F.R. § 214.2(h)(8)(i)(A)(4).

According to an analysis of documents released by USCIS, the agency has undercounted H-1B visas over the past five years by more than 45,000. Immigration blogger Greg Siskind alleges that USCIS has miscalculated the H-1B cap, leading to an undercount of almost fifteen percent. The upper limit set by statute would have allowed USCIS to issue 325,000 H-1B visas for the period from fiscal year 2008 through 2012. During that time, according to the FOIA documents, it approved 288,383. When the 8,988 applications it classified as "withdrawals" are deducted from the number of approvals, the total amount is 45,605 lower than the maximum allowed by law.

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The issue of human trafficking has gained considerable attention in recent years, with both the federal and state governments passing legislation and creating task forces to review the issue. According to various sources, thousands of people are trafficked into and throughout the United States for labor in various industries and the sex trade. Reliable statistics on the number of people are difficult, if not impossible, to obtain, in large part because they can be difficult to identify. Some state laws, as well as proposed federal legislation, require some businesses to disclose information about internal anti-trafficking controls. Businesses in New Jersey that employ immigrant workers or deal frequently with companies overseas should be aware of the laws and regulations relating to human trafficking.

Human trafficking reportedly affects most aspects of the American economy, according to legislators in both Washington DC and Trenton. The U.S. Department of State has stated that up to 27 million people around the world are "victims of modern slavery," with 50,000 to 100,000 in the United States. These numbers are estimates based on a variety of factors, while actual arrests reflect much lower numbers. According to the New Jersey Division of Criminal Justice, the state has encountered 179 cases of human trafficking, including both labor and sex trafficking since 2005, a rate of approximately twenty-six cases per year.

The federal Victims of Trafficking and Violence Protection Act of 2000 provides for a wide range of federal efforts to combat trafficking. These include provisions for sanctions against countries that permit human trafficking and sentencing enhancements for individuals convicted of federal trafficking-related offenses. A bill proposed in Congress in 2011 would require certain large businesses to include information on anti-trafficking efforts in their annual filings with the U.S. Securities and Exchange Commission (SEC). The required information would include company policies addressing prevention of trafficking and adherence to labor laws.

Continue reading "Immigration and Criminal Laws Take On Human Trafficking in New Jersey" »

"Prosecutorial discretion," in the context of federal immigration law, refers to the right of immigration authorities to defer prosecution of certain cases in order to focus resources on areas of higher concern. The Obama administration, working with the Department of Homeland Security (DHS), has developed a series of criteria for the immigration agencies to follow when deciding what cases to pursue. It expanded the criteria this summer to include individuals who entered the United States without inspection as children. This policy is known as Deferred Action for Childhood Arrivals. More recently, guidelines from DHS expanded the definition of "family," with regard to deferring cases where an individual has started a family in the U.S., to include long-term same-sex relationships.

Immigration and Customs Enforcement (ICE), part of DHS, issued a memorandum in June 2011 that identified "enforcement priorities" and outlined the elements of prosecutorial discretion. Recognizing its limited resources, ICE stated that its agents should focus on cases that reflect the enforcement priorities of promoting "national security, border security, public safety, and the integrity of the immigration system." June 2011 Memo at 2.

Prosecutorial discretion covers a wide range of actions, or lack of action, as the case may be, ranging from deciding not to stop or question a person to dismissing pending removal proceedings. ICE provided a lengthy list of factors for personnel to consider when determining whether to pursue a matter. Of particular note are factors relating to a person's length of time in the U.S., family connections or roots in the community, and family members who are United States citizens or permanent residents. Statistics released by ICE in April 2012 indicate that the agency had reviewed over 200,000 pending cases and identified more than 16,000 that fit the criteria for prosecutorial discretion.

Continue reading "Immigration Authorities Expand Prosecutorial Discretion Policies to Include Same-Sex Relationships" »

Employers must adhere to a strict set of regulations regarding verification of employee work eligibility. Immigration and Customs Enforcement (ICE) has increased the number of audits in recent years, and the penalties for employers who are not in compliance can be steep. The impact of Hurricane Sandy, or any comparable disaster, on employer compliance is not yet fully known. U.S. Citizenship and Immigration Services (USCIS) has offered some guidance on how to avoid compliance issues in the wake of a disaster, and businesses can follow a few simple steps to keep their records in order.

Hurricane Sandy hit New York City, large areas of New Jersey, and other parts of the eastern seaboard in late October 2012, causing as-yet-unknown amounts of damage, displacing thousands of people and leaving thousands more without power. The storm disrupted transportation, and therefore business, all over the greater New York City area. I-9 compliance may seem like the least of many businesses' worries, and in the immediate aftermath of such an event, it probably is near the bottom. Businesses should worry first about the safety of their employees and the stability of their operations. Once they have addressed those concerns, however, they should make certain that they maintain compliance with immigration regulations.

According to USCIS, employers who keep paper I-9 records, as opposed to digital records through systems like E-Verify, must keep original I-9 forms with employee signatures for at least three years after hiring the employee or one year after the employee's termination date, whichever is sooner. It is not sufficient for employers to keep photocopies or digital copies of the I-9 forms.

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The U.S. Department of Justice (DOJ) has filed a complaint against an Indiana company, alleging discrimination against authorized immigrant workers. The DOJ filed the case, United States v. Rose Acre Farms, Inc., in the Office of the Chief Administrative Hearing Officer (OCAHO) in June 2012. It alleges that Rose Acre violated antidiscrimination provisions in the Immigration and Nationality Act (INA) with its electronic system to verify its employees' work eligibility.

The INA requires all employers to verify that its employees are authorized to work in the U.S., either by confirming that they are citizens or legal permanent residents, or by determining that the federal government has granted them work authorization. 8 U.S.C. § 1324a(b). The government created Form I-9 to enable employers to verify employment eligibility quickly. Employees must produce documentation to establish both their identity and their work authorization.

The I-9 gives employees the option of producing a document in "List A" that confirms both identity and work authorization, such as a U.S. passport, a properly-stamped foreign passport, or a permanent resident card. An employee may instead produce one "List B" document, confirming identity, and one "List C" document, confirming work authorization. List B documents may include a driver's license or other government-issued identification. List C documents include unrestricted Social Security cards and birth certificates. Employers must obtain copies of the employees' documents and retain them in their employment files. The E-Verify program allows participating employers to collect and store I-9 information electronically, and to compare information against a series of databases.

Continue reading "Justice Department Sues Employer for Alleged Violations of I-9 Rules" »

The Second Circuit Court of Appeals in New York, ruling in Dandamudi, et al v. Tisch, et al, 686 F.3d 6 (2nd Cir. 2012), struck down a state law that only allowed citizens and permanent residents to obtain pharmacy licenses in New York. The plaintiffs, nonimmigrant visa holders with work authorizations, alleged violations of the Equal Protection and Supremacy Clauses of the U.S. Constitution. After the district court ruled for the plaintiffs, the state of New York appealed. The Second Circuit ruled that discrimination based on "alienage" is a "suspect class," and that the New York law did not pass strict scrutiny review.

The plaintiffs were all H-1B visa holders or temporary workers with TN status. They had all been in the United States, with legal work authorization, for at least six years. Twenty-two of the plaintiffs, according to the court, had applied to adjust status to legal permanent resident. Sixteen of those plaintiffs had passed the maximum six-year period allowed on their H-1B visas, and so had obtained Employment Authorization Documents (EADs) allowing them to stay in the U.S. while their applications were pending.

The state of New York had issued limited pharmacy licenses to the plaintiffs under a waiver that previously existed in the pharmacy licensure law. The law, New York Education Law § 6805(1)(6), states that only U.S. citizens and legal permanent residents are eligible for a New York pharmacy license. The waiver for people with nonimmigrant visas expired in 2009, thus invalidating the plaintiffs' licenses.

Continue reading "Federal Appeals Court Strikes Down New York State Law Preventing H-1B Visa Holders and Temporary Workers From Obtaining Pharmacy Licenses" »