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lone amendment of S. 744 passed by voice vote in committee on May 16, 2013, was
a potentially important and equally easy to overlook change to the section
heading in section 4805. Previously the
section was entitled, "Alien Entrepreneurs", which pursuant to the amendment
was struck and replaced with the heading "Employment-Based Immigrants".
to imply a very important shift in the legislative intent for post-investment activity
by the petitioner. 8 CFR ß204.6 (j) requires
that petitioner show proof that he or she "... is or will be engaged in the
management of the new commercial enterprise, either through the exercise of
day-to-day managerial control or through policy formulation, as opposed to
maintaining a purely passive role in regard to the investment."
section heading implies a clear departure from the intent that the petitioner
actively manages the business which is the recipient of his or her investment
capital. According to the Merriam-Webster dictionary, an entrepreneur is "one
who organizes, manages, and assumes the risks of a business or
enterprise." The existing requirements
of subsection (j) were entirely consistent with this definition. The new section heading, "Employment-Based" is
both in the passive voice and result oriented.
The heading says nothing about who creates or manages the business that
creates the employment. Further, so long
as the desired employment is created by the new commercial enterprise that is
the recipient of the petitioner's investment capital, the petitioner would
satisfy the policy mandate of being an 'Employment-Based Immigrant'.
Of the many changes and improvements offered by
S.744 for the EB-5 program, this in particular, holds the potential to provide
additional pathways to apply EB-5 capital to business models which, under the
existing regime, would be far more difficult.
Download Leahy's Amendment
Awhopping 31 amendments were approved in yesterday's Senate Judiciary Committee markup of S.744 so it took me a little longer than I hoped to get them all summarized. But here they are.
Summary of Amendments from May 20
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As the Senate inches forward on immigration reform, the bombing in Boston looms large. In a recent amendment, Senators agreed that asylum seekers will automatically lose their*status if they return to their home country. According to the*Washington Post:
Senators unanimously approved an amendment by Sen. Lindsey O. Graham (R-S.C.) that would terminate the asylum or refugee status of anyone who returns to his or her home country. Graham introduced the amendment after investigators discovered that Boston bombings suspect Tamerlan Tsarnaev had traveled last year to Russia and Dagestan after his family sought and was granted asylum from Dagestan in 2002.
The Tsarnaev's also liked Justin Bieber. Therefore, under the new Senate bill, all immigrant Beliebers will be deported.
I am sure, dear reader, that you will not be surprised to learn that I oppose this amendment. I oppose it because it is redundant, impractical, harmful to many innocent asylum seekers, and unlikely to accomplish its purported goal. Let's take each objection in turn:
First, under the current law, if an asylee (or a lawful permanent resident who obtained his status based on asylum) returns to the country of feared persecution, he can lose his immigration status. The law as it exists now allows for some flexibility, and there is a procedure for terminating the alien's asylum status. Given that an alien who returns to his home country will likely lose his asylum status, the Senate amendment seems redundant.
Second, the amendment is, at best, impractical. How will we know whether an alien has returned to her home country? Refugees are currently able to travel abroad using a Refugee Travel Document, which is similar to a passport. Let's say a refugee wants to visit her home country. She can go to a neighboring country using the Refugee Travel Document, and then enter her home country with her passport. Or-better yet from her point of view-she can enter her home country without inspection (i.e., illegally). In either case, it is unlikely that the U.S. government would ever learn about the trip home.
And what about the scenario where a legitimate refugee travels abroad for a legitimate reason. He does not go to his home country, but his government lies and reports that he traveled home (the Russian government reported-truthfully-that Tamerlan Tsarnaev traveled to Dagestan). Perhaps the home government wants to harm the refugee, who the government views as a political opponent. Reports from unfriendly governments are potentially untrustworthy, so how can we rely on them?
Third, many innocent asylees have legitimate reasons to travel home: To help a sick relative, to engage in political or journalistic activities, to take care of property. Also, some people can travel home for a short trip and remain under the radar for their brief time in the home country. Just because a person is willing to take a risk and return home does not necessarily mean that she does not have a well-founded fear of persecution.
Finally, it's hard for me to believe that this amendment would do anything to make us safer. Given how hard it is to determine whether an asylee traveled to his home country, and given the many legitimate reasons for such a journey, it seems very doubtful that the amendment will do anything to stop the next Tsarnaev-brothers type attack.
It seems to me that this amendment is an example of the Senate fighting the last war, and not fighting it very well. There are better ways to search for terrorists and extremists within the asylum seeker ranks. But I will leave that discussion for a future post.
Originally posted on the Asylumist: www.Asylumist.com.
Updated 07-16-2013 at 02:20 PM by JDzubow
30+ amendments approved today. I'm still working on my summary, but here's where I am so far.
Summary of 5-20 amendments
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Please email your letters to firstname.lastname@example.org or post them directly as "Comment" below.