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March 28, 2011
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2. Article: ICE Guide to Worksite Enforcement Investigations: You
Can Run but You Can't Hide by Amy Peck
3. Bloggings: Utah Gets it: New Law to provide Work Authorization
for Guest Workers by Matthew Kolken
4. Bloggings: PERM: Foreign Language Undefined by Joel Stewart
5. Bloggings: Two USCIS Offices Accepting Same Sex Marriage Green
Card Petitions by Greg Siskind
6. Bloggings: Delays in processing I-526 petitions are
unnecessary, cost the government money, and delay job creation
and economic growth by Stephen Parnell
7. Bloggings: Hospitality Immigration - Birth Tourism, is it
really happening? by Jacob J. Sapochnick
8. News: DOS Issues Correction On Exchange Visitor Program Fees
9. News: CRS Report On US Immigration Policy On Haitian Migrants
10. Focus: Removal For Experts
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11. Headline: Modest bill reaches to both political parties
12. Headline: Groups target states' undocumented immigration
13. Headline: Obama boasts of consulting immigration radical:
Union boss admitted amnesty meant to ensure 'progressive rule'
14. Headline: What You Don't Know About Immigration: The Top 99
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15. Headline: 'Brain waste' thwarts immigrants' career dreams.
From doctor and surgeon to sales clerk and babysitter
16. Headline: Woman escapes deportation until status of same-sex
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17. Headline: Documents Reveal Pressure to Comply With Program to
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21. Headline: RT @BulldogShadow Oakland rallies around family
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22. Headline: RT @LatinoPolitics: Irony of Rep. @LorettaSanchez
Delivering a Keynote Address on DreamAct Next Week
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by Stephen Parnell
The processing time for I-526 petitions has now gone beyond 8 months. USCIS seeks to reassure by pointing out at its stakeholder meetings that it has hired or transferred and trained an additional 10 examiners in order to shorten processing times. It might be too early to judge how productive the 10 new examiners will be; however, the rapidly increasing number of regional centers means that, even if just a fraction of the new regional centers begin producing projects, when those projects are added to the stream of projects from the existing regional centers, the number of individual petitions will be increasing exponentially. This is not to mention the increasing size of projects at some regional centers from tens of investors to hundreds of investors. Given such growth, USCIS might want to consider hiring 10 new examiners per month rather than 10 per year.
There is no other immigration program with growth like this, considering that the designation of one new regional center can bring about hundreds, if not thousands, of new individual petitions over the life of a given regional center. The growth can continue until 10,000 EB-5 green cards are being issued each year, and the category backlogs like pretty much every other EB category. Luckily, we are currently not even close to that point. For these reasons, USCIS needs to allocate resources to this program differently.
There are some other financial and economic factors that USCIS should consider.
1. A sufficient increase in examiners could enable USCIS to implement premium processing of I-526 petitions. EB-5 investors have the desire to speed up the processing of their I-526 petition, and they have the money to pay for it. USCIS can charge the extra $1,225 premium processing fee, or even more, and the EB-5 investors will pay it.
2. The sooner each EB-5 investor's I-526 petition is approved, the sooner he will reach the time when he needs to pay the I-829 petition fee, which is more than twice the fee for the I-526 petition. This really makes clear the opportunity cost of the processing delay because the fewer I-526 petitions that are approved this year, the fewer investors who will pay the I-829 petition filing fee two years from now.
3. Last, but most important, since the purpose of the EB-5 program is to create jobs and improve the economic conditions in economically depressed regions of the U.S., delays in investment funds going from the escrow account into the intended business activity means that important projects are being delayed and their viability is being endangered.
We encourage USCIS to treat the funding of the EB-5 program as investment in a business enterprise. An initial investment into increasing its processing capacity will pay dividends through enabling USCIS to receive premium processing fees, which it is currently not receiving, and to receive more I-526 and I-829 filing fees each year. Most importantly, USCIS will produce these and other dividends for its shareholders, the American people, by enabling the influx of more clean foreign capital into depressed regions of the U.S. in order to create jobs, lay the groundwork for additional businesses to develop, improve the local infrastructure, and grow the local tax base in order to educate and improve the skills of local workers and their children. USCIS has made tremendous progress in improving the consistency, transparency, fairness, integrity, and popularity of the EB-5 program. Their next task is to manage the program's growth properly by allocating enough resources to train enough examiners in order to provide premium processing within 15 days, and to keep regular processing to 2-3 months, while the total volume of cases increases each year as more regional centers are approved. Although a moving target is hard to hit, USCIS needs to aim ahead of its target, not behind it.
The question of a foreign language requirement proposed an existential question to an Attorney who consulted with me recently.
The 9089 stated "Yes" to the question, "H-13" which asks, "Is knowledge of a foreign language required to perform the job duties?" The questions continues, "If the answer to this question is 'Yes,' the employer must be prepared to provide documentation demonstrating that the language requirements are supported by business necessity."
The question seems simple enough, however, in the case I am discussing, the Employer answered "Yes" but did not indicate any foreign language anywhere on the form. The documents in the record file also do not speak of any language requirement.
I reviewed the case: the 9089, audit, response to audit, and denial, including the Notice of Filing, advertising, prevailing wage request and determination. To my surprise, I could not find any reference to the language requirement. In fact, I could not determine which foreign language the Employer required, or how, when or why it would be used.
Not surprisingly, the DOL denied the application, but I why?
The first basis for denial was that the advertisement did not contain the language requirement, and was therefore defective, since it did not apprise the workers with sufficient specificity about the job.
This is certainly true, but I wondered whether, as a matter of law, a foreign language requirement must be stated in an advertisement.
The PERM Rule requires travel requirements to be in the ad, but not foreign language requirements, to be in the ad, so I thought that using common sense (and if not, then the rules of statutory construction which is common sense codified into law), one could come to the conclusion that if the regulations specifically require travel requirements to be advertised, and not foreign language requirements, then it could not be possible that an application can be denied for not having the foreign language requirement in the ads. If the agency had intended the inclusion of the foreign language requirement in the advertisement to be a requirement, then it would have so stated.
The CO went on to deny the application for additional reasons, all having to do with the foreign language requirement, including the fact that the requirement was not in the NOF, the prevailing wage, the 30-day job order, etc.
At first glance I thought that the DOL was probably right, but after thinking about this for several days, I came to the conclusion that the application should not have been denied for lack of the language requirement in the ad.
The DOL has long held (for public policy reasons) that if an employer does not include job requirements in the ad, there is no harm to US workers. In fact, the lack of requirements in the ad opens up the job to a wider pool of applicants, and it is the Employer wo may be prejudiced, by an excessive number of unqualified applicants. The Employer would have to interview the referrals, and demonstrate why they are not able to perform the job duties.
In the present case, however, the only possible hint as to what kind of language requirement was needed is the fact that the Employer is the subsidiary of a French company in the U.S.
I say hint, because the name of the company does not clearly convey that it is French. One would have to research on the internet or the corporate records to discover this fact.
As the Employer's attorney explained, they answered "Yes" to the language requirement question, because the Employer thought that the (French?) language might be useful. Of course, anyone who has completed PERM 101 knows that an Employer may not couch preferences in terms of necessity, but leaving that aside, there was no other mention of a foreign language in any part of the PERM record file.
This brings us to the next stage of our analysis. It seems that the requirement, as stated by the Employer, was not "perfected." By this, I mean that the statement of a foreign language was only indicated by the "Yes" answer to H-13, but the requriement was never defined. The Employer would have to complete or perfect the requirement, if any, by placing the specific language in the context of the job description, requirements, special requirements, or in some place on Form 9089 where the use and requirement of the language would be identified.
In its current form, the foreign language requirement was not really a requirement, but an undefined fragment that at best stated an inchoate desire to include the requirement.
I advised the Attorney for the Employer not to appeal but file a new application -- and this does seem to be the most expeditious way to handle the problem -- but I would also like to underscore that the DOL Denial (because the language requirement was not in the advertisement) is not in accordance with the regulations or policy of the Department of Labor, and that if the Employer wishes to appeal, it would be interesting to see how BALCA would decidethe case.
One could argue to BALCA that the answer "Yes" was really harmless error, or no error at all, since the unidentified foreign language in H-13 was never implemented in the PERM application.
The error could also be traced to the DOL, not the Employer, by arguing that the PERM form should prompt the Employer to state in a separate question, immediately following H-13, which language isrequired! Since the form does not require this to be stated, it seems that Employer made no genuine error by providing a partial response, and the application should have been approved, not denied. There was no prejudice to any US workers, and on the face of the application, there is no foreign language requirement at all!
Birth Tourism is a hot topic right now. How do I know? Reporters keep calling me as well as other prominent Immigration Lawyers, asking about this topic with great interest.
The latest story was covered by the daily. The Daily is new type of media exclusively created for the ipad and provides cutting edge news with amazing content delivery. You have to try it to appreciate.
The latest story that I was part of is about Mothers coming to America to give birth. Millions of foreign tourists visit the United States every year, and a growing number return home with a brand new U.S. citizen in tow.
Every year millions of foreign tourists visit the United States, and a growing number return home, after having given birth to a new baby. Eight percent of all babies born in the U.S. in 2008 were to illegal immigrant parents, according to a groundbreaking analysis of U.S. Census Bureau data by the Pew Hispanic Center. All of those children are U.S. citizens while their parents remain undocumented.
Thousands of legal immigrants, who do not permanently reside in the United States but give birth here, have given their children the gift of citizenship, which the U.S. grants to anyone born on its soil.
The number of U.S. births to non-resident mothers rose 53 percent between 2000 and 2010, according to the most recent data from the National Center for Health Statistics. Total births rose 5 percent in the same period. Among the foreigners who have given birth here, including international travelers passing through and foreign students studying at U.S. universities, are "birth tourists," women who travel to the United States with the explicit purpose of obtaining citizenship for their child.
Catering to the women is a nascent industry of travel agencies and hotel chains seeking to profit from the business.
Is this just a trend or a growing reality, share your thoughts with us.
Read our commentary at the daily.com