ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE



The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

All Blog Entries

  1. The Fight Book: Chapter 2: Litigation Issues, Part C

    Rami Fakhoury and Mark Levey
    Copyright @2010 Fakhoury Law Group/ Rami Fakhoury
    THRESHOLD ISSUES: JURISDICTION, VENUE, STANDING & RIPENESS
     
    1. JURISDICTION - CDI Information Services: Dealing with the Presumption of Non-reviewability of USCIS Discretionary Determinations
     
    The agencies have adopted a strategy of de facto rulemaking, in part, because they have assumed that abuse of discretion cannot be challenged in court in the context of non-immigrant visa petitions.  The ace up their sleeve in the court-stripping provisions of IIRIRA[1] found by a 2002 decision of the 6th Circuit,  CDI Information Services v Reno, 278 F3d 616, 619-20, and that decision's adoption by some other courts.[2]  That ruling has been cited to block hearings of substantive issues brought in federal court challenging discretionary denials of applications to USCIS, including H-1B and L-1 visa petitions.  But, that certainly does not foreclose all appeals of non-immigrant visa matters to the federal courts. 
    In the seminal case to reach the Supreme Court in the wake of IIRIRA on the issue of retention of habeas review over removal orders, the justices ruled that they retain jurisdiction to review matters of law and constitutional issues.  In INS v. St. Cyr, 355 U.S. 289 (2001), Justice Stevens wrote for the majority that statutes should avoid constitutional abridgement, such as the right to habeas corpus. The decision also upheld the presumption that administrative proceedings remain under the review of federal courts.
    Contrary to the agency's overly-broad interpretation of some statutory limits on jurisdiction, citing St. Cyr, the courts have and continue to hear related issues over "constitutional claims and questions of law" that have been expressly preserved by statute. For instance, in 341 F3d 590 Bravo v. Ashcroft (5th Cir., 2003), the 5th Circuit ruled: [3]:
     
    IIRIRA's jurisdictional reach stripped the district court of habeas jurisdiction. Although the Court agreed that the barring of "judicial review" precluded direct review of the Attorney General's decision, it found that the respondent had properly sought a 2241 petition, which may be used broadly to challenge orders of deportation as being "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2241(c)(3).
    Importantly, the habeas petition in St. Cyr, 533 U.S. at 308, challenged a "pure question of law" whether new IIRIRA provisions should be applied retroactively. In construing the reach of habeas review, the Court noted the traditional "distinction between eligibility for discretionary relief, on the one hand, and the favorable exercise of discretion, on the other hand." Id. at 307. [citation omitted]
     
    Among the most daunting appeal issues is the threshold jurisdiction barrier thrown up by the CDI decision. That opinion found that subject matter review of L-1B denials was foreclosed by the courts-stripping provisions of IIRIRA to withhold review of most AG discretionary decisions.  That decision essentially holds that courts can pretermit - refuse to entertain the merits -- of most direct appeals of denials of visa petitions based in a claim that USCIS abused its discretion in its decision-making.    
    There are differences with this opinion both within and between the circuits.  The laws involved were not clear in their drafting.  A section of IRRIRA of 1996, adding INA 242(a)(2)(B), entitled "Denials of Discretionary Relief," states that the courts no longer have jurisdiction to challenge discretionary decisions rendered by the agency under 1252 , a section of the Act entitled "judicial review of orders of removal". 
    The CDI decision states that IIRIRA effectively barred review of all petitions, as well as orders of removal.  It held that, despite the fact that 1252 is entitled "judicial review of orders of removal", the plain-language of 8 U.S.C. section 1252 (a)(2)(B)(ii) is not limited in its scope by its title and constitutes a divestment of jurisdiction for all discretionary decisions under Subchapter II of Chapter 12 of Title 8, covering 1151-1378.   That includes initial grants and renewals of B, E, H and L nonimmigrant visa petitions, as well as I-140s - pretty much, the full-spectrum of business immigration petitions.
    The 2005 REAL ID Act[4] reinforced and clarified the extent of jurisdictional barriers.  The second subpart of  section 1252 (a)(2)(B)(ii) restricts federal court jurisdiction over "any other decision or action ... the authority for which is specified under this title [Title II] to be in the discretion or the Attorney General or the Secretary of Homeland Security." It amended the scope of 8 U.S.C. 242(a)(2)(B) so that it now applies "regardless of whether the [discretionary] judgment, decision, or action is made in removal proceedings."
    Even in the case of removal proceedings falling under the REAL ID Act, in which Congress expressly imposed its desire that discretionary decisions pertaining to certain categories of aliens be held as unreviewable, REAL ID stipulated that Courts of Appeal may continue to extend review for basic constitutional issues, even for criminal alien removals, a function which the courts in fact continue to often perform.  The amendment expressly permits continued "review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section." See, 8 USC 1252(a)(2)(D); 8 U.S.C. 1252(a)(1) and (b)(9); also, see, related, American Bar Association Commission on Immigration Report, pp. 7-8. http://www.abanet.org/publicserv/immigration/107c_due_processjud_rev.pdf 
    What was left after REAL-ID was an explicit exception for "constitutional claims or questions of law", and ten courts of appeal have held that the bar to jurisdiction does not apply to questions of law such as the meaning of legal definitions found at 101 of the Act.  That means that issues such as the elevated evidence requirement read into the definition of "employer" and "control" by USCIS remain open to review.  In her widely-consulted treatise, Mary Kenney states[5]:   "242(a)(2)(B)(i) does not apply to non-discretionary questions of statutory eligibility for the enumerated immigration benefits". 
    Kenney points out that another exception found is where there has been no actual discretion exercised, the courts retain jurisdiction.  This exception has been frequently cited by courts granting mandamus actions, particularly in Naturalization[6] and Adjustment cases where USCIS has delayed overlong final actions because FBI background checks have not been completed.  
    Therefore, it is apparent that while courts may not find jurisdiction for complaints about the substantive individual product of a discretionary denial of a particular visa petition, they still should be willing to hear and rule on the general sufficiency of the rules applied, the procedures followed, and due process accorded, along with attendant issues such as the agency's interpretation of definitions employed, and the agency's construction of statute and regulations.  In appellate terms, that's about 80 percent of a typical administrative law case that one might brief, and includes the meat of any argument that an agency decision is ultra vires, or "beyond the powers" of an agency.  On this, Kenney writes [Id. 7]:
    The Supreme Court has made clear that this subpart does not apply to issues that do not involve the exercise of discretion, such as a determination of the extent of the Attorney General's authority under the INA. Zadvydas v. Davis, 533 U.S. 678, 688 (2001). Thus, for example, courts would retain jurisdiction to determine if the agency action was ultra vires. Spencer Enterprises, Inc, v. United States, 345 F.3d 683, 689 (9th Cir. 2003) (citing Zadvydas, 533 U.S. at 688). [emphasis added]
    Of course, suits may also be brought against the agency under laws other than the INA, as well as sections of the Act outside of Title II.  Furthermore, the court stripping provisions pertain to the distinct jurisdiction and functions of the Attorney General and DHS, and thus the court may still rule on any act of discretion that more properly belongs to the Secretary of Labor.  That preserves an argument that goes to the issue of parts of the Act that govern DOL, including sections pertaining to enforcement of wage and hour provisions of the LCA. There is a clear division in statutory responsibility between DOL, which regulates and enforces 212(n) of the Immigration and Nationality Act (INA) relating to LCAs, and U.S. Citizenship and Immigration Services (USCIS), which regulates and enforces INA 214, entitled ''Admission of Nonimmigrants,'' and 101(a)(15)(H)(i)(b), relating specifically to the H-1B visa
    In addition, a suit may challenge agency actions under other statutes, such as the Administrative Procedures Act (APA), the Regulatory Flexibility Act (RFA), and the Family and Medical Leave Act (FMLA), not directly impacted by amendments to the INA.   
     
    2. VENUE  
    Despite the court-stripping impact of IIRIA and REAL-ID, courts continue to hear cases related to denials of visa petitions.  The line of jurisdiction stripping statutes culminating in the REAL-ID Act has restricted subject matter and venue for non-immigrant visa petitions.  In the latter, original jurisdiction and venue are vested in the US Courts of Appeal.
    Nonetheless, the U.S. District Courts still continue to entertain such cases where they can be convinced that the matter does not involve the exercise of discretion.   A recent decision of the District Court for the DC Circuit, RCM Technologies, is extremely instructive as to the current treatment of these and related issues in a H-1B case.[7]  Even thought the court found for the agency on the merits of this H-1B case - the questions of jurisdiction and venue did not arise because the petitions had not yet been adjudicated at the time.  The court found that it could not find actual harm, as there were no denials, and thus this was not a final agency action to consider.   This was a highly technical case, and it did not immediately deliver the desired result, but it illustrates a creative approach to litigating these cases post REAL-ID, and may have set the stage for a change in actual agency policy, as will be shown below.
    3.RIPENESS
    A court may find jurisdiction, only to rule against the plaintiff on the related issue of ripeness.  The leading case on ripeness is Abbott Laboratories v. Gardner (1967), which fashioned a two-part test for assessing ripeness challenges to federal regulations. The case is often applied to constitutional challenges to statutes as well. The Court said in Abbott Laboratories:
    Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.[2]
    The issue of ripeness is at the center of the case decided recently by the District Court for DC Circuit, RCM Technologies v DHS, D.C. Cir., Civil Case No. 09cv0650 (JDB), (April 8, 2009), https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0650-13  .  That was an APA suit brought by a group of outplacement agencies on behalf of H-1B physical therapists seeking an injunction against a USCIS policy requiring Master's degrees for physical therapists, a requirement that isn't in the regulations.  That court ruled for DHS, finding inter alia that plaintiffs had not demonstrated the existence of an actual binding policy, had failed to show sufficiently grave imminent harm, and perhaps most crucially the case wasn't ripe for litigation.  RCM's petitions had been filed, but not yet denied by the USCIS Service Center. 
    In that case, defendant DHS raised two threshold reasons why plaintiffs did not ultimately succeed with their suit. First, the defendant agency successfully argued that the plaintiffs' challenge to an alleged "policy" is not justiciable under the APA; plaintiffs must instead challenge individual denials of specific visa applications. Second, defendants contended that the "policy" at issue here does not constitute "final agency action" and hence is unreviewable under the Administrative Procedure Act. 5 U.S.C. 704.  The court found that each of defendants' arguments had merit, and the action was dismissed. That court commented[8]:
     
    Because plaintiffs challenge the CIS "policy," rather than challenging a denial of a specific visa application, they are not likely to succeed on the merits of their claims. Likewise, plaintiffs cannot succeed on the merits because the challenged "policy," even as described in plaintiffs' declarations, is not "binding," and hence does not constitute "final agency action" reviewable under the Administrative Procedure Act.
     
    "[T]he court was not persuaded that the plaintiffs were likely to succeed in their action, one of four prerequisites . . ."      
     
    4.APA FINAL AGENCY ACTION REQUIREMENT: "De Facto Rule or Binding Norm"
     
    That decision is also notable, in that it highlights the issue of whether an agency policy amounts to a  "de facto rule or binding norm" that might be challenged as a "final agency action" under the APA, as stated in Center for Auto Safety v. NHTSA.  The District Court for the D.C. Circuit identified the weaknesses in plaintiff's case in the RCM matter that led the court to dismiss in that instance: 
    In Center for Auto Safety v. NHTSA, 452 F.3d 798, 806 (D.C. Cir. 2006), the court held that a challenged action must "either (1) reflect 'final agency action,' 5 U.S.C. 704, or (2) 'constitute a de facto rule or binding norm that could not properly be promulgated absent the notice-and-comment rulemaking required by 553 of the APA."
    First, the petitions in the RCM case had been filed, but not yet denied.  The plaintiff in that case did not claim the policy at issue - adjudicators at the Western Service Center had been given "clearance" to require master's degrees from medical therapists - was either national or binding.  That is an important point.  Under the standards laid down in RCM, litigation of the Defensor/Neufeld dicta would need to be shown that application has been nationwide and, as applied, has produced actual nationwide economic harm, and had been binding policy on both adjudicators and petitioners.  Discovery in that case would show that literally thousands of RFEs and denials cite Defensor for the requirement that petitioner-employers thought to be involved in outsourcing produce detailed itineraries and otherwise demonstrate control over their beneficiary-employees.  While some such cases were subsequently approved, petitioner would demonstrate that application of the standard, itself, is inconsistent with statute and regulation, and has resulted in, at minimum, unnecessary delay.   Finally, a plaintiff may also note in reference to RCM that USCIS subsequently withdrew from its previous practice with regard to requiring Master's degrees from H-1B Physical Therapists - which was the issue in that case -- and retroactively approved those and similar cases.[9]
    Since the decision, USCIS has backed away from its de facto policy of requiring Masters degree from PTs.  For some reason, perhaps the threat that this decision might be overturned on appeal or a better case presented (perhaps in a more favorable venue), has prompted the agency to correct its policy, and USCIS is now soliciting Motions to Reopen cases that were previously denied. 
    There's another notable case that should give one some confidence that litigation of similar issues might be successful.  In 2007, the U.S. District Court for the Northern District for California issued an injunction in AFL v Chertoff that enjoined DHS from implementing its final rules enforcing no-match letters in I-9 verification.   See, American Federation of Labor v Chertoff, 552 F. Supp. 2d 999, *; 2007 U.S. Dist. LEXIS 75233, **; 155 Lab. Cas. (CCH) P10,925, No. C 07-04472 CRB  
    In its decision, the District court found:
    In this Court's opinion, granting plaintiffs' motion is appropriate because they have raised serious questions whether: (1) the rule is arbitrary and capricious because DHS failed to supply a reasoned analysis for the agency's new position that a no-match letter is sufficient, by itself, to put an employer on notice of an employee's
     
    5. ADDITIONAL REQUIREMENTS FOR A FEDERAL INJUNCTION:  Showing of Substantial Damages or Imminent Harm
    Another prerequisite to successful litigation, if an injunction is sought, is a showing of substantial damages or imminent harm to the plaintiff if an injunction is not granted.  That should not be the most difficult hurdle in these types of cases, but as the RCM decision shows, good preparation and solid evidence are essential. 
    These issues reflect a wider restrictive trend and barriers to trade in services[10] that have been frequently commented about by members of the Immigration bar[11], as well as by business media in India[12] and in China.   The China Post recently carried a Reuters report that as many as half the recent foreign-born graduates of top U.S. electrical engineering programs are leaving the United States for job offers abroad, a dramatic development that threatens the reverse the "brain-drain" that has for decades favored American industries.[13]  Some companies have also noted undue agency-imposed restrictions on issuance of B-1 visas for short-term business travel and the discriminatory withholding of Optional Practical Training (OPT) from certain industries.[14]  Related issues also impact programs administered by USDOL, including the H-1B Labor Condition Attestation (LCA) and permanent labor certification (PERM) programs.
    This is not merely a complaint about lack of proper procedure and defective agency process.  The economic damages resulting from an improperly high burden of documenting employment requirements for all positions at client sites are real.  Indeed, it has proven virtually impossible in the IT consulting industry to provide a detailed client site itinerary for all workers going forward for the entire period of the petition, as much as three years.  That de facto rule unfairly disadvantages some companies, and an entire industry, where the duration of employee assignments at client sites may be less than long-term and predictable.  This discriminatory and unfair outcome was recognized by the Service in Proposed Regulations and a series of policy directives by legacy INS, binding guidance that still stands and have never been formally superceded by DHS regulation, rulemaking or other public policy pronouncements.  There has, indeed, been de facto policy change and informal rule-making, but without allowing opportunity for public comment, as the APA requires.
    Regardless of the merits of the Defensor decision, USCIS has read into this case the authority to apply such a test across-the-board to virtually all petitioner-employers who place their H-1B workers at client sites.  Defensor is cited in issuance of RFEs in virtually every case where H-1B workers will work at client sites, and the burden of evidence demanded is excessive and contrary to existing regulatory authority and binding directives.
    Without complying with legal procedures, USCIS has done great economic damage to an entire industry, and that, as will be shown, is simply not permissible under American law.




    [1] For a capsule history of the court-stripping provisions of AEDPA and IIRIRA see, http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=02-2451.01A.


    [2]  The 6th Circuit CDI decision and those that follow it construe that the phrase "this subchapter" refers to
    subchapter II of Chapter 12 of Title 8, U.S.C. 1151-1378. See, e.g., Zafar v. U.S. Attorney General, 426
    F.3d 1330, 1334 (11th Cir. 2005); Onyinkwa v.  Ashcroft, 376 F.3d 797 (8th Cir. 2004). See also Van
    Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999).
     


    [3]  See, http://caselaw.findlaw.com/data2/circs/5th/0241427cv0p.pdf


    [4]  See, [H.R.1268.ENR], Emergency Supplemental Appropriations Act for Defense, the Global War on   Terror, and Tsunami Relief, 2005 (Enrolled as Agreed to or Passed by Both House and Senate, became P.L. 109-113 on 05/11/2003), SEC. 106, . JUDICIAL REVIEW OF ORDERS OF REMOVAL, amending Section 242(a) of the Immigration and Nationality Act (8 U.S.C. 1252), http:// thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.00418, HR 418 - Search Results - THOMAS (Library of Congress)
     


    [5] See, Mary Kenney, "FEDERAL COURT JURISDICTION OVER DISCRETIONARY DECISIONS AFTER REAL ID: MANDAMUS, OTHER AFFIRMATIVE SUITS AND PETITIONS FOR REVIEW", American Immigration Law Foundation Practice Advisory, (Updated April 5, 2006), http://www.aila.org/content/default.aspx?bc=9418%7C20856%7C29221%7C17559


    [6] As Kenney points out, Op cit. at 5, " 242(a)(2)(B)(ii) states that it applies to agency decisions or action, 'the authority for which is specified under this title' to be discretionary. The 'title' referred to is Title II of the INA. Naturalization provisions do not appear in Title II but rather in Title III of the INA. See INA 310 et seq., 8 U.S.C. 1421 et seq. Consequently, INA 242(a)(2)(B) should never be an issue in federal court jurisdiction over a naturalization Decision."
     


    [7] See, RCM Technologies v DHS, D.C. Cir., Civil Case No. 09cv0650 (JDB), (April 8, 2009), https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0650-13  .


    [8]  See, https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0650-13


    [9] See,  USCIS Issues Information to Employers Whose H-1Bs for Health Care Specialty Occupation Have Been Denied (.pdf 39 KB), (July 17, 2009), USCIS today issued guidance to certain employers who received a denial of Form I-129, Petition for Nonimmigrant Worker, requesting H-1B classification for a beneficiary to practice in a health care specialty occupation prior to May 20, 2009. AILA Doc. No. 09071763.


    [10] See, e.g.,  Sarah Anderson,  U.S. Immigration Policy on the Table at the WTO,  December 3, 2005, http:// www.globalpolitician.com/21446-immigration


    [11] See, e.g.,  Laurie Grossman, Employment Changes and H-1Bs: Guiding Principles and Recent Developments,  http://www.wildesweinberg.com/uploadedfiles/AILA_H1_bs.pdf


    [12] See, e.g., Rachana Khanzode, Indian Express Finance, "Proposed H-1B curbs to hit Indian IT the Most", April 25, 2009, http://in.biz.yahoo.com/090424/50/bathel.html 


    [13] See, e.g., David Lawsky, Reuters, " U.S. immigration rules blaimed for high-tech brain drain", June 25, 2009, http:// www.chinapost.com.tw/business/americas/2009/06/25/213702/U.S.-immigration.htm


    [14] See, e,g,, Securities Industry and Financial Markets Association, SIFMA News, April 4, 2008,   http://www.sifma.org/news/news.aspx?id=3570

  2. Strange Bedfellows: Pro-Immigrant Organizations Join with Hate Group to Support Refugee Reforms

    A recent article in the Baptist Press illustrates just how diverse the refugee advocacy community really is-and now, some pro-immigrant organizations have joined forces with an anti-Moslem, anti-gay hate group.  The issue that has brought together this "coalition of religious, conservative, and human rights leaders" is the material support bar and the Obama Administration's failure to adopt reforms to prevent innocent refugees from being classified as terrorists (I touched on this problem in a previous post). 
    Among the groups that joined together to call for reform are the Southern Baptist Ethics & Religious Liberty Commission, the Hebrew Immigrant Aid Society (HIAS), Human Rights First, Concerned Women for America, the National Association of Evangelicals, and the U.S. Conference of Catholic Bishops.
    The group that really stands out to me is Concerned Women for America.  Here are some quotes from their website:
    In a time when families are struggling to pay their mortgages and utility bills, much less buy Christmas presents for their loved ones, the Smithsonian Institution, which is partly funded by American taxpayers, is promoting an exhibit that degrades Christianity and exalts homosexuality....  I urge Congress to swiftly take steps to defund the Smithsonian Institution for their reckless and inexcusable judgment in funding such a project.
    On September 15, 2011, CWA will present an in-depth discussion with experts on America's most important policy issue. This issue affects foreign policy, human rights and perhaps even our own system of law in the future. Come join us and our panel as we expose underlying tenets of Sharia Law and how it threatens our nation and your family.
    Another measure that failed during the lame duck session was the DREAM Act, a back door amnesty bill that would grant automatic citizenship to the children of illegal immigrants, with "children" defined as anyone up to the age of 35.
    So, CWA hates Moslems and DREAM Act children.  They also hate gay people: the Southern Poverty Law Center notes that the organization's founder "has blamed gay people for a 'radical leftist crusade' in America and, over the years, has occasionally equated homosexuality with pedophilia."  But the CWA supports reforming the material support bar for refugees, and is thus part of the broader coalition.  
    What's surprising to me is that mainstream groups such as HIAS and Human Rights First-groups that I strongly support-would join together with a group like CWA.  Maybe I am naive to think that reform can occur without a broad coalition, but it seems to me that some groups are simply beyond the pale.  Don't get me wrong-I greatly respect most of the groups that have joined together to call for reforming the material support bar.  But I respectfully suggest that they should be more careful about who they partner with in the future.  To me at least, the ends simply do not justify the means.
    Originally published in the Asylumist: www.Asylumist.com.
  3. Dec 28 - EB5 For Experts

    -----------------IMMIGRATION DAILY FROM ILW.COM------------------

    December 28, 2010

    http://www.ilw.com/immigrationdaily/digest/2010,1228.shtm

    ITEMS

    1. Comment: EB5 For Experts -

    ILW.COM is pleased to present "EB5 For Experts" a 3-part

    telephone seminar series with Michael Gibson, Robert C. Divine,

    Robert Gaffney and John Patrick Pratt (Other Speakers to be

    Announced). The curriculum is as follows:

    FIRST Phone Session on December 30: Due Diligence & Care

    Guidance in helping clients select an appropriate investment

    With an onslaught of EB-5 Regional Center applications filed

    recently and the expected number of Centers expected to top 200

    in the near future, how can immigration attorneys expect to

    counsel their client on which investment to select and what

    should they do to protect themselves in the event that the

    project fails to achieve the removal of the I-829 or fails to

    return the capital invested?

    ++The role of the immigration attorney and care for client

    ++Due Diligence lists, how relevant are they?

    ++What factors should be considered

    ++Scope of representation

    ++Liability, disclaimers and waivers

    ++The role of the immigration attorney as advisor, professional

    insurance

    ++The roles of other professionals to assist the investor client

    SECOND Phone Session on January 13: Securities law: Avoiding

    Litigation and Rescission

    With so many EB-5 Regional Centers marketing to a relatively few,

    the pressure is on to deliver investor clients and the tactics

    and techniques employed by some of the Center's, their agents and

    "finders", both in the U.S. and overseas may cause increased

    scrutiny by the Securities & Exchange Commission and attorneys

    who specialize on malpractice and litigation on behalf of their

    investor clients. How can EB-5 practitioners and Regional

    Centers who have offerings in the market stay safe and avoid

    potential litigation and rescission?

    ++Reg. D & Reg. S offerings (definition of exemption)

    ++Solicitation and 502(c) rule

    ++Internet advertising: Lamp & IPO.net

    ++Seminars: overseas and domestic, rules and practices

    ++Compensation and fees: definition of Agents & Finders

    ++Marketing material v. operating documents

    ++Project failure and investor litigation

    THIRD Phone Session on February 3: Valuation & Risk

    What factors improve the chance of success in an EB-5 investment,

    the roles of capital, debt and equity, cash flow and what other

    factors are critical to making an informed decision in assessing

    the strength and weakness of the offering.

    ++Why proper valuation of risk is important

    ++Factors used in evaluating risk, research, due diligence

    ++The importance of capital

    ++The importance of the timeline in project completion

    ++Cash flow

    ++Equity v. Debt

    ++The role of management, competition & market

    ++The decision making process

    ++Comparisons of dis-similar projects

    ++Risk ratings and standards in risk valuations

    Wednesday, December 29 is the deadline to sign up. For more info,

    including speaker bios, detailed curriculum, and registration

    information, please see: Online:

    http://www.ilw.com/seminars/201016.shtm.

    Fax form: http://www.ilw.com/seminars/201016.pdf.

    Don't delay, sign up today.

    2. Article: The Death Of The DREAM Act by Silvia Uribe Ponders

    http://www.ilw.com/articles/2010,1228-ponders.shtm

    3. Article: An Open Letter To Senator Isakson by Charles Kuck

    http://www.ilw.com/articles/2010,1228-kuck.shtm

    4. Bloggings: Another Immigrant Dies In Immigration Detention by

    Matthew Kolken

    http://www.ilw.com/articles/2010,1228-kolken.shtm

    5. News: ICE Announces Passing Of Immigration Detainee

    http://www.ilw.com/immigrationdaily/news/2010,1228-ice.shtm

    6. News: DOJ Office Of Immigration Litigation Bulletin: July 2010

    http://www.ilw.com/immigrationdaily/news/2010,1228-oil.pdf

    7. Focus: The Best Indexed ACT, CFRs

    ILW.COM is pleased to offer the latest, completely revised

    editions of Patel's Immigration Law Library. This collection

    includes the essential reference resource The WHOLE Act, The INA

    (Annotated),

    http://www.ilw.com/books/thewholeact-ina.shtm

    used by DHS officials, federal court libraries, and veteran

    immigration practitioners. Once you have used this version of the

    INA, you will wonder why you ever used any other! This collection

    also features the fully indexed 8 CFR

    http://www.ilw.com/books/8cfrplus.shtm

    and fully indexed 20/22/28 CFR.

    http://www.ilw.com/books/20-22-28cfrplus.shtm

    While supplies last, the best quality immigration law reference

    books are now available at the cheapest price on the market -

    $189 for all three books (shipping and handling included!).

    http://www.ilw.com/books/thewholeact-ina.shtm#buynow

    8. Headline: Washington Day Ahead: More States Seek Tougher

    Immigration Laws http://ow.ly/3veUK

    9. Headline: The immigration issue in 2010 http://ow.ly/3veKC

    10. Headline: King-size ideas on immigration http://ow.ly/3vezL

    11. Headline: Rep. Peter King to Ramp Up Immigration Crackdown

    http://ow.ly/3verr

    12. Headline: Top 10 Reasons Senators Voted Against DREAMAct

    http://ow.ly/3veoW

    13. Headline: Killing the dream http://ow.ly/3veiO

    14. Headline: A DREAMer shows up on my doorstep

    http://ow.ly/3ve8l

    15. Headline: Where is my Mother? The Injustice of a Broken

    Immigration System " I feel so helpless; so hopeless"

    http://ow.ly/3ve5h

    16. Headline: More States Seeking to Follow Arizona's Push for

    Tougher Immigration Rules http://ow.ly/3vdT5

    17. Headline: Keeping a crucial DREAM alive http://ow.ly/3uXbf

    18. Headline: Get your ad in ten thousand pages! Improve search

    engine ranking, increased name recognition and referrals. Sign up

    at http://ow.ly/3icZj

    19. Headline: Yale clinic helps secure precedent-setting victory

    for immigrants http://ow.ly/3uQAy

    20. Headline: Removal Book: Learn abt removal proceedings, relief

    from removal, appeals & much more. For table of contents & get

    copy http://ow.ly/3idZG

    To submit an Article or a news item to Immigration Daily, write

    to mailto:editor@ilw.com. Follow ILW.COM on Twitter:

    http://www.twitter.com/ilwcom

    _________________________________________________________________

    CLASSIFIEDS

    1. Help Wanted: Immigration Professionals

    Toronto, ON - Immigration law firm

    http://www.gt-hrlaw.com

    seeks global immigration specialists (lawyers or paralegals with

    global file management experience) for Toronto-based global

    practice focused exclusively on corporate clients. The

    successful candidate will demonstrate complex problem-solving

    capabilities,

    attention to detail and superior communication skills. S/he must

    be comfortable managing a reasonable caseload in a fast-paced and

    collegial team. Fluency in multiple languages an asset. Please

    submit your resume via email to mailto:careers@gt-hrlaw.com or by

    fax to 416-943-0289.

    2. Help Wanted: Immigration Attorney

    Washington, DC - Fragomen

    http://www.fragomen.com

    is looking for an attorney with 1+ years of experience in

    business immigration with an emphasis on the preparation, review

    and analysis of nonimmigrant L-1 and H-1B petitions and

    applications; knowledge of immigration law and procedure;

    excellent communication and interpersonal skills. Qualified

    candidates will be highly organized, have a strong work ethic and

    have meticulous attention to detail. Associate will work with

    large, global, corporate accounts and have a great deal of direct

    client contact. Highly competitive salary and benefits. Please

    email cover letter, resume, and writing sample (Word or Adobe

    formats only), in confidence, to Robert F. McCafferty, Human

    Resources/Office Manager, Fragomen, Del Rey, Bernsen & Loewy,

    LLP, at mailto:rmccafferty@fragomen.com. Or fax same to

    202-371-2898. EOE.

    3. Credential Evaluation And Translation

    Why do the largest law firms, corporations and universities in

    the U.S. choose AETS for their foreign credential evaluations?

    Because as the nation's leader in foreign credential evaluations

    and translations, American Evaluation & Translation Service, Inc.

    (AETS) provides the most competitive rates in the industry - $75

    educational evaluations, as well as $300 'expert opinion' work

    experience and position evaluations completed by PhD university

    professors who have the "authority to grant college level credit

    for work experience and/or training." AETS offers a variety of

    turn-around times, including same-day service for educational,

    work experience, and position evaluations. For list of rates and

    times, see: AETS Credential Evaluation Application.

    http://www.aetsinternational.com/AETS.Credential.Evaluation.Application.PDF.Writable.2009.pdf

    AETS also provides certified translations in 100+ languages, with

    translators that are specialists in 80+ fields. For a copy of the

    Application for Credential Evaluation and Translation Services,

    see: AETS Translation Application.

    http://www.aetsinternational.com/AETS.Translation.Application.PDF.Writable.2009.pdf

    Please contact AETS at anytime at (786) 276-8190, visit

    http://www.aetsinternational.com ,

    or email: mailto:info@aetsinternational.com.

    4. Website Services

    Gain the competitive edge with your new website from INSZoom, the

    world's largest immigration software company. Choose from over

    100 customizable website template designs, complete with

    customized logos and images, 60-70 pages of professionally

    written immigration law content including news articles,

    processing dates, and priority times posted directly on your

    site. Our search engine optimization tools will increase your web

    traffic and prioritize your site in the major search engines. Our

    content management tool lets you update your site in real time.

    Customizable intake sheet that can be integrated to your case

    management software directly into your website. Bi monthly

    newsletters and email blast tools enable you to stay in constant

    touch with current clients and strengthen your potential client

    base. Build leads and maintain a professional presence at a

    reasonable cost with websites from INSZoom. Learn more online at

    http://www.inszoom.com/websites

    or contact a sales representative at (925) 244-0600 to start the

    process of launching your new website today.

    5. Immigrant Tax Services

    Are you worried that your clients' tax returns might hurt their

    adjustment, cancellation or consular processing case? Did you

    know that clients making less than $46,000 qualify to obtain

    retroactive refunds after they obtain Social Security Numbers via

    any immigration process? Did you know that taxpayers can claim an

    exemption for dependents residing in Mexico or Canada? Sam Rock,

    principal of the Rock Law Group, specializes in taxes for

    immigrants. He is an immigration lawyer, national speaker and has

    published several AILA articles on the intersection of

    immigration and income tax law. Contributor to tax section,

    Kurzban's Immigration Law Sourcebook, 2010-11. With 10 years

    experience preparing tax returns for immigrants, we can help you

    understand your client's eligibility to file as head of household

    and make dependent claims. Get your legal fees paid from your

    clients' unclaimed tax refunds. Rush service in 48 hours.

    Educating Haitian nationals

    http://www.haitiantaxrefund.com

    about retroactive tax credits available to Haitian recipients of

    TPS. Services: original 1040s, amended returns, expert letters,

    testimony, resolution of IRS tax debt, audits/exam from all

    states and U.S. taxpayers living abroad. Competitive fees. Get

    tax knowledge on your side. Contact: mailto:sam@rocklawgroup.com,

    866-243-8178,

    http://www.rocklawgroup.com

    This is an advertisement by an attorney.

    To place a classifieds ad in Immigration Daily, see here

    http://www.ilw.com/corporate/advertise_on_ilw.shtm

    _________________________________________________________________

    ReadersWrite

    1. ReadersWrite: Yesterday's Discussion

    http://blogs.ilw.com/immigrationdaily/2010/12/27_cold_shoulder_hot_air.html#comments

    2. ReadersWrite: Today's Discussion

    http://blogs.ilw.com/immigrationdaily/2010/12/28_eb5_for_experts.html#comments

    To submit an Article for consideration, write to

    mailto:editor@ilw.com

    _________________________________________________________________

    ComingsNGoings

    ComingsNGoings: New Appointment Attorney General Eric Holder

    announced the appointment of Juan Osuna as Acting Director for

    the Executive Office for Immigration Review (EOIR). Since earlier

    this year, Osuna has worked as an Associate Deputy Attorney

    General working on immigration policy, Indian country matters,

    pardons and commutations, and other issues. For more info, see

    http://www.justice.gov/opa/pr/2010/December/10-ag-1477.html.

    Readers can share professional announcements (up to 100-words at

    no charge), email: mailto:editor@ilw.com.

    _________________________________________________________________

    The first daily in the field of immigration. Forward this to a

    colleague!

    Publisher: Sam Udani Legal Editor: Michele Kim ISSN:1930-062X

    An Important disclaimer! The information provided on this page is

    not legal advice. Transmission of this information is not

    intended to create, and receipt by you does not constitute, an

    attorney-client relationship. Readers must not act upon any

    information without first seeking advice from a qualified

    attorney. Copyright 1999-2010 American Immigration LLC, ILW.COM.

    Send correspondence and articles to editor@ilw.com. Letters and

    articles may be edited and may be published and otherwise used in

    any medium. The views expressed in letters and articles do not

    necessarily represent the views of ILW.COM.

    _________________________________________________________________

    ILW.COM - the leading immigration law publisher

    ILW.COM, PO Box 1830, New York, NY 10156

    Over 50,000 pages of free information!

    http://www.ilw.com/

    Immigration Daily - http://www.ilw.com/immigrationdaily/

    Archives - http://www.ilw.com/immigrationdaily/archives.shtm

    Classifieds -

    http://www.ilw.com/corporate/advertise_on_ilw.shtm

    RSS feed - http://www.ilw.com/rss.asp

    Processing times - http://www.ilw.com/govttimes/index.asp

    Immigration forms - http://www.ilw.com/forms/

    Discussion board - http://www.ilw.com/discussion/

    Find a lawyer - http://www.ilw.com/findlawyer/

    Seminars - http://www.ilw.com/seminars/

    Immigration Books - http://www.ilw.com/store/

    Advertise -

    http://www.ilw.com/corporate/advertise.shtm

    Resources - http://www.ilw.com/resources/

    Blogs - http://blogs.ilw.com/

    About ILW.COM - http://www.ilw.com/corporate/about_us.shtm

    Link to us - http://www.ilw.com/corporate/linktous.shtm

    Search - http://www.ilw.com/search/advanced.asp

    _________________________________________________________________

  4. USCIS PLANNING TO MOVE TO PRE-REGISTRATION PROCESS FOR H-1B CAP CASES

    by , 12-28-2010 at 09:42 AM (Greg Siskind on Immigration Law and Policy)
    USCIS has announced that it is working on a rule to create an electronic registration system for H-1B employers subject to the annual cap. Employers would first register an application and be allocated an H-1B cap number and then would file the case. The idea is that employers would need to register to claim an H-1B cap number first and then if they are selected, they then would prepare and file the case. Right now, employers have to go to all the trouble of preparing a case that may be rejected simply because the visa allocation is filled. I think the idea makes sense IF it is implemented in a fair way. I would be concerned that large volume H-1B employers would file to claim cap numbers and then ultimately not file a case, thus hurting smaller employers who have a real need for someone. Another thought - maybe a little out there - would be to have some kind of bidding process so employers where employers with the greatest need would have a better chance. Opponents of the H-1B program would likely have a weaker argument that the program is a funnel for cheap labor under such a system.
  5. Another Immigrant Dies in Immigration Detention

    by , 12-28-2010 at 04:57 AM (Matthew Kolken on Deportation And Removal)
    Immigration and Customs Enforcement (ICE) has reported that Jose Segundo, a 41-year-old Panamanian national, is the third detainee to pass away in ICE custody in fiscal year 2011.  He died Thursday at Krome Service Processing Center in Miami. 
    Mr. Segundo complained of chest pains, and became unresponsive and CPR was administered. An autopsy has been scheduled to determine the cause of death.
    Click here for the ICE Press Release.
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: