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  1. OSC Discourages Pre-Population of Section 1 of I-9; by Bruce Buchanan, Siskind Susser

    One of the hotter I-9 compliance questions these days is whether an employer may pre-populate the data in Section 1 and then have the employee sign and date it. Office of Special Counsel (OSC) has weighed in on the issue through a Technical Assistance letter, dated August 20, 2013. OSC stated it discouraged the practice because it "increases the likelihood of including inaccurate or outdated information. . . . (which) may lead an employer to reject documents presented or demand specific documents for Section 2 purposes." It added this was particularly true if the employee did not get an opportunity to review the information. However, if the employee is still attesting to the information, through their signature, it seems they would have the opportunity to review the information. So, employers should beware of OSC's view of pre-population. On the other hand, ICE has given several inconsistent verbal statements on the matter. In my opinion, to be on the safe side do not pre-populate.
  2. AAO Has Posted TWO Post Policy Memo Decisions!

    A Review of the Two Post-Policy Memo

    Regional Center AAO Non-Precedent Decisions
    By Joseph P. Whalen (September 1, 2013)

    Just as Labor Day weekend was getting underway, I ran across some EB-5 AAO non-precedent decisions newly posted to and was happy to finally see how AAO was interpreting and applying the recent policy changes. In the B7 category for 2013, I found eleven (11) I-526 visa petition non-precedents. Only one of them involved a Regional Center, namely, Chicagoland’s Elgin, Il. assisted living project which also has a U.S. District Court decision to which I added a link. The point to keep in mind for this discussion is that all of the I-526 non-precedents are dated in April 2013, just prior to the May 30, 2013 EB-5 Adjudications Policy Memo. All of them resulted in their case, whether an appeal or motion, being dismissed.

    In the K1 category for 2013, I found two (2) Regional Center non-precedents. They are dated in June and July 2013, dates that fall after the issuance of the May 30, 2013, EB-5 Adjudications Policy Memo. Both decisions make very specific references to that memo and both resulted in AAO overturning the CSC Denials and approving the Regional Center requests as “hypotheticals”.

    AAO makes a point of stating in the June non-precedent that the issue of having to request an expansion amendment had been rendered moot as the Regional Center was no longer required to file any such amendment. However, since it had filed one and paid a hefty fee, AAO felt that the agency was obligated to address it under the new relaxed policy and subsequent legal re-interpretations. AAO found that the requested extensions as to industries and geography were supported in the context of the “hypothetical” projects realm and as such approved the amendment. AAO made a point to state upfront that this decision would receive no deference in connection with any I-526 filed for that project and the the first I-526 (or an exemplar I-526) would receive a full de novo review. Only upon success at that next stage would subsequent I-526s receive deference as to the shared project documents and methodologies, if materially unchanged from the originally submitted information upon which that deference would be based.

    Here is a snippet from that decision:


    For the reasons set forth below, the applicant has provided sufficient evidence of a general proposal based on general predictions to establish that the amendment request is approvable.

    A. Requirement to File Regional Center Amendments

    The regulation at 8 C.F.R. § 204.6(m)(3) provides the evidentiary requirements for regional centers wishing to participate in the Immigrant Investor Pilot Program.
    Page 23 of EB-5 Adjudications Policy, PM-602-0083 (May 30, 2013), discusses amendments to regional center designations and states:

    Such formal amendments to the regional center designation, however, are not required when a regional center changes its industries of focus, its geographic boundaries, its business plans, or its economic methodologies. A regional center may elect to pursue an amendment if it seeks certainty in advance that such changes will be permissible to USCIS before they are adjudicated at the I-526 stage, but the regional center is not required to do so.

    Thus, the applicant was not required to file the instant amendment request. While not required, the applicant has, in fact, filed the request. Therefore, the merits of that request are discussed below.

    B. General Proposal and General Predictions

    The applicant has not filed an exemplar or a request for approval of an actual investment project. Instead, the applicant has filed an amendment request for hypothetical projects, such as a coffee company that desires to branch out into the home and office delivery business.
    Page 14 of EB-5 Adjudications Policy, PM-602-0083 (May 30, 2013), provides:

    The level of verifiable detail required for a [regional center proposal] to be approved and provided deference may vary depending on the nature of the [regional center proposal]. If the [regional center proposal] projects are "hypothetical" projects, general proposals and general predictions may be sufficient to determine that the proposed regional center will more likely than not promote economic growth, improved regional productivity, job creation, and increased domestic capital investment. Determinations based on hypothetical projects, however, will not receive deference and the actual projects on which the Form I-526 petitions will be based will receive de novo review during the subsequent filing (e.g., an amended [regional center proposal] including the actual project details or the first Form I-526 petition filed by an investor under the regional center project).

    The record contains a general proposal based on Census Bureau and other data and general predictions concerning the kinds of commercial enterprises that will receive capital, the direct and indirect jobs that will be created as a result of such capital investments based on RIMS II data and multipliers, and other positive economic effects. Thus, the AAO withdraws the director's concerns.

    (Emphasis added.)

    As for the July non-precedent, it involved a request for initial designation based solely on “hypotheticals” that relied upon “general predictions” drawn from a “general proposal”. In its overzealous approach in demanding too high of a level of specifics, CSC denied the request. AAO applied the more realistic and business friendly approach set down as Policy in the May 30, 2013 Memo and reversed the onerous and draconian decision of the CSC adjudicators. The following excerpts serve to illustrate the change that I find most welcome.

    The director determined that the applicant had not provided a business plan with verifiable detail regarding how the proposal will create sufficient jobs. The director denied the proposal accordingly and certified the matter to the AAO. The director afforded the applicant 30 days to supplement the record. The applicant's response is now part of the record.
    * * * * *

    The applicant seeks regional center designation based solely on a hypothetical project to establish [REDACTED] funds that will invest in the [REDACTED] and distribution of unidentified [REDACTED]. The applicant concedes on certification, through prior counsel, that the regional center proposal is not based on an actual project and does not include an exemplar I-526 petition.
    Page 14 of EB-5 Adjudications Policy, PM-602-0083 (May 30, 2013), provides:

    The level of verifiable detail required for a [regional center proposal] to be approved and provided deference may vary depending on the nature of the [regional center proposal]. If the [regional center proposal] projects are "hypothetical" projects, general proposals and general predictions may be sufficient to determine that the proposed regional center will more likely than not promote economic growth, improved regional productivity, job creation, and increased domestic capital investment.

    The record contains a general proposal based on general predictions concerning the kinds of commercial enterprises that will receive capital, the jobs that will be created as a result of such capital investments based on RIMS II data and multipliers, and other positive economic effects. As the record contains a general proposal, the applicant is not required to submit letters of intent or commitment from the prospective sources of matching funds for regional center designation.FN1 Thus, the AAO withdraws the director's determination.
    FN1 The regulation at 8 C.F.R. § 204.6(g)(1) requires an individual investor to identify the sources of all capital invested and to demonstrate that all invested capital has been derived by lawful means when filing an I-526 petition for
    classification as an alien entrepreneur.

    While the proposal for designation as a regional center is approved, it is based on hypothetical projects. Determinations based on hypothetical projects will not receive deference, and the actual projects on which the Form I-526 petitions will be based will receive de novo review in a subsequent filing (e.g., an amended Form I -924 application including the actual project details or the first Form I-526 petition filed by an investor under the regional center project). See EB-5 Adjudications Policy, PM-602-0083, page 14 (May 30, 2013).

    (Emphasis added.)

    I, for one, am glad that CSC and AAO have finally come around in their thinking as to that onerous approach we disagreed about for years. When I trained the first batch of Regional Center adjudicators for CSC, I tried my best to get them to see that business plans tend to be fluid and that asking for too much detail upfront was futile and contraindicated to reality. Most of them seemed to “get it” but once left to the constant “Culture of NO!” mentality and environment within CSC at that time, the best and brightest either got turned around in their thinking or moved on to other positions or duties (and a few retired).

    One last tidbit is that of all of these thirteen (13) non-precedents, only the July decision is actually labelled as a “NON-PRECEDENT DECISION” in the header beginning on the second page, and it is the first EB-5 non-precedent posted thus far that contains the new language on the first page as follows:

    Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a nonprecedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions.

    These changes were made official and mandatory with the AAO Policy Memo of July 2, 2013, PM-602-0086, entitled: “Precedent and Non-Precedent Decisions of the Administrative Appeals Office (AAO)”; which accompanied the other Memo of the same date, PM-602-0087, entitled: “Certification of Decisions to the Administrative Appeals Office (AAO)”. I certainly hope that eventually we will get a few more actual Precedents in EB-5. Naturally, we need some that post-date the policy change and the process of certification should be pursued but maybe we can wait and see what else comes along before jumping off the deep-end.

    For more info on ALL of the 2013 EB-5 Decisions see the doc at the below link (it was too large to attach here).
  3. My Other Hat

    by , 09-01-2013 at 02:28 PM (Greg Siskind on Immigration Law and Policy)
    Some of the immigration lawyers reading this may remember that I wrote a book on web site marketing for the American Bar Association back in the mid-90s. I got the gig as a 27 year old lawyer because I had gotten a lot of publicity for being one of the first lawyers in the country to set up a web site (our site turns 20 in just a few months).

    I still get asked to write and speak on law firm marketing topics and recently began writing a column for the American Bar Association's Law Practice Magazine (published by the ABA Law Practice Management Section). My latest is on email signature blocks and is now online.
  4. Wondering What Happened to the House Gang of 7 Bill?

    by , 09-01-2013 at 01:57 PM (Greg Siskind on Immigration Law and Policy)
    Lots of attention has been focused on the individual bills being managed mainly by Republicans as part of the piecemeal strategy promoted by Congressman Goodlatte, Chair of the House Judiciary Committee. But the bipartisan bill worked on by the "Gang of 7" group of four Democrats and three Republicans hardly gets mentioned these days.

    The low profile the bipartisan group has been taking may be deliberate, at least according to a story in the International Business Times. According to reporter Laura Matthews who spoke with a Democratic "close to the group", all the Democrats have signed off on the language and they are just waiting on the Republicans.

    From the IBT:

    When the Republicans give the OK, the group will wait for the “right bipartisan moment” to introduce the bill, probably sometime in October. By that time the bipartisan group hopes Congress will be over the budget fight, with an appropriations bill passed to avert the threat of a government shutdown.

    “I think the work has been done,” the staffer said. “I think they've got a good proposal. I think they’re waiting to see whether there is any chance that a comprehensive bill is going to be looked at, or components of this bill could be looked at. But I think there are probably some additional machinations that have to happen first.”

    At the moment, Democrats in particular are waiting to see what will become of the piecemeal bills being passed by the House Judiciary Committee, which they believe will ultimately fail because of their hard-right stance. By then House Republicans will need a solution to the problem and the comprehensive legislation will be on hand.

    “So I think they are going to have a hard time getting 218 votes on the partisan bills that came out of Judiciary, but they might make a run at it,” the Democratic staffer said. “I think at some point in October there’s going to be a reevaluation of the strategy among Republicans, and at that point I think if enough of them are serious about getting
    something done -- and I think there are enough of them, especially in the leadership -- then we will be at a bipartisan moment when they need to have a different approach that would get both Republicans and Democrats on the same bill.”

    This sounds believable, but we've also heard several times before that the GO7 was done negotiating. We also have yet to hear anything sounding like Speaker Boehner would vary from his promise to block any votes on measures not likely to get a majority of Republican votes. But I do think that if Republicans are unable to move immigration legislation on their own, we'll see tremendous pressure to move the bipartisan bill (assuming one is actually finished by then).
  5. Syrian Poison Gas - CIR Poison Pills: Will Obama Act If Congress Says No? R. Algase

    Update: September 1, 7:00 pm

    Michael Hirsch writes in a September 1 National Journal article: On the verge of appeasement in Syria, that President Obama, by asking Congress for approval which he doesn't need for strikes against Assad's poison gas regime, comes off looking like a latter day Neville Chamberlain.

    Hirsch also quotes Susan Page, writing in USA Today, as saying that Obama has weakened his own presidency. While I have made clear that this blog has no position on Syrian intervention because it is concerned with immigration law and policy only, anything that makes Obama look weak on something as important as Syria is also likely to put him in a weaker position with Congress on another critical issue, immigration reform.

    If the president is willing to give Congress the last word on whether Assad will be able to get away with gassing hundreds of innocent children, and perhaps untold numbers of additional ones in the future, then why would the president not also give Congress the last word on whether or not to round up and deport 11 million men women and children, even though there is ample legal authority for Plan B executive action to legalize them?

    This show of weakness on Syria is not the best way to convince House Republicans that the president would be prepared to respond with strong executive action if the House does the same thing to CIR with its poison pills that Assad is doing to the children of Syria with his poison gas.

    This update was posted on the evening of August 31, shortly after President Obama's announcement that he will seek Congressional approval for a strike against Syria.

    Lots of luck with that, Mr. President.

    As I mentioned originally, this blog is not about whether a US attack or military strike against Syria, whatever one calls it, is a good idea or not. Doubtless, the murderous Syrian regime must delighted with the "postponement", but so are millions of Americans, ranging from progressives on the left to David Koch and Sarah Palin on the right.

    There might also be reason for immigration reform advocates to feel relieved. CIR is already competing for attention with many other urgent issues - debt ceiling limits, government shutdowns, etc. Having Congressional attention diverted this fall by a major war, if that is what a military strike would lead to, could be the last thing that CIR needs to get passed by the House.

    But this argument assumes that genuine immigration reform, as opposed to the ersatz, enforcement-first, mockeries of reform that are masquerading under the name of "piecemeal" bills in the House, really has a chance in that Chamber.

    That may be as realistic as expecting the Assad regime to sit down with the rebels tomorrow and work out a harmonious coalition government deal leading to democratic elections in the immediate future.

    The initial reaction to the president's decision to postpone strikes and ask for Congressional approval that no one thinks he will ever get is one of weakness, hesitation and lack of trustworthiness on his part - Paper Tiger, might be the best phrase - mixed with opportunism and the fear of doing anything unpopular, even if it is the right thing to do, as many people believe it is.

    If the President can waffle so easily on responding to genocide in Syria, is he really willing to go to bat for and implement Plan B and suspend deportations after the House, as expected by many reform supporters, demolishes CIR with poison pills instead of poison gas?

    By today's postponement of action against Syria. the president may also be projecting weakness in the battle for immigration reform.

    The following is a revised version of my original post on the morning of August 31.

    In their August 30 Immigration Daily article, Gary Endelman and Cyrus Mehta raise the question of a connection between the issue of possible US intervention in Syria and American immigration policy - namely that a country which claims the right to take military action against another for humanitarian reasons also needs a humane immigration policy to bolster its moral standing.

    One might also point out that according to media estimates, at least 400 people die in the desert each year trying to reach the US from Mexico. Where is America's moral superiority in this regard?

    To take another example, the US has been trying to arrange for an envoy to visit Pyongyang to negotiate the release of a US citizen who was sentenced to a long term in one of North Korea's horrendous labor camps for entering that country illegally.

    No doubt, our own immigration prisons are not as bad as the North Korean labor camps - not quite. But should that be the standard for how America treats people whom it doesn't want in this country?

    There is also another connection between Syria and CIR (other, than the fact that, coincidentally the two words sound similar). This is that both situations are ones where the Obama administration may have to go it alone.

    With regard to Syria, this post is not the place to discuss whether US military action against Syria would be a good or a bad idea. As Gary Endelman and Cyrus Mehta suggest, there are those who would compare Syria to Iraq, and others who would compare it to Rwanda.

    (I happen to lean toward the Rwanda comparison myself, but this is in part because I have had the privilege of meeting someone from that country who heads an organization working with Rwandan genocide refugees in the US - I have heard about some of their terrifying stories.)

    But my personal opinion about intervention in Syria is beside the point. What is important is that both intervention in Syria to try to prevent further atrocities, and granting legalization and a chance at a normal life free from fear and persecution to 11 million unauthorized immigrants may in all likelihood require the Obama administration to act on its own.

    With regard to Syria, if the president decides to take action, it will be without the cover of a UN resolution, any "Coalition of the Willing", or even the support of our usual ally in this kind of business, the UK, not to mention lack of consent of Congress, whether required by law or not.

    And in the case of legalization, any action by the administration may also have to take place without the consent of Congress. Almost every day, we see yet another story about House Republicans' delay and obstruction in their attempt to kill CIR. The latest item is a warning from the White House not to expect any action from the House on immigration reform, even the pathetic "piecemeal" versions which have already been introduced, before October.

    But this doesn't mean we can count on anything actually happening in October, as Jonathan Bernstein points out in his August 28 Washington Post column The GOP, not the calendar, is the obstacle for immigration reform.

    President Obama has the means to take action against Syrian poison gas through military action and against Republican CIR poison pills through Plan B executive action extending DACA to wider classes of immigrants and putting a hold on deportations in the meantime.

    Whether military strikes against the genocidal Syrian regime would be wise may be open to debate, but there should be no doubt about the necessity for implementing Plan B, if House Republicans continue to use their weapons of mass destruction against immigration reform.

    A strong case for executive action is made the article Obama's Immigration Nuclear Option: Stopping Deportations Unilaterally, Atlantic Monthly, August 29.

    Whether the issue is Syria or CIR, acting unilaterally requires political courage. If President Obama needs to go it alone in order to implement legalization, will he have the courage?

    Posted by Roger Algase
    Attorney at Law

    Updated 09-04-2013 at 04:51 AM by ImmigrationLawBlogs

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