June 2015 Newsletter

06-10-2015

Injunction Against Obama’s Immigration Actions Stands

On Tuesday a federal appeals court denied the Obama administration’s request to lift a hold on the president’s executive actions on immigration concerning DAPA and DACA expansion. Some of the initiatives under the president’s action, which would have granted protection from deportation as well as work permits to millions of immigrants in the country illegally, were scheduled to take effect this month.
The appeals court found that the states had sufficient legal grounds to bring the lawsuit and that the administration had not shown that it would be harmed if the injunction remained in place and the programs were further delayed. Ruling in favor of sustaining the injunction made by Federal District Court judge in Brownsville, Texas, were judges Jerry Smith and Jennifer Elrod. They stated that Texas had shown it would incur significant costs in issuing driver’s licenses to illegal immigrants who would be allowed to stay in the country. The court also denied the administration’s argument that the courts could not review the programs because they stemmed from policy decisions by the president on how to enforce the immigration laws. In addition, a request by the administration to limit the injunction to the states bringing the lawsuit was denied.
While this ruling is another setback for the programs, the decision by the Fifth Circuit does not necessarily mean the administration will lose the larger case. In addition to this emergency stay request, the Fifth Circuit is considering the administration’s appeal of the injunction. The Fifth Circuit tentatively scheduled oral arguments on the appeal the week of July 6. To read the entire decision, click here.

Implementation of H-4 EAD Regulation Begins After Government Defeats Legal Challenge

U.S. District Court judge Tanya S. Chutkan denied a motion to block the H-4 spousal work rule from taking effect after hearing arguments last week. The new rule promulgated by the Department of Homeland Security, which allows certain H-4 spouses of H-1B workers to apply for employment authorization, has therefore gone into effect as scheduled, May 26, 2015.
Save Jobs USA, an organization of computer workers, alleged that DHS violated the Administrative Procedures Act (APA) when it issued a final rule that will allow certain H-4 visa holders to apply for employment authorization. Save Jobs asked the court to grant a preliminary injunction to stop the rule, claiming that the rule would force its members to compete with H-4 visa holders for technology jobs. The judge concluded that Save Jobs USA failed to meet the standard for granting a preliminary injunction because it did not demonstrate that the injuries it alleged are “certain, great, actual, imminent, and beyond remediation.” To read the entire decision, click here.

Debate Over H-1B Visas For High-Tech Guest Workers


Last year, the government received twice as many applications in the first week as the 85,000 visa slots available. Applications submitted before April 7 were put into a lottery, while those that came in later were simply out of luck. This helped raise concerns as to whether the clear demand for high-skilled foreign workers joining American companies are in fact good for the U.S. The major concerns regarding the H-1B program are whether tech companies are in demand for visas because they cannot find enough qualified American workers, or because they simply do not want to pay Americans more.
The H-1B visa is the main way educated, "high-skilled" immigrants can come to the US. H-1B visa holders have to have degrees and work in "specialty occupations," and, must already have a job offer in order to apply. The consensus around most politicians and business leaders is that there are not enough qualified American workers, and without more ability to bring qualified workers to the U.S., companies will have to go to the workers and move overseas. The skeptics think tech companies are exploiting the myth of a "STEM shortage" to hire foreign workers for lower pay than they would have to pay Americans. This is even referred to as the “Silicon Valley STEM Hoax.”
However, it is important to understand that most H-1B visa holders are in fact going to outsourcing firms, and not necessarily to STEM companies in the Silicon Valley. In addition, the STEM industries actually growing are in the health care and IT sectors, but are not necessarily the ones that every American who graduates with a degree in science or math is qualified to work in. While having high-skilled workers is good for the U.S. economy, the question of whether the actual H-1B visa is good for the country, or just good for tech companies, continues to be up for debate.

Fear Of Deportation May Be Keeping Latino Victims Of Domestic Violence, Sexual Assault From Seeking Help

A recent study of the Latino community's views on domestic violence and sexual assault found that while a great number of the general population believe Latino victims don't come forward because they fear losing their children or facing more violence, many Latinos think victims also may be afraid to go to the police with the concern that it could lead to them being deported.
The poll found that about 56 percent of Latinos said they knew someone who had been a victim of domestic violence, and 28 percent knew someone that had been a victim of sexual assault. When asked about what may be keeping these victims from coming forward, approximately 41 percent states it was due to the fear of being deported.
Immigration advocates often predict that domestic violence is a key reason to keep police out of immigration matters. This in part is due to the fact that police sometimes arrest both parties at first and then charge only the abuser, but after already having taken the victim's fingerprints it could put the victim at risk of deportation. There are, however, several law enforcement agencies in many jurisdictions that have resisted working with immigration authorities in part to encourage victims to feel safe in coming forward. The study was commissioned by the Avon Foundation on behalf of ‘No More’ and Casa de Esperanza.

Members of Congress Step Up With Legislation That Solves Chinese EB-5 Retrogression If Passed

The EB-5 visa program, which is designed to stimulate the U.S. economy through job creation and capital investment by foreign investors, is very popular among Chinese investors. Despite the billions in foreign investment made to date, the State Department is pressing pause for thousands of recent EB-5 visa applicants from China.
This development comes in due to numerical visa limitations of the EB-5 program, which only has access to a finite number of visas each year designed to ensure that citizens from each country around the world would have a fair shot at an EB-5 visa. In response to the large amount of Chinese investors, the State Department and United States Citizenship and Immigration Services (USCIS) are exercising a form of crowd control to allow non-Chinese investors to line up for their green card.
The current EB-5 visa situation is undergoing a retrogression period, which began on May 1, 2015.  The State Department and USCIS commenced retrogression for EB-5 Chinese immigrant investors to May 1, 2013, therefore the investors who applied after that date will now wait until more visas become available before their conditional U.S. residence commences. There are clear effects of such action within the EB-5 community as well as the larger U.S. economy. Without legislation to remedy the burdens of retrogression, Chinese investors will likely find the line growing longer each year, and the United States would be missing out on millions of dollars of investment ready to be deployed into our economy to create American jobs. 

07-25-2019
NINTH CIRCUIT VICTORY FOR VICTIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL

This month, our law firm, together with Co-Counsel Louis A Gordon, won a major victory in the Ninth Circuit Court of Appeals. The case impacts many immigrants who have suffered from bad or ineffective advice from prior Counsel. The Court in its published decision, Flores v Barr, overturned a Board of Immigration Appeals ruling which denied our client, the Petitioner, the opportunity to have his case reopened because of ineffective assistance of his prior immigration lawyer. 

07-24-2019
FINAL EB5 PROGRAM RULE PUBLISHED TODAY. MINIMUM INVESTMENT AMOUNT WILL INCREASE EFFECTIVE NOVEMBER 21, 2019

Investors and EB5 industry professionals have been anxiously waiting for the publication of a final regulation regarding the EB5 Program. USCIS has now published the final regulation which modifies the  proposed rule which was announced in February this year.

06-15-2019
E-1 and E-2 Now Available for New Zealand

New Zealand citizens can now obtain E-1 and E-2 treaty trader and investor visas to work in the U.S. These categories, which allow up to 2 years’ renewable stay, are determined by trade treaties secured between the U.S. and the foreign country or by Congressional legislation.

Citizens of New Zealand who are already inside the U.S. may file Form I-129 to change status – a spouse or child of such an applicant should file Form I-539 to change status to match the E-category applicant. 

06-14-2019
Waiting List Announced for Indian EB-5 Starting in July

The latest Visa Bulletin, published by the U.S. Department of State (DOS) earlier this month, confirms industry predictions of a waiting list for Indian-born EB-5 investors. Starting in July 2019, EB-5 visas will be available only to those Indian-born investors who filed their petitions before 05/01/2017. This cut-off date creates a waiting list of approximately two years, which is significantly shorter than the waiting list currently facing mainland Chinese-born investors, which currently stretches back to 10/01/2014.

06-10-2019
Premium Processing Returns to H-1B

Starting June 10, 2019, the U.S. Citizenship and Immigration Services (USCIS) will resume Premium Processing for all remaining H-1B petitions. This completes a trial arrangement whereby USCIS allowed limited Premium Processing starting May 20 for H-1B petitions with a Change of Status. The approach was introduced after recent years eliminated Premium Processing altogether, resulting in lengthy delays, with some H-1B petitions remaining under adjudication even after the usual annual start date of October 1.

06-05-2019
USCIS Tightens Forms Criteria for H-1B Filings

The U.S. Citizenship and Immigration Services (USCIS) issued a caution on June 4, 2019, stating that H-1B petitions will be rejected if they fail to include names and addresses on Part 1 of Form I-129. Specifically, applicants are cautioned not to list outside counsel, clients, or other third parties, in such fields requesting the names and addresses of the petitioning U.S. employer. This measure, which goes into effect starting August 5, 2019, comes as part of the current administration’s moves to raise barriers to entry for the H-1B category overall. 

06-04-2019
U.S. Department of State Update – Visa Retrogression and Future Wait Lists

Washington DC, June 2, 2019 – The American Immigration Lawyers Association recently spoke to Charlie Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State (DOS) to obtain his analysis of current trends and future projections, beyond the basic visa availability updates provided in the monthly Visa Bulletin. Mr. Oppenheim re-confirmed previous predictions for the EB-5 visa category for Indian nationals. India will reach its per country visa limit and a visa waitlist for Indian-born individuals will begin in July of 2019 with an initial Final Action Date (cut-off date) in 2017.