By Brandon Meyer
Associate and Contributing Writer

The system for allocating employment-based immigrant visas (“IV”) is broken. The January 2009 Visa Bulletin issued by the Department of State (“DOS”) continues to signal interminable waiting periods for those hoping to apply for permanent residence, specifically in the second and third preference categories for Chinese and Indian nationals. I have previously written for ILW.com that a large basis for this mess stems from the temporary expansion of the H-1B cap from 1999-2003 (See “Three Cheers For The New, Improved TN! On Second Thought…” Short of a major modification in the way IV’s are allocated, combined with a substantial increase in total numbers available (or long-suffering immigrants simply giving up and leaving the United States), there is no relief in sight. Many observers are predicting comprehensive immigration reform (CIR) legislation in 2009 to solve this problem, although I unfortunately believe that such a program is unlikely for the foreseeable future. The best that may be achievable in 2009 may be piecemeal relief in specific areas, such as relief for nurses and other health care professionals.

So what is one to do while stuck in a green card queue that is seemingly without end? One could continue to wait around for a long-promised CIR to set them free, or they could continue to wait for their priority date to someday become current. After all, many thousands of people have been waiting for several years in this endlessly absurd state of limbo, so what are a few more years of waiting? Unfortunately, weighing the improbable (CIR) versus the unreliable (sustained forward movement of priority dates) has become an unacceptable choice for these many thousands who suffer from the day-to-day uncertainty that the broken IV system breeds. Time is too precious a commodity to waste. Some fresh ideas are needed to offer meaningful solutions to those who have been long-suffering in the twilight zone of the IV allocation system.

Potential outside the box solutions to the problem of the IV quagmire do exist and are frequently overlooked by many immigration practitioners accustomed to seeing the world as a linear path that starts with an H-1B, grows into a Labor Certification, leading seamlessly to an immigrant visa petition (Form I-140), then happily commencing with the issuance of a green card after approval of an Adjustment of Status Application (Form I-485).

To be sure, many people have benefitted from this straightforward, conventional approach. However, if you’re an Indian national staring at the January 2009 Visa Bulletin and reading that only individuals in the third-preference category with a priority date of October 15, 2001 or earlier are eligible to apply for permanent residence, this straightforward approach may seem more like a perpetuation of an endless nightmare. Even second-preference Indian nationals looking at an eligibility date of July 1, 2003 (only a mere five and half years ago!) must be wondering whether the Iraq War will both begin and end before their priority date becomes current.

So what can be done to avoid the uncertainty and slothful movement of employment-based priority dates? Marriage to a United States citizen is one approach, but one that will not be the focus of this article. Instead, I will argue that individuals stuck in priority date limbo should consider the EB-5 category for immigrant investors, subject to the independent advice of financial and tax professionals and after conducting thorough due diligence before proceeding. Annual allocation of IV’s in the EB-5 category is 10,000, not less than 3,000 of which are reserved for investors in so-called Targeted Employment Area’s (“TEA”), and 3,000 reserved for investors in USCIS designated Regional Center’s (“RC’s). There is no current backlog in the EB-5 category, nor has there ever been. I will argue that the EB-5 program now presents a potential end-around of the grinding backlogs that persist in the second and third employment-based IV categories.

Am I really suggesting that the EB-5 category now represents a credible alternative to employment-based immigration in the second and third preference categories, the one that requires a $1 million investment and plagued by a nearly 100% denial rate in the recent past? Yes. There are now many viable investment options that either qualify as an EB-5 Regional Center or as an investment project within a TEA. Qualifying RC and TEA projects require an investment of $500,000 and do not mandate active management of the EB-5 enterprise, unlike the traditional EB-5 program which requires a $1 million investment, making the EB-5 program more accessible to a broader range of people than is often realized. Secondly, many of the problems that haunted the early days of the EB-5 program have seemingly been overcome. Practitioners have become more skillful in preparing successful EB-5 petitions, while marginal EB-5 projects have disappeared from the landscape through natural selection. EB-5 approval rates have risen in recent years, topping 76% and 82% for 2007 and 2008 respectively. Approval rates for subsequent applications to remove the conditional permanent residence status (Form I-829) that initially comes after EB-5 approval were 69% and 73% for 2007 and 2008. USCIS is also beginning to develop a more user-friendly, realistic adjudicatory approach to EB-5 matters, by centralizing adjudication with the California Service Center (“CSC”) and providing specialized training to a dedicated unit of adjudicators. If successful, more consistent and commonsensical adjudications should be forthcoming.

I do not seek to minimize the financial risk associated with investing $500,000 in a project in order to avoid the backlogged IV queue. No EB-5 investment project, nor any other investment, is risk-free and $500,000 is a lot of money for most people. However, $500,000 is not as much money as it was when the EB-5 program was first enacted in 1990 and the financial risks associated with investing one’s future employment and financial prospects in the uncertainty of haphazard priority date movements, are unquantifiable, but undoubtedly large. For an Indian national waiting for more than seven-and-a-half years to be eligible for permanent residence, what if the unimaginable occurred and priority dates retrogressed further? What if the economic downturn leads to widespread job losses and a weak labor market that causes people to either lose their priority date and/or their AOS applications, rendering years of waiting for permanent residence a complete loss? What if an angry left-wing U.S. Congress, beholden to labor unions who pine for the imagined glories of the 1950’s and seizing upon a national mood of unhappiness with an unstable economic climate, decide that one ‘obvious’ solution to U.S. economic ills is to curtail IV numbers in employment-based categories? In the zero-sum logic that often passes for insight in trade and immigration debates, many politicians can easily equate curtailing IV issuance by 75,000 as a sure-fire method of ‘creating’ 75,000 jobs for U.S. citizens. The knock-on effect for current priority date backlogs would be immense.

Given the present backlogs that plague employment-based IV issuance and uncertainties with the world economy and whatever trade and immigration laws the U.S. Congress may enact in response, investing in a qualifying RC or TEA project may serve as an excellent hedge for individuals stuck in the priority date quagmire. Pursuing an IV through the EB-5 program does not require an individual to abandon any pending or approved Labor Certifications, IV petitions (such as an I-140 petition), or pending I-485 application that a U.S. employer has filed on their behalf. Individuals pursuing permanent residence through both conventional employment-based methods and the EB-5 category can pursue these options concurrent, essentially seeing which process gets them to the finish line first.
Currently, the race is something akin to a race between the tortoise and the hare. With no current backlogs, processing times currently averaging 7.5 months, and with premium processing a possibility in the future, becoming the beneficiary of an EB-5 petition may save individuals stuck in priority date limbo several years of time and more importantly, uncertainty. Once the EB-5 petition and the following green card applications are approved (on a conditional basis), a beneficiary can apply to have the conditional aspect of permanent residence status removed 90 days prior to the two-year anniversary of the grant of conditional permanent residence. At current processing times, an individual may navigate the entire EB-5 process from initial filing to the bestowal of permanent residence without conditions in approximately three to four years. While the prospect of waiting another three to four years may seem unpalatable, unlike the backlogs that prevent the filing of a green card application for many, most of the waiting time for the EB-5 process is composed of USCIS processing and the statutory two-year period of conditional permanent residence for successful EB-5 beneficiaries. For those stuck in the normal employment-based green card queue, already waiting several years just to become eligible to apply, this must represent an improvement.

Some may argue that the timing could hardly be worse to invest $500,000 in an EB-5 project, paradoxically, the timing may never be better. Buying at the bottom of the market will always show a greater percentage gain when the market recovers (and may make the I-829 removal of conditions application an easier proposition). While the current economic news is overwhelming negative, this situation will not last forever. The economy will improve. It always has and always will.

Employers … it is not too soon in any way to be setting your hiring strategy in place for the April 1, 2009 commencement of the H-1B filing period to start employment October 1, 2009 (for fiscal year 2010).

USCIS expects to receive far more petitions for new H-1B employment than are needed to meet the annual quota of 65,000 as well as for the additional 20,000 H-1B numbers for candidates with US advanced degrees.

We cannot stress how important it is that employers seeking to hire new H-1B workers, identify all current or future employees who will need initial H-1B sponsorship as soon as possible. We encourage you to work closely with your immigration provider on the thorough preparation of your casework so that it will be ready to be sent by courier for delivery to USCIS on April 1, 2009.

160,000 cases were filed against H-1B quotas last year. It is anticipated, due to the economic downturn, that there may be fewer H-1B filings in FY 2010; however, it is still certain that USCIS will receive a very high volume of filings that will far surpass the annual quotas as employers submit petitions in anticipation of their future hiring needs.

USCIS will use a computerized lottery if an excess of H-1B petitions are received to choose the petitions that will be awarded a cap number. Planning in advance cannot be stressed enough. Employers must have their cases ready for arrival at USCIS on April 1 – and must know that they are approvable when submitted – to ensure that they are included in the selection process. Even with advance planning and timely filing – there is no guarantee that a petition will be awarded a quota number if USCIS receives more than enough petitions to satisfy the annual cap.

Immigration Solutions is already starting to gather relevant and required documentation to draft H-1B casework such as college or university degrees and transcripts, evaluations of foreign educations credentials, certified translations of foreign language documents, maintenance of status information, etc. Now is the time to do your strategizing and to gather all necessary information to assure that the casework, when filed, is complete and approvable upon submission to USCIS.

Labor Condition Applications should be obtained as soon as possible. DOL has announced its intention to more closely scrutinize LCAs beginning in early 2009. In the past, LCAs were processed very quickly online – in a matter of minutes; however it has been stated that DOL is expected to take up to 7 days or more to process LCAs. Planning concerning this is absolutely essential. Employers should not wait until the final weeks before April 1, 2009 to obtain certified LCAs. LCAs should be submitted to DOL as soon as possible so that H-1B petitions can be completed and ready to file on April 1st. Employers should note that obtaining an LCA early can shorten an H-1B worker’s initial period of stay, since LCAs can only be obtained six months before a requested start date and are valid for a maximum of three years. However, if applied for early, the certified LCA will be in hand and ready to file with the H-1B petition on April 1.

If Immigration Solutions is not handling your H-1B case, our attorneys are available to consult with you as well as to offer a 2nd opinion.

Contact us today!

DHS has issued a final rule that will expand the population of immigrants who will be subject to US-VISIT requirements to nearly all immigrants, including lawful permanent residents.

Charles H. Kuck, Presient of AILA, said “the sole reason permanent residents will be singled out for data collection is the fact that they are not yet United States citizens.” Without any reason to suspect wrongdoing, the U.S. Government will now collect biometric data from lawful permanent residents each time they enter the United States; privacy is now extinct. The expansion of this unproven program is premature. The proposed implementation strategy requires a far more detailed assessment of the costs of implementation and ongoing administration. The impact on the free flow of international travel and trade especially in this current time of economic upheaval has not even been assessed. This new rule will only harm the U.S. economy even more, and lead to lost productivity, competition, and jobs.

The US-VISIT program was established in 2003 to verify the identities and travel documents of visitors. US-VISIT automates this verification by comparing biometric identifiers, and by comparing biometric identifiers with information drawn from intelligence and law enforcement watch lists and databases. Visitors subject to US-VISIT may be required to provide fingerscans, photographs, or other biometric identifiers upon arrival at, or departure from, the United States. Currently, people entering the United States pursuant to a nonimmigrant visa, or those traveling without a visa as part of the Visa.

For more information:
Read this press release from AILA.org & you can find more information on the ruling at DHS

The USCIS has announced that it has submitted an interim final rule to the Federal Register that will streamline the Employment Eligibility Verification (Form I-9) process.

The interim final rule narrows down the list of acceptable identity documents and further specifies that it will no longer accept expired documents. An expansive document list makes it much more difficult for employers to verify valid and acceptable forms and single out false documents compromising the security of the Form I-9 process. Within the changes included – the interim final rule will significantly improve the security of the employment eligibility verification process.

For more information on the revised ruling:
Read this press release from the USCIS & review the Q&A here

Schedule A Nurse Visas: Improving the Processing

In a very promising development, on December 5, 2008 the Office of the Citizenship and Immigration Services Ombudsman published it recommendations as to how to improve the processing of Schedule A nurse cases and delivered the 11-page Report to Congress on Monday, December 8, 2008. 

The recommendations are based on a recent nationwide teleconference conducted by the Ombudsman at which Immigration Solutions was present. Immigration Solutions has obtained an advance copy of the report which can be accessed here.

Those of you who have read the monthly newsletters and periodic newsflashes published by Immigration Solutions and who have participated in teleconferences presented by Immigration Solutions, will readily recognize that the report repeats and reinforces everything that Immigration Solutions has discussed and presented over the past few years.

The attached report, while specifically providing recommendations for improving the processing of Schedule A nurse cases, should also be required reading for all persons active in the field of recruiting foreign nurses to the United States. 

The report provides an excellent history of the issues and discusses the effect of the nurse shortage in the United States.  It explains the limited nonimmigrant visa options available to nurses (TN, H-1B and H-1C).  Specifically, the report provides statistics of how few H-1B nurse cases have been approved recently (38 cases in 2006, 66 cases in 2007 and only 136 in 2008).  In addition, the report discusses the immigrant visa process for nurses through Schedule A and the two main problems with that process, i.e., the delays at USCIS in processing the I-140 visa petition and the immigrant visa quota delays.  We note that the report references the fact that one of the Service Centers charged with adjudicating Schedule A casework is some 4 months behind what the Processing Report presently indicates.

The Ombudsman concludes the report with the following recommendations:

• That USCIS separate and prioritize Schedule A green card nurse applications so that they can be expedited upon immigrant visa availability.
• That USCIS centralize Schedule A nurse applications at one designated USCIS service center to facilitate more efficient and consistent processing of Schedule A applications.
• That USCIS regularly communicate with DOL and develop points of contact at DOL to discuss concerns and direct inquiries regarding the processing of nurse applications.

In conclusion, while the report makes recommendations to improve the processing of the I-140 Schedule A petitions at the USCIS, legislative action is still needed to increase the number of immigrant visas available each year for nurses. Indications so far from incoming President Obama and the incoming Congress are good that this issue will be dealt with early in 2009.  The Ombudsman’s Report and the reasonably good chances of increased immigrant visa quotas for nurses reinforce our opinion that hospitals, staffing agencies and other healthcare providers should be filing I-140 Schedule A visa petitions now to establish their position on the immigrant visa quota waiting list in order to be ahead of the competition when more immigrant visas become available and the processing procedures improve and become faster.      

Please feel free to contact us with any questions that you might have pertaining to this information.  As always, we are available to assist you with your immigration needs for all healthcare occupations.  This is our area of specialty.  Our highly trained staff stands ready to work with you on designing an immigration program that suits your specific needs and requirements for 2009.

For more information on the report:
Read the original congressional memo

Announcing an exciting opportunity to invest $500,000US in a new 80-unit hotel and restaurant project near the Bradley International Airport in CT and become a lawful permanent resident of the USA in the process!

The EB-5 employment-based immigration category is for immigrants seeking to invest substantial sums in new businesses in the U.S.   It will give each investor the security of permanent US residence without repeated visa applications, and may provide an avenue toward citizenship after five years. With a “green-card” through an EB5 investment visa, you will have the flexibility to take any job (or keep your existing job if currently holding a work-authorized nonimmigrant visa), run any business, retire and live anywhere in the USA.  Avoid quota backlogs in other immigrant visa categories by seeking permanent residence through this historically underutilized visa category.  You will have access to the same benefits enjoyed by US citizens!

The uniqueness of the property for this project is evident, as it is where the majority of businesses are located in the area and it’s exploding with new businesses even in these economic times, with approximately 15 million sq ft of industrial and office space within a 1/4 mile of the site. Within 200 yards of the property, Walgreen’s has constructed a 750,000 sq ft distribution center set to open shortly. This property will enjoy both the airport business and the surrounding commercial business.  This investment opportunity has a considerable potential for growth and, due to the large size of the lot, could possibly handle even double the number of existing hotel rooms. 

Additionally, there will be a 3600 sq ft freestanding chain restaurant that will be open 7 days a week for breakfast, lunch and dinner as well as late night entertainment.

There are a limited number of EB-5 investment opportunities available for this project.  Please contact Tim Martin for more information at 860 392-8565.

www.bradleyinternationalhotelventures.com

An Illinois congressman has called for a stop to immigration raids and promised to push for a comprehensive overhaul to immigration reform so that President-elect Barack Obama can sign it into law. 

Democratic Rep. Luis Gutierrez of Chicago, the original House sponsor of a 2007 bill that failed, told a crowd of more than 200 people that he would help to make sure Obama would sign an immigration overhaul bill sometime in the first two years of his presidency. 

Sen. Gutierrez said that workplace raids must stop and he is working to ensure that an immigration bill will be passed.

For more information the congressman vowing for an immigration overhaul:
Read this article from the DallasNews.com

If you are leaving the United States for an emergency, aliens should make sure if they require a travel document to reenter the country or whether their departure will affect their current benefits application.

As a general rule, any person who is not a U.S. citizen or a non-citizen U.S. national is subject to immigration inspection each time the person travels to the United States from any place outside the United States. Even an alien who has already been admitted as a lawful permanent resident (LPR) is subject to immigration inspection, if the alien has been absent from the United States for more than 180 days, or if the alien has engaged in certain conduct that makes the alien inadmissible, such as the commission of certain crimes, attempting to return without inspection, or other reasons. If an alien who is subject to immigration inspection is determined to be inadmissible, the alien may be denied admission and, if necessary, may be ordered removed from the United States.

An alien who is seeking admission or parole at a port of entry generally must have in his or her possession, and must present to the inspector at the port of entry, a valid and unexpired travel document. Depending on the person’s immigration status or if the person has an application for an immigration benefit pending, several types of travel documents are required if aliens (including legal permanent residents) wish to return to the United States lawfully after travel abroad.

The following sections discuss reentry permits, advance parole documents, and refugee travel documents. To apply for any of these travel documents, use Form I-131. For further information on the purpose of these documents and eligibility requirements, please refer to 8 CFR.223.1.

For more information on the emergency travel update:
Read this press release from USCIS

By Brandon Meyer
Contributing Writer and Associate

I attended the 21st Annual AILA California Chapters Conference, held November 13-15, 2008 in San Francisco, California. Subtitled “Keeping the Golden Gate Open (Or are we headed for Alcatraz?),” the assembled panels and panelists discussed numerous issues related to business immigration. The “Hot Topics” panel expressed optimism that comprehensive immigration reform (“CIR”) was highly probable in the forthcoming Obama Administration, based on their analysis of election results, which saw the defeat of several anti-immigrationists at the polls. Although the panel agreed that CIR was unlikely during the current lame-duck session of Congress, they believe that a window of opportunity will open sometime between the end of the current financial crisis and the 2010 Congressional elections.

The “Hot Topics” panel also discussed how the USCIS is working toward the creation of a company account system, which would allow companies to register with USCIS and update corporate information on-line. Designed to eliminate the need for companies to provide basic corporate information for every case they file, saving both company and USCIS resources alike, USCIS admits that implementation of this company account system remains a long-term project.

Furthermore, the “Hot Topics” panel discussed the implications of a recent USCIS report that estimated that 21% of H-1B petitions are fraudulent. In order to reduce this number, USCIS plans to introduce improved filing instructions as a means of reducing technical violations (such as when a job title differs on Form I-129 and a company support letter). USCIS also has plans to initiate the visitation of job sites in a manner akin to the religious worker program. The site visit program is bound to generate controversy, but may be useful in maintaining the long-term credibility of the H-1B program.

Also forthcoming is a new nonimmigrant visa application form, the so-called DS-160. Touted as a combination of the current panoply of visa application forms (the DS-156, DS-157, and DS-158), the DS-160 is described as a “challenging form.” The information entered into this online DS-160 will be stored by the U.S. Department of State (“DOS”) for an indefinite period of time, which will then allow DOS officials to cross-reference all future visa applications for inconsistent answers provided by an applicant. Thus, visa applicants will need to be more diligent in providing accurate and consistent answers on the DS-160 to avoid complications in receiving visas in the future.

On a positive note, the “Hot Topics” panelists discussed how U.S. consular posts in Mexico would begin issuing visas to third-country nationals (“TCN’s”), provided that the applicant’s first visa in a particular visa category was issued in their home country. TCN’s seeking B-1/B-2 visitor visas or who are the beneficiaries of a change of status (for instance, from F-1 to H-1B) will not be able to participate in this program.

The Department of Labor (“DOL”) envisions that it will continue its current policy of auditing between 30%-40% of labor certification applications for the foreseeable future. Furthermore, DOL will scrutinize unemployment data in order to determine the availability of US workers on a regional and industry-wide basis. The practical implications of this policy will be that if unemployment continues to rise, labor certification applications will be subject to additional scrutiny, which may lead to a greater number of denials, audits, and remands for supervised recruitment by DOL.

Reapportionment of workloads within USCIS, an almost never-ending process, will continue with an anticipated transfer of an unspecified number of pending I-140 petitions from the Nebraska and Texas Service Centers to the California Service Center in an effort to reduce processing times. This will certainly be good news for our nurses who have Schedule A cases still pending (outside of the processing report) with Nebraska from March-June 2007.

USCIS officials also stated that filing procedures for new H-1B petitions for fiscal year (“FY”) 2010 (which cannot be filed prior to April 1, 2009 for a start date no earlier than October 1, 2009) would be the same as FY 2009. This means that USCIS will accept new H-1B petitions during a five-day window, in order to prevent the previous spectacle of mass filings of petitions all arriving at USCIS on April 1st. If the number of petitions received during this filing window exceeds 59,200 for regular H-1B petitions and 20,000 for beneficiaries with U.S. Master’s degrees or higher, then a lottery will be conducted among the petitions received during this filing window. The dates of the new H-1B filing window will be confirmed by USCIS at a later date.

In summary, the mood was one of trepidation over the expansion of the E-Verify program (which allows registered employers to check the work-authorized status of their employees online) and greater issuance of so-called “No-Match” letters (in which the government cross-references the names and social security numbers of a company’s workforce with its own records, then notifies the company if there is a discrepancy), mixed with a mood of optimism that CIR is a real possibility. The assembled panelists and practitioners alike also expressed concern that H-1B and L-1 petitions, as well as labor certifications, will be subject to greater scrutiny and consistently burdensome requests for additional evidence. Only time will tell whether these hopes or fears will materialize. Either way, 2009 will not be dull for business immigration.

With his choice of Gov. Janet Napolitano to head the Department of Homeland Security, President-elect Barack Obama is laying the ground work for a moderate approach toward immigration and border policies , while laying the path to pursue comprehensive reform later.

Napolitano is the governor of a border state and a former federal prosecutor, and is bringing many years of experience in dealing with immigration and border issues. This is something previous Homeland Security leaders had lacked.

For more information on the new DHS chief:
Read this article from the Arizona Republic

PR: 3 I: 450 L: wait… LD: 146 I: 120 wait… C: wait… SD: wait…