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Premium Processing for EB-5 Investors Proposed

The current immigrant visa backlog for the family-based preference categories and the employment-based second and third categories currently varies from over three years to two decades, depending on the visa category and the applicant’s country of birth.

In stark contrast to these long waiting times, the investor visa (EB-5) only takes about a year to obtain if all eligibility requirements are met, making it the fastest route to a U.S. green card.

Even with the relatively short processing times, the USCIS is still finding ways to enhance the EB-5 program in order to realize its job-creation potential. These changes are meant to attract foreign entrepreneurs and businesses to create jobs in the United States, in line with the government’s goal of driving U.S. innovation and stimulating economic growth.

These measures should have been taken a long time ago. Studies show that immigrants create jobs. They are 30% more likely to start a business than non-immigrants and make up 16.7% of all new business owners in the U.S. Top companies such as Intel, Google, Yahoo and eBay were once founded by immigrants.

Recently the USCIS proposed improvements in the EB-5 program’s intake and review process in Regional Center applications.

A Regional Center is a public or private entity that promotes economic growth, regional productivity, job creation and domestic capital investment. An application for designation as Regional Center is made on Form I-924, while the petition from the investor is made on Form I-526.

The USCIS proposes to accelerate the processing of “actual” applications for shovel-ready business projects. “Actual” I-924 applications are job-creating projects that are fully developed, ready to be implemented, and for which I-526 petitions could already be filed.

Processing times for these “actual” I-924 applications are proposed to be accelerated from 4 months to 2 months. The targeted processing time for I-526 petitions associated with an approved “actual” application would also be accelerated from 5 months to 2 months. With premium processing, which the USCIS plans to make available in these cases, an I-924 application and an I-526 petition could be approved in as short as 15 days.

The USCIS also proposes to create specialized intake teams for I-924 applications which are often complex and require sophisticated economic analysis. Team members would include USCIS economists, business analysts and adjudicators, supported by legal counsel.
There would also be an expert Decision Board that renders decisions on the I-924 applications and afford applicants the opportunity for an in-person or telephonic interview.

The EB-5 visa category was created by Congress in 1990 for immigrants who could invest $1 million (or $500,000 in rural or high unemployment areas) in a new commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs within 2 years of the investor’s admission into the U.S.

To attract more investors, Congress created in 1992 a “pilot program” which has been extended through September 30, 2012. Compared to the regular EB-5 program, investments under the pilot program must be made in a designated Regional Center and there is no need for the investor to employ U.S. workers as long as at least 10 jobs are created directly or indirectly as a result of such investment.

Each year, approximately 10,000 visa numbers are available for the EB-5 category, with 3,000 going to investors in rural or high unemployment areas, and 3,000 to investors in Regional Centers. In 2010, only a total of 1,885 visas were issued, down from more than 4,000 issued in 2009. The EB-5 program has never met its annual cap since its inception.

Once the I-526 petition is approved under either the regular or pilot program, the investor and his/her dependents become conditional permanent residents. Within 90 days before the second anniversary of the investor’s admission, he/she must file an I-829 petition to remove the condition.

Obama on Immigration Reform – A Broken Record?

During his election campaign in 2008, President Obama vowed to make immigration reform one of his administration’s priorities. Three years hence, many are still waiting to see if he will ever make good on his promise.

President Obama gave a major speech on immigration in El Paso, Texas on May 10, 2011. He explained the political reality that immigration is so complex and divisive an issue and complained that good faith efforts from Democratic and Republican parties alike have fallen prey to the “usual Washington games”.

In pitching immigration reform, Obama made the case that it would make America more competitive by attracting and retaining talent and strengthen the middle class by eliminating the underground economy comprised of undocumented workers. He acknowledged that the system is broken but asked, along with everyone else, whether our officials would ever summon the will to do something about it.

Reiterating his call on Republicans to do their part, the President outlined the concessions that he had made, including the increase in border security, completion of the border fence, enforcement measures that target employers, and a deportation scheme that focuses on criminals.

The best step to take, said the President in his speech, was to fix the broken system as a whole. His version of comprehensive immigration reform would have at least four main features. First, the government would continue to secure the borders and enforce the law. Second, businesses would be held accountable for exploiting undocumented workers.

Third, a legalization scheme would require undocumented immigrants to admit their violation of the law and pay their taxes, pay a fine, learn English, and undergo a lengthy process that includes background checks.

Fourth, the legal immigration system would also be reformed. Obama wanted talented individuals to be able to study in the U.S., as well as start businesses and create jobs. He also expressed that farm workers need a path to legal status. He recognized that families following the rules and enduring long waiting times separated from one another must be reunited more quickly. Finally, he affirmed his conviction that the Dream Act should be passed by Congress.

While many immigration advocates appreciate the commitment, they cannot help but doubt Obama’s sincerity and wonder if he only revisited this issue because he needs votes for next year’s election. Is it all rhetoric? Is this a case of saying something but doing another?

In 2009, almost 390,000 immigrants were deported – an average of 1,100 deportations per day. Studies have shown that the current cost of deportation is $18,302 per person. The number of undocumented immigrants in the U.S. today is estimated at 12 million.

If his administration were as committed to achieving reform, why can’t President Obama take executive action? Until a comprehensive immigration reform law is passed, the executive branch can come up with policies, programs and procedures that can in a limited but significant way fix one or more problems in the current immigration system. After all, immigration laws are administered by the federal government.

President Obama has the power to authorize executive action but he has for the most part refused to exercise it despite mounting calls for him to do so. For example, we have yet to see if he will authorize deferred departure of Dream Act students who are in removal proceedings and expand waivers for illegal immigrants with immediate relatives who are U.S. citizens.

While our Representatives are mired in partisan politics, President Obama can start fixing what Congress cannot by the mere signing of an Executive Order.

Immigration reform has taken a back seat to other key points in his presidential agenda, such as health care reform and economic policy. With the clock ticking on his term, President Obama is urged to go beyond mere pronouncements and to lead the push for comprehensive immigration reform, lest he become another poster child for the usual games that those in Washington play.

Undocumented Children Have the Right to Attend Public Schools

Under federal law, state and local educational agencies may not deny free public primary and secondary education to undocumented students.

And yet, there have been school enrollment practices that indicated discrimination against immigrant students. Requiring a birth certificate or social security number before enrollment tends to “chill” or discourage parents from sending their children to public elementary or high schools.

These practices have prompted officials of the U.S. Department of Justice and Department of Education to circulate a letter to key agencies to address these school procedures.

Guidelines in the letter dated May 6, 2011, emphasize that students may not be barred from enrolling in a public elementary or secondary school on the basis of perceived or actual citizenship or immigration status whether their own or that of their parents/guardian.

School districts may require proof of residency within district limits and proof of age to determine whether the student may attend a public school. On the other hand, as the U.S. Supreme Court has held back in 1982 in the Plyler v. Doe case, the undocumented or non-U.S. citizen status of the student (or a parent/ guardian) is irrelevant to his/her entitlement to an elementary and secondary public education.

To establish residence, the district may not require proof of U.S. citizenship or immigration status, but it can require telephone or utility bills and mortgages or lease documents.

To prove age, the district may require a copy of the child’s birth certificate, but it may not prevent the child from enrolling because he/she has a foreign birth certificate.

Students are not required by law to have a Social Security Numbers (SSN) to enroll in school. Since an undocumented child is not eligible for an SSN, asking for it may reveal the child’s immigration status which may in turn discourage him/her from attending school. In any case, an SSN is not relevant to residence and age which are both required.

Some school districts request an SSN to be used as a student identification number. However, the letter instructs that when so requesting the school must inform the student and the parent that providing the number is voluntary, and explain for what purpose the number will be used. If the student or parent does not have an SSN or chooses not to provide it for whatever reason, the school district may not deny the child enrollment.

In the letter, the department officials recognized that different states and districts may require different types of documentation, but cautioned them to apply rules uniformly and not based on the student’s race, color, national origin, immigration or citizenship status. In other words, all students must be treated equally and the school district may not select which students it will request certain documents from.

The guidelines recommend that when it comes to information other than residency, age and immunization history, which are generally required prior to enrollment, the school may choose to wait before asking for such information in order to create a more welcoming atmosphere. An example would be student demographic data (e.g., race, home language, country of origin, etc.) which are reported by schools pursuant to state and federal data collection laws.

In New York, according to an August 30, 2010 guidance issued by the Senior Deputy Commissioner for P-12 Education, residence is based on two factors: physical presence as an inhabitant and intent to reside in the district. As long as a student meets this two-part test, he/she is entitled to attend school in the district regardless of immigration status. School districts in New York may not require the student to provide an SSN for any purpose.

The letter underscored the federal government’s obligation to provide equal educational opportunities to children living within each district. It is hoped that with this reminder, school districts will be in compliance with federal civil rights laws and regulations and Supreme Court rulings prohibiting unlawful discrimination.

The Civil Rights Act of 1964 prohibits public schools and recipients of federal financial assistance from discriminating students on the basis of their race, color, or national origin.

The letter also quoted from the landmark case of Brown v. Board of Education (1954), noting that “it is doubtful that any child may be reasonably expected to succeed in life if he/she is denied the opportunity of an education.”

Visas May Be Revoked Without Notice

The death of 9/11 mastermind Osama Bin Laden may very well be a turning point in the United States’ fight against terrorism. However, although a battle has been won, the “war on terror” is not yet over.

Since September 11, 2001, the government has taken steps to increase domestic security through changes in immigration rules, such as the visa revocation process. For instance, three years after the attack the DOS had revoked 1,250 visas based on information suggesting possible terrorist activities or links. These measures in part resulted from findings that the hijackers used temporary visas which allowed them to stay in this country and perpetrate the attacks.

Citing security concerns, the Department of State issued a new rule that allows a consular official to revoke an immigrant or non-immigrant visa “at any time, in his or her discretion”. The rule, which was published in the April 27, 2011 issue of the Federal Register, took effect immediately.

Under the new rule, the DOS may if practicable give notice of the revocation to the alien, but the consular official may revoke the visa without any notice to the alien either before or after the revocation is effected.

A visa may be revoked when the applicant was, has become, or may become, ineligible for a U.S. visa. Traditionally, this revocation authority was exercised for national security concerns and foreign policy interests.

Furthermore, the alien whose visa was revoked may no longer seek reconsideration of the revocation. Under the old rule, it was possible for the alien to receive a notice of intent to revoke with opportunity to respond and to appeal the revocation. Now, the only remedy is to re-apply for a visa and prove one’s eligibility all over again.

Previously, the holder of the revoked visa was asked to submit the visa to be stamped “revoked”. However, the new rule states that the revocation is valid despite the failure or inability of the DOS to physically cancel the visa.

Because the visa holder no longer needs to be notified, there is a high probability that the alien will learn of the revocation only when he or she is refused admission at a port of entry. A revoked visa is invalid and may not be used for travel.

The new rule, however, allows for a provisional revocation when the DOS needs to consider more information that might lead to a final revocation. If the alien is found eligible, the visa will be reinstated without need of application.

Except for holders of provisionally revoked visas that were later reinstated, an alien whose visa was revoked must apply for a new one and his/ her eligibility will be adjudicated at that time. This means that even though you have several years remaining on your 10-year multiple entry visa, once it is revoked you may no longer use it to enter the U.S. and you would have to apply for another visa.

An immigration officer is also authorized to revoke a valid visa by physically cancelling it if the alien adjusts status or obtains an immigrant visa, is ordered excluded from the U.S., given permission to withdraw an application for admission, issued a final order of deportation, or permitted to voluntarily depart from the U.S.

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