Seguritan US Immigration Articles

For First Time EB-5 Investor Visa Reaches Annual Limit

The State Department announced last August 23 that the EB-5 immigrant visa cap for China for fiscal year 2014 has been reached. This means that immigrant visa numbers for Chinese nationals under the employment-based fifth preference (EB-5) category for this fiscal year is no longer available. This is the first time that a country has reached its annual limit since the program began almost twenty-five years ago.

The Department of State clarified that this is not a visa retrogression since no cut-off date has been established. Chinese nationals who are already scheduled for interview at a U.S. consulate in August or September this year may be issued visas as they have already been allocated for them. Applications for adjustment of status will be accepted but they will be put on hold until visa numbers are available. The EB-5 category for China will again be current on October 1, the start of the fiscal year 2015.

Visa numbers are still available for the nationals of other counties such as the Philippines although the annual worldwide allocation is almost exhausted.

The EB-5 visa category allows foreign nationals who can make substantial investments to become permanent residents. It is one of the fastest ways to obtain a green card. We recently represented Indonesian nationals who applied under the program and they received their green cards in less than a year.

There are two ways by which one can become an EB-5 investor. The first is through the regular program which requires the investor to make a $1 million investment ($500,000 in a rural or high unemployment area) in a new commercial enterprise which will create at least ten full-time jobs.

The second way is through the pilot program which permits investments in designated regional centers that will create at least ten jobs, directly or indirectly. There are more than 70 regional centers today and most of them require a $500,000 investment. The regional center program was recently extended until September 30, 2015.

The alien investor must file an I-526 petition along with supporting documents showing the investment in the enterprise or regional center and demonstrating that the funds came from a lawful source. Once that is approved, he can file for a conditional green card. The condition will be removed two years after the investor’s admission as a conditional resident upon showing that the required number of jobs was created.

Congress allotted 10,000 visa numbers to EB-5 investors. Spouses and unmarried children under 21 are included in the count. But the program has drastically grown in popularity in recent years that a waiting line might be created next year. For example, in 2006 the USCIS received less than five hundred I-526 petitions. In 2012, it received over 6,000 petitions. There are over 10,000 petitions pending at this time.

A cut-off date might have to be imposed for the EB-5 category for China in May or June 2015 because of the continued high demand, according to Charles Oppenheim, Chief of the Department of State Immigrant Visa Control and Reporting Division, who made the announcement. It is expected that the visa backlog for Chinese nationals under the EB-5 category could be several years or more.

Investors whose priority dates are prior to the cut-off date would not be able to immigrate until an immigrant visa is immediately available. An investor who is in the U.S. must be careful not to lose lawful status in order to be eligible for adjustment of status once a visa is available. Even if the investor has an approved I-526 petition, the investor cannot file for adjustment of status if a visa number is not yet available to him.

In contrast with the family-based and other employment-based preferences where the delays range from several years to more than two decades, the EB-5 category with a relatively short processing time is preferred as it is still one of the fastest routes to a green card.

Does Obama Have Authority to Stop Deportation?

As House Republicans closed its doors to any possible compromise on immigration reform, the President announced in a press conference recently that he will act on his own to address the issue.

Presidential action, according to sources from the White House, would include measures that would provide temporary relief to a significant number of the 11 million undocumented in the country. The measures would presumably allow them to remain in the U.S. without fear of deportation and provide them with work permits.

House Republicans have accused the President of overstepping his authority with his executive orders. They even approved a lawsuit against the President for abuse of authority in the implementation of the Affordable Care Act. As to the President’s intention to use his executive power to unilaterally provide a solution on immigration, Senator Jeff Session (R-Alabama) stated that the President cannot do this and that a large-scale “administrative amnesty” would prompt confrontation with Congress.

While it is true that the President cannot grant legal status to the undocumented, the President by virtue of his office has executive authority to grant the undocumented temporary reprieve from deportation as part of his “prosecutorial discretion.”

The executive branch is charged with the implementation of immigration laws and has the duty to exercise “prosecutorial discretion” in its enforcement. “Prosecutorial discretion” is the authority of an enforcement agency or officer to decide whether to enforce the law against an individual.

The Department of Homeland Security (DHS) has issued several internal memos which deal with prosecutorial discretion. In June 2011, Immigration and Customs Enforcement (ICE) Director John Morton issued a memo instructing ICE agents and officers to avoid deportation of “low priority” or non-criminal aliens and prioritize deportation of aliens who have been charged or convicted of crimes and those who pose a threat to public safety.

It called on enforcement officers to regularly exercise their discretion to prioritize the use of the agency’s limited resources. However, reports show that the memo has been widely ignored by enforcement officers.

Deferred Action is a form of prosecutorial discretion where the DHS may grant temporary relief from deportation when it determines that enforcement is not warranted for that particular time.

This authority springs from the Immigration and Nationality Act (INA) which sets forth its overall authority for immigration enforcement. Beneficiaries of deferred action do not attain legal status; however, regulations allow the DHS to grant travel authorization as well as work permits for a specified period of time.

The DHS granted deferred action to certain categories of individuals in the past such as battered individuals under the Violence Against Women Act and potential U visa beneficiaries before regulations were put in place.

Nurses, who had not passed their licensure exam, were also beneficiaries of deferred action. In 1977, I was the lawyer of the National Alliance for Fair Licensure of Foreign Nurse Graduates which obtained for these nurses, who were under deportation threat, “deferred voluntary departure status” and this halted their deportation and allowed them to work and be reinstated to H-1 status.

Widows or widowers of U.S. citizens who were married less than two years at the time of death of their U.S. citizen spouse and who were residing in the U.S. at that time were also granted deferred action in June 2009 to allow them to remain in the country while obtaining legal status. And most recently, qualified young undocumented immigrants who were brought in the U.S. as kids benefited from President Obama’s Deferred Action for Childhood Arrivals (DACA) program.

House Republicans will without doubt oppose efforts similar to the DACA program and accuse the President of overreaching his executive authority. Presently, the Obama administration is studying measures which would provide similar relief granted to DACA recipients to a broader population of undocumented immigrants.

While it may seem that House Republicans have succeeded in impeding the passing of any kind of immigration bill in the Congress, they simply cannot stop the President from exercising his constitutional authority to deal with immigration.

When False Citizenship Claim May Be Excused

Non-citizens must not make any false U.S. citizenship claims for any purpose or benefit, whether to obtain a visa, enter the United States, find employment, apply for public benefits, or to register for or vote in an election. A false U.S. citizenship claim carries with it serious consequences which include deportation and a lifetime bar to permanent residency in the U.S.

Before the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) was enacted in September 30, 1996, a false claim to citizenship was a ground for inadmissibility if it was willful and material.

The false claim must have been made to a U.S. consular officer or immigration officer and for the purpose of obtaining an immigration benefit. Misrepresentations made to a private individual, such as an employer, were not covered. A discretionary waiver was available to the foreign national who was found to have misrepresented himself as a U.S. citizen.

Since September 30, 1996, however, a waiver is no longer available to foreign nationals who are found inadmissible for making false U.S. citizenship claims. Once a non-citizen found inadmissible on this ground, he is forever barred from applying for permanent residence.

Also, the false claim is no longer limited to obtaining immigration benefits. An individual found to be misrepresenting himself to be a U.S. citizen “for any purpose or benefit” triggers the permanent bar.

Until recently, there were only two exceptions to the permanent bar. First is when the false citizenship claim was made before September 30, 1996. Under this exception, an undocumented immigrant who upon application for adjustment of status is found to have represented to his employer that he is a U.S. citizen in 1988, for example, may still apply for a discretionary waiver.

The second exception applied to those who made a false claim under a “reasonable belief” that they were in fact U.S. citizens. However, this exception is limited to individuals who became lawful permanent residents before age 16 and whose parents were both U.S. citizens. This exception is also available in cases of illegal voting, which can be considered another mode of falsely claiming to be a U.S. citizen.

The Department of State (DOS) and Department of Homeland Security (DHS) clarified as to when an adjudicating officer should find a foreign national inadmissible for making false U.S. citizenship claims. They explained that a foreign national may be found inadmissible on this ground only if the false claim was made “knowingly.”

Furthermore, the agencies stated that the foreign national may put up an affirmative defense that: one, he was under the age of 18 when he made the false claim and, two, at that time he lacked the capacity to understand the nature and consequences of the false claim. A foreign national who made the false claim may avoid the permanent bar if he can establish these elements clearly and beyond doubt.

The new guidance is directed primarily to individuals under 18 who may have made false claim to U.S. citizenship before they were old enough to discern the consequences of their actions. However, the new policy does not specifically limit its applicability to minors and could even include adult non-citizens who can prove that the false claim to U.S. citizenship was not made “knowingly.”

USCIS Issues New Guidance on H-1B for RNs

In response to the changes in the nursing industry, the USCIS has recently released a new policy memorandum providing guidance in the adjudication of H-1B petitions for registered nurses.

The new memorandum does not contain significant changes to the present criteria for H-1B classification of nursing positions. It maintains that most Registered Nurse positions are not specialty occupations. However, the memo points to some situations where the petitioner may be able to show that a nursing position qualifies as a specialty occupation.

Generally, for a position to be eligible for H-1B, the prospective employer must prove at least one of the following: (a) a baccalaureate degree or its equivalent is normally the minimum requirement for entry into the particular position; (b) the degree requirement is common to the industry in parallel positions among similar organizations; (c) the employer normally requires a degree or its equivalent for the position; or (d) the nature of the duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

H-1B petitions for registered nurses are mostly denied because nursing positions, according to the Department of Labor Occupational Outlook Handbook, generally do not require a four-year bachelor’s degree. However, there are exceptions to this general rule.

The memo made special mention of hospitals with magnet status and how achieving such status “indicates that the nursing workforce within an institution has attained a number of high standards relating to quality and standards of nursing practice.”

Magnet status is conferred to health care organizations that advance nursing excellence and leadership and recognized by the American Nurses Credentialing Center (ANCC) Magnet Recognition Program.

Although the memo did not state in particular that a nurse manager position at a Magnet hospital qualifies for H-1B classification, the memo mentioned that “as of January 1, 2013, 100% of nurse managers of individual units/wards/clinics must have at least a baccalaureate degree in nursing upon submission of the Magnet application.” This may be indication that the USCIS recognizes such nursing position as a specialty occupation.

Interestingly, the memo also listed a number of nursing positions and the duties associated with the positions. The list includes addiction nurses, cardiovascular nurses, critical care nurses, emergency room nurses, genetic nurses, neonatology nurses, nephrology nurses, oncology nurses, pediatric nurses, peri-operative nurses (operating room) nurses, rehabilitation nurses, and other nurses. Although it did not make specific mention as to which nursing positions would qualify as specialty occupations, the memo indicated that “depending on the facts of the case, some of these RN positions may qualify as specialty occupations.”

Also noted in the memo is a situation where an RN position can be considered a specialty occupation in a state which requires at least a bachelor’s degree to obtain a nursing license. However, as of today, no state is currently requiring a bachelor’s degree for licensure.

Advance Practice Registered Nurses (APRN), on the other hand, generally qualify for H-1B classification because of the advanced level of education and training required for certification. The memo listed the following as APRN occupations that may satisfy the requirements for specialty occupation: Certified Nurse-Midwife, Certified Clinical Nurse Specialist, Certified Nurse Practitioner, and Certified Nurse Anesthetist.

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