Headlines

Summary

  1. Trump Signs Executive Orders Affecting Immigration; Draft Orders Signal More Change Coming

    A review of the provisions contained in two Signed Executive Orders and the implications for immigrant populations in the U.S.

  2. USCIS Releases New Forms, Fees

    Most prior versions of forms accepted until February 21, 2017; new fees now in effect.

  3. DHS Designates AAO Precedent Decision on National Interest Waivers

    Designation of Matter of Dhanasar vacates landmark case, establishes new guidance.

  4. USCIS Releases New Policy Guidance on Physicians of National or International Renown

    USCIS accords precedential weight to AAO case exempting graduates of medical schools in foreign states from the USMLE requirement in the H-1B context.

  5. DHS Proposes Changes to EB-5 Program, Regional Center Program

    DHS requests comment on a wide range of proposals that will dramatically alter the EB-5 program.

  6. Georgia Board of Regents Appeals Decision Allowing In-State Tuition for DACA Recipients

    Appeal of superior court decision seeks to allow DACA recipients to pay in-state tuition at Georgia’s states colleges and universities.

  7. USCIS Issues Policy Guidance on Registration of Lawful Permanent Resident Status

    Updated policy provides importance guidance on lawful admission of LPRs.

  8. Klasko News

1. Trump Signs Executive Orders Affecting Immigration; Draft Orders Signal More Change Coming

A review of the provisions contained in two Signed Executive Orders and the implications for immigrant populations in the U.S.

On January 25, 2017, President Trump signed two Executive Orders affecting border security, immigration and enforcement procedures. Klasko provides its analysis on the directives as well as 4 additional leaked orders here. If you are concerned about the potential impact of these orders, contact your Klasko attorney or schedule a consultation here.

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2. USCIS Releases New Forms, Fees

Most prior versions of forms accepted until February 21, 2017; new fees now in effect.

On December 29, 2016, USCIS made effective several new versions of forms and instituted new filing fees pursuant to a final rule published on October 24, 2016. Previous editions of most forms will be accepted until February 21, 2017, with the exception of the N-400, Application for Naturalization, which went into effect on December 23rd, 2016. New fees are in effect as of December 23rd, 2016.

According to the final rule, certain filing fees were adjusted to ensure adequate coverage of the to process each application and petition and “provide similar benefits to asylum and refugee applicants and certain other immigrants at no charge.” Notable changes include fee increases for EB-5 investors and regional centers and a three-tiered fee structure for Applications for Naturalization.

The most recent versions of forms are located on the USCIS website. The announcement by USCIS is available here.

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3. DHS Designates AAO Precedent Decision on National Interest Waivers

Designation of Matter of Dhanasar vacates landmark case, establishes new guidance.

Jeh Johnson, Secretary of the Department of Homeland Security (DHS), recently designated a decision by the Administrative Appeals Office (AAO), Matter of Dhanasar as precedential, vacating the leading case on the subject of National Interest Waivers, Matter of New York State Dep’t of Transp. [NYSDOT], 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998).

The AAO said that, based on the agency’s experience with NYSDOT, “we believe it is now time for a reassessment.” This precedent decision in Dhanasar means USCIS may grant a national interest waiver if the petitioner demonstrates that: (1) the foreign national’s proposed endeavor has both substantial merit and national importance; (2) he or she is well positioned to advance the proposed endeavor; and (3) on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

Among other things, the AAO decision noted that the first Dhanasar prong of the three listed above—substantial merit and national importance—focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor’s merit may be demonstrated in a range of areas, such as business, entrepreneurialism, science, technology, culture, health, or education. The AAO explained that evidence the endeavor has the potential to create a significant economic impact may be favorable but is not required, reasoning an endeavor’s merit may be established without immediate or quantifiable economic impact.

For example, endeavors related to research, pure science, and the furtherance of human knowledge may qualify persons for a National Interest Waiver whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States. In determining whether the proposed endeavor has national importance, the AAO said it considers its potential prospective impact. An undertaking may have national importance, for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances.

“But we do not evaluate prospective impact solely in geographic terms. Instead, we look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance,” the AAO noted. “In modifying this prong to assess ‘national importance’ rather than ‘national in scope,’ as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.”

The second prong, the AAO said, shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, the AAO said it considers factors including, but not limited to, “the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.”

The AAO said it recognizes that forecasting feasibility or future success may present challenges to petitioners and USCIS officers, and that many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. “We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed. But notwithstanding this inherent uncertainty, in order to merit a national interest waiver, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.”

The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. “On the one hand, Congress clearly sought to further the national interest by requiring job offers and labor certifications to protect the domestic labor supply. On the other hand, by creating the national interest waiver, Congress recognized that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest. Congress entrusted the Secretary to balance these interests within the context of individual national interest waiver adjudications,” the AAO noted.

In performing this analysis, the AAO said that USCIS may evaluate factors such as “whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.” The AAO emphasized that, in each case, the factors considered “must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.” The AAO noted that this new prong in Dhanasar, unlike the third prong in NYSDOT, “does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.

The AAO added, “NYSDOT‘s third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals,” pointing out that Matter of Dhanasar offers a more flexible test that may apply to a greater variety of individuals. Precedent decisions like this one are binding on DHS employees except as modified or overruled by later precedent decisions, statutory changes, or regulatory changes.

The complete decision is available for download in the Virtual Law Library of the Department of Justice’s Executive Office for Immigration Review.

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4. USCIS Releases New Policy Guidance on Physicians of National or International Renown

USCIS accords precedential weight to AAO case exempting graduates of medical schools in foreign states from the USMLE requirement in the H-1B context.

In other news of case precedent, USCIS released a policy memorandum on January 4, 2017 designating Matter of T-O-S-U- as precedential. A 2015 decision of the Administrative Appeals Office (AAO), Matter of T-O-S-U– holds that physicians of national or international renown who are graduates of medical schools in foreign states are exempt from the U.S. Medical Licensing Examination (USMLE) requirement in the H-1B context. The policy memo containing the precedent decision is available here.

In the memo, USCIS noted that Matter of T-O-S-U- clarifies that a “physician of national or international renown” is a doctor of medicine or osteopathy “who is widely acclaimed and highly honored in the field of medicine within one or more countries, so long as the achievements leading to national renown are comparable to that which would result in national renown in the United States.” USCIS noted that the decision also suggests, but does not mandate, what types of evidence may be persuasive in establishing eligibility for this exemption.

The AAO originally decided Matter of T-O-S-U- on February 20, 2015 to answer the question of whether a petitioner could classify an “Assistant Professor—Clinical Physician” as an H-1B temporary nonimmigrant worker in the absence of evidence that the beneficiary was exempt from the USMLE requirement as a “physician of national or international renown in the field of medicine.” The AAO withdrew the decision of the California Service Center and approved the petition, noting that regulations specifically provide a licensing examination exception for physicians of national or international renown in the field of medicine.

The AAO said that to satisfy this exemption, the petitioner must demonstrate that the beneficiary: (1) is a physician; (2) is a graduate of a medical school in a foreign country; and (3) is of national or international renown in the field of medicine.

To establish “renown” for purposes of adjudicating exemption claims, the AAO said that “national or international renown” could be restated as “widely acclaimed and highly honored within one or more countries.” But the AAO noted that this cannot be interpreted to permit physicians from certain countries where renown in the field of medicine is more readily achieved to qualify more easily than those individuals from countries where renown is more difficult to attain. Factors considered in evaluating the difficulty include population size and available medical resources. Considering that physicians meeting the requirements for this exemption can provide patient care in the United States without passing the USMLE or establishing competency in English, the AAO said the standard for national renown “should be set at a level that requires achievements necessary to garner national renown in the United States and thus, applied consistently, would obviate potentially adverse effects on U.S. patients.” The AAO said it “reserve[d] without answering the question of whether international renown must also be at a level comparable to that which would result in national renown in the United States.”

The AAO provided the following “non-exhaustive list” of evidence that, depending on the qualitative nature of the evidence, may establish eligibility for the exemption:

  • Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards in the field of medicine;
  • Evidence of the beneficiary’s authorship of scientific or scholarly articles in the field of medicine published in professional journals, major trade publications, or other major media;
  • Published material about the beneficiary’s work in the medical field that appears in professional journals, major trade publications, or other major media (which includes the title, date, and author of such material);
  • Evidence that the beneficiary has been employed in a critical, leading, or essential capacity for organizations or establishments that have distinguished reputations in the field of medicine;
  • Evidence of the beneficiary serving as a speaker or panelist at medical conferences;
  • Evidence of the beneficiary’s participation as a judge of the work of others in the medical field;
  • Documentation of the beneficiary’s membership in medical associations, which require significant achievements of their members, as judged by recognized experts in the field of medicine;
  • Evidence that the beneficiary has received recognition for his/her achievements or contributions from recognized authorities in the field of medicine; and
  • Any other evidence demonstrating the beneficiary’s achievements, contributions, and/or acclaim in the medical field.
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5. DHS Proposes Changes to EB-5 Program, Regional Center Program

DHS requests comment on a wide range of proposals that will dramatically alter the EB-5 program.

On January 13, 2017 and January 11, 2017, the Department of Homeland Security (DHS) published a notice of proposed rulemaking on the EB-5 program and an advance notice of proposed rulemaking on the regional center program, respectively. Following are the highlights of the two notices, which requested public comment:

Proposed Rule on EB-5 Program

Priority date retention. DHS proposes to authorize certain EB-5 petitioners to retain the priority date of an approved EB-5 immigrant petition for use in connection with any subsequent EB-5 immigrant petition. Petitioners with approved immigrant petitions might need to file new petitions due to circumstances beyond their control (for example, DHS might have terminated a regional center associated with the original petition) or might choose to do so for other reasons (for example, a petitioner may seek to materially change aspects of his or her qualifying investment). DHS proposes to generally allow EB-5 petitioners to retain the priority dates of previously approved petitions to avoid further delays on immigrant visa processing associated with the loss of priority dates. DHS said it believes that priority date retention “may become increasingly important due to the strong possibility that the EB-5 visa category will remain oversubscribed for the foreseeable future.”

Increases in the investment amounts. DHS is proposing to increase the minimum investment amounts for all new EB-5 petitioners. DHS said the increase “would ensure that program requirements reflect the present-day dollar value of the investment amounts established by Congress in 1990.” Specifically, DHS proposes initially to increase the standard minimum investment amount, which also applies to high employment areas, from $1 million to $1.8 million to adjust for inflation. For those investors seeking to invest in a new commercial enterprise that principally will be doing business in a targeted employment area (TEA), DHS proposes to increase the minimum investment amount from $500,000 to $1.35 million. In addition, DHS proposes to make regular adjustments based on the Consumer Price Index for urban consumers (CPI-U) in the standard minimum investment amount, and conform adjustments to the TEA minimum investment amount, every 5 years, beginning 5 years from the effective date of the rule.

TEA designations. DHS proposes to “reform the TEA designation process to ensure consistency in TEA adjudications and ensure that designations more closely adhere to Congressional intent.” First, DHS proposes to allow any city or town with high unemployment  and a population of 20,000 or more to qualify as a TEA. Currently, TEA designations are not available at the city or town level, unless a state designates the city or town as a TEA and provides evidence of such designation to a prospective EB-5 investor for submission with the Form I-526, Immigrant Petition by Alien Entrepreneur. Second, DHS proposes to eliminate the ability of a state to designate certain geographic and political subdivisions as high-unemployment areas. Instead, DHS would make such designations directly, using standards described in the proposed rule. DHS said it believes these changes would “help address inconsistencies between and within states in designating high unemployment areas, and better ensure that the reduced investment threshold is reserved for areas experiencing significantly high levels of unemployment.”

Removal of conditions. DHS proposes to clarify that derivative family members must file their own petitions to remove conditions on their permanent residence when they are not included in a petition to remove conditions filed by the principal investor. In addition, DHS proposes “to improve the adjudication process for removing conditions by providing flexibility in interview locations and to update the regulation to conform to the current process for issuing permanent resident cards.”

The notice is available here. Written comments should be submitted by April 11, 2017.

Advance Notice of Proposed Rule on EB-5 Regional Center Program

DHS said it is considering regulatory changes to the EB-5 immigrant investor regional center program and invites comments, data, and information. DHS seeks comments on: (1) the process for initially designating entities as regional centers; (2) a potential requirement for regional centers to use an “exemplar” filing process, explained in detail in the advance notice; (3) “continued participation” requirements for maintaining regional center designation; and (4) the process for terminating regional center designation.

DHS said that it has some information on these topics but seeks additional information that can help the agency “make operational and security updates to the Regional Center Program while minimizing the impact of such changes on regional center operations and EB-5 investors.” DHS said it is particularly interested in data that would inform a quantitative and qualitative assessment of the costs and benefits of the potential changes described in the advance notice. DHS is also interested in receiving more information on how to identify the small entity status of EB-5 stakeholder entities, such as regional centers and new commercial enterprises. DHS specifically requests information on revenue or employment data sources on regional centers and new commercial enterprises.

The notice is available here. Written comments are due April 11, 2017.

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6. Georgia Board of Regents Appeals Decision Allowing In-State Tuition for DACA Recipients

Appeal of superior court decision seeks to allow DACA recipients to pay in-state tuition at Georgia’s states colleges and universities.

The Board of Regents for Georgia’s state colleges and universities has filed an appeal of a Fulton County superior court judge’s December 30, 2016 decision allowing Deferred Action for Childhood Arrivals (DACA) recipients to pay in-state tuition. The Board of Regents required DACA recipients to pay out-of-state tuition, which is higher, because they didn’t meet a requirement of “lawful presence” for in-state tuition. The judge found, however, that the recipients’ lawful presence was “federally established.” DACA provides for deferred action for persons who came to the U.S. under the age of 16 and remained continuously for a five-year period, among other requirements. Persons who qualify for DACA are eligible to receive work authorization and temporary protection from removal.

It is unclear what will happen to DACA and its 752,154 approved recipients under the new administration. Meanwhile, State Sen. Josh McKoon (R-Columbus) reportedly plans to introduce legislation shortly to limit in-state tuition to those with legal status in the United States, not just lawful presence. And DACA students are already banned under “Policy 4.1.6” from admission at the University of Georgia, Georgia Institute of Technology, and Georgia College & State University.

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7. USCIS Issues Policy Guidance on Registration of Lawful Permanent Resident Status

Updated policy provides importance guidance on lawful admission of LPRs.

On December 21, 2016, USCIS issued policy guidance addressing registration of lawful permanent resident (LPR) status as part of the recent release of the USCIS Policy Manual.

USCIS said the updated policy: (1) provides guidance on eligibility and evidentiary requirements for presumption of lawful admission and creation of record, registration by children born in the United States to accredited foreign diplomats, and the registry program; (2) provides guidance on presumption of lawful admission following certain errors that occurred at the time of admission; and (3) explains relevant codes of admission and effective dates of LPR status for approved applications for registration.

The policy alert (PA-2016-10) is available here, and a summary of new or updated policies available for comment is available here.

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8. Klasko News

Save the Date

2017 Spring Seminar
Klasko Immigration Law Partners, LLP welcomes you to attend its annual Spring Seminar on Wednesday, April 19, 2017 at the Union League of Philadelphia. Please join us for our thirteenth annual spring seminar addressing current topics of interest for professionals involved in employment-based immigration. Bring your most difficult questions for response from our nationally-recognized attorneys and reconnect with peers in international education and immigration management.

In the News

William A. Stock, AILA President, Participates in National Press Club Debate
William A. Stock was a recent participant in a National Press Club debate and discussion on the legal considerations of “sanctuary cities” that welcome all immigrants and do not use local resources to enforce federal immigration laws. Jessica Vaughan, Policy Studies Director at the Center for Immigration Studies, argued that sanctuary policies are illegal and present public safety problems. Bill Stock countered that sanctuary cities and their related state and local authorities are not thwarting federal immigration law enforcement efforts. After the two speakers made their presentations, they took questions from the audience. A video of the debate can be found here.

EB5 Affiliate Network & Klasko Launch EB-5 Project Risk Questionnaire
EB5AN and Klasko Law are pleased to announce a new EB-5 Project Risk Assessment Tool for EB-5 Investors. This unique tool combines the EB-5 specific financial and real estate development experience of EB5AN with the unparalleled immigration expertise of Klasko Law, and is intended to help investors select safer projects and perform easy project comparisons through use of risk scores. The tool is free and interactive, containing 36 multiple-choice evaluation questions, use of risk scores, and automated visual charts to simplify results. Please note that persons who use this tool do so at their own risk, and neither the Questionnaire nor the results thereof should be construed as legal, financial, immigration, investment, or any other form of advice.

The Investment Migration Council Reaches Nearly 300 Members
Launched in October 2014, the Investment Migration Council (IMC) is the only global association for professionals involved in investor migration and citizenship-by-investment.

The IMC has been growing rapidly under the leadership of its Chief Executive, Bruno L’ecuyer. It has recently reported that its membership has grown to nearly 300, with members from over 30 countries in Europe, Asia Pacific, Australasia, Middle East, Africa, Caribbean, and North America.

The IMC’s main objective is not to only to respond to industry needs, but to lead the investor migration sector by setting industry standards worldwide. In the last twelve months alone the organization has launched the industry’s Code of Ethics and Professional Conduct policy, aimed at improving standards, transparency and elevating client confidence in a rapidly growing market. It also successfully organized the first Investment Migration Forum — Dubbed the ‘Davos’ of the Citizenship-by-Investment industry meeting, which has governments, leading business professionals and academics meet in Geneva for three days of policy discussions. The organization further aims to help improve public understanding of the issues faced by clients and governments in this area.

IMC Chairman, Professor Dr. Dimitry Kochenov, commented: “We are absolutely delighted at having reached this important milestone. It is no surprise that industry professionals have, and continues to see the tangible advantages of belonging to the IMC.’’ Members benefit from the professional development, networking opportunities and information services provided by the association. The IMC also enables members to increase their business’ reach and enhance their brand position by informing them about the most up-to-date-industry trends.

H. Ronald Klasko, founding partner of Klasko Immigration Law Partners, — whose firm is IMC’s North American Regional Representative Office, said, “An important role of the IMC is to bring together what is essentially a global community. The IMC has managed in a very short space of time to forge strong foundations that bridge the gap between governments, academics and professionals in this fast-growing industry.’’ Christopher Curmi, Director of Deloitte, added: “The IMC is first and foremost the association for leading professionals and companies in the field, but also plays a crucial role with governments and regulators, leading academic debate and research. No doubt the IMC will continue its success in uniting the industry and establishing the highest standards.”

Klasko Immigration Law Partners, the Investment Migration Council’s North American Regional Representative Office, applauds the Council on reaching nearly 300 members.

Upcoming Speaking Engagements

H. Ronald Klasko | William A. Stock
From February 2-3, Bill and Ron will also be attending and speaking at the 38th Annual AILA South Florida Chapter Immigration Law Update in Miami. Bill will moderate the plenary session: “Overview of Recent Developments in Immigration Law” and serve as a panelist on “Labor Certification – Sailing Calm Seas.” Meanwhile, Ron will moderate “Illegal/Unlawful/Violation of Status: Distinctions with a Difference” as well as “EB-5 at a Crossroads.” Ron will be a panel member for “Building Your Practice and Earning More in an Ethical Environment.” For more information on these talks, visit  http://www.klaskolaw.com/event/38th-annual-aila-south-florida-chapter-immigration-law-update/.

H. Ronald Klasko
Ron will be speaking at the NES Financial Innovation Summit 2017 in New York on February 9. With the EB-5 program becoming increasingly more mainstream, the industry must find and implement the right approach to adapt to corresponding regulations. Ron will share strategies and solutions and discuss best practices in the EB-5 space. For more information and to register, click here.

Elise A. Fialkowski
Elise will conduct a workshop at Widener University on Friday, February 10 on various paths to permanent residence and the impact of President Trump’s Executive Orders on visas.

Recent Speaking Engagements

William A. Stock | H. Ronald Klasko
Bill and Ron recently attended the 2017 AILA Midwinter Conference: Business and Removal on January 20 in Phillipsburg, St. Maarten. Bill participated in the session entitled, “The Future of Business Immigration Practice” and discussed the impacts of changing consumer needs, new technology, and evolving practitioner regulations on the way legal practices are run.

H. Ronald Klasko | William A. Stock | Anu Nair
On January 13-14, 2017, EB5 Investors Magazine and EB5Investors.com hosted the Fourth Annual Las Vegas EB-5 & Investment Immigration Convention at the Five Diamond Bellagio Resort & Casino in Las Vegas, Nevada. This conference featured EB-5 program educational panels, exhibitor hall and networking opportunities. Ron, Bill and Anu discussed ‘hot button’ items in the EB-5 space, such as raising capital in the new EB-5 climate, how to confront the ever-growing backlog of investor petitions as a regional center, alternative markets for raising EB-5 capital, how USCIS may change the EB-5 program outside of legislation, nuances in filing investor petitions, and maintaining the “at risk” requirement & removal of conditions at 829 stage. For more information on this convention, click here.

Recent Publications

“Past Legal Victories Will Help Phila. Defend Its Immigration Policy” written by Bill Stock, appeared in the December 22, 2016 edition of The Legal Intelligencer. Bill asserts that so called “sanctuary” cities like Philadelphia can point to Supreme Court decisions to defend against incoming Trump administration policies regarding immigration enforcement. To read the full article, click here.

You May Have Missed: Blog Posts & Alerts

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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.

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