Headlines

Summary

  1. Klasko EB-5 Fall Seminar is Friday, September 9 – Register Now!

    Klasko Immigration Law Partners’ 3rd EB-5 seminar will be held on Friday, September 9, 2016 in Philadelphia. Join us!

  2. Mayors Send Open Letter to Presidential Candidates Urging Immigration Reform

    Nearly 60 mayors send open letter to the next President of the United States.

  3. September Visa Bulletin Shows Movement in Final Action Dates

    Movement comes despite oversubscribed employment-based categories in August.

  4. DHS Extends Designation of El Salvador for Temporary Protected Status for 18 Months

    TPS extended through March 9, 2018.

  5. USCIS Launches 'Refresh' of InfoPass Appointment Scheduler

    Revamped online system including new webpage intended to facilitate appointment scheduling.

  6. Justice Dept. Petitions Supreme Court for Rehearing of U.S. v. Texas

    Dept. of Justice seeks definitive resolution.

  7. USCIS Ombudsman's 2016 Report to Congress Recommends Changes

    Annual report recommends several employment-based reforms.

  8. USCIS to Allow Additional Applicants for Provisional Waiver Process

    Final rule effective August 29.

  9. Klasko News

1. Klasko EB-5 Fall Seminar is Friday, September 9 – Register Now!

Klasko Immigration Law Partners’ 3rd EB-5 seminar will be held on Friday, September 9, 2016. Please join us for our EB-5 fall seminar with a focus on EB-5 Regional Centers and Developers interested in capitalizing projects with EB-5 financing.

This one-day seminar on Friday, September 9, 2016 from 9:00 am – 6:30 pm at The Hub, Cira Centre in Philadelphia focuses on EB-5 Regional Centers and Developers interested in capitalizing projects with EB-5 financing. On the eve of the expiration of the regional center program, this seminar will provide the most timely information on program extension, legislative changes, quota backlogs, new compliance initiatives of USCIS and action to be taken in anticipation.

We welcome you to Klasko Immigration’s 2016 EB-5 Seminar entitled “EB-5 at a Crossroads,” where you can be updated on the latest developments and bring your most difficult questions to our nationally-recognized attorneys and renowned guest speakers while reconnecting with your peers in the EB-5 community. For more information, including topics, seminar details, speakers and to register, go to: http://www.klaskolaw.com/event/eb-5-crossroads/.

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2. Mayors Send Open Letter to Presidential Candidates Urging Immigration Reform

A national coalition of mayors, Cities for Action, sent an open letter on July 26, 2016, to “the next President of the United States” calling for immigration reform.

The letter urges leaders from both the Democratic and Republican parties to commit to supporting immigration reform in the first 100 days of the next presidency, including providing a path to citizenship for undocumented immigrants.

The letter specifically calls for a “broad, humane and timely” path to citizenship; supports local economic growth, “while protecting the rights and labor standards of all workers” and upholding “immigrants’ due process rights and the rights of those seeking refuge.” The letter also offers “robust local implementation and immigrant integration support.”

The letter also calls on the presidential candidates “to pledge to defend and expand President Obama’s executive actions on immigration” to offer temporary relief to undocumented immigrants “with deep community ties who are not priorities for enforcement.” The letter also asks for a commitment to investments in English classes and legal assistance, municipal ID programs, immigrant entrepreneurial support and language access. “[W]e are ever-deepening our commitment to fostering immigrant-friendly municipalities,” the letter states. “We recognize that the well-being of immigrants impacts the well-being of all.”

The letter was signed by almost 60 mayors and others, including mayors from Baltimore; Boston; Buffalo; Chicago; Denver; Houston; Los Angeles; Minneapolis; New York City; Philadelphia; Phoenix; Salt Lake City; San Francisco; Seattle; and Washington, DC.

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3. September Visa Bulletin Shows Movement in Final Action Dates

Despite oversubscribed employment-based categories in August Visa Bulletin, September shows much movement.

In August, the EB-1 final action date for China was January 1, 2010; however in September it is Current. The August EB-2 final action date for China was January 1, 2010; but in September it moved forward to June 1, 2013.

Also in August, final action dates in several categories were specified for El Salvador, Guatemala, and Honduras due to continued high demand for numbers for USCIS adjustment of status applicants. However, in September, that column has been dropped and all chargeability areas except those listed for China-mainland born, India, Mexico, and Philippines are Current. For more information about the changes, which were previously not anticipated until October, please refer to the September Visa Bulletin.

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4. DHS Extends Designation of El Salvador for Temporary Protected Status for 18 Months

The Department of Homeland Security (DHS) is extending the designation of El Salvador for temporary protected status (TPS) for 18 months, from September 10, 2016, through March 9, 2018.

The 60-day re-registration period began July 8, 2016, and runs through September 6, 2016. DHS said it is important for re-registrants to timely re-register during the 60-day re-registration period and not to wait until their employment authorization documents (EADs) expire.

The extension allows currently eligible TPS beneficiaries to retain TPS through March 9, 2018, so long as they otherwise continue to meet the eligibility requirements for TPS, DHS said. The agency said an extension is warranted because the conditions in El Salvador supporting the TPS designation continue to be met: “There continues to be a substantial, but temporary, disruption of living conditions in El Salvador resulting from a series of earthquakes in 2001, and El Salvador remains unable, temporarily, to handle adequately the return of its nationals.”

DHS also set forth procedures necessary for nationals of El Salvador (or those having no nationality who last habitually resided in El Salvador) to re-register for TPS and to apply for renewal of their EADs with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who have previously registered for TPS under the designation of El Salvador and whose applications have been granted.

Certain nationals of El Salvador (or those having no nationality who last habitually resided in El Salvador) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions, if they meet: (1) at least one of the late initial filing criteria; and (2) all TPS eligibility criteria (including continuous residence in the United States since February 13, 2001, and continuous physical presence in the United States since March 9, 2001).

USCIS will issue new EADs with a March 9, 2018, expiration date to eligible El Salvador TPS beneficiaries who timely re-register and apply for EADs under this extension. Given the time needed for processing TPS re-registration applications, DHS said it recognizes that not all re-registrants will receive new EADs before their current EADs expire on September 9, 2016. Accordingly, DHS has automatically extended the validity of EADs issued under the TPS designation of El Salvador for 6 months, through March 9, 2017. The notice explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on Employment Eligibility Verification (Form I-9) and the E-Verify processes. A related notice from USCIS is available here.

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5. USCIS Launches 'Refresh' of InfoPass Appointment Scheduler

U.S. Citizenship and Immigration Services (USCIS) recently launched a “refresh” of InfoPass, the online system that allows users to schedule appointments at USCIS offices, per an announcement by the agency this summer.

InfoPass enables persons with questions about pending applications for citizenship, permanent residency (including green cards for family members) and deferred action  to schedule to meet in person with a USCIS Officer. New features of the revamped website include a mapping function intended to make it easier to find a local office in the United States, and a visual style that matches the rest of uscis.gov, as well as a new web address. InfoPass is available here.

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6. Justice Dept. Petitions Supreme Court for Rehearing of U.S. v. Texas

DOJ petitions for a rehearing after death of the late Justice Antonin Scalia resulted in an eight member Supreme Court and a non-precedential, deadlocked opinion affirming the lower court’s decision.

The Department of Justice (DOJ) petitioned the Supreme Court on July 18, 2016, to rehear U.S. v. Texas, the matter concerning the Obama administration’s Deferred Action for Parents of Americans (DAPA), when a ninth Supreme Court justice is confirmed. The Court’s 4-4 deadlock in that matter blocked the program, which would have allowed undocumented persons who are the parents of U.S. citizens and lawful permanent residents to apply to remain in the United States and work.

In the petition, Acting Solicitor General Ian Gershengorn argued, among other things, that “there is a strong need for definitive resolution by this Court at this state.” The DOJ said that the Court “should grant rehearing to provide for a decision by the Court when it has a full complement of Members, rather than allow a non-precedential affirmance by an equally divided Court to leave in place a nationwide injunction of such significance.” Although re-hearings are uncommon, the petition noted that they have been granted in some cases where a Court vacancy resulted in a tie. If the rehearing is granted, it is unlikely to occur for some time. More information about the Obama administration’s executive actions on immigration is available here.

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7. USCIS Ombudsman's 2016 Report to Congress Recommends Changes

The Ombudsman of U.S. Citizenship and Immigration Services (USCIS) submitted their Annual Report to Congress, due by June 30 each year, summarizing the most pervasive and serious problems encountered by individuals and employers applying for immigration benefits with USCIS, reviewing past recommendations to improve USCIS programs and services, and making new recommendations.

USCIS Ombudsman Maria M. Odom told Congress on June 29, 2016, that USCIS “still has much work to do to resolve longstanding systemic issues that compromise efficiency, quality of adjudications, and customer service.” Noting the agency’s myriad competing priorities, she said USCIS “has made insufficient progress to address processing time delays (critically on the rise in the past 2 years); inconsistencies in adjudications across service centers; substantial failure to meet the 90-day regulatory adjudication deadline for employment authorization documents; and the continued issuance of overly burdensome and unnecessary requests for evidence.” She said she believed the agency would achieve its full potential “as a 21st century immigration agency when its customer service and adjudicatory functions are consistently prioritized, resourced, and afforded equal oversight.”

This year’s Annual Report, among other things, reviews issues involving the mobility of beneficiaries of employment-based petitions, the integrity of immigrant investor petitions, challenges faced by employees and employers in the H-2 programs, and delays in obtaining employment authorization documents.

Highlights of the report include the following:

Employment-based immigrant petitions. The report notes that USCIS has taken a number of steps to implement President Obama’s Immigration Accountability Executive Action for businesses and immigrant workers. On November 20, 2015, the agency published the draft policy memorandum, Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability; and a Notice of Proposed Rulemaking (NPRM) on December 31, 2015, to implement certain provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). The report notes that USCIS has still not changed its position that foreign worker beneficiaries lack legal standing in the petition process despite mounting case law to the contrary. The Ombudsman said that USCIS must reconsider its position on employee standing with respect to Form I-140, Immigrant Petition for Alien Worker, “and make a corresponding regulatory change, fully aligning its policy to the letter and spirit of AC21 to provide certain qualified employees greater employment mobility while awaiting the completion of the permanent residence process.”

EB-5 immigrant investor program. The report states that processing times for EB-5 petitions continue to degrade. Stakeholders expressed concerns about USCIS’s Investor Program Office’s (IPO) regulatory authority to administer the program; outdated regulatory requirements; program integrity in light of allegations and findings of fraud or noncompliance with other federal laws; the manipulation of Targeted Employment Areas through gerrymandering; and the inconsistent implementation of policy. The Ombudsman said her office will monitor regulatory and statutory changes to the program initiated by IPO and Congress, and will continue to address stakeholders’ concerns about the quality, consistency, and timeliness of IPO’s adjudications of EB-5 applications and petitions.

H-2 temporary workers and labor trafficking. During the reporting period, the Ombudsman heard from workers’ rights organizations regarding the vulnerabilities and exploitation of H-2 workers sponsored by U.S. employers. The report notes that exploitation takes the form of involuntary servitude or forced labor, and can result in other workplace-based crimes. The Ombudsman participated in interagency activities to address stakeholder concerns, and worked to resolve requests for case assistance by workers encountering challenges in their pursuit of protective immigration benefits. The Ombudsman said her office will continue to explore ways USCIS can collaborate with federal agency partners to address employee exploitation and human trafficking, and will convene Department of Homeland Security (DHS) representatives to discuss how to enhance protections within DHS’s authorities.

H-2B temporary nonagricultural workers. The report notes that stakeholders continue to assert that the H-2 program “is overly regulated and bureaucratic, causing significant challenges in hiring foreign workers” to fill temporary agricultural (H-2A) and nonagricultural (H-2B) jobs. Recent regulatory and legislative developments “have exacerbated conditions affecting both employers and employees, contributing to an overall increase, at least temporarily, in H-2B processing delays,” the report states. The Ombudsman said her office will continue to monitor stakeholder concerns about the treatment of both employers and employees in the H-2B program “to promote improved program functionality and address abuse concerns.”

Requests for evidence. The Ombudsman monitors the rates at which requests for evidence (RFEs) are issued by the Vermont Service Center (VSC) and the California Service Center (CSC) in three high-skilled nonimmigrant visa categories: H-1B (Specialty Occupation Workers), L-1A (Intracompany Transferee Managers and Executives), and L-1B (Specialized Knowledge Workers). The FY 2015 RFE rates for these categories “continues to show disparities between the two service centers, including fluctuations in RFE issuance rates and unexplained divergences,” the report notes. The FY 2015 RFE data in other employment-based nonimmigrant visa categories “also revealed high rates of issuance in two product lines at the VSC: O-1 (Individuals with Extraordinary Ability or Achievement), reported at 49 percent, and P-1 (Internationally Recognized Athletes), which increased to 65 percent,” the report states. The Ombudsman said her office will continue to monitor and engage USCIS on issues pertaining to the quality and frequency of RFEs.

Employment authorization documents. In 2006, 2008, and 2011, the Ombudsman issued formal recommendations suggesting ways to reduce USCIS’s processing delays for employment authorization documents (EADs). USCIS adopted some of the Ombudsman’s recommendations, the report notes, but did not agree that EAD processing was a significant issue, given the small percentage of delayed EADs. However, FY 2015 data showed that EAD adjudications after 90 days reached a “troublesome” 22 percent, or 449,307 filings. With a proposal to eliminate the 90-day processing requirement currently under consideration by the agency, timeliness “remains a real concern for EAD processing,” the report says. The Ombudsman believes the proposed regulatory changes “are not likely to result in decreased processing times, absent significant commitment from the agency to devote resources to improving processing times across the product line.” The Ombudsman said her office “continues to highlight EAD processing delays as a systemic issue, and will continue to monitor and engage the agency as long as EAD delays persist.”

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8. USCIS to Allow Additional Applicants for Provisional Waiver Process

U.S. Citizenship and Immigration Services (USCIS) announced a final rule, effective August 29, 2016, that expands the existing provisional waiver process to allow certain individuals who are family members of U.S. citizens and lawful permanent residents (LPRs) and who are statutorily eligible for immigrant visas to more easily navigate the immigration process.

USCIS noted that the provisional waiver process “promotes family unity by reducing the time eligible individuals are separated from their family members while they complete immigration processing abroad, while also improving administrative efficiency.”

The agency said the final rule, available here, builds on a process established in 2013 to support family unity. Under that process, certain immediate relatives of U.S. citizens can apply for provisional waivers of the unlawful presence ground of inadmissibility, based on the extreme hardship their U.S. citizen spouses or parents would suffer if the waiver were not granted. The final rule expands eligibility for the provisional waiver process to all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility. Until now, only immediate relatives of U.S. citizens were eligible to seek such provisional waivers before departing the United States for the processing of their immigrant visas. Those eligible for the provisional waiver process under the 2013 rule are only a subset of those eligible for the waiver under the statute.

To qualify for a provisional waiver, applicants must establish that their U.S. citizen or lawful permanent resident spouses or parents would experience “extreme hardship” if the applicants are not allowed to return to the United States.

USCIS said it expects to update its Policy Manual “in the coming weeks” to provide guidance on how it makes “extreme hardship” determinations. The final rule also makes changes to Form I-601A, Application for Provisional Unlawful Presence Waiver. These changes will go into effect along with the final rule.

Applicants should not submit a request for a provisional waiver under the expanded guidelines until the final rule takes effect on August 29, 2016. If you do so before that date, USCIS may deny the application. The updated I-601A will be posted on USCIS’s website at uscis.gov/i-601a on August 29, 2016.

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9. Klasko News

Rankings and Listings

Ron Klasko and Bill Stock Named Two of the Top 20 Practitioners in Immigration Law
Klasko Immigration Law Partners is pleased to announce that H. Ronald Klasko (Ron) and William A. Stock (Bill) have been selected for inclusion in “The Most Powerful Employment Attorneys Guide for 2016.”

The 9th annual list – selected by Lawdragon and produced in partnership with Human Resource Executive – was recently published on Lawdragon.com and in HRE’s print magazine. Ron and Bill were named as two of the 20 top practitioners in the area of Immigration Law. Selections were based on Lawdragon’s editorial research as well as by submissions from firms and other visitors to Lawdragon.com and HREonline.com. Congratulations, Ron and Bill!

New Appointments

Elise Fialkowski Appointed Vice-Chair of GMS
Elise A. Fialkowski was recently appointed to Vice-Chair, Global Migration Section of the American Immigration Lawyers Association. Congratulations, Elise!

On the Airways

Bill Stock on WHYY’s Radio Times
Bill Stock was a guest on WHYY’s “Radio Times with Marty Moss-Coane” on Thursday, August 25, 2016. Immigration has long played a role in politics and this year the two main presidential candidates have vastly different approaches to the issue. During the hour long program, Bill and fellow guest Rich Lowry of The National Review shared their takes on the great immigration debate. To listen to the full soundcloud of this show, click here.

In Quotes

Bill Stock Interviewed by Bloomberg BNA
Bill Stock was quoted extensively in a Bloomberg BNA article entitled “Is Trump Plan ‘Systematic Effort’ to Derail Immigration?” published August 17, 2016. In this article by Laura D. Francis, Bill cautions that extreme measures on the immigration front may lead to less than desirable consequences.

Ron Klasko quoted in CNN Money
Ron Klasko was quoted in a story by Sophia Yan for CNN Money entitled “Chinese flock to America to work for companies they’ve bought,” published July 22, 2016. Ron affirms the popularity of the EB-5 immigrant investor visa has reached unprecedented heights and will continue to increase among Chinese nationals.

Bill Stock Interviewed on Obama’s Immigration Legacy
Bill Stock, the newly elected President of the American Immigration Lawyers Association, sat down with Michael Matza of The Philadelphia Inquirer for a Q&A on comprehensive immigration reform and Obama’s record.  The article was published on July 10, 2016.

Publications and from the Wire

NES Financial Release EB-5 eBook; Includes Articles by Ron Klasko and Rohit Kapuria
NES Financial recently released its first EB-5 eBook. Many NES Financial Medallion Partners – of which Klasko Immigration Law Partners is one, provided articles covering a wide range of hot topics. The eBook, Navigating a Changing EB-5 Sector: Insights from Experts, includes articles on the overlooked role of USCIS in EB-5’s future, whether or not the EB-5 Regional Center “pure” rental model is sustainable, and suggested procedures and possible options for accepting minors as investors in EB-5 investment funds, among others. “Searching for a Silver Lining in Vermont,” co-authored by Ron and Tammy Fox-Isicoff, and “Is the EB-5 Regional Center ‘Pure’ Rental Model Sustainable?” features the article contributed by Rohit Kapuria.

Law 360 Republishes Blogs
Law 360 republished Ron’s recent blog “Why EB-5 Investors Are Not Your Typical Clients” as an “Expert Analysis” article on its Immigration page. The online legal news source also republished Julianne Opet’s blog on the “Top Five Most Common Mistakes Made During Site Visits.” Sign up for a free seven-day trial on Law 360 to read the blogs or visit our website.

Upcoming Speaking Engagements

H. Ronald Klasko
Ron will be participating in the “Lazy Days of Summer” Interactive CLE Series presented by Catholic Legal Services on Friday, August 26, 2016 in Miami, Florida. Ron will moderate the session “A-Z, E-2 to EB-5” and discuss considerations for contemplating prospective E to EB-5 petitions, nuances in direct EB-5 filings, EB-5 legislative initiatives, problem consulates/cases and considerations for USCIS v. consular processing, among other topics. Ron will also be a panelist on “Alternatives to the H Visa and Ways Around the H Cap” and will cover H1B1, E3, TN, H3 and J and considerations, does it make sense to file for PERM and forget the H-1B, ethical considerations for filing a number of H-1B petitions for the same client on behalf of different sponsors, among other topics on ethics. For more information on these topics, contact Ron at rklasko@klaskolaw.com.

Elise A. Fialkowski
Elise will present at the Pennsylvania Bar Institute’s Bi-Annual Immigration Law Forum on O-1/EB-1/NIW topics at the Wanamaker Building in Philadelphia on September 23. For more information on this forum, click here.

Recent Speaking Engagements

William A. Stock
Bill presented at the 252nd American Chemical Society National Meeting & Exposition in Philadelphia from August 21-25, 2016. For more information on this conference click here and for more on Bill’s talk see http://www.klaskolaw.com/event/visa-green-card-options-young-chemists/.

H. Ronald Klasko
Ron was in China from July 28 – August 9 speaking on EB-5 at various venues in Shanghai, Beijing and Shenzhen. Ron discussed EB-5 due diligence and why it’s important, the E-2 treaty investor visa, new developments in EB-5, among other hot topics in EB-5. For more information on the EB-5 visa, visit www.eb5immigration.com.

Daniel B. Lundy | Jessica A. DeNisi
On Tuesday, August 9, Klasko Compliance team members Dan Lundy and Jessica DeNisi in conjunction with NES Financial’s Reid Thomas presented a webinar entitled “EB-5 Site Visits: Are you ready?” USCIS has announced plans to begin implementing Regional Center site visits in 2016, and the stakes for EB-5 issuers have never been higher. This webinar addressed what will USCIS want to know, how should issuers prepare, and what are the consequences of inaction. For more information on USCIS EB-5 site visits, contact Dan at dlundy@klaskolaw.com or Jessica at jdenisi@klaskolaw.com.

H. Ronald Klasko | Daniel B. Lundy | Rohit Kapuria
Ron, Dan and Rohit participated at the 2016 New York EB-5 & Investment Immigration Convention from July 17-18, 2016 in New York City. Ron moderated two sessions “Understanding and Evaluating Investor Protections and How U.S. Securities Laws Can Affect Overseas Agents” and “China Issues.” Dan participated in the session “Putting Together an Approvable EB-5 Project” and Rohit moderated “Understanding an EB-5 Capital Transaction.” For more information on this convention, click here.

Elise A. Fialkowski
On July 14, Elise co-hosted a session entitled “Visa Legalities” at the 2016 Global Village for Future Leaders of Business and Industry program at Lehigh University.  89 Villagers from 43 countries joined the program.

Recent Publications

“Picking Winners: Immigration, Citizenship and Olympic Glory” authored by Bill Stock appeared in the August 16, 2016 edition of The Legal Intelligencer. In this article, Bill brings to light the practice of countries that recruit athletes and aspiring Olympians that seek countries for citizenship to compete under their flag. To read this interesting piece on trying to achieve Olympic glory, click here.

Bill Stock’s recent article, “Providing a Path to Legal Status is in America’s Best Interest” was published in The Legal Intelligencer on July 19, 2016. In this article, Bill discusses the challenges faced by the undocumented in America seeking a path to citizenship as compared to several years ago, when U.S. immigration policy offered a more discernible way forward. Click here to read this article.

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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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