House Majority Leader Eric Cantor's historic defeat in Virginia in favor of the vocally anti-“amnesty” David Brat suggests that Congress will not enact comprehensive immigration reform this year, although not everyone agrees.
Through August, E visa applicants must interview at the U.S. embassy in Tokyo or the U.S. consulate in Fukuoka instead of the U.S. consulate in Osaka-Kobe.
OCAHO Launches E-Filing Pilot, Rules that E-Verify Participation Does Not Provide Blanket Protection
OCAHO has launched a voluntary pilot program to test an electronic filing system in certain cases. Also, an employer argued that participation in E-Verify entitled it to a presumption that it had not violated the law, but OCAHO ruled that E-Verify provides no such blanket protection.
As of June 1, 2014, USCIS is now limiting the validity period for Form I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS.
Upcoming and recent speaking engagements, publications, and what you may have missed.
1. Comprehensive Immigration Reform Prospects Appear Dim Following Cantor's Defeat
House Majority Leader Eric Cantor’s (R-Va.) historic primary election defeat in Virginia on June 10, 2014, in favor of the vocally anti-“amnesty” Tea Party-backed David Brat suggests that Congress may not enact comprehensive immigration reform this year, according to many commentators. They have observed that Republicans are unlikely to want to address immigration issues in the near future now that Cantor has been defeated unexpectedly, in part because he was willing to consider measures such as a modified Dream Act for young undocumented immigrants. Even Rep. Renee Ellmers (R-N.C.), who won her primary while supporting immigration reform, noted that it was in the “forefront” of Republicans’ thinking that “in the state of shock that we are all in,…right now [comprehensive immigration reform is] not where we need to go. She acknowledged, however, that “[t]hat doesn’t mean it’s off the table.”
Candidates who want to win primaries generally must cater to their parties’ extremes and portray themselves as purists. On the other hand, Sen. Lindsey Graham (R-S.C.), who is pro-immigration reform, won his June 10 primary. Some argue that immigration issues shouldn’t take the blame for Cantor’s defeat, and that many realize that our country’s prosperity depends on resolution of thorny problems in the system. Others say that Cantor had simply grown out of touch with the people in his district, and that immigration was only one reason for his defeat. House Minority Leader Nancy Pelosi (D-Cal.) said, “I’m not one of those who thought Eric Cantor was an advocate for immigration reform. In fact, I thought he was an obstacle. So I don’t think this is an impediment to immigration reform. I don’t think the race was about immigration; it was about a lot of other things.”
With the 2014 midterm elections coming up, many candidates may not want to take any further political risks in the short term. Incremental progress may still be possible even if passing comprehensive immigration legislation remains out of reach.[Back to Top]
2. U.S. Consulate in Osaka-Kobe Stops E-1/E-2 Nonimmigrant Visa Appointments for Summer
The U.S. consulate in Osaka-Kobe has announced that it has temporarily stopped accepting E-1/E-2 nonimmigrant visa appointments through August. During this time frame, E visa applicants, including dependents over the age of 14, must interview at the U.S. embassy in Tokyo or the U.S. consulate in Fukuoka instead. The Osaka-Kobe consulate will continue to process drop-box/mail-in renewal cases as usual. Individuals can also send minor dependent (under the age of 14) cases under the usual mail-in (no-interview) procedures. Companies who are registering for the first time as E visa companies with Osaka may submit their paperwork as usual. The consulate in Osaka-Kobe will contact first-time applicants on an individual basis to set up appointments as needed. The consulate says 10-12 weeks are needed for the processing of these cases. Beginning on September 1, the consulate will resume processing all E applications as usual.
The announcement is available at http://japan.usembassy.gov/e/visa/tvisa-important.html (scroll down).
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3. OCAHO Launches E-Filing Pilot, Rules that E-Verify Participation Does Not Provide Blanket Protection
E-filing pilot. The Department of Justice’s Office of the Chief Administrative Hearing Officer (OCAHO) has launched a voluntary pilot program to test an electronic filing system in certain cases filed with OCAHO under 8 U.S.C. § 1324a and b.
The pilot program began on May 30, 2014, and will run until November 26, 2014. Under the pilot, filing with OCAHO and service on other parties can be accomplished by email in eligible cases. OCAHO said it is undertaking this temporary testing initiative in an effort to make submission of case documents more convenient and to reduce the time and expense incurred in paper filings.
The Federal Register notice describes the procedures for applying for and participating in the pilot program. It is available at http://www.gpo.gov/fdsys/pkg/FR-2014-05-30/pdf/2014-12183.pdf.
Ruling: E-Verify participation does not provide blanket protection. In a recent case, an employer argued that participation in E-Verify entitled it to a presumption that it had not violated the law, but OCAHO ruled that E-Verify provides no such blanket protection.
OCAHO noted that the employer, Golf International d/b/a Desert Canyon Golf, had failed to ensure that various employees properly completed I-9 employment authorization verification forms. Golf contended that the violations were technical, but OCAHO found them to be substantive. Among other things, section 2 was blank for 93 employees, and signatures were missing in section 2 for 14. Several employees checked a box indicating permanent resident status but failed to provide their A numbers.
OCAHO noted that “[a]n employer’s first responsibility in [the E-Verify] program is, in fact, to properly complete an I-9 form for each new employee. As [U.S. Immigration and Customs Enforcement] points out, the E-Verify Memorandum of Understanding that must be signed by a participating employer provides that ‘The Employer understands that participation in E-Verify does not exempt the Employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees.'”
The decision is available at http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Looseleaf/Volume10/1214.pdf.[Back to Top]
4. USCIS Limits Validity Period for Report of Medical Examination/Vaccination Record
As of June 1, 2014, U.S. Citizenship and Immigration Services (USCIS) is now limiting the validity period for Form I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS. Applicants must also submit the I-693 to USCIS within one year of the immigration medical examination. USCIS said it will provide additional ways to submit an I-693. This updated policy applies to any I-693 supporting a benefit application that USCIS adjudicates.
USCIS permits filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, without the medical report. USCIS will issue a request for evidence for the report, which will be valid for submission within one year of the civil surgeon’s signature and valid for one year from submission. Although the medical examination report is generally valid for adjudicatory purposes up to one year after filing, the officer may order an additional immigration medical examination at any time if he or she has concerns about an applicant’s inadmissibility on health-related grounds. The medical examination report may be submitted to USCIS concurrently with the immigration benefit application, or at any time after filing the application but before adjudication. If not filed concurrently with the application, USCIS “encourages applicants to wait until USCIS requests the medical examination report before submitting it.” This includes a request to bring the medical examination report to the interview.
USCIS will hold an engagement on Thursday, June 12, 2014, to address questions about the new policy and provide guidance on filing Form I-693. The agency also has updated the I-693 webpage.
The announcement is at http://www.uscis.gov/policymanual/Updates/20140530-I-693Validity.pdf and http://go.usa.gov/8y9d. See also http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartB-Chapter4.html#S-C-4. The updated I-693 webpage is at http://www.uscis.gov/i-693.[Back to Top]
5. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
6. Klasko News
Upcoming Speaking Engagements
Elise A. Fialkowski will be speaking on the VISA panel session at the Global Village for Future Leaders of Business and Industry® at Lehigh University on July 15, 2014. The Global Village is a unique leadership and cultural awareness training program presented for the past 18 years at Lehigh University. Participation from more than 50 countries is expected this year. The curriculum consists of courses, local business trips and experiences, visiting executives, panel sessions, business projects, community service events, and visits to US cities.
H. Ronald Klasko (Ron) will moderate “EB-5 Litigation: Tenant Occupancy and Material Change” at the EB5 Investors Magazine’s Third Annual Southern California EB-5 Conference on July 21, 2014 in Newport Beach, California. Ron will lead a panel discussion on litigation options on EB-5 cases. For more information, contact Ron at firstname.lastname@example.org.
Recent Speaking Engagements
On June 25, Ron was a speaker on “Preparing for the I-829 Bubble,” a webinar hosted by NES Financial Corp. The webinar dealt with what you need to know for preparing for the I-829 bubble, developing an I-829 friendly economic impact analysis and offered real-world solutions for EB-5 administration. To download the full audio/video presentation and/or PowerPoint slides, click here. For more information on filing an I-829 application, contact Ron at email@example.com.
On June 18, Ron spoke at the ILW/EB-5 Summit for Attorneys and Developers in Boston, MA. For more information on this workshop, click here.
Ron, William A. Stock (Bill) and Elise spoke at the 2014 AILA Annual Conference from June 18-21 in Boston. Ron co-presented “Representing the Direct EB-5 Investor” and Bill participated on the “Hot Topics Strategy Session with AILA Superstars” panel. Bill also presented on “Opening a New Practice: What I Wish I Knew When I Started.” For more information on the topics, please contact the respective speakers.
Elise spoke at the NAFSA 2014 Annual Conference in San Diego, CA from May 25-30. Elise was a panelist on “Advanced H-1B Topics” and discussed complex H-1B issues petitioners encounter, including intermittent and concurrent employment, LCA compliance, export control, document retention, and AC-21 issues, among other issues. For more information on these topics, write to Elise at firstname.lastname@example.org.
In this article, Walter and Theresa discuss the relationship between the Immigrant Investor (EB-5) Program and the U.S. trade and sanctions regime. The article describes the jurisdictional scope of the Office of Foreign Assets Control (OFAC), which administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals; discusses the recent expansion of the US sanctions regime in response to the political turmoil in Ukraine to include country-related sanctions; and provides several cautionary notes for regional centers and project developers seeking to raise capital from prospective foreign investors who either reside in, or whose source(s) of funds originate in, a sanctioned country. For more information or to request a copy of this article, email Walter at email@example.com.
“The EB-5 Immigrant Investor Visa: Not Just for China” written by Rohit Kapuria was published in The Legal Intelligencer on June 18, 2014. In this article, Rohit discusses India’s burgeoning EB-5 immigrant investor market and offers some insight into, and solutions to, the challenges that US based developers face in reaching these prospective investors. For more information or to request a copy of this article, email Rohit at firstname.lastname@example.org.
What You May Have Missed