Mr. Gump is also a member of the International Bar Association, American Bar Association (International and Labor Employment Law Sections), State Bar of Texas (Immigration Law Section), Federal Bar Association, Dallas Bar Association, Sections Advisor for the National Notary Association, World Affairs Council, Dallas Committee on Foreign Relations and the John G. Tower Center for Political Studies at Southern Methodist University.
]]>"We are focused this morning on the tenant occupancy economic methodology. We appreciate the fact that there is a lack of certainty in the community with respect to how our agency is addressing EB-5 applications and petitions that are predicated on that methodology to prove the required job creation. We thought we should have this engagement to address the uncertainty.
Our intention this morning is to clarify for you what we have done and are doing with respect to cases that are predicated on the tenant occupancy methodology. It is not, I should say at the outset, it is not my intention to discuss the intricacies of the economic methodology itself, though we will certainly listen to your concerns and address them as and when appropriate.
First, if I can provide you with some assurances. We well understand the law, that there is no requirement to present a particular methodology in support of a petition. Rather, the law requires a "reasonable" methodology. Whether or not the tenant occupancy methodology is reasonable in proving job creation in a particular case is a fact-specific and fact-dependent inquiry. We have not changed any policy with respect to the tenant occupancy methodology, nor have we changed the applicable criteria.
This is, instead, what we have done. In response to the request of adjudicators and your - stakeholders' - request - and a very appropriate request - we have hired full time economists and business analysts to improve the analysis of EB-5 petitions and the quality of our work. I should note also that we have announced or are about to announce other positions as well such as a hiring of corporate attorneys to interpret the many legal documents that petitions often include. Our new experts have reviewed cases, not previously adjudicated, that are predicated on the tenant occupancy methodology, and based on the specific facts of those cases have raised questions as to whether the evidence presented proves the required job creation, or instead merely establishes job relocation, for example. We have issued Requests for Evidence to obtain additional evidence that our experts will review and analyze.
A decision, as I mentioned, on the economic methodology presented in the EB-5 case, including the tenant occupancy methodology, is very fact specific. Consistent with our deference policy, we are communicating to our adjudicators that they are to accord deference to prior adjudications. Our adjudicators should rely on a previous determination that the economic methodology is reasonable when the economic methodology is presented to us in later a proceeding based on materially similar facts.
For example, if we approved a Form I-924 Regional Center Application based on a specifically-identified project, including the specific locations and industries involved, we will not revisit the determination that the economic model and underlying business plan were reasonable when adjudicating related Form I-526 petitions, Form I-485 applications, or Form I-829 petitions. If we approved an I-526 petition for an immigrant investor based on a specifically-identified project, not associated with a Regional Center, we will not revisit the determination that the business plan was reasonable when adjudicating the investor's related I-485 or I-829 petition. If, however, the facts underlying the application of the economic methodology have materially changed, then we will conduct a fresh review of the new facts to determine whether the petitioner or applicant has complied with the requirements of the EB-5 program, including the job creation requirement.
That is, in summary, what we have done, and what we have not done."
]]>USCIS has entered a new phase of the initiative by bringing together the EIR Tactical Team. For 90 days this collaborative team, comprised of both USCIS employees and entrepreneurs from the private sector, will identify opportunities where USCIS can streamline pathways for foreign entrepreneurs. Team members began their work at USCIS in late March. Last week, they traveled to the California Service Center and met with USCIS officers to discuss the visa categories most often used by immigrant entrepreneurs: H-1B, L-1 E-1, E-2, and O-1.
EIR team members come from diverse backgrounds and offer vast business and immigration expertise. The USCIS employees are seasoned professionals with experience in employment-based immigration. The entrepreneurs bring a wide-range of real-world startup experience, including product development, investment and finance, and technology innovation. Team members include (listed alphabetically):
While this is a nice start by USCIS to the EIR initiative, actual, tangible, and substantive results must occur for this program to be considered a success. Time will tell.
]]>The May 2012 Visa Bulletin states:
"Due to the rapid forward movement of the cut-off date, demand for China and India Employment Second preference numbers has increased dramatically during recent months, and at a much faster rate than had been expected. Therefore, it has been necessary to retrogress that cut-off date to August 15, 2007 in an attempt to hold number use within the annual limit while maintaining availability for those countries that have not yet reached their per-country limit. Notices were included in the November, January, and February Visa Bulletins alerting readers to the possibility of such a retrogression. While corrective action has become necessary earlier than was anticipated based on the information available at the time cut-off dates were determined, it is hoped that readers are not caught off guard by this retrogression.
Should additional information regarding potential demand become available, it may be necessary to take additional corrective action at any time.
Every effort will be made to return the China and India Employment Second preference cut-off date to the previously announced April date of May 1, 2010. This will be done as quickly as possible under the FY-2013 annual limits, which take effect October 1, 2012. It will not be possible to speculate on the cut-off date which may apply at that time until late summer.
USCIS has indicated that it will continue accepting China and India Employment Second preference I-485 filings based on the originally announced April cut-off date."
While the form has a different "feel" with a redesigned layout and the expansion of instructions, the heart of the form remains the same. The most notable revisions include:
Originally debuting in 1987 after the passage of the Immigration Reform and Control Act of 1986, the form has previously been revised eleven times. The public is invited to comment on the proposed revisions until May 29, 2012.
The Law Offices of Richard A. Gump, Jr. specializes in Form I-9 compliance. Contact our office today to ensure that your business complies with federal, state and local employment eligibility verification laws and regulations.
]]>Just as fast as the visa availability appeared, there are strong signs that the May or June 2012 visa bulletin will contain significant retrogression for the EB-2 category. Specifically, Charlie Oppenheim, Chief of Visa Control and Reporting at the Department of State, informed participants of the American Immigration Lawyers Association (AILA) Midwest Regional Conference that he will likely retrogress India and China-mainland born Employment-Based Second Preference priority dates to around August 2007, effective with either the May or June 2012 visa bulletin. He also advised that he projects that all EB-1 visas available in Fiscal Year 2012 will be used this year, resulting in no spill down to EB-2. While Mr. Oppenheim's comments at the AILA conference are not binding on the Department of State, it appears clear that retrogression will occur in the forthcoming May or June visa bulletin.
The cycle of gridlock for individuals from China-mainland and India in the employment-based second preference category continues. If you may be affected by the jump in EB-2 visa availability and would like to file your green card application, contact our office immediately.
]]>H.R. 3992 would open up the E-2 nonimmigrant visa category for Israelis so long as Israel passed corresponding legislation opening up nonimmigrant treaty investor visas for U.S. nationals. Currently, citizens of almost 80 countries are eligible to apply for E-2 nonimmigrant visas. To qualify for E-2 classification, the treaty investor must:
On February 28th, the House Judiciary committee passed H.R. 3992 by a voice vote. The measure will now be scheduled for a vote by the entire House of Representatives. With Israel a longstanding political and economic ally of the U.S., the legislative push to open up E-2s for Israel is aligned with a corresponding push by the federal government to improve entrepreneur and investor programs.
Do you have questions about investor visas such as the E-2 nonimmigrant visa or EB-5 immigrant visa? The Law Offices of Richard A. Gump, Jr. specializes in the field and can assist you with all of your investor visa needs.
]]>As is often the case in the field immigration law, misinformation from non-attorneys has resulted in confusion regarding the status of the change. USCIS has issued a public notice stating that the procedures are not in effect and will not be available to potential applicants until USCIS publishes a final rule in the Federal Register specifying the effective date. USCIS plans to publish a notice of proposed rulemaking in the coming months and will consider all comments received as part of that process before publishing a final rule. USCIS reminds individuals of the following:
Pursuant to USCIS regulations, the maximum validity period of an L-1 petition is three years. Historically, visa validity periods matched the petition validity period. Thus, in most circumstances, the L-1 visa validity periods were three years. (The exception to the visa validity periods relate to reciprocity schedules. Some countries - Brazil, China - have shorter visa validity periods. The L-1 petition can be valid for three years but the visa validity period cannot exceed 2 years.)
As of February 14, 2012, DOS amended the rules relating to L visas and now permits the L visa to be issued for up to five years depending on the reciprocity schedule. This change is intended to benefit foreign nationals from some countries as they may not need to undergo the visa renewal process at a U.S. Consulate.
It is important to note that this does not change the amount of time than an individual may stay in the U.S. in L-1 status. The L petition may only be granted for a maximum period of three years at a time.
The visa validity period may make international travel more convenient. However, employers and L-1 employees will need to carefully watch visa validity and authorized stay issues. A valid visa does not authorize a person to remain in the United States for the remainder of the visa.
The Law Offices of Richard A. Gump, Jr. specializes in business related immigration such as L-1 intracompany transfer visas. Contact us today to find out more.
]]>The Visa Reissuance Program has been expanded to include H‐1 visa applicants and their derivatives that are renewing a visa of the same classification that has expired in the last twelve months. The Program is also available to O, P, J and C‐1/D visa applicants. All applicants must be physically present in the United Kingdom to utilize this program and may still be required to appear in person for an interview.
The Law Offices of Richard A. Gump, Jr. assists clients with consular processing and other Embassy and Consulate related issues.
]]>According to the March 2012 Visa Bulletin, visas will be available in March for Chinese and Indian nationals with an approved Form I-140 containing a priority date on or before May 1, 2010. This is great news for the many high skilled Indian and Chinese workers who have been anxiously watching the Department of State Visa Bulletins. However, retrogression in this category is always possible.
If you may be affected by the jump in EB-2 visa availability and would like to file your green card application, contact our office immediately.
]]>1) Expand eligibility for 17-month extension of optional practical training (OPT) for F-1 international students to include students with a prior degree in Science, Technology, Engineering and Mathematics (STEM).
Presently, an F-1 student may only engage in optional practical training (OPT) for 12 months. F-1 students who graduate in programs of study classified as STEM can obtain a 17-month extension of OPT as part of their F-1 status if the degree they were conferred is included on the DHS list of eligible STEM degree programs. This proposed change would expand eligibility for extension of OPT by including students with a STEM degree that is not the most recent degree the student has received. Furthermore, because of the dynamic nature of STEM related education and training, DHS will continue to review emerging fields for possible inclusion in the list of eligible STEM degree programs.
2) Allow for additional part-time study for spouses of F-1 students and expand the number of Designated School Officials (DSOs) at schools certified by DHS to enroll international students.
This regulatory reform would allow spouses of F-1 students to enroll in additional academic classes on a part-time basis while their spouse is pursuing full-time studies. Presently, under the current regulation, spouses may only take part-time vocational or recreational classes. Schools would also be given increased flexibility to determine the number of DSOs needed at their institution to meet both the administrative and guidance needs of students.
3) Provide work authorization for spouses of certain H-1B holders.
This proposed change to the current DHS regulation would allow certain spouses of H-1B visa holders to legally work while their visa holder spouse waits for his or her adjustment of status application to be adjudicated. Specifically, employment will be authorized for H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S. This effort will help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.
4) Allow outstanding professors and researchers to present a broader scope of evidence of academic achievement.
The Law Offices of Richard A. Gump, Jr. represents outstanding professors and researchers filing in the EB-1.2 category. The proposed change to current DHS regulations would increase the types of evidence that employers or self-petitioners can submit to demonstrate that a professor or researcher is among the very best in their field. Presently, applicants for the employment-based immigrant visa category of "outstanding professors and researchers" are limited to specific types of evidence listed by regulation. This would allow "comparable evidence" beyond the specifically articulated regulatory list. This change will harmonize the evidentiary standard for this category with the other exceptional ability immigrant visa categories. While we applaud DHS for recognizing deficiencies in existing EB-1 regulations, improvements in USCIS adjudicator guidance are also needed.
5) Harmonize rules to allow E-3 visa holders from Australia and H-1B1 visa holders from Singapore and Chile to continue working with their current employer for up to 240 days while their petitions for extension of status are pending.
This proposed regulation would treat E-3 and H-1B1 visa holders the same as other employment-based H-1B and L-1 visa holders by allowing them to continue employment with their current employer for up to 240 days from the expiration of their authorized period of stay if a petition to extend their status has been timely filed. Kudos to DHS for addressing this long standing discrepancy within the regulations. But, we have to ask...why did it take DHS so long to address this issue?
6) Launch Entrepreneurs in Residence initiative.
We first mentioned the Entrepreneurs in Residence initiative on our blog in October. USCIS has announced the first summit meeting of the program. Scheduled for February 22, 2012, USCIS will hold an Information Summit in Silicon Valley, CA, that will bring together high-level representatives from the entrepreneurial community, academia, and federal government agencies to discuss how to maximize current immigration laws' potential to attract foreign entrepreneurial talent. The input gathered at the summit will inform the work of the Entrepreneurs in Residence tactical team, which will bring business experts in-house to work alongside USCIS staff for a period of approximately 90 days. Following the summit, the tactical team will convene in Washington, DC to begin its work. Will this initiative result in progressive and substantive changes in existing regulations? We shall see.
It is important to note that no timeline for implementation of the reforms was mentioned in the press release. The changes will require significant revisions to existing federal regulations.
]]>The audit revealed that from 2005 to 2009, about 44 percent of the workforce at the ACSI facility lacked work authorization. Many of the individuals presented "egregiously suspect" identification documents, including misspellings of agency names and/or containing the words "novelty item". In addition, the audit revealed 269 of Champion's 451-person workforce lacked work authorization.
ACSI is a company located in South Houston that designs and manufactures custom emergency response vehicles and trailers. ACSI offers emergency decontamination systems, restroom and shower trailers, surge systems, mobile command centers, abatement equipment, mobile laboratory facilities and interchangeable pods. Atrium Companies is the largest manufacturer and distributor of residential vinyl and aluminum windows and patio doors in the United States with a total workforce around 3,700 employees. The company operates 13 subsidiaries located in seven different states and Canada.
Both companies received multiple notices from the Social Security Administration (SSA) known as "no-match letters" which indicated employee names and Social Security numbers did not match SSA records. The companies failed to take corrective measures, resulting in the continued employment of the undocumented foreign nationals.
Atrium Companies has agreed to pay $4 million ($2 million per company) as forfeited funds to the Department of Homeland Security. Since December 2010, Atrium Companies has taken substantial remedial measures to ensure compliance with immigration law in its hiring process, including revising its immigration compliance procedures to include new policies concerning the proper completion, retention and auditing of I-9 forms and for responding to SSA no match letters. Under the terms of the non-prosecution agreement, Atrium Continues must also hire a full-time chief compliance officer and must also continue to consult with immigration counsel in order to ensure the legality of its workforce. In addition, as part of the agreement, the United States has agreed not to criminally prosecute the company.
If your company is the subject of an ICE audit, contact our office immediately.
]]>Under the new initiative, qualified foreign visitors who were interviewed and thoroughly screened in conjunction with a prior visa application may be able to renew their visitor visas without undergoing another interview. Additionally, the pilot program will attempt to streamline visa processing for certain low-risk applicants, such as individuals renewing expired visas, or some categories of younger or older first-time applicants.
DOS thinks that consulates in China and Brazil will experience improved processing times due to this poilcy. Over the course of the year, DOS claims the policy could open as many as 100,000 interview appointments for Chinese travelers applying for visas for the first time. The Department of Commerce estimates that Chinese visitors spend more than $6,000 per person, per trip. As President Obama indicated in his speech, increased tourism will create jobs and benefit the U.S. economy.
However, the new initiative does not eliminate the ability of Consular officers to to use their authority to interview any visa applicant as required for national security.
Problems with obtaining a visitor visa to the U.S.? The Law Offices of Richard A. Gump, Jr. can help! Contact our office today.
]]>With the U.S. share of global tourism dropping from 17 percent to 11 percent over the past decade, streamlining the process for obtaining visitor visas could lead to a significant economic impact. The White House optimistically hopes that the new measures will help add 1.2 million new jobs and $859 billion to the U.S. economy by 2020.
While nationals of the 36 countries who are eligible for the Visa Waiver Program may travel to the U.S. for B-1 or B-2 purposes without having to obtain a visa, consulate wait times for visitor visas at other consulates can be lengthy and deters visitors from traveling to the U.S. The U.S. Travel Association estimates that these delays have cost the U.S. economy $606 billion and 467,000 jobs over the past decade.
To combat the problem, President Obama is ordering the creation of an interagency process for coordinating the implementation of regulatory improvements and the evaluation of legislative proposals to enhance and expedite travel to and arrival in the United States by foreign nationals. In other words, Obama wants the B-1/B-2 application process streamlined. The order includes the following lofty goals:
1. Increase nonimmigrant visa processing capacity in China and Brazil by 40 percent over the coming year;
2. Ensure that 80 percent of nonimmigrant visa applicants are interviewed within 3 weeks of receipt of application, recognizing that resource and security considerations and the need to ensure provision of consular services to U.S. citizens may dictate specific exceptions;
3. Increase efforts to expand the Visa Waiver Program and travel by nationals of Visa Waiver Program participants; and
4. Expand reciprocal recognition programs for expedited travel, such as the Global Entry program.
The order also creates a Task Force on Travel and Competitiveness. The task force is charged with developing a National Travel and Tourism Strategy with recommendations for new policies and initiatives to promote domestic and international travel opportunities throughout the United States with the goal of increasing the United States market share of worldwide travel, including obtaining a greater share of long-haul travel from Brazil, China, and India.
While this is clearly a step in the right direction, it will be interesting to see if the federal government can live up to the goals set forth in the executive order.
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