Record your question about immigration reform via Skype on Bing ASAP. The questions are to be answered by Vice President Biden and the President's Domestic Policy Advisor, Cecelia Munoz Wednesday.
The White House put up a site last week giving people the opportunity to Skype questions about immigration law and immigration reform that will then be viewed and addressed by Vice President and the President's Domestic Policy Advisor on Wednesday. So far there are only a couple questions posted. It is very important that we get the word out about this and have the pro-immigration community post lots of questions so that the White House knows that immigration should be one of their top priorities.
More about the Bing/Skype video Q&A from the Whitehouse website...
Ask Vice President Biden and Cecilia Muñoz Your Questions About Immigration Reform
Our nation's immigration system is broken – and fixing it is an economic, national security, and moral imperative. That’s why President Obama is deeply committed to working to pass a common sense, comprehensive set of reforms that ensures everyone plays by the same rules. And we want to answer your questions about the issue.
On Wednesday, December 11th, Vice President Biden and Cecilia Muñoz, the President’s Domestic Policy Advisor, are sitting down to answer your questions about immigration reform. During the conversation hosted by Bing and Skype, the Vice President and Cecilia will speak with folks from around the country via live Skype Video Call, answer questions submitted through Skype Video and from social media.
What are your questions about immigration reform? Ask a question by Skype Video Message now
and join the conversation on Twitter with #AskTheWhiteHouse
, then be sure to tune in live on Wednesday, December 11th at 3:45 p.m. ET atBing.com/WhiteHouse
Lawyers representing EB-5 investors should be aware of the latest USCIS
adjudications trend challenging claims of construction jobs by means of
requiring third-party validation of construction data and regional industry
standards. Immigration lawyers should now ask the Investor's selected Regional
Center to provide such supporting evidence in advance of filing the I-526
petition or in anticipation of the RFE.
Ever since Matter of Ho, 22 I&N Dec. 206 (Assoc. Comm'r 1998),
USCIS has required the submission of a "comprehensive business plan" in the Form
I-526 filing to clarify the investor's claimed job creation projections. But
recently, the USCIS has expanded its standard requiring a more detailed and
verified analysis of any construction phase jobs.
When a Regional Center project claims a construction period exceeding 24
months, EB5 investors can claim direct, indirect and induced jobs resulting from
the construction phase activities and qualified construction expenditures. When
the business plan making such job claims is submitted to the USCIS as part of
the I-526 petition, the agency will apply the following test:
"Because construction will surpass two years, the petitioner must present a business plan with a more detailed and itemized construction timeline showing all relevant phases of the construction effort. The business plan must also provide transparent, objective, and verifiable data illustrating that the proposed construction timeline and budget are within a reasonable range when compared to industry standards."
In failing to meet this standard with an initial I-526 filing package, the
USCIS will issue an RFE for such records. In response, the Regional Center will
need to supply associated investors with an evidence package that contains
third-party opinions verifying or explaining business plan claims relating to
construction activity and assumptions. These may include following:
- General Contractor's Detailed Construction Timeline. This
report breaks down all phases of the build-out, by date and subcontractor
specialty/trade. The timeline should provide expected start and completion dates
for each distinct activity.
- Third Party Validation of Construction Timeline. This
expert opinion assesses the project's construction timeline claim and measures
the timeline against regional industry norms.
- Third Party Validation of Construction Costs. This expert
opinion assesses the itemized budget costs and compares them with verifiable
data, analysis, and industry standards. Reliable construction costs are
important to the USCIS because these are direct inputs to the economic modeling
that calculates job creation.
These are just a few examples of how a comprehensive business plan claiming
construction jobs may effectively utilize third-party verification of critical
construction data, budgets, timelines and assumptions to ensure Matter of Ho
compliance. Given the emerging USCIS trend in this area, EB5 lawyers should be
prepared to supply exhibits which contain transparent, objective, and verifiable
data illustrating that the proposed construction timeline and budget are within
a reasonable range when compared to industry standards. And note that such
third-party construction experts are not in lieu of the Regional Center's
economist calculating the job creation, but are rather in addition to the
The Justice Department announced that it reached an agreement yesterday with International Business Machines Corporation (IBM) resolving allegations that the company violated the anti-discrimination provision of the Immigration and Nationality Act (INA) when it placed online job postings for application and software developers that contained citizenship status preferences for F-1 and H-1B temporary visa holders. F-1 visas are issued to foreign students studying in the United States, and H-1B visas are issued to foreign nationals with technical expertise in specialized fields.
Under the INA, employers may not discriminate on the basis of citizenship status unless required to comply with law, regulation, executive order or government contract. Although IBM’s job postings were for positions that would ultimately require the successful candidate to relocate overseas, the anti-discrimination provision of the INA does not permit employers to express or imply a preference for temporary visa holders over U.S. workers, such as U.S. citizens and lawful permanent residents, for any employment opportunity in the United States.
Under the settlement agreement, IBM has agreed to pay $44,400 in civil penalties to the United States. IBM further agreed to revise its hiring and recruiting procedures and train its human resources personnel to ensure compliance with the INA, and to be subject to reporting requirements for a period of two years.
Today, House Democrats introduced a comprehensive reform bill based on the bill that passed the full Senate in June with a bipartisan vote of 68 to 32.
"Some might say that this isn't the time to bring up immigration reform
legislation but I disagree," said AILA President Doug Stump. He continued, "Now
is the right time because while there is disagreement around other issues,
immigration reform is something that the vast majority of Americans actually
agree on: that common sense reform is urgently needed and should include a
roadmap to legalization for the undocumented." A February Fox News
Poll that found 72% of registered voters favor allowing illegal immigrants
to remain in the country and eventually qualify for U.S. citizenship, as long as
other requirements are met.
"This bill is not perfect, far from it. Nor was the Senate bill it drew upon.
We are talking compromise. AILA has major reservations about these bills, but no
one gets everything they want. Businesses aren't getting everything, and nor is
labor. Nor are faith groups, ethnic groups or civil rights organizations," Stump
"Like the Senate bill, this House version is tough yet also reasonably fair
and will provide enough slots to boost our economy, help American businesses,
and keep American families together," Stump said. The House bill replaces the
Senate bill's expensive "border surge" package with the bipartisan border
security bill that passed the House Homeland Security Committee earlier this
"We call on Speaker Boehner to bring comprehensive immigration reform to the
House floor. By AILA's count, there are enough Democrats and Republicans who
support reform to get a bill passed in the House. He should bring everyone
together and get the job done. Put aside your differences for one moment and
allow the needs of the many to overcome the strident rhetoric that has consumed
so much of the political process. This is what Americans want and what America
needs," he concluded.
CIS Ombudsman: The CIS
Ombudsman's Office will be closed and will not be accepting any inquiries
through their online case intake system.
OFLC functions are not "excepted" from a shutdown and its employees would be
placed in furlough status should a lapse in appropriated funds occur.
Consequently, in the event of a government shutdown, OFLC will neither accept
nor process any applications or related materials (such as audit responses), it
receives, including Labor Condition Applications, Applications for Prevailing
Wage Determination, Applications for Temporary Employment Certification, or
Applications for Permanent Employment Certification. OFLC's web site, including
the iCERT Visa Portal System and the PERM system, would become static and unable
to process any requests or allow authorized users to access their online
DOL's Office of Administrative Law Judges will be unable
to perform any case-related activities, including conducting hearings.
Hearings that have been previously scheduled will therefore be cancelled prior
to the date of the hearing, and they will not be rescheduled for hearing until
an appropriations bill or continuing resolution takes effect.
DHS: Due to the lapse in federal, DHS’s
website will not be actively managed.
DOS: The Department will continue as many normal operations
as possible; operating status and available funding will need to be monitored
continuously and closely, and planning for a lapse in appropriations must be
continued. Review their “Guidance
on Operations” for more information.
EOIR: EOIR has indicated that its response to a potential
shutdown is the same as it was in 2011. EOIR has been advised to "put its
shutdown plans in place." As with other agencies, personnel who are not
considered "essential" will be furloughed. EOIR has indicated that the detained
docket would likely be considered an essential function and would therefore be
able to continue in operation.
Update from EOIR on October 1, 2013: Court functions that support the
detained caseload will continue, but other functions are suspended. The Board of
Immigration Appeals (BIA) is processing emergency stay requests as well as cases
where the alien is detained, including case appeals, motions, federal court
remands, and bonds. Please review their
notice for more information.
ICE: From ICE Community Outreach - ICE detention and
enforcement operations shall continue. ICE chief counsel trail attorneys will
still work on the detained docket only during a shutdown. Please coordinate with
your local Chief Counsel Office on more specifics. The ICE Community and
Detainee Helpline will remain operational.
USCIS: All USCIS
offices worldwide are open and individuals should report to interviews and
appointments as scheduled. E-Verify is currently unavailable due to a government
The U.S. diversity (DV)
immigrant visa lottery for fiscal year 2015 opens on Tuesday, October
1, 2013 and will remain open for entries until November 2, 2013. This
year, the U.S. government has 50,000 immigrant visas available through the DV
lottery and subsequent DV visa application process.
As in previous years, the Department of State
(DOS) will select about 100,000 entries as “winners” and then through a process
of elimination, 50,000 DV immigrant visas will actually be issued. At
least half of the “winners” will be eliminated either due to technical errors,
the applicant’s failure to meet the minimum education or experience
requirements, or because the application was not approved before the
September 30th cut-off date.
Incorrectly Submitted Lottery Entries
The DV program has a deceptive appearance of
simplicity, but has numerous pitfalls. These include rigid and technical
qualification requirements, such as being born in (as opposed to being a
citizen of) a country from among those listed as
qualifying countries by the Department of State docs/DV_2015_Instructions.pdf as well as specific
minimum educational (a G.E.D. is not accepted as the equivalent of a
high-school degree) or work experience requirements. These rigid pitfalls
end up disqualifying thousands of distraught lottery winners every year.
DV Visa Application Cut-off Date
The DV immigrant visa is a “Cinderella visa.”
If not completed prior to midnight on September 30, the end of the government’s
fiscal year, it disappears. This means once notified of selection,
numerous qualification steps must be completed prior to September 30 of the
relevant year. The 2015 DV lottery opens October 1, 2013, and
those selected will have until September 30, 2015 to complete the
entire process and receive the DV visa.
Presently entrants will have to check their
lottery results online as no notifications of winning will be issued by
the government. Starting on May 1, 2014, and continuing for the 16-month
period through at least September 2015, DV lottery entrants will have to
periodically check to see if DOS has updated their online lottery status.
If so, the clock starts ticking for that lottery winner to prepare and submit
their DV visa application right away. Historically (and again
anecdotally), this has resulted in tens of thousands of DV lottery winners
finding themselves unable to reach the finish line by the deadline.
USCIS has released an update on the processing times for I 526 Investor Petitions also known as the Immigration Petition for Alien Entrepeneurs. Petitioners have grown accustomed to adjudication of these Petitions taking 6-9 months. The latest update provided by USCIS is that Petitioners can expect these Petitions to take 16 months to approve. As of July 31, 2013, USCIS is working on I526 petitions filed in March 2012.
This delay in processing can have a significant impact where the Petitioner has invested $500 000 to $1 million dollars in a business but would have to conceivable wait 16 months for I526 approval and then a minimum of an additional 6 months for consular processing to be able to come to the United States to manage their investment.
In recent weeks, U.S. Citizenship and Immigration Services (USCIS) learned of a new telephone scam targeting USCIS applicants and petitioners. Scammers are using a technique called “Caller ID spoofing” to display a misleading or inaccurate phone number in a recipient’s Caller ID. The scammer poses as a USCIS official and requests personal information (such as Social Security number, passport number, or A-number), identifies supposed issues in the recipient’s immigration records, and asks for payment to correct these records.
If you receive a call like that, USCIS urges you to say “No, thank you” and hang up immediately. USCIS never asks for any form of payment or personal information over the phone. Do not give payment or personal information over the phone to anyone who claims to be a USCIS official. In general, we encourage you to protect your personal information and not to provide details about your immigration application in any public area.
If you have been a victim of this telephone scam, please report it to the Federal Trade Commission at https://www.ftccomplaintassistant.gov/, or report it to an appropriate state authority. (Visit www.uscis.gov/avoidscams for information on where to report scams in your state.)
If you have a question about your immigration record, please call the National Customer Service Center at 1-800-375-5283, or make an InfoPass appointment by visiting our website at http://infopass.uscis.gov/.
On June 25, 2013, the United States Supreme Court struck down Section 3 of The Defense of Marriage Act (“DOMA”) on broad equal protection grounds finding that there is no legitimate reason for the federal government to discriminate against married couples based on their sexual orientation. This decision may change the way the entire world thinks about the institution of marriage.
Until now, U.S. Immigration law did not allow U.S. citizens, permanent residents or non-immigrant visa holders to obtain American immigrant benefits for their same-sex spouses. Bi-national gay couples now have the same immigrant and non-immigrant visa rights as heterosexual married couples.
So How Do You Go about Sponsoring your Same-Sex Spouse?
The immigration procedures for sponsoring a spouse is the same as for heterosexual couples and involves as an initial step filing a Form I130 Petition for Alien Relative with United States Citizenship and Immigration Services (“USCIS”). At this stage, one would provide proof of the marriage and submit a valid marriage certificate, proof of US citizenship, the passport and birth certificate of the foreign spouse and other pertinent information. It is taking approximately 5-6 months for this stage of the application process to be approved. The procedure to obtain the actual green card or second stage of the application will depend on where the spouse is located.
What if My Spouse is Already Living in the United States?
If your spouse is already in the United States, an I485 adjustment of status application may be concurrently filed with the I130 application described above together with several other forms including but not limited to an affidavit of support evidencing you or a joint sponsor can support your spouse, an application for work authorization and a travel permit to allow your spouse permission to travel outside the United States while the application is pending if your spouse lawfully entered the United States. The Immigrant spouse also submits the results of a medical examination from a USCIS approved doctor. Within a month of filing, your spouse will receive a fingerprint appointment notice to have their fingerprints taken. Within approximately 3 months, they will receive a work authorization card and travel permit and can then apply for a social security number. You and your spouse will also be called for an interview at your local USCIS office where you will have to prove the marriage was in good faith. This can be done by evidencing your marriage certificate, joint bank accounts, photographs, proof of travel together, joint credit cards, joint insurance, affidavits from people who know you and any other evidence you have. If your spouse’s permanent residency application is approved, they will receive a Conditional Green Card which is valid for two years. The entire process is currently taking approximately 6-8 months.
What if My Spouse is Living Outside the United States?
A foreign spouse who is the beneficiary of an approved I130 immigrant petition referenced above, and who is living outside the United States may apply at a U.S. Consulate abroad for an immigrant visa in order to come live and work in the United States as a permanent resident. This pathway is referred to as “consular processing’. A visa is immediately available for spouses of U.S. Citizens. Currently, spouses of permanent residents have to wait for a visa to become available.
Upon approval, USCIS will then send the approved I130 Petition to the National Visa Center (“NVC”) in the United States, which is responsible for the collection of visa application fees and supporting documents and will notify the petitioner and beneficiary when the visa petition is received. They will also notify the petitioner and beneficiary of when they must submit immigrant visa processing fees, affidavit of support and other forms for processing of the immigrant visa together with supporting documents.
NVC will then forward the pertinent files to the appropriate U.S. Consulate. Once the Consulate has reviewed all documents they will schedule the immigrant beneficiary for a medical exam with an immigration approved doctor. The consular office will also schedule the applicant for an interview. Depending on the Consulate, this process can take up to a year. The consular office will complete processing of the applicant’s case and decide if the beneficiary is eligible for an immigrant visa. If approved for an immigrant visa, the consular officer will give the immigrant beneficiary a packet of information. This packet is known as a “Visa Packet.” You should not open this packet. Upon arrival in the United States, the immigrant beneficiary will give the Visa Packet to the Customs and Border Protection officer at the port of entry. You will be inspected by a Customs and Border Protection officer and if found admissible, will be admitted as a permanent resident of the United States, which gives you the authority to live and work in the United States permanently. You should be mailed your green card within 30 days of your arrival in the United States. You are typically given 6 months from the date of your interview to enter the United States.
What if I am not ready to uproot and permanently move to the United States.
U.S. immigration law assumes that a person admitted to the United States as an immigrant will live in the United States permanently. Ideally, one should not be outside the United States for more than 179 days at time. However, remaining outside the U.S. for more than 12 months at a time may result in the loss of your legal permanent resident status and your green card may be taken away. For many of my clients, who have employment and family obligations outside the United States, I advise them, at a minimum, to come to the United States at least every 364 days, file U.S. tax returns annually and maintain some ties to the United States in order to maintain their permanent residency status. If coming to the United States at least once every 364 days is not feasible, the foreign spouse may apply for a reentry permit which allows them to be absent from the United States for two years at a time. In our experience, this should be used sparingly and cannot be issued more than three times.
How do I Lift the Conditions on My Permanent Residency
As previously states, spouses are initially provided with conditional permanent residency valid for two years. After 1 year and 9 months of conditional permanent residency, your foreign spouse can apply to lift the conditions on permanent residency. If you are still married, you will file a joint application. If divorced, the foreign spouse will provide your divorce decree and file on your own. In both instances you will provide evidence that the marriage was in good faith. If Immigration is satisfied, you will be mailed your permanent Green card.
What about U.S. Citizenship
After you have maintained permanent residency for 3 years based on marriage, you can apply for U.S. citizenship. You would have to have permanently lived in the United States for at least 548 days in the 3 years prior to filing your citizenship application. These days do not need to be in one block of time but as a whole should add up to at least 548 days.
Implementation of the Supreme Court Ruling on the Defense of Marriage Act
Statement from Secretary of Homeland Security Janet Napolitano:
“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”
Frequently Asked Questions
Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?
A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.
Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?
A2: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.