Immigration Blog

by David Tuteur David Tuteur No Comments

It Only Takes $1.8 Million to Get a Green Card

DHS releases updates to EB-5 Investor Visa Program.

100 Chinese yuan banknotes

Do you just happen to have $1.8 million lying around? If so, you might be eligible for an EB-5 visa. For the first time since 1992, the Department of Homeland Security (DHS) is updating the rules for the EB-5 investor visa program, which will go into effect in November of this year.

The EB-5 investor visa program was first enacted in 1990 as a way to attract foreign investors to the U.S. economy. Investors and their family members are eligible to apply for a Green Card and gain permanent resident status if they invest the required amount and create at least 10 full-time permanent jobs in the process. In 1992, Congress created the Regional Center Program, which allows some entrepreneurs to invest in designated regional centers that are meant to promote economic growth and job creation.

The EB-5 Program has a limit of 9,940 visas available annually and also limits the percentage that can be allocated to certain countries each year. At least 3,000 EB-5 visas must be reserved for TEA (Targeted Employment Area) investors. TEAs are meant to address locations with the most economic need and include rural areas and areas with high unemployment rates. Just as with any other visa, the demand for EB-5s is high. Priority dates are current for all countries except China, India, and Vietnam, which are backlogged to the year 2014. The majority of applicants are Chinese investors, who make up approximately 85% of EB-5 visa holders.

Updates to the EB-5 Program

The EB-5 Program has remained unchanged for almost 30 years. The DHS is finally rolling out updates, including changing the required minimum investment from $1 million to $1.8 million and increasing the minimum TEA investment from $500,000 to $900,000 to account for inflation. The amounts will increase every 5 years according to inflation to ensure that the program stays current.

Under the updated program, designation of high-unemployment TEAs will now be directly reviewed by the DHS, instead of deferring to state and local governments. The definition of high-unemployment TEAs has been clarified to include non-metropolitan towns with populations of 20,000 or more with an average unemployment rate of at least 1.5 times the national average.

The updates also allow investors to use the earliest available priority date, meaning that if an investor already has an approved EB-5 application, their priority date for that application effectively rolls over to their newly filed EB-5 application.

Problems with Fraud

The updated program doesn’t make changes to policies regarding fraud, which has been an ongoing problem with the EB-5 program since its inception. Investors continue to be vulnerable to scams that promise them a visa and guaranteed returns on their investments. In recent years, the major suits brought by the SEC (Securities and Exchange Commission) against EB-5 defrauders include $350 million against a Vermont ski resort, $125 million against a Seattle skyscraper developer, and $89 million against a Chicago immigration attorney.

Since policies preventing fraud remain unchanged, it is still up to individual investors to ensure the integrity of the programs they’re investing in. Back in 2013, US Citizenship and Immigration Services (USCIS) and the SEC issued an alert to investors and instructions on scam avoidance that can still be helpful today. Some of these guidelines are listed below.

Investor Tips for Avoiding EB-5 Fraud
  1. Know the warning signs of fraud, including promises of visas, guaranteed returns on investment, or representations that there is zero investment risk.
  2. Confirm that the regional center is USCIS-designated.
  3. Request copies of the center’s past investment information.
  4. Ask if promotors of the center are being paid.
  5. Seek independent verification of records, such as permits, tax assessments, and confirmed investment from other companies.
  6. For the complete list, read the full 2013 Investor Alert.
by David Tuteur David Tuteur No Comments

Not Your Grandfather’s Immigration System

A brief history of immigration restrictions in America and how they have changed over time.greyscale photo of men

If you are an American citizen, there’s a pretty strong chance that you are descended from immigrants. Different generations of immigrants have had to face their own unique sets of problems, but many would find today’s immigration system virtually unrecognizable.

Barriers to Entry

While the 18th and 19th centuries posed physical barriers to immigration, such as the Atlantic Ocean, it turns out that many of these immigrants did not face any legal barriers to entry into the United States once they arrived. In fact, it wasn’t until 1875 that the U.S. enacted its first restrictive immigration statute, which banned entry to criminals, and later included people with contagious diseases, anarchists, beggars, polygamists, and traffickers of prostitutes. Up until 1875, the only action a person had to take in order to immigrate lawfully was to show up.

Starting in 1882 and continuing through 1943, Chinese laborers were banned from immigrating to the United States, and from 1917 through 1952, the U.S. banned immigrants from most Asian countries.

The 1996 Illegal Immigration Reform and Immigrant Responsibility Act increased enforcement with mandates to build fences on the Southwest border. Under the 2002 Homeland Security Act, the duties of the U.S. Immigration and Naturalization Service (INS) were transferred to the newly created Department of Homeland Security (DHS), which now includes Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS). Created in response to 9/11, the DHS is actually the United States’ youngest cabinet department.

Barriers to Citizenship

Historically, one of the largest barriers to citizenship was race. Under the 1790 Naturalization Act, a free white person could naturalize after 2 years of residence if they possessed “good moral character.” This act formally barred citizenship to any non-white person.

After the Civil War, the Naturalization Act of 1870 allowed people of African descent to naturalize. It wasn’t until the 1952 that race was removed as a legal exclusion to immigration and naturalization.

Now, becoming a United States citizen involves an extensive ten-step process that includes filling out form N-400, completing a personal interview, and passing the U.S. Naturalization Test.

History of Deportation

In the past, deportation was limited to those who posed a serious danger to society. The 1798 Alien Friends and Enemies Acts were the first acts to authorize deportation of immigrants and included those who were either deemed dangerous to the U.S. or were citizens of a hostile nation during wartime. A version of the Alien Enemies Act is still in effect today.  The 1882 Chinese Exclusion Act allowed the deportation of unauthorized Chinese immigrants.

Now, grounds for deportation apply to people who violate any law, including non-violent crimes and misdemeanors, and even those who fail to fill out a change of address form. From 1996 through today, policies enforcing deportation have been widespread, with roughly 5.77 million people deported between 1997 and 2016.

Introduction of Quotas

The concept of quotas is relatively new. The 1921 Emergency Quota Act was the first to create nationality-based immigration quotas with a cap of 350,000 that did not apply to countries in the Western Hemisphere. In 1924, the cap was almost cut in half at 165,000, and only people eligible to become citizens (whites and people of African descent) were allowed entry into the U.S.

Following the Chinese Exclusion Repeal Act of 1943, roughly 105 Chinese immigrants were allowed to immigrate each year. In 1952, Asian countries were granted a minimum quota of 100 visas per year.

In 1965, a new system was created favoring skilled immigrants and family reunification over quotas. The system also imposed the very first limits on immigration from the Western Hemisphere.

Now, USCIS often places a cap on the number of visas available, and different skillsets and personal situations are prioritized based on the availability of certain types of visas, making the U.S. immigration system one of the most selective and difficult to navigate in the world.

by David Tuteur David Tuteur No Comments

Keeping an Eye on the I-9 Minefield

Employers see first return of no-match letters since 2011.white printer paper

This March, the Social Security Administration (SSA) started sending letters to employers whose name and social security number (SSN) for one or more of their employees do not correspond to SSA records, also known as “no-match” letters. No-match letters might come about due to typographical errors, unreported name changes, or inaccurate or incomplete employer records.

Navigating the I-9 process is already complicated, and employers who violate these requirements can face fines and serious criminal charges. While receiving one of these letters isn’t immediate cause for alarm, it certainly is something to take seriously.

Though no-match letters are issued by the SSA, they arose out of I-9 audits by ICE that took place over the past two years and will likely lead to immigration enforcement. Unbeknownst to some employers, these I-9 audits were probably driven by leads that ICE received from various enforcement tools, like undercover work, E-Verify, USCIS application processing, and identity theft complaints. ICE believes that under certain circumstances it can request no-match data from the SSA. While there is a defense to this claim, ICE still may be able to access no-match data during the course of an I-9 audit.

What to do if you receive a no-match letter


For Employers

  • Should I respond to the no-match letter?
    • Yes. The new policy gives employers 60 days to respond. As noted above, the discrepancy might just be a typo or an oversight. However, in the case that the letter points to an employee who is unauthorized to work in the U.S., an unaddressed no-match letter can partially show that you had constructive knowledge of the situation, which could lead to criminal prosecution of your corporation, executives, and/or managers.
  • What process should I follow?
    • Check the reported information against your records.
    • Inform the affected employee that you have received a no-match letter.
    • Ask the employee to confirm their name and SSN for your records, and submit any corrections to the SSA.
    • Advise the employee to contact SSA and correct or update their SSA records.
  • What other information do I need to know?
    • Be sure to give the employee a reasonable amount of time to address the no-match with the SSA, but you can also check in on their progress periodically.
    • Do not attempt to request that the employee immediately fill out a new I-9 based on the no-match letter, and do not ask the employee to produce specific I-9 documents.
    • Be sure to follow the same procedures for all employees in a fair and non-discriminatory manner.

For Employees

  • What process should I follow?
    • If you receive a no-match letter at home, do not notify your employer, as your employer might not have received a letter.
    • If your employer informs you that they have received a no-match letter for you, ask for a copy of the letter and your W-2 form.
    • Confirm whether your name and SSN match their records, and provide any corrections to your employer and the SSA, if applicable.
    • Don’t lie. If you showed your employer false ID or work authorization documents when you were hired, do not show these same documents to your employer again, as this can get you in legal trouble.
  • What are my rights?
    • Like all people working in the U.S., you have the right to:
      • Remain silent about your immigration status
      • Work without retaliation
      • Organize with coworkers
      • Be compensated for your work
    • Keep in mind that your employer cannot terminate or suspend you based solely on their receipt of a no-match letter.
    • Your employer also cannot ask you for proof of your immigration status or your eligibility to work based solely on their receipt of a no-match letter.
  • How can I protect myself?
    • First, keep calm and do not quit your job. Remember that receiving a no-match letter does not mean you are unauthorized to work in the U.S.
    • Do not talk to anyone at work about your immigration status, as it could cause legal problems for both you and them.
    • Tell your employer that you want someone else present in meetings about the letter, including a coworker, community advocate, or union representative.
    • Reach out to a community organization, like the Colorado Immigrant Rights Coalition, for support.
    • If you’re part of a union, contact your union representative right away, as you may have additional rights as a union member.
    • Click here to see the National Immigration Law Center’s “Know Your Rights” web page.
by David Tuteur David Tuteur No Comments

Summer Internships Set to Begin in the Fall

International students’ summer work authorizations are facing significant delays at USCIS.

gray concrete dome building at daytimeMost students are well-acquainted with the feeling of stress that often comes with the task of finding an internship for the summer. For international students, though, the difficulties are just beginning once they receive a summer job offer.

The work authorization process has been particularly burdensome this year, and with July just around the corner, international students across the nation are still waiting on their visas for summer jobs. Some students who received their authorization late have been able to keep their positions and push back their start dates. Others have not been so lucky—many students have lost their summer internships, found themselves in financially turbulent situations, or had to return home for the summer.

While many international students are able to rely on their parents to borrow money, others have the burden of partially or fully supporting their families. Not only did many lose their expected income over the summer, but some now have nowhere to live, lost their housing deposits, or lost money on flights to other states. At Princeton, only 10 out of 90 applicants have received their summer work authorization, and many of those 10 students still missed the start dates for their positions.

So what’s the hold-up on all these applications? Everyone familiar with the immigration system knows that delays are inevitable, but it turns out that the process hasn’t always been this slow. According to a report released this year from the American Immigration Lawyers Association (AILA), the processing time for immigration-related applications and petitions has actually increased by almost 50% in just two years, and those processing times kept increasing in 2018, even when the case volume was diminishing. The estimated backlog in 2017 was over 2.3 million cases, more than double the amount from the previous year.

For international students seeking summer work, the delay is mostly affecting applicants for the Optional Practical Training (OPT) program, which allows F-1 students to work at a job in their major area of study for up to a year. The process involves requesting that a school official recommend the OPT be granted, after which the student must file an I-765 Application for Employment Authorization form along with supporting documentation and a non-refundable fee of $495.

Students are also restricted from applying until at least 90 days before the end of the school year. In past years, the 90-day restriction wasn’t a problem, as it matched up with the maximum wait time, and was usually taken care of within 60 days. This year, USCIS predicts the backlog could be up to five months, meaning that students who applied as early as possible back in February might not get authorized to work at their summer jobs until mid-July.

Schools are jumping into action to try to address this problem. At Yale, administrators have come up with a short-term solution by offering a course that would allow the university to authorize summer work instead of the federal government. In a letter to the New Jersey Congressional Delegation Regarding Immigration, presidents from colleges and universities across New Jersey expressed concern about the increased barriers for international students, faculty, and staff. The schools have been seeing decreases in foreign student enrollment, and graduate students and faculty have missed or deferred for an entire semester because of delays at the State Department. The universities attribute this delay, at least in part, to additional background checks and the increasing number of requests for evidence (RFEs), which more than doubled in 2017.

The letter says that “Visa applicants are generally not provided with any explanations, nor are they told how long the additional processing may last…. This harms not only the students, but also the employers seeking to hire qualified, U.S.-trained workers for a practical training opportunity.” It continues, noting that these situations “create a frustrating and sometimes hostile environment for those wishing to live in and contribute to our communities.”

While schools are doing what they can to plan for future problems, there’s only so much they can do for applicants this year. In the meantime, the summer months are almost halfway gone, and some students may still be waiting on their application results when they return to school in August.

by David Tuteur David Tuteur No Comments

New York Gives Immigrants the Green Light

The New York State Senate approved a bill on Monday that allows undocumented immigrants to obtain driver’s licenses.

vehicles on streetNobody really likes going to the DMV. But it’s a necessary annoyance that we’re actually lucky to endure, because it enables us to drive safely and legally on the roads. In New York, the latest group of people to join us all in complaining about going to the DMV is undocumented immigrants.

The bill, known as “Green Light NY,” reverses a 20-year-old rule requiring driver’s license applicants to have a social security number. Before 2001, immigration status had no effect on driver’s license eligibility in NY, but fears about national security after the 9/11 attacks instigated a push for stricter requirements.

Proponents of the bill say that it is helpful for everyone living in New York because it will decrease the number of hit-and-runs, reduce insurance rates for New Yorkers, and provide around $50 million in revenue for the state. The bill will also make a big difference for New York’s undocumented immigrant population, which includes almost 1 million people.

These predicted benefits are probably right on the money. Four years ago, Connecticut started allowing undocumented immigrants to obtain driver’s licenses. In just two years, hit-and-runs decreased by 9%. The Connecticut courts are less busy, as well, while the number of people found guilty of unlicensed driving over the past four years has decreased by 4,000.

New York is now one of thirteen states and D.C. that allow undocumented immigrants driving privileges. Among those states is Colorado, which is home to approximately 162,000 unauthorized immigrants. The law, called the Colorado Road and Community Safety Act, has been in place since June 2013.

The other states include California, Illinois, Washington, New Mexico, Nevada, Utah, Hawaii, Delaware, Maryland, and Vermont.

by David Tuteur David Tuteur No Comments

Percentage of U.S. Workers Who Are Foreign-Born Reaches 20-Year Peak

On Thursday, the Bureau of Labor Statistics, a division of the U.S. Department of Labor, released a report on labor force characteristics involving foreign-born workers.  According to the report, foreign-born workers now account for 17.4% of all U.S. employees, which is the highest percentage ever recorded since the U.S. Department of Labor began tracking the statistic two decades ago.  In 2000, the share of the labor force that was foreign born was 13.3 percent.

The report defines “foreign-born” individuals as those who reside in the United States but who were born outside the United States and neither parent was a U.S. citizen.  Foreign-born individuals include legally-admitted immigrants, refugees, temporary residents such as students and temporary workers, and undocumented immigrants.

Among other highlights in the report is that foreign-born men participate in the labor force at a rate over ten percentage points higher (77.9 %) than native-born men (67.3%).  Additionally, the median weekly earnings of foreign-born full-time workers ($758) is significantly less than the median weekly earnings for native-born workers ($910).

The difference in earnings reflects several factors including differences in education levels, occupation, industry of work, and geographic region.  As for education levels, the proportion of the foreign-born labor force age 25 and over that had not completed high school was 21.2 percent in 2018, much higher than the figure for the native-born labor force, at 4.1 percent.

While native-born workers earn more than foreign-born workers at most educational attainment levels, there is a relatively small gap between the earnings of foreign-born and native-born workers who have a bachelor’s degree and higher.  Among those with a bachelor’s degree and higher, the earnings of foreign-born workers ($1,362) were actually slightly higher than the earnings of native-born workers ($1,309).

by David Tuteur David Tuteur No Comments

Asylum Seekers Face Mandatory Detention After New AG Decision Denies Bond Hearings

On April 16th, Attorney General William Barr issued a decision in Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019), overturning a Board of Immigration Appeals (BIA) decision that had been the governing law for the last fifteen years.  Previously, some noncitizens who were transferred to “full” removal proceedings from “expedited” removal proceedings, based on a finding that they had a credible fear of persecution or torture, were eligible to be released from detention on bond.  Only some aliens so transferred, and those who remained in expedited proceedings, faced mandatory detention until their case was fully resolved.  Specifically, the BIA had ruled that “arriving” noncitizens, such as those coming into the U.S. at a port of entry, must be detained, but all other transferred noncitizens were eligible for bond.

The Attorney General’s new decision reversed the BIA’s ruling.  Now, unless paroled under INA §212(d)(5)(A), all noncitizens transferred from expedited to full removal proceedings based on a credible fear finding face mandatory detention until their asylum claim is decided; a process that can last months, or even years.

Notably, Matter of M-S- does not apply to unaccompanied minors nor families with children.  Under a 1997 decision, Flores v. Reno, often called the “Flores Agreement,” unaccompanied minors and families with children cannot be held beyond 20 days if they clear the credible fear screening.

Pending litigation on the constitutionality of holding noncitizens in mandatory detention beyond six months could prevent the change from going into effect, but barring an injunction, Barr’s decision will go into effect in July.  If the change goes into effect, it would tax an already heavily burdened court system and put new pressures on Immigration and Customs Enforcement (ICE) detention centers.  The Washington Post reports that detention centers run by ICE are holding a record 50,000 migrants, more than Congress has authorized, and some 400 immigration judges face a backlog of over  800,000 cases, which means that new cases are regularly scheduled for 2021 and beyond.

This latest development has added to the number of people calling for an independent court system outside of the Justice Department.  As the current immigration courts are part of the Justice Department, the Attorney General can unilaterally overrule cases that have been decided by the BIA.

by David Tuteur David Tuteur No Comments

Foreign Worker Talent Still Essential Despite More Difficult Process, U.S. Employers Say

In the latest edition of its Immigration Trends Report, the immigration firm Envoy Global says that up to 95% of United States employers believe that foreign nationals are important to their company’s talent acquisition strategy.  The report gathered responses from over 400 human resources professionals and hiring managers.  80% of employers said that, when compared to last year, they expect their foreign national headcount to either increase or stay the same.

Foreign workers are especially important in the science and technology fields; while less than 1% of all U.S. jobs are performed by foreign workers, they account for over 12% of all tech employees.  William Kerr, a professor of business administration at Harvard Business School, noted in the report that “immigrant talent now accounts for one in every 3.5 inventions in America, a dramatic growth from the 1970s, when foreigners contributed one in 12 patents.”

While U.S. companies rely on immigration for their future success, they are also reporting that the immigration process has become more difficult for them; 47% of respondents said their company’s visa application process has become more difficult compared with earlier years.  Envoy Global CEO, Richard Burke, reports that employers “confronted material increases in requests for evidence (RFEs), case denials, site visits, and new policy memos.”  Overall this has resulted in “heightened anxiety and uncertainty among foreign nationals, HR professionals and hiring managers.”  When asked whether RFEs had increased for their employees over the last five years, over half of respondents said yes.  RFEs are notices that agency officials send to applicants seeking more information for their applications, even after an application has been finalized and submitted to the agency for processing.  The report’s findings align with other data which shows that the share of RFEs issued for H-1B cases jumped to 60% in late 2018, a large increase from the 28% in the same period two years prior.

by David Tuteur David Tuteur No Comments

USCIS Plans to Close All International Field Offices

According to current and formal officials and an internal memo, U.S. Citizenship and Immigration Services (USCIS) is planning to close oversees offices that currently handle family visa requests, international adoptions and other tasks.  According to people with knowledge of the meeting, the director of USCIS, L. Francis Cissna, told senior staff members this week that the international division, which has 24 field offices in 21 countries, would close down by the end of the year.

USCIS Spokeswoman Jessica Collins confirmed that the agency “is in preliminary discussions to consider shifting its international USCIS office workloads to USCIS domestic offices in the United States and, where practicable, to U.S. embassies and consulates abroad.”

Officials at USCIS claim that closing the international field offices would save millions of dollars each year, but as Enrique Gutierrez and John Santos, media directors at the Democratic National Committee, said in a statement “the administration’s explanation that the move is an effort to cut government spending does not hold up since USCIS’s funding comes primarily from fees paid by people who use its services.”  Agency officials also claim that the move is intended to provide more staff resources to handle the backlog of asylum applications.

The international field offices currently provide, among other things, logistical assistance to U.S. Citizens, lawful permanent residents, and refugees seeking to bring family members to the United States, asylum seekers who wish to come to the U.S., Americans who adopt children internationally, and members of the military and their families applying for citizenship.

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For the second year in a row, the number of international student applications and enrollment in U.S. institutions has declined. Based on a survey of 240 institutions who contributed data for both 2017 and 2018, the Council of Graduate Schools (CGS) reports that the overall number of graduate applications from prospective international students fell by 4%.  Between 2016 and 2017, the number of applicants had fallen by 3%.  While the number of doctoral applications increased by 1% between 2017 and 2018, the overall decline was driven by a 6% decline in master’s applications.

In a February 7th press release, CGS President Suzanne Ortega noted that “This is the first time we’ve seen declines across two consecutive years, and while we think it’s too soon to consider this a trend, it is troubling.”  While the survey report does not reach any conclusions as to the reason for the decline, the CGS President pointed to “issues, including changes in immigration and visa policy, with growing concern over the possible negative impact to the U.S.’s image as a welcoming destination for international students and scholars.”

Many commentators attribute the decline to increasingly burdensome U.S. immigration policies. One such change rescinded a 2013 policy which required USCIS adjudicators to request additional information from applicants before denying applications. The new policy gives USCIS adjudicators “full discretion to deny applications, petitions, or requests” without seeking additional information.

Another policy change is particularly worrisome for F-1 student visa holders, the most popular student visa. One of the statutory bars to future admissions into the U.S. is known as the “unlawful presence” bar.  Any alien who accrues more than 180 days, but less than a year of unlawful presence is prevented from re-entering the U.S. for three years.  Those who accrue a year or more of unlawful presence are barred from re-entry for ten years.  Previously, F visa holders started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed.  Under the new policy, F visa holders now start accruing unlawful presence the day after they no longer pursue a course of study, or the day after they engage in an “unauthorized activity.”  This means that international students could start accruing unlawful presence without ever having been formally notified that they are doing so.  These policy changes may be creating a chilling effect on international students’ decision to come to the U.S. for education.