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President Obama announced tonight in very broad terms that he would expand “deferred action” to millions of undocumented immigrants beyond the DACA program of 2012 (Deferred Action for Childhood Arrivals). The new program, to begin in 2015, will benefit the following groups of people who choose to step forward out of the shadows for a less than perfect immigration status. Deferred action is NOT a green card/permanent residence, a visa, citizenship, amnesty nor legalization. It just defers or delays potential deportation for two years but does offer the opportunity to work during those three years.

Eligible Groups for Deferred Action:

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President Obama is scheduled to announce his plan for Executive Action on immigration tonight at 5pm PST. Most of the networks will NOT be carrying his speech. However, CNN, MSNBC, Telemundo and Univision among others will, although this could change later today. If you miss it, the White House will have a recording here. Most of the controversy between the Democrats and Republicans is over what to do with the millions of people living in the US without legal papers. However, Executive Action will hopefully also encompass some administrative fixes to the legal immigration system, both for family and business immigration. President Obama is also predicted to make some changes to enforcement and border security, which could mean more deportations and problems for certain classes of undocumented immigrants as well as for those trying to get to the US without proper papers.

Relief for more of the undocumented? Things to consider.

Whatever relief President Obama offers to a wider group of undocumented immigrants, people should be aware of these important points:

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I previously posted two articles about the American immigration Lawyers Association‘s (AILA) letter to President Obama recommending administrative or Executive Action to fix the nation’s immigration laws due to inaction by Congress. Here, I want to add some more ideas that could be accomplished by Executive Action that do not require an Act of Congress. By way of review, in my prior post, Executive Action – Business Immigration Fixes Needed, I discussed the recommendations made by AILA including:

  • Create Better Pathways for Immigrant Entrepreneurs
  • Amend the definition of “related or affiliated” for H-1B cap exempt purposes
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This blog posts follows up to an earlier post, Executive Action – Business Immigration Fixes Needed, discussing the American Immigration Lawyers Association (AILA) letter to President Obama of August 6, 2014 requesting Executive Action. AILA recommended additional fixes to family immigration, prosecutorial discretion and enforcement related issues that could be achieved administratively in the face of Congressional inaction on statutory changes.

AILA states that “the guiding principle for administrative actions should be to advance our national interest, which includes: supporting family unity, promoting economic growth, and improving processes.”

Expand Deferred Action.

AILA advocates expanding the 2012 Deferred Action for Childhood Arrivals (DACA) program to a wider group including:

  • Parents of U.S. citizens;
  • Parents of DACA-eligible individuals; and
  • Individuals who have resided in the U.S. for three years or more.

Further, DACA should include work authorization, as in the present DACA program, but USCIS should tweak the requirement for advance parole (a travel document) to be based on a wider range of travel needs beyond just “emergent circumstances.”

As a reminder, deferred action is NOT “amnesty; it is NOT a visa; it is NOT a green card or citizenship. It is a temporary fix given in two-year increments prohibiting deportation of individuals who are out of status until Congress gets around to more fundamental statutory changes for this population.

Do Not Count Derivatives Toward the Overall Visa Quotas.

This was mentioned in the business immigration context in the prior post, Executive Action – Business Immigration Fixes Needed. By not counting derivative spouses and children (single and under 21), more visas would be freed up for principals stuck in family based quotas (every category/every country) that could result in shorter backlogs.

Expand the Use of Parole-in-Place (PIP).

Section 212(d)(5) of the INA provides the Secretary of Homeland Security with the authority to parole into the U.S. temporarily, under such conditions as he or she may prescribe, on a case-by-case basis, for urgent humanitarian reasons, or significant public benefit, any alien applying for admission to the United States. Parole is like a legal fiction – the body is here, the status is not of nonimmigrant, permanent resident or US citizen, but the person is here with a defined permission under the circumstances above. Parole is very important as it is one of the grounds besides a formal admission in which someone can complete their green card process in the USA called “adjustment of status.” Right now, most people who entered illegally cannot file for adjustment and must instead consular process their green card application, whether business or family based. Leaving U.S. to go to the consulate then triggers the 3 or 10-year bar to readmission, thus requiring a waiver of inadmissibility and further delaying the case. A grant of parole in place would allow a person to avoid consular processing and the waiver in most cases. And it would be useful for those who do not have qualifying members for the waiver nor proof of extreme hardship. (See below.)

Currently, USCIS only uses PIP for family members of active duty and veteran military personnel. But, AILA advocates that its use be expanded to other non-military related individuals with US citizen or permanent resident parents, children or spouses.
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On August 6, 2014, the American Immigration Lawyers Association sent a letter to President Obama recommending administrative fixes or executive action to tweak the business immigration system in light of Congressional failure to pass an immigration reform bill. The list of recommended actions are within the realm of administrative law and existing statutes. Only Congress can change or amend statutes, including underlying visa categories, requirements and numbers. However, within the confines of those statutes, the administration, charged with carrying out the law, can make regulatory or policy fixes so long as they are consistent with statute. All federal agencies routinely issue implementing regulations and policy memos interpreting statutes and regulations. However, there is only so much the executive branch can do short of Congressional action required to change statutes. This post focuses on AILA’s recommended administrative fixes for business immigration.

Create Better Nonimmigrant Pathways for Entrepreneurs.

It has become harder for entrepreneurs to use the current immigration categories. In particular, the H-1B category requires an “employer-employee relationship” that USCIS has interpreted in a January 2010 memorandum. Historically, immigration law has treated a corporation as an entity separate and apart from its shareholders, permitting an owner-entrepreneur to found a corporation and the corporation to petition for the owner as an employee. The 2010 memorandum interprets the term “employer-employee relationship” for H-1B purposes to require the entrepreneur to give up significant control to a corporate board or to some other management entity. This is not the modern way of forming and growing start-ups. It is especially difficult if the person with the big idea and a big dream for a business is the foreign national who is forced to give up control of his or her dream. This can be a turn off to foreign entrepreneurs wanting to grow a company in the United States. AILA advocates that USCIS abandon this interpretation and adopt more flexible factors that can establish an “employer-employee relationship” that exist elsewhere in the law. This is important nationally to attract entrepreneurs. For example, in Seattle, Washington State, 19% of businesses are owned by foreign nationals (and 15% statewide).

AILA also advocates that USCIS enable more entrepreneurs to use the O-1 “extraordinary ability” nonimmigrant category and EB-1 extraordinary ability category by formally recognizing entrepreneurship as a valid basis for the O-1 and EB-1. This should include providing better information on the types of evidence that are unique to entrepreneurs that may establish eligibility for O-1/EB-1 status. Further, AILA advocates that entrepreneurship, job creation and potential economic development be recognized as favorable factors in adjudicating EB-2 “National Interest Waiver” (NIW) petitions.

Amend the Definition of “Affiliated or Related” to Provide Greater Relief from the Restrictions of the H-1B Cap.

USCIS received approximately 172,500 cap-subject H-1B petitions during the one-week April 2014 filing period for FY2015. The annual cap is only 65,000 visas (plus 20,000 for those with US Masters degrees.). These numbers are set by statute, i.e., Congress. Thus, USCIS had to hold a lottery. The H-1B program is a game of chance when the economy is growing and employers are hiring, with no predictability for employers to plan staffing. Further, there is only a one week period in April in which to file with this type of demand. Even then, if your candidate is selected in the lottery, the job cannot begin in H-1B status until the October immediately following the April filing period. What if you found your candidate in June or August or December? You’ll have to wait until the following April to file for a job that can’t begin until October! It’s outrageous! It’s hard to keep a straight face as an immigration lawyer when trying to explain the ridiculousness of this situation to a baffled employer who has found the perfect candidate to work on a project NOW.

Thus, AILA argues, until Congress fixes the numbers, USCIS could ease the high demand for H-1Bs loosening up its interpretation of cap-exempt qualifying nonprofit entities. Currently, they must be deemed to be “affiliated or related” to institutions of higher education, “through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary.” This definition is very narrow and impacts teaching hospitals and other nonprofit entities. A broader definition is needed because more universities are spinning off private start-ups including, from incubators, that help grow, mentor and nurture new businesses in our communities.
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On March 13, 2014, President Obama called for a review of the Department of Homeland Security’s (DHS) enforcement practices. However, this week he announced that he would delay this effort until summer’s end if Congress does not pass legislation in the remaining few legislative sessions before then. Hoping to extend an olive branch to the more restrictionist GOP House members, the President is hoping to give them a window of opportunity to take up immigration reform legislation in the coming weeks.

Almost a year ago, the United States Senate passed an immigration reform bill, S.744. But, the House of Representatives has never brought a reform bill for a vote on the floor. This is due in part to a deeply divided Republican party, where a minority of anti-reform representatives is holding the issue hostage in no small part because of mid-term elections. Most of these anti-reform Republicans are from gerrymandered, mostly white districts who hope to be re-elected or to elect more Tea Party favorites whose mantra is to oppose immigration benefits and to increase enforcement.

President Obama is caught in the middle, however. He has failed to satisfy immigrant advocates by his inaction in reviewing and humanizing deportation policies and improving immigration benefits adjudication trends. Yet, by merely suggesting he would review the policies, the Republicans have used their frequently used excuse to do oppose anything the President does by declaring him untrustworthy in implementing the law. Nonetheless, every day that goes by when Congress does not act on immigration reform, more families are being torn apart under a broken immigration system; businesses cannot hire the workers they need; and DHS will detain and deport another 1,000 people a day–many of whom could apply for legal status if reform is enacted.

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US Citizenship and Immigration Services (USCIS) is soliciting public feedback about the EB-5 immigrant investor program until May 8, 2014. USCIS established an “Idea Community” several months ago to broaden its outreach to stakeholders on a variety of topics. In a recent EB-5 stakeholder’s meeting held April 23, 2014, USCIS said it would solicit more input about the program overall as it contemplates forthcoming regulatory changes designed to address these issues: a) combating fraud, b) improving current regulations, c) substantive eligibility requirements and d) procedural filing requirements. This is a chance to be an advocate to help shape the future of this program. To participate in the Idea Community, however, one needs to set up an account with the online system. Once logged in, look for Active Campaigns on the left, which lists the EB-5 program. Participants can start an idea thread, vote in favor or against other ideas, and otherwise provide further commentary.

A quick review of the postings shows that many of the comments have to do with delays, both for the initial I-526 petition and the I-829 petition to remove conditions, both of which are running at about 11 months. Similarly, there are complaints about the lengthy time to adjudicate regional center project applications. Other issues include requiring more oversight about transfer of funds and authentication of documents, especially from China, use of SEC FINRA and Reg D rules, documentation of job creation, need for rules about transitioning between E-2 nonimmigrant treaty investor to EB-5 permanent investor status, and the need for premium processing.

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The H-1B cap situation is even worse than last year, which means employers are continuing to hire. USCIS announced today that it received 172,500 H-1B petitions for 85,000 available visas, compared to 124,000 last year. These were received at USCIS during the first week of April for the FY2015 filing season for specialty occupations with selected employees scheduled to begin work on October 1, 2014 (unless employees already have some underlying work authorization). Because the number of petitions far exceeds the supply, there will be a lottery. Unselected cases and fees will be returned to the petitioners or their attorneys. Such a large number of applicants for so few visas reflects yet again, that the H-1B cap introduced in the 1990s simply doesn’t work or match the needs of the economy.

During the recession, the number of filings was far fewer than in growth years. But even then, the cap was reached in a few months instead of a few weeks or a few days. Congress has quite the disconnect with employers’ needs. On the other hand, this year’s group of selectees may be pretty lucky for reasons other than numbers. S. 744 passed by the Senate last year, while raising the cap, would have also made the program much harder for employers to deal with in lots of other ways, especially those employers who place workers at third party sites. What Congress should really do, in this author’s opinion, is make a separate set of rules and numbers for third party placements so that their unique situation does not bleed into the needs of the majority of employers who do not conduct third party placements. Whatever Congress ends up doing in the future, if anything, if ever, it should be a program that can be easily understood, that is useful to employers, protects immigrant and US worker rights alike, and makes it predictable for employers to be able to know when and how they can assign H-1B workers to timely projects. Most employers are dealing with a fast paced environment, with quickly changing products, technologies and services over short life cycles. They need a predictable work visa system that matches the needs of employers all year long to staff important projects.

What H-1B filings are still available for the rest of the year?

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Immigration lawyers from around the U.S. are in Washington, D.C. today to visit their legislators asking them to vote on immigration reform proposals. Regardless of political persuasion, most people agree the current immigration system is dysfunctional and the laws need to be brought into the 21st century to meet the needs of families, businesses and the country as a whole. Immigration advocates argue that a common sense, balanced reform proposal should include:

  • Safeguarding the borders while also respecting the U.S. Constitution and fundamental values; ensuring that enforcement is done in a humane and balanced way that complies with due process, including protection of detainees, families and children, and the right to fair hearings and counsel in immigration court. Any enforcement program should have achievable and measurable objectives, plus better and consistent training of border agents.
  • A family based legal immigration system that unites loved ones, including adult sons and daughters without regard to age, the siblings of U.S. citizens, and LGBT family members. Reforms should also reduce or eliminate the backlogs, thereby making “getting in line” more meaningful and realistic.
  • A business based legal immigration system that allows all types and sizes of employers to have access to workers through an updated and efficient work visa system for the 21st century. This would accommodate the workforce and modern ways of doing business, with built in protections for immigrant and U.S. workers. This should include adding new visa categories and numbers, fixing existing visa and green card options, and reducing the backlogs so there is “a line to get into.” Further, employers need an employment verification system that they can understand, using a reliable government database, and involving simple ways to document work authorization status.
  • A legalization program for the undocumented population that is wide, inclusive, and provides an opportunity for citizenship after a reasonable period of time rather than endless years of a meaningless status.

Immigration advocates argue that reform of the nation’s immigration laws on all of the issues above must be done at or near the same time, whether in a comprehensive bill or in several piecemeal bills. Each of the components above is intertwined with the others. Further, immigration reform would benefit the economy, according to the Congressional Budget Office (CBO). The CBO previously estimated that the Senate’s reform package, S. 744 passed last June, would reduce the federal deficit by $158 billion over the next 10 years and $686 billion over the following decade.

For those who argue the Administration has not done enough to deport people, the statistics just do not bear that out. The U.S. has deported 400,000 on average per year in this Administration, soon to be two million individuals since President Obama, known by some as the “Deporter in Chief,” took office. This has cost the taxpayers $2 billion annually. Removals without due process, in other words, without a hearing before an Immigration Judge, now account for 70% of all annual removals. And of those, most do not meet ICE’s stated priorities. For more information on the details of these statistics as they relate to ICE’s enforcement priorities, see Misplaced Priorities: Most Immigrants Deported by ICE in 2013 Were A Threat to No One. Just how the deportation numbers shake out is a matter of controversy, but for a good discussion of the reality, see The Challenge of Measuring Immigration Enforcement in the United States.
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Here at the Seattle immigration Law Office of Bonnie Stern Wasser, we enjoy working with entrepreneurs. Whether owned by Americans who seek to hire global foreign talent, or foreign nationals seeking to open or expand a business in the U.S., it is important for entrepreneurs to understand the range of business immigration options and startup visas for employees, executives and investor entrepreneurs as well as the impact they have on the local and national economy.

The Kauffman Foundation just released two new reports on immigrant entrepreneurs. The first one is The Economic Case for Welcoming Immigrant Entrepreneurs. The report confirms that immigrants make up a disproportionately higher rate of entrepreneurs than U.S. born owners of startups. A statistic from 2010 shows that 40% of Fortune 500 companies were started by immigrants or first generation Americans. In 2012, there were twice as many immigrant entrepreneurs than native-born Americans, with 27.1% of them being immigrants in 2012, up from 13.7% in 1996. Among engineering and technology companies started in the U.S. between 2006 and 2012, 25% had at least one key founder who was an immigrant.

In terms of job creation and economic impact, the Kauffman study found that:

  • “Immigrant founded engineering and technology firms employed approximately 560,000 workers and generated $63 billion in sales in 2012.
  • 24 of the top 50 venture-backed companies in America in 2011 had at least one foreign-born founder.
  • Immigrant founders from top venture-backed firms have created an average of approximately 150 jobs per company in the United States.”

In the second Kauffman report, Lessons for U.S. Metro Areas: Characteristics and Clustering of High-Tech Immigrant Entrepreneurs, the authors found that 20% of the high-tech work force is made up of immigrants, while 17.3% of high-tech entrepreneurs were immigrants between 2007 and 2011, up 13.7% percent and 13.5% percent, respectively, from 2000.

In the last decade, there was a 64% increase in the number of self-employed immigrants in high-tech industries compared to a 22.6% increase of U.S.-born self-employed founders in high-tech. Of the immigrant entrepreneurs in the study, most were working in the fields of semiconductor, other electronic component, magnetic and optical media, communications, audio/video equipment, and computer science-related sectors, with these concentrations of high-tech primarily in 25 cities (including Seattle and Portland here in the Northwest).

Foreign Entrepreneurs in Washington State
Here in Washington, another report, Washington: Immigrant Entrepreneurs, Innovation and Welcoming Initiatives in the Evergreen State by the American Immigration Council Policy Center shows:
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