Seattle Immigration Lawyer Blog

So sorry to my readers for not posting lately. As Chair of the Washington Chapter of the American Immigration Lawyers Association (AILAWA), I have been very busy the last few weeks writing letters, testifying and attending meetings before the Washington State legislature on several immigration related bills since our fair state decided to get into the immigration business this year. I was also in Washington, D.C. where together with AILA colleagues, we visited the members of the Washington Congressional Delegation to advocate for immigration reform. While in D.C., I also attended the AILA quarterly Board of Governors and AILA Chapter Chairs meetings. Meanwhile, our chapter held its annual Northwest continuing education conference in Portland, Oregon, hosted by the Oregon AILA chapter where I spoke on a panel about the fall-out of the Kazarian case dealing with the evidentiary standards for Employment Based Extraordinary Ability workers, and the new Request For Evidence templates and policy memorandum concerning visas for crème de la crème workers. Now I'm getting ready for our annual AILA national conference coming up in June in San Diego where I will be speaking on consular processing of family based visas. In between all of this, I have had to focus on client work. So, with that as background, I'm going to catch up with some more articles on a variety of topics, as there is never a shortage of news on immigration and citizenship issues.

In a December 3, 2010 letter to Senator Patrick Leahy, U.S. Citizenship and Immigration Services (USCIS) Director, Alejandro Mayorkas, stated that indirect jobs created by individual investors in an EB-5 regional center may in fact be created outside the geographical boundaries of the certified regional center. The letter sets out USCIS's interpretation from earlier case law that the job-creating businesses themselves must be located within the regional center's geographic limits, and that recent amendments to the EB-5 program require that "each regional center ...provide a proposal that 'clearly describes how the regional center focuses on a geographic region of the United States.'" USCIS interprets this to mean that the regional center must focus its "EB-5 capital investment activities on a single, contiguous area within the defined geographic jurisdiction requested by the regional center." Director Mayorkas concludes that "we agree that the law does not further mandate that all indirect job creation attributable to a regional center take place within that jurisdiction."

The business plan for the EB-5 regional center seeking initial approval or certification is critical, however. It lays the road map for how the center plans to proceed including the economic analysis to determine how the new jobs will be created. USCIS will adjudicate EB-5 regional center applications, amendments and annual reports as well as individual investor applications on the basis of that business plan. Therefore, it is essential that if the economic model being used anticipates job creation outside the geographic limits of the regional center, that this be reflected in the business plan for the center.

Two recent changes effective November 23, 2010 concerning regional centers include the release of a new form I-924 used for regional center designation applications. A new form I-924A was also introduced for annual reporting of the regional center activities. This form has to be filed annually between October 1 and December 29. There is also a new filing fee of $6230.00 for initial regional center applications. The I-924 should also be used for amendments to 1) the geographic region, 2) the business plan, 3) organizational structure, 4) affiliated entities, 5) changes in the economic analysis to predict job creation, 6) or changes to capital investment instruments or offering memoranda. When providing an exemplar of future individual EB-5 I-526 applications, the I-924 should also be submitted.

EB-5 regional centers typically attract a pool of foreign investors who may invest in one or more businesses within the designated regional centers. Depending upon where the regional center is located, the individual foreign investors must invest $500,000 or $1,000,000 in capital, and each individual investor must create at least 10 new full-time jobs. One benefit of the EB-5 regional center concept is the ability to create the new jobs indirectly within or now outside the regional center based on an economic model predicting how and when the jobs will be created during the foreign investor's initial two-year period of conditional permanent residence in the U.S. Within 90 days of the two-year conditional residence period expiring, the investor must show the full amount of capital was invested and the required jobs were created.

A list of currently approved EB-5 regional centers around the country can be found on the USCIS website. Also posted on the USCIS website is the powerpoint from the December 16, 2010 EB-5 stakeholder meeting.

The U.S. State Department announced today that the family-based permanent legal immigration quota will retrogress in January. The State Department makes monthly estimates about visa use around the world through an extremely complex formula that hardly anyone understands. Although the State Department posts a brief explanation online, it does not adequately reflect the true complex nature of calculating when visas are available. Not only does the State Department have to monitor how many permanent immigrant visas are being issued by each U.S. consulate world wide, but applications filed within the U.S., called "adjustment of status", also have to be monitored. Immigrant visas and adjustment of status applications can only be filed and granted when the quota is current. But in between those times, the quota can retrogress or become backlogged.

The quota status is published monthly in the Visa Bulletin at www.travel.state.gov. By understanding how the quota works, one can better understand why fixes are needed to the legal immigration system. Without these fixes, enforcement-only legislation will increase the numbers of people who fall out of status, or will encourage people to come illegally if one understands anything about the human condition or drive to protect and feed one's family.

I tell my clients to think of it this way. Suppose you are trying to see a movie at a theatre with 100 seats. You arrive at the theatre and the seats are sold out and you have to stand in line. How long you stand in line depends on demand for the limited supply of seats. You may get into the theatre for the next movie, or after several movies. Think of movies as months, maybe years. When people try to immigrate through family members, depending upon the relationship combination involved, the beneficiary may be waiting in line at theatre A, theatre B or theatre C for example, which we call preference categories. These are all defined and explained in the Visa Bulletin every month.

Where you are in line is further complicated by where you were born since visas are issued by country of birth, not citizenship, and each country is allocated a finite number of visas per category. If you were born in India, China, Mexico or the Philippines, you will usually wait much longer than everyone else. There are a few obscure rules on "cross-chargeability", so it's worth getting some legal advice to see if the beneficiary might fall into the world-wide category, which covers everyone else. But, for the most part, every single family preference category has been backlogged for years, and even moreso for Chinese, Mexicans, Indians and Filipinos. The only people NOT subject the quota backlogs are spouses and parents of U.S. citizens and minor unmarried children under 21 of U.S. citizens.

Continue reading "Legal Immigration Quota Backlogs Increase: Why Enforcement-Only Legislation Creates More Ilegal Immigration" »