Will we see Executive Action from Obama next week?

The political winds of immigration keep shifting. It is rather hard to keep track.  The question of the moment is this: will President Obama announce executive actions on immigration reform next week?

A week or two ago, there were news reports that Obama will make announcements immediately after Labor Day weekend. But as the weekend is about to pass us by, the current reports suggest that he may be delaying announcements. Which will it be?

Reports suggest that the White House has not only been meeting with immigrant advocacy organizations but also business organizations.  That indicates the White House is indeed researching options and understanding its limits of possible actions. I have no reason to believe there will not be executive action.

The question of ‘when’ is now imperative.  People have been waiting for years for immigration reform. When it became clear immigration reform is dead because Congress will simply not act, President Obama did say he will act alone. That is indeed a promise the people are holding him to.

But as time nears the announcement- what may be giving the President second thoughts? The midterm elections. The GOP threat to shutdown government.  Oh, did I miss a threat of impeachment too? Whichever way you look at this, Obama is in a difficult position.

‘Deferred action’ is current law.  If executive action is announced, it will be expanding the criteria of people that can be eligible for its use.  But let it be clear- it is not giving a green card or permanent residency. Only Congress can do that.  Obama will not be doing anything illegal.

So, let Obama do something positive for the country.  The country needs it and it is time.

EB5 Visas- Unavailable for China

Copied from AILA:

Practice Alert: China EB-5 “Unavailable” for Remainder of FY2014: What Does This Mean?
On Saturday, August 23, 2014, at the AILA EB-5 Conference in Chicago, Charles Oppenheim,
Chief of the Department of State Immigrant Visa Control and Reporting Division, announced
that effective immediately, the EB-5 preference category had become “unavailable” for Chinese
applicants. This practice alert provides additional information and discusses some of the
practical implications of the announcement.
 It is important to note that a China EB-5 cut-off date has not been established and the
Visa Bulletin for September 2014 (which states that China EB-5 is still “Current”) has not
been amended. Therefore, this is not a visa retrogression.

 “Unavailable” simply means that for the first time since the EB-5 program was created
almost 25 years ago, the maximum number of EB-5 immigrant visas which are available
for Chinese applicants for fiscal Year 2014 has been reached, while sufficient numbers
for all other countries remain to ensure compliance within the annual Fiscal Year 2014
allocation.
 A new allocation of about 10,000 visas will be available on October 1, 2014, which is the
first day of Fiscal Year 2015. As a result, there will be virtually no impact on most China
EB-5 visa applicants who complete processing within the next 6 to 8 months.
 Visas have already been allocated for individuals with EB-5 visa interviews at the U.S.
consulates in August and September 2014 so interviews will proceed as scheduled and
visa may be issued to qualified applicants. A technical exception to this involves
applicants with August or September “comeback” interviews (a “comeback” interview is
scheduled for individuals who failed to prove themselves as documentarily qualified at
an earlier interview). If approvable, they will have to wait until at least October 1 to
obtain a visa.
 Immigrant visas will continue to be valid for 6 months from the date of issuance.
Applicants should be sure to enter the U.S. before the expiration date of their immigrant
visas, as requests for replacement visas to accommodate travel to the U.S. outside of
that 6-month period may not be possible.
 USCIS does not request immigrant visa numbers from the Department of State for I-485
adjustment of status applications until the time of adjudication. If visa numbers are

unavailable at the time of review, USCIS will hold the application in abeyance pending
availability of visa numbers.
 USCIS processing of EB-5 adjustment of status applications will proceed. However,
issuance of immigrant visas to China EB-5 applicants will be authorized effective October
1, 2014, when the new Fiscal Year 2015 allocation is available.
 Applicants chargeable to China who are also cross-chargeable to another foreign state
(e.g., Hong Kong, Macau, Canada, France, etc.) based on marriage or other claim1
may
request that they be cross-charged in an effort to receive a visa in August or September,
but this is not assured as the annual allocation for all foreign states is almost depleted.
 The Visa Bulletin has not been amended (i.e., visa numbers are still listed as “available”),
so eligible China EB-5 applicants may continue to file for adjustment of status in August
and September 2014.
 Though other employment and family visa categories already have waiting lines, this
announcement is significant because this is the first time the EB-5 category has reached
the annual limit. The State Department appears to be providing a warning that the China
EB-5 category will become oversubscribed and require the establishment of a cut-off
date, possibly as early as May 2015, near the end of the third quarter of Fiscal Year
2015.
 The announcement is also significant because it provides clear evidence that EB-5
demand, which has increased 700% since 2007, will certainly result in the establishment
of a China cut-off date in Fiscal Year 2015.
 It is impossible to determine what the “date gap” will be when a cut-off is announced,
most likely in May 2015. There are estimates that the wait time will be approximately 2
years. Since most I-526 petitions are presently taking 15 to 16 months (Requests for
Evidence are commonplace), an additional wait of about 6 months does not yet appear
to be unduly worrisome. The concern is that once a cut-off date for China EB-5 is
established, the Department of State may have to retrogress that date, depending on
the number of petitions approved, and the cut-off date may not move forward every
month. With over 10,000 petitions currently pending with USCIS and about 3,000 filed in
the last quarter ending June 30, 2014, this wait time is likely to increase.
 Consequences may include age-out of derivatives, and complex issues regarding the
timing of job creation, the requirement for which is currently set artificially at 30
months from approval of the I-526 petition (at the I-526 stage), and 36 months from the
time of acquisition of conditional permanent residence (at the I-829 stage).

 

Unused Visas: To Recapture or Not to Recapture- That Is The Question

Please visit this link before reading the article as the comment from Attorney Roger Algase is important because he clarifies that more understanding is necessary in the article. The issue is complicated no doubt and it would be appreciated if anyone who can make the issue crystal clear should comment on this. 

http://discuss.ilw.com/content.php?3445-Article-Unused-Visas-To-Recapture-or-Not-to-Recapture-That-Is-The-Question-By-Tahmina-Watson

To help discern the issues, here is the first draft of my “Unused Visa chart V1” with all the relevant sections of the current law. The pieces of the puzzle have been laid down- now to put the picture together. Feel free to help.

First draft to understand where visas are not being used and need recapturing

First draft to understand where visas are not being used and need recapturing

______________________________________________________________________________________________

(The below article needs to be updated and will be updated soon). 

The Politico Newspaper broke a story earlier this week (which has since been repeated by many other news outlets including the Wall Street Journal)  that Obama met with various business officials to discuss employment-based immigration issues that can be addressed with executive action.  One of those issues was apparently to recapture unused visas.

That issue caught my eye as it has been on my research to-do list for a while.  The news reports prompted me to research the law as to whether the president has the authority to recapture such unused visas. My opinion is that the law already allows for it.

Here is what the Immigration Nationality Act says at § 206 (8 USC 1156):

If an immigrant having an immigrant visa is denied admission to the United States and removed, or does not apply for admission before the expiration of the validity of his visa, or if an alien having an immigrant visa issued to him as a preference immigrant is found not to be a preference immigrant, an immigrant visa or a preference immigrant visa, as the case may be, may be issued in lieu thereof to another qualified alien.

The law already allows the use of unused visa. So what is all the fuss about?

Each year 140,000 employment-based immigrant visas are issued. There is a complicated formula to calculate visa distribution.  The questions we should ask are these: (1)  In each fiscal year, do we have a record of how many visas were denied or otherwise not used? (2)  If so, do we know if they were reused within that particular fiscal year? Perhaps the Department of State can shed light on how many were unused from previous years.  Here is a report that lists number of visas issued.

From discerning all the complicated legal mumbo-jumbo from the statute,  the law basically says unused visas from the previous year will be added on to the current year of visa availability.  From what I can tell, unused visas are generally being put back in the pool.   While I cannot completely understand the numbers in the above linked reports, I believe the information should be available.  Reports from the Wall Street Journal and Politico discuss that 200,000 visas can be recaptured.  I would very much like to know how that number was determined (if anyone reading this article knows, then please do let me know!).

If indeed there were unused visas in past fiscal years that need recapturing, then do we even need a new law or executive order to recapture them? The law above in black and white clearly says they can be reused.

Therefore, in my opinion, unused visas- from years past,  can be reissued to other qualifying immigrants. No executive order necessary. Just understanding, implementation and execution.

I will continue my research and update this article in due course, if my research leads to more worthwhile information. But in the meantime, your question may be- why is this important?

The Backlog.  The visa backlog is one of the biggest problems our broken immigration system is encountering.  You may often hear the phrase  that people will have to go to the back of the ‘line’ to get their visas. There is no ‘line’ as such but the’ line’ refers to the waiting time to get a visa. People are waiting for years, sometimes, decades to get visas.  The employment-based preference categories have severe backlogs, particularly for China, India, Mexico and the Philippines.  Recapturing the unused visas will help reduce the backlog, help bring security and stability into peoples’ lives, which in turn will help businesses hire the right people, focus on growing their businesses and not worry about whether their employees will stay or leave the US.

Will the President include this in his list of executive orders? Well, I don’t think an executive order is necessary for the above reasons. But let’s imagine I missed something in my research and it does need an executive order. Will he include it in his list?  Hard to say.  If he is looking for maximum impact, this is definitely one way to make a big difference.  Politically, he is already in a challenging situation by all accounts- the GOP will take issue with whatever he does.  So, why not go for maximum impact and just go big?

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Tahmina Mentioned in CNNMoney

CNNhomepage pic

Image courtesy of CNNMoney

Thank you to CNN and Reporter Sara O’Brian for reporting on an issue that I care so deeply about and mentioning my work. My regular readers will know how strongly I feel about these issues.

The article highlights the frustration that I and many of my colleagues face helping startups get visas. Hope this will shed light on the problem, particularly at a time when the White House is hoping to find immigration solutions for entrepreneurs through executive action.

If you are a startup hopeful, or someone invested in the startup community, your voice is important. Make an appointment with your local House/Senate Representative and explain why this is important to you.  Everyone needs to speak up for things to change. Enjoy the article!

Here is a link to the article. 

Immigration reform will help Washington State’s demand for tech workers

Immigration reform will help Washington State’s demand for tech workers.

 On August 6th, 2014, the Puget Sound Business Journal reported that the Washington State is the 5th fastest growing state in the US for tech jobs, yet there are not enough tech workers.   Reporter Rachel Lerman discusses the issue in detail and reports that the common problem preventing companies from expand is not being able to find sufficiently trained tech employees.  So what is the solution to this?

http://www.bizjournals.com/seattle/blog/techflash/2014/08/washington-named-one-of-fastest-growing-states-for.html?ana=twt

As my regular readers will know, I am a staunch advocate for immigration reform. While the current hot topic is the border crisis and surge of children fleeing desperate situations in Latin America, the issue of broader immigration reform has been sidetracked.  All eyes are on President Obama to deal with the border crisis alone as well as to take executive action on providing a solution for the 11 million undocumented people already in the US. I, like so many, await news on this front.

What about the legal immigration? Legal immigration needs be addressed just as desperately as illegal immigration.  We need action to fix the broken legal immigration system that prevents businesses, such as Washington State Businesses from hiring talented employees.  Newer companies such as Zulily and Zillow continue to put Washington State on the map (Microsoft, Amazon, Boeing are a given of course).

I call on the Obama Administration to ensure that legal immigration is also included in the list of Executive Action. While there is significant limitation on what can be done without Congress, the limits must be explored.

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Three Ways President Obama Can Take Executive Action for Business Immigration

(This article was written a few weeks ago but it is applicable today as it was a few weeks ago). 

Three Ways President Obama Can Take Executive Action for Business Immigration

Immigration reform was declared dead last week.  Yes, dead.  After years of fighting to reform our archaic and broken immigration system, and a successful Senate bill that passed in June last year, the House put the final nail in the reform coffin.

A lamenting President Obama stated he will act alone to make any changes possible.  Unfortunately, as much as he wants to change things drastically, he can realistically accomplish limited actions.  Moreover, timing could not be worse to face a terrible humanitarian crisis at our borders. Thousands of children illegally entering the U.S. only exacerbates the immigration problem we already have.

With all eyes on  the humanitarian crisis and the President, the hope is that he will find a solution for the 11 million undocumented people that want to come out of the shadows and contribute to our economy.

But what can the President do regarding business immigration specifically?

Constitutionally, the President’s hands are tied, so his abilities are limited. Here are three examples of things he cannot do:

1. Increase the number of H-1B visas available.

2. Create new visa categories – whether for startups, graduates, or low-skilled guest workers.

3. Eliminate country quotas for visa categories which would then reduce the terrible visa backlog.

So, what can he do then?

Thankfully, he has already taken steps to allow H-4 visa holders (dependents of H-1B visa holders) to have employment authorization (EAD).  However, he can do more. Here are three things he can do:

1. Expand the H-4 EAD policy to all H-4 visa holders (not just to those waiting in the so called ‘line’ for a green card), just like E-2 and L-2 visas holders are allowed.

Use the existing USCIS Entrepreneur in Residence program to expand favorable policies to founders of companies. For H-1B visas specifically, he can:

2. Eliminate restrictive policies that require  a startup founder to demonstrate an employer-employee relationship between himself and his company.

3. Allow company stock valuation and equity to be used to in lieu of cash wages in H-1B visas.

Time and time again, President Obama has stated he wants to help entrepreneurs come to the U.S., and stay to grow their companies and create jobs.  Here is his chance to take some big steps that will help entrepreneurs get H-1B visas with a little less headache so they can do exactly that. Go Big, Mr. President,-wherever it is possible.

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

September 2014 Visa Bulletin Commentary

The September 2014 visa bulletin was released today. Here is what my readers are looking for:

For all countries except India, China, Philippines, and Mexico:  F2A category advances a whole 8 months taking the priority date to 1 January 2013 (great news!). F2B preference advances 2 months with PD at 1 September 2007;  No change in F4 category leaving PD at 1 January 2002;  EB2 is current and, and EB3 sees no movement leaving to PD at 1 April 2011.

For India only:  F2A category advances a whole 8 months taking the priority date at 1 January 2013 (great news!). F2B preference advances 2 months with PD at 1 September 2007;  No change in F4 category leaving PD at 1 January 2002;  EB2 India sees about 4 months advancement taking PD to 1 May 2009 and EB3 sees no movement leaving priority date at 8 November 2003.

If you are eligible to file,  it is important for those who are eligible to prepare filing your I-485 package as soon as possible.  Please note you cannot file until September 1st and while the priority date remains current for you.  Good luck to those who can file!

We will report on the October 2014 visa bulletin when it is released. See below for future cut off dates information:

News re. upcoming visa availability:

D.  VISA AVAILABILITY IN THE COMING MONTHS

INDIA Employment-based Second Preference: The use of potentially “otherwise unused” Employment numbers prescribed by Section 202(a)(5) of the Immigration and Nationality Act (INA) has allowed the India Employment Second preference cut-off date to advance very rapidly in recent months. Continued forward movement of this cut-off date during the upcoming months cannot be guaranteed, however, and no assumptions should be made until the dates are formally announced. Once there is a significant increase in India Employment Second preference demand it will be necessary to retrogress the cut-off date, possibly as early as November, to hold number use within the fiscal year 2015 annual limit.

September 2014 Visa Bulletin Is Out

A few moments ago, the Dept. of State released the September 2014 visa bulletin.  Here is a link.  Please stay tuned for our usual commentary.

Tahmina on distinguished virtual immigration law roundtable

virtual rountable 2014 We are honored to have been part of this distinguished group of immigration lawyers from around the world discussing current immigration law matters.  The panel was hosted by Corporate Livewires.  Thank you to Corporate LiveWires for the honor.

CNN Discusses the Startup Visa

cnnmoney article stillToday, CNNMoney reported on one of our favorite subjects, the Startup Visa. Reporter Sara O”Brian discusses specific examples of talented people moving to Canada to launch their startups since they were unable to do so in the US due to immigration obstacles. We are honored that the article provides a link to this blog.  Thank you CNNMoney for covering this important issue and raising awareness.  Here is a link to the article. 


Archives

Twitter

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 726 other followers

Enter your email address to follow this blog and receive notifications of new posts by email.

Join 726 other followers

Please note this blog is not intended for individual legal advice

Copyright @ Watson Immigration Law. Copying/republishing not permitted. Quoting is permitted with link to this blog.


Follow

Get every new post delivered to your Inbox.

Join 726 other followers

%d bloggers like this: