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Immigration News
March 31, 2011

Immigration Policy Center reported that as America’s economic recovery continues to be a national priority, leaders on both sides of the aisle are finally beginning to look at reforming our nation’s immigration system as a strategy for promoting job creating and growth. President Obama commented that instead of expelling immigrants, we should make it easier for them to start new businesses. This Monday, House Majority Leader Eric Cantor (R-VA) commented that “if bringing in high-skilled workers from abroad helps us keep thousands of jobs here in America, our antiquated laws should not be a barrier.” And in a bipartisan effort last week, Senators John Kerry (D-MA), Mark Udall (D-CO), and Richard Lugar (R-IN) introduced the Start Up Visa Act of 2011 (Senator Kirsten Gillibrand (D-NY) has also joined as a co-sponsor). The bill is meant to “drive job creation and increase America’s global competitiveness by helping immigrant entrepreneurs secure visas to the United States.” The realization that immigration policies can and should be used as a valuable tool for economic recovery is a welcome change from the myopic view that tougher enforcement policies are the only things that matter when it comes to immigration. However, whether the reform proposals can achieve these laudable goals depends on the details. The bill would create a new visa category, “EB-6”, in addition to the existing “EB-5” investor visa category, in order to allow immigrant entrepreneurs to “start up” new businesses in the U.S. In order to qualify for the new EB-6 visa for entrepreneurs, the immigrant would have to satisfy one of the following three sets of criteria:
Show an initial investment of at least $100,000 by a qualified investor; create at least 5 new full-time jobs within 2 years for persons other than immediate family members (spouses, sons or daughters); and show revenue or further capital investment of at least $500,000 in first 2 years; OR
Currently hold an unexpired H-1B visa or have a graduate level degree in a STEM or other relevant field from a U.S. university; demonstrate an annual income of not less that 250% of the poverty level (roughly $30,000) or assets equivalent to at least 2 years of income at 250% of the poverty level (roughly $60,000); and prove that a qualified investor has invested at least $20,000 on behalf of each entrepreneur; OR
Have a controlling interest in a foreign company that has generated at least $100,000 in sales in the U.S. in the prior year ; whose activities will generate at least 3 new full-time jobs (other than for spouses/sons/daughters) in the first 2 years; and raise at least $100,000 in further capital investment or revenue in the first 2 years.
Among other concerns that have been raised about the proposal, the bill does not increase the number of authorized visas overall, instead, visas are taken away from the existing allotment of EB-5 investor visas. Unfortunately, robbing Peter to pay Paul doesn’t really help drive the message that the United States is interested in using the immigration system to create more investment opportunities. Although the annual allotment of EB-5 investor visas have not been fully used in recent years (only 4,191 of the available 9,940 investor visas were used in 2009), the goal should be to institute reforms that change that reality, not to take away the potential for more EB-5 investors . The StartUp Visa Act is designed to address issues of talented immigrants being forced to wait in line for years before they can obtain visas to work permanently in the U.S., and often leave before doing so. If the U.S. is to remain competitive globally (Great Britain recently passed legislation to speed up the visa process for big investors and entrepreneurs), it must attract and retain the best talent from around the world. According to an entrepreneur turned academic and Director of Research for the Center for Entrepreneurship at Duke University:
… the fact is that skilled immigrants create jobs; and recipients of the startup visa will not be allowed to stay in the U.S. permanently unless they do. Right now, these job creators have no choice but to take their ideas and savings home with them and become our competitors. This legislation allows them to create the jobs here.
Entrepreneurship is vital to overall job creation. A report by the Kauffman Foundation found that job growth in the U.S. is driven almost entirely by startup companies. Specifically, the report found that on average, existing firms lose about 1 million net jobs per year, while new firms add 3 million net jobs per year. In other words, without new companies and the entrepreneurs who start them, our economy would likely be in worse shape than it already is. If Congress is serious about our nation’s economic recovery, they must earnestly consider and debate legislation like the StartUp Visa Act, with the goal of creating more investment opportunities and spurring innovation and entrepreneurship through U.S. immigration policy. While Congress has lately been reluctant to discuss any immigration issue other than border security, renewed focus by President Obama, the members of the Senate introducing this legislation, and the House Majority Leader may signal a willingness to take this issue on.

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U.S. Citizenship and Immigration Services (USCIS) announced today, in response to recent stakeholder feedback, that it is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education. Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education. Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006. USCIS emphasizes that these measures will only remain in place on an interim basis. USCIS will engage the public on any forthcoming guidance. The H-1B is a nonimmigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. Unless determined to be exempt, H-1B petitions are subject to either the 65,000 statutory cap or the 20,000 statutory visa cap exemption. By statute, H-1B visas are subject to an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions for these visas filed on behalf of individuals with U.S. master’s degrees or higher are exempt from this cap. Evidence of previous determinations of cap exemption, as discussed in this Update, will be considered on a case by case basis only when submitted with a Form I-129 petition for H-1B status requesting exemption from the numerical cap, or in response to a Request for Evidence or Notice of Intent to Deny for H-1B petitions currently pending with USCIS claiming exemption from the cap. Petitioners are accordingly advised not to send separate correspondence containing their cap-exemption evidence to USCIS on this issue.

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The Immigration Policy Center reported that fans of anti-immigrant laws such as Arizona’s infamous SB 1070 often claim that they are trying to save the jobs and tax dollars of average, hard-working Americans. However, as a new report from the Center for American Progress (CAP) and the IPC makes clear, this is a claim without credibility. The report provides a stark illustration of a basic economic fact: you can’t uproot hundreds of thousands of unauthorized workers, consumers, and taxpayers from a state’s economy without wrecking it in the process. The report examines two very different futures for the economy of Arizona. In the first scenario, the proponents of S.B. 1070 get their wish and all unauthorized immigrants leave the state, taking their labor, their spending power, and their tax dollars with them. In the second scenario, unauthorized immigrants are offered a pathway to legal status, thereby enabling them to earn higher wages, spend more, and pay more in taxes. Not surprisingly, the deport-them-all scenario ends up being an economic disaster for Arizona, while the legalization scenario provides a much-needed economic boost. As the report explains,
“…undocumented immigrants don’t simply ‘fill’ jobs; they create jobs. Through the work they perform, the money they spend, and the taxes they pay, undocumented immigrants sustain the jobs of many other workers in the U.S. economy, immigrants and native-born alike. Were undocumented immigrants to suddenly vanish, the jobs of many Americans would vanish as well. In contrast, were undocumented immigrants to acquire legal status, their wages and productivity would increase, they would spend more in our economy and pay more in taxes, and new jobs would be created.”
According to the report, deporting all of Arizona’s unauthorized workers, consumers, and taxpayers would eliminate 581,000 jobs and reduce state tax revenues by $4.2 billion. Conversely, legalizing the state’s unauthorized immigrants would create 261,000 jobs and increase tax revenues by $1.7 billion. In other words, the deportation scenario would be tantamount to economic suicide at a time of high unemployment and budget deficits. But that is exactly what the supporters of S.B. 1070 are advocating.

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The Immigration Policy Center reports that Washington politicians want to force American employers to use the electronic employment verification system, but the system is still not ready. On Monday, the Department of Homeland Security (DHS) took a step toward remedying the database error rates by announcing E-Verify “Self Check.” This pilot program will allow people in select states and the District of Columbia to go online and verify their identity and authorization to work in this country—and to fix any errors before applying for a job with an employer who uses E-Verify. While a positive step, the pilot program is only one piece of the puzzle in fixing E-Verify and will likely be inaccessible to many—including the low-income workers who most need it.
The program’s goal is to provide a way for workers to correct any database errors before they apply for their next job. Had E-Verify Self Check been implemented in fiscal year 2010, it might have helped at least a portion of the 80,000 workers who likely lost their jobs due to E-Verify. Take Jessica a U.S. citizen, who landed a job in the telecommunications industry. After she was found to be unauthorized to work through an E-Verify error (a spacing issue in her last name), the Florida native desperately tried to remedy the mistake through the proper governmental channels, but was unable to do so before she was fired. Jessica was never able to get her job back and spent another three months finding a new lower-paying job. Self Check might have let Jessica know about and correct government database errors before she got the job. But Self Check is not a cure-all. There still needs to be a process for workers on the backend who do not use Self Check and who are wrongly fired because of E-Verify. These workers have no remedy when they lose their jobs because employers are required to fire people if E-Verify can’t verify that they are authorized to work. An important next step is to create an administrative review process to allow people to challenge errors and provide them back-pay when they have been erroneously fired. Many low-income workers will likely be unable to use the new self-check program. The program can only be accessed online, so the nearly 30 percent of U.S. households that lack regular access to internet will be unable to verify their information. Furthermore, E-Verify self-check is currently linked to data maintained by a private credit bureau, which means that those without credit history may be out of luck if they want to make sure the government can verify their identity. Self-check is a step in the right direction, but policymakers must realize that E-Verify—or any worksite enforcement program—will not solve the issue of unauthorized work until we do something about the 8 million undocumented workers in our economy. We need comprehensive reform of our immigration system to provide the people who are working in our communities and contributing to our economy and society with a way to obtain the lawful status. Without reform, E-Verify will continue to be nothing more than an ineffective political tool utilized by those who want to “look tough” on immigration.

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March 28, 2011

The BIA held that an alien who enters on a K-1 visa and timely enters into a bona fide marriage with the petitioning spouse, remains eligible to adjust status under INA §245(a) despite termination of the marriage. Matter of Sesay, 25 I&N Dec. 431 (BIA 2011)

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