This week, USCIS launched the new I-601A provisional waiver program, allowing certain relatives of American citizens who are in the country illegally to get a decision on their waiver case, before leaving the United States.

The exact numbers are not known, but it is clear that the new rules will impact thousands of US families.  For those who wouldn’t undertake the artificially-imposed, but very real risk of “touching back” to their home country under the old rules, the new regulations mean that it’s finally safe to complete the residency process.  For thousands of others, the goodwill shown by immigration authorities in trying to alleviate the hardship created by the meaningless departure requirement has inspired them to start a process that was unthinkable before the new rules were put into place.

There is no question that the new rule is an overwhelmingly positive development for American families.  Immigrants and their citizen family members now have some measure of peace, knowing that their loved one will not be stranded in a foreign country for an unknown length of time, potentially risking life and limb, while waiting for a decision on their case.  USCIS’s continued impressive handling of deferred action applications has shown that the agency has the capacity to handle a large volume of applications, and get it done right.  And, promisingly, USCIS has indicated that the provisional waiver process should be extended to qualified relatives in other family categories, as resources allow.

In the context of immigration reform, this “solution” to a problem that never should have existed in the first place this begs the question of why we punish American families (and U.S. employers) by forcing the very immigrants that already have a path to citizenship to undergo separation, financial and emotional hardship, and risk their safety to attend a 10 minute interview abroad, when the same process can be achieved at a local USCIS Field Office.

Unfortunately, for many other equally qualified relatives, the new provisions will do nothing to fix their immigration problems, and they and their family will remain stranded by the unworkable scheme Congress put into place nearly two decades ago.  Moreover, the new processing rules do nothing to fix the draconian “permanent bar” which results in de facto exile of a decade or more for immigrant family members.  As we move forward to try to find real solutions to our broken immigration system, Congress would be wise to consider the real cost to American families and U.S. competitiveness when trying to retain the failed policies or create new penalties which do nothing but harm the very people who already have a path to citizenship.

Regrettably, despite numerous comments from immigrant communities and advocates, the new rules perpetuated some of the absurdities of the process.  Instead of fixing the problems identified by experts in the field, the agencies inserted a glaringly punitive rule, inexplicably excluding individuals who had already started the process and had already paid the required government fees.   The irony is that this change serves only to leave out in the cold those families who were playing by the (old) rules.

As a result, thousands who had bravely begun the very last chapter of the application process have been stranded—ironically, after most put their cases on hold because the agency announced the proposed process over a year ago in draft form.  Under the final rules, those individuals cannot take advantage of the new procedures and must risk waiting outside the US for an indeterminate amount of time, without any sense of whether their case might—or might not be granted.

Not even filing a new consular application will allow a person with an approved petition to benefit from the new procedures.  The only way to have the same protections as other families appears to be withdrawing all applications and starting a case over from the very beginning.  In practical terms, this means that applicants who were nearly at the front of the line after years of processing, are being forced to choose between going forward, with all the uncertainty and risk of the “old” system, or abandoning their applications, getting into the back of the line, waiting years until they might see a new appointment and, to add insult to injury—paying twice for the privilege.

So, is there any reason these families are being singled out and put at risk?  No one involved in the process seems to have an answer, much less a defensible reason for this oversight.  If this feels like being in a long line at the grocery store and being relieved to see a new lane open, only to have the clerk take the guy behind you first, you’re not far off.  Except in this analogy, you not only get stuck at the back of the line, you end up paying for your groceries twice.

Written by Laura Lichter, AILA President

If you are reading this column, it is probably not written for you.  It is written for your friends, relatives or neighbors that may not fully understand what has happened, what has not happened and what may happen this year with immigration reform.  For those reasons, I write this with only one request of you: please spread the word to people that do not fully understand what is going on.  They could be easy victims for scammers who want to take advantage of this confusing and exciting time.

I have personally received calls the past few weeks about the “new law” or “nueva ley” that is in effect in immigration.  Some reports are that people are already charging for services based on a legalization program or “amnesty.” NO SUCH PROGRAM exists at this time.  So, below I separate out fact from fiction to help make sure people are not taken advantage of.  You should know what has occurred and what has not occurred during the past several months and make sure to share this with others.

What has really happened:

• Deferred Action for Childhood Arrivals (DACA): This allows some qualified individuals to apply for a work permit based on their physical presence in the United States, age and other factors.  IMPORTANT: There is no deadline for filing for DACA, as some have been hearing.  Also, there is no official processing time being provided by the Department of Homeland Security.  However, many applications are now taking close to six months to process.
• Provisional (Stateside) Waivers: This is not a legalization program but is instead a process that allows some individuals who are immediate relatives (certain spouses, children and parents of U.S. citizens) to apply for a provisional unlawful presence waiver while they are waiting in the United States.  Currently the regulation only applies to a narrow group of people and does not go into effect until March 4, 2013.  Therefore, if you may think you or a relative qualifies you should do some research now, before going further with any applications.

What has not happened:

• Comprehensive Immigration Reform: This has not happened yet, and it is going to be months before we have any idea of whether it will happen.  We don’t know what this law, if passed, will look like and who it will help.  No one should pay a deposit for work regarding a law that does not yet and may never exist.  Don’t let someone scam your friends, family, or members of your community.

Whenever there is media interest and talk about some sort of immigration reform there tends to be a lot of confusion about it and the process.  There are also, unfortunately, individuals who are already trying to take advantage of this confusion like scammers, notarios, and others.  So it is very important that you learn more about what is really happening with immigration reform and update your friends, relatives and neighbors who may not fully understand what is going on or have access to a computer.

Make sure to stay updated with any breaking news through websites such as the American Immigration Lawyers Association (AILA) and other organizations that provide up-to-date and accurate information.

Written by Maurice Goldman, Member, AILA Media-Advocacy Committee

Starting March 4, 2013, certain relatives of American citizens who are in the country illegally and need a waiver of unlawful presence before being eligible for a green card can get a decision on their case before leaving the United States.

For those who can take advantage of the new rule, this means peace of mind, knowing that their loved one is likely to successfully complete the immigration process and not be stranded in a foreign country for an unknown length of time.  For some, however, the new rule will do nothing to resolve their immigration issues.

1.      What is the new rule and how can it help my family?

Under current law, many immigrants who enter the country illegally or overstay their visas cannot apply for permanent residence (a “green card”) in the U.S., and instead must finish the immigration process abroad.  Unfortunately, just leaving the country—even to pick up a visa sponsored by a family member—automatically makes the intending immigrant subject to a penalty for their “unlawful presence,” potentially separating them from their family for up to ten years.

For some, but not all, the penalty can be waived.  Before this new rule, immigrants could be stranded outside the country for weeks, months or even years while waiting for a decision on whether they could return to their life in the United States. And all that time, the immigrant was stuck abroad, usually with no legal way to return.  Many families endured the emotional strain, financial hardship and dangerous conditions. Others simply were unwilling to take the risk.

The new rule means that many immigrants will leave the United States, knowing in advance that their case will probably be approved, and they could be back with their families—as a legal resident—in a matter of days.

2.      Who can apply under the new rule?

Only applicants who are an immediate relative of a US citizen (spouses, parents and certain children) can apply at this time, though the rule may later be expanded to other relatives.

The applicant must be physically present in the United States, and not already have a scheduled interview at a U.S. consulate abroad.  Also, the provisional waiver is only available if the sole issue holding up a case is unlawful presence.  Applicants who have criminal issues or other immigration violations cannot use the provisional procedure.

Individuals who are in immigration court or who have an order of removal or voluntary departure may not qualify unless they get special permission from the government and a court order resolving their case.

To be successful, applicants must show that denying the case would be an extreme hardship to their qualifying relative(s); the impact on the immigrant doesn’t count.  Hardship factors can include family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s), if the waiver isn’t granted.

3.      What does it mean that the waiver is “provisional?”

Even if a waiver is granted, the approval is “provisional.”  As a practical matter, this means that the government has reviewed the case and believes that the waiver should be granted, but there is no guarantee that a case will be successful if facts change or new information comes to light.  For example, if an applicant had previous immigration violations or criminal history, the provisional waiver will be revoked.

If any new issues arise, and the applicant is still eligible for a waiver, he or she will be able to re-apply using the existing process, but will have to wait abroad for a decision on their case.

4.      When can I apply?

The new rule goes into effect on March 4, 2013, and no filings will be accepted before that date. You can only apply for a provisional waiver after an immigrant petition has been approved.  If you haven’t filed yet or you’re still waiting for a decision on a pending petition, you can’t apply for the provisional waiver—yet.

5.      What else do I need to know about provisional waivers?

A provisional waiver is not a legal status, and even an approved waiver doesn’t provide work authorization, a social security number or a driver’s license. Having a provisional waiver will not protect you from deportation or any other consequences of being in the country illegally.

If an application for a provisional waiver is denied, there is no appeal.  If you have more or better evidence to prove your case, you can re-file, with a new filing fee. Remember, not everyone can be sponsored or qualify for a waiver, and just as importantly, not everyone needs a waiver.

6.      Do I need to work with an attorney?

The immigration process can take months, even years, and government filing fees and other expenses are significant—it’s best to know your options before investing time and money.  A thorough legal consultation should look at all aspects of your immigration history to find the best solution for your family, not just evaluate eligibility for a provisional waiver.

Always work with a licensed immigration attorney.  Never trust legal advice from an unregulated consultant or notario. Consider consulting with an experienced immigration lawyer before starting the process to make sure that you qualify, and that stateside waiver processing is the best solution for your immigration case.

Additional Resources

Always turn to reputable sources for immigration advice and information about new developments. Finding an AILA lawyer is a good place to start. Members listed on www.ailalawyer.com meet legal education and malpractice insurance requirements, and have been AILA members for at least two years.

AILA Immigration Lawyer Referral Service

AILA Resources for Stateside Waivers

USCIS Resources on Provisional Waivers

Consumer Protection for Victims of Immigration or Notario Fraud

Written by Laura Lichter, AILA President

The holiday season was in full swing in New York when AILA President-Elect Doug Stump and I “invaded” the city last week. No stealth maneuvers here, this was a planned, coordinated campaign – we were there to talk to the press.

Most of the reporters were people AILA Communications has been working with for a good long while. These journalists turn to AILA for expertise on immigration topics ranging from detainers to waivers, from DACA to H-1Bs. So, while juggling the schedule was a challenge, each reporter gave us a generous amount of time to share our views, to answer questions, and to see where we can be of most help in the future.

Did you ever wonder how we have been so successful at getting our members’ voices heard? Look no further than AILA’s crackerjack Communications Department! Kudos to Senior Director of Communications George Tzamaras and Manager of Communications Belle Woods not only for a successful tour, but for making it their mission that people turn to AILA as the reliable resource for immigration expertise.

The tour included meetings with The Guardian, the Wall Street Journal, CNN Money, the New York Daily News, CNN, the Associated Press, and the New York Times. Discussions ranged widely but here are some of the topics we covered:

• At every meeting, Comprehensive Immigration Reform (CIR) was the first topic that came up, and always led to a lively discussion about what did we think about the prospects for next year, and what did AILA think real reform might look like.

• We talked about what DACA means to our clients and their families and what we think we’ll see in terms of applications next year. We also highlighted how complicated a “simple” application can be, and how critical it is to have good legal advice in the process.

• We talked about the many ways our current immigration system is broken, and how the current mess is the inevitable result of multiple barriers to legal immigration that are literally written into the law or just part of the adjudications process, as well as illustrated how they affect businesses and families, alike.

• Producers and reporters wanted facts. And boy did we give them facts: facts about how difficult it is to navigate our current system; how unwieldy, unforgiving, and unfair the process can be; how much our nation needs its immigrant communities; and the high cost of letting politics instead of common sense dominate the discussion. And thanks, IPC, for making us look so smart!

• We talked about notario fraud and AILA’s efforts to educate the public about the danger these scammers pose to immigrant communities. We introduced them to resources on UPL, including AILA’s consumer protection website, http://stopnotariofraud.org (now in four languages).

• We also highlighted our Chapters’ and individual members’ extraordinary efforts to educate their communities about the risks and potential rewards of deferred action, the value of working with an immigration lawyer and how for many, getting good legal advice can mean the difference between a bright future and deportation.

While not a media meeting, another highlight of the trip was meeting with the Partnership for a New American Economy (out of Mayor Bloomberg’s Office), which was a great opportunity to talk potential partnerships/collaboration with AILA in the coming year. It was also a chance to learn from each other. For instance, PNAE has been involved in a micro loan program to help qualified DACA applicants borrow enough for government filing fees. The program has been in effect for a few months, and PNAE has promised to let us know how that progresses, as the $465 fee has been a roadblock for many young immigrants.

By the end of the second day of meetings, we felt like we’d definitely made an impact. While not everyone can get to NYC and blitz through meetings as we did, we want to emphasize that working with your local press outlets is something that AILA members around the country can and should do. Take a look at these notes, think about what the various outlets were most interested in, and pitch a story tailored to your local news outlet. Want some help crafting your message? Run a pitch by AILA Communications—George and Belle are more than happy to help.

So, let’s take a well-deserved break over the holidays and then come back in the New Year ready to take on the immense task of restructuring our nation’s broken immigration system.

The AILA fall conference in Montreal this September is not just about foreign travel and Canadian/French food and wine. Those are important of course, but only a part of the equation.  In fact, the fall conference is going to offer something unique, something AILA has never before undertaken. The conference – in its entirety – covers waivers. As you may already be aware, stateside processing and provisional waivers are coming to waiver adjudication, and as a result many questions have arisen about what it means and how clients and attorneys will be affected.  Among the confirmed speakers are representatives from the US Consulate in Montreal and Toronto.

Montreal – site of the 2012 AILA Fall CLE Conference on “Waivers of Inadmissibility”.

This conference will delve into medical waivers in a more sophisticated and in-depth way than previous AILA conferences, offering valuable information for more seasoned practitioners. Among the sessions will be a litigation panel strategizing how to respond to waiver denials and move forward in court. Additionally, the entire 212(a)(6)(C) venue will be explored with an in-depth analysis assessing whether in fact a material misrepresentation occurred and potential next steps after such a finding. There will also be a NIV waiver panel with government representatives examining process and law around consular and border applications for Canadians and non-Canadians alike.

While the Annual Conference is without equal, I think that the smaller conferences like this one extend an incredible opportunity to engage in a substantive area of law with a smaller group of people in a collegial atmosphere. I always leave these conferences with insights and ideas that I didn’t have at the outset. Those who attend, I believe will be well rewarded. Those who can’t will have to purchase the recording. Hope to see everyone in Montreal. Bon voyage!

Written by: Heather N. Segal B.A., LL.B, LL.M, Program Chair, AILA Board of Governors

Last month, as I read Justice Scalia’s scathing dissent in Arizona v United States, I wondered what he’ll be thinking when he hears oral argument in the challenge to the Defense of Marriage Act (DOMA). The premise of Scalia’s dissent was that states have the right to control their borders. It seems logical then that Scalia, and those who claim to cherish state sovereignty, would likewise conclude that the regulation of marriage is also a matter appropriately left to the states. Why then is it that when it comes to immigration benefits for same-sex couples, state laws which recognize same-sex marriage are resoundingly trumped by the federal law which does not?

The answer is DOMA and its infamous limitation of marriage to unions between “one man and one woman” which puts family-based immigration benefits – such as green card sponsorship – beyond the reach of same-sex couples.

To be sure, the Obama Administration has made clear its support of same-sex marriage. This past May the President gave his public endorsement, explaining that he “had hesitated on gay marriage in part because [he] thought that civil unions would be sufficient.” His views continued to evolve, he said, because marriage “invokes very powerful traditions and religious beliefs.”

Yet despite the Administration’s evolution toward support for same-sex marriage, including Attorney General Eric Holder’s decision not to defend DOMA in litigation, American families in same-sex marriages continue to receive unequal treatment under our archaic immigration laws causing needless suffering and fear of separation.

Last week Jane DeLeon, an immigrant from the Philippines, challenged the constitutionality of DOMA as applied to deny immigration family benefits. In 2008 DeLeon married her long time US citizen partner. She is eligible for an employment-based immigrant visa, but requires a waiver due to a previous immigration violation. The waiver is available to immigrants such as DeLeon where the denial of her lawful permanent residency would cause extreme hardship to her US citizen spouse. In DeLeon’s case the waiver was denied solely because she is married to a woman even though, under state law, the woman is her wife.

Due to our broken immigration system a same-sex marriage recognized under state law means nothing. Same-sex couples remain at the mercy of an antiquated and functionally mean spirited statute and they will so remain at least until the Supreme Court addresses the constitutionality of DOMA.

On the Spanish program “Aqui y Ahora” recently, First Lady Michelle Obama said, “There is nothing more critical than keeping families together.” Yet how many more American families will be torn apart before the sanctity of same-sex marriage is no longer sullied by DOMA and its impact on our immigration laws?

Against a backdrop of recent press reports detailing the beating that the U.S. is taking in the international battle for brains and foreign investment, and calling for improvements to our laws governing high skilled immigration, along comes another letter of concern from Senator Grassley, this time addressed to the Government Accounting Office, asking for yet another investigation   What is the Senator concerned about this time?  Vague and unspecified “reports” of abuses of Optional Practical Training, the program under which foreign students graduating from U.S. colleges and universities may work in the U.S. in their fields for a period during or after completion of their degree programs. The Senator would have perfect comic timing, if his efforts weren’t dead serious.  To those of us not inclined to view the health of the U.S. economy as a laughing matter, Senator Grassley’s most recent anti-business immigration salvo shows how dangerously out of step he is with respect to the current thinking about the connection between the economy and high skilled and business immigration.

In the past year, there have been at least nine different legislative proposals that aim to improve our country’s attractiveness to the highly educated, especially in fields in which there are documented skill shortages among the U.S. born population, such as the hard sciences and the quantitative fields, and to enable those with innovative business ideas to stay and nurture those ideas to fruition here. Why has there been such a high level of legislative activity with respect to this aspect of our immigration laws?  It is a recognition by legislators that the part of our immigration laws that deals with the needs of U.S. employers and the ability of the highly skilled to remain in the U.S. has remained virtually untouched for over 20 years, and is sorely in need of a massive update to bring it into the 21st century. Moreover, it is a response to the wealth of research published in recent years with respect to the contribution of foreign nationals to our economic well-being, clearly showing that we stop drawing on the diaspora of international talent at our peril as a nation.

A recent study by the Ewing Marion Kauffman Foundation indicated that over half of Silicon Valley start-ups founded from 1995 to 2005 had one or more immigrants as key founder. Moreover, more than half of the foreign-born founders of U.S. technology and engineering businesses initially came to the U.S. to study. Seventy-five percent of the highest degrees among immigrant entrepreneurs were in STEM fields. Recent press reports have also pointed to the fact that our competitor countries see our outdated immigration system as a major weakness and are targeting it directly. Canada recently announced changes in its business immigration system designed to make it easier for entrepreneurs to immigrate, and in particular, to run small businesses in Canada. And perhaps the clearest symbol of the level of frustration with our unworkable system is the Blueseed project—the proposed “pirate entrepreneur” ship that will be docked off the coast of Silicon Valley and will provide development space for those who cannot obtain visas to launch a business in the U.S.—including many talented and creative graduates of U.S. business schools and other graduate programs.

Much of the animosity that comes out of Senator Grassley’s office toward high skilled immigration programs seems to be premised upon a perception that fraud and abuse lurk around every corner of those programs. One could certainly take issue with that, given the fact that according to USCIS’s own statistics, the incidence of fraud is relatively low. But the Senator’s most recent targeting of the OPT program—with no apparent factual basis whatsoever—really shows him to be out there on the fringe of the current national dialogue on how a smart immigration system can stimulate economic growth, particularly compared to his own colleagues in Congress. It lends credence to the conclusion that Mr. Grassley is simply out to wage a holy war on any and all improvements to our high skilled immigration system.

Now is the time for us to expand –not restrict–all possible opportunities to keep brainpower and dollars within our borders.

“If we don’t change direction soon, we’ll end up where we’re going.”-Professor Irwin Corey

We’ve been hearing about it for a while now.  We at first thought, oh no, what if it happens? Will everything change? Will I have to learn a new system? What among my assumptions will have to be thrown out?  “What we call ‘Progress’ is the exchange of one nuisance for another nuisance.”-HavelockEllis

Then we stopped hearing so much about it. So we thought, nah, nothing is going to change. Yes, the system is a mess, but it’s our mess. We know and have learned to live with it.

Face it, we all hate change.  We may pretend otherwise, but having to learn something new, and figure out a new set of workarounds for the inevitable issues and a new way of addressing things we haven’t thought about in years, is daunting.  We don’t want it.  “The only sense that is common in the long run, is the sense of change-and we all instinctively avoid it.”-E.B. White

But now we know it’s coming. In fact, the first piece of it is here.  It was called Transformation when it was being discussed in the abstract.  But now it’s real, and it’s called  ELIS – the Electronic Immigration System. 

It’s USCIS’ new system for receiving and processing applications and petitions, and it’s going to change the way we prepare and submit those filings.  It started May 22, 2012  for certain actions on an I-539 for nonimmigrants in B, F, J or M status.  Now, nonimmigrants directly, or through their attorneys, are able to apply to change or extend status in a web-based environment, upload scanned documents, submit applications, and pay on line.

The system does not have an interface with popular immigration forms processing and case management systems–yet; USCIS wants to get the platform stable and working before releasing code to software vendors and developers. However, this initial release does have a number of features that look friendly to attorneys and their clients, including the ability to send notifications to both attorney and client at separate email addresses. USCIS is looking for customer feedback on this first release in order to make adjustments and improvements, and they are committed to an agile development plan that targets the release of new form types in four-to-six month cycles.

Obviously, if the system works, it will have an incredible impact on the way that we practice immigration law, and can lead to costs savings and efficiencies that result from a move from a paper-based system to a fully electronic system.  The only way we’re going to figure out whether it works, where it has kinks and glitches, where it needs tweaks, and what practitioners need to do to transform the way that we practice, is to use it.  USCIS wants to hear your feedback, and so does AILA.  When you send comments to USCIS at uscis-elis-feedback@uscis.dhs.gov, let AILA know as well by copying reports@aila.org.

“Change is the constant, the signal for rebirth, the egg of the phoenix.”-Christina Baldwin

We might even like this.

Written by Eleanor Pelta, AILA President, and H. Ronald Klasko, AILA Past President

 The regional center EB-5, or Immigrant Investor, program enables businesses and real estate developers seeking capital to apply to U.S. Citizenship and Immigration Services to become approved to accept investments from foreign investors.  Each foreign investor, upon proving that his investment will create full-time jobs for ten U.S. workers, is able to apply for green cards for himself and his immediate family members.

The EB-5 program is a great example of a Congressionally-created win-win-win program.  Communities, real estate developers and businesses win because EB-5 capital enables buildings to be built and businesses to expand that otherwise would not happen because of unavailability of capital from traditional sources.  The U.S.labor market wins because hundreds of thousands of new jobs are created for U.S.workers.  Eligible and worthy immigrants win by being able to immigrate to the U.S. and contribute to our economy.

Unfortunately, as currently administered by USCIS, the program is not realizing its full potential.  The investment and job-creating purposes that Congress had in mind, and that the Administration fully supports, are being thwarted by ever longer USCIS processing delays and rules that appear to change in the middle of the process with no notice, creating unpredictability and soaring denial rates. This is having a serious chilling effect on foreign investors who are otherwise ready, willing and able to put millions of dollars to work in communities around the country.

Currently, 60% to 65% of the regional center applications are denied.  This statistic, in and of itself, is an indication that the program is clearly not functioning as it should.  The relatively small percentage that are approved are often approved either too late to enable the project to go forward or long after the project has already commenced.  Moreover, the frequency of requests for additional evidence (“RFE’s”)—sometimes several successive requests on the same case—shows that USCIS has been less than clear with stakeholders with respect to what it is looking for in an approvable case.  This is just not the result that Congress intended when it created this promising program.

AILA’s EB-5 Committee has spent a great deal of time studying the problems that are endemic to the EB-5 program and prevent the program from achieving its Congressionally-mandated goals.  The Committee suggests that the following “10 Point Program” could be implemented rather easily and could ultimately save the EB-5 program and maximize its job-creating potential:

1. Provide a forum whereby USCIS representatives on a quarterly basis can advise regional center stakeholders of the issues it is seeing in applications that are producing the largest numbers of RFEs and denials.  At the same forum, allow regional center stakeholders to provide lists of adjudicatory issues on which there is a lack of clarity.
2. When new standards are going to be implemented that will affect large numbers of applications (whether it involves the methodology for the counting of jobs that will be created, or the structure of bridge financing, or any other aspect of an EB-5 transaction), provide notice to stakeholders in advance, rather than issuing large numbers of RFEs on matters that were not of concern to adjudicators at the time of filing.
3. Implement USCIS Director Mayorkas’ idea of a Decision Board as promptly as possible.  This Decision Board would be made up of economists and business analysts and would meet or conference with regional center applicants to discuss any issues that need to be resolved before a project can be approved. 
4. Hire a sufficient number of examiners to bring processing times to levels that make some sense in a time-sensitive, job-creating program such as EB-5.
5. Instruct examiners that, except in rare instances, multiple RFEs should not be issued.
6. Publish meaningful guidelines on what adjudicators want to see when adjudicating a regional center application.  Most denials and RFEs are based on often-changing policies that are not contained in any regulation or even any government-issued memorandum.
7. Make the regional center amendment process workable.  Regional Centers are approved for specific geographical areas, specific industry codes and specific economic methodologies for counting job creation.  Right now, if a regional center wants to amend its geography, economic methodology or industry code, the published processing time is 8 months – longer than filing a new regional center application.  This is unworkable.
8. USCIS has created a process – the exemplar I-526 – that enables a regional center to have a project approved for EB-5 investment prior to receiving investments.  The problem is that, despite a $6,230 fee and an 8 month processing time, USCIS does not consider itself bound by any approval.  USCIS must make this process meaningful as a way of saving time and adjudicatory resources.  If it is not meaningful, stakeholders should not be expected to pay large filing fees and wait long periods of time; and the process should be eliminated.
9. Provide substantive responses to inquiries sent to USCIS’s EB-5 mailbox.
10. Last, but by no means least, increase the monitoring of approved regional centers.  We all agree that if there are any non-compliant regional centers or project developers, they do harm to the program and should be eliminated.

Developers who invest hundreds of thousands of dollars putting together projects to present to USCIS deserve clarity and consistency.  These prescriptions could be implemented immediately.  The result would be not only a benefit to developers but also to the country, which would attract greater amounts of foreign direct investment and create more jobs for U.S. workers.  We hope that USCIS will look favorably upon these constructive suggestions.

Written by Tony Weigel, AILA Media-Advocacy Committee

After serving for nearly two years on AILA’s Media-Advocacy Committee, I have closely followed a number of immigration policy issues. There are clearly some issues that spark more controversy than others, but many wholeheartedly agree that our policies should encourage immigration that directly contributes to investment and job growth in the U.S. Though surprisingly, in spite of consensus across party lines, little to nothing has been done.

My worldview, skewed as it may be, is one of being born and living most of my life in the Midwest, where politeness is the norm, the benefit of the doubt lives on, and second chances abound. However, even I am growing tired of the excuses and have heard enough double-talk from our leaders in Washington, DC. Now is the time to pass and implement critical business immigration measures to sustain and jump-start job growth. Some days, usually after telling a client of his or her limited visa options or of potential waits for an employment-based green card, I feel like reenacting the scene from the 1976 movie Network and screaming from my window, “I am mad as hell and I’m not going to take this anymore!”

Across America, many AILA members have directly interacted with international students, long-term H-1B workers, and the business community. I have volunteered time at the University of Missouri-Kansas City, Institute for Entrepreneurship and Innovation in a few capacities. Last fall, I presented at a session with international students about their visa options. Some could not or did not want to believe the disparity between the information available on www.uscis.gov about their options and the unreasonable, restrictive policy and adjudication standards that foreclose dreams. There was even greater disappointment with the state of legislative solutions.

It has been over two decades since the Immigration Act of 1990 was passed with bi-partisan support. Times have changed since then. Both technology and business models have evolved, yet our laws that facilitate the incorporation of foreign talent have not.

That level of disappointment spikes for these prospective job creators once their attention shifts to the abysmal availability of employment-based immigrant visas, especially for those from India and China. Why? Because if they are lucky enough to stay beyond their student visas and later seek a green card, they will take their place among the ranks of tens of thousands of other talented foreign nationals stuck in a long and growing line.

The potential loss of this country’s international student population would be a travesty, but consider the impact if every H-1B worker holding that status for longer than 6 years packed up and left the U.S. That collective transfer of experience, knowledge, and talent would be detrimental to our economy. Without doubt, we should have a functional permanent residence process, not a dysfunctional permanent application process.

Our elected leaders in Washington, DC constitute 537 of the most powerful people in the world. But when collectively pressed to address these issues, they answer, “We understand the problem and would like to help, but …” It is always “but” something. Don’t they realize they are destroying dreams and killing opportunities of foreign nationals and their prospective investments of talent and treasure? Don’t they care about U.S. workers in dire need of better employment opportunities that would flow from these investments?

Everyone knows things are bad. A quick read of the U.S. Department of State projections regarding employment-based visa availability is a prime example. However – unlike the reality-based fictional problems in the movie Network - we have leaders who seem to know what to do and there can be an end to these problems.

It would be a game changer if Congressional leaders could agree to promptly consider the solutions offered up in legislation like Representative Lofgren’s IDEA Act, H.R. 2161, or the current version of the Startup Act, championed by Senators Moran and Warner, and pass focused measures to help jump-start job growth in the U.S.

Fortunately, there are areas in which the Administration doesn’t have to wait for Congress to act. It can and should address the overall tenor of USCIS adjudications. The “culture of no” has transformed itself into the “status quo of no.” That needs to change. The January 2010 Neufeld memorandum is killing job growth opportunities and needs to be withdrawn.

Unfortunately, little has resulted from the high-level, 2011 pronouncements from the both the White House and the Department of Homeland Security with respect to administrative fixes to business immigration policy. The Administration’s Entrepreneurs in Residence proposal includes several positive steps for foreign nationals, such as permitting entrepreneurs to petition for permanent status, but to date there have been few concrete results. Even the simplest of actions, like making Premium Processing available for international manager and executive immigrant visa petitions, are inexplicably held up. According to a USCIS panel held in Lincoln, Nebraska, on May 9, 2012, Premium Processing will become available “eventually” as more training is required before going live.

We have big problems. Starry-eyed adoration of “job creators” and meaningless rhetorical efforts will not fix these problems. Serious work needs to be done now! The cost of inaction is too high. At some point, international students and long-term H-1B workers will stop dreaming about their long-term opportunities in the U.S. The business community will eventually conclude that Washington, DC, will never get this right. No one wins if we continue to erect artificial, irrational barriers to job growth.

I’m tired of all the talk. The U.S. can be a beacon of opportunity, not a place of disappointment. Elected leaders, please go to work tomorrow and do something to address these problems now while there is still time on the clock.

Now, you must excuse me. I’m headed to the nearest window to scream. Feel free to join me.