Nowadays, it’s rare to see Congress come to a quick consensus on anything, especially anything related to immigration! Despite my pessimism, Congress managed to agree, and quickly pass Senate Bill 3245. The bill was introduced in late May, passed the Senate in early August, and on September 13th, passed the House without any revisions. (Admittedly, the bill was only four pages long.)
The bill provides for a three year extension, through the end of Fiscal Year 2014 (September 30, 2015), of the EB-5 Regional Center Program, the E-Verify Program, and the Conrad 30 J-1 Waiver Program. The bill is currently with the President awaiting approval and signature in order to be enacted into law. As of September 20, 2012, the White House indicated the bill is currently pending, but given that the 10-day deadline for a pocket veto has now expired, it’s likely the bill will become law. (The Public Law number will be issued once the bill is officially enacted into law. Update: The bill, now Public Law 112-176 was signed into law on September 28, 2012 by the President.)
For business immigration practitioners, there are three reasons to cheer (or jeer), depending on what successes you’ve had with any of the issues below.
EB-5 Regional Center Program
In the past year, USCIS has unilaterally changed the EB-5 investor program on many fronts. Though USCIS will be conducting a Quarterly Stakeholder meeting in October to obtain more feedback, the issues of how transparent USCIS will be with this particular program remains to be seen. The EB-5 Regional Center Program is just one variant of the EB-5 investor program but the stakes are equally as high. Based on figures released by USCIS in July of this year, the number of petitions filed in this category (overall) has increased exponentially. The challenges, particularly in the Regional Center Program are many. In fact, you can read about the lawsuit filed September 13th by Mr. Ira Kurzban, of Kurzban, Kurzban, Weigner, Tetzeli & Pratt P.A., against the government, explaining in detail what some foreign investors have faced over the last few years. (I will certainly be following this case closely.)
For practitioners, navigating the investment waters can be tricky given that USCIS, from the perspective of many attorneys and investors, have failed to provide clear guidance on the adjudicatory standards by which officers are held accountable. Until that day comes, practitioners continue to play a critical role of bridging that knowledge gap for foreign clients. Based on the recent legislation, practitioners get another three years to prove their skill and expertise to foreign investors.
The E-Verify Program is another hot button issue. Whether you represent individuals seeking legal status, or an employer facing the burdens of enrolling and complying with the program, the rules are constantly changing, depending on what state you are in.
Are you aware of how USCIS is monitoring the data obtained by employer usage in order to determine compliance rates? Has your employer client received an email from USCIS’ Verification Division? Do you know how to respond to those emails or how to advise your clients? Have your foreign national clients been unfairly terminated as a result of a Tentative Non-Confirmation?
The permutations of immigration-related issues that arise, both on the individual and employer level, are many. The continuation of the E-Verify Program for another three years, especially absent a mandatory enrollment requirement on the national level, will keep immigration practitioners busy notifying clients of their rights and responsibilities. Did you know that you can subscribe to our sister blog, the LawLogix I-9 and E-Verify Blog to get updates on E-Verify?
Conrad State 30 Program (for J-1 Waivers)
Have you checked the filing details for the Conrad State 30 Program lately? It’s long and confusing, further necessitating the need for legal counsel. Fortunately, the State Department provides a helpful list of each state’s Public Health Department contact.
The extension of this program for another three years means planning in advance and planning quickly. For many states, the fiscal year begins October 1. This corresponds to the first day Conrad Waiver applications are considered (keeping in mind that this is one of many steps in the process). Having a uniform process to keep track of the relevant filing dates (just like a PERM application) helps to avoid missing key deadlines. What immigration management tools are you using to help you stay on track?
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