ABC News: "U.S. Appeals Panel Won't Lift Hold on Obama Immigration Action"

Last week, the 5th Circuit Court of Appeals in New Orleans refused to lift the temporary hold placed on parts of President Obama's executive actions on immigration reform. The Justice Department had asked the 5th Circuit to reverse a Texas judge who had agreed to temporarily block the president's plan in February, after twenty-six states filed a lawsuit alleging Obama's actions were unconstitutional. In the two-to-one ruling, 5th Circuit judges Jerry Smith and Jennifer Walker Elrod said that "the federal government lawyers are unlikely to succeed" in the underlying lawsuit filed by twenty-six states including Texas against the executive actions. Back in February, 2015, US District Judge Andrew Hanen in Texas, in a scathing decision accusing the government of deception in their representations, ruled to place the temporary hold on President Obama's executive action to expand the Deferred Action for Childhood Arrivals (DACA) and to create the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. The expanded DACA had been set to take effect February 18, and the DAPA program was scheduled to begin May 19. These programs would have granted work authorization and certain protections from deportation to millions of undocumented immigrants.

“The separation of powers and checks and balances remain the law of the land, and this decision is a victory for those committed to preserving the rule of law in America,” said Texas Attorney General Ken Paxton in a statement. While the decision is a victory for Texas and the twenty-five other states which supported the lawsuit, another fourteen states and the District of Columbia have appealed the decision, arguing that the Texas lawsuit failed to consider the economic benefits of immigration action.

''Ultimately, this is just a pause button,'' Laura Collins, the director of immigration policy at the American Action Forum, said to PRI. ''Until the court is able to rule fully on the merits of this, this doesn’t really talk about whether this program is appropriate for the executive branch to put forward.'' White House spokeswoman Brandi Hoffine said in a statement that the two-to-one 5th Circuit Court ruling ''chose to misinterpret the facts and the law.''

US Democratic Rep. Luis Gutierrez also said in response to last week’s court decision:

It is disappointing but not unexpected given the make-up of the Fifth Circuit and the panel hearing this preliminary case.  I am confident millions of immigrants will eventually apply for DAPA and DACA, because the law is undeniably on the President's side, as is public opinion. Meanwhile, I continue to work with Democrats and others who are preparing immigrant communities for the application process once the legal maneuvering is resolved and the courts reject the arguments of the Republican Governors and Attorneys General.  The longer the court process takes, the harder it is to imagine a Republican candidate remains competitive in a bid for the White House, because increasingly, this will be the defining and decisive 2016 campaign issue.

This ruling will not affect H-4 dependent spouses who are now eligible to apply for Employment Authorization Documents (EADs) as part of President Obama's executive actions. 

A Better Life

"Immigration reform has been an ongoing political issue at the federal level for years, and people often forget about the real people behind the headlines. Although not everyone supports DACA, we hope that the country is ready to hear from us and learn about the push-and-pull factors that cause families to emigrate from their home countries.  In Mexico, we lived in a house with 14 people, and we often had very little to eat. Our parents wanted us to have a better life and education."

- Brizzia Munoz Robles and Maria Munoz Robles
  The Washington Post

El Tapas de Begur

The tapas. Try some—they go fast.

In Begur, a charming town in the Costa Brava region of Spain (where I also visited last summer), there is this tiny but famous place that serves some of the best tapas you'll ever eat. So order a gin and tonic or sangria and try one. And then another. Okay, one more. Seriously, you won't be able to stop.

New York Times: "Want a Green Card? Invest in Real Estate"

Investing in real estate to secure permanent residency status (i.e., a Green Card) in the US has increasingly become big business in New York City. Through the EB-5 Immigrant Investor visa, which was created in 1990 by Congress "to stimulate the US economy through job creation and capital investment by foreign investors," foreign nationals (more than eighty percent from China) are investing billions of dollars into commercial and residential NYC projects, including hotels, condominiums, officer towers, and public works. The New York Times breaks down the investments: 

Twelve-hundred foreigners have poured $600 million into projects at Hudson Yards; 1,154 have invested $577 million in Pacific Park Brooklyn, the development formerly known as Atlantic Yards; and 500 have put $250 million into the Four Seasons hotel and condominium in the financial district. The list of projects involving EB-5 investments also includes the International Gem Tower on West 47th Street and the New York Wheel on Staten Island.

To qualify for the EB-5 investor visa, foreign nationals must invest $1 million, or in some cases $500,000, and create ten full-time jobs. In certain cases, foreign nationals can invest in projects approved by a US Citizenship & Immigration Services as designated Regional Center. Securing a Green Card through the EB-5 program is generally faster than obtaining one through other employment-based and some family-based routes, although Chinese nationals may now face delays since their country quotas will likely be met, resulting in backlogs of about two years.

The popularity of the EB-5 program has surged in the last four years. In fiscal year 2010, 1,885 visas were issued through the program, and in fiscal year 2013, the figure jumped by 354 percent to 8,564. Last year the entire annual allotment of 10,000 EB-5 visas were used by August, before the end of the fiscal year in October. As the program becomes more popular, it's unclear if Congress will raise the quota or perhaps the investment minimum. The surge in popularity has been attributed to not only the recession which made securing traditional funding and loans difficult to obtain but also the realization that many EB-5 investors require significantly less of a financial return than traditional loans, as EB-5 investors are more concerned about securing Green Cards. It's not only real estate projects benefiting from EB-5 investments—hospitals, ski resorts, and even state turnpikes have seen EB-5 funding as well.

The EB-5 program has faced significant criticism over the years. An Op-Ed in the New York Times once said that ‘’the program is so rife with fraud and corruption that it could actually have the opposite impact and deter investment." Numerous reports have detailed some instances of serious fraud, and if a project fails the investor can lose both the funding and the Green Card. But Peter Joseph, Executive Director of Invest in the USA, defended the program: '''It's a win for the investor, who's seeking to get an immigration benefit, along with a return on their investment, along with the American worker who's able to get to work, thanks to the capital investment coming through the program[.]'''

Doing the Hard Work For the Country

'''Isn't it amazing that those are not acknowledged as citizens here are the ones that are doing that hard work for the country...Doing the fighting and risking their lives. He is a hero now. And it's unfortunate sometimes that that's what has to happen in order for people to be known, in order for them to accomplish something.'''

- Gustavo Castillo
  "The Death Of Lance Cpl. Gutierrez"

Carolyn Is Back for the Summer!

Summer Associate Carolyn Szaiff.

We're excited to see Carolyn back for this summer. Carolyn has worn multiple hats at the firm from receptionist to paralegal to law student intern to summer associate. We are thrilled to have her back although we did note at our monthly firm outing last night, that she looked much happier with her cheesy fried bread than with the new filing project she is overseeing. At least, she had the same look of joy and trepidation when she received the new cases she would be working.

USCIS Temporarily Suspends Premium Processing for Extension of Stay H-1B Petitions

In an unexpected decision sure to cause frustration (trust us, there's already been a few choice words said here in our office), US Citizenship & Immigration Services  (USCIS) announced today that effective May 26, 2015 (less than one week away, which makes planning for this rather difficult), USCIS will temporarily suspend premium processing for all H-1B extension of stay petitions until July 27, 2015. During this time period, USCIS premium processing will not accept Form I-907 Request for Premium Processing Service, filed with H-1B extension of stay petitions, but USCIS says that they will continue to premium process H-1B extension of stay petitions filed with Form I-907 premium requests prior to May 26, 2015. It is unclear at this time whether the premium processing suspension will include change of employer petitions (since most of those include extensions of stay requests).

USCIS will refund the premium processing fee if petitioners filed the H-1B petitions prior to May 26, 2015, using the premium processing service, and, per their usual guarantee, USCIS did not act on the case within the fifteen-calendar-day period. Meanwhile, premium processing remains available for all other Form I-129 H-1B petitions, including H-1B cap-subject petitions, even though the beginning validity date for these cap-subject petitions cannot be earlier than October 1, 2015.

This temporary suspension is not usually an issue because once the H-1B extension petition is filed, the foreign national may remain in the US and continue working for their employer for up to 240 days past the expiration of their current status. For example, if an extension has been filed for the foreign national whose H-1B status is expiring on September 1, that individual can continue to work from now until April 28, 2016 (240 days from September 1). The problem arises if that foreign national in the example needs to travel internationally after September 1. Indeed premium processing can still be a valuable resource, especially in the busy summer months when international travel is at its peak, and foreign nationals wish to obtain an approval notice quickly so they can apply for a visa stamp at a US Consulate/Embassy abroad. Premium processing has been available to H-1B petitions since 2001, and the abrupt decision to suspend premium processing for these types of H-1B petitions is surprising and could put some US employers and foreign nationals in a bind.

USCIS claims that this temporary premium processing suspension is necessary so they can implement and adjudicate employment authorization applications for certain H-4 spouses, who can begin filing their applications on May 26, 2015. USCIS announced they were extending employment authorization to certain H-4 spouses back in February of this year, and it was hoped that USCIS would have used the intervening three months to determine its staffing needs in preparation for the volume of applications it will receive on May 26. It is unfortunate that USCIS is not more prepared and disappointing that foreign nationals who have relied on the availability of premium processing to make their summer international travel plans will now suffer the consequences of USCIS's lack of planning.

UPDATE (July 13, 2015): USCIS announced that effective July 13, 2015, they will resume accepting Form I-907, Request for Premium Processing Service, for all Form I-129 H-1B extension of stay petitions. While as we reported USCIS originally planned to resume premium processing for H-1B extension petitions later this month on July 27, after they "closely monitored" their workloads in regards to implementing and adjudicating employment authorization applications for certain H-4 dependent spouses—which, of course, was the reason for the premium processing suspension—USCIS determined (we're pleased to report) that they can resume premium processing earlier than expected on July 13.

Passport Control

"I DON’T know if I’ll ever be comfortable with the silence that comes after I’ve handed my papers to the passport control officer. In that moment, I instantly recall all my faults and sins from my childhood, including the day I accidentally broke an entire bowl of ceramic fruits from a friend’s dinner table. (I later tried to glue them back together.) There should be a German word for this fear, something long and terrifying. Instead of being afraid to fly, I’m mortally afraid of landing and being judged by the officer at the airport, even if I don’t have anything to hide."

- Vanessa Barbara
  "A Very Suspicious Traveler"