The EB-5 Program – The Million Dollar Investor Visa

By: Danielle Huntley, Esq.  

USCIS offers permanent residency, the green card, to foreign nationals who invest either $500,000.00 or $1,000,000.00 in U.S. businesses that create jobs for at least 10 U.S. workers within a 2 year period. This special immigration program, known as the EB-5 visa, can benefit both foreign nationals seeking a way to obtain permanent residency in the U.S., and businesses looking for foreign investment in their projects. These opportunities are available throughout the U.S.

 

The EB-5 program’s reach and use is only limited by the creativity of those wishing to utilize it.  It is a useful tool because it enables high net worth individuals to obtain permanent residency in the U.S. with no requirement of taking an active role in the business, and enables U.S. companies to obtain job creating capital.  Normally, an investment of $1,000,000.00 is required. However, this investment amount is reduced to $500,000.00 when the investment is made in either a troubled business or in an area of high unemployment.

 

Under the EB-5 investor program regulations, there are three ways to obtain the benefits of the program:

 

  1. A direct application by one or more foreign nationals who have invested in a qualifying investment.
  2. A passive investment by an individual foreigner in a Regional Center which has been pre-approved by USCIS.
  3. On or more business entities can apply to USCIS for approval of an entity that would qualify as a Regional Center.

A Regional Center is any economic unit, public or private, which is involved with the promotion of economic growth, including increased exports sales, improved regional productivity, job creation, and increased domestic capital investment. Under the EB-5 regulations, Regional Centers are also referred to generically as the Immigrant Investor Pilot Program. There are currently 160 approved Regional Centers in the U.S.

 

Our next entry will describe what is required of a foreign investor to participate in this program.

 

 

 

PROS & CONS: Suing in Federal Court for Immigration Denials and Delays

By: Lawrence P. Lataif  

Most people are aware from the news that federal lawsuits are often filed in connection with attempts by individual states to regulate immigration, and by individuals seeking to avoid deportation (now called removal) when found guilty of crimes, denied political asylum, or found to be removable based on other grounds.

 

Much less known is that federal lawsuits are available for immigration benefits which have been wrongfully denied or unreasonably delayed. Such suits, which represent only a small percentage of federal court lawsuits, can be filed by individuals or employers who are aggrieved or prejudiced by USCIS (United States Citizenship and Immigration Services) action (or inaction) in individual cases. While a federal lawsuit is not feasible or advisable in every situation, it can be very effective when a federal district court judge has become, literally, the court of last resort.

 

What actions can be brought to Federal Court?

Lawsuits for denied or delayed immigration benefits can include claims for:

 

  1. Declaratory Judgment
  2. Injunctive Relief
  3. Constitutional Violations – Due Process and Equal Protection
  4. Administrative Procedures Act Violations
  5. Mandamus Actions
  6. De Novo Review of Naturalization Denials
  7. Monetary Damages
  8. §1983 Civil Rights Actions

 

Practical Benefits of Filing Suit

Any litigant or lawyer who files a federal court lawsuit must be prepared for lengthy litigation, even though 98.5% of all lawsuits do not go to trial. However, there are practical benefits that accrue to virtually every litigant once a federal court lawsuit has been filed. Among these are:

 

  1. Case gets immediate review by U.S. Attorney’s Office
  2. Case gets reviewed by lawyers from OIL (Office of Immigration Litigation)
  3. Case gets high level administrative review by USCIS
  4. Where the issue is unreasonable administrative delay the case is often won without the government ever filing an answer

 

When Does Litigation Make Sense?

 

Federal court litigation can be appropriate in any one or more of the following situations:

 

  1. CIS policy violates statute or regulations
  2. CIS policy or regulations are unconstitutional
  3. Statutes conflict with each other
  4. USCIS ignores favorable evidence to justify denial

 

Yet, even in these cases, there are important considerations to address before taking the significant step of filing a federal court action. Exhaustion of administrative remedies must be done, unless there is a very compelling reason against it. The costs involved, including legal fees, third party costs and the substantial commitment of time, must be carefully evaluated. Thought must also be given to whether other relief is available to fix the problem, such as a different immigration filing strategy or Congressional action that may change the applicable law.

 

Helpful Research Resources

 

Examples of federal court litigation addressed above can be found at the following research resources:

 

  1. Immigration LexisNexis Community (formerly Bender’s Immigration Bulletin – Daily Edition) - www.lexisnexis.com/community/portal/
  2. Immigration Daily - www.ilw.com
  3. Interpreter Releases – Federal Case Summaries by Gerald Seipp
  4. WSJ Law Blog - blogs.wsj.com/law
  5. SCOTUSblog -  www.scotusblog.com

 

ANNOUNCING: Three-Part Seminar: "Federal Court Litigation Against USCIS and Other Federal Agencies."

 

Lataif, LLC has been invited to conduct a three-part seminar series on Federal Court Litigation in Immigration cases starting in the fall and continuing until February of next year. Hosted by the Boston Bar Association, each presentation will be accompanied by a Power Point presentation and the floor will be open throughout for questions and answers.

 

Topics:

 

  • Why, How and When businesses and individuals can sue when immigration benefits are wrongfully denied or unreasonably delayed
  • What types of immigration decisions can prompt a federal lawsuit including erroneous petition denials, and illegal and improper CIS policies
  • What claims can/should be brought: Declaratory Judgment, Injunctive Relief, Mandamus, APA violations, Constitutional violations: Due Process, Equal Protection, De Novo review
  • Drafting considerations – including venue, exhaustion issues, complaint drafting issues and practice pointers
  • Anticipating the defenses – ie: CIS has unlimited and unreviewable discretion, and federal courts have no jurisdiction.

 

Save the Dates!

Attendance is FREE for Boston Bar Association members and non-members. Seminars from 3:00-5:00PM at the Boston Bar Association at 16 Beacon Street, Boston, MA. Dates as follows:

 

SEMINAR PART ONE: “Suing in Federal Court for Immigration Denials and Delays: When Your Client Has No Choice but to Sue the Bureaucrats." Tuesday, October 18, 2011

 

SEMINAR PART TWO: “Pretrial Discovery.” Tuesday, November 15, 2011 (**POSTPONED EVENT -  NEW DATE TBA**)

 

SEMINAR PART THREE: “Mock Litigation.” Tuesday, February 21, 2012

 

The program will be included in a WestEd Legal Center live, online broadcast. Please visit here to register for the online broadcast. Online listening fee of $55 applies.

 

The event will be moderated by Ellen Kief of Law Office of Ellen S. Kief and handouts with exhibits and citations will be provided.

 

Speakers:

 

Lawrence P. Lataif, J.D., LLM – Larry has been practicing federal immigration law exclusively since he joined Jones Day in 1986 to organize and head its firm-wide immigration practice. Larry also headed the firm-wide immigration practice of McDermott, Will & Emery and has headed his own boutique immigration firm for over 15 years. Larry conceived of the Religious Worker law and headed the legal team that brought about its passage in 1990. Most recently, Larry’s extensive publications have continued in the Palm Beach Post and Miami Daily Business Review. In 2004, Larry was honored for his legal accomplishments as a recipient of the Ellis Island Medal of Honor. Larry has extensive federal court litigation experience, including federal immigration lawsuits against USCIS, the Department of Homeland Security (DHS), and the Department of Justice (DOJ) requesting declaratory judgments, APA review, mandamus, Constitutional and injunctive relief.

 

Danielle E. Huntley, JD – Danielle works with Larry on a broad range of immigration matters, including federal litigation. Danielle graduated cum laude from Boston College as a Scholar of the College in Philosophy. At Boston College Law School she was a quarter-finalist in the Grimes Moot Court Competition where she was recognized as a top ten oralist and brief writer. She was a member of the National Religious Freedom Moot Court Team and Co-Chaired the Grimes Moot Court competition the following year. In her third year, Danielle was chosen to spend an intensive full-year working in the Administrative Law Division of the Massachusetts Attorney General’s Office.

Prosecutorial Discretion in Immigration Cases?? Really?

By: Danielle E. Huntley, Esq.  

It is only in Wonderland that a state actor can say that they have prosecutorial discretion when they are not a prosecutor and have no statutory authority for discretion. Yet, as we see again, our current immigration system seems stuck in it.

 

Prosecutorial discretion is a valuable necessity for state and local District Attorneys, and federal prosecutors charged with prosecuting crimes.  It means that a prosecutor can choose not to prosecute someone, negotiate a plea bargain and drop charges among other actions. Prosecutorial discretion recognizes the need for flexibility when enforcing state or federal laws. If you have ever seen an episode of Law & Order where the prosecutor makes a deal with a defendant for their testimony against another defendant, you have witnessed prosecutorial discretion in action. Or if you hear on the news that the District Attorney has decided not to press charges against an individual, that is an exercise of prosecutorial discretion. Prosecutorial discretion is at its broadest at the beginning of the criminal process, and, ceases to exist once an individual has plead guilty or been convicted. This ending of prosecutorial discretion is vital in our democracy, because if prosecutorial discretion is unfettered, the rule of law becomes solely dependent upon the whims of individual state actors.

 

There is a great deal of confusion surrounding prosecutorial discretion in the enforcement of immigration law. The director of ICE, John Morton, released a memorandum on June 17, 2011 (the Morton memo) that instructs ICE personnel how to exercise prosecutorial discretion in the following situations – which the memo clearly states is not exhaustive:

 

  • deciding to issue or cancel a notice of detainer;
  • deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA);
  • focusing enforcement resources on particular administrative violations or conduct;
  • deciding who to stop, question, or arrest for an administrative violation;
  • deciding whom to detain or to release on bond, supervision, personal recognizance, or other condition;
  • seeking expedited removal or other forms of removal by means other than a formal removal proceeding in immigration court;
  • settling or dismissing a proceeding;
  • granting deferred action, granting parole, or staying a final order of removal;
  • agreeing to voluntary departure, the withdrawal of an application for admission, or other action in lieu of obtaining a formal order of removal;
  • pursuing an appeal;
  • executing a removal order; and
  • responding to or joining in a motion to reopen removal proceedings and to consider joining a motion to grant relief or a benefit.

 

Furthermore, the criteria used to decide whether to exercise prosecutorial discretion is neatly summarized in the first footnote of the Morton memo. It states:

 

“The Meissner memorandum’s standard for prosecutorial discretion in a given case turned principally on whether a substantial federal interest was present. Under this memorandum, the standard is principally one of pursuing those cases that meet the agency’s priorities for federal immigration enforcement generally.”

 

The memo goes on to give a long list of 19 broad, subjective factors that an ICE agent should use to determine whether to exercise prosecutorial discretion. These factors are so broad that it would not be difficult for most aliens in removal proceedings to make a colorable claim under one or several of the factors. The broadness of when prosecutorial discretion can be invoked, and what policies support its invocation, is so vast that it renders the rule of law in immigration enforcement tenuous at best.

 

This is particularly true when prosecutorial discretion can be exercised when the alien is under a final order of removal. If the alien is under a final order of removal, they have undergone a trial in immigration court in front of an immigration judge, and they have exhausted their administrative appeals and judicial remedies in federal court. Imagine if a criminal prosecutor could decide to drop all charges against a defendant who has been convicted by a jury of his peers and after all appeals had been exhausted– the rule of law would be meaningless. The prosecutorial discretion granted to ICE agents is that broad.

 

Prosecutorial discretion in immigration enforcement needs to be limited in the same way that it is limited for criminal prosecutors. Otherwise, the fair administration of the immigration laws of this country is rendered impossible. Unfettered “prosecutorial” discretion that can be exercised even after a final order of removal,  results in arbitrary decisions, wasted taxpayer dollars and utter dependence on bureaucratic whim.

 

New O-1 Visa Restrictions Make Approval Uncertain

By: Danielle E. Huntley, Esq.  

The O-1 visa is a useful tool to bring the world’s best and brightest to the United States. The O-1 visa enables a U.S. company or institution to petition to bring an alien of extraordinary ability to the U.S. An alien of extraordinary ability can also self-sponsor for the O-1. It is initially granted for a period of three years, and it is particularly useful because it can be renewed indefinitely and it can facilitate obtaining a green card for the alien. It enables many foreign doctors and researchers to come to the U.S.

 

Since 1991, according to the Code of Federal Regulations (CFR), the evidence submitted to establish extraordinary ability must show that the “alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.”  8 C.F.R. §204.5(h)(3) To establish this, evidence “of a one-time achievement (that is, a major, international recognized award), or at least three of the following” criteria, must be shown:

 

“(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

 

(ii) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

 

(iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;

 

(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;

 

(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

 

(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

 

(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;

 

(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

 

(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or

 

(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.”

 

8 C.F.R. §204.5(h)(3)

 

The text quoted above plainly states that there are two ways to establish extraordinary ability: (1) a major, international recognized award (the Nobel Prize is an often used example), or (2) establish at least three of the above criteria. However, reading only the CFR would be misleading because USCIS recently added a new, second level of criteria – a nebulous final merits determination.

 

This new level of review was not added through the congressionally mandated procedures for adding new regulations to the CFR, but rather through a December 22, 2010 Policy Memorandum. The memo updates the Adjudicator’s Field Manual in relevant part to say:

 

“Meeting the minimum requirement of providing required initial evidence does not, in itself, establish that the alien in fact meets the requirements for classification as an alien of extraordinary ability…In Part Two of the analysis in each case, USCIS officers should evaluate the evidence together when considering the petition in its entirety to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise, indicating that the alien is one of that small percentage who has risen to the very top of the field of endeavor.”

 

Oddly enough, USCIS imposed these new restrictions under the cover of a Ninth Circuit Case, Kazarian v. USCIS, which faulted USCIS with “unilaterally impos[ing] novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. §204.5.” Kazarian, 596 F.3d 1115, 1121 (9th Cir. 2010).

 

Even putting aside the flagrant disregard of the regulation making process, mandated by the Administrative Procedure Act, this second level of review is facially problematic. It gives the USCIS adjudicating officer, who most likely has no experience or qualifications in the alien’s field of ability, the unfettered power to ignore the regulatory criteria and deny petitions using the rubric the totality of the circumstances. The O-1 visa is left to the mercy of the adjudicating officer’s particular opinions and prejudices. This new level of review will undercut predictability and will make the application process more time consuming, resource intensive and expensive for the alien and the U.S. companies or institutions who are petitioning for them.