In the News at ABIL

Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website at www.abil.com.
The following articles are excerpts from ABIL’s monthly Immigration Insider, available here on their website.

 

ABIL Commenters Weigh In on USCIS Proposed Rule on Parole for Entrepreneurs

A recently proposed U.S. Citizenship and Immigration Services (USCIS) rule would, among other things, allow the agency to use its discretionary authority to parole into the United States founders of startups with a minimum $345,000 investment from certain qualified U.S. investors with established records of successful investments. The comment period ended October 17, 2016, and yielded hundreds of comments.

The Alliance of Business Immigration Lawyers (ABIL) took issue with various “miserly and inflexible provisions,” noting that the USCIS proposal “falls short in several material ways”; for example, by:

• Requiring voluminous and burdensome documentation to prove, by a preponderance of the evidence, “the substantial and demonstrated potential” likelihood that a start-up venture backed by a foreign entrepreneur will grow in revenue and add jobs rapidly;
• Offering no way for a parolee to switch from or to another lawful immigration status in the United States;
• Permitting startups and parolees too short a runway of initial and extended time for lift-off and stable cruising at higher elevations;
• Mandating an unreasonably high investment amount, limiting the source of start­up capital to a small group of venture capitalists, and barring consideration of “friends and family”-backed investments;
• Requiring re-submission of evidence and re-adjudication of the parole benefit virtually every time the entity’s ownership or strategic direction, or the job duties assigned to the foreign entrepreneur, may change after the initial approval of parole; and
• Omitting any direct path for the parolee to become a lawful permanent

ABIL made the following recommendations:

1. Start-up companies in “stealth mode” should be allowed to participate in this program.
2. The final rule should lower the parole and re-parole capital thresholds.
3. Qualifying investment amounts obtained within three years after creation of the start-up should count toward the USCIS-proposed threshold of $345,000.
4. The final rule should reduce the investment threshold of $345,000 for initial parole to $120,000.
5. The final rule should revise the definition of “well-positioned” to substantially assist a start-up.
6. The final rule should define “start-up entity” more clearly and accept reputable expert witness testimony.
7. The final rule should allow parole for entrepreneurs in startup companies formed more than three years before the parole application is filed.
8. The final rule should define “capital” broadly.
9. The final rule should allow investments from family members and close friends.
10. The final rule should include a more flexible definition of full-time employment.
11. The proposed rule’s requirement to file a new parole application whenever a material change occurs is impractical and onerous.
12. The final rule should extend parole beyond five years and allow a pathway to permanent resident status.
13. The final rule should complement and not supplant prior USCIS policy on entrepreneurs.
14. Spouses of entrepreneurial parole beneficiaries should automatically receive work authorization incident to status; i.e., without the need to apply separately for an Employment Authorization Document.
15. The final rule should authorize premium processing and expressly permit review by motion to reopen and reconsider and administrative appeal, also with premium processing, with the assured continuity of the parolee’s employment authorization until the receipt of the final USCIS decision.
16. The final rule should allow parolees to switch status to or from all employment-based nonimmigrant visa categories and to qualify for adjustment of status.
17. The final rule should apply the authority granted to approve applications for adjustment of status to that of a lawful permanent resident where the parolee’s inability to adjust is “other than through no fault of his or her own or for technical reasons.”

 

ABIL’s 20-page comment is at https://www.regulations.gov/document?D=USCIS-2015-0006-0416. The proposed rule was published on August 31, 2016, and is at https://www.federalregister.gov/articles/2016/08/31/2016-20663/international-entrepreneur-rule.

 

U.S. Supreme Court Denies Rehearing in U.S. v. Texas

The U.S. Supreme Court denied rehearing of United States v. Texas on October 3, 2016. The Court’s refusal to reconsider the case, on which it was deadlocked 4-4 in June, means that several Obama administration deferred action programs remain blocked by the U.S. Court of Appeals for the Fifth Circuit’s order. The programs include Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). The original DACA program is unaffected and has continued since 2012.

President Barack Obama’s nomination of Merrick Garland to the Supreme Court has languished for more than 200 days as Senate Republican leaders have refused to take up the matter, holding out for the next presidential election. In its petition for rehearing, the Obama administration had argued that the Court should grant rehearing to provide for a decision when the ninth Justice is appointed, rather than leaving in place “a nationwide injunction of such significance”:

Unless the Court resolves this case in a precedential manner, a matter of “great national importance” involving an “unprecedented and momentous” injunction barring implementation of the Guidance will have been effectively resolved for the country as a whole by a court of appeals that has divided twice, with two judges voting for petitioners and two for respondent States.

Other litigation is progressing or may be taken now that the Supreme Court has decided not to take up the case again. Meanwhile any efforts toward comprehensive immigration reform continue to languish. Stay tuned.

The petition for rehearing is at http://www.scotusblog.com/wp-content/uploads/2016/08/15-674-Petition-for-Rehearing.pdf. For more information on DAPA and DACA, see https://www.ice.gov/daca. For more on U.S. v. Texas, see http://www.scotusblog.com/case-files/cases/united-states-v-texas/.

 

USCIS Increases Validity of Work Permits to Two Years for Asylum Applicants

Effective October 5, 2016, U.S. Citizenship and Immigration Services (USCIS) has increased the validity period for initial or renewal Employment Authorization Documents for asylum applicants from one year to two years. Applicants with pending asylum claims file applications for employment authorization (Forms I-765) under category “(c)(8).” This change applies to all (c)(8)-based applications that are pending as of October 5, 2016, and all such applications filed on or after October 5, 2016.

The announcement is at https://www.uscis.gov/news/alerts/uscis-increases-validity-work-permits-two-years-asylum-applicants.

 

***

This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.

***

 

Back | Index | Next

Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.