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The American Immigration Council plans to honor entrepreneurial immigrants that have contributed to our nation at the Immigrant Achievement Awards on March 29th, 2012.

The American Immigration Council is a non-profit organization that “exists to promote the prosperity and cultural richness of our diverse nation”. It’s activities include educating people about the contributions of America’s immigrants, lobbying for sensible immigration policies and laws that encompass American values and constitutional and human rights, and they try to achieve justice and equality for immigrants in the United States.

Many influential individuals including our nations best immigration lawyers our members of the American Immigration Council.

An excellent recent New York times article described why Apple ultimately decided to shift its production to China. As Steve Jobs told Barack Obama, “Those jobs aren’t coming back”. Apple kept its manufacturing plant in the U.S. longer than almost all of its competitors.  Apple eventually realized it just could not compete using U.S. manufacturing plants. All of the products used in the supply chain are much cheaper in China, and more importantly they get the job done in the strict time -lines dictated by modern enterprise.

For example, when Apple needed to switch its initial iPhone to scratch-proof glass, “a foreman immediately roused 8,000 workers inside the company’s dormitories… and within half an hour they started a 12-hour shift fitting glass screens into beveled frames. Within 96 hours, the plant was producing over 10,000 iPhones a day.”

Where America does still have an advantage, is its innovation. This is why our top companies still keep their corporate headquarters here, at least for now. Often many of the workers they need are American, but sometimes the worker with the right complimentary skill-set is from a foreign country.  This is especially true in the IT field. American companies need to be able to attract the best and the brightest in all fields without being stonewalled by government red-tape. Sure they might need to retain an immigration lawyer, to navigate the process, but there should always be a way for them to get the workers they need.

For example if a company wants to hire a highly skilled worker with a Master’s degree from another country, there is no easy solution. During part of the year they might be eligible for an H-1B visa, but once the cap is met, as it has been for the 2012 fiscal year, this is not a possibility. New visas aren’t released until October 2012, which is an eternity in today’s world. If the person is truly extraordinary they might qualify for an EB-1 green card  or O-1 visa, but this is a tough standard that many talented people and especially younger individuals (as they can’t demonstrate sustained acclaim) will not be able to satisfy.

And this is only the problems for established company. Entrepreneurs face other visa issues that often present even tougher hurdles to overcome.

Clients who have been abandoned by their attorneys may still be eligible for post-conviction relief even if they did not always meet the court’s deadlines. The Supreme Court ruled on January 19th, 2012 that it matters when an attorney abandons their client.

This is good news for prisoners pursuing postconviction relief. Preciously the Supreme Court held that a criminal defendant has no right to counsel when filing a federal post-conviction motion, but the prisoner is still expected to meet strict deadlines. Now if an attorney abandons their clients and prisoners fail to meet the filing deadlines, they can argue good cause or request equitable tolling to overcome this procedural hurdle.

Post-conviction relief is often necessary for immigration reasons for permanent residents as well as non-immigrants. Frequently, a person will get arrested for a crime. Their attorney will often get them a “great deal” where they can plead guilty to the felony, and only receive probation. However, there are frequently immigration consequences to this plea deal that can result in a surprise deportation. Sometimes post-conviction relief can be obtained if a person was not adequately advised of the immigration consequences, but it becomes an uphill battle.

A much better approach is to retain a skilled criminal attorney that can also effectively advise about the immigration consequences. If the criminal attorney is not fully aware of the immigration consequences then a none U.S. Citizen defendant should have a consultation with an immigration attorney before agreeing to any  plea bargain.

Susan Berfield of Businessweek recently reported on the Mamtek EB-5 project. As detailed in our earlier post, the Mamtek project was one that unfortunately never came to fruition. There were plans to build a large scale factory to produce a sugar substitute, known as Sweet-O. At first it was just delays, but then the plan eventually unraveled as people looked deeper and realized that the head of the company had no idea how to create a large scale manufacturing plant.

For example, the engineer he hired Lindsay Leveen, had the following to say about the disorganization of the company: “Three or four weeks in, I was like, ‘Oh, my God.’ No one had any experience running a company. There was no plan, no construction budget, no operating budget, no estimates, no forecasts. Nothing. It was so chaotic.”

Hopefully, this one unfortunate EB-5 project will not spoil the whole program. The EB-5 program has allowed many people to successfully immigrate to the U.S. while creating thousands of badly needed jobs.  It is important for individuals interested in the EB-5 program to do their due diligence and hire an experienced EB-5 lawyer.

The priority dates in the employment based 2nd preference category, also known as EB-2, moved up an entire year for China and India. Beginning on February 1st, 2012 USCIS will now accept I-485 applications for individuals in the EB-2 category from China or India with a priority date of 1/1/2010 or earlier. The January 2012 Visa Bulletin indicates that this month USCIS is working on applications filed on 1/1/2009 or earlier, which had a 9 month jump in the India/China EB-2 category from the December 2010 Visa Bulletin (which indicated USCIS was working on cases filed on 03/15/2008) .

The large jumps in the visa numbers indicate a large reduction in labor certifications during 2008 through 2010, which not surprisingly corresponds with the economic downturn.

Priority dates can retrogress so we recommend that anyone who is eligible to file does so as soon as an immigrant visa is available. If you need assistance, please contact an immigration lawyer.

Many states passed immigration laws this past year including California, Alabama, Georgia, Louisiana, Tennessee, and South Carolina.

The California DREAM ACT does not go into effect until 2013, when it will help an estimated 2500 undocumented college students qualify for waivers, Cal Grants and other aid.

The controversial Alabama immigration law imposed various measures. The one that recently took effect is that beginning January 1st any employer that does business with a government agency must use E-Verify. And beginning April 1st all Alabama employers must use E-Verify. Hopefully more of the bugs have been worked out with E-Verify so authorized people will not be prevented from working. Other parts of the Alabama law, including the part that required schools to check a child’s immigration status was blocked by the 11th Circuit.

Parts of the South Carolina immigration law which was scheduled to take effect on New Year’s Day was also blocked. Thankfully, a federal judge blocked the portion of the law that criminalizes renting a room to an illegal immigrant, or giving them a ride. Apparently the South Carolina legislature expected taxi drivers and hotel clerks to ask for proof of valid immigration status before letting someone get in the cab or renting them a room.

On August 2nd, 2011 Secretary Napolitano and USCIS Director Mayorkas made a dramatic announcement that entrepreneurs and investors could take advantage of the existing immigration system to obtain a visa and/or green card. One aspect of this memo indicated that adjudicators would view “self-petitions” by entrepreneurs for an H-1b visa more favorably.

The classic scenario is when an entrepreneur wants to start a business and sponsor him/herself for an H-1B visa. Technically it is the corporate entity, not the individual that is requesting an H-1B visa for the entrepreneur. Of course to qualify, the petitioner must show that the position requires at least a Bachelor’s Degree in the specialized field and that the beneficiary has such a degree or equivalent.

The case law is mixed on this scenario. Some cases have ruled that the separate corporate entity may indeed petition for the beneficiary, others have not turned out so favorably. For those that get denied, it appears that garnering media attention may be the best solution.

For example, an Israeli Citizen with an MBA from Stanford started Cruisewise and received over $1.65 million in venture capital funding. The company filed an H-1B visa on his behalf that was denied. However, after ABC news broadcast the story USCIS decided to reverse the denial.

Cases indicate that USCIS will frequently cite one or both of two different reasons for refusing to approve an H-1B by an entrepreneur.

First, after the January 8th Neufeld memo, the petitioner must show the ability to control the beneficiary. One possible way of doing this is having an independent board of directors that has the ability to hire, fire, and supervise the beneficiary.

The second reason USCIS will argue is that the position is not a specialty occupation. There are reports that USCIS will sometimes state that the CEO position is too generalized and not a specialty occupation. Depending on the position, a strong argument could certainly be made that a CEO is in fact a specialty occupation.

Hopefully, directives from the top will continue to come down to approve otherwise qualified petitions by entrepreneurs, as entrepreneurs are what defines the American dream and in many ways are the lifeblood of our economy.

Rep. Chafetz’ bill (H.R. 3012) which would phase out the per-country limit for employment-based immigrants and increase the limit for family-based passed the House. It was put into the “hotline” process in the Senate, which means that the bill can be halted if any member objects. And, not surprisingly Senator Grassley put a hold on it.

To release his hold Grassley wants dramatic changes including: reducing the employment based per-country limit to 15% and eliminating the family per-county limit increase. Furthermore, he’s insisting that the completely absurdDurbin/Grassley H-1B limitation provisions that were shot down back in 2009 become apart of the bill.

The Durbin/Grassley H-1B limitation provisions essentially prevent employers from hiring skilled foreign workers as they would have to go through a process similar to the labor certification process for a green card. This would include an in depth recruiting process and proving non displacement of U.S. workers. The employer must also pay wages above what comparable U.S. workers earn. The employer could also not send the worker to a secondary work site (i.e. no more traveling physical therapists, occupational therapists, and computer consultants). Reporting requirements would also greatly increase among other restrictions.

In other words Grassley wants to make the H-1B program so expensive, time-consuming, and burdensome for employers that it would eliminate the program. As an employer will not want to pay tens of thousands of dollars in legal fees, spend months recruiting, and pay the foreign worker more than U.S. workers. Many employers will simply pack up their businesses and move them to another country.

Obviously, Grassley either doesn’t care about American businesses or simply doesn’t understand high school level economics. It baffles me that the people in Iowa continue to elect him.