Alan Lee Talks to Chinese United Association of Brooklyn as published in the SingTao Daily on June 8, 2011

By Alan Lee, Esq.

Attorney Alan Lee delivered a speech on immigration to the Chinese United Association of Brooklyn on May 15th in which he discussed L-1A intracompany transferees, EB-5 Investment, and PERM labor certifications as ways to immigrate through the employment based categories.  He showed the audience that the attraction of these categories was in good part because of the shorter length of time to immigrate through demonstrating how the June 2011 monthly visa bulletin of the Department of State showed that intracompany managers and executives along with immigrant investors had open quota slots while labor certification applicants with advanced degrees or the equivalent whose education was needed for the jobs which they were being sponsored had open quotas except for native born of China and India whose final immigration was open for those applying by October 15, 2006.  Other than mainland born Chinese, Chinese natives of Taiwan, Hong Kong or Macau are counted among other countries whose advanced degree categories have open visa slots.  Mr. Lee did warn that persons illegally here in the States are not generally eligible to adjust status to permanent residence unless they are also beneficiaries under Section 245(i) under which they can pay a thousand dollar fine to adjust so long as they either had immigrant visa petitions or labor certification applications filed on their behalf by April 30, 2001, and are able to prove that they were physically present in the country on December 21, 2000.

On L-1A intracompany transferees, who are executives or managers, he said that a good company could transfer employees and their families to the U.S. during the period of the visas or even easily immigrate them through the category  - that they would not require labor certifications to immigrate.  He said that these applications are generally filed at the U.S.C.I.S. regional service centers in Vermont or California, and showed a list of documents which are generally required from the U.S. and overseas companies.  He also said that U.S.C.I.S. over the years has favored larger size companies against small companies and that persons thinking of establishing a small company of 2-5 people and getting the green card through the process should expect a challenge from U.S.C.I.S. His recommendation was that persons wanting to go through the category for the green card should think bigger in terms of company size. 

Mr. Lee then talked about investment immigration, its history, and that Mainland-born Chinese received 41% of EB-5 visas in the past fiscal year (FY).  He also cited U.S.C.I.S. statistics that the overall approval rating of investment petitions (I-526) in FY-2010 was 89%, and for removal of conditional residence (I-829) 83%.  He spoke of the difference between individual investment and investment in a regional center as being that individual investors usually had to make a $1 million investment as opposed to $500,000 for a regional center, and that the 10 U.S. workers required to be hired were the responsibility of the regional center rather than the investor who bore the burden in an individual investment case.  He pointed out that there are approximately 250 regional centers across the nation, and that investors faced the twin risks of whether they would ultimately be able to achieve their goal of immigration and keep their money safe.  He said that immigration lawyers like himself were more comfortable speaking about the immigration risk, but not the investment risk because they were not familiar with finance issues and did not have licenses as brokers or dealers.  He did point out that U.S.C.I.S. now allows a guarantee on investment by a third-party insurance company to reduce the financial risks.  He advised potential investors to look at the investment immigration program as a good opportunity, but to be careful. 

On PERM labor certifications, he traced the history of the Department of Labor's labor certification programs from the 1970's, and that the PERM program which began in 2005, features electronic review management, and is more complex than its predecessors.  He said that the prior programs failed because of backlogs reaching five years, but that first review of a case in the current PERM program is currently two months.  He went through the technicalities of obtaining a prevailing wage on-line from the Department of Labor, and showed how the wage could be calculated before submitting the request by using Appendix C, the worksheet provided by the Department of Labor for such calculations using the Department's OES system.  He said that whether a case could qualify under the advanced degree category would depend upon the employer's requirement for the position, and whether the employer's requirement was seen as realistic by the Department of Labor.  He went through the steps of recruitment for U.S. workers which must be done before submission of the PERM application - job order, newspaper ads, and notices of posting, along with three additional steps for professional cases, and reminded the audience that the Department's rule since July 2007, restricts the payment of fees and expenses associated with labor certification processing to the employer alone.



The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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