Thursday, July 29, 2010

The Problem with "Linked In"

Just a thought/question: I have 63 contacts in "Linked In", almost all of them people with whom I share a fundamental client base.  Good people; SMART people.  Nothing ever happens except people invite me.

On Facebook, I have 271 friends.  I sneeze and I get 15 responses.

What's wrong with this picture?  Maybe it's that I am not "working" Linked In the way I "work" FB but I'll tell you what...show me who your FRIENDS are...

And I'll tell you ALLLLLLL about you...(-;



Newly Discovered Press Coverage...about US!

Melissa and I worked, along with other immigration attorneys with whom we worked, spent some time at the University of Miami teaching law students how to prepare Haitian TPS forms; it was in the aftermath of the earthquake and UM's law school was scrambling to do what they could to help those affected.  I told you guys about this back then in the blog but Melissa just found this great article on it, so I am sharing it with you...

Melissa and Jose Train Students at UM



Wednesday, July 28, 2010

Enforcing the Obvious- Fed Judge Blocks Arizona Enforcement

As the media and activists on both side have continued making "news" of Arizona's new immigration enforcement law, I've been chanting and chanting and chanting..."the law violates federal sovereignty and the first federal judge to touch it will zap it."

Bingo. As she did so, U.S. District Judge Susan Bolton ruled:

``There is a substantial
likelihood that officers will wrongfully arrest legal resident aliens
under the new [law],'' Bolton ruled. ``By enforcing this statute,
Arizona would impose a `distinct, unusual and extraordinary' burden on
legal resident aliens that only the federal government has the authority
to impose.''

NO DUHHHH.

Look, I understand everyone's frustration with the Federal Government's failure to enact comprehensive immigration reform and control our borders but guess what?  Just because the feds do don't it doesn't mean states can usurp federal powers.

Now, can we get back to important news like Mel Gibson's latest outburst? (-;

Here is the Miami Herald Article:
Federal Judge Blocks Key Arizona Law Provisions

Thursday, July 22, 2010

Putting My EB-5 Money Where My Mouth Is...

Okay, the quick and dirty:  as most of you know, I have looooooong struggled with attorneys getting a referral fee for a client who selects a particular EB5 Regional Center AND then handling the legal work for the client.  I have heard ALL the arguments:


  • "It's okay as long as it's disclosed"

  • "Clients don't care"

  • "That's what EVERYONE does!"


You heard me rant and rave about this fundamental conflict, which I have likened to a fox yelling "I am coming in the henhouse" before he enters, with the net result for the chickens being the same.  Despite my issues, my clients continue to hammer me over the head.  They say:


  • "Jose, you CAN'T hand us over to another lawyer, we want you!!"

  • "WE DON'T CARE if you get a referral fee from the Regional Center!"

  • "I trust your advice and want to deal with only YOU!"


Even the Regional Centers kid me about being a prima donna on this subject.  Well, after 15 years of refusing to file immigration documents for EB-5 clients I refer to a Regional Center, I FINALLY figured out a solution with which I can live.  Like the Regional Centers with which I work, I will keep 100% of the attorneys fees in trust until the I-526 is approved.  If it is not approved, the client gets a full refund (except, of course, if they have not disclosed ineligibilities, e.g., prior convictions, etc.)  Florida Bar rules prohibit contingency fee agreements for criminal and domestic matters, but there is nothing to stop my from saying that I will not get paid until the I-526 approval is confirmed.  No tickee, no laundry.

Now: assuming I'm not the only one who conducts thorough due diligence on a Regional Center before referring a client...I challenge my AILA brethren to do the same.



Tuesday, July 13, 2010

Before Committing to an EB-5 Regional Center, Look Under the Hood

If there is a single imperative rule when it comes to
selecting an EB-5 Regional Center in which to invest, it's this: look at the resumes of those
responsible for organizing and managing the deal.  In my many conversations with Michael Gibson,
the EB-5 due diligence expert who visits EB5 Regional Centers on an ongoing
basis, it has become apparent that there is much more to defining EB5 success
than simply having a "good idea." 
From the cockamamie to the clever, from the fiscally prudent to the
reckless, an emerging pattern of success is disproportionately attributable to
the Regional Centers with the most intellectual horsepower, tenacity and
business savvy under the “hood” of the investment vehicle (pun intended).  Invariably, what the organizers have put
under the “hood" determines not only the economic feasibility of a
particular EB 5 project, but also the level of transparency investors can
expect from the project’s management.



Show me the entrepreneurial histories and current financial
positions of the principals behind any Regional Center and I'll give you a
pretty good idea of what you can expect from their project.  There are EB-5 Regional Centers approved
today which are nothing more than fanciful ideas woven together by an attorney
with no actual business experience; there are others which, in altogether new
ways, are pungent with the smoke and mirrors of the noncompliant structures
which heralded disasters for so many EB 5 investors 10 years ago.  Some are operated by individuals with long
histories of less-than-stellar results in investing.

The other deal is this: just because a reputable attorney created the Regional Center doesn't mean it will be operated reputably.  Recent unpublished I-829 denials have certainly proven that, particularly when it comes to deviations from the original business plan which REQUIRE USCIS amendments.  The USCIS isn't shy about denying petitions when A,B, and C were promised but D,E, and F delivered.  Even worse, fundamental balls dropped at the RC filing and I-526 stage are being recovered by an increasingly sophisticated EB-5 Adjudications Unit: one recent decision determined that since the Regional Center had never documented that the particular project was situated within a Targeted Employment Area (TEA), each investor would have to chip in ANOTHER $500,000 at the I-829 level to meet the requirements for permanent residency.  Can you IMAGINE...



"Excuse me, uh, Mr. Investor, there's been a little mistake.  We need another half million dollars..."

Good grief.  Doesn't anyone use a checklist anymore??

In any event, be forewarned and know that all that glitters is NOT gold: the USCIS is itself policing approved Regional Centers more proactively these days, to their credit, and enforcement  is actually happening.  Here's a link to one Regional Center that is under serious USCIS scrutiny:

USCIS Threatens to Revoke Victorville EB-5 Regional Center




Monday, July 12, 2010

From Earthquake to Red Tape

When the earthquake hit Haiti, the world responded...and the U.S. responded admirably, in many ways.  The efforts to help the injured and save lives has focused on the South Florida community.  After so many years of disparate treatment between Cuban and Haitian refugees, it has been encouraging to see this compassion realized in humanitarian action.

But now that the proverbial dust has settled - and despite the continuing challenges which will continue to plague Haiti -- those fortunate enough to have received this compassion now face that most insidious of enemies: federal U.S. bureaucracy.  While it is clear that the U.S. can't simply "welcome all comers" and serve as the refuge for the global tide of "huddled masses, yearning to be free" prevalent in this very troubled world, the need for consistency and fairness in policy is self-evident.

According to this morning's Miami Herald, the red tape is getting thick around the Haitian community; it is something I have heard on the streets of Little Haiti as well.  If we as a nation can still justify the need for the 40+ year old Cuban Adjustment provisions, it is difficult to imagine that we can't understand that creating legal complications in the wake of the Haiti's earthquake is absolutely un-American.  Check out the Herald's article:

Red Tape for Haitian Earthquake Victims



Friday, July 9, 2010

Intelligence and Immigration

I spent a lot of time last week at the AILA conference quietly pondering just how our immigration system got as broken as it has.  Between unresponsive bureaucrats, dogmatic policies which fly in the face of our national identity, and lawyers trying to bend the rules to the point of destroying useful immigration options through abuse, it became clear to me that nothing less than a total rewrite of existing immigration policy is needed. The current Frankenstein is, sadly, irreparable.

There is a great line from the song of one of my favorite artists, Donald Fagen, of Steely Dan fame.  In his solo album debut, IGY - which, interestingly, stands for "International Geophysical Year" -- the title song explores the idyllic perfection of the future he idealized as a teenager in the early 60s.  The line:

"A just machine that makes big decisions, programmed by fellows with compassion and vision"...

Ahh...that it were that simple.  One can't automate justice; it is the innate responsiveness of one human being to another that determines how juries vote, how laws are enforced, and how this extraordinary experiment we call America unfolds.  But as we know from our own Constitution, it IS possible to design laws "with compassion and vision".  We have that blessing, but what we are missing is compassion and vision in the execution and administration of our laws.  Just as adjudicators need to have more empathy, American lawyers -inbred with the ferocity to which we are programmed in our adversarial legal system - need to advocate passionately but sensibly.  Only when we as attorneys can make reasonable arguments for justice will our positions be supported by intelligent men and women.

You guys go have a great weekend now, but one last thing: my brilliant Libertarian cousin Juan sent me something today that says it all about intelligence, and I encourage you to reflect on it:



Intelligence is a very special mental capability that, among other
things, involves the ability to reason, plan, solve problems, think abstractly,
comprehend complex ideas, learn quickly and learn from experience. It is not
merely book learning, a narrow academic skill, or test-taking smarts. Rather,
it reflects a broader and deeper capability for comprehending our
surroundings---"catching on", "making sense" of things, or
"figuring out" what to do.



If you want the whole enchilada, go here:  Measuring Human Intelligence



Thursday, July 8, 2010

2010 Florida Trend's Legal Elite- Honored and Humbled!

Folks, just wanted to share something which is personal (as I will explain) and very meaningful to me.  As many of you know, I have been practicing a long time.  Six years ago, I sold my practice to my partner and stepped out of immigration for a few years.  When I returned to it last year, the AILA meetings were full of faces I didn't recognize, the PERM process had replaced labor cert, and, frankly, I felt a bit like an old dog concerned about new tricks.

I jumped back into investment based immigration wholeheartedly last year and it's been a wild and woolly year and a half so far.  A few years back when I was still in the prior practice, I'd been named to the Legal Elite, so I was only a little surprised to hear that I'd been nominated again.  What has been tremendously cool and humbling, however, was that I was one of the three Florida lawyers who practice immigration law who made it for 2010!

After my "sabbatical", it is very heartwarming to know that my friends and colleagues still think I'm a decent attorney.  You see, the whole process is very meaningful to me because it is Peer Driven; it is the result of anonymous ballots submitted by Florida Law members.  Last October, Florida
Trend Magazine asked all in-state members of the Florida Bar to participate. 
Lawyers were asked to name attorneys whom they hold in the
highest regard or would recommend to others; 1.8% of the total Bar membership was named to the list. Given that there are some pretty darn good immigration attorneys in Florida, I am very honored to have been chosen as one of three in that area of practice. Check it out!:

2010 Legal Elite

I send my warm congratulations to my old friends Susan Hahn and Gene Hernandez, who are without a doubt very MUCH in the Legal Elite!



Monday, July 5, 2010

CIS? NIMBA…

As I sat at the opening session of the American Immigration
Lawyers Association (AILA) National Convention on Thursday morning, I felt a
rekindling of the fire I felt when I began immigration practice.  David Leopold, AILA’s newly-installed
president, spoke eloquently about our responsibilities as immigration attorneys,
about the many masks behind which racism hides, and about our history as a
nation of immigrants. 



I don’t know Mr. Leopold personally, but after that
presentation of his, it sure feels like I do. 
The son of Holocaust survivors and as passionate an advocate as I’ve
seen among our ranks, it was quite apparent to me that the fire this man has in
his belly is exactly what we – AILA as
well as the United States of America – need to turn around the catastrophic injustices
manifested by our current hodge-podge of disjointed immigration laws and
regulations.



Despite my nearly 20 years as an AILA member,  I have often taken the organization to task
for what I perceive to be, at times, casting an agenda net which is as
implausible as it is broad.  It is
difficult to develop a constituency among the electorate or within Congress
when every single immigration restriction brings forth dramatic cries of “FOUL!”
by AILA.  Unfortunately, those of us who
practice investment-based and employment-based immigration have different
issues, concerns, and perspectives than the majority of our AILA brethren
practicing in the areas of family immigration, deportation defense, asylum, and
the like.  What is good for the goose is not
always good for the gander, and it is always troubling to see AILA take an
uber-liberal position which articulates an “injustice” where one does not, in
fact, exist.



The fact is that immigration laws, like all laws, are meant
to be enforced; barring underlying circumstances which create a significant
injustice, deporting someone who has been subject to deportation for years is
neither outrageous nor unjust.  It is
simply enforcement of the law.  For too
long AILA and other immigration advocates have tended to thrash around like a
barely-grazed soccer player when confronted with enforcement issues, demanding
Congressional reform when everyone knows it
will not happen and it makes credibility that much harder for those of us who
advocate for those who actually do follow the letter of the
law.  My arbitrarily-denied H-1B
professional is, in reality, the victim of far more injustice than the guy who
overstayed his visa waiver and is finally nabbed five years after a removal
hearing he chose not to attend.  But
while the latter gets the media attention, the former is accepted as just part
and parcel of a dysfunctional legal system.



This problem of these “two AILAs” – the liberal,
defense-focused AILA and the pragmatic AILA advocating for sensible business
immigration reform -- has existed for years, and it invariably weakens AILA’s
effective advocacy on both fronts.  I am
hopeful that under Mr. Leopold’s leadership, our institutional agenda can
finally be reconciled and fine-tuned so that Congress and the American people
are able to understand and separate the issues.   Until we are able to do so, we are simply
the Democrats to FAIR’s Republicans, entrenched in a public and congressional perception
which is simply inaccurate. 



As Mr. Leopold stated in his installation speech (and as I
have stated in these pages before), there is nothing surprising about Arizona’s
incredibly flawed response to the problem it faces with illegal migrants.  The USG is responsible for border enforcement
but despite the dramatic increase in “boots on the ground” and technologies,
the Mexican cartel wars continue to cross into the U.S.  Arizona’s dangerous encroachment on fundamental
constitutional protections is, in the eyes of a state saddled with the
financial burden imposed by both the criminal and social costs resulting in the
presence of an unchecked illegal migrant population, a rational response to the
consistent failure of the federal government to control the border. And today
as yesterday, the amount of money Western states spend to educate children who
are either undocumented aliens or the U.S. citizen children of undocumented
aliens is still massive and not subsidized by the USG…no wonder these laws are
passing.



But until there is COMPREHENSIVE immigration reform – reform
which addresses not only the enforcement angle but which creates a sensible
system of legal migration consistent with our fundamental American values – the
only thing which will “control the border” is another Berlin Wall.  And that’s not what we are about.



So what are the components of this “sensible system”?  I believe they are:



  • The establishment of an interim lawful status for the
    millions of illegal workers who have histories of reliable U.S. employment and
    clean criminal records which permits them to establish residency through a
    structured series of steps including mandatory community service, mandatory English-language
    education (with reasonable limitations for the elderly, as it is with
    naturalization filings), and, finally, a transition to lawful status which
    incorporates features of the U.S. naturalization process.   I know
    that my insistence on English-language education is politically incorrect, but
    that’s how my family viewed immigration to America: if you are lucky enough to
    live here, you have a responsibility to learn the language, no excuses.   I think
    that if a person who has violated U.S. immigration law for years is not willing to learn English – the one
    solitary social bond available to 100% of Americans – then they can head back
    home.  Sorry.

  • The passing of a single law
    which mandates that UNDER NO CIRCUMSTANCES will any federal agency use
    bureaucracy, regulatory ambiguity, or – that most undemocratic of weapon of
    them all, non-appealable consular discretion – in a way which results in fundamental
    injustice to a visa applicant, their employer, or their U.S. resident or
    citizen family.
        The need for an empowered, funded, and truly
    independent arbiter – not a “liaison” or “ombudsman” which is part and parcel
    of the bureaucracy itself – is crystal clear.  For two plus decades I have seen identical
    petitions handled in entirely different ways by USCIS, first tour visa officers
    who don’t know the difference between 214(b) and 221(g), and an institutionalized
    lack of accountability and human sympathy within the federal agencies
    responsible for the implementation of immigration laws.  It is inexcusable.  While you cannot legislate morality, you CAN
    legislate accountability, and it is time we do so within our immigration
    process.

  • The total deconstruction of the employment based visa categories,
    starting with the elimination of an H-1B process that has gone from a
    reasonable administrative process to a non-legislated tax on U.S. employers
    which happen to be in desperate need for technology, health-care, and science
    professionals who simply are not available in the U.S.  Tell me this: what rational U.S. employer
    would spend $2000+ on H-1B filing fees if they could simply
    hire an American worker to fill the job?? 
    We need a straightforward temporary worker program that allows foreign professional,
    agricultural, and seasonal workers to be a viable resource for U.S. employers
    seeking to compete in a global
    marketplace,
    where we are losing ground daily.  

  • We also need to go one step further beyond
    PERM – an admittedly saner method than its predecessor, labor certification –
    to figure out how an American company can permanently hire a proven non-immigrant
    worker without apology, and without the artifice of advertising a position
    which has in reality been filled by an valuable, existing employee.  The current system not only defrauds U.S.
    applicants by deceiving them into believing a position is open but it makes a
    mockery of the meritocracy which has driven American industrial leadership for
    over a century.  The whole notion that an
    employer MUST hire an American worker to replace a proven worker who is in
    legal nonimmigrant status is anti-business and reeks of entitlement.  Send me all the hate mail you want and I’ll
    say the same thing I’ve said for 15 years: if you are an unemployed U.S. worker
    in the pharmaceutical, IT, and healthcare fields, send me your resume instead
    of the hate mail and I’ll find you a job. 
    (Not one resume in 15 years, despite so many spite-filled claims of
    displacement by foreign professionals.)  I’m
    not saying exploitation does not happen, but in 20 years of representing
    employers in these industries, I’ve never met a single employer who preferred
    to have to spend thousands on my fees and filing fees to hire a foreign worker than
    to hire a qualified American worker.  Not
    one.




Sadly, this is the hardest part…getting Congress to tackle
the totality of problems.  While legislators
such as those in Arizona can get a voting public behind a radical enforcement
method because “they’ve had enough” of federal inaction, the price these
legislators have to pay for CIS is too steep politically.  Support improved methods of permitting
foreign workers into the U.S.?  Cease
characterizing U.S. industries with high foreign worker needs as evil empires and
taxing them to bring in the talent they need? 
No way, Jose (and, politically correct as that might be, I am allowed to
say it.)  The fact is that John Q  Public still thinks that we have plenty of  U.S. pharmacists, and can’t figure out why on
earth the guy ringing up his blood pressure medicine, Q-Tips and Ensure at 8
p.m. is from Nigeria.



Comprehensive immigration reform?  Not in my backyard.



Thursday, July 1, 2010

AILA National Convention Kicks Off

The 2010 National AILA seminar began at the Gaylord Convention Center in Washington, D.C's National Harbor this morning with an inspired opening by immediate past AILA president Charles Kuck and a passionate call for comprehensive immigration reform (CIS), the subject of President Obama's speech at American University this very morning.



It's been 7 years since I've been to a national AILA convention and BOY have things changed. The half dozen booth exhibits have multiplied into dozens of booths hosted by EB-5, publishers, credentialing services and the like. Instead of another 6 pound program, the 1000+ pages of materials came on a little USB drive.



But the most noticeable difference is the size of the crowd. I was told at registration last night than some 2500 attendees are here...as I recall, that's about 4 times as many as my last national convention.



No doubt about it, the subject of immigration is hot today, but for mostly bad reasons. The palpable mood is one of disbelief, as the glaring incongruities, injustice and foolhardiness in the areas of enforcement, business immigration delays, and problem of undocumented aliens continue to be administered in a knee-jerk fashion.



It is clear that the emotions behind the topic of immigration run far deeper than do the rational efforts aimed toward CIS. Let's hope Mr. Obama has something concrete to deliver at AU this morning, because we sure haven't gotten what he promised us before his election.