November 2011

EB-5 Visa - Investing your way to a Green Card

Now more than ever, with the slowdown of the global economy, investors from around the world are looking to preserve their capital in a reliable and safe haven. Despite its economic challenges, the United States, still offers the best place to live and invest.

Thus, the EB-5 Visa, an abbreviation for the 5th preference employment-based category, is increasingly popular nowadays.

Currently, the Immigration and Nationality Act allows 10,000 immigrant visas per year for the EB-5, which are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise.

11th Circuit Court decides on What Constitutes a Conviction Record

Ever since the U.S. Attorney General's decision, Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), there has been a legal controversy over what constitutes a "conviction record" for purposes of the deportability of a criminal alien.


Specifically, one common ground of removal is known as "crime involving moral turpitude." However, what conduct the person was convicted for and whether it constitutes "moral turpitude," has traditionally been determined by the immigration court's review of the conviction record, i.e. judgment of the criminal court, charging document and the plea and sentencing reports.

The Attorney General, in its decision, Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), required the immigration courts, in various cases, to go beyond the conviction record and even review the arrest report. This was a significant departure from established precedent. As a result, many circuit courts have rejected the rationale of Matter of Silva-Trevino, and held that the arrest report, which often does not reflect the actual conduct the person is ultimately convicted for, is not determinative of whether a person was convicted for a crime involving moral turpitude.

New Law

Now, the 11th Circuit Court (which reviews questions of federal law arising in Florida, Georgia and Alabama), has joined those circuit courts which have limited the review of the conviction record by excluding the arrest report. This decision is noted in Sanchez Fajardo v. U.S. Attorney General, (11th Cir. 2011).

As a result, certain individuals with deportation orders due to the Silva-trevino analysis, may be eligible to reopen their cases.

DHS Announces 18-Month Extension of the Temporary Protected Status Program for Sudan and also the Designation for South Sudan

Due to the continuing armed conflict and resulting conditions in Sudan, Department of Homeland Security (DHS) extended the Temporary Protected Status (TPS) designation for Sudan by another 18 months. DHS also designated the new Republic of South Sudan for TPS for 18 months. The extension and the designation will be effective until May 2, 2013.

As with prior designations, citizens and nationals of Sudan in the U.S. may remain in the U.S. upon meeting certain criteria. Further, applicants may apply for work authorization.

Applicants must file their TPS application no later than April 10, 2012.


In This Issue


Newsletter Issues


Is ICE Being NICE, Part II: Who may benefit from the new deportation policy?"

On August 18, 2011, the Department of Homeland Security (DHS) announced a review of all removal cases pending before and incoming to the Immigration Courts.

The purpose of the review is to identify those cases that reflect a high enforcement priority for the Department of Homeland Security and to close those cases that merit low priority. Please see our previous article regarding this subject. That article dispelled various myths and rumors about this new policy. Review the memorandum here.

Now the DHS has provided more specific guidance on the implementation of this prosecutorial discretion. Please see this memo from DHS to its attorneys, which describes what factors determine whether an alien is high priority or low priority for deportation.

Please note that prosecutorial discretion is just that: discretionary. In order to evaluate whether your case merits prosecutorial discretion and what advantages this may carry, contact an experienced immigration attorney.

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