Margaret Stock's Blog

EB-5 Investor Scams Target Immigration Lawyers

Friday, December 27th, 2013 by Margaret Stock

Much attention in the press recently has focused on encouraging foreign investors to set up businesses in the United States through the EB-5 Investor Visa program, but there has been little attention to a related phenomenon: “Man-in-the-middle” fraud schemes targeting immigration lawyers who handle EB-5 cases. In these cases, the scam artists seek to victimize immigration lawyers by using counterfeit checks to “invest” in EB-5 businesses.

Here’s how the fraud scheme works: An attorney receives an email from a person purporting to be a wealthy foreigner who wants to obtain an EB-5 immigrant visa by investing in a business in the United States. The person asks for an attorney-client fee agreement and is anxious to know the attorney’s fee. The person also says that he will send a check (often a cashier’s check) for the attorney’s fee, plus the full amount of the investment.

The check that arrives looks like a real check and may have the name of a real company and real account number on it; it may even appear to be a valid cashier’s check. The attorney deposits the check, which initially results in a large balance appearing in the attorney’s trust account. Shortly thereafter, the client directs the attorney to wire some or all of the funds elsewhere, typically to an overseas account. Later, the attorney learns that the check was phony, and the attorney now must repay the bank for the wired funds.

This scheme works because the attorney’s bank merely acts as the agent of the owner of a check for the purpose of collecting the check; the bank may provide provisional credit on a deposited item, pending final settlement or payment of the check, but if the original check turns out to be phony, the bank will demand repayment from the depositor (in this case, the attorney). It may take months for a US bank to determine that a check from a foreign country is phony. If an immigration lawyer accepts a large check from a client, deposits the check, and then wires the provisional funds back to the client for the client to use for other purposes, the lawyer may end up being victimized if the check turns out to be fraudulent.

Banks around the United States are currently publishing customer service articles describing similar schemes that have victimized business and divorce lawyers, but now the fraudsters are attempting to use the EB-5 program as a means of targeting immigration lawyers. Attorneys are advised to be wary of anxious EB-5 investors who want to send large checks directly to the attorney for deposit in the attorney’s trust account, and who later direct the attorney to wire the money elsewhere. Any attorney who suspects that such a scheme is fraudulent should contact the bank or law enforcement for assistance.

My thanks to Jason Feeken of Wells Fargo Bank for assistance in writing this blog post; Jason has written similar articles about fraud schemes targeting lawyers who practice divorce or business law.

See the original article here: EB-5 Investor Scams Target Immigration Lawyers

Posted in General |

US Army Bars Dual US Citizens from Most Jobs

Thursday, December 12th, 2013 by Margaret Stock

In 2011, the US Army issued a revised personnel regulation in which the Army announced that dual citizens of the United States and another country are not permitted to enlist in the Army, Army Reserve, or Army National Guard into jobs that require a security clearance “unless they already possess a security clearance.” The regulation is important because it potentially bars millions of Americans from most Army jobs: The vast majority of Army jobs require a security clearance–including officer appointments, Special Forces, Military Intelligence, and Military Police jobs, but also most others.

Dual citizenship is something that millions of Americans possess, often inadvertently. Whether a person holds citizenship in a particular country is a matter of that country’s law, not U.S. law, and one’s citizenship is thus not always within the control of the individual or the United States Government. Although some countries allow their citizens to expatriate, others do not. Some people are dual citizens because their parents or grandparents hold citizenship in a foreign country; others are dual citizens because they were born in another country. The U.S. Office of Personnel Management has published “Citizenship Laws of the World,” a document that explains the wide variety of rules regarding citizenship. Although this document is not completely up-to-date (some countries have changed their laws since it was published), it can give a reader a good idea of the potential problems posed by the Army’s personnel regulation. According to OPM, for example, the country of Iran considers the children of male Iranian citizens to be Iranian citizens as well, and prevents them from renouncing Iranian citizenship–so any US-born child of an Iranian citizen is necessarily a dual citizen of the United States and Iran, and can’t rid himself of Iranian citizenship. Should the US Army bar a young American of Iranian descent from serving in the US Army Special Forces, merely because his father is an Iranian immigrant to the United States? One would hope not.

The Army’s regulation preventing all dual US citizens from enlisting in most Army jobs is a much broader bar than the military has previously applied. Previously, dual citizenship did not prevent enlistment into any job and did not automatically bar a person from holding a security clearance; instead, security officials would evaluate each person’s case individually. Ironically, famous Americans such as George Washington, John F. Kennedy, John Shalikashvili, Marco Rubio, and even Barack Obama would likely have been barred from serving in most Army jobs had they attempted to join the US Army at a time when this regulation was in effect.

The rule barring dual citizens from enlisting in most jobs also cedes American sovereignty to other countries, because it lets foreign countries control who can serve in the US Army. As discussed above, a foreign country–not the United States–determines who is a citizen of that country. When a foreign country determines that an American holds its citizenship, that American necessarily is a dual citizen of that country and the United States. Barring these dual citizens from enlisting thus lets foreign countries use their citizenship laws to control which Americans can serve in the Army. Allowing foreign laws to control who gets to enlist in the US Army is clearly not in America’s national security interest. Let’s hope that Army leaders rescind this new rule soon, before it damages the Army’s ability to recruit from the ranks of talented American citizens.

Posted in General |

DHS Clarifies Immigration Benefits for Family Members of Selected Reserve and Veterans

Thursday, December 12th, 2013 by Margaret Stock

On November 15, 2013, United States Citizenship & Immigration Services (USCIS), the United States Department of Homeland Security (DHS) sub-agency that administers immigration benefits, announced a new national “parole in place” policy that affects the immigrant parents, spouses, and children of current military members on active duty or who serve in the Selected Reserve of the Ready Reserve, or veterans of such service. The policy clarifies that USCIS should generally allow such immigrant relatives to be granted an immigration “parole” so that they may adjust to a lawful immigration status while in the United States. Previously, some USCIS offices had required these military family members to leave the United States in order to obtain a lawful immigration status, but the family members’ departure from the United States often triggered a lengthy separation—sometimes more than ten years—because of overseas visa processing rules.

United States immigration law has long been excessively complicated, [2] and one of the complications is an infamous “Catch-22” that affects the immigrant parents, spouses, and children of American citizens and lawful permanent residents. Noncitizens who are the parents, spouses, and children of American citizens are normally eligible for an immediate relative immigrant visa—but typically they cannot obtain lawful status in the United States based on that visa unless they can prove that they have been “inspected and admitted or paroled” into the United States by immigration authorities.[3] If they cannot prove that they have been admitted or paroled, they must depart the United States and apply for an immigrant visa outside the United States. Under Section 212(a)(9)(B) of the Immigration & Nationality Act; however, a person who leaves the United States after being unlawfully present for more than six months is punished by being prohibited from returning for a three-year or ten-year period, depending on how long the person has been unlawfully present.[4] This punishment does not kick in if the person does not leave the United States; but a person who has entered the United States without the permission of the United States Government is generally barred from adjusting to legal status in the United States, so such a person necessarily must leave the United States to obtain proper legal status by applying for a visa at a consulate outside the United States.

This Catch-22 has affected thousands of military family members adversely. In 2009, for example, a U.S. Army captain serving in Germany married a German woman and filed an immigrant visa petition with USCIS to bring his spouse to the United States. Visa processing times are lengthy, and while the captain was waiting for USCIS to approve the visa petition, he received orders to return to the United States. On the advice of a military attorney, he brought his wife back to the United States with him—but when his wife entered the United States at Tampa, Florida with her family member ID card, she was never given an entry document by US Customs and Border Protection. As a German citizen, the wife was eligible to enter the United States for up to ninety days under a visa-free travel program that waives the visa rules for certain countries like Germany that have bilateral agreements with the United States. After residing with her husband on an Army post in the United States for more than a year and a half, the wife traveled back to Germany to attend her immigrant visa interview. At the interview, she was advised by a United States Department of State consular officer that she was banned from the United States for ten years because she had departed after being “unlawfully present” in the United States for more than a year; the consular officer took the position that she had only been admitted to the United States for ninety days, and she had stayed for more than a year after the initial 90-day period, and hence her departure to Germany to seek an immigrant visa had triggered a ten-year bar to her return to the United States. Luckily in this particular case, the U.S. Army captain was able to obtain an “extreme hardship” waiver after several months of effort, and his wife was allowed to return—but many military family members trapped in this dilemma have not been so fortunate or are not eligible for a waiver.

The United States Government has long recognized the dilemma posed by this legal Catch-22, and the law provides a remedy—DHS agencies are permitted by law to grant an immigration “parole in place” to anyone who has not been admitted or paroled previously, as long as the parole is “for urgent humanitarian reasons or significant public benefit.”[5] For decades, this parole authority has been used to benefit Cubans who have entered the United States unlawfully; such Cubans would normally be barred from adjusting status and would be required to return to Cuba to obtain an immigrant visa, but the immigration agencies have for decades had a formal policy of granting Cubans an immigration “parole in place” that allows them to adjust status in the United States, rather than forcing them to return to Cuba. The parole authority has similarly been used in the past to benefit other groups such as battered spouses or government informants.

In 2008, under the Bush Administration, the parole authority was first publicly used to benefit a military family member. Michael Chertoff, then the Secretary of DHS, ordered his agency to grant parole in place to the wife of a missing US Army soldier; the woman was then permitted to adjust status and obtain a “green card” without leaving the United States.[6] Following this incident, grants of parole in place to military family members became increasingly common, and in August 2010, Secretary of Homeland Security Janet Napolitano wrote to Congress that her agency was granting parole in place on a case-by-case basis to the parents, spouses, and children of members of the US Armed Forces.[7] The letter, however, was not a formal USCIS agency policy, and USCIS field offices differed widely in their interpretation of the Napolitano letter. Some offices, for example, would only grant parole-in-place to spouses, or would only grant the benefit to family members of active duty military members; or would only grant the benefit if a service member was deployed to a combat zone.

Accordingly, on November 15, 2013, USCIS published a formal policy memorandum directing that parole in place should ordinarily be granted to the parents, spouses, and children of current and past military members who have served on active duty or in the Selected Reserve of the Ready Reserve.[8] The policy does not change the law; it merely clarifies how the agency will apply the legal authority that it has been given by Congress.

The agency has stated that the policy is designed to reduce the “stress and anxiety” of military members and veterans who are worried about the immigration status of their family members in the United States; the policy is also designed to enhance military readiness. The policy does not apply to family members who have criminal convictions or “other serious adverse factors.”

Members or former members of the Selected Reserve of the Ready Reserve may benefit from this policy. The law defines the Selected Reserve as including those persons who (1) participate in at least forty-eight scheduled drills or training periods during each year and serve on active duty for training at least fourteen days each year, or (2) participate in training at encampments, maneuvers, outdoor target practice, or other exercises at least fifteen days each year.[9] Most members of the Army National Guard and Air National Guard are in the Selected Reserve of the Ready Reserve, as are persons who perform paid duty each year in the Army Reserve, Air Force Reserve, Navy Reserve, Marine Corps Reserve, and Coast Guard Reserve. The Selected Reserve of the Ready Reserve includes some members of the Individual Ready Reserve who perform duty each year, but does not include inactive or retired Reservists or IRR members who perform no duty in the course of a year.

Military members or veterans who have immigrant parents, spouses, and children present in the United States who do not currently have a proper immigration status should consult an experienced immigration attorney. As stated above, US immigration laws and regulations are extremely complex, and this policy may help a family member adjust his or her immigration status, but it does not apply to every family member. An experienced immigration attorney can help a military member or veteran determine if it is appropriate or necessary for a family member to apply for benefits under this new policy.

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[1] Margaret D. Stock is an attorney admitted in Alaska who practices primarily in the areas of immigration, citizenship, and military law. She is the author of the book Immigration Law and the Military, published by the American Immigration Lawyers Association in 2012. She is also a Life Member of the Reserve Officers Association and a 2013 MacArthur Foundation Fellow.

[2] Karen Kraushaar, a spokeswoman for the former Immigration & Naturalization Service (INS), once famously said on the record in the Washington Post that “Immigration [law] is a mystery and a mastery of obfuscation . . .” See Washington Post, Apr. 24, 2001, at B1.

[3] Section 245(a) of the Immigration & Nationality Act requires persons who apply to adjust their status inside the United States to demonstrate that they have been “inspected and admitted or paroled,” with few exceptions. The statute states that “[t]he status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and an immigrant visa is immediately available to him at the time his application is filed.”

[4] See INA §212(a)(9)(B) (“In general.–Any alien (other than an alien lawfully admitted for permanent residence) who–was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States . . . , and again seeks admission within 3 years of the date of such alien’s departure or removal, or has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.”).

[5] See INA §212(d)(5)(A) (“The Attorney General may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States . . . “).

[6] The author testified before Congress about this incident in 2008. See http://judiciary.house.gov/hearings/pdf/Stock080520.pdf (testimony of Margaret D. Stock, at pages 7-8)

[7] The Janet Napolitano letter to Congress may be found at page 60 of the hearing testimony for a House Judiciary subcommittee hearing held on July 26, 2011, see http://judiciary.house.gov/hearings/printers/112th/112-50_67575.PDF.

[8] The USCIS policy may be found at the following link:
http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/2013-1115_Parole_in_Place_Memo_.pdf.

[9] See 10 United States Code §10143(a) (“Within the Ready Reserve of each of the reserve components there is a Selected Reserve. The Selected Reserve consists of units, and, as designated by the Secretary concerned, of Reserves, trained as prescribed in section 10147(a)(1) of this title or section 502(a) of title 32, as appropriate.”).

See the original article here: DHS Clarifies Immigration Benefits for Family Members of Selected Reserve and Veterans

Posted in General |