A Feast of Immigration Quirks in the Current Issue of Interpreter Releases

By David North, February 4, 2013

If you need a brief respite the from the gloomy news of a perhaps impending massive legalization program, here are some immigration oddities reaped from the January 14 issue of Interpreter Releases, the sober-sided, irony-free trade paper for immigration lawyers.

We have:

  • USCIS being hoist on its own petard regarding investor (EB-5) visas for wealthy Chinese;

  • DHS offering prospective Temporary Protected Status (TPS) to, among others, a few citizens of two warring nations who were not in the United States at the time of the announcement; and

  • DOL providing guidance on the appropriate wages for alien (H-2A) wool gatherers.

Investor visas. After years of promoting the EB-5 Program, USCIS is running into a major complication; later this year the newly increased use of the program will probably run directly into the provision of the Immigration and Naturalization Act (INA) that limits the admission of any one nation's immigrants to 7 percent of the world-wide total (of numerically limited classes).

This will complicate life immensely for the agency, and for all the middlemen who have been profiting from the comparative dribble of investments created by this program. Something like 99.9 percent of new foreign investment in the United States each year comes from non-immigration related capital flows.

Immigrant investor, or EB-5 visas, are given to aliens (their spouses and their children) whose sole required qualification is the ability to write a check for half a million dollars, and sometimes more. With families assumed to include three people each, and most of the investments at the half-million level, this means it takes six visas to raise one million dollars.

This bit of math — say $167,000 or so per visa — is never mentioned by supporters of the program.

About 80 percent of these visas go to people from China, and there's the rub. With the nearly 10,000 ceiling for these visas likely to be reached this fiscal year, the country-of-origin cap will come into play for EB-5 investors from China and that will cause: 1) substantial delays in visa issuances for those aliens; 2) complications for both USCIS and the States Department; 3) uncertainty among the potential investors; and 4) more fees for the middlemen.

The interactive complexities that will result led to a 3,600-word lead article in the current IR, written not by the staff but by two-EB-5 lawyers. Such editorial treatment means that the subject is regarded as a big deal by the immigration bar. A term frequently used in the article is "visa retrogression", meaning, approximately, the imposition of the national-origin ceilings on a program.

The weeds are too thick in this area for a summary of a readable length, but this paragraph from the article gives a flavor of the complications:

Chinese EB-5 priority date retrogression will make it imperative for counsel to carefully track the ages of a petitioner's [i.e., the alien's] children and to strategize how to prolong the I-526 petitioning process if a child is close to aging out [i.e., becoming 21]. It will also be imperative for counsel to make certain that the immigrant visa is applied for within one year of the priority date becoming current, in order to be able to take advantage of the period of time the child's age is frozen during the petitioning process.

One of the unrecognized glories of obtaining foreign investment in non-EB-5 ways is that no government agencies have to worry about the age of the children of the resident of Cape Town, for instance, who simply tells his broker to buy, say, 1,000 shares of Apple.

Incidentally, another matter not mentioned in the IR article is that every visa that goes to an investor, or his or her kin, means one fewer visa for one of the truly talented immigrants, the "best and the brightest", in another one of the EB (employment based) visa categories.

If some parts of the INA complicate the inward flow of some sets of migrants (rich Chinese, in this case) other parts of it are extremely welcoming to different populations, as the following item reveals.

Temporary Protected Status. A significant immigration benefit conferred by the Secretary of the Department of Homeland Security without congressional action. Typically, it is retroactive. If the alien had been in the United States at the date of the big storm in his home country, for instance, then he would have a chance to register with DHS, pay a fee, get a work permit, and be assured of no legal action against him, even if here illegally. The general idea is that the home country is too disrupted to accept the return of its own nationals.

The status lasts 18 months, but as Mark Krikorian pointed out, more than a dozen years ago, "There's nothing as permanent as a temporary refugee". DHS routinely rolls over TPS status for another 18 months for the aliens from all the nations covered by these programs.

The latest decision on TPS, also reported in IR, extends that status to newly arrived people from either Sudan or South Sudan, two nations more or less at war with each other; eligibles — illegals or otherwise — can apply for that status from January 9 through July 8. There has been a TPS program in place for years for people from those areas, but there had been no recent opportunity for newcomers to sign up until earlier this month.

What I found remarkable was the timing of the eligibility. There were two parallel Federal Register announcements on January 9, one concerning Sudan, and the other the newly created state of South Sudan (which had been part of the older, larger nation). The line between these two nations is a continuation of the informal one that divides Islamic Africa from Christian and pagan Africa and, which further west, in Mali, is now involving the French Army.

The fine print in the FR of January 9, said that the "redesignation of South Sudan allows additional individuals who have been continuously residing in the United States since January 9, 2013, to obtain TPS".

Thus if the alert former resident of Sudan or South Sudan had been in, say, Montreal, or less likely, Matamoros, on the morning of January 9 and heard about the new TPS ruling, he could then, legally or illegally, enter the United States later that same day and, if he moved swiftly, could file an application shortly thereafter saying, accurately, that he had lived in the United States continuously since January 9.

Talk about instant gratification!

Gathering wool. Meanwhile, in case you want to know how much an American employer has to pay an alien wool gatherer, the U.S. Department of Labor has recently released its detailed adverse effect wage scales for various kinds of agricultural tasks involving nonimmigrant (H-2A) workers.

Wool gathering, despite one's image, is a real job, essentially that of a laborer at a sheep-shearing operation. While the job title originally involved gathering bits of wool that the sheep had left on fences and shrubs around the pasture, my sense is that it has been widened to also include people doing the less-than-skilled work during the shearing season. (There are different, and equally exploitative, pay scales for alien sheep herders, but that is another occupation.)

Needless to say, the sheep shearers, yet a third group, are better paid and, in my eyes, are awesomely talented people, combining the skills, the wiles, and the strength of a professional wrestler with almost a surgeon's ability to separate the sheep from its wool without drawing blood. Currently (and I know this because my wife is a spinner and a weaver and we sometimes go to sheep and wool shows) the shearers use electric shearing devices.

The trick is to flip the sheep on his back, make sure that none of its feet touch the ground, and then hold the animal firmly while clipping the fleece, preferably with a series of single strokes right next to the skin, as "second cut" wool, shorter bits of it, are much less valuable than the full-length fleece.

This is piecework and there is a perfectly understandable, gender-related pay scale, with the variable being the sex (and the age) of the animal, not the human, with these being the rates quoted by the Labor Department:

Sheep, Buck/Ram — Shearer $4.00 Per Head

Sheep, Ewe — Shearer $2.00 Per Head

Sheep, Feedlot Lamb — Shearer $1.50 Per Head

Since the rams are harder to handle, and often produce larger fleeces, the differential wage scale makes sense. However, given the general tilt of the department on agricultural wages (i.e., not very demanding of the employers) I suspect that these are not very generous rates.

My wife and I roamed the Internet for retail prices of fleeces and found a wide variety, and we know that wholesale prices for fleece sold into the wool pools are lower. With the Navaho-Churro sheep, the going price was $3 a pound, with weights for adult fleeces ranging from 4 to 10 pounds. A more valuable wool, from a Lincoln, was selling for $25 for a five-pound fleece, and at the high end, an Icelandic lamb fleece of one and a half pounds was quoted at $28. All these prices are for raw fleece.

The nonimmigrant wool gatherers do not get piece rates, and are to be paid a flat $8.00 an hour, which is a bit more than the long-out-of-date federal minimum wage of $7.25/hour, but less than the more current state minimum wages in New Mexico ($8.25/hour), Oregon ($8.95/hour), and Washington ($9.10/hour). All of these states use alien wool gatherers. I do not know if these state minimum wages apply to farmwork, but they do provide a general benchmark for wages at the bottom of the labor market.

The H-2A program provides alien workers to ranchers in 15 states, all west of the Mississippi; somehow the growers of sheep east of that river manage to run their farms without using nonimmigrant workers.