I appreciate Shannon Jackson conscientiously contributing a “Message from the Chair” for each issue and keeping our readers up-to-date on the other activities of the International and Immigration Law Section.
One of our most prolific contributors is Scott D. Pollock. In this issue is “Now is the Time for Employers to Prepare to Beat the Fiscal Year 2008 H-1B Cap” written by Scott and Fatima G. Mohyuddin.
Two articles appear about the changing economic and political structure of Europe. “Real Estate Investment In Romania” is provided by Sorina Tira who has practiced law in Romania and “Bulgaria’s Accession to the EU—What does this Mean for You and Your Clients?” is by Peter Petrov, from Bulgaria and currently a student studying for his LLM at The John Marshall Law School in Chicago.
The International and Immigration Law Section is co-sponsoring “The Secret World of Human Trafficking” continuing legal education program on January 25, 2007 at the ISBA Regional Office. It is referred to in Shannon Jackson’s article and the full announcement is included in this issue of The Globe.
Also included in this issue are two articles “Pro Bono Recognition” and “Pro Bono Opportunities” provided by The National Immigrant Justice Center.
Thank you to all our contributors.
Lewis F. Matuszewich
Matuszewich, Kelly & McKeever, LLP
Telephone: (312) 726-8787
Facsimile: (773) 279-8872
E-MAIL: lfmatuszewich@mkm-law.com
As always, I’m so pleased to have such a prolific Section. Everyone is encouraged to submit articles relevant to International and Immigration Law to our Section Council newsletter editor, Lewis Matuszewich.
The Section Council’s book drive is ongoing. Books can be dropped at the ISBA’s headquarters at 20 S. Clark St., 9th Floor. As a reminder, the goal is to provide detainees, who are mostly adult males, with reading material, whether it is law related or just interesting novels.
The Section is also pleased to announce that we are the co-sponsors of the Human Rights Section CLE called “The Secret World of Human Trafficking,” presented by the Illinois State Bar Association Women and the Law Committee, co-sponsored by Minority in Women Participation, Delivery of Legal Services Committee, International and Immigration Law, Human Rights, and Child Law sections, which will be held on January 25, 2007. We hope to see everyone there.
Summary
The H-1B visa cap is once again in the forefront of business immigration practice and Congressional debate. Most users of the United States visa system know that the 65,000 H-1B visa cap for the current fiscal year (October 1, 2006 to September 30, 2007) was already reached. Per a Press Release dated June 1, 2006, released to the public very late in the day on Friday, June 2, USCIS (United States Citizenship & Immigration Service) announced that the general pool of H-1B visas for the fiscal year was exhausted as of May 26, 2000.2 Cases with May 26th receipt dates on were subject to a random-selection lottery to determine which ones would be accepted for processing, and which ones would be returned to petitioners. Shortly after the separate H-1B Master’s degree cap was also reached. Per a Press Release dated July 28, again released to the public late on a Friday, USCIS announced that the special allotment of 20,000 additional H-1B visas allocated to holders of U.S. graduate degrees was exhausted as of July 26, 2006.3 This article provides a general overview of the H-1B visa and addresses some basic questions employers and foreign workers must confront about what happens between now and to plan for April 1, 2007- the start date for filing H-1B petitions for fiscal year 2008.
I. H-1B Visas: An Overview
The H-1B visa is commonly used by U.S. companies to employ temporary foreign workers in the U.S. The H-1B classification is a nonimmigrant status available to certain highly educated and skilled foreign nationals coming to the U.S. to perform services in a “specialty occupation.”4 Specialty occupations are those that require a theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s degree or higher degree in the specific specialty, or the equivalent of such degree through a combination of education, training and work experience. For employment in a specialty occupation on an H-1B visa, the employer must demonstrate that: 1) a bachelor’s degree or equivalent is normally the minimum requirement for entry into the particular position; 2) the degree requirement is common in the industry in parallel positions or that the particular position is so complex or unique that a degree is required; 3) the employer normally requires persons filling comparable positions to have a bachelor’s degree or equivalent; or 4) the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with attainment of a degree.5
The H-1B petitioner must be a viable enterprise and financially able to pay the proposed employee the offered salary. The employer must attest to the Department of Labor (“DOL”) that it will pay the prevailing wage or actual wage for the position, whichever is higher, and it will otherwise protect the rights of U.S. workers by not using an H-1B employee to undermine the terms and conditions of U.S. workers’ employment. But, unlike most permanent immigrant visa categories that require an employer to test the labor market through a recruitment effort, an employer does not need to demonstrate that U.S. workers are unavailable. Part-time employment is permitted, and multiple employers may file H-1B petitions for an H-1B employee. Admission of a foreign national on an H-1B status is normally limited to a maximum (including extensions) of six years. Once the worker has reached the maximum allowable period, he or she must leave the U.S. for at least one year before returning to the U.S. on a new H-1B visa status. But a change to a different status may be possible for purposes of remaining longer. Common examples of H-1B specialty occupation professionals in the U.S. include: accountants, economists, software developers, engineers, market research and financial analysts, graphic designers, certain business and medical professionals, teachers, journalists, attorneys and ministers. The H-1B category is also often the one that provides professional work for graduating foreign students in the U.S.
II. H-1B Visas: The Annual Cap
The number of new H-1B visas issued each year in the United States is subject to an annual congressionally-mandated quota. The current law limits the number of foreign nationals who may be issued an H-1B visa to 65,000 per fiscal year.6 Previously, the numerical limitation was temporarily raised to 195,000 in fiscal years 2001, 2002, and 2003, but this has since been repealed. In addition, the USCIS reserves 6,800 H-1B1 visas out of the 65,000 for use only by nationals of Singapore (5,400) and Chile (1,400) as part of the US-Chile and US-Singapore Free Trade Agreements. As such the H-1B annual quota is really 58,200. Unused visa numbers allocated to Chile and Singapore for a particular fiscal year are added back to the pool of visa numbers for the next fiscal year. Congress also enacted the H-1B Visa Reform Act of 2004 which created an additional 20,000 H-1B visas for foreign nationals who have earned a masters or higher degree from a United States institution of higher education.7 The USCIS published a rule on May 5, 2005, implementing this law for fiscal year 2005 and future fiscal year H-1B filings.8
If the previous fiscal year’s cao is reached, USCIS cannot authorize new H-1B visas until the start of the next fiscal year. Petitions for new H-1B employees can be filed no earlier than six months in advance of the start date requested. Since the Federal Government’s fiscal year begins on October 1st, the earliest filing date for a new H-1B worker is April 1st prior to the beginning of the next fiscal year. The record speed at which the current fiscal year 2007’s H-1B supply was exhausted testifies to the strength of the American labor market and highlights the failure of the US Congress to provide a sufficient number of visas to meet the country’s demand and need for additional highly skilled workers. In less than two months, the next fiscal year’s supply was used. For fiscal year 2006, the supply was available only until mid-August, and the prior year fiscal year 2005 until October. With demand up, what U.S. employers and immigration attorneys were dreading finally happened- a virtual moratorium on many employers in hiring new H-1B workers for almost a year and one-half. Until April 1, 2007, U.S. employers can only file H-1B petitions that are exempt from the H-1B cap, and no non-exempt H-1B workers will be available to start work until October 1, 2007. Given an expected rush on fiscal year 2008 H-1B visas similar to the current year, U.S. employers that hope to hire new foreign national employees should plan to file their petitions as close as possible to the April 1st stating date. Since the employer will need to obtain a certified Labor Condition Application (“LCA”) from the Department of Labor, which can be obtained no earlier than six months prior to the proposed employment start-date, employers need to prepare and file the LCA electronically on April 1, 2007, then file the H-1B petition as soon as the LCA is certified by the DOL.9 In addition, certain H-1B petitions are exempt from the cap, and other nonimmigrant visa categories may be used in lieu of an H-1B visa.
III. H-1B Petitions Not Subject to the Cap- What Counts?
Only “new employment” is covered under the H-1B cap. USCIS cannot count against the cap any person who has already been counted within the past six years, unless the H-1B candidate would be eligible for a new full six years of authorized H-1B admission at the time the new petition is filed.10 The cap does not apply to H-1B petitions to change/amend terms of employment, extensions of status with the same employer, petitions for a concurrent H-1B position with another employer, or transfers from one H-1B cap-subject employer to another H-1B employer under portability provisions.11 In addition, petitions that are denied are not counted against the cap, and if the USCIS later revokes an H-1B petition resulting from a finding of fraud or willful misrepresentation of a material fact, the H-1B number for that petition must be added back to the cap in the fiscal year in which the petition is revoked, regardless of when the petition was originally approved.
Certain types of H-1B employment are exempt from the numerical limitations. The annual quota of available H-1B visas do not apply to H-1B employees employed at institutions of higher education; a related or affiliated nonprofit; a nonprofit research organizational or a governmental research organization.12 Additionally, J-1 nonimmigrant physicians who are changing status to H-1B and who obtained national- interest waivers through the Conrad 30 Program or other government programs are exempt from the cap. However, if an H-1B professional transfers from an exempt nonprofit organization to a non-exempt for-profit company, s/he would then be subject to the cap. If a foreign national employee does not fall within one of the above enumerated cap exemptions, and an employer is faced with the current situation of an H-1B blackout, employers must look to alternative visa options for their foreign national employees and prospective hires.
IV. Alternative Visa Options for Employing Foreign Workers
Some employer and professional groups are trying to get Congress to increase the H-1B quota, but the chances of any favorable legislation passing seem unlikely- even though the rate of unemployment in the U.S. is low and employers are moving overseas. There are still many other temporary work visas which employers can use to employ certain foreign workers if they cannot file an H-1B cap exempt petition for a worker. Alternative visa options include:
• L-1A/L-1B visa (intra-company transferees).13 To qualify, a foreign worker must have been continuously employed abroad for at least one of the preceding three years by a qualifying foreign entity, such as a subsidiary, affiliate, branch, or joint venture of a U.S. company. There is no annual numerical limitation, but, it is only available for executives, managers (L-1A), or employees with specialized knowledge (L-1B). Admission is for a maximum (including extensions) of five (L-1B) or seven (L-1A) years.14
• TN visa (Canadian/Mexican professionals).15 To qualify, the individual must be a citizen of Canada or Mexico and the proffered position must fall within the list of scheduled professional occupations under NAFTA (North America Free Trade Agreement), which was created to facilitate the movement of business professionals between Canada, Mexico and the U.S. There is no annual numerical limitation, and TN classification can be renewed indefinitely in one-year increments.
• E-1/E-2 visa (treaty traders/investors).16 To qualify, an individual must be a citizen of a country having a treaty of friendship, commerce and navigation or Bilateral Investment Treaty with the U.S. The employing entity must also have the same nationality, i.e. be majority owned or controlled by the citizens of the worker’s country. This is available to foreign nationals entering the U.S. solely to carry on substantial trade (E-1) or to develop and direct the operations of an enterprise in which s/he has invested or is actively in the process of investing a substantial amount of capital (E-2). There is no annual numerical limitation, however, it is only available for executives, supervisors, or essential employees. E-1/2 admission is for two years, but the classification can be renewed indefinitely so long as the trading or investment enterprise remains viable.
• O-1 visa (extraordinary ability).17 To qualify, the individual must be a person of extraordinary ability in the sciences, arts/entertainment, education, business, or athletics, as demonstrated by sustained national or international acclaim. There is no annual numerical limitation, and O-1 classification can be renewed indefinitely with admission for up to three years.
• P-1A/P-1B visa (group entertainers and athletes).18 To qualify, an individual must be part of a group or team that is internationally recognized (P-1A), or to perform with or be an integral or essential part of an entertainment group that has been recognized internationally as being outstanding for a sustained and substantial period of time (P-1B). There is no annual numerical limitation, but admission for P-1 athletes is limited to a period of five years with one extension up to five years, and for P-1 entertainers, admission may not exceed one year.
• E-3 visa (Australian professional).19 To qualify, the individual must be a citizen of Australia entering the U.S. to perform services in a “specialty occupation,” which is defined in the same manner as that for H-1B professionals. This relatively new visa category was added by Congress in May 2005 as part of the REAL ID Act of 2005. There is an annual numerical limitation of 10,500 E-3 visas per fiscal year. E-3 classification can be renewed indefinitely with admission for up to two years.
• J-1 visa (trainees).20 To qualify, the foreign worker must be sponsored by a U.S. State Department approved Exchange Visitor Program and is eligible to work for a U.S. employer and be compensated for training purposes. There is no annual numerical limitation, however, most J-1 trainee programs can be no more than eighteen months and cannot be extended. Certain J-1 programs may subject foreign nationals to two-year foreign residence requirements upon their completion of training in the U.S. before they are able to change their immigration status.21
• H-3 visa (trainees).22 To qualify, a foreign worker must be coming to the U.S. for training for a position abroad. The U.S. employer must be able to explain why it is willing to offer the training and demonstrate that it is not because it is receiving the trainee’s productive work product, but that there is some other quid pro quo motivation, for example training the person for a future position overseas, and that such training does not exist in the foreign national’s home country. There is no annual numerical limitation. Admission to the U.S. in H-3 classification is for the length of the training program, but no more than two years.23
• H-2B visa (temporary or seasonal workers).24 To qualify, a foreign worker must be coming to the U.S. to fill a position of temporary service or labor. The employer must demonstrate that the request for labor is a one-time occurrence, a seasonal need, a peak load need, or an intermittent need. The employer must first obtain a labor certification from the Department of Labor that qualified U.S. workers are unavailable to fill the temporary positions being offered to the foreign nationals. There is an annual numerical limitation of 66,000 H-2B visas per fiscal year with no more than 33,000 H-2B visas issued for the first six months. Admission is for the time period requested on the labor certification, but no more than one year. H-2B classification can be extended for 12 months up to a maximum of three years.25
• F-1 visa/OPT or CPT (student optional or curricular practical training).26 To qualify, the foreign national student applies for and receives OPT (optional practical training) and employment authorization after completion of all course requirements and course of study for a bachelor’s, master’s or doctoral degree program. OPT may also be available before graduation where the proposed employment is pre-authorized and related to the student’s academic program. The OPT authorization is limited to twelve months of employment in the student’s field of study and must be completed within fourteen months of graduation.27 Also, currently F-1 students may receive different periods curricular practical training (CPT) if the employment is an essential component of the academic program. This normally requires that the employment is required for graduation and/or earns academic credit.
• R-1 visa (religious workers).28 To qualify, a foreign national must be a minister, religious professional or other religious worker in a religious vocation or occupation coming to the U.S. to work for a bona fide religious organization or its tax-exempt affiliate, and who has been a member of the religious denomination having a bona fide nonprofit religious organization in the U.S. for at least two years. There is no annual numerical limitation. Initial admission is for three years with extensions for up to two years for a maximum of five years in R classification.29
• Q-1 visa (cultural exchange participants).30 To qualify, the foreign national must be coming to the U.S. to participate in an international cultural exchange program to provide practical training, employment and interactive sharing of the history, culture and traditions of the country of the person’s nationality in a setting where the American public is exposed to the foreign culture. There is no annual numerical limitation. Admission is for the duration of the cultural exchange program up to a maximum of fifteen months.31
• EB-1/EB-2 Preference Petitions (permanent residency). In some instances a foreign national might be considered a “priority worker” based on their recognition as a person of extraordinary ability, an outstanding professor or researcher, or a multinational executive or manager (EB-1). They might be considered members of the professions holding advanced degrees (master’s degree or higher, or equivalent), or aliens of exceptional ability (EB-2). For these highly qualified aliens, an employer could file directly with the USCIS (for EB-1) or pursue filing a PERM (Program Electronic Review Management System) application, if applicable, with the Department of Labor and, when issued, file a concurrent I-140 Petition for Alien Worker, I-485 Application to Adjust Status, and I-765 Application for Employment Authorization with the USCIS. This option is available only when the appropriate employment-based preference category has currently available visa numbers based on foreign worker’s country of chargeability.32 Provided that certain other requirements are met, this approach enables the foreign worker to bypass the non-immigrant (H-1B and other visa categories) and directly apply for employment-based lawful permanent residency in the U.S.
V. A Word on the H-1B “Cap-Gap”
Often U.S. employers want to continue to employ F-1 foreign student who are completing their 12-month period of post-completion optional practical training. Since OPT is commonly granted after graduation, many of these graduates’ employment authorization will expire several months before the start of the new fiscal year and their H-1B start date. In these cases, USCIS has refused to accept a request for a change of status because of the gap between the end of their F-1 OPT and the start date of the employer’s H-1B petition. Persons in this situation must either request a change to a different and available status, or else leave the U.S. and return close to the start of the new fiscal year and their H-1B start date.
VI. Conclusion
Although there is pending legislation in Congress to lift the H-1B cap, the current reality is that U.S. companies cannot hire cap-subject foreign workers until the next fiscal year. Employers should start the recruiting and hiring process now, in order to be ready to file new H-1B petitions on April 1, 2007, even though the employment start date will not be until October 1, 2007. In the meantime, strategic consideration should be given to alternative visa categories that may be available to some individuals, which may allow them to work immediately in the United States. Now more than ever, it is important for employers to start planning early with their immigration counsel to explore options specific to their needs and to ensure that the H-1B cap does not hinder their hiring goals and ability to supplement their workforce with professional foreign workers. The list of visa categories described above is not exhaustive, and each visa category has very specific requirements and limitations. The circumstances of each case should be discussed with counsel, to determine if there is an alternative visa category that may fit the employer’s needs and circumstances, and the qualifications of the foreign worker.
__________
1. Scott D. Pollock and Fatima Mohyuddin practice in the area of U.S. immigration and nationality law with Scott D. Pollock & Associates, P.C. in Chicago, IL. The H-1B visa is used by U.S. employers who employ highly educated foreign national workers in a “specialty occupation.” See INA §101(a)(15)(H); 8 U.S.C. §1101(a)(15)(H).
2. Available at <http://www.uscis.gov/graphics/publicaffairs/newsrels/FY07H1BCap_060106PR.pdf>.
3. Available at <http://www.uscis.gov/graphics/publicaffairs/newsrels/H1BMasters072806PR.pdf>
4. See INA §214(i)(1); 8 U.S.C. §1184(i)(1); 8 C.F.R. §214(h)(4)(ii) and 20 C.F.R. §655.715.
5. See 8 C.F.R. §214(h)(4)(iii)(A) (requiring that the position must meet one of the four listed criteria).
6. See INA §214(g)(1)(A); 8 U.S.C. §1184(g)(1)(A).
7. See INA §214(g)(5)(C); 8 U.S.C. §1184(g)(5)(C) (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)).
8. See Allocation of Additional H-1B Visas Created by the H-1B Visa Reform Act of 2004, 70 Fed. Reg. 23,775 (May 5, 2005).
9. See INA §212(n); 8 U.S.C. §1182(n). When properly filed electronically, the DOL can usually return the certified LCA within hours.
10. See INA §214(g)(7); 8 U.S.C. §1184(g)(7) (An H-1B could be eligible for a full six years if s/he was out of the country for a year or if the work s/he was performing in the U.S. was seasonal, intermittent or less than six months per year).
11. A foreign national in H-1B status in the U.S. may accept new employment upon the filing of a new petition by the prospective employer if: 1) s/he was lawfully admitted; 2) the new petition is nonfrivolous; 3) the new petition was filed before the date of expiration of the period of stay authorized by the Attorney General; and 4) subsequent to such lawful admission the H-1B worker was not employed without authorization before the filing of such petition. See INA §§214(n)(1) and (n)(2)(A)(C). Filing is defined at 8 C.F.R. §103.2(a)(7)(i) as physically received by the USCIS.
12. See INA §214(g)(5)(A)&(B); 8 U.S.C. §1184(g)(5)(A)&(B).
13. See INA §101(a)(15)(L); 8 U.S.C. §1101(a)(15)(L); 8 C.F.R. §214.2(l) and 22 C.F.R. §41.54.
14. Time spent in the U.S. in H-1B status will count towards L-1A/B (5/7 years limits) and a person cannot change status to an H-1B after reaching the 5/7 year maximum. See 8 C.F.R. §214.2(l)(12)(i).
15. See 8 C.F.R. §214.6.
16. See INA §101(a)(15)(E); 8 U.S.C. §1101(a)(15)(E); 8 C.F.R. §214.2(e) and 22 C.F.R. §41.51.
17. See INA §101(a)(15)(O); 8 U.S.C. §1101(a)(15)(O); 8 C.F.R. §214.2(0) and 22 C.F.R. §41.55.
18. See INA §101(a)(15)(P); 8 U.S.C. §1101(a)(15)(P); 8 C.F.R. §214.2(p) and 22 C.F.R. §41.56.
19. See INA §101(a)(15)(E)(iii); 8 U.S.C. §1101(a)(15)(E)(iii); PL 109-13, 119 Stat. 231, Division B,
Title V, Sec. 501 (May 11, 2005); 22 C.F.R. §41.51(c).
20. See INA §101(a)(15)(J); 8 U.S.C. §1101(a)(15)(J).
21. See INA §212(e); 8 U.S.C. §1182(e).
22. See INA §101(a)(15)(H)(iii); 8 U.S.C. §1101(a)(15)(H)(iii); 8 C.F.R. §214.2(h)(7).
23. No extension, change of status or readmission to H or L status granted after the two years unless the foreign national resided and is physically present outside of the U.S. for six months. See 8 C.F.R. §214.2(h)(13)(iv). If the training is seasonal, intermittent, or less than six months, this rule does not apply. See 8 C.F.R. §214.2(h)(13)(v).
24. See INA §101(a)(15)(H)(ii)(a) and (b); 8 U.S.C. §1101(a)(15)(H)(ii)(a) and (b); 8 C.F.R. §214.2(h)(5) and (6).
25. Cannot obtain change of status, extension of status, or readmission to H or L status if the foreign national has held H-2B status in the U.S. for three years unless foreign national has resided and is physically present outside of the U.S. for six months. See 8 C.F.R. §214.2(h)(13)(iv); §214.2(h)(15)(ii)(C).
26. See 8 C.F.R. §214.2(f)(10)(ii).
27. The foreign graduate may apply to change status to H-1B or another status during the authorized sixty-day grace period after the completion of optional practical training. See Memo, Pearson, Exec. Assoc. Comm. Field Operations, HQ 70.23.1 RS-P (Aug. 19, 1998), reprinted in 75 No. 32 Interpreter Releases 1147, 1167 (Aug. 24, 1998).
28. See INA §101(a)(15)(R); 8 U.S.C. §1101(a)(15)(R); 8 C.F.R. §214.2(r) and 22 C.F.R. §41.58.
29. After five years the foreign national must reside and be physically present outside the U.S. for one year except for brief visits, to be eligible again.
30. See INA §101(a)(15)(Q); 8 U.S.C. §1101(a)(15)(Q); 8 C.F.R. §214.2(q) and 22 C.F.R. §41.57.
31. Must have resided and been physically present outside the U.S. for the immediate prior year if previously admitted in Q classification. See 8 C.F.R. §214.2(q)(3)(iv).
32. Information regarding employment-based preference category visa availability is provided in the Department of State’s monthly Visa Bulletin, available at <http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html>. The November 2006 Visa Bulletin reflects that the EB-1 category has available visa numbers worldwide. The EB-2 category has available visa numbers for all areas of chargeability except China and India, which have currently retrogressed to April 15, 2005 and January 1, 2003 respectively. There are additional employment-based preference categories including EB-3, EB-4 and EB-5. Detailed discussion of these categories is beyond the scope of this article. The EB-3 category for skilled workers, professionals, other workers, and Schedule A workers (nurses and physical therapists) remains retrogressed and visa numbers are unavailable. It is important to note, however, that currently the EB-4 category for “special immigrants” (ministers, religious professionals, and religious workers) has available visa numbers. Likewise, the EB-5 category for employment creation investors (investing $1 million or $500,000 in a targeted rural or high-unemployment area) has currently available visa numbers.
It is a fact! Romania will become a member of the European Union on January 1, 2007. At last, Romania’s dream of lifting all the barriers and sharing Western European values, prosperity and security, a dream of half a century, have come true. This achievement represents one of the greatest moments in the country’s long European history. Romania is a vibrant and richly diverse East European country. It was once a part of the Roman empire, which is quite clear from its name, which is derived from the Latin word for Rome. It is a storybook land, not only for the well-known legend of Dracula but, on the contrary, for its beauty and its people. Beyond its history, Romania deserves to be defined by its raw untapped potential.
What does this country offer in terms of investment climate from the U.S. perspective? A marketplace of 22 million, which is the second largest in the region after Poland. Romania has 37 million acres of arable land, a vibrant oil and gas industry, breathtaking landscapes, an expanding economy, and a well-educated workforce with more than 50,000 IT specialists. We have access to the Black Sea as well. Ultimately, Romania’s most important attraction lies in its tremendous real estate investment potential.
U.S. investors in banking, energy, biotechnology, manufacturing, electronic components, cable operation, consumer products, telecommunications and film production have all gone to Romania for these reasons. They have discovered that American management and capital work profitably in Romania.
Ultimately, as concerns Romania, the most important discovery a foreign investor could make is the tremendous real estate investment potential that exists here. Romania presents the investor with an exceptional opportunity to benefit from the accession to the European Union. The pre-accession excitement has given way to a dramatic increase in real estate prices in recent years, especially in major cities and tourist areas. For example, a two-bedroom apartment bought in 2002 in central Bucharest for $25,000 is valued today at €75,000 (ca. U.S. $95,700). The best bet for investment-oriented apartment-hunters in Bucharest today is high-end luxury apartments. Although middle-market residential real estate is quickly leveling off with prices in other European cities, the luxury market in Bucharest still offers tremendous value as compared to other EU capitals.
While Bucharest abounds with investment opportunity, the opportunities outside the city are also ripe with potential. Investors stand to make as much if not more investing outside of Bucharest. Real estate experts agree that land, all over the country, is a good investment, if not the great investment in Romania.
Real estate investors are optimistic about the industry’s potential to generate healthy returns over the coming years. According to the highly regarded real estate investment report, “Emerging Trends in Real Estate Europe, 2005,” published by the Urban Land Institute and PricewaterhouseCoopers LLP in January 2006: “The intense competition for prime assets has forced almost everyone to search for overlooked corners of markets.” As a consequence, class A offices, shopping centers, industrial facilities and residential buildings were highly attractive investments for real estate developers. Although still in its early stages, the Romanian real estate market shows great potential, as an increasing number of quality properties are being developed and economy grows. Forecasts for continued growth remain optimistic.
Another promising development for the Romanian real estate is the new €2 billion super-highway. This highway dramatically changes the face of the country. It will cut down the travel time between Bucharest and major cities significantly and will literally create new major destinations in Romania, overnight. The European Union is backing the construction and the American firm, Bechtel, is building it. The highway is scheduled for completion between 2010 and 2012. Because it cuts through the Western portion of Transylvania, numerous towns and potential resorts districts abounding in natural beauty with mountains, springs and rivers will suddenly be centrally located. Many of these locations surpass the potential found in the current tourist areas that are easier to reach.
While prices have already jumped significantly in recent years, the near-certain speculation is that they will almost certainly continue to rise sharply until they almost equal those in Western Europe. The expectation around this hallmark event has resulted in much needed economic and government reform, making conditions more suitable for foreign investment. The new Romanian government recently modified the country’s tax system. A raft of changes that will greatly influence real estate investments have already been enacted or are in the pipeline.
I will put these laws in the context of the broader Romanian legal structure to make it easier to see how the tax changes will impact real estate investment structures.
Currently, Romanian nationals and Romanian legal entities (including companies with foreign participation) may purchase land. On the other hand, legal entities without Romanian nationality, meaning companies headquartered abroad, may not own land in Romania. However, companies headquartered in Romania may own land even though their share capital is 100 percent foreign-owned.
Things are about to change. Under a new property law coming into effect on January 1, 2007, EU citizens will be able to buy most types of land, without restrictions. An exception to this is the purchase of agricultural land, which will be restricted for another seven years. If U.S. and non-EU citizens want to buy land in Romania, their countries will have to give reciprocal rights in their bilateral agreements with Romania.
Romanian law requires the authentication of a notary for any transfer agreement regarding ownership of real estate located in Romania. A notary in Romania, like in all civil law countries, is a legal professional who plays a very important role in a wide variety of legal transactions. Without the notary’s authentication, no real estate property transfer is valid. To ensure validity of the ownership transfer as against third parties, you should also record the deed in the Land Register. When purchasing real estate, keep in mind that in parts of Romania, registration of ownership in the Land Register has been implemented only recently. Therefore, you may need more specialized help with the ownership review when buying real estate.
Both Romanians and foreigners may rent property in Romania. This includes legal entities and individuals. A Romanian landlord has the legal obligation to pay the taxes levied on income from property (i.e. rental fees, realized capital gains). Foreign landlords, on the other hand are subject to withholding rules. Depending on the bilateral tax treaty in place between Romania and the parties’ home country, foreign landlords may get relief from double taxation. Landlords and tenants may freely negotiate the terms of any lease. Note, however, that Romanian law does set minimum rental rates. Parties may not negotiate terms below those legal thresholds.
Income tax rates depend on whether the real estate investor is an individual or a real estate investment trust. Individuals investing in real estate are subject to individual income tax on the net rental income – the rent less a deemed legal deduction for expenses. Current tax rates are calculated as follows. Individuals pay 16 percent on their income. The deemed expenses percentage is currently 25 percent. Thus, the effective tax rate on the rental fees has been reduced from 20 percent to 12 percent under recent legislation. Over the past two years, Romanian nationals investing in real estate have made over €1 billion in profits (roughly U.S. $1.275 billion).
If instead the property is owned by a real estate investment trust, the rental income and expenses incurred become part of the total profit of the company. As of January 1, 2005, profit tax rate was reduced from 25 percent to 16 percent. This reduction has had a positive impact on the effective return on real estate investments. Unfortunately, tax rates on dividends increased from 5 percent to 10 percent for natural persons. However, for residents of a country with which Romania has signed a Double Tax Agreement, the domestic withholding tax can be overridden by the Agreement. The U.S. signed a bilateral tax treaty with Romania in 1973.
When selling real estate, a local company will pay 16 percent profit tax on the difference between the sale price and the fiscal book value. Non-resident companies are subject to the same tax rate on any profit derived from the sale of Romanian real estate. Under most applicable Double Tax Agreements, the right to tax this income is allocated to Romania.
In the second half of 2005, Romania made €25 million, roughly U.S. $32 million, from taxing speculative real estate transactions. During the same period, investors made €253 million.
Owners of buildings and special constructions are subject to real estate property tax, irrespective of their location or function. Individuals pay 0.2 percent on the Market Value of buildings located in urban areas, and 0.1 percent elsewhere. Companies are subject to 0.5 percent to 1 percent of the book value on buildings. The rate on land is measured in square meters; is fixed by law; and depends on location.
The purchase of Romanian real estate is subject to 19 percent Value Added Tax (VAT). VAT is a popular European tax that does not exist in the U.S. Under the new Fiscal Code passed in January of 2005, where both parties are recorded as VAT payers, they can record the VAT both as output and input tax in their VAT return, without effectively paying this tax. You can easily see that you’ll want some good real estate tax advice before going into Romania.
Finally, how does Romania’s accession to the EU affect Romanian real estate? Under an EU Directive popularly known as the EU Parent/Subsidiary Directive, dividends distributed by a company resident in one EU member state, to a company tax resident and paying taxes in another EU member state, should generally not be subject to dividend withholding tax at the subsidiary level. Furthermore, it implies that the EU member state of the parent company receiving the dividend should provide for a method to eliminate double (corporate income) taxation of the dividend received. These regulations will be subject to certain minimum holding provisions, so that a certain minimum percentage of shares in the subsidiary will have to be owned for a certain period of time. The Romanian Fiscal Code provides that the EU Parent/Subsidiary Directive will be applicable for dividends distribution as of the EU accession date. When this EU Directive is implemented into the laws of the EU member states, including Romania, taxes on investments made in Romanian real estate will decline, with the obvious return for investors.
One crucial factor that could be a stumbling block for many investors is financing. Romanian banks do not lend to foreign real estate investors. Anybody looking to buy will need to have cash upfront or find alternative methods to finance their investment. On the positive side, however, this current lack of available finance means that few foreigners are buying, and prices are therefore still very low. Even if there are alternative lending institutions to banks, the potential market is large enough to accommodate more lenders. Despite these momentary drawbacks, foreign investors should not be discouraged from acquiring real estate property in Romania.
Whether you are looking for a short-term investment turn-around in a European capital city like Bucharest, or are hoping to start your own resort inn in the breathtaking wilds of Transylvania, opportunity is readily available for the serious-minded investor. As many speculate, given Romania’s size and natural assets, the future yield will actually end up being much greater than the one once available in the other Eastern European countries.
You can certainly advise your clients to buy real estate investment properties in this country, but don’t forget to let them know they need to get a smart banker, a smart notary, and last but not least, a good lawyer.
__________
* Ms. Tira graduated from the law school at the University of Babes Bolyai in Cluj Napoca, Romania. She practiced civil and commercial law in Romania during a period in which Romanian legislation underwent many changes. Her client base has included businesses and individuals from Italy, France, Belgium, Germany and Hungary. Presently, Ms. Tira is working as a legal assistant at Marino & Assoc. PC - a law firm focusing on real estate transactions and real estate tax appeals. In addition, Ms. Tira is interning at the international law firm of Bryan Cave LLP, where she works mainly in the Customs and Trade Law Practice. She is also an LL.M. candidate in International Business and Trade Law at The John Marshall Law School. She can be contacted at sorinatira@gmail.com.
Bulgaria is a parliamentary republic located in south Eastern Europe with a population of 7.3 million and a territory slightly larger than Tennessee. The Constitution of the Republic of Bulgaria is the supreme law of the country, and no other law may contravene it. All international treaties are ratified pursuant to constitutional procedure, and are considered part of domestic legislation. Where domestic law conflicts with treaty terms, however, international treaties prevail.
After the fall of the communist regime in 1990, Bulgaria chose to develop a market economy, to integrate into the European structures, and to join NATO. On its final monitoring report dated September 26, 2006, the European Commission concluded that Bulgaria is prepared to join the European Union.
The EU is one of the biggest and most dynamic economies in the world. It is responsible for 20 percent of the global industrial output, second only to the U.S., which produces 26 percent. The EU is currently the biggest trade power in the world. It holds 40 percent of the world’s exports.
Bulgaria is a small country. Its relatively open economy, with foreign trade representing 80 percent of GDP, could not survive without broad access to international markets. Bulgaria offers foreign investors one of the world’s most attractive business environments. Corporate taxes and labor costs are the lowest in Europe. Privatization and deregulation created sophisticated public utility and telecommunications industries.
The Bulgarian economy is working under a currency board, which provides for a stable and predictable macro economic environment. Careful fiscal discipline and strong foreign investments contributed to the sustained economic growth in the last 7 years. Other strong incentives on which a foreign investor can rely are sound macroeconomic indicators, a strong educational system, established industrial traditions, and stable public institutions. No incentive is greater than the fact that as of January 1, 2007, Bulgaria will be part of the largest economic union in the world.
Thanks to the EU accession, Bulgaria will become part of the world’s largest single free trade area for industrial products. As a consequence, Bulgarian businesses will face intensive competition from imports. On the other hand, they will also have duty-free access to a market of 550 million people, and easy access to every major global market.
As part of its accession process into the European Union, Bulgaria adopted liberal trade policies. The impact of EU accession, however, goes beyond the trade liberalization of the Bulgarian economy. Bulgaria’s EU membership means greater political and economic stability. Bulgaria will make an important contribution to fostering the safety of transit routes for raw materials from the Middle East and Asia. Bulgaria will be an important trade hub between the EU and the former republics of the Soviet Union. This will likely give a major boost to the transportation industry in the country. Exports from Bulgaria to the EU will grow rapidly due to the geographical factors and the lack of trade obstacles.
Bulgaria’s flexible labor laws favor investors. The World Bank reports that Bulgaria offers more flexibility in terms of labor regulations than any other country in the region. Factors measured by the World Bank include availability of part time and fixed term contracts, working time requirements, minimum wage laws and minimum conditions of employment. According to both Eurostat and JP Morgan, Bulgaria’s labor costs are less than 10 percent of those in the European Union. At the same time, productivity growth is well above both the EU and other EU-accession countries.
Most new investors choose Bulgaria to protect or grow market share, deliver new products, reduce costs, and fully utilize research and development budgets. Critical issues for them are values such as political stability, business-friendly climate, and experienced labor force. With this in mind, it only makes sense for prospective investors to look to Bulgaria as a place to do business in Europe. A new investment law passed in 2004 extends to foreign investors the same rights, protections, and guarantees that domestic investors enjoy. Bulgaria’s message to foreign investors is simple. They receive equal access to all forms of economic activity and can rely on rule of law, impartially adjudicated, to decide commercial disputes.
Under the new law, investments over 50 million EUR (approximately US $65 million) qualify for free state or municipal land and infrastructure, as well as administrative and other support. Foreign investors receive the same access as any domestic investor in any business activity. They may participate in the sale of public assets; may acquire securities including shares and treasury bonds; and are guaranteed intellectual and real property rights as well as the enforcement of contracts. When Bulgaria’s international treaties offer foreign investors more favorable terms and conditions, then those terms take precedence over otherwise applicable local rules. Bulgarian law also provides guarantees against adverse changes, and protects against expropriation.
In 2004 Bulgaria was one of the top ranking Central and Eastern European countries in terms of its ability to attract foreign direct investment on a per-capita basis. Bulgaria got 2 percent of all Greenfield investment projects in Europe for the year, thus becoming not only a regional, but a European competitor for such projects. In competing for foreign investments, Bulgaria is using the same approach as Singapore and South Korea in the 1980s, Ireland in the 1990s and the Czech Republic prior to its EU accession in 2004. Bulgaria offers a highly skilled and highly specialized workforce and an individual approach to attract investors. The combination of high growth, low inflation, stable currency, low interest rates, price and wage stability and low tax rates, sets Bulgaria apart from neighboring states in Central and South East Europe as a low risk, high return investment location.
Bulgaria also “makes it easy” for investors to do business, starting with an improved “one-stop-shop” approach. Investors will find professional counterparts each with business and specific industry experience, along with opportunities to discuss issues with a team of experts, from technical and business backgrounds, recruited specially for them, on a case-by-case basis. During the summer of 2004, S&P and Fitch upgraded Bulgaria’s long-term foreign currency debt to investment grade rating. All this taken together makes Bulgaria the best place in Europe to invest.
In the framework of its preparations for EU membership, Bulgaria made great progress with institutional reforms. Privatization is completed, as well as the reforms in the banking and financial sectors. Goods markets and merchandise trade are liberalized. These reforms accelerated trade integration with the EU and the global markets.
New definitions of small and medium sized enterprises were introduced in line with the respective European definitions. This is necessary in light of the support that these enterprises will receive from the EU structural funds, the European Investment Bank and the European Investment Fund. The aim is to achieve fair distribution of funds and comply with the principles and requirements of fair competition.
Bulgaria’s Civil Procedure Code allows for resolution of disputes in arbitration courts abroad if one of the parties resides in another country. Bulgaria’s International Commercial Arbitration Law provides for settlement of civil property disputes arising from foreign economic relations through international arbitration when one of the parties is a legal resident of a foreign country. Bulgaria is one of the original signing parties to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The convention has been in effect in the country since December 17, 1958.
Bulgaria’s current income and corporate tax rates continue to be the most competitive in Europe. Manufacturing companies located in regions of high unemployment receive a corporate tax exemption for five years. Municipality tax has been repealed.
As of January 2007, corporate incomes will be taxed at 10 percent. This is expected to compensate for the higher production cost projected after the EU accession. Entities that are Bulgarian residents are taxed on a worldwide basis. Foreign entities are taxed on their Bulgarian income. Companies are considered to be tax resident if they are registered in Bulgaria. Companies that are non-residents in Bulgaria, but operate in Bulgaria through a branch, office, agency or other form of a permanent establishment are only liable to tax on the profits generated through their Bulgarian establishments.
The U.S. and Bulgaria are currently negotiating a bilateral tax treaty in order to avoid double taxation. In view of the outstanding political and military cooperation between the two countries, and the rapidly growing volume of U.S. investment in Bulgaria, such treaty is a necessity. The first round of negotiations took place in February 2006 in Washington. Both sides viewed this round as a success. The list of issues for further discussion in the second round is quite small.
Bulgaria and the U.S. are parties to a bilateral investment treaty in effect since June 2, 1994. On September 22, 2003, the U.S. signed the Bilateral Investment Understanding for Accession Countries with the EC. This is a political Understanding preserving U.S. bilateral investment treaties with the acceding countries, by agreeing to specific amendments to them. As a result, Bulgarian duties arising out of its membership in the EU will be compatible with those guaranteed under the U.S.-Bulgaria BIT.
From 1998 to 2005, Bulgaria’s economy achieved 4.5 percent average annual growth. In contrast, the Euro zone grew at 0.4 percent over the same period. As recently as 1998, the service sector accounted for barely five percent of Bulgarian GDP. In 2006 it accounts for 36 percent. This means that Bulgaria’s “transition economy” is evolving quickly, following a pattern associated with sophisticated and developed economies typically dominated by the service sector. The data also indirectly support the EU conclusion that Bulgaria’s is a “full functioning free market economy.”
In 2005, exports of both goods and services grew by nine percent. More than 300,000 new jobs were created, with nearly 40 percent of them categorized as “long-term” employment. This type of job growth led to a strong consumer demand for credit and helped sustain the expansion of the financial services sector. The successful privatization of the banking sector has lead to an investment friendly monetary and fiscal policy and continuing decline of the interest rates.
Trade liberalization analysis demonstrates that Bulgaria no longer lags behind the other East European countries in accepting the legislative and regulatory framework set up under the “Europe Agreement.” Instead, it clearly corresponds to international trade principles. In many cases, the level of liberalization reached in Bulgaria even exceeds the performance of the first-wave candidates for EU membership.
As a result of a successfully pursued liberalization process in 2004, the European Bank of Reconstruction and Development concluded that Bulgaria had made substantial progress in liberalizing its trade and foreign exchange regimes and awarded it with a high grade in this area: (4+).
Another of Bulgaria’s success stories is its stable currency. The Bulgarian Lev has been pegged to the Euro since 1997. This guarantees zero fluctuation in terms of exchange rates. By comparison, neighboring states have experienced fluctuations ranging from 100 to 250 percent during the same period. In 2003, Bulgaria’s average inflation rate was 2.3 percent. By comparison, South East Europe neighboring states ranged from 15.3 percent in Romania to 1.5 percent in Croatia.
In the last seven years, Bulgaria has made impressive progress in stabilization, growth, and poverty reduction. Since 1997 Bulgaria has been implementing a comprehensive stabilization and structural reform with one target: EU accession. As a result, since 1999 Bulgaria has maintained macroeconomic stability. Growth has ranged between 4 and 5 percent per year, contributing to an increase of the per capita income. Bulgarian companies are become more integrated into the international trade regime, and increasingly establish themselves in markets based on more competitive products, rather than on low labor costs.
Bulgaria’s strong economic performance in the last six years made it a favorite destination for foreign investments. The major economic indicators suggest Bulgaria’s robust growth will continue into 2007 and beyond. Bulgaria’s monetary and fiscal policy, macroeconomic and political stability, functioning free market economy, privatized financial sector, low tax rates, laws governing intellectual property, contracts and bankruptcy, flexible labor and competitive wages are all parts of the appealing Bulgarian business climate.
Strategic investors considering the European Union as a location or potential site for expansion may do well to shortlist Bulgaria as their preferred option. Why? Three words: Opportunity, Predictability and Competitiveness.
__________
* Mr. Petrov studied law at the University of Plovdiv, Bulgaria, where he obtained his J.D. in 2002. He worked as in intern in the County Prosecutorial Office, the County Court and the Township Attorney’s Office in Sliven, Bulgaria. He is currently a student of International Business and Trade Law, studying for his LL.M. at The John Marshall Law School. He can be contacted at p.petrov@sbcglobal.net.
The National Immigrant Justice Center, in their recent Pro Bono project newsletter expressed their thanks and congratulations to attorneys who volunteered their time to assist in immigration relief matters. They specifically sited the following attorneys whose clients were granted immigration relief during October 2006:
Colin Connor and Jason Stiehl of Seyfarth Shaw LLP won asylum for a man from Eritrea. The client was a Pentacostal Christian who was targeted by the Orthodox church and the police for his beliefs. He fled to the U.S. in 2003.
Saundra Fried of Sonnenschein, Nath & Rosenthal, and Susan Weiss and Connie Reinhard of Exelon Corporation obtained U-visa interim relief for their client who is from Mexico. Their client called the police on many occasions due to her boyfriend’s abusive and harassing behavior towards her and her family members.
Charlotte Kaiser of Skadden, Arps, Slate, Meagher & Flom obtained U-visa interim relief for her client who is from India. After the client’s husband threatened to kill her, she fled to a domestic violence shelter. Even though the client filed a criminal complaint several months after the last incident of abuse, the police arrested and charged him with domestic battery. The client is cooperating with law enforcement in the criminal case.
Therese McGinnis obtained an approval on her client’s VAWA self-petition. The client is a woman from Germany who met her husband while he was stationed in the military in Germany. The client’s husband was very abusive and controlling, leading the client to suffer serious depression and anxiety. Today the client has employment authorization and is protected from removal form the United States.
Brian Neuffer and Brendan Geary of Winston & Strawn LLP won asylum for a woman from Eritrea. The case was reopened by the Board of Immigration Appeals in 2004 and remanded to the Immigration Court in 2005. The client was a military deserter who feared returning to Eritrea, where deserters are often put into prison and tortured.
John Van Vranken of Exelon Corporation and Sarah Galioto of Sonnenschein, Nath & Rosenthal obtained U-visa interim relief for their client who is from Romania. Their client left her abusive spouse after a 14-year relationship during which the abuser threatened her with a knife, got her fired, and repeatedly violated the order of protection she obtained against him.
Yesenia Villasenor-Rodriguez and Laura Taylor of Gardner, Carton & Douglas obtained U-visa interim relief for a young woman from Mexico. The client’s husband was abusive and controlling. On one occasion, the husband kidnapped their child, and later tried to deny his parentage when the client sought child support. The client is now safe from removal and has the work authorization needed to achieve economic self-sufficiency.
Linus Chan of the National Immigrant Justice Center (NIJC) won asylum for a woman from Tibet. The client was a follower of the Dalai Lama who was pursued by Chinese authorities for teaching subversive materials. The client fled to Nepal for several months before arriving in the U.S., where she was detained upon arrival.
The National Immigrant Justice Center, a Heartland Alliance partner, has provided us the following description of pro bono representation cases that are currently in need of assistance.
Our pro bono attorneys tell us that representing vulnerable immigrants is one of the most personally enriching and rewarding experiences of their careers. Your representation could make the difference between an asylum seeker finding safe haven in the United States or being deported to a country where she or he would face persecution, torture, or even death.
If you are reluctant to volunteer because you are unfamiliar with immigration law, don’t worry—we provide training and backup support. You will notice that our case list is organized into sections based on the type of case the client has. Within each section, the cases are loosely ordered by urgency. Some of our clients need assistance to prepare Affirmative Applications for asylum and representation during their interviews at the Asylum Office. Others clients already have Master Calendar or Merits Hearing dates set with the Immigration Court and need assistance preparing for an appearance at those hearings. Urgent Cases-attorneys needed immediately. Children’s Cases and cases for individuals who are Survivors of Domestic Violence are included in separate sections of the list. Asylum hearings usually last half a day, with little or no discovery and minimal pleading or motion practice. Please note that Master Calendar hearings are only preliminary hearings at which a final trial date is set. Master Calendar hearings are similar to arraignment hearings in criminal cases and require minimal preparation.
For more information about these cases, please contact Jefferson Mok at 312.660.1307 or jmok@heartlandalliance.org.
Urgent Cases
1. E. is a 16-year-old boy from South Africa who is eligible for T-visa as a human trafficking victim and for a Special Immigrant Juvenile visa. E.’s first Master Calendar hearing is December 14, 2006. E. speaks English. (152038)
E. lost his mother in 1992 when he was two years old, and his father died in 2004. After his father’s death, E. lived with his grandmother until his maternal aunt lured him into coming to the U.S. in 2005. E.’s aunt promised him a free education and a car when he would turn 16. Upon arriving in the US, E.’s aunt took away his passport and identification card. Instead of going to school, E. was coerced to work in the aunt’s store fives days week for 14 hours a day and was paid $50 a week. His aunt threatened E. with arrest and deportation when he asked for his passport to return to South Africa. E. was stopped by police in the mall while he was wearing a stolen hat. When the police called his aunt, she told the police that E.’s visa had expired. E. was then picked up by immigration, and he is currently detained in a shelter for unaccompanied minors. E. is a victim of human trafficking for labor. In addition, E. cannot return to South Africa because he has no one to care for him there.
Affirmative Applications
2. N. is a woman from Sudan. Her affirmative application for asylum must be received by USCIS before February 20, 2007. N. speaks Arabic.. (151691)
Members of N.’s family were social activists in Sudan, many of whom were persecuted and have since left the country. Although N.’s relatives are very political, N. did not participate in political activities. However, when her relatives began to flee, the government sought out N. to find out the whereabouts of her relatives. Government agents would often barge into her home and interrogate her about her relatives. During one such visit in early 2004, N. gave her typical response that she did not know. One of the officers struck her in the head above the left eye, a wound that required stitches to heal. During another visit in 2005, men who identified themselves as secret police beat N. with a club. She suffered a food injury that became infected. N. is diabetic, which caused the infection to spread quickly. To avoid amputation, N. had to go to Egypt for surgery. By the time she returned, the majority of her relatives had left Sudan, but the visits from government agents became more frequent. They continued to interrogate her about her family and make threatening remarks about her refusal to cooperate. N. fled Sudan in February 2006 and came to the U.S. on a tourist visa. N. is the mother of the woman in the next entry.
3. M. is a woman from Sudan. Her affirmative application for asylum must be received by USCIS before August 10, 2007. M. speaks Arabic and some English. (151528)
M. started working as a typist and translator at the University of Jazeera in 1993. In 1995, the government imposed a strict dress code upon the university and other government institutions. The dress code for women included a veil and uniform made of thick heavy material. Temperatures near the university often reached 130 degrees Fahrenheit. From 1995, M. had two supervisors who did not enforce the dress code, but her third supervisor demanded that M. wear the veil and uniform. Soon after, M. developed health problems related to the heat. She consulted a doctor who advised her to stop wearing the veil. When M. asked the president of the university to end the dress code for women, he refused. M. then joined a series of protests against the dress code. At one such protest, many students and women were detained by Sudanese police and university security officers. M.’s friends who were detained reported being beaten during their detention. M. believes that the government started to plant spies inside the university during this time. In February 2005, M. participated in her last protest. In March, she left Sudan to visit family in Egypt for a month. Upon her return, she discovered that she had been fired from her job. M. fears that because of her participation in public protests, she has been blacklisted by the government. She is also concerned about her safety because members of her family are known social activists. If she returns, she believes she will be killed. She came to the U.S. in August 2006 on a tourist visa.
Master Calendar Hearings
4. A. is a man from Chad. His next Master Calendar hearing is on February 27, 2007. He lives in Fort Wayne, Indiana. (149449)
A. has been persecuted in Chad because of his uncle’s involvement in rebel activities. A. lived with his uncle, but when the uncle joined the rebel movement, A. never saw him again. Beginning in November 2005, government officials came began searching for A.’s uncle. They came to the house where A. lived and forced everyone to leave. The family moved to another house, but they were again forced to leave a couple months later. When the military came to this second house, they arrested A. and accused him of being involved in rebel activities. A. tried to explain that he hadn’t seen his uncle since his uncle joined the rebellion, and he had no idea what his uncle was doing, but the military officials did not believe him. A. spent three weeks in jail before being released due to illness. He was arrested again only a week later and was detained for an additional two weeks. In both of these jails, A. was repeatedly interrogated and tortured. A. is positive that if he returns to Chad, the military will arrest and kill him.
5. H. is a man from Chad. He has a Master Calendar hearing on March 13, 2007. He speaks English, French and Arabic and lives in Fort Wayne, Indiana. (150882)
H. is seeking asylum on the basis of ethnicity. H. is a member of the Gorane (also sp. Ghoran) ethnic group. Chad’s current president is a Zaghowa, an ethnic group that does not have friendly relations with Goranes. H. was fired from his job at Chad’s Ministry of Transportation because of his Gorane ethnicity. In September 2004, H. was accused of being a rebel because Goranes are associated with the political opposition. He was detained and interrogated for 3 months. H. was finally released in December 2004. In January 2005, H. was forced to join a military training camp where he learned he would have to fight other Goranes and drive trucks through minefields. When he refused, H. was detained and tortured. In June 2005, H. escaped Chad and came to the U.S. with an F1 Visa. H. fears that if he returns to Chad, the ruling party or the military will continue to persecute him.
6. M. is a man from Chad. His next Master Calendar hearing is on May 10, 2007. He speaks French and Arabic, and lives in Fort Wayne, Indiana. (149890)
M. applied for asylum because he fears persecution in Chad based on his political opinion and ethnic background. He fears persecution because he participated in meetings organized by the youth of his tribe, the Kreda, which is a sub-ethnicity that the government suspects is involved with two rebel groups. After an incident in which a woman of Kreda ethnicity was raped and beaten by people close to the President, Kreda tribe members held meetings to discuss the situation. Later, some armed Kreda members drove to the northwest of Chad to protest and were stopped by a checkpoint. These individuals were interrogated and tortured. Their fate remains unknown. The government has been identifying and rounding up Kreda members who participated in the meetings, which has included M.’s uncle. M. does not know how the government knows who was at the meetings but fears a similar fate if he returns.
Children’s Cases
7. D. is a 17-year-old boy from Ethiopia who is eligible for Special Immigrant Juvenile visa and for Asylum. D.’s next Master Calendar hearing is on January 25, 2007. D. speaks Amharic. (151956)
D. has never met his father. D. believes his father was politically active because police used to come to his house asking for his father’s whereabouts. D.’s mother was jailed for 2-3 months because of his father’s activities. D.’s mother passed away when he was eight-years-old. Since then, D. lived on the street until 2003 when he was “adopted” by a 45-year-old Dutch man who brought D. to South Africa. D. stated that the man was “bad” for him. In 2006, the man died, and D. was kicked out by the man’s family. Through the help of someone he met in an Ethiopian restaurant, D. managed to come to the US. D. was arrested by immigration at the Mexico border for not possessing an entry document. He is currently detained in a shelter for unaccompanied minors in Chicago. D. is afraid of being harassed and arrested by the police due to his father’s political activities. He has no one to care for him in Ethiopia. He had been victimized as a street-child and will again face the grim reality of living on the street if he is returned to Ethiopia.
Thank you,
Mary M. McCarthy, Director mmccarthy@heartlandalliance.org
Lisa Koop, Supervising Attorney lkoop@heartlandalliance.org
Jefferson Mok, Asylum and Pro Bono Project Coordinator, jmok@heartlandalliance.org
National Immigrant Justice Center (formerly the Midwest Immigrant & Human Rights Center)
208 S. LaSalle, Suite 1818,
Chicago, IL 60604
(312) 660-1307