Was it Worth the Wait? USCIS Releases Guidance on L-1B Visa Category

Posted in USCIS, Visas

The highly anticipated draft Policy Memorandum (L-1B Memo) addressing the qualifying criteria for the L-1B visa category was released by U.S. Citizenship and Immigration Services (USCIS) on March 24, 2015. The L-1B Memo attempts to give immigration practitioners and employers clear guidance on the definition of “specialized knowledge” and the standard of review USCIS adjudicators should apply when evaluating L-1B petitions. The feedback period for the L-1B Memo will end on May 8, 2015 and it will become effective on August 31, 2015.  Employers should be prepared to address the qualifying criteria outlined in the L-1B Memo, which clarifies and expands on previous agency guidance regarding L-1B visa adjudication.

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Report Released on Complaints About Management of USCIS’ EB-5 Program

Posted in Department of Homeland Security, EB-5 Program, USCIS

The Department of Homeland Security Inspector General Report regarding the “Investigation into Employee Complaints about Management of U.S. Citizenship and Immigration Services’ EB-5 Program” was released March 24, 2015. This report follows a long investigation and inquiries by several congressional offices about the appropriateness of the communications between certain stakeholders in the EB-5 program and upper management at USCIS. Although the report does highlight communications that have been deemed inappropriate by members of the immigration bar and stakeholder community, it doesn’t make substantive recommendations or criticisms about the program itself.

It is incumbent upon us all to work within existing processes and procedures as we advocate for important reforms. Please see the EB-5 Insights blog post about appropriate ways to request expedited review for pending cases.

We hope this serves as an important lesson to the community as a whole.

Bipartisan Legislation Needed Now to Make the EB-5 Program Permanent

Posted in EB-5 Program

The EB-5 program is currently at risk of expiring Sept. 30, 2015.  Congress needs to act immediately to reauthorize this program which has a proven record for stimulating the economy and creating hundreds of thousands of jobs. On March 23, 2015, Congressman Jared Polis (D-CO) released a statement explaining the merits of the EB-5 program and the reasons why this program should not be further delayed in partisan debate.

On Jan. 28, 2015, Congressmen Jared Polis and Mark Amodei (R-NV) introduced The American Entrepreneurship & Investment Act of 2015 [HR 616] in a push to permanently authorize the EB-5 Immigrant Investor program.   The bill has received strong support from the real estate, business, and tourism industries, also evidenced by the EB-5 Coalition’s final letter supporting HR 616 released earlier this month.  The legislation makes the following proposals: Continue Reading

USCIS Resumes Processing H-2B Petitions; Court Stays Injunction Until April 15

Posted in USCIS, Visas

U.S. Citizenship and Immigration Services (USCIS) announced March 17, 2015, that it would start adjudicating H-2B petitions again via regular processing. USCIS continues to suspend premium processing on H-2B petitions.

As reported in a blog post March 12, 2015, USCIS and the U.S. Department of Labor (DOL) stopped accepting and/or processing applications for H-2B prevailing wages and temporary labor certifications because of a federal court ruling that vacated the DOL’s 2008 H-2B regulations. The DOL filed an unopposed motion to stay the March 4, 2015, federal court order until April 15, 2015. DOL’s motion indicated that USCIS would resume adjudicating H-2B petitions based on temporary labor certifications issued by the DOL. On March 18, 2015, the federal court granted DOL’s motion and stayed its injunction until April 15, 2015, stating, “given that there are numerous United States employers who rely on the H-2B program to fill their temporary labor needs, the Court agrees that the requested temporary relief is warranted.”

DOL announced March 13, 2015, that it and the Department of Homeland Security intend to issue a joint interim final rule by April 30, 2015, that is consistent with the federal court’s decision.

India’s Business Executive Program (BEP) To End On April 1

Posted in India, Visas

The U.S. Mission to India announced that it is discontinuing its Business Executive Program (BEP) on April 1, 2015, indicating the program is no longer necessary due to improvements to its standard visa appointment system. Since the 1990s, the BEP has provided a dedicated appointment system (among other benefits) to companies with Indian offices that need a significant number of U.S. business visas. After April 1, employees of companies that are enrolled in BEP will be required to make appointments through the appointment contractor, just like all other visa applicants. Applicants with urgent business needs will have to apply for expedited appointments. The U.S. Consulates in India will honor all BEP appointments that are scheduled to take place after the April 1 shutdown date.

Myth vs. Fact: Responses to Arguments Against the EB-5 Pilot Program

Posted in EB-5 Program, EB-5 Regional Center Compliance

True or FalseMyth 1:  Buy a Green Card – The EB-5 program was established to help high-net-worth individuals buy a green card.

Fact:  The EB-5 program is a highly regulated employment-based permanent residence application that takes years to complete.  The initial application requires detailed proof of investment in a qualified project.  It also requires evidence of an investment of either 1 million USD or 500,000 USD and the creation of 10 jobs for U.S. workers.  The investor’s application is screened and, if approved, only a “conditional green card” is granted. The same in-depth review of the project and the investor’s background are conducted two years after conditional status is granted to ensure the individual’s continued eligibility for the EB-5 immigrant investor category.

Myth 2:   Loophole for Criminals/Terrorists – The EB-5 program provides an easier way for potential immigrants to go through background clearances, providing a loophole for potential criminals and terrorists.

Fact:  As described above, the EB-5 program requires an investor’s record to be reviewed two times – once for a conditional green card and then again when obtaining a permanent green card.  In addition to the normal screening process for other employment based permanent residence applicants, which is conducted twice for EB-5 applicants, the EB-5 applicant must have the project reviewed for compliance with regulatory requirements, including proving the requisite amount of investment and the requisite number of jobs to be created.  Moreover, EB-5 applicants go through a rigorous vetting process to demonstrate that their source(s) of funds is(are) lawful and that those funds can legally be invested into qualified projects. Continue Reading

USCIS and DOL Shut Down H-2B Program

Posted in USCIS, Visas

As a result of a federal court ruling last week, the U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of Labor (DOL) have shut down the seasonal employment work visa (H-2B) program. USCIS stopped processing H-2B petitions and the DOL stopped accepting and/or processing applications for H-2B prevailing wages and temporary labor certifications.

On March 4, 2015, in Perez v Perez, the Northern District of Florida vacated DOL’s 2008 H-2B regulations stating that the DOL lacks authority under the Immigration and Nationality Act to issue H-2B regulations. The basis for the ruling is that Congress did not give DOL formal rulemaking authority regarding the H-2B program. Rather, USCIS retains rulemaking authority over the H-2B program, with DOL playing a consulting role.

Neither agency has indicated when it will re-start processing. DOL states that it is “considering its options in light of the court’s decision” and USCIS states that it cannot process applications because H-2B “petitions require temporary labor certifications issued by DOL.”

Meanwhile, hundreds of employers are unable to utilize the H-2B program, which is critical to companies in seasonal industries, such as tourism, agriculture, forestry, and construction.  There are efforts forming to help relieve the situation legislatively and through the courts.


Impact of DHS Shutdown: 2015

Posted in Department of Homeland Security

Here we go again! The Department of Homeland Security (DHS) could potentially run out of money and shut down come Friday, Feb. 27, 2015. The issue arose from immigration amendments that the House attached to the proposed DHS funding bill last month. The amendments that were added to the bill would block any federal funds from being used toward President Obama’s executive orders to protect about 4 million undocumented immigrants from deportation and allow them to work. Further, the amendments would cease the Deferred Action for Childhood Arrivals program, which  gives temporary legal status and work permits to undocumented immigrants who entered the U.S. as children. As of Feb. 25, 2015, the Senate Democrats have signed on with the Republican plan to get rid of the House provisions added to the bill. However, whether the bill will pass or not still looms. President Obama and DHS secretary Jeh Johnson have been calling on Congress to fully fund the department, saying temporary measures or a shutdown would jeopardize national security operations.

If the bill is not passed by Friday, Feb. 27, 2015, then approximately 30,000 of the DHS’s 240,000 employees will be furloughed. The remaining approximately 210,000 employees will still be employed, as their jobs are deemed “essential to the nation’s safety.” From an immigration perspective, the question becomes: how does a DHS shutdown directly affect the general public?

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Work Authorization for (Some, But Not All) H-4 Visa Holders

Posted in Department of Homeland Security, USCIS, Visas

On Feb. 24, 2015 the Department of Homeland Security issued a final rule providing for employment authorization for certain H-4 dependent spouses. This is one of the most significant changes to employment-based immigration to occur in many years.

Who is eligible? Only certain H-4 dependents of H-1B nonimmigrants are eligible for employment authorization. The benefit is limited to H-4 dependent spouses (i.e., not children) of H-1B nonimmigrants who are the principal beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140), or who have been granted H-1B status in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), generally by exhausting six years of H-1B eligibility and being the beneficiary of an I-140 which is retrogressed or a labor certification that has been pending with the government for at least one year.

When does the H-4 employment authorization rule take effect? DHS will begin accepting Applications for Employment Authorization (Forms I-765) submitted by eligible H-4 dependent spouses on May 25, 2015.
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Congress Moves to Make Regional Center Program Permanent

Posted in EB-5 Program, Regional Center

As many of you are aware, the EB-5 Immigrant Investor Regional Center pilot program is scheduled to expire in September.  In recent years, there has been a surge in the use of EB-5 funds as an expanding layer in the capital stack to help finance real estate, infrastructure, and other development projects/businesses.

In early February 2015, Reps. Jared Polis (D-CO) and Mark Amodei (R-NV) introduced the American Entrepreneurship and Investment Act of 2015.  The bill would update and permanently authorize the EB-5 Immigrant Investor visa program.  It is based largely on H.R. 4178 from last Congress. A summary of the bill – H.R. 616 – and a copy of the sign-on letter is being circulated by the Real Estate Roundtable and the EB-5 Coalition.  Please let Laura Reiff or Jeff Campion know if you would like to sign-on to the letter.