Department of Labor Adds More to Disclosure Data to Include End Client Information

Posted in Department of Labor, H-1B, Labor Laws, President Trump's Administration, U.S. Department of Labor

The H-1B program is undergoing even more scrutiny under the current White House administration. Under the “Buy American, Hire American” Executive Order, the goal is for companies to hire only the best and the brightest for visa sponsorship, mostly H-1B visa holders. The Department of Labor (DOL), the governmental agency that handles the public disclosure information for employers looking to sponsor H-1B employees, has always released information for Labor Condition Applications (LCAs) in conjunction with the H-1B petition. The LCA has traditionally disclosed information including employer name, address, salary wage range, and worksite location, among other attestations the employer must make to meet labor and immigration laws. In November 2018, the DOL changed the format of the LCA to include those employers that place employees at a third-party client site, many of which petition for their own H-1B workers. See our November 2018 blog post here.

Due to the new format of the LCA, information is now publicly available regarding where consulting companies send their employees. This extra degree of transparency has sparked concern and possible new lawsuits over discrimination and hiring practices. This move has been seen as targeting staffing/consulting companies, with policy memos issued to ensure that these staffing and consulting companies adhere to the strictest standards, as blogged here.

Greenberg Traurig will continue to monitor any movement within the H-1B program.  Please contact your Greenberg Traurig attorney if you have any questions.

For more on H-1B visas, click here.


Administration Extends TPS for Syria

Posted in Syria, TPS

The Department of Homeland Security has announced an extension of Temporary Protected Status (TPS) through March 31, 2021, for approximately 7,000 Syrian nationals legally in the United States.

For more information on Syria or other TPS matters, please contact your GT attorney or click here. This blog will be updated as information becomes available, so please check back regularly.

OMB Completes Review of DHS/USCIS Public Charge Rule

Posted in Department of Homeland Security, Department of Justice, OMB, Public Charge Rule

As an update to previous entries, the Office of Management and Budget has posted the conclusion of DHS/USCIS Public Charge Rule review:

Department of Homeland Security

AGENCY: DHS-USCIS RIN: 1615-AA22 Status: Concluded
TITLE: Inadmissibility on Public Charge Grounds
** COMPLETED: 07/31/2019 COMPLETED ACTION: Consistent with Change

As further previously reported on this blog, the Department of Justice awaits conclusion of OMB review of the rule as to certain matters under its jurisdiction, but today’s action moves DHS closer to issuance of a final Public Charge rule.  This proposed rule is highly controversial and is expected to generate opposition upon issuance.

For more on the Office of Management and Budget (OMB), click here.

House passes TPS for Venezuela

Posted in Temporary Protected Status, TPS, Venezuela

On a second trip to the House floor in a week, HR 549 (the Venezuela TPS Act of 2019) was passed by the House with a bipartisan vote of 272-158. The bill failed to obtain two-thirds of the House for suspension calendar passage on July 23 and was resurrected by sponsors on July 24 for reconsideration in the House under a simple majority vote for passage.

As summarized by Congressional Quarterly:

This bill grants temporary protected status (TPS) to Venezuelans in the United States for an initial period of 18 months. It expresses the sense of Congress that Venezuela’s economic, humanitarian, security, and refugee crisis has resulted in extraordinary and temporary conditions that currently prevent Venezuelan nationals from safely returning to Venezuela.

Under the measure, to be eligible for TPS status the individual must have been continuously present in the United States since the bill’s enactment, be otherwise admissible to the United States as an immigrant, and register for TPS status with the Homeland Security Department.

Individuals granted TPS status under the bill may travel outside the United States as long as he or she demonstrates than an emergency or an extenuating circumstance beyond their control requires them to travel.

The bill requires TPS applicants to pay a surcharge of $360 in addition to any other application fees, although the Homeland Security secretary could waive the surcharge.

Besides being yet another immigration bill passing either body of Congress, this bill uniquely “legislates TPS” status for Venezuela outside the existing executive process. Advocates hope that strong passage in the House will encourage the Senate to act quickly, perhaps as soon as next week before August recess.   

For more on Temporary Protected Status, click here.

EB-5 Regulations Summary

Posted in Department of Homeland Security, EB-5 Program

As previously blogged (see EB-5 Regulations Published for Public Inspection), the EB-5 regulations have been published as of July 24, 2019, as final, to take effect Nov. 21, 2019.  Below is a summary of the changes that will impact the EB-5 program:

  1. Priority Date Retention: Generally, priority date retention can be retained from an approved I-526 petition if the investor needs to file a subsequent I-526 petition, even if it was a petition that was approved and then later revoked (unless revoked for fraud or a willful misrepresentation of a material fact by the investor, or if USCIS determines that the petition approval was based on a material error). However, if the petitioner uses the approved petition’s priority date to obtain conditional permanent residence, that priority date may no longer be used for subsequently filed EB-5 petitions.
  2. Increased Investment Amounts: The rule increases the minimum investment amount from $1 million to $1.8 million, which represents an adjustment for inflation from 1990 to 2015. Future inflation adjustment formulas will be based on the initial investment amount set by Congress in 1990 ($1 million). For those investors who are investing in a new commercial enterprise principally doing business in a Targeted Employment Area (TEA), the minimum investment amount will be $900,000, an increase from the original $500,000. The final rule also sets for adjustments to occur every five years.
  3. TEA Designations: The new TEA definitions clarify that any city or town with a population of 20,000 or more outside of a metropolitan statistical area (MSA) may qualify as a TEA, and substitute “contiguous” for “directly adjacent” when describing census tracts that can be added for purposes of defining a TEA (under distress criteria). This is different from the proposed rule that allowed any city or town with a population of 20,000 or more to qualify as a TEA, regardless of being in or out of an MSA. In addition, these regulations remove any mention of “geographic and political subdivisions” for special designations. DHS believes this will ensure consistency in TEA adjudications that adhere closely to congressional intent. DHS will make these designations, which eliminates the current practice of a state being able to designate certain areas as high unemployment areas.
  4. Removal of Conditions: If derivative family members were not included in the petition to remove conditions, they must separately file their own petitions to remove the conditions on their permanent residence. This also includes a provision where the following individuals may be included in the investor’s petition or each file a separate petition: 1) a child who has reached the age of 21 or who married during the conditional permanent residence period; or 2) a former spouse who became divorced during this  period. If the investor dies, the spouse and children may file separate petitions or be included in one petition.
  5. For pending petitions on or after the effective date: DHS will not deny the petition if the project documents are amended to meet the new criteria.

GT will continue to monitor the activities relating to these published regulations. If you have any questions, please contact your GT attorney.

New EB-5 Regulations: Winners and Losers

Posted in Department of Homeland Security, EB-5 Program

After years of delay the Obama-era EB-5 immigration regulations were published on July 24, 2019. You can find a copy of the regulations at this link. You can also find a summary of them here. The regulations only apply to those who file their I-526 Petitions on or after Nov. 21, 2019. Without further ado, below are some winners and losers of the new regulations.

Those who will lose out with the new regulations

States. States are one of the biggest losers, as DHS has decided to formally remove any state input from the determination as what qualifies as a targeted employment area (TEA). Given that the EB-5 visa category is fundamentally an economic development program, the removal of state input neuters any localized input on the what, who, and where of these investments. This position is contrary to the original implementing regulations, wherein the predecessor agency to DHS had found that “…the Service believes that the enterprise of assembling and evaluating the data necessary to select targeted areas, and particularly the enterprise of defining the boundaries of such areas, should not be conducted exclusively at the Federal level without providing some opportunity for participation from state or local government.”1 DHS no longer feels this way.

Less wealthy investors. The final regulation increases the minimum investment for rural areas and targeted employment areas to $900,000. Investments not within those areas must be $1,800,000. Regardless of the rationale for the increase, the increase will shrink the pool of prospective investors who have sufficient means to make such an investment.

Conditional permanent residents in failed projects. While there is a positive side to priority date retention, which will be discussed below, DHS’ decision to draw a line as to who is eligible for priority date retention clearly puts conditional permanent residents in failed projects into the loser category. Under the new regulation, an investor can retain the priority date from an approved I-526 Petition as long as (a) USCIS did not revoke the earlier approval based on the investor’s fraud or willful misrepresentation, (b) USCIS did not revoke the earlier approval based on a material error, and (c) the investor has not been admitted to the U.S. as a conditional permanent resident. Thus, if an investor has, pursuant to an approved I-526 Petition, entered the United States as a conditional permanent resident and previously used the I-526 to become a conditional permanent resident, and circumstances outside the investor’s control make it such that the investor will not be able to remove the conditions on residence (i.e., not enough jobs are created), the investor must file a new I-526 Petition with a new priority date in order to continue seeking permanent residency under the EB-5 visa category if he or she cannot otherwise meet the eligibility requirements under the policy outlined on material change in the USCIS Policy Manual.

DHS explained that it declined to include investors who have been admitted as conditional permanent residents because it believes a priority date cannot generally be re-used in other employment or family-based visa categories; the goal of this regulation is to protect against the effects of retrogression, and there are other protections for investors who are conditional permanent residents to remove the conditions on residence. These rationales fail to hold up under scrutiny.

While it is accurate that a priority date cannot generally be re-used in other employment or family-based visa categories, the other visa categories are simply not analogous or comparable. There is no other employment or family-based visa category subject to visa availability (retrogression) that requires conditional permanent residency before a final grant of permanent residency. The only analogous category is spouses of U.S. citizens, who receive conditional permanent residency for a two-year period, and who are not subject to visa availability because spouses of U.S. citizens are classified as immediate relatives (a visa number is always available). Thus, DHS was unable to find a parallel in other employment or family-based visa categories because no such parallel exists.

The effects of retrogression will also be felt acutely by investors who are conditional permanent residents. For instance, a conditional permanent resident born in India may have been able to enter the United States prior to the recent retrogression for Indian-born investors. If that investor is required to refile a new I-526 Petition and process with a new priority date, that investor will likely be forced to depart the United States and wait abroad for eight or more years until a visa is available based on the new priority date.

Lastly, while it is true that the statute, regulations, and policies provide other avenues for investors in conditional permanent residency status to remove conditions, none of those avenues protect investors from a total project failure where money is spent and not enough jobs are created, or where a project fails to move forward. In those circumstances, conditional permanent residents would likely have to self-deport, unless they were eligible for another immigrant or nonimmigrant visa category, and file a new I-526 Petition at the back of any existing retrogression queue if they want to continue to pursue permanent residency under the EB-5 visa category.

DHS. DHS has not done itself any favors with the publication of these regulations. As already discussed above, DHS’ rationale for not permitting a conditional permanent resident to retain their earliest priority date fails under scrutiny. DHS’ rationale in a few other areas also fails to hold up under scrutiny.

While there is a logical argument for an increase in the minimum investment, DHS’ response to comments regarding competitiveness of the EB-5 visa category only discussed one competitor investment visa program, which had a smaller minimum investment than EB-5: the Quebec Program. Instead, DHS focused on Australia, the U.K., and New Zealand. This analysis conveniently omits Portugal and Spain, which grant residency permits for EUR 500,000; Malta, which grants citizenship (Malta is an EU-member country) for approximately EUR 900,000; and Cyprus, which also provides citizenship for approximately EUR 2,500,000. Cyprus and Malta will also grant permanent residency for a lower amount. These are the programs currently competing directly with the United States, and they provide for residency in western European countries with comparable prices to the U.S., and in some instances, for a little bit more money the promise of immediate citizenship.

This analysis also does not include a review of the Caribbean countries that will grant citizenship within a matter of months for less than $500,000. These countries include Grenada, which has an E-2 treaty with the United States. With the increase in the minimum investment to $900,000 under these regulations, it will be far more attractive to obtain a Grenadian passport, establish a U.S. business that qualifies for an E-2, and enter and live in the United States on an E-2 visa.

DHS also takes great pains to establish that it cannot calculate whether or not there will be less applications due to these regulations, and in particular, because of the increase in the minimum investment. This belies common sense, and can only be supported by cherry picking other visa programs around the world which cost more and ignoring those that cost less. Indeed, DHS makes a similar mistake when it references a 10-year forecast of I-526 Petition receipts that – notwithstanding the fact I-526 Petition receipts have fallen by approximately half since 2015 – predicts a 3.3% increase over the next three fiscal years.2 It’s simply not credible that I-526 Petitions receipts, which have fallen in half for three straight fiscal years, would somehow increase, even by a small amount, after an increase in the minimum investment amount.

Lastly, setting aside the policy goals of redirecting investment to the actual area of high unemployment, it seems clear from DHS’ own analysis that there will be detrimental economic impact due to the TEA-related changes. When evaluating the economic impacts of the TEA-related changes, DHS found that 54% of all investments would be affected. Despite this, DHS concludes that the TEA-related changes will “…provide benefits in that additional areas may qualify as a TEA based on high unemployment, potentially offering investors more opportunities to invest in a TEA at the reduced investment amount…” It is unclear how additional areas would qualify as a TEA under a more restrictive definition.

Those who will win with the new regulations

Rural Projects. The clear winners are projects in rural areas. Constraining the ability of urban areas to qualify for the lower investment threshold seems likely to drive a measurable number of investors to projects located in rural areas.

Backlogged investors in stalled/failed projects. As noted above, the flipside of the priority date retention changes is that investors with approved I-526 Petitions, who have not yet become conditional permanent residents due to retrogression or any other reasoning, can file a new I-526 Petition and maintain their old priority date. This is a welcome respite for investors waiting outside the United States for a visa and dealing with a failed or staller project, or a situation where the regional center involved was terminated. As noted above, priority date retention is not available in cases involving fraud, willful misrepresentation of a material fact by the investor, or when DHS determines that it approved the I-526 Petition based on a material error.

Dependents in I-829 Petitions. Currently, dependents may be either included in a principal applicant’s I-829 Petition or added at a later date by paying the biometrics fee. However, if the principal applicant failed or refused to file an I-829 Petition, the dependent would not be eligible to remove the conditions on their residence. Under the new regulations, if a principal applicant refuses to file or fails to file an I-829 Petition, each derivative applicant may file their own I-829 Petition. This could be beneficial to divorced spouses who no longer have contact with their spouses who were the principal applicant. The practical effect of this change is a bit limited, as DHS found an average of approximately 24 cases per year involving these circumstances.

DHS has also clarified via regulation that a child who becomes married during conditional permanent residency and a child who reaches the age of 21 during conditional permanent residency is eligible to file an I-829 Petition, either with the principal applicant or on their own. DHS also clarified that where a principal applicant is deceased, the spouse and child may file separate I-829 Petitions or may file one I-829 Petition together.

Economists. Economists, who were already important, just got a lot more important. Under the prior regulations and the deference by DHS to state-based TEA determinations, it was possible for a layman to determine whether or not a project was located in a TEA. The new regulation states that USCIS may designate as an area of high unemployment a census tract or contiguous census tracts that are directly adjacent, and that have a weighted average based on a labor force employment measure of 150% of the national average unemployment rate. The use of a weighted average is a change from existing regulation and would require a mathematical calculation of unemployment of all applicable census tracts and the labor force of all applicable census tracts. While this information is publicly available through the Bureau of Labor Statistics and the Census Bureau, it seems extremely burdensome for an average lay person to make such a calculation on their own.

Further complicating this issue is that under the new regulations only USCIS can make a determination of whether a project is in a TEA. The new regulations do not establish a separate application or process for obtaining TEA designation from USCIS prior to filing an I-526 Petition, and USCIS will not issue separate TEA designation letters for areas of high unemployment. DHS will make the determination as part of the existing adjudication process. If a regional center prefers to seek a TEA determination in advance of an I-526 Petition adjudication, it can file an exemplar I-924 application and if approved, the approval, including the TEA determination, will receive deference in I-526 Petitions associated with that exemplar. However, this deference is likely short-lived, if applicable at all, because the average processing time for an exemplar I-924 application is longer than the validity of the unemployment data, which is generally valid for one year. Thus, economists will be extremely important to ensuring a project is accurately located in a TEA.

1 See 56 FR 60897-01

2 In fiscal year 2015, USCIS received 14,373 EB-5 petitions; in fiscal year 2016, 14,147; in fiscal year 2017, 12,165; and in fiscal year 2018, 6,424. See U.S. Citizenship and Immigration Services, Number of Form I-526, Immigrant Petition by Alien Entrepreneur, by Fiscal Year, Quarter, and Case Status 2008-2018, available here.

EB-5 Regulations Published for Public Inspection

Posted in Department of Homeland Security, EB-5 Compliance, EB-5 Modernization Rule, EB-5 Program, Immigrant Visa, Immigration Law, Immigration Reform, USCIS

After more than two and a half years, Obama-era EB-5 immigration regulations are set to be published on July 24, 2019, with an effective date 120 days after publication or Nov. 21, 2019. See EB-5 Immigrant Investor Program Modernization.

These regulations have been opposed by many industry participants, as evidenced in a letter to Congressional Leadership in May 2019.

For years all involved have called for significant reforms and modernization to the program including:

  • Integrity Measures to Bolster National Security and Fraud Deterrence
  • Long-term Reauthorization
  • Revised Targeted Employment Area (TEA) Definitions
  • Revised Investment Amounts
  • New Set-Asides for Rural and Urban Distressed Areas
  • Visa Backlog Relief

Legislators on both sides of the aisle have specifically called for integrity measures to ensure against fraud. The new regulations do not do what Congress continues to seek to do legislatively, because the agency does not have the requisite authority.

The  EB-5 rule proposed by USCIS in January 2017 proposed two critical things:

  1. Drastically increased investment amounts to $1.35 million and $1.8 million from the current amounts of $500,000 and $1 million.
  2. Changed the definition of “Urban TEAs”, the areas that – along with “Rural” – qualify for the lower investment amount.

The new proposed Urban TEAs would be in the shape of a “donut” – that is, a single census tract that is the “hole” of the donut, surrounded by a ring of other adjacent census tracts. This “donut” approach to TEAs has no precedent in any other statute or regulation that directs capital to economically-distressed areas

The final rule would do the following:

  • The new investment amounts would be $900,000 at the lower level and $1.8 million at the top level.
  • The reported rationale: These are the levels calculated if indexed to inflation from 1992, when the current levels of $500,000 and $1 million first took effect upon the program’s creation.

The new TEA definitions differ from the “donut” approach as initially proposed, by rule “tweaks” to clarify that any city or town with a population of 20,000 or more outside of a metropolitan statistical area may qualify as a TEA and substituting “contiguous” to “directly adjacent” when describing census tracts that can be added for purposes of defining a TEA (under distress criteria). This is different from the proposed rule that allowed any city or town with a population of 20,000 or more to qualify as a TEA, regardless of being in or out of a MSA. In addition, these regulations remove any mention of “geographic and political subdivisions” for special designations.

The reported rationale: DHS believes this will ensure consistency in TEA adjudications that adhere closely to Congressional intent. DHS will make these designations, which eliminates the current practice of a state being able to designate certain areas as high unemployment areas.

The EB-5 Regional Center program expires on Sept. 30, 2019. Congress and stakeholders are working on a reauthorization with much needed policy and legislative changes. If such an extension occurs, the rule published today may never take effect. Only Congress can enact all of the reforms necessary to modernize EB-5. The EB-5 regulations do not address:

  • the fraud and national security measures that we all agree are necessary.
  • the rural and urban distressed visa set aside
  • the Opportunity Zone designations in urban areas.

As stated above, implementation of the new rule is set to occur 120 days from publication, or Nov. 21, 2019.

The regulations do make changes along the lines we reported in past blogs.  See A Detailed Look at the Proposed EB-5 Regulations, OMB Completes Review of Obama-Era EB-5 Regulations, and Summary: Notice of Proposed Rule for the EB-5 Immigrant Investor Program.

Please consult your GT attorney with specific questions. We will be posting additional materials as available and will be posting a comprehensive summary of all the changes shortly.

USCIS Determines Adjustment of Status Filing Dates for August 2019

Posted in Adjustment of Status, India, Visa Bulletin, Visas

On July 16, 2019, USCIS determined that for August 2019, the Dates for Filing chart must be used for family-based preference filings, and the Final Action Dates chart must be used for employment-based preference filings.

In the F2A category, there is a cutoff date on the Dates for Filing chart. However, the category is “current” on the Final Action Dates chart. This means that applicants in the F2A category may file using the Final Action Dates chart for August 2019. For all the other family-based preference categories, you must use the Dates for Filing chart in the Department of State Visa Bulletin for August 2019.  

In addition to the Final Action Dates and Dates for Filing Applications, the August 2019 Visa Bulletin includes information on the diversity immigrant (DV) category, establishment and retrogression of August employment-based Final Action Dates, and the DV-2020 lottery results. As discussed in our July 12, 2019 post, there are some notable retrogressions in employment-based (EB) categories. The EB-3 category for India retrogresses to Jan. 1, 2006 while EB-2 and EB-3 categories for all other countries retrogress to Jan. 1, 2017 and July 1, 2016, respectively.

For more Visa Bulletins, click here.

I-539 Applications are Treated as Stand-Alone Applications and are No Longer Eligible for ‘Courtesy’ Premium Processing with I-129

Posted in Form I-129, Non-Immigrant Visas

There is no premium processing available for any nonimmigrant status requested using a stand-alone Form I-539. Until recently, however, the USCIS would traditionally grant courtesy premium processing for I-539 applications (H-4, L-2, E-2 or O-3 applicants) that were filed concurrently with the principal’s I-129 petition if the I-129 was filed using premium processing.

The USCIS will no longer grant courtesy premium processing for Form I-539 applications. The I-129 and the I-539 applications will no longer be moving along in lockstep with the principal’s petition and are now being processed separately by the Service. This is the result of a new Form I-539 that USCIS released in March 2019, and the new biometrics requirement for each applicant and co-applicant. The USCIS is expanding its use of biometrics for the purposes of identity verification and records management. With the release of this new version, USCIS also published a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status. Starting on March 22, 2019, USCIS began accepting only the revised Form I-539 and I-539A with an edition date of 2/4/2019. The revised Form I-539 and I-539A also mandated the following significant changes:

  • Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A. Parents or guardians are able to sign the form for children under the age of 21 or who cannot sign due to health reasons.
  • Every applicant and co-applicant (except certain A, G, and NATO nonimmigrants) must now pay an $85 biometric services fee.
  • Every applicant and co-applicant must now have their biometrics taken before the I-539 application can be adjudicated. The appointments are scheduled at the nearest Application Support Center (ASC) closest to the main applicant’s address.

The change in the process happens after the I-539 application form is filed. Following filing, each applicant and co-applicant will receive a biometrics appointment to appear at an ASC to have their fingerprints, photograph, and/or signature collected. USCIS will automatically schedule the biometrics appointment, but this can generally take three weeks or more following the filing of the application to schedule. With the addition of the new biometrics requirement for I-539 applicants, this delay will no longer afford USCIS the ability to grant the I-539 within the same 15-day period for I-129 petitions filed via premium processing, and changes the filing and adjudication requirements significantly. USCIS confirmed during a stakeholder teleconference on March 1, 2019, that it can no longer continue its longstanding courtesy practice of adjudicating the I-539 along with a concurrently filed I-129 petition filed via premium processing.

All I-539 applications are now subject to the standard processing times for Forms I-539, which are taking substantially longer to adjudicate than the principal’s I-129 petition. Processing times are available on the USCIS’ website at: Such lengthy delays can potentially have an impact on the ability for I-539 applicants to renew their driver’s licenses. As an alternative to filing the I-539, dependents may choose to apply for a derivative nonimmigrant visa at a U.S. Consulate or Embassy outside of the United States once the principal’s I-129 petition has been adjudicated. Please consult your GT attorney with specific questions regarding extending dependents’ nonimmigrant status.

For more on Form I-539, click here.

*Not admitted to the practice of law.

DHS Completes Public Charge Rule; Forwards to OMB

Posted in Department of Homeland Security, Department of Justice, OMB, Public Charge Rule

On July 12, the Department of Homeland Security (DHS) completed review and forwarded a final rule on a Public Charge rule to the Office of Management and Budget (OMB).

This action follows action last week as reported here wherein the Department of Justice completed review and forwarded aspects of a Public Charge final rule within its jurisdiction to OMB.

AGENCY: DHS-USCIS RIN: 1615-AA22 Status: Pending Review
TITLE: Inadmissibility on Public Charge Grounds

For complete reporting on the Public Charge rule please see here.

Please consult your GT attorney with specific questions and check back as this matter will be updated as information becomes available.

For more on the Office of Management and Budget (OMB), click here.