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There are reported leadership changes at USCIS.  According to reports, Joe Edlow, chief counsel of USCIS, has been appointed deputy director for policy, assuming responsibilities of Mark Koumans, deputy USCIS director and interim leader, who takes a new deputy director for operations role.  According to reports, Mr. Koumans may return to DHS in a new capacity in the near future.

See our previous reporting on USCIS leadership, and please check back for updates. As always, contact your GT attorney with any specific questions.

Former Virginia Attorney General Ken Cuccinelli has been appointed acting director of USCIS, replacing Acting Director Koumans. Director Koumans replaced Director Cissna on June 3 as acting director. 

Below is the USCIS release:

WASHINGTON— Department of Homeland Security Acting Secretary Kevin McAleenan today announced that Kenneth T. (Ken) Cuccinelli will serve as the new acting director of U.S. Citizenship and Immigration Services (USCIS), effective June 10, 2019.

Cuccinelli will lead an agency of 19,000 employees and contractors who are responsible for administering our nation’s lawful immigration system while protecting Americans, securing the homeland, and honoring our values. In fiscal year 2018 alone, USCIS adjudicated more than 8.7 million requests for immigration benefits.

“I am honored to be given the opportunity to lead U.S. Citizenship and Immigration Services at this critical time and serve alongside this agency’s dedicated workforce,” said Acting Director Cuccinelli. “USCIS has the extraordinary responsibility to administer and protect the integrity of our nation’s lawful immigration system. Our nation has the most generous legal immigration system in the world and we must zealously safeguard its promise for those who lawfully come here. I look forward to working with the men and women of USCIS to ensure our legal immigration system operates effectively and efficiently while deterring fraud and protecting the American people.”

Cuccinelli previously served as Virginia’s attorney general from 2010 to 2014. During his time as attorney general, he led the Commonwealth in fighting human trafficking. Additionally, he led efforts resulting in record enforcement against gangs, health care fraud, and child predators. Cuccinelli also served in the Senate of Virginia from 2002 to 2010 and has practiced law for nearly 25 years.

Cuccinelli earned a mechanical engineering degree from the University of Virginia, a law degree from Antonin Scalia Law School at George Mason University, and a Masters in International Commerce and Policy from George Mason University.

Cuccinelli and his wife, Teiro, grew up and live in Virginia and have seven children.

For more on USCIS, click here.

USCIS Deputy Director Mark Koumans has been appointed acting director following L. Francis Cissna’s departure. Mr. Koumans has experience in Custom Border Protection and the U.S. Foreign Service.

Prior to his exit from USCIS, former Director L. Francis Cissna released a report highlighting agency programs, workload and accomplishments, in which he states the following:

The 2018 USCIS Statistical Annual Report represents a key piece in our continued commitment to provide improved awareness of the nature and scope of work accomplished by the dedicated men and women of USCIS. … Following a long absence, we are again publishing an annual report, emphasizing our promise of full transparency and accountability to the American people.

In the last fiscal year, USCIS adjudicated more than eight million requests for immigration benefits, which is a 28 percent increase over the last five fiscal years. … USCIS also helped make the American dream become a reality for 757,000 new citizens, a five year high in new oaths of citizenship. The annual report also showcases the work our agency does to protect the integrity of our nation’s immigration through fraud detection, national security vetting, and administering E-Verify, a web-based system used to protect jobs for legal workers. We are proud of the good work accomplished by our dedicated staff to fairly and efficiently administer our nation’s legal immigration system, protect the homeland, and honor our values.

Please check back, as more information on this and other matters will be provided as events warrant.

For more on USCIS, click here.

with Nataliya Binshteyn

On March 5, 2013, the Office of the Citizenship and Immigration Services Ombudsman (“USCIS Ombudsman’s Office”) held a meeting for stakeholders of the EB-5 Immigrant Investor Program (“EB-5 program”) to address issues ranging from persistent adjudication delays to the conflict between agency standards and business realities. The gathering, which featured speakers from government and the private sector, emphasized the following key themes for improving the EB-5 program and expanding its reach to stakeholders abroad and in the United States.

Predictability

The lack of reliable adjudication standards and accurate processing times undercuts business development and stymies legal practitioners. It also discourages prospective investors, who are increasingly seeking out similar programs in Australia and Canada because they are easier to navigate and more transparent. For example, current processing times can be as long as 18 months to two years and accurate information about adjudication timelines cannot be obtained.

Requests for Evidence

Stakeholders reported a close to 100% Request for Evidence (RFE) rate for Form I-924, Application for a Regional Center Under the Immigrant Investor Pilot Program, petitions. Many also noted that “unduly burdensome” RFEs often announce new standards for evaluating the merits of such cases, making it impracticable and unnecessarily difficult to prepare a successful petition. Furthermore, approval rates of less than 40% indicate that investors and their counsel are finding it difficult to understand the applicable legal standard and prepare strong petitions.

Communication and Transparency

Stakeholders were universal in their criticism of the USCIS’ EB-5 communication channels, emphasizing the absence of meaningful dialogue, useful email responses, and case status tracking. As noted above, stakeholders often learn agency policies through the issuance of RFEs and no direct telephone or substantive email outlet between petitioners, regional center representatives and adjudicators exists. Furthermore, opaque and unannounced adjudication delays are frustrating, inefficient, and very harmful to often time-sensitive business priorities.

Unsettled Policy and Adjudication Issues

The legal basis for requiring NAICS codes and regional center job creation before the end of the conditional residence period is currently unsettled, contributing to a status quo that some stakeholders call “per se unreasonable.” In addition, key questions about the applicability of tenant occupancy jobs, bridge loans, and multiple economic models to support job creation remain unanswered.

Leadership

Stakeholders voiced concerns about the practical impact of moving EB-5 processing operations from the California Service Center to DC headquarters, noting the likelihood of additional costs and delays during the transition period. In addition, leadership and accountability were among the key issues raised by stakeholders who questioned the USCIS’ “institutional commitment” to the EB-5 program and critiqued the lack of commercially reasonable and objective-driven parameters for guiding its growth in the legal, business and international investor communities.

For up-to-date news and commentary about EB-5 issues, please visit www.eb5insights.com.

Despite heightened scrutiny, evolving adjudication standards, and continued operational pressure on U.S. immigration agencies, 2026 may prove a viable — and even advantageous — year for U.S. employers to sponsor global talent. The employers who may see the greatest success might approach sponsorship strategically, plan well in advance, and incorporate lessons learned from government practices and policy shifts that emerged throughout 2025.

Rather than retreating from sponsorship, forward-thinking employers might use immigration as a workforce planning, retention, and risk-management tool. The following 26 practical, forward-looking considerations may aid employers, in-house counsel, human resources (HR), and global mobility teams in navigating employment-based immigration successfully in 2026.

Strategic Workforce Planning

1. Start immigration planning earlier — and gain flexibility
Longer processing times at U.S. Citizenship and Immigration Services (USCIS), the Department of Labor, and U.S. consulates make early planning essential. Beginning sponsorship discussions 12-24 months in advance may allow employers to sequence filings, preserve eligibility for multiple options, and avoid last-minute crisis filings driven by expiring status.

2. Use immigration as a talent-retention tool
Clear sponsorship roadmaps may help reduce employee uncertainty and improve retention. Employees who understand their long-term immigration strategy may prove more likely to stay engaged, productive, and committed — particularly in competitive or specialized roles.

3. Build parallel strategies where possible
Relying on a single visa category may increase risk. Where feasible, employers should consider parallel pathways (e.g., H-1B with O-1, L-1 with PERM initiation, or EB-2 alongside EB-1 evaluation) to preserve options if adjudication trends or visa bulletin movement shift unexpectedly.

4. Align immigration strategy with business objectives
USCIS adjudications are strongest when immigration filings reflect real business needs. Employers should consider positioning their immigration strategy to align with organizational growth, client demands, expansion plans, and leadership structures — not simply with individual employee preferences.

Nonimmigrant Visas: Opportunities in 2026

5. Treat the H-1B visa as one option — not the only option
While the H-1B lottery remains competitive, approval rates for well-documented petitions remain strong. However, employers may wish to avoid over-reliance on the H-1B and evaluate alternative classifications early for critical talent.

6. Use L-1 intracompany transfer visas strategically
For multinational employers, L-1A and L-1B visas remain powerful tools when structured correctly. Clear corporate documentation, well-defined managerial or specialized knowledge roles, and thoughtful job descriptions may be essential to avoid requests for evidence (RFEs) or denials.

7. Leverage the O-1 extraordinary ability visa for high-impact talent
O-1 adjudications continue to be favorable when evidence is curated strategically and presented through a compelling narrative. Employers should consider the value of awards, press, publications, and industry recognition when building these cases.

8. Plan thoughtfully for remote and hybrid work
USCIS continues to scrutinize work location, supervision, and employer control. Employers must clearly document where work will be performed, who supervises the employee, and how company policies apply in remote or hybrid environments.

9. Maintain internal consistency across HR, payroll, and filings
Discrepancies between immigration filings, internal records, payroll data, and public-facing information remain a leading cause of RFEs. Consistency is one of the most effective — and simplest — ways to reduce potential adjudication friction.

PERM and Immigrant Sponsorship

10. View Permanent Labor Certification (PERM) as a long-term investment in workforce stability
Initiating PERM early may provide strategic flexibility, particularly during periods of visa retrogression or limited immigrant visa availability. Early filings may preserve adjustment of status eligibility and long-term workforce continuity.

11. Draft job descriptions that reflect real business need
Overly restrictive or generic job requirements might increase audit risk. Job descriptions that accurately reflect the employer’s operational needs, industry standards, and internal practices might best support both PERM and I-140 adjudications.

12. Treat prevailing wage determinations as planning tools
Prevailing wage results affect compensation strategy, budgeting, and employee retention. Employers might anticipate wage outcomes early in an effort to avoid last-minute compensation challenges or employee dissatisfaction.

13. Monitor visa bulletin trends proactively
Visa bulletin movement remains unpredictable. Strategic timing of I-140 filings and adjustment of status applications may preserve work authorization benefits and reduce uncertainty for sponsored employees.

14. Coordinate nonimmigrant extensions with immigrant filings
Thoughtful sequencing of extensions and immigrant filings may help avoid gaps in work authorization, reduce stress on employees, and shepherd continued compliance during long processing periods.

Government Technology and Adjudication Trends

15. Assume filings are reviewed holistically
USCIS increasingly reviews both an employer and an employee’s full immigration history. Prior filings, inconsistencies, and past representations matter. Parties may wish to prepare their case with awareness of the broader record.

16. Use RFEs as an opportunity to strengthen the case
While RFEs remain common, well-crafted responses sometimes result in approvals. Employers may wish to view RFEs as a chance to clarify the record, reinforce credibility, and address adjudicator concerns directly.

17. Prepare confidently for USCIS and Immigration and Customs Enforcement (ICE) site visits
Employers with organized records, trained managers, and clear compliance protocols generally navigate site visits smoothly. Advance preparation may reduce disruption and risk.

18. Treat compliance as an ongoing process
Employers may wish to maintain their I-9 compliance, public access files, and recordkeeping consistently — not only in response to audits. Ongoing compliance may reduce exposure and may help build institutional resilience.

19. Benefit from greater inter-agency clarity
While scrutiny has increased, adjudication standards are becoming more standardized across agencies. Employers who understand these patterns may be able to plan more predictably and defensibly.

Adjustment of Status and Consular Processing

20. Use adjustment of status filings strategically
Adjustment filings provide valuable benefits, including employment authorization and advance parole. These benefits might offer flexibility for both employers and employees during periods of immigrant visa backlog.

21. Plan international travel with foresight
Travel during pending filings requires careful coordination. Planning in advance may help avoid unintended abandonment of applications or delays in reentry.

22. Approach consular processing with preparation — not fear
Consular processing remains a reliable pathway when stakeholders have clear documentation and consistent records. Proactive preparation may minimize delays and refusals.

Compliance Considerations

23. Centralize immigration data and records
Centralized systems may help improve visibility, consistency, and compliance while reducing administrative burden and audit risk.

24. Train HR personnel and managers regularly
Well-informed HR teams and managers may prove critical to successful sponsorship. Regular training may aid in providing accurate representations and consistent practices across the organization.

25. Conduct proactive internal audits
Internal audits may help identify weaknesses before they become liabilities. Relevant entities should consider using internal audits as opportunities for improvement rather than fault-finding exercises.

26. Document decision-making and sponsorship rationale
Employers may wish to maintain internal records explaining why they made sponsorship decisions, including business need, role criticality, and selection criteria. Clear documentation may help support consistency across filings, strengthen responses in the event of audits or RFEs, and demonstrate good-faith compliance if government agencies later review sponsorship practices.

In 2026, employers that plan early, communicate clearly, and embrace compliance might successfully sponsor global talent while also gaining a durable competitive advantage.

FOR THE WEEK OF JAN. 3, 2023

Legislative Update

  • We are monitoring the seating of the 118th Congress, including the leadership and committee assignments, and will have a fuller update next week.

USCIS Proposes Fee Increase

  • Increase would be first since 2016 (2020 fee increase was reversed)
  • H-1B cap registration fee increase from $10 to $210; H-1B filing fee would increase from $460 to $780
  • L-1 filing fee would increase from $460 to $1,385; O-1 filing fee would increase from $460 to $1055; TN filing fee would increase from $460 to $1,015
  • Premium processing fee is unchanged, but processing time would change from 15 calendar to 15 business days.
  • Immigrant investor petition fees would increase from $3,675 to $11,160

U.S. Embassy and Consulates in China Closed

  • As of Dec. 15, 2022, all routine visa services at the U.S. embassy and consulates in China are temporarily suspended because of operational effects resulting from an uptick in COVID infections.

State Dept Extends Visa Interview Waivers until December 2023

  • Consular officers are authorized to waive in-person interviews for certain visa applicants, including F, H-1, H-4, J, L, and O visas.

Negative COVID Test Required for All Travelers from China

As of Jan. 5, 2023, all travelers (over the age of two) flying from China to the U.S. must have completed a COVID test no more than 2 days before their flight.

FOR THE WEEK OF JAN. 9, 2023

Legislative Update

  • After a week of votes for Speaker, Kevin McCarthy has won the position. We still await key Committee appointments. We know that Jim Jordan (R-OH) will be the new Judiciary Committee Chair. 
  • It does appear immigration is a top concern of both House and Senate Judiciary Committee Members. A bi-partisan group of senators including Sens. Sinema, Tillis, Cornyn, Kelly, Coons and Lankford are heading to the border to discuss immigration reform efforts this week. 
  • We hope the discussions on border reform, asylum reform and legal immigration reform will be top of the list in the 118th Congress and that 2023 will be the year of true legislated immigration reform.

DHS Extends and Redesignates Yemen for TPS

  • TPS is extended for current Yemeni TPS holders from March 4, 2023 until Sept. 3, 2024
  • Yemeni nationals who have been residing in the U.S. since December 29, 2022 may apply for TPS for the first time

U.S. Expands Venezuelan Parole Program to Haiti, Cuba and Nicaragua

  • As of January 5, 2023, nationals from Cuba, Haiti and Nicaragua and their immediate family members are eligible to request travel authorization and temporary parole into the U.S. for up to two years.
  • Parolees must have a supporter in the U.S. who files a Form I-134, which USCIS vets and approves
  • This program will have a 30,000 per month cap on all four countries (Haiti, Cuba, Nicaragua and Venezuela).

FOR THE WEEK OF JAN. 18, 2023

Legislative Update

  • We are expecting legislative action on a border and asylum bill from the House Judiciary Committee. It appears any legal immigration reform might be added by the Senate.

USCIS Expands Premium Processing for Certain I-140 Petitions

  • Beginning Jan. 30, 2023, USCIS will accept premium processing requests for all pending and initial multinational manager and national interest waiver I-140 filings.
  • USCIS says it will accept premium processing requests in March 2023 for pending OPT applications and in April 2023 for initial OPT applications.

DHS Extends and Redesignates Somalia TPS

  • DHS extended TPS for Somalia for an additional 18 months, from March 18, 2023 to Sept. 17, 2024
  • Somali nationals residing in the U.S. as of Jan. 11, 2023, are permitted to apply for TPS

DHS Formalizes Process to Grant Deferred Action to Victims and Witnesses of Workplace Violations

  • DHS plans to provide protections for workers who cooperate in investigating alleged workplace violations and exploitation.
  • This announcement establishes steps to grant temporary legal status and work authorization through deferred action, parole and other available relief to noncitizens who are witnesses to, or victims of, abusive and exploitive labor practices.
  • This protection will be available to vulnerable workers who are working with an employer who is already under investigation.
  • This is part of the Administration’s effort to target “bad actor” or unscrupulous employers that allegedly exploit undocumented workers.

FOR THE WEEK OF JAN. 24, 2023

USCIS to Process H-4 and L-2 Extensions and Work Permits Along with Primary Applicants

  • Beginning Jan. 25, 2023, USCIS says it will once again process dependent extensions and work permit applications concurrently with H-1B and L-1 extensions as long as they are filed together
  • USCIS agreed to bundling petitions and applications as part of an agreement to settle a class action lawsuit challenging H-4 and L-2 adjudication delays

State Department Launches Welcome Corps

  • Welcome Corps allows private individuals, businesses and other organizations to sponsor refugees to come to the U.S.
  • This program could greatly increase the transition of refugees into the U.S. through sponsorship of private entities.
  • This in addition to the new Humanitarian Parole programs for up to 30,000 individuals per month from Nicaragua, Cuba, Haiti and Venezuela, could help with worker shortages in the U.S.

USCIS Extends Green Card Validity for Conditional Permanent Residents with Pending I-751s or I-829s

  • USCIS is automatically extending green cards for 48 months beyond the card’s expiration date for individuals with pending I-751 or I-829 petitions
  • The receipt notices for I-751 and I-829 can be used in conjunction with the expired green card as evidence of continued status and ability to travel
  • This change is effective Jan. 11, 2023, for I-829 applicants and Jan. 25, 2023, for I-751 applicants
  • USCIS says it will issue new receipt notices to all pending I-829 and I-751 applicants who previously received receipt notices with an extensions shorter than 48 months

FOR THE WEEK OF JAN. 30, 2023

Biden Administration Announces COVID-19 National and Public Health Emergencies Will End in May 2023

  • The Administration announced it was extending the national and public health emergencies beyond their current respective deadlines of March 1, 2023 and April 11, 2023 until May 11, 2023.
  • USCIS tied its Form I-9 and RFE flexibility provisions to the COVID-19 national emergency. Our team will monitor how the end of the national emergency will affect USCIS and the State Department.

USCIS Begins Issuing Redesigned Green Cards and EADs

  • Starting Jan. 30, 2023, USCIS will issue redesigned green cards and EADs
  • USCIS issues new cards with enhanced security feature every three to five years to combat fraud
  • Existing cards remain valid and USCIS will continue to produce cards with the previous design until its current supply is depleted.

DHS Extends and Redesignates Haiti for TPS

  • TPS for Haitians has been extended from Feb. 4, 2023, to Aug. 3, 2024
  • Redesignation allows Haitian nationals who have been continuously residing in the U.S. since Nov. 6, 2022 may apply for TPS for the first time

FOR THE WEEK OF OCT. 3, 2022

DHS

  • TPS for Burma extended 18 months
    • Extended from 11/26/2022 through 5/25/2024
    • Notice will be published in the Federal Register on 9/27/2022

USCIS

  • Green cards extended for 24 months with timely-filed renewals
    • Green cards were previously extended for 12 months with timely-filed renewals
    • Applicants with pending renewals will receive amended receipt notices
    • Green card renewal receipt with expired green card is proof of status for I-9 purposes
  • Waiver of 60-day rule of immigration medical extended through 3/31/2023
    • Rule that green card applicants must file their immigration medical within 60 days of physician’s signature has been waived
    • Waiver was previously set to expire 9/30/2022

IER – DOJ activity

  • Focus on online job postings containing discriminatory preferences
  • Postings discriminated against non-U.S. citizens because they contained citizenship restrictions
  • Previous investigations in June 2022 regarding job postings that showed preference for foreign workers
  • Carefully review job postings and provide training to talent acquisition/recruiters

Global immigration

  • Canada ends all COVID-19 travel restrictions as of 10/1/2022
    • Travelers to Canada no longer need to:
      • provide proof of vaccination
      • test before or on arrival
      • undergo COVID-19 quarantine or isolation
      • monitor/report COVID-19 symptoms upon arrival

FOR THE WEEK OF OCT. 10, 2022

Capitol Hill – Legislation Currently in Play

  • Omnibus Spending Bill
    • We expect an Omnibus bill to be passed in December 2022. The Continuing Resolution passed Sept. 30, 2022, extended the funding for the government through Dec. 16, 2022. There will need to be an Omnibus passed during the post-election lame duck session before the end of the calendar year. Potential additions to the Omnibus:
      • EB-5 technical corrections
      • Immigrant Visa Exemptions for Foreign Students obtain a PhD in the U.S.
      • DACA relief to counter the 5th Circuit and Texas Federal District Court Exemption
      • Afghan Adjustment Act
      • Temporary Protected Status (TPS) Relief
    • National Defense Authorization Act (NDAA)
      • This legislation has been in conference for many months, and we expect a final package by October 28, 2022. The vote is currently projected for November 14, 2022. Senator Durbin is attempting to attach the recapture of immigrant visas for up to 40,000 nurses and physicians. It is unclear whether this amendment will survive, but if it does, it could help reduce some immigrant visa backlogs. 

Capitol Hill – Legislation Being Contemplated

  • Migrant Farmworker Legislation
  • Eliminating the Per Country Immigrant Visa Quota

DACA Updates

  • The 5th Circuit upheld the Federal District Court’s prior ruling that DACA is illegal.  
  • DACA will most probably be before the Supreme Court in this coming term. We believe the Supreme Court will rule that the program is illegal if and when they hear the case. We know legislation is the only solution.
  • Existing DACA recipients may continue to renew their DACA status and their work authorization and Advanced Parole remains valid; first-time DACA applicants remain ineligible.

FOR THE WEEK OF OCT. 17, 2022

Capitol Hill – Word on the street

  • Key Republicans are signaling there will be no immigration reform during the lame duck session without meaningful border reform
  • Meanwhile, Democrats continue to push for immigration form in the Omnibus and NDAA
    • Potential additions to Omnibus: EB-5 technical corrections, Immigrant visa exemptions for foreign students who obtain a PhD in the US; DACA relief; Afghan Adjustment Act; TPS relief
    • Potential additions to National Defense Authorization Act (NDAA): recapture for up to 40,000 immigrant visas for nurses and physicians

DACA Updates

  • Because existing DACA recipients may continue to renew their DACA status, the Hill will likely not act because harm is not eminent.

Refugee news

New Venezuelan program announced

Work permit applications/EADs

  • Adjudication is down to 4-5 months
  • Some Ukraine and Venezuelan applications should only take 3-4 weeks

Form I-9 news

  • DHS extends flexibilities regarding remote I-9 document verification until July 31, 2023
  • USCIS says employers should continue using the existing Form I-9, which expires Oct. 31, 2022, until further notice

 FOR THE WEEK OF OCT. 26, 2022

USCIS RFE Flexibility Extended

  • For RFEs, NOIDs and similar agency requests, USCIS will consider the response timely is it is received within 60 calendar days after the due date
  • Applies to eligible requests issued between March 1, 2020 and Jan. 24, 2023

DOS Report on Visa Appointments

  • State Department says it will reach pre-pandemic processing levels this fiscal year
  • Report urges visa applicants to travel to other embassies or consulates with shorter wait times

Work permit applications/EADs

  • Expedited processing now available for qualified healthcare and childcare workers’ initial EAD applications that have been pending for more than 90 days
  • Qualified healthcare and childcare workers defined

DHS Designates Ethiopia for TPS

  • Available for Ethiopians residing in the U.S. before Oct. 20, 2022
  • Initial designation will last 18 months

PERM: Equal Pay Transparency (EPT) Laws

  • Several states have EPT law that may require employers to include the offered wage in job postings
  • States with EPT laws include California, Rhode Island, Colorado, Connecticut, Maryland, Nevada, New Jersey, Ohio, and New York.

FOR THE WEEK OF OCT. 31, 2022

DOS Encourages Third-Country National Applications

  • In a meeting with the American Immigration Lawyers Association (AILA), DOS leadership said it was encouraging posts to accept TCN applicants for all visa types
  • In a recent report, DOS urges visa applicants to travel to other embassies or consulates with shorter wait times

PERM: Processing 33% Slower in 2022

  • Prevailing wage requests and labor certification applications now taking eight (8) months
  • Slowdown resulting from staffing issues due to COVID and court-mandated emphasis on other filings

UK Visa Processing More Than 50% Slower Than Normal

  • Due to high global demand, UK Visas and Immigration (UKVI) are reporting a seven week average processing time for standard visa processing for out of country visitor visa applications. Normally, the average processing time is three weeks. times currently experiencing high global demand meaning in some cases, it may take longer to process visa applications.
  • The processing times can change weekly; so please keep checking the visa decision waiting times for updates.

COVID-19 has given rise to business complications related to closing physical office spaces, furloughing employees, and terminating employees, to name a few. The Department of Homeland Security, the Department of Labor, and the Department of State have worked to address the resulting immigration complications to support the needs of U.S. businesses and foreign nationals during this unprecedented time.

Because the pandemic has affected foreign-born workers and their families, on April 17 a group of business immigration advocates sent a letter to the Secretary of the U.S. Department of State, the Acting Secretary of the U.S. Department of Homeland Security, and the Senior Official Performing the Duties of the Director of USCIS, calling for the following actions and stating the basis for each request:

  1. Automatically extend expiration dates and deadlines to renew statuses until at least Sept. 10, 2020. – With in-person services suspended, biometrics cannot be taken for a number of applications that require them, and interviews cannot be conducted, resulting in a delay of adjudication. In addition, work authorization validity dates may lapse with the suspension of premium processing for a number of non-immigrant petitions, thus not allowing employees to onboard or extend statuses in a timely manner.
  2. Forgive unlawful presence accrued by furloughed workers and those who stay beyond their statuses; also forgive extended absences for lawful permanent residences. – With many travel restrictions in place, not just for the United States, but also for other countries worldwide, people may not move in and out of the U.S. and other countries as easily. This may result in an accrual of unlawful presence for those in the United States who must leave; statuses may be expired, work may be terminated and they are no longer working pursuant to their visa, or others may be staying longer than they are normally allowed because of the inability to travel. On the other hand, lawful permanent residents residing abroad are now forced to stay abroad longer than anticipated; this may lead DHS to deem these individuals to have abandoned their LPR intent.
  3. Add flexibility to continue processing essential worker visas, to include health care workers and farmworkers – Delayed visa processing and closures of consular posts means that temporary workers set to enter the U.S. to work are now unable to do so.  The hospital and agricultural systems in the U.S. rely on these workers. These organizations ask that USCIS take over the processing so that these workers can come into the country to help relieve the current workforce.

This letter has been signed by:

Americans for Prosperity

AmericanHort

American Immigration Council

American Immigration Lawyers Association

Association for Health Care Agencies

Council for Christian Colleges & Universities

Essential Worker Immigration Coalition

Hispanic Leadership Fund

Idaho Dairymen’s Association

Information Technology Industry Council

LeadingAge

The Libre Initiative

National Association of Evangelicals

NALEO Educational Fund

National Immigration Forum

New American Economy

Niskanen Center

President’s Alliance on Higher Education and Immigration

TechNet

Unite-LA

After receiving Senate confirmation for an undersecretary position earlier in the day, Chad Wolf was sworn in and placed as the next Acting Secretary of the Department of Homeland Security (DHS). Since January 2017, there has been a mix of Senate-confirmed secretaries: John Kelly and Kristjen Nielsen; and acting secretaries: Elaine Duke, Kevin McAleenan, and now, Chad Wolf.

It is also reported that current Acting USCIS Director Ken Cuccinelli moves to Acting Deputy Secretary of DHS, and Mark Koumans, current Deputy Director, moves to Director of USCIS.

In related news, Senate Homeland Security & Governmental Affairs leadership, Senators Johnson (R-WI) and Peters (D-MI), sent a letter to President Trump last week drawing attention to current vacancies at DHS.  They wrote:

Currently, 7 of the 18 DHS offices requiring Senate confirmation, including the Department’s three top positions, are vacant with no nominee pending. Many of these positions have remained vacant for months, and some for years, without a formal nominee for the Senate to consider. This widespread use of temporary leadership—individuals who, though perhaps qualified, do not serve with the imprimatur of having been confirmed by the Senate—makes it more difficult for the Department to achieve its long-term strategic objectives. Independent government watchdogs, experts, and current and former DHS employees, have recognized the importance of Senate-confirmed leaders and warned of the dangers of pervasive vacancies to government accountability and national security. 

Many observers note the uniqueness of the Senators’ bi-partisan plea to the president. As of this writing, we have not seen a White House response.

Please consult with your GT attorney with specific questions about this blog post, and please check back, as this report and others will be updated as events warrant.

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.