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: https://egov.uscis.gov/processing-times/. 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.

Significant Retrogression – August 2019 Visa Bulletin Update

Posted in China, EB-1, EB-2, EB-3, Visa Bulletin, Visas

The Department of State (DOS) August 2019 Visa Bulleting shows significant retrogression in employment-based (EB) categories.

In the EB-1 category, final action dates retrogress to July 1, 2016, for all countries of chargeability except for India. The cutoff date for India’s EB-1 category remains at Jan. 1, 2015. The EB-2 category retrogresses to July 1, 2016 for all countries except China, advancing to Jan. 1, 2017, and India, advancing to May 2, 2009.

EB-3 categories for all other countries, El Salvador, Guatemala, Honduras, Mexico, the Philippines, and Vietnam also retrogress to July 1, 2016. India retrogresses to Jan. 1, 2006, while China advances to July 1, 2016. Similarly, for the EB-3: Other Workers category, most countries retrogress to July 1, 2016; India retrogresses to Jan. 1, 2006, and China’s remains the same at Nov. 22, 2007.

The EB-4 category cutoff dates remain the same at July 1, 2016 for El Salvador, Guatemala, Honduras, and Mexico, with the rest of the countries remaining current.

In the EB-5 category, most countries remain current. India and Vietnam’s cutoff dates retrogress to Oct. 15, 2014. China advances to the same cutoff date of Oct. 15, 2014.

The Visa Bulletin indicates that the implementation of the above-mentioned dates is expected to be temporary and that every effort will be made to return the Final Action dates to the same as those in the July Visa Bulletin in October 2019, the first month of fiscal year 2020.

Referring to the Final Action Dates, following are updates for the August 2019 Visa Bulletin:

Final Action Dates for Employment-Based Preference Cases

Dates for Filing of Employment-Based Visa Applications

For more Visa Bulletins, click here.

DOJ forwards public charge rule to OMB

Posted in OMB

On July 3rd, the Office of Management and Budget (OMB) posted receipt of a “public charge” rule from the Department of Justice (DOJ)-

AGENCY: DOJ-EOIR RIN: 1125-AA84 Status: Pending Review
TITLE: Inadmissibility and Deportability on Public Charge Grounds

While the text of the rule is not public, it is expected to be a companion rule similar to a Department of Homeland Security rule published for public comment in October 2018.

It is believed that the strict adherence to the public charge rule could greatly expand persons who could be deported for using public benefits, such as public welfare, food stamps or other social services without an ability to pay themselves or by their sponsors.

Current law allows deportation of immigrants that receive government social benefits within five years of U.S. arrival but the government has not made great use of the deportation method in recent years.

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

House Passes Per-country Cap Elimination Bill that Affects Employment-based Visa Programs

Posted in Immigrant Visa

Today, the U.S. House of Representatives approved H.R. 1044, the Fairness for High-Skilled Immigrants Act of 2019, that eliminates per-country quotas for all employment-based immigrant visa petitions by a wide, bipartisan vote of 365-65.

The bill includes language helpful to the EB-5 program relating to a transition period for implementation, as explained –

Fairness for High-Skilled Immigrants Act of 2019

This bill increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15%, and eliminates the 7% cap for employment-based immigrant visas. It also removes an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country.

A companion bill, S. 386 (Sen. Lee, R-UT) was being discussed for Senate floor consideration last month.  The bill drew H-1B compliance provisions that slowed momentum and interested Senators continue negotiations.

Please contact your GT attorney for specific questions.  We will update this matter as information becomes available.

For more on Employment Visas, click here.

United States Recognizes Venezuelan National Assembly Decree Extending Validity of Venezuelan Passports

Posted in U.S. Department of State (DOS), Venezuela

The Venezuelan opposition-controlled National Assembly recently acknowledged the significant obstacles for Venezuelans in extending or obtaining new passports, and issued a decree extending the validity of already issued Venezuelan passports for five years.

The U.S. Department of State announced on June 7 it will recognize the decree and accept Venezuelan passports accordingly. This is positive news for Venezuelans applying for U.S. visas and seeking entry into the United States, as their passports will now be considered valid for an additional five years beyond the printed date of expiration.

Other countries have also endorsed this mandate by opposition leader Juan Guaidó, whom the United States and over 50 other nations consider Venezuela’s legitimate president. Venezuelan passport holders should continue to monitor this situation regarding any upcoming international travel and consult destination countries’ policies on the matter.

For more on Venezuela, click here.

USCIS International Offices to No Longer Accept Form I-407 Starting July 1, 2019

Posted in Form I-407, USCIS, Visas

Starting July 1, 2019, international offices of the U.S. Citizenship and Immigration Services (USCIS) will no longer accept Form I-407, Record of Abandonment of Lawful Permanent Residence Status. On that date and going forward, all I-407 forms must be sent by mail to the address below. USCIS anticipates that processing of the form, from receipt to completion, will take 60 days or less, not including the mailing time to and from outside the United States (and please note that given the below address is a post office box, these notices cannot be sent via courier services like FedEx and UPS).

USCIS Eastern Forms Center
Attn: I-407 Unit
124 Leroy Road
PO Box 567
Williston, VT 05495

For various reasons, foreign nationals who have obtained Lawful Permanent Residence (LPR) status in the United States sometimes choose to voluntarily abandon their LPR status. When these individuals choose to live in another country and maintain residency there, it is a best practice to submit a Form I-407 so that a record of their abandonment of LPR status is filed with USCIS. Once the I-407 form has been accepted and the abandonment is recorded and acknowledged by USCIS, the former LPR-status individual no longer has to be concerned about certain tax requirements to file as a U.S. resident, and he also need not be concerned about maintaining residency in the U.S.

As EB-5 investors are aware, maintenance of their residency is of vital importance. After obtaining Conditional Permanent Resident (CPR) status, the investor must continue to maintain residency in the U.S. or else risk possible deportation or inadmissibility, as discussed in a prior blog post. EB-5 investors and dependent family members should maintain as many ties to the U.S. as possible, and when taking longer trips outside of the U.S., they should apply for and obtain reentry permits and consider carrying evidence of their U.S. ties with them when they return to the U.S. Without the maintenance of residency, a Customs and Border Protection (CBP) officer could find the investor inadmissible for having abandoned residency, and that individual may face an uphill battle when applying to remove the conditions on the green card (filing of the I-829) or when ultimately applying for naturalization by filing the N-400 form (see our blog post here on the residency requirements for maintaining LPR status and for applying for naturalization).

Once abandonment of LPR status occurs, the foreign national no longer need worry about maintaining a residence in the U.S., filing and paying income taxes as a resident, and demonstrating ties to the U.S. to maintain LPR status. Of course, once LPR status has been abandoned, the foreign national may have to apply for entry visas for short trips to the U.S. We note that if someday the foreign national wishes to apply for a new green card, the voluntary abandonment will not be held against him.

The I-407 filing address change discussed above is in keeping with the March 2019 announcement by then-USCIS Director L. Francis Cissna that USCIS intends to shut down all international USCIS offices and shift all duties of these international offices to domestic USCIS offices and U.S. Department of State embassies and consulates. This announcement was confirmed by USCIS this week at the American Immigration Lawyers Association (AILA) Annual Conference.

For more on USCIS, click here.

Immigrant Entrepreneurship: An American Success Story

Posted in EB-5 Program, Global Immigration, Immigration Law

On June 4, 2019, the Kenan Institute released a timely policy brief, “Immigrant Entrepreneurship: An American Success Story,” on the value of highly skilled and motivated foreign entrepreneurs to the U.S. economy. The brief states, “When looking at the founding of the United States’ largest startups…[t]he immigrant-founded startups employ an average of more than 1,200 workers each, and have collective values of $248 billion.”

This brief follows a March 2019 comprehensive analysis of the EB-5 immigrant investor programs for fiscal years 2014 and 2015. According to the March release,

The study, prepared by Economic & Policy Resources, Inc. (EPR), estimated the economic benefits and job creation contributions of all EB-5 regional center projects that were active in federal fiscal years 2014 and 2015 using the most geographically robust methodology employed to date and a comprehensive EB-5 regional center project activity data set supplied by IIUSA. The study also showed that the regional center program contributed more than $23 billion in labor income to the U.S. economy and resulted in nearly $55 billion—or 3 percent—added to U.S. economic output.

‘Economic activity and job creation effects of this scale represent a call to the EB-5 industry and legislative policymakers to take action,’ said Jeffrey Carr, one of the report’s co-authors and President of EPR. ‘Absent that action, the economic contributions quantified in this study will merely represent “lost opportunity” for the U.S. economy. Tens of billions of future foreign investment dollars and hundreds of thousands of new U.S. job opportunities hang in the balance.’ Robert Chase, Senior Economist at EPR, was the report’s other co-author.

The Kenan Institute brief concludes by encouraging U.S. policies, such as EB-5, to attract global entrepreneurs:

Despite the empirical evidence that high-skilled immigrants contribute significant value to the U.S. economy, major hurdles exist for them to obtain visas that allow for starting new ventures. In the current era of global talent competition, we suggest that there are specific policies that the United States can implement to lower barriers for immigrant entrepreneurs, benefit from high-skilled immigrants and foster associated entrepreneurial economic growth.

For more on EB-5 and job creation, click here.

For more on EB-5 and the economy, click here.