EB-5 Update – New Regulations to Take Effect and Regional Center Program to be Extended Through Dec. 20, 2019 

Posted in Continuing Resolution (CR), EB-5 Program, EB-5 Regional Center, EB-5 Regional Center Compliance, USCIS

The EB-5 Regional Center Program was set to expire on Nov. 21, 2019. On Nov. 18, Congress introduced a Continuing Resolution (CR) to fund the government and extend vital programs such as EB-5 through Dec. 20, 2019. Leaders hope to use the additional time to extend current operations and complete fiscal matters and other priorities before the holidays. There is an ongoing effort to include new EB-5 legislation in a legislative vehicle in December.

New EB-5 regulations published on July 24, 2019, as final will take effect Nov. 21, 2019. There is no additional phase-in for these regulatory changes. Some of the key changes listed below will immediately impact the EB-5 program: Continue Reading

The Department of State (DOS) December 2019 Visa Bulletin Released

Posted in China, DOS, EB-1, EB-2, EB-5 Program, India, USCIS, Visa Bulletin

In the EB-1 category, the Dates of Filing is now current for all countries of chargeability except for China and India. For November, USCIS allowed I-485 filings based on Dates of Filing rather than Final Action dates; however, EB-1 was retrogressed for all categories, allowing only certain applicants to file. USCIS has not issued the December 2019 calendar or confirmed if it will follow Dates of Filing or Final Action. If USCIS continues to abide by the dates of filing calendar, many EB-1 candidates will be able to finally file their I-485/Adjustment of Status applications. For EB-1 Final Action dates, there was slight movement. Continue Reading

Washington EB-5 Update

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

As a reminder to our readers, the Obama-era EB-5 Regional Center regulations – see July post for details – go into effect Nov. 21, 2019. USCIS has published a webpage resource to help explain the implementation of the upcoming regulations here.

This is a period of significant change and activity on the EB-5 program. Clients are encouraged to stay in touch with their GT attorney, and reach out with any questions. Please check back, as this blog will be updated as events warrant.

For more on regional centers, click here.

House Introduces Continuing Resolution Funding Government, Including Vital programs Such as EB-5

Posted in Continuing Resolution (CR), EB-5 Program

On Nov. 18, Congressional Appropriation leadership introduced a 26-page Continuing Resolution (CR) to fund government and extend vital programs such as EB-5 through Dec. 20, 2019. Leaders hope to use the additional time to extend current operations and complete fiscal matters and other priorities before the holidays.

In addition to the extension of time, the CR allows for the extension of certain health programs and other key priorities of Congress, such as the census, military pay, highway funding, and other programs.

The House is expected to pass the CR tomorrow and then to the Senate and the president before the Nov. 21 expiration of the current CR.

For more on continuing resolutions, click here.

USCIS Announces More Fees and Fee Increases

Posted in Deferred Action for Childhood Arrivals, Deferred Action for Childhood Arrivals program, USCIS

Nearly 96% of the USCIS budget derives from fees. In our coverage of Congress, appropriations, continuing resolutions, and government shutdowns, we are reminded that USCIS is a fee-driven agency, as it does not depend on appropriations for its operations and, for example, remains open during government shutdowns over appropriations. We wrote last week about a $10.00 fee for H-1B Registration.

On Nov. 8, USCIS published a notice of proposed rulemaking for an adjustment of fees to meet operational needs. Among the diversity and breadth of fees addressed in the Examinations Fee Accounts 300+ page posting, a few proposed fees have received a lot of public attention:

  • DACA renewal fee from $495 to $765;
  • $50 dollar asylum application fee; and
  • Citizenship application fee from $640 to $1170.00, among others.

As we enter public discourse on the current Continuing Resolution and related Congressional discussions, we remind readers that in all likelihood USCIS will be fee-funded and open for business!

As always, please direct specific questions to your GT attorney, and check back as this blog is updated as events warrant.

Chad Wolf Becomes New Acting Secretary of Homeland Security

Posted in Department of Homeland Security, President Trump's Administration, USCIS

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.

$10.00 Fee for H-1B Electronic Registration

Posted in H-1B

U.S. Citizenship and Immigration Services announced it will require a $10 non-refundable fee for each H-1B registration, once it implements the electronic registration system. The final rule, Registration Fee Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens, will be effective Dec. 9, 2019. Upon implementation of the electronic registration system, petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, will first have to electronically register with USCIS during a designated registration period, unless the requirement is suspended. The registration fee, which will be required when registrations are submitted, is part of an agency-wide effort to modernize and more efficiently process applications to live or work in the United States. This fee is non-refundable.

USCIS is planning to implement the registration process for the fiscal year 2021 H-1B cap selection process, pending completed testing of the system. The agency will announce the implementation timeframe and initial registration period in the Federal Register once a formal decision has been made.

For more on the H-1B program, click here.

Poland Designated 39th Member Country in Visa Waiver Program

Posted in President Trump's Administration, Uncategorized, Visa Waiver Program, Visas

As reported previously, President Trump announced that his administration has nominated Poland as a Visa Waiver Program (VWP) participating country. Today, Acting Secretary of Homeland Security Kevin McAleenan formally announced the designation of Poland into the Visa Waiver Program (VWP) . On Nov. 11, 2019, Polish citizens and nationals will have the ability to apply for travel to the United States for up to 90 days for tourism or business purposes without having to obtain a U.S. visa.

The DHS announcement states, “This designation demonstrates the strong partnership and cooperation between the United States and Poland, its trusted partner. The Visa Waiver Program will expand cultural ties and strengthen the economy of both nations by encouraging tourism and business exchanges. Poland will be the 39th member of the program. More information on the Visa Waiver Program can be found here.

To learn more about the VWP, please visit https://www.dhs.gov/visa-waiver-program-requirements. Please contact your GT attorney with any specific questions.

Comprehensive EB-5 Modernization Legislation Introduced in the U.S. Senate

Posted in EB-5 Modernization Rule, EB-5 Program, Immigration Law, Visas

Today, Senators Graham (R-SC), Rounds (R-SD) and Cornyn (R-TX) introduced the “Immigrant Investor Program Relief Act” (S. 2778, the Act) proposing long overdue improvements to modernize the EB-5 program in alignment with industry and market principles.  The Act reflects a fair compromise between rural and urban stakeholders providing substantial market advantages to rural and urban distressed areas while providing opportunities  for “downtown” projects.

Major programmatic provisions under the Act:

Duration of Reauthorization – The program’s authorization is extended for six years through Sept. 30, 2025.

Targeted Employment Area (TEA) Definitions

Rural Area definition: The term “‘rural area” means any area that:

  • is outside of the boundary of any city or town with a population of 20,000 or more people; and
  • is outside of a metropolitan statistical area; or
  • is within any census tract that is greater than 100 square miles in area and has a population density of fewer than 100 people per square mile.

Urban Distressed Area Definition: TEAs are limited to a single-census tract that is designated by the U.S. Treasury Department as a “Qualified Opportunity Zone,” as per the Tax Cuts and Jobs Act.

Investment Amounts

  • Establishes and maintains a $100,000 differential between the two investment levels.
  • New minimum investment level for TEAs is $1,000,000.
  • New non-TEA amount is $1,100,000.
  • These levels indexed to inflation going forward.

TEA Set-Asides

  • 15% of visas for Rural
  • 15% of visas for Urban Distressed
  • Unused visas roll-over annually at the end of each year to general visa pool for access by all projects in the immediately following year

Transition Rules to New Program Requirements -90 days after date of enactment the new law takes effect.  Individual I-526 petitions that were pending up to date of enactment are grandfathered and not subject to new investment amounts.  Pending petitions rejected after enactment and re-filed would be subject to new investment amounts. 

Backlog Relief and Suggested Additional Revenue Source – Advance Parole and work authorization.

  • All pending applicants in queue (approximately 30,000) should have the option to pay a fee to enable the individual and derivatives to travel to the U.S. and obtain work authorization if they have an approved I-526 and have been waiting for 3 years.
  • All new Investor Petitions would be required to pay an additional $50,000 that would go into the new fund.
  • The revenues raised by the EB-5 program improvement fee/backlog fee should be maintained separately for use by Congress for programs deemed in the national interest.

Sovereign Wealth Funds (SWF) – No bar on SWF capital in projects also funded by EB-5 capital.

Premium processing for Filed Cases 120 days

Significant New Revenue Sources for Congress and the Agency

Integrity Measures to Bolster National Security and Fraud Deterrence

  • DHS provided with the authority to conduct criminal background checks and obtain biometric information from individuals involved in the regional center program.
  • Establish new authority for DHS to debar individuals, and suspend or terminate regional centers, based on program non-compliance.
  • Clarify the authority of DHS to deny or revoke immigrant investor petitions for reasons including fraud, misrepresentation, or national security concerns.
  • Establish an EB-5 Integrity Fund to provide rigorous program oversight, which would be funded by regional center program participants.
  • Create thorough annual reporting and accounting requirements for regional center operators.
  • Enforce strict new requirements for third-party promoters marketing or promoting regional center investment projects.
  • Provide DHS with improved investigative tools to ensure that an investor’s funds are derived from legitimate and lawful sources.
  • Provisions to ensure that USCIS engages in a proper and non-preferential way with any person or entity involved in the EB-5 program.
  • CFIUS Reform compliance for covered transaction as per the Foreign Investment Risk Review Modernization Act (FIRRMA).

Please contact your GT attorney with any specific questions, and please watch this space for updates.

TPS Extensions for El Salvador, Haiti, Honduras, Nicaragua, and Sudan

Posted in El Salvador, Haiti, honduras, nepal, Nicaragua, Sudan, TPS

The Department of Homeland Security (DHS) announced on Nov. 1, 2019, the extension of the validity of Temporary Protected Status (TPS)-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan through Jan. 4, 2021. The announcement is based on a Federal Register notice that automatically extends the validity of Employment Authorization Documents; Forms I-797, Notice of Action; and Forms I-94, Arrival/Departure Record (collectively, TPS-related documentation). The new validity dates for the affected countries are:

TPS Designation(s) Current Expiration Date New Expiration Date
El Salvador, Haiti, Nicaragua, and Sudan Jan. 2, 2020 Jan. 4, 2021
Honduras Jan. 5, 2020 Jan. 4, 2021
Nepal March 24, 2020 Jan. 4, 2021

The extension of TPS-related documentation is in compliance with the preliminary injunctions of the U.S. District Court for the Northern District of California in Ramos, et al. v. Nielsen, et. al. and two other preliminary injunctions from the Eastern District of New York and the Northern District of California.  Should the government prevail in Ramos, the termination of TPS for Nicaragua and Sudan will take effect no earlier than 120 days from any appellate mandate to the district court, and the termination of TPS for El Salvador will take effect no earlier than 265 days from any appellate mandate to the Ramos district court, to allow for orderly transition for affected TPS beneficiaries.

For more information, see the notice and the TPS page on the USCIS website.

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