Search results for: Continuing Resolution

Last night, House Appropriations Chairman, Rodney Frelinghuysen (R-NJ), filed a Continuing Resolution to extend government funding and to provide extension of authorities for programs, such as EB-5, on the House Appropriations website.  The Continuing Resolution, or CR, would extend government operations and the EB-5 program through Feb. 16.

Continue Reading House Republicans file Continuing Resolution to Extend EB-5

By a vote of 235-193, the House passed H.J. Res 123, the Continuing Appropriations Act.

Upon passage, H.J.Res 123 was sent immediately to the Senate, where it passed by a vote of 81-14. The Bill now goes to the president wherein he is expected to sign it into law.

Today’s action extends government operations and programs until Dec. 22, including vital immigration programs such as EB-5, Conrad 30, E-Verify, and Religious Workers.

capitolThe U.S. House of Representatives and Senate have passed the Continuing Resolution (CR) legislation to keep the government open through April 28, 2017.

As with the CR in late September that extended the EB-5 Regional Center program and the other three immigration programs, this CR will create a clean extension through April 28.  The legislation extends the EB-5 Regional Center Program for the duration of the time period with no changes to program policy.

There were some last minute attempts by industry leaders and the chairman and ranking judiciary committee members to come up with a comprehensive EB-5 reform package over the last week. However, in the end, it appears that there wasn’t enough time to get a fully vetted deal into the CR.

It will be important to work together to support EB-5 reform efforts over the next several months. We will be watching for the much anticipated USCIS proposed regulations to be published sometime in January. In addition, there will be a need to work with the incoming administration on legislative and regulatory reform.

FOR THE WEEK OF DEC. 6, 2022

Legislative Update

  • On the Omnibus front, Sens. Thom Tillis and Kyrsten Sinema have leaked a potential DACA/Border fix. It looks like the time to complete this and the Omnibus spending bill will push the deadline from Dec. 16 to Dec. 23. 
  • This immigration provision addition is an uphill battle. It will need 10 Republicans in the Senate and at this writing there are fewer than that. There is also a chance that the Omnibus spending bill gets pushed into the next Congress.
  • The DACA/Border fix includes:
    • border security provisions such as increased funding for border patrol agents, customs officers, border infrastructure, and technology; enhanced consequence delivery to ensure that those who do not qualify for asylum or other forms of relief will be removed quickly; increased funding to processing and to build processing centers for those seeking asylum, to ensure a controlled, orderly, fair, and timely process.
    • a path to permanent residence for Dreamers

Travel Reminder – U.S. still requires foreign travelers to provide proof of COVID-19 vaccination

  • All foreign national visitors and workers traveling to the U.S. must still present proof of being fully vaccinated for COVID-19
  • The U.S. accepts only certain types of vaccines; boosters are not required
  • Exceptions to this requirement include children under 18 years old, as well as other narrowly-defined groups
  • S. lawful permanent residents (green card holders) are not subject to the vaccine requirement

TPS for Haiti Extended and Redesignated

  • The Department of Homeland Security extended TPS for Haitians from Feb. 4, 2023 through Aug. 3, 2024.
  • The Department also redesignated TPS for Haiti, which means Haitian nationals living in the U.S. as of Nov. 6, 2022 are eligible to apply for TPS

USCIS confirms ESTA visitors may request emergency extensions

  • On its USCIS Response to COVID-19 site, USCIS explains it has discretion to grant an extension of up to 30 days if an emergency (such as COVID-19, but not limited to COVID-19) prevents an ESTA visitor from departing
  • For additional 30-day extensions, the reason for the request must be related to COVID-19
  • USCIS has confirmed that ESTA visitors may request multiple 30-day extensions through the USCIS Contact Center.

FOR THE WEEK OF DEC. 12, 2022

Legislative Update

  • Eagle Act
    • The House is considering the Eagle Act, another bill that would consider eliminating per country quotas in the immigrant visa system. Plans to vote in the House were scrapped last week, and it’s uncertain as to whether this legislation will pass or fail to have the votes necessary in the House.
    • The Senate is unclear. There doesn’t appear to be an appetite for a standalone immigration bill, although there may be an attempt to pass this by Unanimous Consent. Some prominent groups have opposed the legislation for not going far enough to fix the backlogged immigrant visa system.
  • Negotiations from Sens. Sinema and Tillis carry on, as attempts to put DACA and border control on the Omnibus spending legislation continue. No language is available, although the outline of a deal seems to be there. It is questionable whether the tentative immigration deal will be advanced, especially with the announcement from Senator Sinema on her change in party affiliation late last week.
  • The chance for immigration reform being included in the Omnibus bill was already very slim before Sen. Sinema’s Certain government funding expires on Dec. 16. We expect that the Congress will pass a short-term continuing resolution by the 16th that will run through Dec. 23. There is still hope that the Omnibus bill will be passed before Christmas. There is a slight chance that it might be pushed into next year. As stated above, the chances of immigration reform in this legislation are still very, very slim. 

Citizenship application receipts to include automatic 24-month green card extension

  • Applies to all citizenship applications received by USCIS on and after Dec. 12, 2022
  • Green cards of citizenship applicants are automatically extended 24 months beyond their current expiration date
  • N-400 receipt with extension notation, along with expired green card, is acceptable List A document

Fourth Circuit Holds Employers Must Consult Unions About How to re I-9 Workforce

  • In an unpublished per curiam opinion, the Fourth Circuit held that Frontier Communications Corp. should have negotiated with Communications Workers of America before requiring workers to complete new Forms I-9
  • The Court said that Frontier should have discussed aspects of the I-9 process that affect workers, such as submission of personal documents, time allotted to complete the process, and any assistance given to employees who ran into issues completing the Forms I-9
  • Employers with a unionized workforce or companies considering a merger with or acquisition of a company with a unionized workforce should take note

DHS Designates Ethiopia for TPS for 18 months

  • DHS designated Ethiopia for TPS effective Dec. 12, 2022, through June 12, 2024
  • Applicants must prove continuous residence in the United States since Oct. 20, 2022, and continuous physical presence in the United States since Dec. 12, 2022

FOR THE WEEK OF DEC. 19, 2022

Legislative Update

  • The immigration deal being brokered by Sens. Tillis and Sinema that would address DACA/Dreamers, green card recapture and other immigration issues including the border and asylum reform, has been put on hold. Sens. McConnell and Cornyn signaled that there would not be Republican support for this effort in the Omnibus bill. 
  • As predicted, Congress has given itself another week to enact legislation in the Omnibus spending bill – through Dec. 23. We do not expect anything immigration related to pass, although there are efforts to include an H-2B deal. There have also been efforts to pass the Afghan Adjustment Act and versions of the Farm Workforce Modernization Act.

New I-485 Form Mandatory Beginning Dec. 23, 2022

  • USCIS will reject the 12/23/2022 version of the I-485 form if it is filed before 12/22/2022
  • USCIS will reject the 7/15/2022 version of the I-485 is if is filed after 12/22/2022
  • The 12/23/2022 version of the I-485 form incorporates information collection related to the Public Charge Ground of Inadmissibility and is reminiscent of the previous form version in effect during the Trump Administration

DOJ’s IER Continues its Focus on Discriminatory Job Ads, Requiring Specific I-9 Documents

  • SecureApp Technologies, a New Jersey based IT recruiting and labor staffing company, reaches a settlement with IER. For more than one year, SecureApp posted at least 12 job ads that solicited only foreign nationals seeking sponsorship or those who already had work visas. Securepp agreed to pay a civil penalty of $26,000. The company additionally agreed to review and revise its employment policies and submit them to IER approval, as well as its job ads, and ensure all recruiters undergo training and have access to the latest I-9 and E-Verify Handbook for Employers (M-274).
  • IER reaches a settlement with Navajo Express, a trucking company located in Colorado, which routinely required lawful permanent residents to provide copies of their green cards, even when they had provided alternate proof of authorization to work, and also asked them to provide proof of their new green cards when their existing cards had expired. Pursuant to the settlement, Navajo paid $40,000 in fines and agreed to training, revising its policies, and will be subject to IER monitoring for two years. 

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.

As has been a yearly requirement for the Regional Center portion of the EB-5 Program, Congress must extend the law which authorizes regional centers in order for that portion of the EB-5 visa category to continue. The current law authorizing the Regional Center portion of the EB-5 Program expires on Sept. 30, 2020. Since 2015, Congress has extended the EB-5 Program in increments of a year or less without change through legislation known as “Continuing Resolutions”, which also fund the government. Recently, the White House outlined requested reauthorizations of certain programs, including the Regional Center portion of the EB-5 Program, that it wished to be included in a new Continuing Resolution. It is expected that this reauthorization would continue the Regional Center portion of the EB-5 Program without material change. A partial government shutdown will occur unless a Continuing Resolution is passed by Congress and signed into law by the president.

While there may be some last minute attempts by industry leaders and the chairman and ranking judiciary committee members to come up with a comprehensive EB-5 reform package, given the broader political climate of election season it appears that there will not be enough time to pass comprehensive legislation regarding the EB-5 Program. Depending upon the makeup of the new Congress in 2021 there may be renewed pushes for revisions to the EB-5 Program and the Regional Center portion.

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:

  • Increased Investment Amounts: The rule increases the minimum investment amount from $1 million to $1.8 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 based on inflation.
  • TEA Designations: Specially designated high-unemployment TEAs will now consist of a combination of census tracts that include the tract or contiguous tracts in which the new commercial enterprise is principally doing business, including any or all directly adjacent tracts. These tracts must have experienced an average unemployment rate of at least 150% of the national average unemployment rate. TEAs may now include cities and towns with a population of 20,000 or more outside of metropolitan statistical areas. DHS will now make these designations, eliminating the current practice of a state being able to designate certain areas as high unemployment areas, through the adjudication of an I-526 Petition or I-924 Petition.
  • Derivative beneficiaries: Derivative beneficiaries of the primary applicant will be allowed to file an I-829 Petition where the investor has failed to file or refuses to file an I-829 Petition on their behalf.
  • Management participation by investors: DHS has removed references to “management” of the new commercial enterprise and clarified that, generally, investors who have normal rights under a standard limited partnership agreement or limited liability company agreement will meet the EB-5 Program requirement of active involvement in the new commercial enterprise.

Regional Centers using the program on or after the Nov. 21, 2019, effective date will need to adjust their offering materials to comply with the new regulations. Each offering that seeks to continue will also need to ensure the operating agreement of the new commercial enterprise reflects the ability to receive commitments for $900,000, and each of those operating agreements must also determine how to treat future investors who invest more than those investors who have previously invested less. Visit the USCIS informational page here.

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.

Today, the U.S. Senate approved the House-passed Continuing Resolution (CR; H.R. 4378 ) to fund the U.S. government through Nov. 21 by a bipartisan vote of 82-15. The last step in the process is the president’s signature which, according to media reports, remains likely.   

Please contact your GT attorney with any specific questions and check back as matters are updated.

For more on continuing resolutions, click here.

The president and congressional leaders reached an agreement earlier this week on a package of government continuance and public safety measures.  This package includes a Continuing Resolution, Debt Extension, Hurricane Harvey relief resources, and extension of the National Flood Insurance Program. The extension maintains and continues government funding and reauthorization until Dec. 8, 2017. The Senate approved the negotiated agreement on a bipartisan 80-17 vote on Sept. 7 with House approval on Sept. 8 by a vote of 316-90.

The continuance provisions include important Immigration measures, such as EB-5, E-Verify, Conrad 30, and Religious Workers. It is expected that the president will sign this agreement.