On Jan. 29, 2020, USCIS announced that it would be making a significant change to the processing of I-526 Petitions, commonly referred to as EB-5 Petitions. USCIS previously had a policy to adjudicate EB-5 Petitions on a “first-in, first-out” basis. This meant that USCIS was to review and decide EB-5 Petitions based solely on the date the petition was filed with USCIS. Today, USCIS announced that it would change this policy and decide EB-5 Petitions using the “visa availability” approach.

What is the “Visa Availability” approach?

The “visa availability” approach outlined by USCIS would prioritize EB-5 Petitions for adjudication based on whether a visa number is available to the investor. This ties the timing of the decision on the EB-5 petition to whether the investor is subject to visa retrogression based on their country of birth. As a reminder, the employment-based fifth preference category “EB-5” is allotted approximately 10,000 immigrant visas annually. This quota includes principal applicants, as well as spouses and dependent children under 21 years of age. No one country can exceed more than seven percent of the total EB-5 visas available in each fiscal year.


Continue Reading USCIS Announces Significant Change to EB-5 Adjudications Processing

I recently returned from a month in Vietnam meeting with clients and potential immigrants to the United States.  Over the course of the past five years and in my travels to Vietnam, I have watched the EB-5 program grow in popularity as a tool for Vietnamese nationals to self-sponsor for a U.S. green card.  In fact, Vietnam now ranks second in EB-5 visa usage worldwide.

The growing interest in immigration to the U.S. has also spurned in Vietnam a new trend, with some immigration agents promoting the EB-3 visa program, to target clients that cannot afford the EB-5 program or wish to spend less money to immigrate to the U.S.  This development is alarming, as in many cases, the way the EB-3 program is being described and offered to the Vietnamese public is inconsistent with the U.S. Citizenship and Immigration Service (USCIS) and U.S. Department of Labor Regulations (DOL) laws and regulations.  In the most egregious cases, these EB-3 for sale programs intentionally circumvent the legal requirements and are fraudulent.

By way of background, EB-3 stands for Employment-Based Third preference category – a concept long existent in U.S. immigration law and a valid means to a green card when properly used.  Employment-based sponsorship in U.S. immigration is divided into several preference categories, with the Employment-Based Third category being reserved for sponsorship for positions requiring:

  • Less than two years’ training or experience (unskilled workers).  This is predominately the focus of the Vietnamese EB-3 for sale programs; or
  • At least two years of experience in the field of expertise (skilled workers); or
  • A Bachelor’s degree.

The process of employment-based sponsorship in the EB-3 category entails a three step process:

1.  A PERM application is processed and filed by the employer with the DOL.  The process involves the U.S. employer engaging in various methods of recruitment to find U.S. workers for the position.  This is because the DOL’s main purpose is to ensure that U.S. workers get preference for jobs.  The DOL determines the prevailing wage rate for the position that the employer is required to pay. Only after recruitment is completed, and if the employer can show that it was not able to find minimally qualified, able, or willing U.S. workers for the position, would the DOL certify and approve a PERM application.  If the sponsoring organization receives applications from interested individuals in the U.S. in response to the ads but does not review and interview the applicants or disclose receiving the applications to the DOL, the sponsoring company and all persons involved in the process can be subject to enforcement action.


Continue Reading Permanent Residency Through the EB-3 Program: What’s Lawful and What’s Not

The Japanese Embassy in the Philippines stated that the “substantial relaxation of multiple visas” for the Philippines, Indonesia and Vietnam began on September 30, 2014. The decision is a tactical one designed to enhance Japan’s image as a tourism-oriented country. The Embassy even said that the country has the long-term goal of attracting 20 million foreign visitors.

Continue Reading Japan Initiates Simpler Visa Process for Filipino, Indonesian and Vietnamese Nationals