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EB-5 Insights

Where Government Policies and Business Realities Converge

Posted in Department of Homeland Security, EB-5 Program, Immigration, USCIS

Per the Immigration and Nationality Act (INA) § 286(m), 8 U.S.C. 1356(m), the Department of Homeland Security (DHS) has the authority to charge fees for immigration adjudication and naturalization services at a level to “ensure recover of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants.” U.S. Citizenship and Immigration Services (USCIS) is primarily funded by these fees, which are used to pay for the cost of processing immigration benefit requests.

In 2015, USCIS conducted a comprehensive fee review and determined that the current Fee Schedule does not fully recover the costs of the services it provides. USCIS’ projected FY 2016/2017 total operating costs are expected to exceed projected total revenue; if USCIS continues to operate at current fee levels, it will experience an average annual shortfall of $560 million. It became clear that USCIS must adjust the current fee schedule to recover the full cost of processing immigration benefits and to continue to maintain or improve current service delivery standards.

Thus, on May 4, 2016, DHS published a notice of proposed rulemaking in the Federal Register inviting public comment on a proposed adjustment in the USCIS Fee Schedule, which was last updated on Nov. 23, 2010. Specifically, DHS proposes to increase USCIS fees by a weighted average of 21 percent, but as evident in the following table, the fee increases for EB-5 applications are well beyond this number:

EB5 chart

Under the proposed rule, applications associated with the EB-5 program are subject to the most significant fee increases, as there are both new fees and fee bumps of more than 100 percent for Forms I-526 and I-924. DHS justifies this significant increase by pointing to the recent and continued growth of the EB-5 Program – in the 13 month period from Aug. 1, 2014 to Aug. 31, 2015, USCIS received a total of 412 Form I-924 Applications for Regional Center Designation. Since the establishment of the Immigrant Investor Program Office (IIPO) at USCIS in 2012, staffing needs have increased for improving regulatory compliance, managing the program, and ensuring identification of fraud, national security, and public safety concerns within the program. Additionally, DHS maintains that USCIS plans to conduct more site visits to regional centers and associated commercial enterprises to verify information provided in regional center applications and investor petitions. However, the proposed rule does not mention faster processing times or better services that will result from the considerable fee increases.

The proposed rule also adds a new fee of $3,035 for filing the EB-5 program’s Form I-924A, which approved EB-5 regional centers are required to file annually or on request to demonstrate continued eligibility for their designation. Although regional centers are required to file Form I-924A annually, there is currently no fee and DHS does not recover the processing costs associated with these filings. This new fee is justified in the proposed rule as a result of the significant costs USCIS incurs to review Form I-924A applications and administer the EB-5 regional center program, which is continuing to grow exponentially. There are approximately 800 approved regional centers (an increase from 340 at the end of FY 2013), and USCIS needs to spend substantial time and resources handing I-924A filings. Moreover, USCIS intends to revise the regulations governing Form I-924A filings to include a provision that will allow regional centers to withdraw their designation and discontinue participation in the EB-5 program.

DHS will be accepting public comment on this proposed rule through July 5, 2016, after which time it is expected to be adopted as final and go into effect in the fall of 2016. If you are considering creating or expanding a Regional Center, or if you are planning to make an EB-5 investment as an alien entrepreneur, you should consider filing as soon as possible to avoid paying significantly higher filing fees.

 

 

Posted in China, Immigrant Visa, Immigration, Visa, Visa Bulletin

Charlie Oppenheim is the Chief of Visa Control and Reporting Division for the U.S. Department of State (DOS) where he is responsible for providing analysis and prediction for immigrant preference categories.  After the release of the July 2016 visa bulletin Mr. Oppenheim provided the following information regarding employment-based petitions to AILA:

EB-2 and EB-3 – China:

The final action date will see no movement after retrogression in the June 2016 visa bulletin.

EB-2 Worldwide & India:

Continued high demand for EB-2 numbers in the worldwide category will likely result in a cutoff date by September 2016. Charlie also anticipates that the EB-2 final action date for India will remain one week out from India’s EB-3 date.  Finally, excess availability in the worldwide EB-3 category should facilitate continued slow progression in India’s EB-3 category.

EB-1 China and India:

After receiving requests for approximately 4,000 EB-1 numbers worldwide, Charlie predicts that a cut-off date in this category will be imposed in August or September of this year.  He anticipates both categories will return to their current status in October.

Posted in EB-5 Program, Immigrant Visa, Immigration, USCIS, Visa, Visa Bulletin

This week, the Department of State (DOS) has released the July 2016 Visa Bulletin. We are three months from the end of the fiscal year and the dwindling visa numbers remaining are likely to bring about tepid advancement in many employment-based categories before October. This Bulletin brings several particular items of note relating to the anticipated movement of final action dates:

  • For the first time in recent collective memory, the State Department is predicting that EB-1 (which is usually “Current”) will have a cutoff date “no later than September” for China and India, but becoming current again in October 2016. Worldwide is expected to remain Current through all relevant times.
  • In the EB-2 category, a date for Worldwide chargeability is likely to be “imposed by September” with a return to “current” in October. The State Department predicts that there will be no forward movement for China EB-2, and India EB-2 will only move one week beyond India EB-3.
  • Limited movement is predicted in EB-3, with the exceptions of India reaching early 2005 and Philippines reaching late 2009 or early 2010.
  • Mexico, El Salvador, Guatemala, Honduras, and Mexico face an EB-4 priority date of Jan. 1, 2010. Although this 6.5 year backlog may appear daunting, the State Department does caution the following:

Readers should be aware that the establishment of the Employment Fourth preference Final Action date of January 1, 2010 does not mean that applicants are now subject to a wait in excess of six years. That Final Action Date is intended only to stop any further use of numbers by applicants from those countries under the FY-2016 annual limit, not to indicate how long it will be before applicants will be eligible for final action.”

In October, Mexico EB-4 is projected to become current. El Salvador, Guatemala, and Honduras are anticipated to have a 2015 cutoff date.

  • In the EB-5 realm, China has not advanced from June 2016. The “best case” scenario is a March 1, 2014, cutoff date by September.

For those seeking to adjust status, The United States Citizenship and Immigration Service (USCIS) website indicates that the Application Final Action Dates chart must be used for filing Form I-485.

The July 2016 Final Action Dates for Employment-Based Applications are as follows:

July 2016 visa bulletin 1

Likewise, the July 2016 Dates for Filing are:

Jule 2016 visa bulletin 2

Posted in Events, Immigrant Visa, Immigration, Visa

Greenberg Traurig attorneys, Kate Kalmykov and Nataliya Rymer, recently presented at the 2016 CIAD Conference hosted at the New School in New York City.  Attended by representatives including ISOs and DSOs from over 25 educational institutions across the East Coast, this two day event provided insight on career issues in arts and design.  Kalmykov and Rymer presented on “Important Immigration and Employment Law Considerations for International Advisors and School Officials.”  The discussion centered on:

  • Immigration strategies for international students in the arts and design fields.
  • Recent changes for F-1 visa holders including the extension of “cap gap” provisions for those selected under the H-1B quota, revisions to the STEM regulations for F-1 students employed in OPT, and an overview of the implications of STEM certification for the SEVIS institution.
  • Employment and immigration law issues surrounding paid and unpaid internships including an overview of recent federal court decisions.

Greenberg Traurig’s Business Immigration & Compliance Practice represents colleges, universities and related organizations on a wide range of immigration matters and visa needs. The practice helps colleges, universities, and related entities develop and implement strategies for the recruitment of faculty, researchers, and staff. Our team members have experience in connection with outstanding researcher, professor, and immigrant and nonimmigrant extraordinary ability petitions, as well as obtaining research-based waivers through interested government agencies.

CIAD 2016

Kate Kalmykov and Nataliya Rymer Co-Present at the New School 2016 CIAD Conference

 

Posted in Immigration Reform, Visa

Last week, the House Judiciary Committee considered H.R.5203, the Visa Integrity and Security Act of 2016, which was introduced May 12, 2016, by Representative Randy Forbes of Virginia.

The bill’s purpose, as reported last week in a section-by-section breakdown is to enhance security procedures for the processing of both immigrant and nonimmigrant visas. The bill will impact how both immigrant and nonimmigrant visas are processed, and we discuss below how this may affect those who apply for either visa at a U.S. consulate or embassy abroad, or those who submit a petition or application to the Department of Homeland Security (DHS) United States Citizenship and Immigration Services (USCIS).

Petition and Application Processing, Section 2:

  • All petitions and applications filed with DHS or at a U.S. consulate with a consular officer must contain all required signatures.
  • For immigrant visa applications, the application must be signed in front of the consular officer.
  • All documentation, regardless of whether it is in support of an immigrant or nonimmigrant visa application, must be translated.

Possible Implications:

Previously, immigrant visa applications (Form DS-260) were not signed in front of the consular officer, but rather submitted online. This should not pose a burden to the applicant at the time of the interview.  With the requirement of translated documents, previously it was not required at the U.S. consulate if the language was native to that particular country.  For example, applicants applying to enter the United States in L-1B status at the U.S. consulate are required to show a professional degree, but that degree need not be translated if the language is the native language of the U.S. consulate’s location.

Background Checks and Other Screening Requirements, Section 211B:

  • General Background Check: Background checks/screening required for all nonimmigrant and immigrant processing, for both principal applicants as well as dependents.
  • Security Advisory Opinion: The following categories of people are required to have a security advisory opinion:
    • Nationals of Iran, Iraq, Libya, Somalia, Syria, Sudan, Yemen; or
    • Any other country the Secretary deems appropriate.
    • Exceptions are given to certain international travel; moreover, the consular officer can determine whether a security advisory opinion is needed.
  • Social Media Activity: The background check shall include a search of public information on the internet of the applicant, including social media activity.
  • DNA Testing: DNA testing will be required for petitions and applications based upon a biological relationship. The genetic testing, at the expense of the applicant(s), must be obtained proving the biological relationship, and must be submitted at the time of the application.
  • Interviews: DHS must conduct an in-person interview with every person seeking “any benefit” under the INA, with the exception of a work authorization.  The interview requirement may be waived for those under 10 years of age.

Possible Implications:

  • General background checks have been conducted in the past of every person.
  • The requirement of a security advisory opinion of certain nationals could delay processing, and thus it would be recommended that applicants from the named countries allot for extra time to apply for either an immigrant or nonimmigrant visa stamp. In addition, it must be noted that the need for a security advisory opinion is not limited only to the listed countries. The Secretary has the discretion to add to the list of countries, and the consular officer may determine at the time of the interview whether an individual will need the security advisory opinion.
  • A search of an applicant’s social media activity is currently limited to public information. It would be wise for applicants to be mindful of things posted on the internet.
  • The requirement for a DNA test to prove biological relationship will likely be a burden, both financially and in terms of time, especially if a principal applicant has a number of dependent applicants.
  • The interview requirement would be an addition to the requirement already applied to one who is applying for an immigrant visa abroad. There are no interview requirements currently for those who submit an adjustment of status application in the United States, though DHS reserves the right to request an interview.

Burden of Proof, Section 5:

Section 5 of the bill amends section 291 of the INA concerning the burden of proof upon a petitioner or applicant for an immigration benefit.  The proposed amendment would change the current standard, “to the satisfaction of the consular officer” to the standard that each individual prove eligibility or admissibility by “clear and convincing” evidence.

Possible Implications:

The higher burden of proof gives the consular officer or the reviewing USCIS officer broader discretion when adjudicating an application or petition. For beneficiaries, this means that having the most documentary evidence is pertinent to the success of the application/petition.

GT will monitor the House Judiciary Committee’s consideration of this legislation and will provide updates here in relation to the bill’s progress in the House of Representatives.  It should also be noted that the House Homeland Security Committee will be marking up H.R. 5253, the “Strong Visa Integrity Secures America Act” on June 8, 2016.

Posted in Immigrant Visa, Immigration Reform, Legislation, Visa

On May 16, 2016, Representative Will Hurd (R-TX), along with Representatives Michael McCaul (R-TX), Candice Miller (R-MI), Peter King (R-NY), John Katko (R-NY), and Martha McSally (R-AZ), introduced H.R. 5253, the “Strong Visa Integrity Secures America Act.” The Homeland Security Committee will consider this bill on June 8, 2016.

The bill’s purpose is to improve visa security, visa applicant vetting, and other related purposes.  Below is a section-by-section analysis of this bill.

Section 2:  Visa Security:  This section of the bill is concerned with security at U.S. consular posts abroad and sets out the criteria for assigning consular officers on a risk-based manner.  The criteria are:

1) number of nationals per that specific country who were identified in the U.S. government database as known or suspected terrorists during the previous year;

2) the level of cooperation between that country and the U.S. in counterterrorism efforts;

3) available information on terrorist activity;

4) the number of derogatory Security Advisory Opinions issued regarding the nationals of the country;

5) the country’s border and immigration control; and

6) any other criteria the Secretary deems appropriate.  This section also provides counterterrorism training for any employee sent to a consular post abroad.

Section 3:  Electronic Passport Screening and Biometric Matching:  This section provides that within one year of the date of enactment of the Act, U.S. Customs and Border Protection (CBP) will be required to screen electronic passports at airports by reading the passport’s embedded chips, and that facial recognition technology and other biometric technology shall also be used, where applicable.  This section also provides that any individuals who are issued visas to enter the United States must be continuously screened against the appropriate criminal, national security, and terrorism databases as maintained by the U.S. Federal Government.

Section 4:  Reporting of Visa Overstays:  Section 4 of the proposed bill requires that once a year, the Secretary of Homeland Security submit a report to the Committee on Homeland Security and the Committee on the Judiciary of the House of Representatives including numerical estimations of nonimmigrant entries as well as the numbers within each nonimmigrant category, among other data.

Section 5:  Student and Exchange Visitor Information System Verification (SEVIS):  Section 5 requires the information found within SEVIS to be available to CBP who are at the port of entry when conducting initial screening for nonimmigrant travelers into the United States.

GT will monitor the Homeland Security Committee’s consideration of this legislation and will provide updates in relation to the bill’s progress in the House of Representatives.

Posted in Department of Homeland Security, Immigrant Visa, Immigration, Legislation, Visa

Today, the House Judiciary Committee will consider H.R.5203, the Visa Integrity and Security Act of 2016.  The bill is authored by Representative Randy Forbes of Virginia.

The bill’s purpose is to enhance security procedures for the processing of both immigrant and nonimmigrant visas.  We provide a sectional summary of the bill below.

Section 2 of the bill adds new section 211A to the Immigration and Nationality Act (INA) to require that all petitions and applications filed with the Department of Homeland Security (DHS) or a consular officer contain all required signatures.  In the case of immigrant visa applications, the bill requires that each application shall be signed in the presence of the consular officer, and verified by oath.  Section 211A also specifies that all documentation provided in support of either an immigrant or nonimmigrant visa must be translated into English.  Section 211A requires that no petition or application may be approved until any additional information requested by DHS or a consular officer is provided consistent with any deadline specified in the request.

New section 211B mandates that background checks be conducted for all petitioners or applicants to determine whether an individual poses a “national security threat” or is otherwise ineligible for a visa or admission to the United States.  The background check required in this section “shall include” a review of each individual’s social media activity.  Further, the section requires that for nationals of Iran, Iraq, Libya, Somalia, Syria, Sudan, Yemen, or another country the DHS Secretary “determines appropriate,” a security advisory opinion must be completed prior to issuance.  The section outlines certain exceptions to this requirement.

In the case of petitions and applications based upon a biological relationship, section 211B requires that a genetic test must be obtained proving the biological relationship between petitioner and beneficiary, and that such test must be submitted at the time of application.  The bill specifies that the test shall be obtained at the expense of the petitioner or applicant.  Finally, the section requires that DHS must conduct an in-person interview with every person seeking “any benefit” under the INA, with the exception of a work authorization.  The section permits the Secretary to waive this requirement for individuals 10 years of age or younger.

Section 3 directs DHS to prepare a plan for the use of “advanced analytics” software to detect immigration benefit fraud and potential national security threats.  Section 3 also requires DHS to complete a benefit fraud assessment by fiscal year 2021 for the following visa categories: VAWA self-petitioners, visas issued under section 101(a)(15)(K) (spousal and fiancé), visas issued under section 101(a)(27)(J) (juvenile), visas issued under section 101(a)(15)(U) (U visas for victims of crime or those aiding law enforcement), visas issued under section 101(a)(27)(C) (special immigrant—minister), applications for asylum under section 208, applications for adjustment of status under section 209, and petitions for visa or status under section 201(b).

Section 4 provides authority to the Secretary of State to impose surcharges to support visa security activities.  Section 4 also amends the Homeland Security Act of 2002 to require, within four years following enactment of the bill, the assignment of DHS personnel to “each diplomatic and consular post at which visas are issued.”  The section spells out the requirements for cooperation from the Department of State to implement this requirement.

Section 5 of the bill amends section 291 of the INA concerning the burden of proof upon a petitioner or applicant for an immigration benefit.  The proposed amendment would change the current standard, “to the satisfaction of the consular officer” to the standard that each individual prove eligibility or admissibility by “clear and convincing” evidence.

Finally, Section 6 mandates a report to be conducted by the Government Accountability Office (GAO) to “review and report to Congress on the security of nonimmigrant and immigrant visa application processes.”

GT will monitor the House Judiciary Committee’s consideration of this legislation and will provide updates here in relation to the bill’s progress in the House of Representatives.

 

Posted in EB-5 Investment, Firm News, Uncategorized

EB5Investors Magazine has profiled five attorneys from Greenberg Traurig, LLP in its list of the “Top 25 Immigration Attorneys in the EB-5 Industry.” Kate Kalmykov, Laura Reiff, Bruce Rosetto, Jennifer Hermansky, and Dillon Colucci were selected through a combination of community member votes, input from the editorial board, and analysis from the EB5 Magazine in-house team.  Kalmykov and Hermanksy are both recognized as Top EB-5 Immigration Attorneys; Reiff is highlighted for her specific experience in legislative work; Rosetto is recognized as a Top 15 Corporate/Securities Attorney; and Colucci is recognized as a Top 5 Rising Star. This is the fourth consecutive year Kalmykov, Reiff, and Hermansky have been selected, while Rosetto and Colucci are making their debut on the 2016 list.

To read the full press release, click here.

 

Posted in Firm News

Pennsylvania Super Lawyers magazine recognized attorneys Matthew Galati and Jennifer Hermansky as a “Rising Stars” in Immigration law for 2016.  According to the Super Lawyers website, the Rising Star selection process is based on peer recognition and professional achievement, as well as a third party research. Hermansky has been ranked as a Super Lawyer since 2014.  This is Galati’s first time on the Rising Stars list.

To read the full press release, click here.

Posted in Department of Homeland Security, E-Visa, E-visa Process, U.S. Customs and Border Protection (CBP), Visa, Visa Waiver Program

On May 9, 2016, the Department of Homeland Security (DHS) Customs and Border Protection (CBP) released a statement clarifying that as part of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, those individuals utilizing the Visa Waiver Program (VWP) with an Electronic System for Travel Authorization (ESTA) to travel to the United States must have an e-Passport as of April 1, 2016.  This was initially announced in August 2015 to give foreign travelers notice to obtain a new passport, if necessary.  If a traveler does not have an e-Passport but is otherwise eligible to travel under the VWP, he or she will need to apply for a valid nonimmigrant visa obtained from a U.S. Embassy or Consulate abroad before traveling to the U.S.

The e-Passport is an enhanced secure passport that has an embedded electronic chip.  It conforms to international standards for securing and storing information for both the passport and the passport holder.