Greenberg Traurig Attorney Jennifer Hermansky was recently selected as one of The Legal Intelligencer’s 2016 ‘Top Women in Law’. The Legal Intelligencer recently interviewed Hermansky to provide insight into her career as an immigration attorney and her success. To read the full interview, click here.
The F-1 student visa is a nonimmigrant visa issued to foreign nationals with intent to reside in the United States only temporarily pursuant to their studies. Generally, the student must have a residence abroad that they have no intention of abandoning. The filing of an I-526 Petition, however, reflects a foreign national’s intent to immigrate to the United States and obtain Lawful Permanent Resident status. Consequently, the intent of the F-1 visa and the EB-5 visa are at odds. It therefore can be risky to have demonstrated immigrant intent by filing an EB-5 Petition when seeking to enter or re-enter the United States in F-1 status while the EB-5 petition is pending.
Foreign nationals with valid F-1 visas may be questioned about their intent when seeking admission to the United States. A U.S. Customs and Border Protection officer at the port of entry can check to determine whether an I-526 Petition is pending with USCIS (the officer could also ask directly whether an immigrant petition has been filed, and the traveler must answer honestly). Generally, if the foreign national abides by the requirements associated with the F-1 visa, intends to enter the United States to continue in his or her approved course of study, and is in possession of a current F-1 visa stamp and properly endorsed Form I-20, he or she should be able to enter the United States in F-1 status notwithstanding the filing of the EB-5 petition. Travelers should carry on-hand evidence proving ties abroad in order to demonstrate that the entry sought is indeed temporary per the F-1 requirements.
There are additional considerations when the foreign national’s F visa stamp has expired, and he or she must travel internationally after the EB-5 petition has been filed and then apply for a new F-1 visa stamp abroad. It can be challenging to obtain a new F-1 visa at a U.S. consular post after expressing the intent to immigrate by filing the I-526 petition. That said, it is imperative that the foreign national answer all questions on the DS-160 nonimmigrant visa application honestly, including the questions related to U.S. immigration history and applications.
Because of the complexities involved, F-1 students should consult with an immigration attorney if they must travel internationally after filing an EB-5 petition. It is also important to bear in mind that the filing of an EB-5 petition does not incur status on the petitioner. Therefore, if the I-526 petition takes many months to be adjudicated and/or the petitioner must wait many months or years after approval to file for Adjustment of Status (due to backlogs in the Visa Bulletin, particularly applicable to mainland-China-born petitioners), he or she must be sure to maintain valid nonimmigrant status if choosing to remain in the United States.
The Department of Homeland Security (DHS) released the Fall Unified Agenda, updating the Improvement of the Employment Creation Immigrant Regulations. DHS has now moved the stage of rulemaking from “long-term actions” to “proposed rule stage.” This new release also changes the date of the Notice of Proposed Rulemaking (NPRM) from “to be determined” to January 2017. To read the full text of the release, please view the Spring 2016 update.
In addition, Statement of Need, Summary of the Legal Basis, and Anticipated Costs and Benefits sections have been added. Of note under “Anticipated Costs and Benefits” is that “the rule would benefit entrepreneurs seeking to participate in the program by providing the opportunity to mitigate the harsh consequences of unexpected changes to business conditions through priority date retention in limited circumstances.”
Greenberg Traurig will continue to monitor this activity and will provide an update as soon as the proposed rules are published.
Representatives of the Trump transition team and key members of the House of Representatives leadership agreed that a Continuing Resolution through March 31, 2017, will continue to fund the U.S. government. It is likely that this will be the vehicle for a short-term EB-5 program extension. House Appropriations Chairman Hal Rogers stated Nov. 17:
“The bottom line is that we must fulfill our constitutional duty to responsibly fund the federal government, and do right by the taxpayers who have elected us. To this end, my Committee will begin working immediately on a Continuing Resolution (CR) at the current rate of funding to extend the operations of our government through March 31, 2017.
“We must continue to keep our federal agencies and programs open for business, while looking towards future progress on these vital Appropriations bills. While I’m disappointed that the Congress is not going to be able to complete our annual funding work this year, I am extremely hopeful that the new Congress and the new Administration will finish these bills. I am also hopeful for a renewed and vigorous ‘regular order’ on future annual funding bills, so that the damaging process of Continuing Resolutions will no longer be necessary.”
Greenberg Traurig will monitor these events closely and provide timely updates.
Greenberg Traurig was proud to support and sponsor the National Immigration Forum 2016 Keepers of the American Dream event in Washington, D.C. The National Immigration Forum honored Emilio T. González, Ph.D., Distinguished Veteran and Public Servant, and Wendy Young, President, Kids in Need of Defense (KIND), for their achievements and significant contributions to immigrants in the United States and their leadership.
On November 10, 2016, Laura Foote Reiff, Bob Maples, and Rebecca Schechter presented an Immigration Post-Election Update webinar highlighting some of the anticipated key changes to U.S. immigration policy (click here to listen to the webinar). President-elect Donald Trump will likely begin the change on current U.S. immigration policy as soon as he takes office. Laura Reiff and Rebecca Schechter highlight below what to expect:
- Repealing Executive Orders: President Barack Obama’s Executive Order for Deferred Action for Childhood Arrivals (DACA) will likely be repealed. DACA is not a status, but rather, it allowed certain undocumented persons apply for work authorization. If DACA is repealed, the work authorization is no longer valid, and the question remains as to whether any further actions will be taken for these individuals.
- Mandatory E-Verify: It is likely that legislation will be proposed that makes E-Verify mandatory for employers.
- Increased Enforcement: With President-elect Trump’s stance on immigration, employers will likely see more audits from USCIS and the Department of Labor, as well as more raids. The enforcement will focus on ensuring that employers are not hiring undocumented workers, and that jobs are not taken away from qualified U.S. workers.
- Building the Wall: A constant promise of President-elect Trump’s campaign has focused on building a wall on the U.S.- Mexico border. The wall is part of a larger plan for enforcement and border security, and it remains to be seen how this project will be financed.
- Extreme Vetting for Visitors into the U.S.: President-elect Trump has stated that he will temporarily suspend immigration for those who come from countries deemed dangerous and considered dangerous and volatile. “Extreme vetting” will most likely mean more intense scrutiny of citizens from countries that are considered “high-risk” and a deeper security review.
- H-1B and L-1 Nonimmigrant Visas: Another of President-elect Trump’s focuses during his campaign was on preserving jobs for American workers. To do so, it is anticipated that there will be more vetting and more requirements an employer must meet in order to petition for a foreign worker to work in H-1B or L visa status in the United States. This will most likely include additional scrutiny of the staffing industry’s placement of H-1B and L visa holder’s at third party sites.
- Treaty Visas: President-elect Trump has stated that he will renegotiate a number of treaties, one of which is the North American Free Trade Agreement (“NAFTA”). One provision of NAFTA allows for the movement of Mexican and Canadian citizens, who qualify under certain requirements in specific job categories, to lawfully work in the United States.
- Expiration of Four Immigration Programs: We are currently in a “lame duck” session, and the four programs – E-Verify, the “Conrad Waiver” for Rural Doctors, Religious Workers, and EB-5 Regional Center Program – have been temporarily extended in the Continuing Resolution until December 9, 2016. It is anticipated that there will be another short-term extension into February or March 2017.
Bob Maples, a federal lobbyist for the firm, commented that “for those businesses that have depended on Washington gridlock to protect you, it is time to make new plans as a Republican controlled Administration and Congress have the opportunity to get things done.” These are statements President-elect Trump made during his campaign. His policies and his ability to implement his statements may be different.
Greenberg Traurig will continue to monitor the transition period as well as President-elect Trump’s first 100 days in the White House and will continuously update on important developments.
Will a new administration and Congress mean big changes for your business?
Join us for a webinar where Greenberg Traurig’s Business Immigration and Compliance group will discuss:
- A recap of campaign promises and the likelihood of their becoming a reality
- Immigration programs affected during the lame-duck session
- Immigration legislative priorities for 2017 and beyond
To register for this webinar, click here.
Greenberg Traurig attorneys attended and presented at the ABA 39th Annual Forum on Franchising in Miami Florida. The ABA provides this forum to study and discuss the legal aspects of franchising. Kate Kalmykov presented on EB-5 Investors as a Vehicle for Franchise Network Expansion. Kalmykov’s recent white paper addresses the use of EB-5 franchises. To receive a copy, please contact Kate Kalmykov at firstname.lastname@example.org.
On Oct. 5, 2016, the U.S. Department of State (DOS) issued an unclassified cable on the Continuing Resolution signed into law on Sept. 29, 2016 that extends several important immigration programs, including the EB-5 Regional Center program.
The cable explains that the EB-5 Regional Center program (immigrant visa categories R51 and I51) now is set to expire on Dec. 9, 2016. The DOS has clarified that all EB-5 immigrant visas based upon investments made in regional center projects must be issued by close of business on Dec. 9, 2016; the expiration date also applies to dependent spouses and children. The DOS has instructed all visa issuing posts to hold in abeyance any pending R51 and I51 immigrant visa applications beginning on Dec. 10, 2016, if there is no extension of the EB-5 Regional Center program on or before that date. The cable also clarifies that immigrant visas for investors not investing through a regional center (T51 and C51), i.e., the “direct” or “non-regional center” program, can continue to be issued as that program remains valid beyond Dec. 9, 2016.
In addition, the DOS cable confirms that extension of the EB-5 Regional Center program through Dec. 9, 2016 will allow priority dates to immediately become “current” for October for all countries except China. The “current” priority date for China-mainland born I5 and R5 applicants is Feb. 22, 2014. Accordingly, China mainland-born investors with an I-526 Petition filed after Feb. 22, 2014 do not have immigrant visas immediately available to them and they must wait until the priority dates in the Visa Bulletin advance further.
USCIS has released its third quarter performance data for the fiscal year 2016 (October through September), including performance data on I-526 Petitions and I-829 Petitions. USCIS reports generally provide summary data on the number of applications or petitions received, approved, denied and pending.
For the third quarter of 2016 (April through June), USCIS approved 1,660 I-526 Petitions and denied 433 I-526 Petitions. This corresponds to a 79 percent approval rate in the third quarter. For the fiscal year 2016 through June, USCIS approved 4,781 I-526 Petitions and denied 1,442 I-526 Petitions. This corresponds to an I-526 Petition denial rate of approximately 30 percent, the highest denial rate the EB-5 program has ever seen. For example, the overall denial rate of I-526 Petitions was just 12 percent in fiscal year 2015.
One reason for this increased denial rate is no doubt the USCIS change in policy when adjudicating an investor’s source of funds originating from a loan. In 2015 and throughout 2016, USCIS has consistently denied I-526 Petitions where the investor’s source of funds originated from a loan that was not fully secured by the investor’s own personal property. Additionally, USCIS has been reaching further back in time when sending requests for evidence on an investor’s source of funds, sometimes requiring investors to provide employment and asset information for some 20-30 years. This change in policy and increased scrutiny on source of funds probably has contributed to the increased I-526 Petition denial rate, highlighting the need for investors to work with qualified and experienced attorneys throughout this process.
USCIS also released the performance data on I-829 Petitions. For the third quarter of 2016, USCIS approved 306 I-829 Petitions and denied 74 I-829 Petitions, corresponding to a 24 percent denial rate. For the fiscal year 2016 through June, USCIS approved 1,539 I-829 Petitions and denied 96 I-829 Petitions. This corresponds to an I-829 denial rate of approximately 6 percent for the fiscal year 2016 thus far. However, there was a notable increase in the amount of I-829 Petition denials throughout the third quarter of 2016.
Finally, as of June 2016, there are 19,406 I-526 Petitions pending at USCIS and there are 5,522 I-829 Petitions pending at USCIS. The amount of pending petitions relative to the number of petitions actually being adjudicated at USCIS has contributed to long processing times and visa backlogs. However, USCIS Immigrant Investor Program Office Director Nicholas Colucci stated during recent stakeholders meetings that USCIS has hired a large staff to tackle the backlog.
Greenberg Traurig will continue to monitor these performance statistics in Q4, which should provide good insight into the overall adjudication of EB-5 petitions for the entire fiscal year 2016.