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EB-5 Insights

Where Government Policies and Business Realities Converge

Posted in Green Cards, Immigrant Green Card, Immigration Law, President Trump's Administration, Uncategorized, USCIS

Today, President Trump joined Senator David Perdue (R-GA) and Senator Tom Cotton (R-AR) announcing the introduction of a bill titled “Reforming American Immigration for a Strong Economy Act,” known also as the “RAISE Act.”  The president praised the work of the senators and in a statement added, “We want a merit-based system. One that protects workers, our workers, our taxpayers, and one that protects our economy. We want it merit-based.”

Highlights from the bill are included below:

  • Eliminates the diversity visa program.
  • Sets the maximum number of refugee admissions to 50,000 per fiscal year.
  • Worldwide level of family sponsored immigrants is 88,000. The number of humanitarian paroles, if the individual has not departed or has not adjusted status, will be counted against that number.
  • A new classification is created for the alien parents of adult U.S. citizens for admission for five years, but will not be able to receive public benefits or work authorization.
  • A person cannot naturalize if the person who executed an affidavit of support failed to reimburse the Federal Government for all mean-tested public benefits received by the person during the 5-year period.
  • Annual and quadrennial reports will be required to monitor the progress and numbers.
  • The creation of an immigration points system to replace the employment-based immigrant visa categories.
  • Effective date will be the first day of the first fiscal year that begins after the date of enactment.  Those exempt are those who have been granted admission prior to enactment, but he or she will need to enter within one year of enactment.

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Posted in Investment, Securities Law

On Thursday, July 27, regulators and industry professionals gathered in Washington, D.C. to discuss the current regulatory environment, cybersecurity, and other hot topics at the SEC and FINRA’s 2017 National Compliance Outreach Program for Broker-Dealers. The panelists, including SEC Commissioner Michael Piwowar, FINRA President and CEO Robert Cook, and Susan Axelrod, the Executive Vice President of Regulatory Operations, FINRA, particularly emphasized their agencies’ focus on identifying brokers who may pose a high risk to investors, and said that both the SEC and FINRA will be increasing their examination and enforcement activities relating to high-risk and recidivist brokers. Piwowar said that the SEC will be “relentless” in rooting out such individuals through exams and enforcement, and encouraged members of the brokerage industry to alert regulators to potential bad actors and the firms that attract them. Axelrod similarly noted that FINRA will devote significant attention to firms’ hiring and monitoring procedures, including whether firms adequately diligence their candidates and establish appropriate supervisory and compliance controls. She said the agency will look closely at firms hiring brokers with compliance disclosures, or firms that have “clusters” of reps that seem to move together. “There could not be a more important place for us to spend our time and resources,” said Axelrod. FINRA’s focus on recidivist brokers is consistent with its 12th Annual Regulatory and Examination Priorities Letter released earlier this year, and indicates that it is a recurring issue that continues to impact the financial sector. It is clear that firms that are making hiring decisions should be careful to consider the issues raised in the program, and all firms must assure that they have and carry through on enhanced compliance procedures for associates with a regulatory history.

Posted in National Visa Center, USCIS, Visa, Visa Bulletin

在2017年6月与7月间,国家签证中心(“NVC”)对大量之前已收到案件审核完毕确认信并在等待安排面试的移民签证案件发布了的新的通知。 值得您注意的是,从2016年10月起,NVC开始根据美国国务院颁布的签证排期表中的申请递件排期表(表B)的截止日,来发送缴费通知和启动移民签证的案件处理。但是这些最新的通知却向之前已经被NVC审理完毕的案子再次发出确认案件由美国移民局转移到了NVC,并要求申请人提交移民签证申请和支持文件的通知。

现在我们已经澄清这些通知是错误的,NVC目前正在更新收到这些错误通知的案件的信息。这些案件是指那些之前已经收到NVC确认案件审核完毕,并且优先日已经在表B截至日期前的案件。我们已经收到确认,在以上情况下收到的NVC错误的通知(告知案件刚被转移到NVC或者再次要求申请人递交申请文件)可以会被忽略。

在NVC审查每个案件的状态后,如果以前接受的任何文件需要重新提交,NVC将向代理人发送通知。除此之外,之前已经完成审核并等待移民签证面试的案件将按之前案件审核完成的日期为准重新返回等待面试的队列,并且NVC会给申请人及其律师/代理人发送新的通知信。

NVC将会在这些受到影响的案件恢复后提供确认,届时,NVC将能够更好地回答有关具体案件状态的详细问题。NVC预计该过程大约需要两周时间。 GT将继续更进,并提供关于NVC进展情况的更新。请订阅此博客以获取更新。

Posted in Department of Homeland Security, Executive Order, Uncategorized

On July 11, 2017 the Department of Homeland Security (DHS) announced that it is temporarily delaying the effective date of the International Entrepreneur Final Rule (the IE Final Rule). The effective date is delayed from July 17, 2017, to March 14, 2018, except for a minor provision which adds the Form FS-240, Consular Report of Birth Abroad, to the list of acceptable documents for Form I-9 verification, which went into effect on July 17, 2017. Written comments must be received on or before August 10, 2017.

This delay will provide DHS an opportunity to obtain comments from the public regarding a proposal to rescind the rule pursuant to Executive Order (E.O.) 13767, “Border Security and Immigration Enforcement Improvements.” The public may submit comments through Federal eRulemaking Portal: http://www.regulations.gov/ or mail to USCIS directly.

The IE Final Rule was published on Jan. 17, 2017, and the original effective date was July 17, 2017. It amended DHS regulations to include criteria that would guide the implementation of the Secretary of Homeland Security’s discretionary case-by-case parole authority as applied to international entrepreneurs. According to the IE Final Rule, if international entrepreneurs can demonstrate that their entry into the United States would provide a significant public benefit to the United States, they can get parole. In accordance with the criteria, such potential would be indicated by the receipt of significant capital investment from U.S. investors with established records of successful investments, or obtaining significant awards or grants from certain federal, state, or local government entities. It also established a period of initial parole stay of up to 30 months to facilitate the applicant’s ability to oversee and grow his or her startup entity in the United States.

On Jan. 25, 2017, the president issued E.O. 13767 which requires the DHS Secretary to “take appropriate action to ensure that parole authority is exercised only on a case-by-case basis, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole”

DHS decided to delay the effective date of the IE Final Rule after review of E.O. 13767. The delayed effective date will provide an opportunity for the notice and comment rulemaking to take place. We will continue to monitor any guidance that may be published on this rule. Please subscribe to our blog for updates.

Posted in National Visa Center, USCIS, Visa, Visa Bulletin

In June/July 2017, the National Visa Center (NVC) issued notices for a large number of the immigrant visa cases, which had been previously confirmed completed and awaiting interview scheduling by NVC. As a reminder, in October of 2016, NVC began issuing immigrant visa fee bills and processing cases when their priority date became current based on Chart B ‘Dates for Filing’ of the bifurcated U.S. State Department Visa Bulletin (Click here for Chinese version).  However, the newly issued notices for the previously completed cases confirmed that the I-526 petition was transferred from USCIS to NVC; and requested the submission of the immigrant visa applications (Forms DS-260) and all supporting documents anew for each one of these cases.

We have now received clarification that these notices were issued in error. NVC is currently in the process of updating the information regarding such cases, where the submission was already made and acknowledged completed by NVC, if the case priority date has again become current per Chart B of the Visa Bulletin. We have received confirmation that NVC’s notification regarding application and document requests for such cases may be ignored.

After NVC reviews each case’s status, NVC will send instructions to the agent if any documents that were previously accepted need to be re-submitted. Otherwise, cases that were completed and waiting for an interview appointment will return to the interview queue under their original completion date and applicants and their attorneys/representatives will receive a new notification letter.

The NVC will confirm when these previously retrogressed cases have been restored, at which time NVC will be better able to answer detailed questions about a specific case’s status, which, based on the agency’s estimate, should take approximately two weeks. GT will continue to monitor the situation and provide updates regarding the NVC’s progress.  Please subscribe to this blog for updates.

*Not admitted to the practice of law.

Posted in Department of State, Executive Order, Travel

On July 14, 2017, Judge Derrick Watson from the Hawaii District Court expanded the definition of “close familial relationship” to include grandparents, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins.

In addition, Judge Watson ruled that for refugees, a bona fide relationship with an entity can include a U.S. resettlement agency that has issued a “formal assurance.”  In this situation, the U.S. cannot block entry of a refugee.

To read previous alert, click here.

Posted in Awards & Recognitions, Immigration

Greenberg Traurig’s Business Immigration & Compliance Practice has been recognized by The Legal 500 United States 2017 Guide (Guide) in the area of “Labor and Employment – Immigration.”  GT immigration attorneys Laura Reiff, Kate Kalmykov, Ian Macdonald, Pamela Mak, and Martha Schoonover have once again been recommended by The Legal 500 United States 2017 editorial.  The Guide highly recognizes five GT attorneys as elite “Leading Lawyers,” including the firm’s Labor and Employment – Immigration attorneys, Reiff and Schoonover.  This ranking recognizes practice area teams and practitioners who are “providing the most cutting edge and innovative advice to corporate counsel.” The elite “Leading Lawyers” rankings are based on feedback from 250,000 clients worldwide, law firm submissions, and interviews with private practice lawyers, in addition to Legal 500’s independent research in the legal market. Additionally, The Legal 500 recognized Reiff in its “Hall of Fame.”  This recognition is awarded to individuals who receive constant praise from their clients for continued excellence.

To read the complete article, please click here.

Posted in Department of Homeland Security, Travel

The Department of Homeland Security (DHS) released FAQs for those affected by the recently reinstated travel ban. Earlier last week, the Department of State released their own set of FAQs regarding implementation of the travel ban during visa processing. DHS will be responsible for admitting persons entering the United States and the FAQs on its website will answer questions many people may have.

Greenberg Traurig will continue to monitor new developments. For more information, please contact us or subscribe to this blog.

Posted in EB-5 Legislation, EB-5 Program, USCIS

On June 30, USCIS released its Annual Report 2017 to Congress on matters relating to its mission – “Congress charged us with the duty to aid applicants and their sponsors who are experiencing difficulties applying for immigration benefits with U.S. Citizenship and Immigration Services (USCIS). In addition, Congress bestowed on us the responsibility of identifying trends and ongoing problems in the administration of our immigration system and, where possible, making recommendations on how to solve those problems.”

Specific to EB-5, USCIS identified the following Ongoing Concerns (at pp 32-33)-

Ongoing Concerns

Short-Term Regional Center Reauthorizations. Legislative efforts to reform the EB-5 program have stalled over numerous issues, including the methodology for determining TEAs, the two-tiered investment framework, and effective dates for any new provisions. In the meantime, Congress has reauthorized the Regional Center program in a series of short-term extensions. These short-term extensions trigger filing surges by investors seeking to secure a place in the queue before the minimum investment amount is increased or changes are made to other provisions. They also contributed to delays in updating EB-5 regulations as the agency yielded to signals from Congress that it intended to make statutory changes to the program. As this report was being finalized, the Regional Center Program was extended to September 30, 2017, without change.

Regulatory Reform. In late 2016 and early 2017, USCIS advanced two EB-5 regulatory proposals that would: (1) adjust the minimum qualifying threshold investment amount for inflation from $1 million to $1.8 million; (2) increase the investment threshold for TEAs from $500,000 to $1.35 million; and (3) reform the TEA designation process to prevent abuse. Members of Congress and stakeholders have expressed concern that the current regulations unfairly allow some Regional Centers to qualify their projects for the reduced EB-5 threshold investments in an otherwise low employment area.

EB-5 Backlogs. The EB-5 program continues to attract high net-worth foreigners on a worldwide basis, and disproportionately from China. As a result, processing times are long and are getting longer, currently at 16 months for Form I-526, Immigrant Petition by Alien Entrepreneur and 27 months for Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status. As of September 30, 2016, DOS reported there are just over 10,000 approved investor petitions awaiting an immediately available immigrant visa. The IPO also reported it received 4,395 Forms I-526 in the first quarter of FY 2017, and attributed this surge to the then-looming sunset of the Regional Center program scheduled for December 5, 2016. However, the oversubscription of the EB-5 category by Chinese nationals specifically is significantly larger than it appears. Historical data reveal that, on average, two dependents accompany each principal EB-5 investor to the United States. As such, the roughly 10,000 approved EB-5 petitions represent approximately 30,000 foreign nationals (including spouses and qualified dependents) currently awaiting immigrant visa issuance.

Additional examination of Form I-526 data reveals that as of September 30, 2016, USCIS had a  pending inventory of 20,804 petitions. With an 81 percent petition approval rate in the first quarter of FY 2017, using the ratio of three immigrant visas for every I-526 petition approved, the oversubscription of the EB-5 category grows even larger, adding another 58,043 eligible investor immigrants in USCIS’ current pending inventory. Taking together the 30,000 likely immigrants currently awaiting immigrant visas with DOS and the pending petitions at USCIS, there are now approximately 88,000 intending EB-5 investor immigrants worldwide—far in excess of the maximum annual statutory allocation of 10,000 immigrant visas to this employment preference category. EB-5 immigrant visas remain immediately available to nationals of all countries except China, whose nationals will likely wait 10 years or longer for their EB-5 immigrant visas due to oversubscription, absent an increase in or recalculation of the annual quota.

The Ombudsman will continue to examine the EB-5 program, engaging USCIS and stakeholders as the agency implements any statutory changes, considers regulatory changes, and expands its compliance activities.

The report ‎notably includes information that addresses DHS’s efforts to address concerns raised by allegations of fraud and backlog issues. Specifically, the IPO has the authority to employ 247 individuals, but 90 positions are still unfilled. In addition, DHS, along with the SEC, DOJ, and FBI, are working together to address fraud concerns, including conducting 250 site visits to verify information and confirm the EB-5 program is fulfilling its purpose.

GT will continue reviewing the Ombudsman report. Please subscribe to this blog for updates.

Posted in Department of Homeland Security, Department of State, Executive Order, Travel, U.S. Customs and Border Protection (CBP)

On Monday, June 26, 2017, the Supreme Court of the United States partially revived part of President Trump’s second Executive Order (EO-2)  mandating a temporary travel ban from six Muslim-majority countries for 90 days, which will be in effect on June 29, 2017. EO-2 also sought to suspend the U.S. Refugee Admissions Program and limit the number of refugees in this fiscal year.  The Supreme Court also granted certiorari to review the lower court decisions of the Fourth and Ninth Circuits that issued injunctions prohibiting the implementation of President Trump’s EO-2 beginning March 26, 2017.  Oral arguments are scheduled to take place in the Fall of 2017, when the Supreme Court’s next term begins.

President Trump issued EO-2 on March 6, 2017, which, among other things, restricts entry of nationals from six designated countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—for a temporary period of 90 days.  Iraq, which appeared in President Trump’s first Executive Order (EO-1), was removed from EO-2 because Iraq agreed to provide additional information about visa applicants to the United States, and accept the return of Iraqi nationals who were ordered removed from the United States. EO-2’s 90-day temporary travel ban was originally set to begin on March 16, 2017, and expire on June 14, 2017.  On June 14, President Trump issued a memorandum to Executive Branch officials declaring the effective date of EO-2 to be the date on which the lower courts’ injunctions are lifted or stayed.

At issue in the Supreme Court’s decision today are Sections 2(c) and 6 of EO-2.  Section 2(c) calls for the 90-day temporary travel ban prohibiting the entry of nationals from the six-Muslim majority nations to the United States. In EO-2, President Trump determined that the temporary travel ban of nationals from these six countries was necessary to ensure that dangerous individuals did not enter the United States while the United States developed “adequate standards” for applicants who are seeking visas to enter the United States. Section 6 freezes the U.S. Refugee Admissions Program and prohibits the admission of refugees into the United States.

In today’s decision, the Supreme Court held that President Trump can enforce the 90-day temporary travel ban that prohibits entry of nationals from the six designated countries “who lack any bona fide relationship with a person or entity in the United States.” The Supreme Court limited Section 2(c)’s scope, stating that this section “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” The Supreme Court held that the same standard should be applied to Section 6, which bars refugees from entering the United States. Specifically, Section 6 “may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States.”

The Supreme Court did not exhaustively list what sorts of credible claims of a bona fide relationship with a person or entity in the United States qualifies to be removed from EO-2’s purview, but noted that the relationships at issue in the present cases qualified. Specifically, the Supreme Court noted that individuals who were subject to the travel ban of EO-2 must have a close familial relationship with a person in the United States. “A foreign national who wishes to enter the United States to live with or visit a family member . . . clearly has such a relationship.” For entities, the individual must have a “formal, documented” relationship with the entity that was not formed simply to evade the EO-2’s reach. Foreign nationals who were accepted into a college or university, or accepted an offer of employment from an American company would qualify as a credible claim of a bona fide relationship according to the Supreme Court. Section 2(c)’s 90-day temporary travel ban begins today, June 29, 2017, and will expire on Sept. 27, 2017.

While it is not clear how U.S. Department of State and U.S. Customs and Border Protection will interpret and enforce the Supreme Court’s decision today, employers should note that a foreign-national employee from one of the six designated countries may be refused an employment visa or admission into the United States if the foreign national does not have a credible claim of a bona fide relationship with a U.S-based person or an American entity. It is important for impacted foreign-national employees who plan to travel internationally during the next 90 days to carry with them evidence of their employment relationship, which can include a signed offer of employment, employment verification letter, and recent pay statements, among other documents. Foreign-national students who plan to travel internationally may also carry with them their Form I-20 and a letter of enrollment issued by the academic institution. Finally, in light of this decision, for impacted individuals to secure a visa at a U.S. Consulate abroad or gain admission into the United States it is important to be able to document a close familial relationship with an individual in the United States. The U.S. Department of Homeland Security confirmed today in a statement that it will release additional details, particularly to potentially impacted nationals, on implementing EO-2 after consulting with the U.S. Departments of State and Justice.

Greenberg Traurig will continue to monitor events surrounding the Supreme Court’s decision and provide updates relating to relevant agencies in connection with the now revived EO-2.