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EB-5 Insights

Where Government Policies and Business Realities Converge

Posted in Executive Order, L visa, Visa

It has been reported that President Trump’s administration is likely preparing to effectuate additional changes affecting immigration issues.  Specifically, in addition to the Executive Order executed on Jan. 27, 2017, the administration is reportedly working on additional Executive Orders, a released draft of which addresses the availability and use of advance parole, among other issues which pertain to employment-based immigration.  Advance parole enables return to the United States after international travel for those who are in the process of applying for permanent residence while living in the United States.  Parole is also available to other classes of foreign nationals, including asylees, as well as those granted this ability via the Deferred Action for Childhood Arrivals program.  Based on the released drafts of the Order, it is possible that, when signed and implemented, it could severely curtail the ability of foreign nationals to be able to re-enter the United States after international travel using Advance Parole.  Therefore, until further information is available, employers may consider advising their foreign national employees fitting the above description to refrain from international travel at this time.  Likewise, foreign nationals who have applied for or currently have valid advance parole should consider remaining in the United States until further information regarding the Order is available.

Importantly, those individuals who are maintaining temporary visa status such as H-1B, L-1A, or L-1B are not subject to this caution.  In fact, because the H-1B and L-1 regulations specifically allow for permanent intent while in the United States, foreign nationals are able to continue to maintain and extend these visa statuses even while their green card applications are pending in the United States.  Therefore, they have the ability to utilize their valid H-1B and L-1 visas for international travel, rather than the advance parole issued as part of the green card application process.  Based on this, as well as on the draft language of the administration’s Executive Order, foreign nationals and employers may wish to consider ensuring that, where possible, H-1B or L-1 visa status is extended throughout the green card application process and until green card approval.  Notably, those foreign nationals in the United States who were in F-1, J-1, O-1, H-1B1, E-1, E-2, E-3, TN, or a number of other visa statuses at the time of their green card applications will not be able to maintain their visa status throughout the green card application travel if they intend on traveling internationally, because of the temporary intent requirements of these visas.

Please contact your GT attorney to discuss temporary visa and green card application processes.  GT will continue to follow and report any developments with regards to the related Executive Order.

Posted in Awards & Recognitions

Greenberg Traurig Attorneys Kate Kalmykov and Nataliya Rymer were recently featured in The Legal Intelligencer, the oldest daily law journal published in the United States, which serves the legal community of Philadelphia and surrounding areas. In their article, Kalmykov and Rymer discuss how the new National Interest Waiver standards will benefit U.S. employers and start-ups. To read the full article, click here.

Posted in Executive Order, Temporary Restraining Order, U.S. Court of Appeals for the Ninth Circuit

On Feb. 9, 2017, the U.S. Court of Appeals for the Ninth Circuit issued a ruling keeping in force the temporary restraining order (TRO) that was issued last Friday by the U.S. District Court for the Western District of Washington. The TRO was issued in connection with the lawsuit filed by State of Washington and State of Minnesota challenging the Executive Order (EO) 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The TRO stopped the enforcement of some of the key provisions of the EO. Two days after hearing oral arguments, the Court of Appeals issued an Order declining to stay the TRO while the Government proceeds with its appeal of the lower court’s decision. In allowing the TRO to continue in effect, the Court noted that the States had standing to bring suit and that the Government was unable to establish that the TRO was “overbroad” or that persons identified in the TRO were not subject to Constitutional protections. In addition, the Court’s order maintained the national application of the TRO. While declining to address in detail the issue of religious discrimination, the Court noted that, in the interest of the emergent nature of the current legal proceedings, review and full consideration of these claims should be made at a later time. Finally, the Court found that keeping the TRO was in the general public interest.

As a result of today’s decision, the TRO remains in effect, preventing the application of the key provisions of the EO. It is likely that the Government will quickly announce their proposed next steps in this litigation. GT will continue to monitor and report on these important events.

Posted in Executive Order, Temporary Restraining Order, U.S. Customs and Border Protections

On February 3, 2017,  U.S. District Judge James L. Robart of the U.S. District Court for the Western District of Washington at Seattle issued a Temporary Restraining Order (“TRO”) halting the enforcement of the Executive Order (“EO”) “Protecting the Nation from Foreign Terrorist Entry into the United States,” signed by President Trump on January 27th, 2017.  The TRO was issued in connection with State of Washington, et al v. Donald Trump, et al (C17-0141JLR), filed with the Court earlier this week.

The TRO is effective nationwide and prohibits the enforcement of the ban on entry of nationals of the impacted countries with nonimmigrant (temporary) and immigrant (permanent) visas, refugees, and the permanent ban on Syrian refugees.

In granting the TRO, the Court found the State of Washington, and the other States in the U.S. have shown that the litigation against the EO is likely to be successful, that the States will suffer irreparable harm with respect to familial relationships, employment, travel, business, and education due to the enforcement of the EO.

It has been reported that U.S. Customs and Border Protections (CBP) has informed the airlines that they may board foreign nationals of the impacted countries who have visas and that they will be allowed entry to the U.S. in compliance with the TRO.  It has also been reported that the State Department has reversed its prior provisional revocation of valid visas of the impacted foreign nationals, allowing them to utilize these visas for entry to the U.S.

On February 4, 2017, the White House released a statement that they intend to seek a Stay of the TRO immediately and consider the provisions of the EO to be lawful and within the President’s authority.

Update:  On February 4, 2017, subsequent to the filing with the court of a notice of its intent to appeal the TRO, the U.S. Department of Justice (DOJ) filed an Emergency Motion to stay (or stop) the TRO with the U.S. Court of Appeals for the Ninth Circuit, pending a full hearing in connection with the lower court’s decision to grant the TRO.  The Ninth Circuit denied DOJ’s Emergency Motion and ordered briefing from both parties in connection with the lower court’s decision.  DOJ’s brief is set to be due at 11:59 pm on February 5, 2017, with the State of Minnesota et al having to file their reply brief by 3 pm on February 6, 2017.

GT will continue to monitor this constantly changing situation and provide updates.

Posted in Executive Order, Immigration Law, Screening Procedures, Visa Issuance

We have prepared a serious of Questions and Answers below addressing some of the most commonly asked questions with regard to this Executive Order (EO). GT will continue to monitor developments and provide up to date information.

Q1:         What do the provisions of the EO address?

A1:         The provisions of the EO address several issues:

1. Ban of entry to the United States for nationals of seven countries: Iran, Iraq, Sudan, Somalia, Yemen, Libya, and Syria, whether with nonimmigrant (temporary) or immigrant (permanent) visas for 90 days. At the conclusion of 90 days, the ban is not automatically lifted; instead, there are a number of affirmative steps listed in the EO to once again enable such entry.

2. Suspension of the Visa Interview Waiver program for all visa applicants. Instead, the U.S. Department of State will mandate visa interviews for all applicants for nonimmigrant visas, with the following exceptions:

a. Diplomatic and official visa applicants (A-1, A-3, G-1, G-2, G-3, G-4, NATO-1 through-6, C-2, and C-3);

b. Visa applicants who are under 14 or over 79 years of age;

c. Visa applicants who previously held a visa in the same category, which expired less than 12 months before the present visa application.

3. Ban of entry to refugees to the United States from Syria indefinitely.

4. Reduction of the total number of refugees to enter the United States in Fiscal Year 2017 to 50,000.

5. Establishment of requirements for “extreme vetting” for a finding of eligibility of refugee status.

To read the full GT Alert, click here.

Posted in Executive Order, Screening Procedures, Visa Issuance

As we previously reported, President Donald Trump signed a third Executive Order (EO) related to immigration on Jan. 27, 2017.  The stated purpose of this EO is to protect the United States from terrorism stemming from foreign nationals of other countries by limiting entry and visas to certain individuals, titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” In practice, it will block admission to the United States for at least 90 days for nationals of seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) who hold nonimmigrant visas, such as H-1Bs and L-1s, and green card holders.

Suspension of Visa Issuance

The text of this EO calls for the suspension of issuance of visas to nationals of certain countries where concerns of terrorism arise. The Secretary of Homeland Security, consulting with the Secretary of State and the Director of National Intelligence, is tasked with the duty to submit a report to President Trump, in 30 days, regarding the review of information necessary for visa adjudications to verify individual identity and a list of countries that are of concern.

To alleviate the burden of investigation by the agencies, and to ensure that review is thoroughly completed with the resources needed, President Trump proclaims in the Executive Order that any immigrant and nonimmigrant entry into the United States shall be suspended for 90 days by persons who are nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This 90 day entry ban excludes those traveling to the United States on diplomatic visas, NATO visas, C-2 visas for travel to the United Nations, and G-1, G-2, and G-4 visas, but includes those entering the United States on L-1, H-1B, and most work visas.

The definition of “national” typically refers to a person born in that country, who may or may not be a citizen of the country. In some cases, it can also refer to the children of such individuals born in other countries to parents who in turn were born in one of the listed countries.  Because of the broad way in which the Order appears to reference “nationals,” in the process of enforcement of the Order, it has been interpreted to include all those fitting the definitions outlined above.

Once the report is received by the Secretary of State regarding the information needed to continue adjudication of immigrant and nonimmigrant visas, information shall be requested of all foreign governments that have not supplied such information within 60 days of notification. After the 60 day period has ended, the Secretary of Homeland Security, consulting the Secretary of State, is required to submit to President Trump a list of countries recommended to be put on a list that would prohibit the entry of foreign nationals from the countries that do not supply the required information. The list of countries would exclude its nationals who travel for the same categories as mentioned above. The Executive Order includes language that gives the Secretary of Homeland Security and the Secretary of State the discretion to add additional countries to this list for President Trump’s review. In addition, visas may also be issued on a case-by-case basis to nationals even if their countries are on the list. Four reports, each submitted within 30 days of the Order to President Trump, are required to document the progress.

Implementing New Standards for Screening Those Seeking Immigrant and Nonimmigrant Visas

The Secretaries of State and Homeland Security, the Director of National Intelligence, and the Director of the FBI are tasked with implanting a program that will develop and change the uniform screening standard and procedure at the U.S. consulate, including the following:

  • Establishing a database of identity documents to ensure they are not used by multiple applicants;
  • Application forms with amended questions aimed at identifying fraudulent answers and malicious intent;
  • Questions to evaluate whether the applicant will be a positively contributing member of society;
  • Process to assess whether the applicant has the intent to commit criminal or terrorist acts in the United States.

Suspensions for the Fiscal Year 2017

President Trump, through this Executive Order, is temporarily suspending the following until further review and notice:

  • Suspension of the U.S. Refugee Admission Program (USRAP) for 120 days. During this period, a review will be conducted to determine and change the adjudications procedure. Refugee applicants already in the process may be admitted upon the initiation and completion of the revised procedures. Refugee claims made by individuals on the basis of religious-based persecution (if the religion is a minority religion in the country of nationality) will be made a priority once USRAP is continued;
  • Suspension of Syrian refugees until further determination;
  • Suspension of refugee entry until admissions are permissible, and at that time, such numbers shall not exceed 50,000 per fiscal year; and
  • Suspension of the visa interview waiver program for anyone seeking a nonimmigrant visa.

The Executive Order includes a provision that would allow the admission of refugees on a case-by-case basis, if it is in the national interest, or when the person is already in transit and denying admission would cause undue hardship. A report must be submitted by the Secretary of State on claims made by individuals on the basis of religious-based persecution within 100 days of the Order, and a second report within 200 days of the Order. The Order also includes a provision to assist state and local jurisdictions with their involvement in the resettlement process.

Other Provisions

The Executive Order includes other provisions related to the entry of foreign nationals into the United States. These include the following:

  • Expedited completion of the biometric entry-exit tracking system. Three reports shall be submitted within the first year of the Order, and a report shall be submitted every 180 days until the system is completed and operational;
  • Review and Change of Visa Validity Reciprocity.  The Secretary of State is required to review all nonimmigrant visa reciprocity agreements, including all categories, duration of time, and fees. If the foreign country does not treat the U.S. national in a reciprocal manner, the Secretary of State will adjust the conditions to match;
  • Reports for Transparency. The Secretary of Homeland Security will publish a report for public viewing, every 180 days, a list of foreign nationals who have been charged, convicted, or removed from the United States based on terrorism-related activity; the number of foreign nationals radicalized after entry into the United States; information regarding the number and types of acts of gender-based violence against women; and any other relevant information.

As this Order is expansive, Greenberg Traurig will continue to monitor the conditions and changes. In addition, we expect additional Executive Orders related to immigration in the coming days and weeks. To receive updates, please subscribe to our blog.

Posted in Executive Order, Refugee, Screening Procedures, Visa Issuance

On Jan. 27, 2017, President Donald J. Trump signed an Executive Order (EO) on Immigration entitled “Protecting the Nation from Terrorist Attacks by Foreign Nationals.” The EO impacts, among many other processes, the entry to the United States for immigrants and non-immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The EO also impacts the Visa Interview Waiver program, widely utilized by a number of U.S. Consular Posts to renew visas for applicants. This is expected to have a wide effect, including on employers with foreign national employees who are nationals or dual nationals of the above listed countries and are here on work visas and as green card holders. To read the full GT Alert click here.

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

On Jan. 25, 2017, President Donald J. Trump signed two Executive Orders impacting U.S. immigration which are summarized below.

  1. Executive Order: Border Security and Immigration Enforcement Improvements

This Order addresses the recent surge of immigration by foreign nationals without proper documentation at the United States’ southern border with Mexico. The Order directs the government’s “executive departments and agencies to deploy all lawful means to secure the Nation’s southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely.”

Specifically, the Order implements a policy to secure the southern border through the “immediate construction of a physical wall on the southern border…” The Order goes on to define “wall” as “a contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier.” The Order itself instructs the Department of Homeland Security (DHS) Secretary to identify and allocate all sources of federal funds and to project and develop long-term funding requirements for the wall.

This Order also mandates the DHS Secretary to ensure the detention of undocumented foreign nationals apprehended for violating immigration law pending the outcome of their removal proceedings. It calls for action and fund allocation for new detention facilities at or near the Mexico border. Additionally, the Order commands the prompt removal of individuals whose legal claims to remain in the United States have been lawfully rejected after any appropriate civil or criminal sanctions have been imposed. In particular, the policy known as “catch and release,” whereby undocumented foreign nationals are released in the United States shortly after their apprehension for violating immigration law, is terminated. Subject to funding, an additional 5,000 Customs and Border Protection Border Patrol agents will be hired to execute new detention protocols.

In addition, the Order also establishes a policy “to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.” The text of the Order indicates that immigration law has thus far been “exploited to prevent the removal of otherwise removable aliens.” It calls for more training of DHS personnel. In fact, new policy guidance in line with the Order is expected to be issued soon to all DHS personnel regarding the detention of undocumented immigrants.

The Department of Homeland Security Secretary and the U.S. Attorney General are expected to submit to the president a progress report on this Order’s directives within 90 days and 180 days, respectively.

2. Executive Order: Enhancing Public Safety in the Interior of the United States

This Order addresses unlawful immigration’s potential effects on U.S. national security and public safety. In particular, it states “Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat… This is particularly so for aliens who engage in criminal conduct in the United States.” The Order also states “Many of these aliens are criminals who have served time in our Federal, State, and local jails.”

To improve the country’s security and safety, the Order seeks to impose the “faithful execution” of U.S. immigration laws by executive agencies. In doing so, the executive branch will ensure that “sanctuary jurisdictions” do not receive federal funds (except as mandated by law) if they fail to comply with applicable federal law. Generally in these jurisdictions (also known as “sanctuary cities”), undocumented immigrants are not prosecuted for lacking the proper immigration status. The Order states that the practice of “shield[ing] aliens from removal… [has] caused immeasurable harm to the American people…” and requires a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens, publicly published on a weekly basis. Following the Executive Order, representatives of several sanctuary cities stated they will remain as such, including New York City, Chicago, San Francisco, Los Angeles, Philadelphia, and Seattle.

The Order further calls for the enforcement of immigration laws, prioritizing removable aliens who have been convicted of or charged with criminal offenses. Subject to funding and law, an additional 10,000 Immigration and Customs Enforcement officers will be hired to carry out the enforcement. At the press conference, Press Secretary Spicer indicated that other enforcement tools would include withholding visas from countries to ensure they accept their nationals back following removal from the United States.

This Executive Order also encourages sanctions against countries that deny or unreasonably delay accepting a deportable national of that country. This could result in the discontinuation of granting immigrant and/or nonimmigrant visas to residents of that country. A blanket discontinuance of visa issuance could result in reciprocal treatment against U.S. visa applicants. To date, the U.S. government has identified 23 such countries, including China and India.

In addition, this Order calls for the reinstitution of the Secure Communities “SCOMM” program, whereby arrestees’ fingerprints are submitted to both criminal and immigration databases to facilitate their removal where appropriate. SCOMM’s reinstitution terminates the Priority Enforcement Program, which had replaced the original Secure Communities program in July 2015. To further address Americans’ public interest, the Order directs the establishment within ICE of an office to provide “proactive, timely, adequate, and professional services to victims [and their family members] of crimes committed by removable aliens.” The office is required to provide quarterly reports on the “effects of victimization by criminal aliens present in the United States.”

Both the Department of Homeland Security Secretary and the U.S. Attorney General are expected to submit to the President a progress report on this Order’s directives within 90 days and then again within 180 days.

It is expected that there will be additional immigration-related Executive Orders addressing DACA (Deferred Action for Childhood Arrivals), restricting immigration from certain Muslim-majority countries deemed to be a national security risk, and a review of legal immigration procedures and visa categories. Greenberg Traurig will continue to monitor activity on executive action related to immigration. To receive updates, please subscribe to our Inside Business Immigration blog and our EB-5 Insights blog.

Posted in EB-3, EB-5, EB-5 Program, Visa

On Jan. 24, 2017, Senators Grassley (R-IA) and Feinstein (D-CA), the Chair and Ranking Committee members of the Senate Judiciary Committee introduced bill S. 232 to terminate the EB-5 Visa Program and to reallocate the employment creation visas to the other employment-based visa classifications. The bill would eliminate both the direct and regional center program and reallocate the visas to the EB-1, EB-2, EB-3 and EB-4 employment-based visa categories. The regional center program has been extended through April 28, 2017 and must be re-authorized to extend that program. Given the support for the EB-5 program from numerous legislators in both Houses of Congress, we think it is very unlikely that this legislation will actually be passed and signed into law. We will continue to follow this legislation initiative and other proposals to that impact the EB-5 program.