Greenberg Traurig’s Kate Kalmykov and Jennifer Hermansky recently presented “The Basics for New EB-5 Practitioners” to AILA members. Kalmykov and Hermansky provided an overview of the EB-5 program and discussed the requirements to obtain permanent residence status. To purchase a copy of the webinar, click here.
The U.S. Embassy announced it was suspending all nonimmigrant visa services in all U.S. diplomatic posts in Turkey. Turkey responded within a few hours of the U.S. Embassy’s announcement by saying it would no longer issue visas to U.S. citizens, including the physical “sticker” visas at border posts as well as the online Turkish electronic visa (e-visa).
On Oct. 8, 2017, the White House released the promised Immigration Principles & Policies (Principles & Policies) which outline the Trump Administration’s position on immigration. This document is broken into three parts: 1) Border Security, 2) Interior Enforcement, and 3) Merit-Based Immigration. A summary of each part is broken down below.
On Oct. 5, the U.S. Senate approved the nomination of Lee Francis Cissna to lead the U.S. Citizenship and Immigration Services agency (USCIS) on a bipartisan vote of 54-43. All Republican senators supported the nomination and were joined by Democrat Senators Donnelly (IN), Heitkamp (ND), Manchin (WV) and McCaskill (MO). Senators Cochran (R-MS), Cortez Masto (D-NV) and Heller (R-NV) did not vote.
On Sept. 24, 2017, President Trump issued a Proclamation imposing new limitations on visa issuance and travel to the United States for nationals of eight countries entitled “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” These countries include: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. This Proclamation was issued after the Attorney General and the Secretaries of the Department of Homeland Security and the Department of State collected information from more than 200 countries to determine whether there were threats or security concerns in a comprehensive report submitted to the president on July 9, 2017. Out of the 200 countries evaluated and studied in the reports, a small number were determined to be deficient with regard to identity management and information sharing capabilities, protocols, and practices, as well as having a terrorist presence within the countries. The reports evaluated: 1) identity management information, including integrity documents such as passports; 2) national security and public safety information on criminal history; and 3) national security and public safety risk assessment focused on terrorist activity within the country.
As an update to our recent post late Friday evening, The president signed H.R. 601 – Continuing Appropriations Act, 2018 and Supplemental Appropriations for Disaster Relief Requirements Act, 2017, making this important government continuance and public safety measure, incuding important Immigration programs, law.
All government functions are continued until Dec. 8 under this law, including immigration measures for EB-5, E-Verify, Conrad 30, and Religious Workers. By virtue of this extension, It will be necessary for lawmakers to consider further action prior to Dec. 8 to provide for continuing appropriations and reauthorization of many programs, such as the National Flood Insurance Program, the government debt ceiling, and other measures discussed above.
The president and congressional leaders reached an agreement earlier this week on a package of government continuance and public safety measures. This package includes a Continuing Resolution, Debt Extension, Hurricane Harvey relief resources, and extension of the National Flood Insurance Program. The extension maintains and continues government funding and reauthorization until Dec. 8, 2017. The Senate approved the negotiated agreement on a bipartisan 80-17 vote on Sept. 7 with House approval on Sept. 8 by a vote of 316-90.
The continuance provisions include important Immigration measures, such as EB-5, E-Verify, Conrad 30, and Religious Workers. It is expected that the president will sign this agreement.
On Sept. 5, 2017, Attorney General (AG) Jeff Sessions announced that the Trump Administration will end the Deferred Action for Childhood Arrivals (DACA). DACA is a mode of temporary relief given to children (now college-aged or older) who entered the United States without inspection with their parents and allowed them to apply for temporary work authorization if they met certain criteria. This policy was established through an Executive Order issued June 2012 by the Obama Administration. Since then, DACA has undergone scrutiny and much debate, and with the change of administrations, it has been clear that this policy would change, if not end.
AG Jeff Sessions announced that DACA will end, with a wind-down process overseen by the Department of Homeland Security (DHS). Effective immediately, the following will happen as per the recently released DHS memo:
- DHS will adjudicate, on a case by case basis, initial requests that have been accepted as of today (Sept. 5).
- After today (Sept. 5), DHS will reject all DACA first-time applications.
- DHS will adjudicate all properly-filed renewal applications as of today, and will continue to adjudicate applications for those whose benefits will expire by March 5, 2018. Those applications will only be accepted until Oct. 5, 2017. All other renewal requests will be rejected.
- Current approvals and valid employment authorization document (EAD) cards will not be revoked and will remain valid until the expiration dates.
- No new advance parole (AP) applications (an AP is permission to travel) will be accepted or approved and current/pending AP applications will be closed (fees refunded). Currently, valid Advance Parole will still be valid and U.S. Customs and Border Protection (CBP) will retain the discretion to admit a person based on the AP.
- Discretion will be retained by DHS to terminate or deny deferred action at any time deemed appropriate.
- U.S. Citizenship and Immigration Services (USCIS) will not provide this information proactively to Immigration and Customs Enforcement (ICE) and CBP for enforcement proceedings, but this policy may be modified.
The Department of Homeland Security announced on Aug. 28, 2017 that beginning on Oct. 1, USCIS will begin requiring in-person interviews at local district offices for adjustment of status applications based on employment, as well as certain refugee/asylee relative petitions.
In the past, USCIS did not require an in-person interview adjustment of status applications based on employment, and only conducted these interviews on rare, case-by-case bases. The purpose of these interviews is to verify the information in the application, and to determine the credibility of the individual seeking permanent residence. As processing times at each service center have only gotten longer, EB-5 applicants may wish to consider going through the U.S. consulate or embassy for an immigrant visa and entering the U.S. in Lawful Permanent Resident (LPR) status. The current processing times for each service center processing Adjustment of Status applications based on employment are as follows – note that the state of residence determines which service center will adjudication the application:
The application to adjust status applications will need to first be processed by USCIS, after which it will be sent to the local district office for an interview to be scheduled. Due to the already backlogged timelines as indicated in the chart above, adding this extra step will further add to the processing times.
Immigrant visa processing at the U.S. consulate or embassy abroad, on the other hand, may take less time than filing for adjustment of status. Please note that if the applicant and his or her dependents are eligible for filing for adjustment of status, they will be able to receive work and travel authorization within 90-120 days of submission.
Please consult with your attorney as to the best strategy for each case. Greenberg Traurig is ready to assist with any queries related to this matter. Please subscribe to our blog for updates.
On Aug. 24, 2017, USCIS hosted a webinar to provide guidance on Form I-924A for the fiscal year 2017. Form I-924A is used by regional centers to demonstrate continued eligibility for regional center designation. Regional centers that remain designated for participation in the program as of Sept. 30 of a given year must submit Form I-924A with the required supporting documentation on or before Dec. 29 of that same year. Failure to file Form I-924A in a timely manner for each fiscal year in which the regional center has been designated to participate in the Immigrant Investor Program will result in the issuance of a notice of intent to terminate the participation of the regional center in the program. Such failure may ultimately result in the termination of the approval and designation of the regional center.
On the webinar, USCIS reviewed the updates to the Form I-924A and gave guidance on how to report information back to USCIS on the status of the regional center’s projects. Below are a few key points made by USCIS:
- USCIS stressed the Privacy Act notice, which can be found in the Instructions to Form I-924A. USCIS can share the information provided on the form with other Federal, state, local, and foreign government agencies and authorized organizations. It may also share the information, as appropriate, for law enforcement purposes or in the interest of national security. Generally, it seems that USCIS is putting the regional center principals through background checks each year, which could lead to derogatory information that could lead ultimately to termination.
- USCIS stressed that the term “Principal” is defined broadly as any person or legal entity that is an owner of the regional center entity, any person in a position of managerial authority, or any person who is otherwise in a position to control, influence, or direct the activities of the regional center. Accordingly, it seems USCIS wants regional centers to fully disclose those individuals with decision making authority over the regional center, as it is likely those individuals may also be put through background checks each year pursuant to the Privacy Act Notice.
- USCIS also clarified that the job creation data should be based on actual data for the fiscal year. Inputs used to show actual job creation for the fiscal year (whether from expenditures, revenues, or direct jobs) should be prorated to correspond to the reporting period. USCIS gave the following example: if a hotel costs $50M in hard costs, and in this fiscal year $27.5M was spent, then jobs created must be calculated based on these actual expenditures. The regional center must provide an analysis of this with an explanation on the methodology used. As a best practice, an economist should be preparing materials on the job creation amounts and methodology used for each project under the sponsorship of the regional center to be submitted with the I-924A.
- USCIS further stated that aggregate capital by NAICS code must be tracked and reported accordingly. This must be done on a fiscal year basis, but can be a prorated number. EB-5 capital also must be tracked and reported by each NAICS code, but USCIS clarified that it is left to the regional center to show how this is allocated.
- USCIS reminded applicants that the new filing fee is $3,035. Failure to pay filing fee is grounds for a Notice of Intent to Terminate.
- USCIS also stated that revocations of approved I-526 Petitions or approved I-829 Petitions should be reported as denials.
- Finally, USCIS stated that withdraws of I-526 Petitions should be reported as denials, but the regional center can indicate the amount of withdrawals as additional clarifying information on an addendum.
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