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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On Monday, August 21, 2017, the U.S. Embassy in Moscow announced that starting August 23 all nonimmigrant visa operations across Russia will be temporarily suspended. The mission announced that it would recommence services in Moscow on Sept. 1, but visa operations at all other U.S. consular locations in Russia would remain on hold.
All visa appointments scheduled at this time will be cancelled and applicants will be provided instructions on how to reschedule. Additional information on appointment cancellations and rescheduling is provided on the U.S. Embassy’s website.
This announcement comes after Russia demanded that the U.S. mission reduce its staff by nearly two-thirds (from more than 1,200 to 455), to the same size as the Russian mission in the United States. In light of this reduction in staff, the mission has announced that staffing changes will also impact some immigrant visa applications. Further, the mission has announced that the U.S. Embassy in Moscow and the Consulate in St. Petersburg will no longer accept new visa applications for residents of Belarus. Residents of Belarus are encouraged to schedule visa appointments at the U.S. in Warsaw, the U.S. Embassy in Kyiv, or the U.S. Embassy in Vilnius.
The U.S. Embassy in Moscow and the three consulates in Russia will continue to provide the full range of American Citizen Services.
This announcement will likely lead to large delays for the thousands of Russians who apply for U.S. nonimmigrant visas each year. Senior Russian lawmakers on Monday suggested a parallel response that could impact Americans seeking Russian visas.
Greenberg Traurig will continue to monitor this diplomatic situation and will provide updates as they arise.
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.
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.
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.