On July 17, 2014, USCIS released updated processing times for EB-5 related petitions. The following chart provides the average processing times for cases being adjudicated by the Immigrant Investor Program Office (IPO), as May 31, 2014:
as of May 31, 2014
|I-526, Immigrant Petition by Alien Entrepreneur
|I-829, Petition by Entrepreneur to Remove Conditions
|I-924, Application for Regional Center
USCIS reminds I-526 applicants that case status can be checked online at www.uscis.gov or through an email to USCIS.ImmigrantInvestorProgram@uscis.dhs.gov.
On May 13, 2014, USCIS updated the data for I-526 petitions and I-829 petitions for the second quarter of the 2014 fiscal year (January – March). This newly released data includes data up to March 31, 2014. The original USCIS data for the I-526 petitions and I-829 petitions can be found on the USCIS website.
Data on I-526 Petitions
For the I-526 petitions, there have been a few changes between the second quarter and first quarter of fiscal year 2014. Overall, there has been an increase in number of filed I-526 petitions. There is likely an increase in the number of filed petitions because investors are concerned of the possible visa retrogression that may occur before October 1, 2014. Most notably, Chinese investors comprise approximately 80 percent of the I-526 filings, so they are hurriedly filing their I-526 petitions before visa retrogression hits.
Under the Immigration Nationality Act (INA), a person is defined as a “child” when he/she is unmarried and under the age of 21. The Child Status Protection Act (CSPA) allows principal applicants and their derivative beneficiaries to remain eligible for immigration benefits when the beneficiary has aged-out by turning 21. The CSPA was enacted to protect the applicants who aged out due to the delay in the adjudication of the petition or application.
Additionally, in order for an applicant to be protected under the CSPA, the applicant must “seek to acquire” the status of an alien lawfully admitted for permanent residence within one year of the visa availability [see INA Section 203(h)(1)(A)]. Under previous USCIS Policy, there are three ways to meet the “seek to acquire” requirement:
- Filing Form I-485, Application to Register Permanent Residence or Adjust Status;
- Submitting Form DS-230, Application for Immigrant Visa and Alien Registration; or
- Having Form I-824, Application for Action on an Approved Application or Petition, filed on the Alien’s behalf.
Greenberg Traurig’s EB-5 group will sponsor and co-chair the third annual Southern California EB-5 Conference at the Balboa Bay Club & Resort in Newport Beach, California. The all-day conference will take place on July 21, 2014, from 8:30 a.m. to 5:00 p.m. The conference will feature several panels addressing the latest developments of the EB-5 Program lead by industry leaders from regional centers, immigration and securities law firms, and leading EB-5 economists, among others. U.S. Congressman Bob Goodlatte, Chairman of the House Judiciary Committee with legislative oversight on the EB-5 visa program, will serve as keynote speaker. U.S. Congressman Darrell Issa will additionally discuss the EB-5 program and his proposed SKILLS Visa Act. The conference is designed in a manner to equally provide a wide-range of EB-5 related topics to those who are new to the industry or well-versed.
EB-5 attorneys Laura Reiff, Kate Kalmykov, Ali Brodie and Jennifer Hermansky will serve as moderators and/or panelists on various panels, including:
- EB-5 Reform: Impacts of Proposed Legislation
- EB-5 Financing for Hotel Developers
- Introduction to EB-5 Marketing Overseas
- International Differences in Source of Funds
- EB-5 Securities Compliance & Broker Dealers: Commonly Overlooked Securities Issues
For more information about the conference, please click here.
Greenberg Traurig EB-5 Immigration shareholder Kate Kalmykov and Real Estate shareholder Kristen Lonergan recently presented at the New York Private Equity Network – Real Estate “EB-5 Funding for Real Estate Development” seminar and networking reception hosted in the Greenberg Traurig New York office. More than 70 attendees represented companies from the private equity, real estate, accounting and insurance industries, among others. Kate and Kristen discussed trends and issues that are currently impacting EB-5 and real estate, including:
- EB-5 funding as a replacement for traditional debt or private equity
- Pooled EB-5 investments for small, medium and large real estate developments
- Requirements of the EB-5 Program and considerations for developers
- Best construction practices to ensure a successful EB-5 raise
- Structuring EB-5 funding vehicles and EB-5 loans
- Recent experiences in EB-5 projects and an EB-5 market outlook
Continue to monitor EB-5 Insights for EB-5 industry events and webinars.
In February 2014, USCIS hosted a telephonic meeting with EB-5 stakeholders regarding the EB-5 program. During that call, USCIS estimated an average processing time of 12 months for I-924 applications. As of June 2014, the pendency period has increased, and we are now seeing a longer window of approximately 12-15 months. However, Mr. Nicholas Colucci, the new chief of the USCIS EB-5 Program Office, is optimistic and determined to grow the EB-5 office and employ several dozen additional economists and adjudicators to expedite the adjudication process. Notably, Regional Centers should keep a few notes in mind when filing their I-924 applications. Regional Centers should file a proper and comprehensive I-924 Application because it minimizes the chance of an RFE or NOID, thereby allowing for a quicker approval.
Greenberg Traurig’s EB-5 Team
Last week, members of Greenberg Traurig’s growing EB-5 team held a strategic meeting in Chicago. The group included more than two dozen attorneys from the firm’s Business Immigration & Compliance, Corporate & Securities and Real Estate practices representing ten Greenberg Traurig offices, including Boca Raton, Chicago, Denver, Houston, Los Angeles, Miami, New Jersey, New York, Orange County and Philadelphia.
Once an EB-5 investor receives conditional permanent residency, he or she must follow certain rules and regulations to ensure conditional permanent residency is not lost, including physical presence requirements. Additionally, if an EB-5 investor desires to obtain U.S. citizenship, he or she must meet certain residence and physical presence requirements.
In order to maintain conditional permanent residency, an EB-5 investor should not remain physically outside of the United States for more than one year without obtaining a reentry permit or returning resident visa. However, in determining whether an EB-5 investor has abandoned his or her status, USCIS may consider any length of absence from the United States, even if less than one year. If an EB-5 investor secures a reentry permit, he or she should not remain physically outside of the United States for more than two years after issuance of a reentry permit without obtaining a returning resident visa. An EB-5 investor also should file his or her incomes tax returns in a timely fashion and make sure not to declare himself or herself a “nonimmigrant” on such income tax returns. Lastly, USCIS will attempt to ascertain the intent of an EB-5 investor if it is inquiring about whether or not the EB-5 investor has abandoned his or her conditional permanent residency. An EB-5 investor can take certain steps, including and without limitation, holding property within the United States; establishing personal connections with family, friends and other members of the community in which the EB-5 investor resides; ensuring employment can be completed remotely from the United States or does not require significant time spent abroad; and always declaring himself or herself a permanent U.S. resident by listing his or her permanent U.S. address on any government form, whether for the United States or another country, to demonstrate to USCIS the requisite intent to remain a conditional permanent resident. Continue Reading
USCIS recently reported faster processing times of I-924 Applications for Regional Center Designation and the number of approved regional centers are currently at an all-time high, and both factors correlate to more I-924 Applications being submitted to and processed by USCIS than ever before. As a result, we have noticed certain trends that have developed demonstrating common issues that arise when submitting the I-924 Application for approval by USCIS. The following is an analysis of what we believe are the top five issues that arise, through the form of a Request for Evidence (RFE) sent back to the applicant from USCIS, when adjudicating the I-924 Application. Continue Reading
Despite the recent resignation announcement of the House Majority Leader, immigration reform is still very much alive.
As reported by Greenberg Traurig just this week, the call to reform the country’s immigration system is louder than ever on and off The Hill. Immigration reform continues to garner strong and vocal support by CEOs, industry leaders and more. Placing the success or failure of immigration reform on the shoulders of one elected official is not an accurate metric. Indeed, several elected officials who strongly support immigration reform, and have for many years, won their respective primary with few challenges stemming from their support of immigration reform. Now is the time to move forward and refocus efforts to reform our country’s immigration system.