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EB-5 Insights

Where Government Policies and Business Realities Converge

Posted in EB-5 Processing Times, Uncategorized, USCIS

On July 14, 2016, USCIS released updated processing times for the Immigrant Investor Program Office (IPO).

The updated processing times are as follow:

  • Form I-526 Immigrant Petition by Alien Entrepreneur:  16.6 months
  • Form I-829 Petition by Entrepreneur to Remove Conditions:  20.1 months
  • Form I-924 Application for Regional Center:  9.9 months
  • Processing times for I-829 petitions have increased due to more petitions being submitted as a result of investors reaching the end of their two year conditional permanent residency status.  We also note that while the IPO states the processing times for Form I-924s are 9.9 months, practitioners are reporting that it is taking longer than that timeframe.

Applicants with pending I-526 petitions can check the status of the case online; applicants can also email USCIS.ImmigrantInvestorProgram@uscis.dhs.gov for updates on cases pending beyond the above-mentioned processing times.

 

We note that the processing times may vary from case to case, and are dependent upon workload and number of petitions pending with the IPO.  GT will continue to closely monitor these times.

Posted in Department of State, Visa Bulletin

This week the Department of State released the August Visa Bulletin, which contains some significant movement in certain employment-based categories.

  • In its July Visa Bulletin, which we wrote about here, the Department advised that it would impose cutoff dates for India and China in the EB-1 category.  In the August Bulletin, the Department has imposed a cutoff date of January 1, 2010 for both countries.  The Worldwide EB-1 category remains current.  Individuals born in India or China should consider initiating EB-1 cases now for filing on before July 31, 2016, as retrogression will be in place on August 1, 2016.
  • The July Bulletin predicted a cutoff date for Worldwide chargeability in the EB-2 category, and in the August Bulletin, that date has been set at February 1, 2014, with a predicted return to current in October, 2016.  The cutoff date for India in the EB-2 category advanced by two weeks from November 1, 2004 to November 15, 2004.  The Department explained in item F that “high demand for numbers for USCIS adjustment of status applicants has required the establishment of a date for August. This action has been required to hold number use within the Worldwide E2 annual limit.”
  • In the EB-3 category, worldwide chargeability, along with El Salvador, Guatemala, Honduras, and Mexico, advanced two weeks from March 1, 2016 to March 15, 2016.  The cutoff date for India advanced from October 22, 2004 to November 8, 2004, while the cutoff date for the Philippines advanced by three months from February 15, 2009 to May 15, 2009.
  • In the EB-4 category, the Department imposed a cutoff date for India of January 1, 2010, consistent with U.S. Citizenship and Immigration Services announcement that India had reached the EB-4 visa limit for fiscal year 2016.  The Department notes that the EB-4 category for India will become current in October, 2016.  The Department commented as follows:

As readers were advised in the May Visa Bulletin number 92, there has been extremely high demand in the E4 and SR categories, primarily for Juvenile Court Dependent cases filed with U.S. Citizenship and Immigration Services for adjustment of status. Pursuant to the Immigration and Nationality Act, this has now required the implementation of E4 and SR Application Final Action Dates for India, which has reached its per-country limit. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY-2016 annual limits.

In the EB-5 category, the cutoff date for Mainland China remained unchanged at February 15, 2014.  The EB-5 category is otherwise current.

For those seeking to adjust status, The United States Citizenship and Immigration Service (USCIS) website indicates that the Application Final Action Dates chart must be used for filing Form I-485.

The Department’s Application Final Action Dates for the Employment-Based categories follow:

August Visa Bulletin Chart 2

Posted in Department of Homeland Security, I-526

On July 11, the Department of Homeland Security (“DHS”) issued a notice of proposed revision of a currently approved collection of information as it relates to Form I-526.  Comments will be accepted for 60 days, until September 9, 2016.  In particular, written comments and suggestions should address the following points:

  1. Evaluate whether the information collected is necessary for the agency to perform its duties, and whether the information will be useful;
  2. Evaluate whether the agency’s estimation of the burden to collect information is accurate, taking into consideration the methodologies and assumptions utilized;
  3. Enhance the quality, utility, and clarity of the information to be collected; and
  4. Minimize the burden on the agency and personnel in responding to the information request, including method of search, response, and collection.

This notice and the written and comments described above are in particular reference to Form I-526 and information collection.  Specifically, the current findings in relation to information collecting for Form I-526 are the following:

  1. The estimated number of respondents for the information collection of Form I-526 is 11,939, and it takes an estimated 1 hour and 50 minutes for each response.
  2. The annual hours of information collection is 21,848 hours.

Comments may be submitted via email, mail, and an online portal.  GT will continue to monitor this process and provide updates.

Posted in EB-5 Program, Events, Firm News

Greenberg Traurig attorney, Laura Reiff, recently presented at the Wailian 2016 Overseas Investment Seminars in  Qingdao and Guangzhou, China. Among the hundreds of attendees and distinguished presenters was former Ambassador Gary Locke. During this two-day conference, Reiff provided an analysis and predictions for potential changes to and the extension of the EB-5 program.

Laura Reiff featured as a top presenter.

Laura Reiff featured as a top presenter.

Posted in Brexit

This note addresses the impact of Brexit on UK immigration laws. It is one of a series of GTM Alerts designed to assist businesses in identifying the legal issues to consider and address in response to the UK’s referendum vote of 23 June 2016 to withdraw from the European Union.

The issue of freedom of movement of EU nationals was at the heart of the Brexit referendum and will continue to be one of the most debated topics over the coming months.

Whatever the ultimate outcome of Brexit, it is likely to affect the 1.8 million EU residents who currently live and work in the UK as well as the 1.2 million British nationals who currently live and work in the EU.

To read the full GTM Alert, click here.

Posted in Brexit

This note addresses the timeline for the UK’s exit from the EU. It is one of a series of GTM Alerts designed to assist businesses in identifying the legal issues to consider and address in response to the UK’s referendum vote of 23 June 2016 to withdraw from the European Union.

The UK has not left the EU. It will remain a member of the EU, and EU law will continue to apply in its territory, until it formally exits.

Exit is likely to take some time. Nearly two weeks after the UK referendum vote, a number of practical, political, and legal issues are emerging that may affect the start and timing of the procedure leading up to exit.

This exit procedure is set out in Article 50 of one of the two main EU Treaties, the Treaty on European Union. It involves three main steps before exit – notification, negotiation, and approval. These steps are illustrated in a notional timeline at the end of this note and are described in more detail below, together with the issues that may affect the UK’s exit date.

To read the full GTM Alert, click here.

 

Posted in EB-5 Investment, EB-5 Program, Eb-5 Regional Center, Immigrant Investor

Yesterday, the leading EB-5 Trade Associations/Coalitions sent a letter to the Senate and House Judiciary Committee Leaders and Members expressing support for extending the EB-5 Regional Center Program and recommending concrete changes.  This is a decisive moment for the EB-5 Industry as the key members of the community are all speaking with one voice This effort is encouraging and will likely add to productive conversations with key offices on the Hill.

The letter highlights support for:

  • Integrity measures.  To address fraud, national security, as well as additional measures to protect good faith investors and provide for procedures that would have identified or prevented the EB-5 problems in Vermont.
  • TEA Policy Changes and Monetary Differentials.   To make the exception to the rule truly the exception based upon objective criteria.   Implement reasonable differentials between TEA and non-TEA projects.
  • Visa Numbers.  Encourage backlog reductions and other solutions to the visa oversubscription.
  • Grandfathering/Transition Period.  Individual Investors – No retroactivity or changes to filings for investors who have filed I-526s approvable at the time of filing.  Reasonable implementation of effective dates for Projects
  • Extension of the RC program.  A longer term extension of the Regional Center program with the ultimate goal of making it permanent.

Posted in EB-5 Investment, Immigrant Visa, Immigration, Visa

Under the U.S. immigration laws, there are four common visa options for foreign investors and entrepreneurs. These include:

Temporary Work Visas

  • L-1A Intracompany Transferee
  • E-2 Treaty Investor 

Immigrant Visas (“Green Cards”)

  • EB-1C Multinational Manager or Executive
  • EB-5 Investor/Entrepreneur

The EB-1C and EB-5 visas offer long-term solutions for those Investors and their families who wish to seek permanent resident status in the United States.  The L-1A and E-2 visas enable Investors and their families to enter the U.S. quickly and to remain in the U.S. while their green card process is under way.

Please click here for full chart addressing FAQs about these four visa options.

Posted in Brexit, GT Alert

The UK voted on June 23, 2016, to leave the European Union. The timetable for the UK’s exit, the terms of exit, and the UK’s post-exit relationship with the European Union (EU), are still to be determined, which will take time. Until these issues are clarified, firms with a UK presence, or UK customers, will have to address the inevitable legal uncertainty regarding the legal environment in which their businesses operate. Those firms, in the meantime, should continue to monitor developments, identify those areas where their businesses are likely to be affected by new or amended legislation and regulation – and, importantly, those areas that are unlikely to be affected – and determine how to mitigate risks in affected areas.

How long will it take to exit?

Exit will not be immediate – there will be a transitional period in which the UK will negotiate the terms of its withdrawal from the EU.

The duration of this transitional period is uncertain, despite the two-year initial deadline specified in the EU Treaty.  This is due to a number of factors that make the exit process unpredictable:

  • The process can start only when the UK notifies the European Council (Council) of its intention to leave the EU. The Council itself cannot initiate the process. There is no deadline for notification, and the UK could decide to delay it, for example, to give it time to make new arrangements for its relationship with the EU.  Some commentators say that notification could be deferred for as long as two years, but that the associated risk of prolonged uncertainty could prompt the Council to find grounds to lay the process aside and force the UK into a quick exit.
  • The UK’s notification will trigger negotiation of the exit agreement. Negotiations are likely to involve a wide range of complex issues that could take several years to resolve, requiring an extension of the two-year initial deadline. If the Council were not to agree an extension, the UK would have to exit the EU without an exit agreement.
  • Once the final version of the agreement has been settled, it must be:
    • agreed by a majority of the other 27 EU Member States making up the Council;
    • approved by the European Parliament;
    • ratified by the UK Parliament; and
    • implemented in UK legislation.

All of these formal approvals will take time and could further extend the exit process.

Taking these factors into account, the general view is that the UK’s withdrawal from the EU could take an estimated 4-5 years.

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Posted in Department of Homeland Security, EB-5 Program, Immigration, USCIS

Per the Immigration and Nationality Act (INA) § 286(m), 8 U.S.C. 1356(m), the Department of Homeland Security (DHS) has the authority to charge fees for immigration adjudication and naturalization services at a level to “ensure recover of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants.” U.S. Citizenship and Immigration Services (USCIS) is primarily funded by these fees, which are used to pay for the cost of processing immigration benefit requests.

In 2015, USCIS conducted a comprehensive fee review and determined that the current Fee Schedule does not fully recover the costs of the services it provides. USCIS’ projected FY 2016/2017 total operating costs are expected to exceed projected total revenue; if USCIS continues to operate at current fee levels, it will experience an average annual shortfall of $560 million. It became clear that USCIS must adjust the current fee schedule to recover the full cost of processing immigration benefits and to continue to maintain or improve current service delivery standards.

Thus, on May 4, 2016, DHS published a notice of proposed rulemaking in the Federal Register inviting public comment on a proposed adjustment in the USCIS Fee Schedule, which was last updated on Nov. 23, 2010. Specifically, DHS proposes to increase USCIS fees by a weighted average of 21 percent, but as evident in the following table, the fee increases for EB-5 applications are well beyond this number:

EB5 chart

Under the proposed rule, applications associated with the EB-5 program are subject to the most significant fee increases, as there are both new fees and fee bumps of more than 100 percent for Forms I-526 and I-924. DHS justifies this significant increase by pointing to the recent and continued growth of the EB-5 Program – in the 13 month period from Aug. 1, 2014 to Aug. 31, 2015, USCIS received a total of 412 Form I-924 Applications for Regional Center Designation. Since the establishment of the Immigrant Investor Program Office (IIPO) at USCIS in 2012, staffing needs have increased for improving regulatory compliance, managing the program, and ensuring identification of fraud, national security, and public safety concerns within the program. Additionally, DHS maintains that USCIS plans to conduct more site visits to regional centers and associated commercial enterprises to verify information provided in regional center applications and investor petitions. However, the proposed rule does not mention faster processing times or better services that will result from the considerable fee increases.

The proposed rule also adds a new fee of $3,035 for filing the EB-5 program’s Form I-924A, which approved EB-5 regional centers are required to file annually or on request to demonstrate continued eligibility for their designation. Although regional centers are required to file Form I-924A annually, there is currently no fee and DHS does not recover the processing costs associated with these filings. This new fee is justified in the proposed rule as a result of the significant costs USCIS incurs to review Form I-924A applications and administer the EB-5 regional center program, which is continuing to grow exponentially. There are approximately 800 approved regional centers (an increase from 340 at the end of FY 2013), and USCIS needs to spend substantial time and resources handing I-924A filings. Moreover, USCIS intends to revise the regulations governing Form I-924A filings to include a provision that will allow regional centers to withdraw their designation and discontinue participation in the EB-5 program.

DHS will be accepting public comment on this proposed rule through July 5, 2016, after which time it is expected to be adopted as final and go into effect in the fall of 2016. If you are considering creating or expanding a Regional Center, or if you are planning to make an EB-5 investment as an alien entrepreneur, you should consider filing as soon as possible to avoid paying significantly higher filing fees.