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EB-5 Insights

Where Government Policies and Business Realities Converge

Posted in Executive Order, President Trump's Administration, Travel

On Thursday, May 25, the U.S. Court of Appeals for the Fourth Circuit, in an en banc decision, affirmed a nationwide preliminary injunction on President Trump’s revised travel ban that was issued March 16, 2017, by a U.S. District Court judge in Maryland. President Trump’s new executive order (EO), “Protecting the Nation from Foreign Terrorist Entry into the United States,” which would have gone into effect March 16, 2017, temporarily bans U.S. entry for nationals from six Muslim-majority countries, including Iran, Libya, Somalia, Sudan, Syria, and Yemen.

In a 10-3 ruling, the Fourth Circuit upheld the lower court’s preliminary injunction barring the administration from suspending visa issuance and preventing entry for nationals from the six countries. The Appellate Court opined that the revised EO served more to effectuate the president’s agenda of religious discrimination against Muslims rather than its stated purpose to protect national security and prevent possible terrorist attacks. The opinion also stated that a “reasonable observer” could find that the primary goal of the revised EO “appears to be religious, rather than secular.” Furthermore, the Fourth Circuit held that while the president does have “broad power to deny entry” to immigrants, such power is not absolute.

On May 15, the Ninth Circuit heard oral arguments on the travel ban in a similar appeal from the U.S. District Court for the District of Hawaii. Its ruling is expected within the next several weeks. However, as long as the Fourth Circuit’s nationwide injunction remains in effect, President Trump’s revised travel ban for nationals of the six countries will remain blocked regardless of the Ninth Circuit’s ruling.

Greenberg Traurig will continue to monitor developments and provide updates in connection with President Trump’s revised EO.

Posted in EB-5, Eb-5 Regional Center

The Omnibus bill that will continue to fund the federal government until Sept. 30, 2017, was passed in both the House of Representatives and the Senate on May 4, 2017, and was signed by the president on May 5, 2017. Of note, the bill continues a provision that will extend the EB-5 Regional Center Program as-is until Sept. 30, 2017.  While the Omnibus bill does not contain provisions that will alter the program, including minimum investment amounts, TEA designations, or integrity measures, stakeholders should be reminded that the comment period for the proposed EB-5 regulations closed on April 11, and that the comments are currently in the review stage. Following DHS review, the regulations will be sent to OMB (Office of Management and Budget)/OIRA (Office of Information and Regulatory Affairs) for final review and approval. If and when the regulations are published as final in the Federal Register, implementation can be as soon as a minimum of 30 days from the publishing date. In addition, there have been many productive discussions with members of Congress regarding EB-5 reform via legislation, with drafts of legislative text circulated.  Major EB-5 stakeholders have been working diligently to come to a compromise with members of Congress.  Greenberg Traurig will continue to monitor the status of the EB-5 proposed regulations as well as any legislative activity between now and Sept. 30, 2017.

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

Congress is poised to extend the EB-5 Regional Center Program through Sept. 30, 2017, without any changes. The House Appropriations Committee submitted a proposal on Continuing Appropriations in the early morning of May 1, 2017.  We expect the Omnibus Appropriation bill to proceed to House Rules Tuesday, May 2, with a vote on the House floor on Wednesday, May 3.  The bill will then proceed to the Senate with time to meet the short-term patch deadline for approval by midnight Friday, May 5.

There has been an ongoing effort to include an industry-consensus EB-5 reform bill in this legislative package.  While we continue to work toward a comprehensive, workable solution to EB-5 reform, it is possible that this effort will not be included at this point due to agreements above-and-beyond EB-5, and that we will merely see an extension of the program.

For more information, please see:

Bill text (p. 734): SEC. 542. Section 610(b) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) shall be applied by substituting ‘‘September 30, 2017’’ for ‘‘September 30, 2015’’.

Explanatory Text (p. 65): Section 542. A new provision is included extending the Regional Center program within the “EB-5” immigrant investor program authorization until Sept. 30, 2017.

Posted in Visa

Greenberg Traurig Shareholder Kate Kalmykov was recently quoted in The Jerusalem Post’s article, “Trumps Visa Policy May Harm Israeli Hi-Tech Innovators.”  In the article, Kalmykov addresses Israeli hi-tech companies options for visas when looking to relocate employees to the United States.  To read the full article, click here.

Posted in EB-5, EB-5 Program

A Continuing Resolution (CR) has been filed as of last night, April 26, 2017, to serve as a vehicle to extend government operations through May 5, 2017, thus preventing a government shutdown. The CR may be signed as early as tonight, subject to ongoing negotiations. If signed, it will extend the EB-5 program as-is until May 5. The text of the CR as filed can be found here.

To receive updates, please subscribe to our blog.

Posted in Green Cards, USCIS

U.S. Citizenship and Immigration Services (USCIS) announced on April 19, 2017 that the agency will begin issuing revamped Permanent Resident Cards (commonly referred to as “green cards”) and Employment Authorization Documents (EAD Cards) as a part of the Next Generation Secure Identification Document Project,  a multi-agency initiative aimed at modernizing security measures through advanced biometrics technologies.

The new designs, which use enhanced graphics and fraud-resistant security features, will be less susceptible to tampering and counterfeiting than the current cards. This update is indicative of a larger trend throughout the immigration agencies to crack-down on fraud and to take a tougher stance on vetting and security issues across the board.

USCIS states that the redesigned cards will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
    • Green cards will have an image of the Statue of Liberty and a predominately green palette;
    • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Have embedded holographic images;
  • No longer display the individual’s signature; and
  • Green cards will no longer have an optical stripe on the back.

Importantly, the agency will continue to issue cards in their existing format even after May 1, 2017, stating that it intends to deplete current supplies before transitioning to the new versions. All versions of green cards and EAD cards will remain valid until the expiration date listed on the document. Do note, however, that certain EAD card holders have had their validity automatically extended beyond the listed expiration date. If you are unsure as to whether you are affected, you should contact your immigration lawyer for guidance.

Foreign nationals currently in possession of older green cards not bearing an expiration date—which will remain valid—should nevertheless consider applying for an updated replacement card in order to reduce the likelihood of fraud or issues with document verification and interacting with the government.

Foreign nationals may continue to present any valid green card or EAD card for I-9 verification purposes. Therefore, employers and HR representatives should familiarize themselves with the appearance and features of the redesigned documents so as to be able to navigate the employment eligibility process when onboarding new hires.

For more information about green cards and the green card process, you can visit USCIS’ designated web portal and visit our prior blog posts on the subject.

Posted in Executive Order, H-1B Cap

On April 18, 2017, President Donald Trump signed an Executive Order (EO) titled “Buy American and Hire American.” The stated purpose of this EO is to protect the American economy by having the U.S. government and agencies focus on purchasing goods made in America, and to also protect American workers. The first part of the EO includes text that focuses on conducting studies and putting forth plans for federal agencies to immediately maximize the use and procurement of materials and products made in the United States—or “Buy American.”

The second part of the EO includes text that focuses on “Hire American,” that is, reviewing current U.S. immigration laws, specifically as they relate to nonimmigrant visa categories. A summary of the second part of the EO is below:

Ensuring the Integrity of the Immigration System in Order to “Hire American”:

  • The Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security are tasked with proposing new rules and issuing new guidance with the intent of protecting U.S. workers and eliminating fraud or abuse.
  • In addition, the text of the EO directs that reforms should be focused on ensuring that H-1B status is only granted to those who are the “most-skilled” or the “highest-paid.”

This EO comes only a few weeks after various U.S. federal agencies tasked with administering immigration law issued guidance and decisions with the intent of preventing fraud and abuse in the immigration system, specifically the H-1B program. The United States Citizenship and Immigration Service, the Department of Justice, and the Department of Labor all released statements and/or policy with regard to the H-1B program.  To see a summary regarding these statements and/or policies, please visit our previous post.

As this EO is general in nature and does not dictate any specific timelines for the “Hire American” portion, Greenberg Traurig will continue to monitor the conditions and changes. To receive updates, please subscribe to our blog.

Posted in Awards & Recognitions, Immigration

Greenberg Traurig’s Business Immigration & Compliance Practice and two of the group’s attorneys were included in the 2017 Chambers Global Guide. The 2017 guide includes 37 Greenberg Traurig attorneys and 23 practice areas.

According to its website, Chambers and Partners selects attorneys and practices for inclusion based on thousands of interviews with practicing lawyers and clients around the world. The Business Immigration & Compliance Practice received recognition by region in the United States. Immigration attorneys Laura Foote Reiff and Martha Schoonover were ranked in the Immigration category by region.

To read the full press release and view the full Greenberg Traurig 2017 Chambers Global Guide rankings, click here.

Posted in EB-5

As April 28, 2017, approaches we are seeing the release of edits to proposed draft bills from the last session of Congress. Just today, Senator Patrick Leahy (D-VT) and Senator Charles Grassley (R-IA) circulated a staff draft very similar to what was circulated in December 2016. We do expect to see other drafts being circulated from other members of Congress and we will be working with all EB-5 stakeholders on a potential EB-5 compromise. It appears that the April 28 expiration of the program will be extended for a few weeks in the short-term (maybe as long as four weeks) as Congress works on other issues that need to be addressed to keep our government open and funded. As you know, the comment period for the proposed EB-5 regulations has been closed as of April 11.  It is possible that EB-5 legislation will be passed before the regulations are implemented.  We will keep you apprised of the differing drafts on the EB5 legislation circulated as well as the process as events unfold.

Posted in EB-5, EB-5 Program, I-526, Immigrant Investor, USCIS, Visa

USCIS recently announced the release of a new edition of Form I-526, with the new edition dated 04/10/2017. Starting on June 9, 2017, USCIS will only accept the 04/10/2017 edition.  Until then, investors can use the 12/23/2016 edition. Both editions of Form I-526 are available to download at no cost on the USCIS website.

Investors should be mindful of several substantial changes to the new Form I-526 (04/10/2017 edition). At first glance, the length of the form has noticeably increased: up from 3 pages in the 12/23/16 edition to 13 pages in the new edition. The additional pages include new fields that request information on the investor, dependents, the Regional Center, NCE, and JCE(s). The 04/10/2017 edition includes the following new changes:

  • List of Employment for Last 5 Years: USCIS will now require the investor to certify his/her previous employment history for the last five years, including the employer’s name and address, and the investor’s job title and dates of employment. Therefore, the Form I-526 should accurately reflect the investor’s employment history, and the same should for all employment records, tax returns, and resumes submitted as part of the investor’s source of funds.
  • List of Physical Addresses for Last 5 Years: The investor will need to list all addresses in or out of the United States for the last 5 years.
  • Other Information About the Investor: The new form provides space for the investor to all other names ever used (including aliases, maiden name, and nicknames), place of birth (city/town and state/province), sex, and country of last foreign residence if the investor is a citizen of more than one country or his/her nationality differs from citizenship.
  • Is the Investor Currently in Immigration Proceedings? The investor will be required to certify whether he or she is currently in exclusion, deportation, or removal proceedings before the Department of Homeland Security (DHS) or the Department of Justice (DOJ).
  • Information on Dependent Family Members: This new addition to the Form I-526 requires the name, date of birth, and relationship of the dependent spouse and children applying with the investor. The form also asks the investor to specify whether the dependent will apply for adjustment of status of for a visa abroad.
  • Information about the Investment. A new addition to Form I-526 is that the investor will now need to check off and also describe the source(s) of the investment capital.
  • Information on the Regional Center:  The new form requires information on the Regional Center which prior versions of the form did not request. The new form includes fields for the Regional Center’s name, the Regional Center Identification Number, the receipt number for the approved Regional Center, and the New Commercial Enterprise (NCE) Identification Number.
  • Information on the NCE: The form requests that the investor list the name of any other person or entity that holds a percentage ownership in the NCE, their percentage of ownership, and whether that person has obtained classification or is seeking classification as an alien entrepreneur under INA section 305(b)(5) on the bases of his or her investment in the NCE.
  •  Information on the JCE: There is space to include information on all JCEs involved with the new commercial enterprise, if the JCE(s) differs from the NCE.
  • Interpreter’s Certification: If an interpreter was used by the investor to complete the form, then he or she will need to complete the Interpreter’s Certification section of the form.

Are these new additions to Form I-526 a sign of other changes to come for the EB-5 program?  With the comment period already concluded on the proposed EB-5 Regulations (the deadline to submit comments on the Notice of Proposed Rule Making ended on April 11, 2017 at 11:59pm eastern), it remains to be seen if any of the proposed amendments will be implemented by USCIS. The proposed rules seek to increase the minimum investment amount for high employment areas from $1 million to $1.8 million, and increase the minimum investment amount for targeted employment areas from $500,000 to $1.3 million. On top of this, the Regional Center program is set to expire again on April 28, 2017. It still remains to be seen what changes, if any, will be made by the agency or by Congress in the next few weeks. We will be sure to keep you updated on any developments.