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EB-5 Insights

Where Government Policies and Business Realities Converge

Posted in Immigrant Visa

The Department of State’s (DOS) January Visa Bulletin brings some New Years cheer for China and “All Other Countries” designations indicating that that the EB-3 subcategory for professionals and skilled workers will advance by nine months for China, from June 1, 2010 to March 1, 2011, and seven months for “All Other Countries,” from November 1, 2012 to June 1, 2013.  Unfortunately, the EB-3 category for India continues to wallow in a mire of retrogression advancing only two weeks, from December 1, 2003 to December 15, 2003.

The EB-2 category offers little in the way of good reading with China advancing only a month, from January 1, 2010 to February 1, 2010, and India seeing no change from last month’s Bulletin, staying put at February 15, 2005.  The EB-2 category remains “current” for “All Other Countries.”  The EB-5 category remains current for now, but is expected to change in the second half of the fiscal year.

EB Category All Other Countries China India
EB-1 Current Current Current
EB-2 Current 2/1/2010 2/15/2005
EB-3 (prof. & skilled workers) 6/1/2013 7/22/2005 12/15/2003
EB-3 (other workers) 6/1/2013 7/22/2005 12/15/2003
EB-5 Current Current Current

These developments come as no surprise to those of you who follow Charles (“Charlie”) Oppenheimer’s, Chief of the Visa Control and Reporting Division at the DOS, predictions for employment-based cut-off numbers, who expected to see forward movement, albeit at a slower pace than in early 2014.  In this regard, Charlie indicated that he expects to see some further advancement of the EB-3 category for China in February 2015.

For Indian nationals, in particular, the benefits contained in the upcoming Presidential Memorandum on Visa Modernization for employment-based immigrants cannot come soon enough, considering the lengthy wait times outlined above.  Specifically, the Presidential Memorandum is supposed to address, among other things, the following:

  • Allowing individuals whose EB-2 and EB-3 cases are retrogressed to file I-485, Applications to Adjust Status immediately rather than wait years.  The DOS is expected to modify the Visa Bulletin system, and U.S. Citizenship and Immigration Services (“USCIS”) should release a proposed rule change in Spring 2015 that compliments DOS’ modifications.  According to reports, this will result in changes as to when immigrant visas become available and approximately 410,000 people will benefit
  • Establishing faster processing times for PERM labor certification applications, similar to USCIS’ premium processing, along with revised recruitment methods and changes to the harmless error standard
  • Providing parole options for entrepreneurs, inventors, researchers and founders.  This will require a regulatory change and is unlikely to be implemented until late 2015 at the earliest.
  • Enhancing the flexibility and use of I-485 portability to accommodate job changes, such as promotions.  Unfortunately, it will be at least six months before specific application details are released by the White House and employers and employees can start enjoying the benefits that will be contained in the Presidential Memorandum, as outlined in the Executive Action announcement last month.

Some relief is around the corner – the Final Rule for H-4 Employment Authorization Documents is expected to be released sometime in January 2015.  For the meantime, employers and employees should keep tracking employment-based cut off dates in the DOS’s monthly Visa Bulletins.

Posted in EB-5 Program, Speaking Engagement

Greenberg Traurig EB-5 attorney Kate Kalmykov recently appeared on The Stoler Report with several EB-5 industry members to discuss the EB-5 Immigrant Investor Program. The Stoler Report-New York’s Business Report is a weekly television show airing in New York City that covers trends and developments in the New York metropolitan area real estate industry. On the show, Kalmykov and others provided an overview of the program and the benefits and investment options for real estate companies. The program specifically focused on the use of EB-5 in the New York real estate market which is currently responsible for the largest raises nationwide. To watch the full show please click here.

Posted in Comprehensive Immigration Reform

Following is the Chinese translation of a previously published blog:

包括德州总检察长在内的17个州日前在位于德州Brownsville的联邦地区法院提起诉讼, 请求判决奥巴马政府“暂缓遣返”程序违宪,并请求法院发出禁止令。信息来源

目前看来,诉讼瞄准的是奥巴马行政决定中的无证外籍人士,不涉及商业相关的其它行政决定。

随着案件的发展,我们将会继续为您提供分析及相关信息。

 

Posted in Comprehensive Immigration Reform

The Texas Attorney General was joined by 16 other States in asking a Federal District Court in Brownsville, Texas to strike down as unconstitutional the Obama Administration’s Deferred Action program. They are also seeking injunctive relief.

It appears that the plaintiffs are targeting that portion of the Administration’s Executive Actions that impact the undocumented foreign nationals. Other Executive Actions impacting the business community do not appear to be covered by the lawsuit.

We will continue to update you with further analysis as this case progresses.

Posted in Comprehensive Immigration Reform, EB-5 Investment

奥巴马总统最近宣布了其对移民政策变化的新提议,提议对EB-5投资移民将产生特殊影响。此文章简述这些举措对EB-5的影响。

奥巴马总统访华期间宣布了中国公民将有资格申请有效期为10年的赴美旅游签证。这使得一些国人认为,如果拿到了10年有效签证,通过EB-5获得美国永久居留权将变得不重要。这种理解存在许多误区。首先,虽然中国公民个人有资格申请有效期10年的旅游签证,但并不代表批准的签证就是为期10年。领馆或许仍会选择发放有效期为1年的签证。其次,持旅游签证在美国境内的逗留时间仍为6个月。再次,旅游签证仅限于持签证者在美国旅游,而不能在美国学习或永久生活。所以,如果个人仍希望在美学习或生活,还是要申请EB-5类型签证。接下来,我们讨论奥巴马总统最近在移民改革问题上的行政决定。

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Posted in Comprehensive Immigration Reform, EB-5 Investment

President Obama recently announced proposed changes in immigration policies that impact immigration, with many that may specifically influence the EB-5 Program. The purpose of this article is to outline the measures that could impact EB-5.

On the President’s trip to China he announced that Chinese nationals would be eligible to apply for a 10-year tourist visa. This has caused some Chinese to think that there is no reason to apply for residency via EB-5. This reasoning is incorrect for a few reasons. First, while the individual is eligible to receive a visa for 10 years, it does not mean that the person will receive a visa for 10 years. The consulate may choose to issue it for one year. Second, an entry on a tourist visa is for six months. And, third – most importantly – a tourist visa allows a person to vacation in the United States. That person cannot study or reside permanently in the United States. Thus, the EB-5 classification should still be pursued if an individual desires to reside or study in the United States. Next we move to the most recent Executive Action on Immigration by the President.

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Posted in Comprehensive Immigration Reform

Following is a Chinese version of a previously published blog:

2014年11月20日,奥巴马总统发表了社会各界期待已久的移民改革“行政决定”。事项总汇 我们也会持续更新有关信息。奥巴马总统在去年已经表示此行政决定将延迟到中期选举之后。尽管参众两院的共和党领袖对此举措表示强烈反对,并声称奥巴马总统的行为滥用权力且无法律依据,但是,总统行政决定中的计划将通过政策规定的更新、改变和调整而立即实施。决定反对者已经表示将通过诉诸法律程序,削减经费来源以及其他政治途径来阻止决定的执行。我们会继续跟进相关发展和变化。

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Posted in Immigrant Visa

On Nov. 7, 2014, the November 2014 Visa Bulletin was released.  Shortly thereafter, on Nov. 13, 2014, AILA “checked in” with Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, to obtain his analysis of current trends and future projections for the various immigrant preference categories. The checkup is part of an AILA monthly series designed to keep members informed of Visa Bulletin progress and projections. Below are highlights of Charlie’s predictions based on the November 2014 Visa Bulletin:

No Significant New Projections from Charlie

There are no new predictions in this month’s “Check-In” as the December Visa Bulletin is consistent with the predictions Charlie made in October and November. We previously covered Charlie’s predictions here. Unless there is an unexpected surge in demand, Charlie expects that his current predictions will hold up until the release of the February or March Visa Bulletins.

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Posted in Comprehensive Immigration Reform

On November 20, 2014, President Obama released the long-anticipated “Executive Action” on immigration reform. See herehere and here. We will also post additional materials made available. Late last summer, the President had postponed the release of such action until after the mid-term elections. Despite the cries of overreaching and lack of authority by the Republican leadership in the House and the Senate, the President has now released a plan to begin immediately the process of implementing some new policies through published guidance and to begin implementation of other policies through proposed regulatory changes. Some opposed to these actions have vowed to block the implementation through judicial intervention, attempts to defund the programs and potentially through other political means.

We will monitor the status of each change and post updates as they become available.

The following is a brief summary of the Executive proposed actions that will impact business. We have divided them broadly into three categories: 1) Changes done through guidance; 2) Changes that will need regulatory action; and 3) Changes that are still being discussed through a “Presidential Memorandum” process.

Administration Guidance without New Regulation       

  • Expansion of Deferred Action. Provide deferred action with employment authorization and advance parole, to include:
    • Parents of U.S. citizens and Permanent Residents. (Must have lived in the U.S. for 5 years and must have entered by January 1, 2010.)
    • Expansion of current Deferred Action Program to include Individuals who have resided in the U.S. for 5 years or more. There will no longer be an age limit.
  • Parole in Place. Expand PIP eligibility and confirm that Matter of Arrabally & Yerrabelly applies to all who depart and return on advance parole.
  • National interest waivers available for those in positions to create jobs, and those fulfilling shortage occupations.
  • Exemption from the H-1B cap. Interpret the term “affiliated or related nonprofit entity” to an institution of higher education for H-1B cap-exemption purposes under INA §214(g)(5)(A) more flexibly.

Regulatory Changes through the Administration Procedure Act/Federal Register

  • Enable entrepreneurs to be paroled into the U.S. and work if they are researchers, inventors or founders of businesses.
  • Expand availability of optional practical training for graduating F-1s:
    • Make the additional time available for STEM OPT graduates and expand the definition of STEM.
  • Early Adjustment. Enable individuals who are eligible to apply for adjustment of status, but for a non-current priority date, to file for adjustment and receive work authorization and advance parole.
  • Work authorization for spouses of H-1Bs. Finalize pending regulation.
  • Improve the L-1 adjudicative process:
    • Release of guidance on L-1Bs.

Presidential Memorandum on Visa Modernization – Further Discussion

  • Recapturing permanent resident numbers based on numbers allocated by Congress but left unused. When the government is unable to issue the allocated immigrant visa numbers for preference immigrants in a particular fiscal year, despite sufficient demand for such immigrant visa numbers, then the Department of State will ensure those unused immigrant visa numbers are used in subsequent years, in order to better effect Congressional objectives.
  • Derivative spouses and children not counted toward preference quotas.
  • Other important issues related to help revise the visa process for businesses.

Compliance Concerns with the extension of Deferred Action

Extensions of temporary relief for workers already in the U.S. could make their status more confusing to employers and put business owners in an untenable position with regard to employment eligibility verification compliance. Employers are particularly vulnerable when a current employee comes forward and reveals that s/he has been working for the company under a false identity and asks the employer to provide evidence of his/her employment history in order to take advantage of Executive Relief. An employer faces civil and potentially criminal liability for past hiring of unauthorized workers and also may face discrimination charges for hiring newly documented workers who previously presented fraudulent documents. Additionally, employers who do provide documentation to unauthorized workers may be identified as a target for future government enforcement activity.

Legislation to permanently address many of the items identified in the President’s executive action is still very much needed. We will continue to monitor and bring our readers updates as these initiatives, and reactions to them, unfold.