Header graphic for print

EB-5 Insights

Where Government Policies and Business Realities Converge

Posted in National Visa Center, USCIS, Visa, Visa Bulletin

In June/July 2017, the National Visa Center (NVC) issued notices for a large number of the immigrant visa cases, which had been previously confirmed completed and awaiting interview scheduling by NVC. As a reminder, in October of 2016, NVC began issuing immigrant visa fee bills and processing cases when their priority date became current based on Chart B ‘Dates for Filing’ of the bifurcated U.S. State Department Visa Bulletin (Click here for Chinese version).  However, the newly issued notices for the previously completed cases confirmed that the I-526 petition was transferred from USCIS to NVC; and requested the submission of the immigrant visa applications (Forms DS-260) and all supporting documents anew for each one of these cases.

We have now received clarification that these notices were issued in error. NVC is currently in the process of updating the information regarding such cases, where the submission was already made and acknowledged completed by NVC, if the case priority date has again become current per Chart B of the Visa Bulletin. We have received confirmation that NVC’s notification regarding application and document requests for such cases may be ignored.

After NVC reviews each case’s status, NVC will send instructions to the agent if any documents that were previously accepted need to be re-submitted. Otherwise, cases that were completed and waiting for an interview appointment will return to the interview queue under their original completion date and applicants and their attorneys/representatives will receive a new notification letter.

The NVC will confirm when these previously retrogressed cases have been restored, at which time NVC will be better able to answer detailed questions about a specific case’s status, which, based on the agency’s estimate, should take approximately two weeks. GT will continue to monitor the situation and provide updates regarding the NVC’s progress.  Please subscribe to this blog for updates.

*Not admitted to the practice of law.

Posted in Department of State, Executive Order, Travel

On July 14, 2017, Judge Derrick Watson from the Hawaii District Court expanded the definition of “close familial relationship” to include grandparents, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins.

In addition, Judge Watson ruled that for refugees, a bona fide relationship with an entity can include a U.S. resettlement agency that has issued a “formal assurance.”  In this situation, the U.S. cannot block entry of a refugee.

To read previous alert, click here.

Posted in Awards & Recognitions, Immigration

Greenberg Traurig’s Business Immigration & Compliance Practice has been recognized by The Legal 500 United States 2017 Guide (Guide) in the area of “Labor and Employment – Immigration.”  GT immigration attorneys Laura Reiff, Kate Kalmykov, Ian Macdonald, Pamela Mak, and Martha Schoonover have once again been recommended by The Legal 500 United States 2017 editorial.  The Guide highly recognizes five GT attorneys as elite “Leading Lawyers,” including the firm’s Labor and Employment – Immigration attorneys, Reiff and Schoonover.  This ranking recognizes practice area teams and practitioners who are “providing the most cutting edge and innovative advice to corporate counsel.” The elite “Leading Lawyers” rankings are based on feedback from 250,000 clients worldwide, law firm submissions, and interviews with private practice lawyers, in addition to Legal 500’s independent research in the legal market. Additionally, The Legal 500 recognized Reiff in its “Hall of Fame.”  This recognition is awarded to individuals who receive constant praise from their clients for continued excellence.

To read the complete article, please click here.

Posted in Department of Homeland Security, Travel

The Department of Homeland Security (DHS) released FAQs for those affected by the recently reinstated travel ban. Earlier last week, the Department of State released their own set of FAQs regarding implementation of the travel ban during visa processing. DHS will be responsible for admitting persons entering the United States and the FAQs on its website will answer questions many people may have.

Greenberg Traurig will continue to monitor new developments. For more information, please contact us or subscribe to this blog.

Posted in EB-5 Legislation, EB-5 Program, USCIS

On June 30, USCIS released its Annual Report 2017 to Congress on matters relating to its mission – “Congress charged us with the duty to aid applicants and their sponsors who are experiencing difficulties applying for immigration benefits with U.S. Citizenship and Immigration Services (USCIS). In addition, Congress bestowed on us the responsibility of identifying trends and ongoing problems in the administration of our immigration system and, where possible, making recommendations on how to solve those problems.”

Specific to EB-5, USCIS identified the following Ongoing Concerns (at pp 32-33)-

Ongoing Concerns

Short-Term Regional Center Reauthorizations. Legislative efforts to reform the EB-5 program have stalled over numerous issues, including the methodology for determining TEAs, the two-tiered investment framework, and effective dates for any new provisions. In the meantime, Congress has reauthorized the Regional Center program in a series of short-term extensions. These short-term extensions trigger filing surges by investors seeking to secure a place in the queue before the minimum investment amount is increased or changes are made to other provisions. They also contributed to delays in updating EB-5 regulations as the agency yielded to signals from Congress that it intended to make statutory changes to the program. As this report was being finalized, the Regional Center Program was extended to September 30, 2017, without change.

Regulatory Reform. In late 2016 and early 2017, USCIS advanced two EB-5 regulatory proposals that would: (1) adjust the minimum qualifying threshold investment amount for inflation from $1 million to $1.8 million; (2) increase the investment threshold for TEAs from $500,000 to $1.35 million; and (3) reform the TEA designation process to prevent abuse. Members of Congress and stakeholders have expressed concern that the current regulations unfairly allow some Regional Centers to qualify their projects for the reduced EB-5 threshold investments in an otherwise low employment area.

EB-5 Backlogs. The EB-5 program continues to attract high net-worth foreigners on a worldwide basis, and disproportionately from China. As a result, processing times are long and are getting longer, currently at 16 months for Form I-526, Immigrant Petition by Alien Entrepreneur and 27 months for Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status. As of September 30, 2016, DOS reported there are just over 10,000 approved investor petitions awaiting an immediately available immigrant visa. The IPO also reported it received 4,395 Forms I-526 in the first quarter of FY 2017, and attributed this surge to the then-looming sunset of the Regional Center program scheduled for December 5, 2016. However, the oversubscription of the EB-5 category by Chinese nationals specifically is significantly larger than it appears. Historical data reveal that, on average, two dependents accompany each principal EB-5 investor to the United States. As such, the roughly 10,000 approved EB-5 petitions represent approximately 30,000 foreign nationals (including spouses and qualified dependents) currently awaiting immigrant visa issuance.

Additional examination of Form I-526 data reveals that as of September 30, 2016, USCIS had a  pending inventory of 20,804 petitions. With an 81 percent petition approval rate in the first quarter of FY 2017, using the ratio of three immigrant visas for every I-526 petition approved, the oversubscription of the EB-5 category grows even larger, adding another 58,043 eligible investor immigrants in USCIS’ current pending inventory. Taking together the 30,000 likely immigrants currently awaiting immigrant visas with DOS and the pending petitions at USCIS, there are now approximately 88,000 intending EB-5 investor immigrants worldwide—far in excess of the maximum annual statutory allocation of 10,000 immigrant visas to this employment preference category. EB-5 immigrant visas remain immediately available to nationals of all countries except China, whose nationals will likely wait 10 years or longer for their EB-5 immigrant visas due to oversubscription, absent an increase in or recalculation of the annual quota.

The Ombudsman will continue to examine the EB-5 program, engaging USCIS and stakeholders as the agency implements any statutory changes, considers regulatory changes, and expands its compliance activities.

The report ‎notably includes information that addresses DHS’s efforts to address concerns raised by allegations of fraud and backlog issues. Specifically, the IPO has the authority to employ 247 individuals, but 90 positions are still unfilled. In addition, DHS, along with the SEC, DOJ, and FBI, are working together to address fraud concerns, including conducting 250 site visits to verify information and confirm the EB-5 program is fulfilling its purpose.

GT will continue reviewing the Ombudsman report. Please subscribe to this blog for updates.

Posted in Department of Homeland Security, Department of State, Executive Order, Travel, U.S. Customs and Border Protection (CBP)

On Monday, June 26, 2017, the Supreme Court of the United States partially revived part of President Trump’s second Executive Order (EO-2)  mandating a temporary travel ban from six Muslim-majority countries for 90 days, which will be in effect on June 29, 2017. EO-2 also sought to suspend the U.S. Refugee Admissions Program and limit the number of refugees in this fiscal year.  The Supreme Court also granted certiorari to review the lower court decisions of the Fourth and Ninth Circuits that issued injunctions prohibiting the implementation of President Trump’s EO-2 beginning March 26, 2017.  Oral arguments are scheduled to take place in the Fall of 2017, when the Supreme Court’s next term begins.

President Trump issued EO-2 on March 6, 2017, which, among other things, restricts entry of nationals from six designated countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—for a temporary period of 90 days.  Iraq, which appeared in President Trump’s first Executive Order (EO-1), was removed from EO-2 because Iraq agreed to provide additional information about visa applicants to the United States, and accept the return of Iraqi nationals who were ordered removed from the United States. EO-2’s 90-day temporary travel ban was originally set to begin on March 16, 2017, and expire on June 14, 2017.  On June 14, President Trump issued a memorandum to Executive Branch officials declaring the effective date of EO-2 to be the date on which the lower courts’ injunctions are lifted or stayed.

At issue in the Supreme Court’s decision today are Sections 2(c) and 6 of EO-2.  Section 2(c) calls for the 90-day temporary travel ban prohibiting the entry of nationals from the six-Muslim majority nations to the United States. In EO-2, President Trump determined that the temporary travel ban of nationals from these six countries was necessary to ensure that dangerous individuals did not enter the United States while the United States developed “adequate standards” for applicants who are seeking visas to enter the United States. Section 6 freezes the U.S. Refugee Admissions Program and prohibits the admission of refugees into the United States.

In today’s decision, the Supreme Court held that President Trump can enforce the 90-day temporary travel ban that prohibits entry of nationals from the six designated countries “who lack any bona fide relationship with a person or entity in the United States.” The Supreme Court limited Section 2(c)’s scope, stating that this section “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” The Supreme Court held that the same standard should be applied to Section 6, which bars refugees from entering the United States. Specifically, Section 6 “may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States.”

The Supreme Court did not exhaustively list what sorts of credible claims of a bona fide relationship with a person or entity in the United States qualifies to be removed from EO-2’s purview, but noted that the relationships at issue in the present cases qualified. Specifically, the Supreme Court noted that individuals who were subject to the travel ban of EO-2 must have a close familial relationship with a person in the United States. “A foreign national who wishes to enter the United States to live with or visit a family member . . . clearly has such a relationship.” For entities, the individual must have a “formal, documented” relationship with the entity that was not formed simply to evade the EO-2’s reach. Foreign nationals who were accepted into a college or university, or accepted an offer of employment from an American company would qualify as a credible claim of a bona fide relationship according to the Supreme Court. Section 2(c)’s 90-day temporary travel ban begins today, June 29, 2017, and will expire on Sept. 27, 2017.

While it is not clear how U.S. Department of State and U.S. Customs and Border Protection will interpret and enforce the Supreme Court’s decision today, employers should note that a foreign-national employee from one of the six designated countries may be refused an employment visa or admission into the United States if the foreign national does not have a credible claim of a bona fide relationship with a U.S-based person or an American entity. It is important for impacted foreign-national employees who plan to travel internationally during the next 90 days to carry with them evidence of their employment relationship, which can include a signed offer of employment, employment verification letter, and recent pay statements, among other documents. Foreign-national students who plan to travel internationally may also carry with them their Form I-20 and a letter of enrollment issued by the academic institution. Finally, in light of this decision, for impacted individuals to secure a visa at a U.S. Consulate abroad or gain admission into the United States it is important to be able to document a close familial relationship with an individual in the United States. The U.S. Department of Homeland Security confirmed today in a statement that it will release additional details, particularly to potentially impacted nationals, on implementing EO-2 after consulting with the U.S. Departments of State and Justice.

Greenberg Traurig will continue to monitor events surrounding the Supreme Court’s decision and provide updates relating to relevant agencies in connection with the now revived EO-2.

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

As previously reported, the Supreme Court of the United States lifted the injunctions that were granted by the Fourth and Ninth Circuits after President Trump issued his second Executive Order mandating a temporary travel ban. This means that the second Executive Order (EO) is now in effect as of June 29.

The injunctions for the travel ban were issued for three sections: 1) 90 day suspension of travel for nationals from the following six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen (Section 2(c)); 2) 120 day suspension of refugee admission into the United States (Section 6(a)), and 3) the reduction of the refugee cap (Section 6(b)).  Other parts of the EO were not addressed in the injunctions, but many were nevertheless effectively moot if those two sections were not in effect.

The Supreme Court, in lifting the injunctions on the EO, narrowed the scope of application for Sections 2(c), 6(a), and 6(b).  Specifically, those sections will only apply to nationals from the six designated countries “who lack any bona fide relationship with a person or entity in the United States.” This means that the travel ban and refugee admission sections will not apply to those who have a bona fide relationship with a person or entity in the United States. Specifically, the Supreme Court gave examples of what bona fide relationship means, which are the following:

  1. For individuals:  a close familial relationship.
  2. For entities:  a relationship that is formal, documented and formed in the ordinary course, and could include students and nonimmigrant workers.

The Supreme Court did not clarify how the bona fide relationship will be determined, by what entity it will be determined, and whether there will be any changes related to entry into the United States or the visa application process. The Department of Homeland Security and the Department of State have not yet issued any guidelines, but it is worth noting that the Supreme Court, in its analysis, references a waiver that a foreign national may apply for, on a case-by-case basis, if he or she can meet the criteria that denial of entry would: 1) cause undue hardship; 2) the entry would not pose a threat to national security, and 3) it would be in the  national interest for the person to enter the United States.

Commonly Asked Questions

Questions on International Travel/ Entry into the United States:

  • Who is affected?

Nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen who do not hold green cards or other valid visas, and do not have a bona fide relationship with a person or entity in the United States as of June 26, 2017.

  • What can you expect when traveling?

It is likely that there will be heightened security.  If you are traveling with a passport from one of the six countries, it is important to carry additional documents to prove your bona fide relationship to a person or entity in the United States.  Expected guidance from government agencies should be published shortly.

  • What if I am traveling with a passport from one of the six countries, but I have a valid visa stamp?

You may be permitted to travel into the United States, but CBP may want to see documents to prove your bona fide relationship to a person or entity in the United States.

  • What if you are a dual national?

The EO specifically states that dual nationals using a passport that is not from one of the six countries will not be affected, though you may be subject to additional scrutiny.

  • Should I apply for Global Entry?

You may use global entry or sign up if you are eligible.

  • Are Lawful Permanent Residents (LPRs) affected?

They will not be affected by the travel ban.

  • Is this Permanent?

The EO has been reinstated as of June 29, for a period of 90 days for the ban relating to nationals of the six listed countries and 120 days for refugees.  It can either then expire, or be extended per the president. The Supreme Court will hear arguments on the Ninth and Fourth Circuit cases in October, if the cases are not then deemed to be moot.

  • What if you are traveling to the United States from one of the six countries but not a national?

Be prepared for additional screening.

  • Will the list expand?

Possibly. The EO gives authority to add and remove countries.

Questions on Visa Issuance:

  • May I apply for a visa stamp?

Yes, if you are not using the passport of one of the six countries.

  • What if I do not have a second nationality? Will I qualify for a waiver?

The Department of State has not yet issued guidance, but we expect that guidance will be issued to allow an applicant who is a national of one of the six countries to prove a bona-fide relationship as of  June 26 to an individual or entity in the US.

  • What can I expect from my visa interview appointment if I have traveled to one of the six countries or have a second passport from one of the six countries?

Additional screening procedures are forthcoming.

  • Will I still qualify for a visa interview waiver if I am extending my visa?

Various consulates are still utilizing the drop-box option for those who qualify.

  • How do I know what each U.S. Consulate requires or if procedures are different?

You may check with each individual consulate website.

GT will continue to provide updates as more information becomes available.

Posted in Awards & Recognitions

Greenberg Traurig’s Laura Reiff and Kate Kalmykov were recently recognized by Human Resource Executive, in a report researched by the Lawdragon organization for their work in immigration law. For the seventh consecutive year, the “Nation’s 20 Most Powerful Employment Attorneys – Immigration” list includes Laura Foote Reiff and a first time appearance in the publication’s list of the “Nation’s 40 Most Powerful Employment Attorneys – Up-and-Comers,” for Kate Kalmykov.

In addition to Immigration, seven additional attorneys are recognized by Human Resource Executive for their work in employment and traditional labor law.  Among those included on that list is Peter W. Zinober named to the “Hall of Fame” since 2014, the publication’s most coveted honor. Since 2013, the “Nation’s 100 Most Powerful Employment Attorneys” list includes Charles S. Birenbaum and James N. Boudreau, and, this year, David Long-Daniels and Jonathan L. Sulds are also included. Terence P. McCourt is recognized among the “Nation’s 20 Most Powerful Employment Attorneys – Labor” for the second consecutive year. Todd D. Wozniak appears again on the publication’s list of the “Nation’s 40 Most Powerful Employment Attorneys – Up-and-Comers.”

To read the full press release, click here.

Posted in EB-5, Eb-5 Regional Center, I-924, USCIS

As of May 26, 2017, USCIS is processing Form I-924 applications filed on or before Sept. 16, 2015. This reflects a greater than 20-month processing time for Form I-924. This is most likely the longest processing time in the history of the Regional Center EB-5 Program, and is certainly the longest processing time USCIS has publicly acknowledged (the California Service Center, which previously adjudicated Form I-924, did not publicly post processing times for Form I-924s).

The long processing times for Form I-924 have a detrimental effect on the ability of the Regional Center EB-5 Program to continue to be viable. For instance, many investors do not want to invest in a new commercial enterprise which has not been approved by USCIS through an exemplar Form I-924.  However, in order to be eligible to receive approval of an exemplar Form I-924, the application must include more details than a hypothetical or actual project, and the project itself must be “shovel ready.” In order for a project to be “shovel ready,” the project typically has to be ready to proceed with substantial construction at the time of filing the exemplar Form I-924. One way to demonstrate this is to show that all financing (save for the EB-5 financing) is in place and all permits necessary for the project to move forward have been secured.

Therein lies the tension between USCIS’ processing times and the standards of approvability for an exemplar Form I-924. If it takes over 20 months for an exemplar Form I-924 to be approved, and the project was ready to be constructed at the time of filing, the project may be fully constructed by the time the exemplar Form I-924 is finally approved. This is a big issue for projects which require EB-5 financing to be completed. If receipt of that EB-5 financing is contingent upon the approval of the exemplar Form I-924 (or approval of a Form I-526, which takes longer to process than an exemplar Form I-924), the project likely will not be able to move forward until such approval is received. However, USCIS, during its adjudication of the exemplar Form I-924, will likely issue a request for evidence on why the initial timeline for the project has not been met. Thus, these projects are stuck in a catch-22 where USCIS wants to see timelines adhered to which are contingent on receipt of EB-5 financing. Additionally, in the past two years legislation has been proposed to mandate approval of an exemplar Form I-924 prior to soliciting capital from investors or filing a Form I-526. The current Form I-924 processing times make clear this is an unworkable standard.

The current solution to this issue is the procurement of bridge financing sufficient to allow the project to proceed on an interim basis until USCIS adjudicates the exemplar Form I-924. If bridge financing cannot be obtained, the project and its investors may suffer as a result of USCIS’ increasing processing times.

Posted in EB-5, USCIS

USCIS recently announced the release of a new edition of Form I-829, with the new edition dated April 21, 2017. Starting on July 24, 2017, USCIS will only accept the April 21, 2017, edition.  Until then, investors can use the May 7, 2015 edition. Both editions of Form I-829 are available to download at no cost on the USCIS website. The revised Form I-829 more closely resembles the requests and structure of the revised Form I-526. For instance, the Form I-829 now requests the receipt number of the approved Form I-924 associated with the Form I-829. Additionally, the revised Form I-829 has space for listing multiple job-creating entities, similar to the revised Form I-526. The revisions to the Form I-829 appear consistent with USCIS’ desire to extract more information via forms for EB-5 petitioners.

The Form I-829 is important because it is the last step in the journey of an EB-5 investor. The Form I-829 should be accompanied by evidence that (i) the investor has invested, or was actively in the process of investing, the required amount of capital, (2) the investor sustained this investment throughout the period of conditional permanent resident, and (3) the new commercial enterprise created or can be expected to create, within a reasonable time, at least 10 full-time positions for qualifying employees. Upon approval of the Form I-829, investors receive unconditional permanent residency.