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EB-5 Insights

Where Government Policies and Business Realities Converge

Posted in President Trump's Administration, Travel

The U.S. Supreme Court, on June 26, 2018, upheld President Trump’s Proclamation on the Travel Ban in Trump v. Hawaii. As previously blogged, the Proclamation was issued by President Trump on Sept. 24, 2018. It was then blocked by the District Court, after which the Ninth Circuit partially stayed, and on Dec. 4, 2017, the Supreme Court issued an order allowing the Proclamation to go fully into effect.

Chief Justice Roberts delivered the opinion of the Court, with Justice Kennedy and Justice Thomas concurring. Justice Breyer dissented, joined by Justice Kagan, while Justice Sotomayor dissented, joined by Justice Ginsburg. Chief Justice Roberts begins by reiterating the timeline for the Proclamation, as well as the two previous Executive Orders on the Travel Ban. A summary of the two Executive Orders can be found in our blog posts “Summary of Executive Order: Protecting the Nation from Terrorist Attacks by Foreign Nationals” and “New Travel Ban Order to Temporarily Halt Entry for Those Seeking New Visas from 6 Muslim-Majority Countries.”

Chief Justice Roberts discusses the two issues at hand: 1) whether the president has the executive power to limit the entry of certain individuals, and 2) whether this Proclamation in particular violated the Establishment Clause. The Supreme Court held that 1) the president does have this broad authority and that the issuance of the Proclamation (as well as its contents) are in his authority, and 2) the contents of the Proclamation do not violate the Establishment Clause, as the plaintiffs have alleged. The discussion is below on the two issues.

First Issue: Does the President have the authority to issue the Proclamation?

Chief Justice Roberts addresses the plaintiffs’ argument that the Proclamation contravenes provisions in the Immigration and Nationality Act (INA), and that the president does not have the authority to issue the Proclamation under the INA because the authority only allows a halt of entry for those entering to engage in harmful conduct and that it discriminates on the basis of nationality in the issuance of immigrant visas.

The Court addresses these arguments by citing Section 1182(f) of the INA, where it states:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Chief Justice Roberts analyzes the Proclamation’s contents and writes in the opinion that President Trump met all the requirements as set forth. He cites the contents of the Proclamation, including the thorough review of the countries, the focus on exchange of information between countries, and also the review period that has allowed for countries to be removed from the list once they were deemed compliant. The Court cites examples of previous administrations that also issued Proclamations to suspend entry into the United States for certain individuals.

The plaintiffs also argued that Section 1182(f) does not give the president the authority to surpass congressional policies that have been laid out, specifically the vetting system designed by Congress to determine admissibility, and also the information sharing system created through the Visa Waiver Program. The Court addresses both issues and notes that the vetting system is only enhanced by the Proclamation and that the focus of the Proclamation is on the foreign country’s ability to provide the information needed. Second, the Visa Waiver Program is in place for countries that have already fulfilled the information exchange process, and that it does not necessarily apply here. For this sub-argument, the Court’s opinion is that the Proclamation only supplements the efforts of Congress.  In addition, the Court cites to historical practice of instances where Proclamations have been issued to limit the entry of certain groups of people.

Thus, the holding on the first issue is that the Proclamation is squarely within the scope of President Trump’s authority under the INA.

Second Issue: Does the Proclamation violate the Establishment Clause of the First Amendment?

The plaintiffs also claim that the Proclamation violates the Establishment Clause of the First Amendment because it targets Muslims/those in the Islamic faith. The Court looks at this issue and discusses statements made by the president and his advisors to understand the intent and rhetoric behind the Proclamation. The Court reviews the timeline and statements made by the president and his advisors and concludes “the President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf.”  In considering the statements made by the president, the Court also considers the president’s authority. In this particular case, the Court finds that the Proclamation has a legitimate purpose – it prevents entry of nationals who cannot be adequately vetted and induces other countries to improve their practices. Because the Court does not find any text on religion within the Proclamation and it notes that the policy only covers eight percent of the world’s Muslim population, the Court does not find a violation of the Establishment Clause of the First Amendment.

In concluding the opinion, Chief Justice Roberts writes that the activities surrounding the Travel Bans, starting with the Executive Orders, have already supported the fact that it was issued in response to a legitimate national security interest. First, three Muslim-majority countries have already been removed from the list of covered countries. Second, the Proclamation includes text that will provide exceptions to certain individuals from the listed countries such as permitting students and exchange visitors from Iran). Third, the Proclamation includes the ability to apply for a waiver.

Posted in EB-5, EB-5 Immigrant Investor Program, USCIS

Today, the U.S. Senate Committee on the Judiciary held an oversight hearing on the Immigrant Investor EB-5 program.  The well-attended full committee hearing focused on reported fraud within the current program and the path forward for EB-5.  The sole witness was USCIS Director Francis Cissna.

There were a few takeaways from the hearing, including:

  • Director Cissna indicated that the proposed EB-5 Modernization and Regional Center regulations may take beyond the current September program authorization date to accomplish. He indicated that other agency priorities are competing for USCIS resources at the current time.
  • When asked by Sen. Graham (R-SC) if he supported the EB-5 program, Director Cissna responded, “it’s lawful.”
  • Director Cissna stated that without needed reforms to the program, he would recommend “letting it expire.”
  • Director Cissna also advocated for legislative reform to address needed authorities for USCIS and to make programmatic changes.

The Members seemed open to reform legislation and continuation of the program citing the economic success of EB-5 in their states.

The hearing was extended due to extraneous discussion of the Administration’s “Zero Tolerance” border policies.

For more on the hearing, please visit https://www.judiciary.senate.gov/meetings/citizenship-for-sale-oversight-of-the-eb-5-investor-visa-program

Posted in I-829, USCIS

On June 11, 2018, USCIS announced that Petitioners who file Form I-829 Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, will receive a Form I-797 receipt notice that can be presented with their Form I-551, Permanent Resident Card, as evidence of continued status for 18 months past the expiration date on their conditional Permanent Resident Card. Previously, USCIS only issued receipt notices that would be valid for 12 months past the expiration date on the conditional Permanent Resident Card. USCIS made the change from 12 to 18 months to reflect the current processing times for Form I-829, which have increased over the past year.

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Posted in I-829, USCIS

On May 2, 2018, the United States Citizenship and Immigration Services (USCIS) issued a Policy Alert regarding an update made to the USCIS Policy Manual related to the documentation for conditional permanent resident (CPR) status provided by USCIS to immigrant investors with pending I-829 petitions.  Every EB-5 investor with CPR status must file an I-829 petition to remove conditions by filing a Form I-829 petition within 90 days of the expiration of the two-year CPR status. USCIS then issues receipt notices to each EB-5 investor and dependent family member upon receiving the properly filed I-829 petition. The I-829 receipt notices evidence continuing CPR status (including travel and employment authorization) for an additional year after the expiration of the CPR card until the I-829 petition is adjudication or an order or removal becomes final. The Policy Alert explains that the original guidance which was previously found in Chapter 25.2 of the Adjudicator’s Field Manual (AFM) and not yet published in the USCIS Policy Manual, is now reaffirmed in Volume 6, Part G of the Policy Manual.

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

Today, the Office of Management and Budget via the Office of Information and Regulatory Affairs published the Spring Unified Agenda of Regulatory and Deregulatory Actions . This bi-annual publication informs the public of regulations under consideration or planned by federal agencies.  Agencies are not bound by these postings, but transparency in the rulemaking process is important and, as such, the Unified Agenda is an important regulatory guide.

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Posted in EB-5, EB-5 Immigrant Investor Program, I-829, Immigrant Investor, USCIS

Due to a recent system conversion at the United States Citizenship and Immigration Services (USCIS), all I-829 receipt notices and ASC Appointment notices are now delayed 90 days or more.  This may be dismaying for many EB-5 investors and their dependent family members who may have waited a long time to reach this final step in the EB-5 process. Since the I-829 petition can only be filed 90 days prior to the expiration of the EB-5 investor’s conditional permanent resident (CPR) status, the 90+ day delay in the issuance of receipt notices on the part of USCIS is at the top of the list of problems plaguing the I-829 process right now. It appears to be especially problematic for those I-829 petitioners and dependents who are located outside of the United States at the time the I-829 petition is filed.

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Posted in EB-5 Program, Retrogression, U.S. State Department, Vietnam Retrogression

The U.S. State Department has released its monthly Visa Bulletin for the month of May 2018.  Notably, the priority dates for the Regional Center EB-5 category for nationals of Vietnam have become subject to retrogression.  As of May 1, 2018, only those approved Vietnamese EB-5 investors under the Regional Center Pilot Program whose EB-5 petitions were filed earlier than July 22, 2014 will be able to proceed with the processing of their immigrant visa applications.  Accordingly, the U.S. Consular Post in Ho Chi Minh City will cease scheduling immigrant visa interviews for investors with priority dates on or after July 22, 2014.  USCIS will likewise not schedule interviews or otherwise process or approve adjustment of status applications with these priority dates.  Given this development, we encourage approved EB-5 applicants from Vietnam to file their immigrant visa and adjustment of status applications prior to May 1, 2018.

As a note, U.S. Citizenship and Immigration Services publishes monthly guidance regarding whether it will allow reliance on Chart B – Dates for Filing, for the purpose of filing of adjustment of status.  Chart B is included within the monthly Visa Bulletin.  GT will monitor USCIS announcement and provide an update as soon as this information is released for May of 2018.  However, importantly, USCIS has not allowed reliance on Chart B for the purpose of filing of adjustment of status applications in the employment-based categories this fiscal year.  Please see our FAQ and additional information (recent blogs: What Every Vietnamese EB-5 Applicant and Agent Need to Know About Retrogression and State Department Provides Update Regarding Retrogression for Vietnam) provided with respect to retrogression of immigrant visa availability for Vietnamese EB-5 regional center investors.  GT will continue to provide updates on visa processing and availability.

Posted in Department of State, Immigrant Visa, Uncategorized

The Department of State (DOS) has noticed for public comment an Information Collection Review – Electronic Application for Immigrant Visa and Alien Registration  that would require immigrants coming to the United States to submit five years of social media history. This effort is viewed by many as a component of “enhanced vetting” on behalf of the Administration following domestic terrorist activities.

DOS stated its intention to require nearly all immigrant and non-immigrant visa applicants to the United States to submit five years of social media handles, as identified by the government, with the option of requesting additional information for platforms not explicitly required.

If the proposed requirements are approved by the Office of Management and Budget (OMB), applicants would be required to list social media platforms, provide account names, and give applicants the ability to voluntarily provide additional information on social media activity not covered by the proposed rule in addition to other personal information.

For those interested in tracking the proposed rule, please use the OMB control numbers listed below.

For assistance submitting comments, please contact your Greenberg Traurig attorney.

Posted in Department of State, EB-5, EB-5 Processing Times, Green Cards, Vietnamese

As you may know, the EB-5 immigrant visa category is expected to retrogress for Vietnam this year.  Below is a guide to frequently asked questions pertaining to the announcement of retrogression.

1. Is there a mechanism by which my child or children may continue to be eligible for immigrant visas as my dependents based on my approved I-526 petition and if so, how does it work?

Yes, Child Status Protection Act (CSPA) was enacted in order to protect children of petitioners against lengthy petition processing times. Where its protection applies, the dependent’s age is “frozen” under that of 21, allowing the child to obtain permanent residence as a derivative beneficiary of the I-526 petition by the parent. The determination of whether or not the protection of CSPA applies is made when the petition priority date becomes current.  At that time, the number of days the petition was pending is deducted from the child’s biological age.  Assuming the resulting number is under 21 (even if it’s days shy), the CSPA protections apply and the child has one year to seek to acquire his or her immigrant visa.

2. What if I have a child who may turn 21 after my I-526 petition has been approved?  How do I determine whether my child can avail themselves of the protections of CSPA

If the I-526 petition is approved prior to the retrogression taking effect, the priority date of the petition will still be current. If this is the case, the child’s “CSPA age” would be under 21, and the child would have one year to seek to acquire his or her permanent resident status.  The Department of State (DOS) has previously issued guidance that the following can serve to qualify as “seeking to acquire” an immigrant visa:

  • Submission of the I-485 Adjustment of Status Application (“AOS”, “adjustment of status”);
  • Submission of the DS-260;
  • Payment of the immigrant visa fee bill; Submission of a DS-230 to the NVC;
  • Submission of a Form I-824, Application for Following to Join Beneficiary, where the child is located abroad and the I-526 investor is located in the U.S.; or
  • Other Steps

It is important to remember each of those activities listed by themselves would serve to qualify under the CSPA requirements as “seeking to acquire” an immigrant visa, preserving the child’s CSPA protection.  Where the petition was approved and forwarded to the National Visa Center (NVC), the recommendation will be to pay the visa fee bill via cashier’s check, or electronically where possible. Alternatively, case law and DOS guidance show that repeated contacts and requests to DOS, including continuing inquiries and specific expression of intent to proceed can also qualify as satisfying the requirement of “seeking to acquire.”  Finally, DOS guidance states that, it may be possible to satisfy the CSPA requirements even after the priority date has once again become current after the retrogression announcement.

3. What do I do if I haven’t received a fee bill from the NVC but my I-526 Petition was approved before the retrogression announcement was made? 

If you have a dependent child who may potentially age-out (those children over the age of 17 at the time of I-526 Petition approval) you should contact your attorney once the retrogression is announced to take steps to preserve the dependent child’s age for immigration purposes.

4. What do I do if my I-526 Petition was approved after the retrogression cut-off date is announced?

You will be subject to retrogression. Accordingly, once your I-526 Petition is approved you must continually check the DOS visa bulletin each month to find out if your priority date is current.

5. What do I do if I received a fee bill from NVC prior to the announcement of the retrogression cut-off date but my dependents have not?

You can make a payment for you and your dependents by sending a cashier’s check via certified mail to the NVC using the case number of the principal application (the investor).

6. If I have paid my fee bill and filed my DS-260 application, what action can I expect once retrogression is announced?

You will likely not be scheduled for an immigrant visa interview unless your priority date is prior to the cut-off date listed in the DOS visa bulletin. You will have to continually check the DOS visa bulletin each month to find out if your priority date is current.

7. If I reside in the U.S. in lawful status and have not yet filed my adjustment of status based on my approved I-526 Petition, can I file my adjustment of status after the retrogression cut-off date?

No. You will have to continually check the DOS’s visa bulletin each month to find out if your priority date is current and the filing of the adjustment of status application is permissible.

8. I reside in the U.S. in lawful status and have filed my adjustment of status based on my approved I-526 Petition prior to the retrogression announcement, what is my status? Can I remain in the U.S. and work and travel? Do I have to renew my advance parole and employment authorization?

Yes, you can remain in the U.S. and continually renew your advance parole (travel permission) and employment authorization so long as your adjustment of status remains pending. USCIS will hold off on adjudicating the adjustment of status application until your priority date is current.

9. Where can I check my priority date?

The DOS announces it in each month’s visa bulletin on this website. Additionally the DOS maintains a “Priority Date Checker” which is an interactive form that will automatically populate the cut-off date applicable for you.  Please note that the monthly Visa Bulletin includes two charts: Chart A provides information regarding final adjudication cut-off dates, whereas Chart B provides cut-off information for AOS filings.  The USCIS website provides monthly updates with respect to whether it is accepting filings based on Chart B.

10. What is the estimated wait time due to retrogression?

At this time and until the retrogression announcement is made for Vietnam we do not know what the wait time will be.  Please check www.eb5insights.com for updates on this announcement from the DOS.

11. If I am eligible for cross-chargeability based on my spouse’s non-Vietnam nationality, are my children also eligible?

Yes.

We will continue to provide updates as we receive further information from the DOS and USCIS.

Posted in Department of State, EB-5, Retrogression, Vietnamese, Visa Bulletin

Each month, the Department of State (DOS) issues a visa bulletin which contains information regarding the availability of immigrant visas. The availability of immigrant visas is subject to numerical caps imposed by Congress, which limit how many foreign nationals may obtain immigrant visas each year. In the employment-based green card category Congress allots 140,000 immigrant visas (green cards) to be issued annually. The employment-based categories are subdivided into five preference categories:

  • EB-1: Priority Workers (Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers or Executives)
  • EB-2:  Professionals Holding Advanced Degrees and Persons of Exceptional Ability
  • EB-3:  Skilled Workers, Professionals, and Unskilled Workers
  • EB-4:  Certain Special Immigrants including Religious Workers
  • EB-5:  Immigrant Investors

No one country in each of the five categories is allowed to exceed more than 7 percent of the category per the requirement of 8 U.S. Code § 1153.

The employment-based fifth preference category “EB-5” is allotted approximately 10,000 immigrant visas annually. This quota includes principal applicants, as well as spouses and dependent children under 21 years of age. The visas are issued from Oct. 1 (the first date of the government’s fiscal year) until Sept. 30. On Oct. 1 of each year, the quota of visas is reset.

Sometimes, in order to deal with these numerical limits and when the annual quota is exhausted in a particular fiscal year, sometimes DOS has to establish a wait line that determines the order in which immigrant visas are issued. This wait line is referred to as “retrogression.” The DOS uses an applicant’s “priority date” to determine when an applicant can apply for an immigrant visa or file an adjustment of status application in the U.S.  An applicant’s priority date is based upon the day their I-526 petition was received by the United States Citizenship and Immigration Service (USCIS).  As you can see from the below example, the priority date is listed on the top of an investor’s I-526 approval notice.

In this example, our applicant has a priority date of 1/30/2017. The applicant then must check the DOS visa bulletin to find out if his or her priority date is current. If the visa bulletin lists the priority date as current, represented by a letter “C”, then the applicant can apply for a green card either through immigrant visa Consular Processing at the U.S. Embassy in their home country or through the filing of an I-485 Application for Adjustment of Status with the USCIS in the United States upon the approval of their I-526 petition. An applicant who applies for the green card in the United States through Adjustment of Status must be in valid non-immigrant visa status to do so. As part of the Adjustment of Status filing, the U.S. based applicant, as well as their dependent applicants, are entitled to receive work authorization through the issuance of an Employment Authorization Document (EAD), as well as travel authorization known as Advance Parole (AP).

APRIL 2018 Visa Bulletin

In addition to checking if a category is current, the applicant must also ensure that they are not born in a country which has exceeded the 7 percent allotment for immigrant visas for the particular fiscal year. If their country of birth is a country that has exceeded its yearly allotment then a wait line for filing a green card application develops, known as retrogression. When retrogression of priority dates occurs, then it is important for an applicant to check to see if they can file their green card application after their EB-5 petition is approved by checking the visa bulletin on a monthly basis. If a date is listed on the visa bulletin, an applicant can only file their application if their priority date is on or before the date listed on the visa bulletin. If the priority date is later than the date listed on the visa bulletin, the applicant will have to check back the following month when the DOS issues its next visa bulletin to see if their priority date has become current (i.e. if the applicant’s priority date is now earlier than the date listed on the visa bulletin). The dates in the visa bulletin will either move forward, back, or stay stagnant. Such changes will be reported monthly. These movements in the visa bulletin are based on the number of green card applications received during the previous month and the available spots remaining in the category. Likewise, sometimes the category can move forward if the other EB categories are underutilized because DOS then reallocates their numbers to the categories with backlogs. For example, if the EB-1 category is not used, EB-5 may benefit from a partial reallocation of the unused immigrant visa numbers.

At present, the EB-5 visa category is current for nationals of all countries with the exception of China. However, the DOS has informed EB-5 stakeholders that they expect the priority dates to retrogress for Vietnamese nationals, imminently. Using the approval notice above and a sample visa bulletin based on this information pasted below, we have created a sample visa bulletin for an applicant born in Vietnam with an EB-5 priority date of 1/30/2017. Based on our example below, the applicant will not be able to file their green card application because the EB-5 category in our example is not current except for applicants who filed their applications on or before Jan. 1, 2017.

SAMPLE VISA BULLETIN FOR MAY 2018

Likewise, if the total number of visas has been used up in a particular year in a particular category, the visa bulletin will note that the category is unavailable, which is represented by a “U”.  This can occur when the DOS determines no more immigrant visas can be issued at the present time.

While Vietnam’s immigrant visa processing is expected to retrogress along with the processing for the other, already retrogressed country Mainland China, other countries using the EB-5 visa will stay current, and will be able to proceed with their green card applications upon I-526 petition approval. Likewise, if an investor born in a country subject to a backlog is applying with their spouse who was in fact born in a country not subject to retrogression, the investor and their children can avoid the backlog by “charging” their green card processes to the country of birth of the spouse. This would enable them proceed with the green card application immediately upon the approval of the I-526 petition.

Those planning to apply for a green card from within the U.S., while still subject to retrogression, may be able to avail themselves of an earlier priority date established specifically for the filing of adjustment of status applications. It can be found in the monthly visa bulletin in Chart B, and USCIS provides monthly updates as to whether they allow the reliance on Chart B for this purpose. Finally, once the adjustment of status is filed, applicants can continue to remain in the U.S. for the duration of the application pendency as “Adjustment of Status” applicants without maintaining an underlying non-immigrant visa status. They will also be able to annually renew their EAD and AP to permit them to work and travel until their green card applications are adjudicated. If there is a movement in priority dates, they will have their petition already in queue for adjudication.

In the event of retrogression, NVC will hold the applications until the priority dates become current. Depending on the length of time the I-526 petition is pending and the extent of the backlog, children close to the age of 21 may lose their ability to derive from their parent’s application. In this case, they may need to apply for the EB-5 immigrant investor visa on their own or seek an alternative path toward U.S. immigration. Individuals with this concern should speak to an attorney. Likewise, individuals who spend a year or more in retrogression may also need to supplement their application at the time that their application becomes current with updated documentation such as new police certificates and medical examinations. Those subject to the backlog should contact their attorney to discuss alternative non-immigrant visa options to allow them to come to the U.S. while their EB-5 based green card is in process.