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EB-5 Insights

Where Government Policies and Business Realities Converge

By Greenberg Traurig on Posted in Awards & Recognitions

Ian R. Macdonald, co-chair of Greenberg Traurig LLP’s Immigration & Compliance Practice, as well as Jennifer Hermansky and Courtney B. Noce, shareholders in the practice, were each recognized by the National Law Journal (NLJ) with the 2019 Immigration Trailblazer award. The award recognizes movers and shakers in the legal industry who have made an impact in their sector through new strategies and innovative court cases. Macdonald, Hermansky, and Noce were featured in a special NLJ supplement that was published in early June.

To read the full press release, click here.

By Robert Y. Maples˘ on Posted in Department of Homeland Security, Immigration, President Trump's Administration, USCIS

Former Virginia Attorney General Ken Cuccinelli has been appointed acting director of USCIS, replacing Acting Director Koumans. Director Koumans replaced Director Cissna on June 3 as acting director.

Below is the USCIS release:

WASHINGTON— Department of Homeland Security Acting Secretary Kevin McAleenan today announced that Kenneth T. (Ken) Cuccinelli will serve as the new acting director of U.S. Citizenship and Immigration Services (USCIS), effective June 10, 2019.

Cuccinelli will lead an agency of 19,000 employees and contractors who are responsible for administering our nation’s lawful immigration system while protecting Americans, securing the homeland, and honoring our values. In fiscal year 2018 alone, USCIS adjudicated more than 8.7 million requests for immigration benefits.

“I am honored to be given the opportunity to lead U.S. Citizenship and Immigration Services at this critical time and serve alongside this agency’s dedicated workforce,” said Acting Director Cuccinelli. “USCIS has the extraordinary responsibility to administer and protect the integrity of our nation’s lawful immigration system. Our nation has the most generous legal immigration system in the world and we must zealously safeguard its promise for those who lawfully come here. I look forward to working with the men and women of USCIS to ensure our legal immigration system operates effectively and efficiently while deterring fraud and protecting the American people.”

Cuccinelli previously served as Virginia’s attorney general from 2010 to 2014. During his time as attorney general, he led the Commonwealth in fighting human trafficking. Additionally, he led efforts resulting in record enforcement against gangs, health care fraud, and child predators. Cuccinelli also served in the Senate of Virginia from 2002 to 2010 and has practiced law for nearly 25 years.

Cuccinelli earned a mechanical engineering degree from the University of Virginia, a law degree from Antonin Scalia Law School at George Mason University, and a Masters in International Commerce and Policy from George Mason University.

Cuccinelli and his wife, Teiro, grew up and live in Virginia and have seven children.

For more on USCIS, click here.

By Ian Macdonald and on Posted in Department of Homeland Security, Department of State, Visa

Under a new State Department policy, virtually all visa applicants to the United States are now required to submit information about social media accounts they have used in the past five years.

Applicants for immigrant and nonimmigrant visas must use the State Department’s Consular Electronic Application Center (CEAC) to complete online forms for nonimmigrant (DS-160) or immigrant (DS-260) visas. The Department has updated its immigrant and nonimmigrant visa forms to request additional information, including “social media identifiers,” from almost all U.S. applicants.

The new visa application forms list a number of social media platforms and require the applicant to provide any account names they may have had on them over the previous five years.

Applicants have the option of stating they do not use social media. However, failure to provide accurate and truthful responses in a visa application may result in denial of the visa by a consular officer. An individual’s social media footprint will provide consular officers with a snapshot of contacts, associations, habits, and preferences. Consular officers will likely look for inconsistencies and possible security concerns on a broad range of issues.

This action amplifies the measures outlined by the U.S. Department of Homeland Security in its September 2017 proposal calling for the review of social media records by all immigrants. This marks a significant shift from prior policy under the Obama Administration, which asked visa applicants to submit social media records on a voluntary basis.

In addition to their social media histories, visa applicants are now asked for five years of previously used telephone numbers, email addresses, international travel, and deportation status, as well as whether any family members have been involved in terrorist activities.

Under the new policy, both temporary visitors and those seeking permanent residence are required to fill out the new forms. Only applicants for certain diplomatic and official visa types will be exempted from this requirement.

Please consult your GT attorney for additional information and check back here for updates.

For more on social media and immigration policy, click here.

By Robert Y. Maples˘ on Posted in Government Accountability Office (GAO), President Trump's Administration, Uncategorized, USCIS, Visa

On May 31, the Congressional Hispanic Caucus announced, “Following CHC Request, GAO Agrees to Open Investigation into Record-Breaking Immigration Case Backlog at USCIS,” in which Chairman Castro stated the following:

My colleagues in the Hispanic Caucus and I look forward to reviewing GAO’s findings. We must ensure that USCIS is meeting its Congressional mandate and is adjudicating cases in a timely manner.

The full text of the U.S. Government Accountability Office letter can be found here.    

There has been increased dialogue on visa backlogs in recent weeks. See USCIS Responds to Bipartisan Senate Letter Regarding Case Processing Delays and USCIS Releases 2018 Statistical Annual Report

In May, EB-5 practitioners were unpleasantly surprised by a USCIS publication of dramatically increased adjudication times for I-526 petitions from 21 to 29 months to 29 to 45.5 months

The GAO estimates it will take five months to assemble the required team to conduct the analysis. In the interim, to engage in this process, interested stakeholders can contact GAO through the team members cited in the congressional correspondence.

Please check back, as updates on this and other matters are frequently posted.

By Robert Y. Maples˘ on Posted in USCIS

USCIS Deputy Director Mark Koumans has been appointed acting director following L. Francis Cissna’s departure. Mr. Koumans has experience in Custom Border Protection and the U.S. Foreign Service.

Prior to his exit from USCIS, former Director L. Francis Cissna released a report highlighting agency programs, workload and accomplishments, in which he states the following:

The 2018 USCIS Statistical Annual Report represents a key piece in our continued commitment to provide improved awareness of the nature and scope of work accomplished by the dedicated men and women of USCIS. … Following a long absence, we are again publishing an annual report, emphasizing our promise of full transparency and accountability to the American people.

In the last fiscal year, USCIS adjudicated more than eight million requests for immigration benefits, which is a 28 percent increase over the last five fiscal years. … USCIS also helped make the American dream become a reality for 757,000 new citizens, a five year high in new oaths of citizenship. The annual report also showcases the work our agency does to protect the integrity of our nation’s immigration through fraud detection, national security vetting, and administering E-Verify, a web-based system used to protect jobs for legal workers. We are proud of the good work accomplished by our dedicated staff to fairly and efficiently administer our nation’s legal immigration system, protect the homeland, and honor our values.

Please check back, as more information on this and other matters will be provided as events warrant.

For more on USCIS, click here.

By Jia Zhao on Posted in EB-5, EB-5 Industry stakeholder groups, EB-5 Program, Reform and Reauthorization of the EB-5 Regional Center Program

On May 17, 2019, EB-5 Industry stakeholder groups, led by the EB-5 Investment Coalition, U.S. Chamber of Commerce, The Real Estate Roundtable, IIUSA, Rural Alliance, Real Estate Board of New York, AILA, among others, submitted a joint letter to Senate and House Judiciary Committees leadership in support of principle reforms and reauthorization of the EB-5 Regional Center Program, which is set to expire on September 30, 2019.

Proposed reforms include-

  • A six-year reauthorization of the EB-5 Regional Center Program.
  • Enhanced integrity measures to ensure national security and fraud deterrence, such as conducting criminal background checks on individuals involved in regional centers, strengthening the regional center compliance measures, and increasing scrutiny of around immigrant issues involving fraud, misrepresentation or national security concerns.
  • Propose new TEA definition. In particular, with respect to the Urban Distressed Area Definition, the letter suggests limiting the TEAs to a single-census tract that is designated by the U.S. Treasury Department as a “Qualified Opportunity Zone” as per the Tax Cuts and Jobs Act.
  • Set aside 30% of the annual visa allotment each year for investors in TEA projects, which is split evenly between Rural and Urban Distressed communities (i.e. 15% of visas for Rural TEAs and 15% visas for Urban TEAs).
  • Propose that family members do not count against the annual EB-5 visa cap.

For details on the list of reforms proposed in this letter, please visit here.   We will closely monitor the progress of the reforms proposed and will provide updates as they become available.

By Robert Y. Maples˘ on Posted in EB-5, OMB

On May 22, the Office of Management and Budget (OMB) released the bi-annual Spring 2019 Unified Agenda of Regulatory and Deregulatory Actions.

As set forth in a Federal Register notice and using the Department of Homeland Security as an example, the Unified Agenda is explained as follows:

This regulatory agenda is a semiannual summary of projected regulations, existing regulations, and completed actions of the Department of Homeland Security (DHS) and its components. This agenda provides the public with information about DHS’s regulatory and deregulatory activity. DHS expects that this information will enable the public to be more aware of, and effectively participate in, the Department’s regulatory and deregulatory activity. DHS invites the public to submit comments on any aspect of this agenda.

As such, these agency submissions are snapshots in time and estimates of pending timelines by the agency, which can change based on many factors.  

Staying with the Department of Homeland Security/USCIS for example purposes, a few rules in final rule stage include, among others:

Find past reporting on the OMB Unified Agenda Here

Please check back as we post additional information on the Spring Unified Agenda and other matters as events and new information warrants.

By Luna Ma on Posted in I-526, USCIS

USCIS released a new version of I-526 form on its website on April 23, 2019. Starting June 25, 2019, USCIS will only accept the new version Form I-526 (edition 04/15/19). Until then, investors can use the 05/30/2017 edition. Both editions of Form I-526 are available to download on the USCIS website. There are no substantial changes as compared to the update from the 12/23/16 edition to 04/10/17 edition. The 4/15/19 edition is more or less identical in content compared with the 05/30/17 edition. Investors need to fill out the employment and physical address history for the last five years. Investors who are going to file the petition in June or later should pay special attention to the form edition to avoid rejection of their petitions. The edition information for the form can be found at the bottom left corner of each page. (See Below)

Please note that USCIS has been very strict with information consistency; as such, when filling in the employment and physical address history information, investors should make sure the information they enter matches the DS160 records, if they have ever applied for a nonimmigrant visa to the United States, as inconsistent information may result in an RFE or NOID on their I-526 petitions.

For more on Form I-526, click here.

By Luna Ma on Posted in China, EB-5, I-526, India, Vietnamese, Visa, Visa Bulletin

The U.S. Department of State just released the updated Visa Bulletin for June 2019. The monthly updated waiting list provides the latest information for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad or filing adjustment of status applications. The Visa Bulletin for the coming month is normally updated on or about the tenth of each month with information on cutoff dates for the following month.

The priority dates per Chart A (Final Action Dates) remain current for investors born in all other countries except the following:

Mainland China-Born Investors

Mainland China-born investors’ EB-5 waiting line continued to see slow progress with the projected June 2019 Visa Bulletin, moving one week forward to Oct. 1, 2014. This means Mainland China-born investors with priority dates of Oct. 1, 2014, or earlier are eligible to be scheduled for immigrant visa interviews at consular posts or file adjustment of status applications if they are in valid status in the United States, or wait for the adjudication of their AOS applications if previously submitted.

Vietnam-Born Investors

Like China, Vietnam continued to see slow cutoff date forward movement, progressing 9 days from Sept. 22, 2016, to Oct. 1, 2016.

Indian-Born Investors

There is still no visa backlog for Indian investors in June 2019, which is good news. However, pursuant to a prediction from Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, it is likely to institute a cutoff date in the Visa Bulletin for the first time in July 2019.

The current priority date cutoff date per Chart B (Dates for filing) of the Visa Bulletin moves a little faster. For Mainland China-born investors, the priority date is Nov. 1, 2014, moved up by 17 days. The priority dates remain current for investors born in all other countries including Vietnam. Chart B enables Vietnamese investors who are in valid nonimmigrant status in the United States and wish to process the green card application without leaving United States to file AOS applications. However, Chart B is not available all the time. For the month of June, USCIS does not permit the use of Chart B for AOS applications. Normally, USCIS will designate one of the two charts each month within one week of the publication of the Visa Bulletin. We will be closely monitoring the Visa Bulletin and advise once Chart B is open.

There is also a backlog in EB-5 processing time. Currently, the average processing time for an I-526 petition ranges from 22 to 28.5 months, as shown in the below screenshot from the USCIS website. The current processing time is 1.5 months to 2 months slower compared to the time in April. USCIS will accept a case inquiry for outside normal processing time with a receipt date of Jan. 24, 2017, or earlier. For a receipt date of Jan. 25, 2017, USCIS will not respond to the email inquiry regarding the long processing time.

 

 

FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES (Chart A)

DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS (Chart B) 

For more visa bulletins, click here.

By Bruce C. Rosetto and on Posted in EB-5, EB-5 Immigrant Investor Program, GT Alert

Congratulations! You have subscribed EB-5 investors, closed your offering, and provided the EB-5 funds to the project. Now what? As a general matter, EB-5 investors are either non-managing members of a limited liability company or limited partners of a limited partnership. In either situation, the EB-5 investor has limited managerial and voting rights, yet does have protections under either the Operating Agreement or Limited Partnership Agreement (the “NCE Agreement”), as may be applicable. The rights provided to EB-5 investors under the NCE Agreement must be adhered to as a binding contract between the new commercial enterprise (the “NCE”) and the EB-5 investor. Likewise, under state law, the EB-5 investor has rights and protections under the limited liability company act or limited partnership act. Finally, under federal and state law, the NCE will have ongoing securities law obligations, which may require supplements or updates to the offering documents.

To read the full GT Alert, click here.

For more on NCE Agreements, click here.