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EB-5 Insights

Where Government Policies and Business Realities Converge

By Greenberg Traurig on Posted in Awards & Recognitions

Based on an analysis of more than 100,000 legal news articles, legal publisher The National Law Review (NLR) recognized Kristen Walker Ng, an associate in Greenberg Traurig LLP’s Immigration & Compliance Practice,  as a 2019 “Go-To Thought Leader” in Immigration.

According to NLR, the Go-To Thought Leadership Awards recognize exceptional authors in 35 legal practice areas for their contributions in providing practical guidance and highlighting timely and important legal news and developments. The awards also take into account whether articles are “reader favorites” and “quoted or cited by other publications and/or syndicated by other media.” The 75 honorees represent less than 1% of contributors to NLR’s daily legal news service.

Walker Ng focuses her practice on business immigration and compliance matters, including legislative issues. She advises individuals and companies on a wide range of immigration matters, including nonimmigrant and immigrant employment-based cases, citizenship issues, and investor cases (E-2 and EB-5). She provides immigration counsel to clients, including HR managers, high-level executives, and employees to help ensure comprehension of each respective immigration process and procedure and to collaboratively produce a tailored immigration strategy and approach for each individual matter. In addition, she works on immigration reform policies and advocates for smart policies for clients.

Read the full press release here.

By Robert Y. Maples˘ and on Posted in Department of Homeland Security, EB-5, EB-5 Modernization Rule, EB-5 Program, Immigration Reform, TEA

On Nov. 26, 2019, a complaint for Injunctive Relief and a Temporary Restraining Order was filed by Florida EB-5 Investments, LLC against the Department of Homeland Security (DHS) challenging a Nov. 21, 2019, DHS-issued final rule amending its regulations for the EB-5 program to purportedly modernize the rules (EB–5 Immigrant Investor Program Modernization, 84 Fed. Reg. 35750 (July 24, 2019). Case 1:19-cv-03573 FLORIDA EB5 INVESTMENTS, LLC v. WOLF et al.

The Rule proposed many changes to the EB-5 Program, including: (i) significant increases in the requisite investment levels; and (ii) a new targeted employment area (TEA) designation process that eliminates the input of the individual states in designating such areas in which investments are made. The complaint alleges statutory and constitutional grounds to challenge the rule, claiming that it violates the Administrative Procedures Act (APA), exceeds DHS’s authority, and violates the Tenth Amendment, among others. The complaint further alleges that the Rule’s changes impact the U.S. economy and were proposed without adequate studies or analysis.

For more on EB-5 modernization, click here.

By Patty Elmas* on Posted in China, EB-3, EB-5, India, Vietnamese, Visa Bulletin

In the EB-1 category, the Dates of Filing is now current for all countries of chargeability except for China and India. For November, USCIS allowed I-485 filings based on Dates of Filing rather than Final Action dates; however, EB-1 was retrogressed for all categories, allowing only certain applicants to file. USCIS has not issued the December 2019 calendar or confirmed if it will follow Dates of Filing or Final Action. If USCIS continues to abide by the dates of filing calendar, many EB-1 candidates will be able to finally file their I-485/Adjustment of Status applications. For EB-1 Final Action dates, there was slight movement. Continue Reading

By Dillon Colucci on Posted in EB-5, EB-5 Program, Regional Center, USCIS

The EB-5 Regional Center Program was set to expire on Nov. 21, 2019. On Nov. 18, Congress introduced a Continuing Resolution (CR) to fund the government and extend vital programs such as EB-5 through Dec. 20, 2019. Leaders hope to use the additional time to extend current operations and complete fiscal matters and other priorities before the holidays. There is an ongoing effort to include new EB-5 legislation in a legislative vehicle in December.

New EB-5 regulations published on July 24, 2019, as final will take effect Nov. 21, 2019. There is no additional phase-in for these regulatory changes. Some of the key changes listed below will immediately impact the EB-5 program: Continue Reading

By Robert Y. Maples˘ and on Posted in EB-5, Eb-5 Regional Center, USCIS

As a reminder to our readers, the Obama-era EB-5 Regional Center regulations – see July post for details – go into effect Nov. 21, 2019. USCIS has published a webpage resource to help explain the implementation of the upcoming regulations here.

This is a period of significant change and activity on the EB-5 program. Clients are encouraged to stay in touch with their GT attorney, and reach out with any questions. Please check back, as this blog will be updated as events warrant.

For more on regional centers, click here.

By Robert Y. Maples˘ on Posted in Continuing Resolution (CR), EB-5

On Nov. 18, Congressional Appropriation leadership introduced a 26-page Continuing Resolution (CR) to fund government and extend vital programs such as EB-5 through Dec. 20, 2019. Leaders hope to use the additional time to extend current operations and complete fiscal matters and other priorities before the holidays.

In addition to the extension of time, the CR allows for the extension of certain health programs and other key priorities of Congress, such as the census, military pay, highway funding, and other programs.

The House is expected to pass the CR tomorrow and then to the Senate and the president before the Nov. 21 expiration of the current CR.

For more on continuing resolutions, click here.

By Robert Y. Maples˘ on Posted in EB-5, EB-5 Immigrant Investor Program, EB-5 Modernization Rule, Immigrant Visa

Today, Senators Graham (R-SC), Rounds (R-SD) and Cornyn (R-TX) introduced the “Immigrant Investor Program Relief Act” (S. 2778, the Act) proposing long overdue improvements to modernize the EB-5 program in alignment with industry and market principles.  The Act reflects a fair compromise between rural and urban stakeholders providing substantial market advantages to rural and urban distressed areas while providing opportunities  for “downtown” projects.

Major programmatic provisions under the Act:

Duration of Reauthorization – The program’s authorization is extended for six years through Sept. 30, 2025.

Targeted Employment Area (TEA) Definitions

Rural Area definition: The term “‘rural area” means any area that:

  • is outside of the boundary of any city or town with a population of 20,000 or more people; and
  • is outside of a metropolitan statistical area; or
  • is within any census tract that is greater than 100 square miles in area and has a population density of fewer than 100 people per square mile.

Urban Distressed Area Definition: TEAs are limited 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.

Investment Amounts

  • Establishes and maintains a $100,000 differential between the two investment levels.
  • New minimum investment level for TEAs is $1,000,000.
  • New non-TEA amount is $1,100,000.
  • These levels indexed to inflation going forward.

TEA Set-Asides

  • 15% of visas for Rural
  • 15% of visas for Urban Distressed
  • Unused visas roll-over annually at the end of each year to general visa pool for access by all projects in the immediately following year

Transition Rules to New Program Requirements -90 days after date of enactment the new law takes effect.  Individual I-526 petitions that were pending up to date of enactment are grandfathered and not subject to new investment amounts.  Pending petitions rejected after enactment and re-filed would be subject to new investment amounts. 

Backlog Relief and Suggested Additional Revenue Source – Advance Parole and work authorization.

  • All pending applicants in queue (approximately 30,000) should have the option to pay a fee to enable the individual and derivatives to travel to the U.S. and obtain work authorization if they have an approved I-526 and have been waiting for 3 years.
  • All new Investor Petitions would be required to pay an additional $50,000 that would go into the new fund.
  • The revenues raised by the EB-5 program improvement fee/backlog fee should be maintained separately for use by Congress for programs deemed in the national interest.

Sovereign Wealth Funds (SWF) – No bar on SWF capital in projects also funded by EB-5 capital.

Premium processing for Filed Cases 120 days

Significant New Revenue Sources for Congress and the Agency

Integrity Measures to Bolster National Security and Fraud Deterrence

  • DHS provided with the authority to conduct criminal background checks and obtain biometric information from individuals involved in the regional center program.
  • Establish new authority for DHS to debar individuals, and suspend or terminate regional centers, based on program non-compliance.
  • Clarify the authority of DHS to deny or revoke immigrant investor petitions for reasons including fraud, misrepresentation, or national security concerns.
  • Establish an EB-5 Integrity Fund to provide rigorous program oversight, which would be funded by regional center program participants.
  • Create thorough annual reporting and accounting requirements for regional center operators.
  • Enforce strict new requirements for third-party promoters marketing or promoting regional center investment projects.
  • Provide DHS with improved investigative tools to ensure that an investor’s funds are derived from legitimate and lawful sources.
  • Provisions to ensure that USCIS engages in a proper and non-preferential way with any person or entity involved in the EB-5 program.
  • CFIUS Reform compliance for covered transaction as per the Foreign Investment Risk Review Modernization Act (FIRRMA).

Please contact your GT attorney with any specific questions, and please watch this space for updates.

By Kate Kalmykov and on Posted in Department of State, Immigration, Immigration Reform, President Trump's Administration

On Oct. 4, President Donald Trump signed a new “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System,” which goes into effect Nov. 3 and affects most immigrant visa applicants. This Presidential Proclamation is separate from the Public Charge Rule, which is on hold in the U.S. due to a court injunction, and its implementation at U.S. Consulates has been delayed by the Department of State.

According to the new Presidential Proclamation, with very small exceptions including refugees and asylees, applicants for immigrant visas will need to present evidence to the consular office “to the consular officer’s satisfaction” at the time of their immigrant visa interview that they will be covered by approved health insurance within 30 days of entering the U.S. or that they have enough financial means to pay for “reasonably foreseeable medical costs.” The Presidential Proclamation asserts that “lawful immigrants are about three times more likely than United States citizens to lack health insurance.” Continue Reading

By Robert Y. Maples˘ and on Posted in Department of Homeland Security, President Trump's Administration, Visa Waiver Program

Today, President Trump announced that his administration has nominated Poland as a Visa Waiver Program (VWP) participating country. Entry into the U.S. Visa Waiver Program allows citizens of participating countries to travel to the United States for tourism, business, or in transit for up to 90 days without having to obtain a visa.

President Trump stated: “…This is an important step in continuing to increase economic, security, cultural, and people-to-people connections between our two nations. Now that Poland has been nominated, the Department of Homeland Security will take necessary action, as soon as possible, to assess Poland’s entry into the program. If Poland is designated as a Visa Waiver Program country, its nationals would be authorized for visa-free travel to the United States for business and tourism. The bilateral relationship between the United States and Poland has never been stronger, and this would serve as a remarkable accomplishment for both countries.” Continue Reading

By Robert Y. Maples˘ on Posted in Continuing Resolution (CR)
President Trump signed the latest Continuing Resolution into law Friday night (Sept. 27) extending government operations and vital programs, such as EB-5,  through Nov. 21 –

Bill Announcement

Healthcare

Issued on: September 27, 2019

All News

On Friday, September 27, 2019, the President signed into law:

H.R. 4378, the “Continuing Appropriations Act, 2020, and Health Extenders Act of 2019,” which provides FY 2020 appropriations to Federal agencies through November 21, 2019, for continuing projects and activities of the Federal Government. Also extends authority for a broad range Medicare, Medicaid, public health, and human services activities.  https://www.whitehouse.gov/briefings-statements/bill-announcement-54/ 

Please consult your GT attorney with specific questions and check back as this blog is updated as events warrant.