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.
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.
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.
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.
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.
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?
We will continue to provide updates as we receive further information from the DOS and USCIS.
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.
Today, President Trump signed the Omnibus Appropriations Act for Fiscal Year 2018, that includes an extension of the EB-5 program until Sept. 30, 2018, along with the Conrad 30 program for foreign doctors and the Special Immigrant Religious Workers program. The bill also includes a 3-year reauthorization of the E-Verify program (Sept. 30, 2020).
Today’s signing by the president follows the previously reported House passage (March 22) and Senate passage after midnight on March 23 with a bipartisan vote of 65-32.
The $1.3 trillion measure incorporates all twelve annual Appropriations bills for Fiscal Year 2018 (i.e., current year).
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The Department of State (DOS) has informed EB-5 stakeholders that retrogression of the EB-5 category in the chargeability area including Vietnam, is imminent; however, DOS is unable to provide specific dates of which priority dates will retrogress at this time, though it did clarify that this is not going to occur in April 2018.
As a matter of process, each month the National Visa Center (NVC) schedules interview appointments for those immigrant visa applications where processing is complete and the Priority Date (PD) is current per the “Final Action Dates for Employment Based Cases” (or Chart A) of the Visa Bulletin. A number of U.S. Consular Posts inform NVC of the dates they are holding interviews, and NVC fills these appointments as they become documentarily qualified. Once the appointment is available, NVC notifies the applicant, petitioner, and attorney of the interview date. In March 2018, NVC scheduled interviews for Consular Posts, including the U.S. Consular Post in Ho Chi Minh City, Vietnam, for April of 2018. Almost immediately after scheduling these interviews, NVC issued additional guidance clarifying that, although an interview at the Embassy was scheduled, the visa interview appointment availability was based on the extension of the EB-5 Regional Center Pilot Program. The pilot program was extended through March 23, 2018; however, it is expected that Congress will extend the program through Sept. 30, 2018.
Therefore, as the pilot program is expected to be extended until Sept. 30, 2018, the cut-off dates for the EB-5 visa category will remain “Current” for the month of April for all countries except China. Investors and their dependents should plan to attend the visa interview on the date and time scheduled. GT will continue to monitor the situation and provide updates regarding changes to the Visa Bulletin. Please subscribe to this blog for updates.
On March 21, Congressional leaders released a 2232 page, $1.3 trillion dollar Omnibus Appropriation for Fiscal Year 2018 with language extending the EB-5 program until Sept. 30, 2018.
SEC. 204. Section 610(b) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) shall be applied by substituting ‘‘September 30, 2018’’ for ‘‘September 30, 2015’’. (p. 1759)
On March 22, the House approved the bill by a vote of 256-167. The bill will proceed to the Senate for consideration against the current extension deadline of midnight tonight.
Please follow our blog for more information on the Omnibus and other related matters.