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EB-5 Insights

Where Government Policies and Business Realities Converge

Posted in EB-5, I-526, Immigrant Investor, Immigrant Visa, Immigration, U.S. State Department, Uncategorized, USCIS

It is widely known that India has become a major EB-5 investor market in recent years, as EB-5 is becoming an increasingly popular option for Indian nationals who seek permanent residence in the United States; the fact that there has been a growing number of high-net-worth individuals in India clearly helps to stimulate this demand. Specifically, Indian investors’ share of the EB-5 investor market has grown substantially since 2014, surpassing Vietnam as the second largest EB-5 investor market in fiscal year 2017, although its total market share, five percent, remains small. Invest In The USA (IIUSA) recently published a data report, 2018 EB-5 Investor Market Analysis: India and United Arab Emirates, based on the data supplied by USCIS, Department of State, United Nations, and Capgemini. Some of the highlights from this report are summarized below, along with additional observations:

  1. Significant Increase in Number of Petitions: A total of 587 I-526 petitions were filed by Indian investors in FY2017, which is almost 600 percent of the total number of petitions filed by Indian investors in 2014. This number remains small given that a total of 12,165 I-526 petitions were filed worldwide in FY2017.
  2. Significant Increase in Number of Visa Usage: A total of 585 EB-5 visas in FY2018 were used by applicants from India, which is a 236 percent increase from FY 2017. This is the highest year-over-year growth among the top EB-5 investor markets, including China, Vietnam, South Korea, Taiwan, and Brazil. A total of 1,469 EB-5-based immigrant visas have been issued to applicants from India between FY2008 and FY2018, of which a total of 1,115 visas were issued since FY2014. This number remains small given the total number of EB-5-based visas issued each year.
  3. Significant Increase in Number of High Net Worth Individuals in India: Based on the Asian-Pacific Wealth Report 2018 by Capgemini, India’s high-net-worth-individual (HNWI) population grew by 20 percent from 2016 to approximately 263,000 in 2017, which is the highest among all Asian-Pacific countries. This is likely an important factor that contributes to the growing number of EB-5 investors from India. Despite the significant increase, the total number of HNWI in India remains small, given the large population of India.
  4. United States as the Second Most Popular Migration Destination for Indian Nationals: According to the data published by Pew Research Center, the United States is the second most popular migration destination for Indian migrants in 2017, just behind United Arab Emirates (UAE). A total of 2,310,000 Indian migrants have immigrated to the United States, which represents nearly 14 percent of the total Indian migrants in 2017.

UAE is another increasingly important EB-5 investor market with a notable number of EB-5 applicants, thanks to its international migrant population, which makes up majority of its population. The importance of this EB-5 investor market will likely be strengthened given its high percentage of migrants from India. The data published in the IIUSA report explains the reasons for recent growth of the UAE market and its potential for further growth. Firstly, there are a large number of HNWIs among the UAE population. While there was a minor decline in the absolute number of HNWI since 2014, Dubai had the world’s fourth highest inflows of HNWI in 2017, with an estimated 2,000 or more HNWIs having migrated to Dubai in that year, according to the IIUSA report, which cited Knight Frank’s Wealth Report 2017. UAE’s population is extremely international, with 88 percent originating from foreign countries. Of the total international migrants in UAE as of 2017, India, Bangladesh, Pakistan, Egypt, Philippines, and Indonesia are the countries of origin that represented most of the migrants, accounting for 84 percent of UAE’s international migrant population and nearly 74 percent of its total population. Migrants from India in particular contributed 40 percent of the total international migrant population in UAE. The data report shows that the migrants from Bangladesh, Pakistan, Egypt, Philippines, and Indonesia, the five countries that accounted for most of UAE’s migrant population behind India, represent the largest number of I-526 filings out of UAE. Given the high percentage of Indian migrants living in UAE, and a growing interest in EB-5 program among Indian investors, it is likely that there is growth potential of the EB-5 investor market in UAE and future opportunities to raise EB-5 capital in this market.

With the growing number of Indian-born EB-5 applicants in recent years, Charles Oppenheim, chief of Visa Control and Reporting Division, U.S. Department of State, indicated at an EB-5 Industry Conference on April 23, 2018, that EB-5 visa backlogs for Indian nationals will likely be introduced no later than June 2019, and likely earlier. With the introduction of the visa backlog/retrogression, Indian-born investors would face unspecified wait times (the specifics will be known once it has been published in the monthly visa bulletin) after the I-526 approval before they can proceed with the conditional green card process, through either adjustment of status within the United States or consular processing outside the United States. This would mean that the Indian investors whose I-526 approvals take place after the introduction of the visa backlog will no longer be able to proceed with their green card process immediately. For those who are currently in the United States on F-1 and H-1B visas, they will need to maintain valid status in the United States or depart from the United States while waiting on their priority date to become current. It remains to be seen how the visa backlog will affect the Indian EB-5 market.

Posted in Department of State, EB-5, EB-5 Immigrant Investor Program, EB-5 Program, Government Shutdown, shutdown, USCIS

As we alerted previously, the U.S. federal government shut down at the end of the day on Dec. 21, 2018. Because the EB-5 regional program was not extended, government agencies such as USCIS and the U.S. State Department will no longer be able to approve adjustment of status (green card) applications and immigrant visas based on this program until the extension is passed and signed into law. Those investors whose immigrant-visa or adjustment-of-status interviews have been scheduled should expect that they may receive notifications of their cancellation. Importantly, if notification of cancellation of the interview is not received, investors and their family members should expect to attend their interview as scheduled, though it is likely that the Consular Post or USCIS may be unable to move forward due to visa unavailability. Investors should expect that their interviews will be rescheduled and immigrant visas and green cards granted once the program extension has been signed into law and the government shutdown has ended.

GT will continue to monitor the situation and provide updates as they become available.

Posted in Department of Homeland Security, EB-5, Government Shutdown

On Jan. 3, 2019, the 115th Congress gaveled to a close, and the newly composed 116th Congress, with the House under control of a Democrat majority and the Senate continuing under Republican control, convened.  

Appropriations legislation was among the first considered, with the House passing a bill that would open government by extending six outstanding agency Appropriations (see H.R. 21 for text) through Sept. 30 and fund the Department of Homeland Security Appropriation separately through Feb. 8 (see H. J. Res 1 for text). The main reason for the bifurcated treatment is the president’s insistence on $5.6 billion in border security enhancements, including walls and wall structures in the DHS Appropriations.  

The package of legislation passed the House, with several Republicans joining Democrats. 

Sen. Majority Leader Mitch McConnell (R-KY) has stated that the Senate will not consider any legislation that does not have the president’s agreement and support. As the House package does not have the support of the president, it is believed that this House-passed package will remain in legislative limbo for the unknown future. Without Senate action and a presidential signature (or potential veto override), the shutdown will continue, and EB-5 and other critical programs will remain suspended.

Ongoing negotiations will continue through the weekend in an effort to reach a solution. Please check back, as this matter will be updated.

˘ Not admitted to the practice of law

Posted in Awards & Recognitions

Based on an analysis of more than 100,000 pieces of thought leadership, legal publisher The National Law Review (NLR) recognized global law firm Greenberg Traurig, LLP as a 2018 “Go-To Thought Leader” for its coverage of business immigration changes and immigration law in general.

According to the NLR website, the “‘Go-To-Thought Leadership Awards’ recognize 65 exceptional authors and legal organizations for their reporting of complex legislative and litigation news, as well as their strategic insight and overall legal industry knowledge.” These 65 honorees represent less than one percent of contributors to NLR’s daily legal news service. NLR states that Greenberg Traurig produces “some of the best content [they’ve] seen,” noting that with “immigration issues being top of mind for many, Greenberg Traurig’s attorney-authors provide the information NLR Readers want, and in a timely manner, ensuring their articles are well-read and frequently cited by other publications.”

To read the full press release, click here.

Posted in EB-5, EB-5 Immigrant Investor Program, Eb-5 Regional Center, I-526, Immigrant Investor, USCIS

As an update to our blog on Dec. 24, USCIS has since clarified that while the EB-5 Regional Center Program expired at the end of the day on Dec. 21, 2018, due to a lapse in congressional authorization to continue the program, USCIS will continue to receive regional center-affiliated Forms I-526, Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status, after the close of business on Dec. 22, 2018. As of Dec. 22, 2018, USCIS will put unadjudicated regional center-affiliated Forms I-526 and I-485 (whether filed before or after the expiration date) on hold for an undetermined length of time. As we previously explained, and as is confirmed by USCIS in its update, all Forms I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, filed before or after the expiration date, will not be affected by the expiration of the program. Once further legislation is passed to extend the EB-5 Regional Center Program, USCIS will provide further guidance on affected cases.

 

Posted in Department of State, EB-5, EB-5 Immigrant Investor Program, EB-5 Legislation, EB-5 Program, Government Shutdown, I-526, I-829, Immigrant Investor, Immigrant Visa, Immigration, Immigration Law, NOID, RFE, shutdown, USCIS

The U.S. federal government shut down at the end of the day on Dec. 21, 2018, and the president did not sign into law the extension of the EB-5 program passed by the Senate. Until the shutdown ends, and the Regional Center EB-5 program extension is signed into law, no new I-526 petitions can be filed. To clarify, while EB-5 petitions may continue to be prepared, petitions cannot be mailed to USCIS until the conclusion of the shutdown and extension of the program. Please note, however, that investors must continue to file timely responses to USCIS Requests for Evidence (RFE) and Notices of Intent to Deny (NOID). In addition, investors may continue to prepare and file I-829 petitions.

With respect to the immigrant visa process, the State Department will cease to schedule new immigrant visa interviews until extension of the program is signed into law and the government resumes operations. If the interview was previously scheduled, and the Consular Post has not reached out to cancel said interview, the investor and family should still plan to attend. However, the immigrant visas will not be issued until the government resumes operations. The State Department will experience a significant slowdown and even cessation of all visa-issuing services during the period of the government shutdown. Furthermore, investors will be unable to file new DS-260 applications and supporting documents until the program is officially extended and the Visa Bulletin is updated.

With respect to the adjustment of status process, investors will be unable to file any new adjustment of status applications based on the I-526 petitions until the program is officially extended and the Visa Bulletin is updated. However, investors can continue to file renewals of employment authorization and advance parole, and should continue responding in a timely manner to USCIS’s RFEs relating to pending adjustment of status (I-485) applications. USCIS is unlikely to schedule any adjustment of status interviews until the conclusion of the shutdown and extension of the program.

Posted in Continuing Resolution (CR)

The relatively smooth legislative waters of the U.S. Senate, which allowed for a six-week Continuing Resolution (CR) to pass on Dec. 19, ran into choppy seas in the House of Representatives. The Senate’s lack of funding for border security and the wall caused some factions in the president’s House majority party to rise and oppose the Senate bill. Throughout Thursday there were meetings, statements, and legislative activity. The result was a 59-page Continuing Resolution incorporating the Senate’s nine-page CR, with additional text providing for $7 billion in disaster funding in a new House CR, RULES COMMITTEE PRINT 115–88 TEXT OF THE HOUSE AMENDMENT TO THE SENATE AMENDMENT TO H.R. 695.

On Dec. 20, the House approved its CR version by a vote of 217-185. The measure now returns to the Senate for consideration. The current CR expires Dec. 21 at 11:59:59 p.m. We will continue to monitor this quickly moving situation.

Posted in Conrad 30 Waiver Program, Continuing Resolution (CR), E-Verify, EB-5, Immigration

The U.S. Senate filed Continuing Resolution, Senate amendment to H.R. 695 – Department of Defense Appropriations Act, 2018 [Further Additional Continuing Appropriations Act, 2019, legislation on Dec. 19 to extend government programs and operations through Feb. 8, 2019 and to prevent a partial government shutdown on Dec. 21.

From the Senate Appropriations Committee press release

Temporary extensions included in previous CRs of expiring authorities:

  • The National Flood Insurance Program, for the duration of the CR.
  • The Violence Against Women Act, for the duration of the CR.
  • The Pesticide Registration Improvement Act, for the duration of the CR.
  • Temporary Assistance for Needy Families, for the duration of the CR.
  • Immigration extensions (EB-5, E-Verify, Conrad 30 program for international medical school graduates, Special Immigrant Religious Workers program, and H2B returning worker authority for DHS), for the duration of the CR.

The Senate passed the Continuing Resolution late last night (Dec. 19). The legislation is pending consideration in the U.S. House. It is widely believed that Congress will present a Continuing Resolution to the president preventing a government shutdown or stoppage of critical programs, like EB-5, in a timely manner. We will continue to monitor this quickly moving situation.

Posted in EB-3, EB-5, EB-5 Immigrant Investor Program, Visa, Visa Bulletin

The Department of State (DOS) January 2019 Visa Bulletin has resulted in mixed bag of retrogression for some and advancement for others. The EB-1 category moved forward approximately 3 months across the board. EB-3 China and India are both now at Dec. 15, 2016.  The EB-2 category showed minor improvement for China to Aug. 1, 2015, but no movement at all for India, which is still set at April 1, 2009. It was a similar result in the EB-3 category, with China and India holding the same dates as last month’s Visa Bulletin. As mentioned in our November blog post, the EB-3 India final action date moved very rapidly over the past year, advancing almost a year and a half. The static nature of the past two months may reflect the continued processing of EB-3 India visa applications. In the EB-5 category the date for the non-regional center categories of China advanced to Sept. 1, 2014, and Vietnam advanced to June 1, 2016. The date for Vietnam in the EB-5 category has now advanced in this fiscal year from Jan. 1, 2016, in October 2018 to June 1, 2016, in this visa bulletin.

As has happened repeatedly in the recent past, the EB-4 religious workers and regional center EB-5 categories are listed as unavailable because the laws authorizing those categories are due to expire after midnight Dec. 20, 2018, and Dec. 21, 2018, respectively. Accordingly, no EB-4 religious workers visa may be issued, or a final action taken on an adjustment of status application, after midnight Dec. 20, 2018. Further, individuals seeking admission in this category must be admitted into the United States no later than midnight Dec. 20, 2018. If Congress, reauthorizes this category as is expected, the final action date would be current for all countries except El Salvador, Guatemala, and Honduras, which will be set at Feb. 22, 2016, and Mexico, which will be set at April 15, 2017.

Similarly, no EB-5 regional center visas may be issued, or a final action taken on an adjustment of status application, after Dec. 21, 2018. If Congress, reauthorizes this category as is expected, the final action date would be current for all countries except China and Vietnam. The China and Vietnam dates would be set at the same date as the nonregional center category, which is listed above. GT will be closely monitoring these advancements as they unfold.

Final Action Dates for Employment-Based Preference Cases

Posted in Continuing Resolution (CR), EB-5, Immigration

As an update to this reporting- House Introduces Two-Week Continuing Resolution to Extend Vital Programs such as EB-5, on Dec. 6, the House passed H.J. Res 143 – FY 2019 Continuing Resolution Through December 21, 2018, by unanimous consent.  The measure proceeded to the Senate and was approved by unanimous consent approximately one-hour after passing the House.

Today, around 10 a.m., the House Appropriations Committee announced on Twitter that the President had signed the CR into law –

Congress will continue negotiating the year-ending, session-ending fiscal measures and we will continue tracking.  Check back for further updates.