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EB-5 Insights

Where Government Policies and Business Realities Converge

Posted in China, EB-3, EB-5, Visa, Visa Bulletin

The Department of State (DOS) August 2019 Visa Bulleting shows significant retrogression in employment-based (EB) categories.

In the EB-1 category, final action dates retrogress to July 1, 2016, for all countries of chargeability except for India. The cutoff date for India’s EB-1 category remains at Jan. 1, 2015. The EB-2 category retrogresses to July 1, 2016 for all countries except China, advancing to Jan. 1, 2017, and India, advancing to May 2, 2009.

EB-3 categories for all other countries, El Salvador, Guatemala, Honduras, Mexico, the Philippines, and Vietnam also retrogress to July 1, 2016. India retrogresses to Jan. 1, 2006, while China advances to July 1, 2016. Similarly, for the EB-3: Other Workers category, most countries retrogress to July 1, 2016; India retrogresses to Jan. 1, 2006, and China’s remains the same at Nov. 22, 2007.

The EB-4 category cutoff dates remain the same at July 1, 2016 for El Salvador, Guatemala, Honduras, and Mexico, with the rest of the countries remaining current.

In the EB-5 category, most countries remain current. India and Vietnam’s cutoff dates retrogress to Oct. 15, 2014. China advances to the same cutoff date of Oct. 15, 2014.

The Visa Bulletin indicates that the implementation of the above-mentioned dates is expected to be temporary and that every effort will be made to return the Final Action dates to the same as those in the July Visa Bulletin in October 2019, the first month of fiscal year 2020.

Referring to the Final Action Dates, following are updates for the August 2019 Visa Bulletin:

Final Action Dates for Employment-Based Preference Cases

Dates for Filing of Employment-Based Visa Applications

For more visa bulletins, click here.

Posted in EB-5, Immigrant Visa

Today, the U.S. House of Representatives approved H.R. 1044, the Fairness for High-Skilled Immigrants Act of 2019, that eliminates per-country quotas for all employment-based immigrant visa petitions by a wide, bipartisan vote of 365-65.

The bill includes language helpful to the EB-5 program relating to a transition period for implementation, as explained –

Fairness for High-Skilled Immigrants Act of 2019

This bill increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15%, and eliminates the 7% cap for employment-based immigrant visas. It also removes an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country.

A companion bill, S. 386 (Sen. Lee, R-UT) was being discussed for Senate floor consideration last month.  The bill drew H-1B compliance provisions that slowed momentum and interested Senators continue negotiations.

Please contact your GT attorney for specific questions.  We will update this matter as information becomes available.

For more on Employment Visas, click here. 

Posted in Department of Homeland Security, EB-5, EB-5 Business Plan, EB-5 Immigrant Investor Program, EB-5 Investment, EB-5 Job Creation, EB-5 Legislation, EB-5 Program, Immigration Law, OMB, President Trump's Administration

Today, OMB posted that they have concluded their review of the Obama-era EB-5 regulations. On Jan. 13, 2017, the Department of Homeland Security published a notice of proposed rulemaking to significantly raise minimum investment levels and other programmatic changes to the EB-5 program (see related GT EB-5 Insights post here). It is unclear what specific actions OMB took today in regards to the pending regulations. We will update this blog as information becomes available.

Department of Homeland Security

AGENCY: DHS-USIS

RIN: 1615-AC07

STATUS: Concluded

TITLE: EB-5 Immigrant Investor Program Modernization

STAGE: Final Rule

ECONOMICALLY SIGNIFICANT: No

RECEIVED DATE: 02/22/2019

LEGAL DEADLINE: None

COMPLETED: 06/27/2019

COMPLETED ACTION: Consistent with Change

Posted in EB-5, EB-5 Immigrant Investor Program, I-526, Immigrant Investor, Immigrant Visa, Immigration Law, India
  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, the 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.

  1. 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), DOS recommends paying 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.

  1. What do I do if I haven’t received a fee bill from the NVC but my I-526 Petition is approved before July 1, 2019?

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), there may be other ways to preserve the dependent child’s age for immigration purposes, and it is advisable to contact legal counsel.

  1. What do I do if my I-526 Petition is approved after the retrogression cut-off date listed in the Visa Bulletin?

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

  1. What do I do if I received a fee bill from NVC prior to 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).

  1. If I have paid my fee bill and filed my DS-260 application, what action can I expect on July 1, 2019?

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.

  1. 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.

  1. 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 and no other inadmissibility issues arise.  USCIS will hold off on adjudicating the adjustment of status application until your priority date is current.

  1. Where can I check my priority date?

The DOS announces priority dates 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.

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

As indicated above, the estimated wait time due to retrogression is approximately 8.4 years for Indian nationals between the time when an I-526 petition is filed and the time when an EB-5 visa becomes available, including the I-526 processing times.

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

Yes.

Continue to monitor our blog for updates as we receive further information from the DOS and USCIS.

For more on EB-5 and India, click here.

Posted in EB-5, EB-5 Program, India, Retrogression, State Department

The July 2019 Visa Bulletin has been released, and it confirms retrogression for the EB-5 visa category for nationals of India, earlier than many in the industry had anticipated. As of July 1, 2019, only approved Indian EB-5 investors whose EB-5 petitions (I-526 forms) were filed earlier than May 1, 2017, will be able to proceed with the processing of their immigrant visa applications.

India EB-5 Retrogression

We anticipate that U.S. consular posts in India may cease scheduling interviews for investors with priority dates on or after May 1, 2017.  The U.S. Citizenship and Immigration Services (USCIS) has also announced that for July 2019, all employment-based preference filings must rely on the Final Action Dates chart in the Visa Bulletin. Therefore, we also expect that USCIS will not schedule interviews or otherwise process or approve adjustment of status applications (I-485 forms) for applicants with priority dates on or after May 1, 2017. We encourage all approved EB-5 applicants from India to file their immigrant visa and adjustment of status applications prior to July 1, 2019.

The July 2019 Visa Bulletin also notes that for the EB-5 category, it is anticipated that India and Vietnam will become subject to the same date as China for the months of August and September 2019, meaning the dates will fall back to Nov. 1, 2014, for all three countries in August and September. Then, according to Charles Oppenheimer, chief of the Department of State Visa Control and Reporting Division, the best case scenario for October 2019, when the fiscal year starts, is a Fall 2017 date for Indian nationals, while a worst case scenario would have the date progress only so far as a Summer 2017 date. Mr. Oppenheimer also posited that a “rough” estimate for EB-5 applicants whose I-526 petitions are filed after May 6, 2019, is an 8.4 year wait between the time when an I-526 petition is filed and the time when an EB-5 visa becomes available, including the now extremely lengthy processing times for adjudicating the I-526 petition.

For more on EB-5 and India, click here.

Posted in EB-5, EB-5 Immigrant Investor Program, EB-5 Investment, Form 1-407, Immigrant Investor, Immigrant Visa, USCIS

Starting July 1, 2019, international offices of the U.S. Citizenship and Immigration Services (USCIS) will no longer accept Form I-407, Record of Abandonment of Lawful Permanent Residence Status. On that date and going forward, all I-407 forms must be sent by mail to the address below. USCIS anticipates that processing of the form, from receipt to completion, will take 60 days or less, not including the mailing time to and from outside the United States (and please note that given the below address is a post office box, these notices cannot be sent via courier services like FedEx and UPS).

USCIS Eastern Forms Center
Attn: I-407 Unit
124 Leroy Road
PO Box 567
Williston, VT 05495

For various reasons, foreign nationals who have obtained Lawful Permanent Residence (LPR) status in the United States sometimes choose to voluntarily abandon their LPR status. When these individuals choose to live in another country and maintain residency there, it is a best practice to submit a Form I-407 so that a record of their abandonment of LPR status is filed with USCIS. Once the I-407 form has been accepted and the abandonment is recorded and acknowledged by USCIS, the former LPR-status individual no longer has to be concerned about certain tax requirements to file as a U.S. resident, and he also need not be concerned about maintaining residency in the U.S.

As EB-5 investors are aware, maintenance of their residency is of vital importance. After obtaining Conditional Permanent Resident (CPR) status, the investor must continue to maintain residency in the U.S. or else risk possible deportation or inadmissibility, as discussed in a prior blog post. EB-5 investors and dependent family members should maintain as many ties to the U.S. as possible, and when taking longer trips outside of the U.S., they should apply for and obtain reentry permits and consider carrying evidence of their U.S. ties with them when they return to the U.S. Without the maintenance of residency, a Customs and Border Protection (CBP) officer could find the investor inadmissible for having abandoned residency, and that individual may face an uphill battle when applying to remove the conditions on the green card (filing of the I-829) or when ultimately applying for naturalization by filing the N-400 form (see our blog post here on the residency requirements for maintaining LPR status and for applying for naturalization).

Once abandonment of LPR status occurs, the foreign national no longer need worry about maintaining a residence in the U.S., filing and paying income taxes as a resident, and demonstrating ties to the U.S. to maintain LPR status. Of course, once LPR status has been abandoned, the foreign national may have to apply for entry visas for short trips to the U.S. We note that if someday the foreign national wishes to apply for a new green card, the voluntary abandonment will not be held against him.

The I-407 filing address change discussed above is in keeping with the March 2019 announcement by then-USCIS Director L. Francis Cissna that USCIS intends to shut down all international USCIS offices and shift all duties of these international offices to domestic USCIS offices and U.S. Department of State embassies and consulates. This announcement was confirmed by USCIS this week at the American Immigration Lawyers Association (AILA) Annual Conference.

For more on USCIS, click here.

Posted in EB-5, EB-5 Investment

On June 4, 2019, the Kenan Institute released a timely policy brief, “Immigrant Entrepreneurship: An American Success Story,” on the value of highly skilled and motivated foreign entrepreneurs to the U.S. economy. The brief states, “When looking at the founding of the United States’ largest startups…[t]he immigrant-founded startups employ an average of more than 1,200 workers each, and have collective values of $248 billion.”

This brief follows a March 2019 comprehensive analysis of the EB-5 immigrant investor programs for fiscal years 2014 and 2015. According to the March release,

The study, prepared by Economic & Policy Resources, Inc. (EPR), estimated the economic benefits and job creation contributions of all EB-5 regional center projects that were active in federal fiscal years 2014 and 2015 using the most geographically robust methodology employed to date and a comprehensive EB-5 regional center project activity data set supplied by IIUSA. The study also showed that the regional center program contributed more than $23 billion in labor income to the U.S. economy and resulted in nearly $55 billion—or 3 percent—added to U.S. economic output.

‘Economic activity and job creation effects of this scale represent a call to the EB-5 industry and legislative policymakers to take action,’ said Jeffrey Carr, one of the report’s co-authors and President of EPR. ‘Absent that action, the economic contributions quantified in this study will merely represent “lost opportunity” for the U.S. economy. Tens of billions of future foreign investment dollars and hundreds of thousands of new U.S. job opportunities hang in the balance.’ Robert Chase, Senior Economist at EPR, was the report’s other co-author.

The Kenan Institute brief concludes by encouraging U.S. policies, such as EB-5, to attract global entrepreneurs:

Despite the empirical evidence that high-skilled immigrants contribute significant value to the U.S. economy, major hurdles exist for them to obtain visas that allow for starting new ventures. In the current era of global talent competition, we suggest that there are specific policies that the United States can implement to lower barriers for immigrant entrepreneurs, benefit from high-skilled immigrants and foster associated entrepreneurial economic growth.

For more on EB-5 and job creation, click here.

For more on EB-5 and the economy, click here.

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.

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.

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.