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On Dec. 20, 2016, the Department of Homeland Security (DHS) United States Citizenship and Immigration Services (USCIS) requested that the Office of Management and Budget (OMB) review a proposed rule making that would make changes to the current regulations as it relates to the EB-5 Immigrant Investor Program.  The title of this rule is “Improvement of the Employment Creation Immigrant Regulations.”

DHS had previously released the Fall Unified Agenda and updated it in Nov. 2016 reflecting the date of Notice of Proposed Rulemaking (NPRM) to Jan. 2017.  The proposed changes by DHS, as stated in the summary, include measures to promote predictability and transparency in the adjudication process, enhance program integrity, clarify requirements for regional center designation, retain priority dates in certain circumstances, and streamline the adjudication process for petitions.  At a USCIS Stakeholders meeting in April 2016, DHS had stated that the rule making will include changes to minimum investment amount, job creation, targeted employment area requirements, and regional center designation.

Now that the OMB’s Office of Information and Regulatory Affairs (OIRA) has received the rule making for review, there will be a review period, typically restricted to 90 days, though there is no minimum number of days set.  The period of review can extend beyond 90 days by the rulemaking agency, or by the OMB director.

The OMB can then send the regulations back to USCIS with or without comments.  USCIS will have the opportunity to review any received comments and take administrative action, such as the issuance of notice of proposed rulemaking (NPRM) in the Federal Register.  It is unclear what position the new Administration will take on regulations promulgated in the final days of the previous Administration, although press reports are that the new Administration will “freeze” or even cut regulations rather than allow new ones to advance.  If the NPRM is issued, there will typically be a 60 day notice and comment period.  USCIS will then review and revise the rule accordingly, and can issue a final rule that is published in the Final Register.

Greenberg Traurig will continue to monitor the status of the proposed rule making as it is reviewed by OMB’s OIRA.

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Photo of Laura Foote Reiff‡ Laura Foote Reiff‡

Laura Foote Reiff is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies,

Laura Foote Reiff is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies, as well as related employment compliance and legislative issues.

Laura advises corporations on a variety of compliance-related issues, particularly related to Form I-9 eligibility employment verification matters. Laura has been involved in audits and internal investigations and has successfully minimized monetary exposure as well as civil and criminal liabilities on behalf of her clients. She develops immigration compliance strategies and programs for both small and large companies. Laura performs I-9, H-1B and H-2B compliance inspections during routine internal reviews, while performing due diligence (in the context of a merger, acquisition or sale) or while defending a company against a government investigation.

Laura represents many businesses in creating, managing and using “Regional Centers” that can create indirect jobs toward the 10 new U.S. jobs whose creation can give rise to EB-5 permanent residence for investment. She coordinates this work with attorneys practicing in securities law compliance, with economists identifying “targeted employment areas” and projecting indirect job creation, and with licensed securities brokers coordinating offerings. She also represents individual investors in obtaining conditional permanent residence and in removing conditions from permanent residence.

Laura’s practice also consists of managing business immigration matters and providing immigration counsel to address the visa and work authorization needs of U.S. and global personnel including professionals, managers and executives, treaty investors/ traders, essential workers, persons of extraordinary ability, corporate trainees, and students. She is an immigration policy advocacy expert and works on immigration reform policies.