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 New Presidential Proclamation Requiring Health Care for Immigrant Visa Applicants Effective November 3, 2019

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.

A June U.S. Policy Metrics/Hamilton Place Strategies report Harnessing Private Capital For Job Creation: An Analysis Of The EB-5 Visa Program demonstrates the impact of the EB-5 visa program as a net job creator and budget-neutral catalyst for bringing private investment into the U.S. The report was commissioned by the EB-5 Investment Coalition (EB-5IC), a broad-based, bipartisan organization focused on reauthorizing and strengthening the EB-5 Regional Center Program. This report is authored by Steve McMillin, a partner at U.S. Policy Metrics and former deputy director of the White House Office of Management and Budget under President George W. Bush; Michael Solon, also a partner at U.S. Policy Metrics and former budget advisor to Senate Majority Leader Mitch McConnell (R-KY); and Matt McDonald, a partner at Hamilton Place Strategies and a former advisor to President George W. Bush.

Continue Reading New Report Validates the EB-5 Program as a Most Efficient Job Creation Program

Weeks of ups and downs and high points and low points in the Immigration Reform debate have left the stakeholder community wondering how next to proceed. Last week, Washington Post opinion writer George Will crystalized the issues raised by House Republicans, and addressed the reasons not to move forward. See article here and key items from the article included below in italics.

Political Excuses

  • Republicans should focus on the problems of the Obama Health Care Reform Bill. This has already been done very effectively.
  • This is a divisive issue for the Republicans and should be avoided. Republicans say the Immigration System is broken and it is a matter of how to fix it, not when to fix it.
  • Immigration Reform will create Democratic voters. Voters gravitate to candidates with similar values and offer opportunity.
  • President Obama cannot be trusted to enforce immigration reforms. This distrust may be addressed by crafting legislation to ensure enforcement with checks and balances.

Substantive Excuses

  • Immigrants could negatively impact American culture and not assimilate. Assimilation will be an important part of any immigration reform proposal and nearly 60 percent of the illegal population has already been in the U.S. more than 10 years and have been assimilating.
  • Enforcement is a key component of Immigration Reform. I am in agreement that enforcement is a key component of sensible Immigration Reform.
  • Immigration Reform will encourage low skilled and less educated workers that will depress wages of Americans. Lesser-skilled and lower skilled jobs must be done and U.S. workers are not taking them. The Congressional Budget Office says that immigration may causes a slight reduction is wages, but there will be an increase in economic growth overall attributable to immigrants. The economy needs workers at all levels to grow. When there is a need, there should be a mechanism to allow immigrant workers to fill that need.

Let’s move forward and do what everyone thinks should be done – sensible Immigration Reform in 2014.

The Essential Worker Immigration Coalition (“EWIC”), co-chaired by Greenberg Traurig Business Immigration & Compliance Practice Co-Chair Laura Reiff, issued the below reaction to the release of Republican standards for immigration reform following the annual House Republican retreat held this week.

Reaction to the Release of the Republican Standards:

IMMIGRATION REFORM IS KEY PRIORITY FOR THE HOUSE REPUBLICANS 

2014 IS THE YEAR FOR IMMIGRATION REFORM

The business community expressed its strong support for the principles laid out by the House Republican leadership this week.  House Republicans have identified key principles that line up with tenets long endorsed by the Essential Worker Immigration Coalition.  These principles include among other things:  (i) security at our borders; (ii) a workable worksite enforcement system; (iii) a temporary worker program that will respond to the needs of our economy; and (iv) a program that will bring hardworking unauthorized immigrants out of the shadows to be considered for legal status.

We are encouraged by the importance House leadership has assigned to this issue, and we look forward to enactment of sound immigration reform legislation.  This sets the stage for the House to move ahead with the immigration bills that have already passed out of committee and introduce other bills that comport with the principles.  EWIC looks forward to continuing to work with the House to find a solution to the nation’s immigration policy problems.

The Essential Worker Immigrant Coalition (EWIC) is a broad-based coalition of national businesses and trade associations from across the industry spectrum concerned with the shortage of both semi-skilled and unskilled (“essential worker”) labor.  EWIC supports policies that facilitate the employment of essential workers by U.S. companies that are unable to find American workers (www.ewic.org). 

Additional press releases from EWIC members are included below:

Associated Builders and Contractors

Associated General Contractors of America

American Health Care Association

American Hotel and Lodging Association

International Franchise Association

Immigration Works USA

National Association of Home Builders

National Association of Manufacturers

National Roofing Contractors Association

U.S. Chamber of Commerce

We are excited to continue to grow our Business Immigration and Compliance Practice in the firm’s Philadelphia office. Attorneys Jennifer Hermansky and Nataliya Rymer joined the firm earlier this year, and we have now added senior paralegal Casey O’Brien to the team.

Hermansky focuses her practice on both employment-based and EB-5 immigration. She has dedicated the majority of her immigration practice to EB-5, including the counseling of regional centers, projects and investors. Hermansky regularly works with developers across a variety of industries seeking capital for new projects that qualify for EB-5 investments. She counsels clients on the creation of new Regional Centers, amendments of a Regional Center designations, and adoptions of developer projects by existing Regional Centers.

Rymer represents clients in a wide range of employment-based immigrant and non-immigrant matters, including professionals, managers and executives, artists and entertainers, treaty traders and investors, immigrant investors, and persons of extraordinary ability. Her diverse client base spans a multitude of industries, including health care, pharmaceutical and real estate, as well as entrepreneurs, scientists, and researchers in scientific communities. Rymer focuses her practice on employment eligibility compliance and complex business immigration law, and case management issues for multinational companies.

“We are pleased to welcome Casey to our Philadelphia office,” said Michael L. Lehr, Regional Operating Shareholder. “Her wide-ranging experience in business immigration will be a strong asset for the firm’s global clientele.”

O’Brien has nearly seven years of employment-related immigration experience and works closely with attorneys on immigration matters for universities, including faculty, physicians and staff. She has particular experience on H-1B cases, as well as L-1A/L-1B, E-2, PERM, employment and family-based immigrant visa petitions, Adjustment of Status, and Naturalization matters. Additionally, she has extensive experience handling the preparation of start-up H-1B’ petitions involving right to control and specialty occupation issues for graduates of Ivy League MBA programs.

“Casey is a strong addition to the Business Immigration and Compliance team,” said Laura F. Reiff, Co-Chair of the firm’s Business Immigration and Compliance group. “Her expertise in employment-based immigration, specifically with local and national colleges and universities, enhances the firm’s ability to provide our clients with a wide-range of business immigration and compliance services in an ever-changing market.”

Greenberg Traurig’s Business Immigration and Compliance group represents businesses, organizations, and individuals from around the world on a wide range of immigration matters and visa needs, including colleges and universities, corporate, allied health, IT and electronics, architecture, real estate, large retail chains and hospitality companies. The team advises multinational corporations on a variety of employment-related immigration issues, focusing on strategic immigration planning for U.S. and international companies for the international relocation of personnel both from and into the United States.

The Biden administration has revoked Presidential Proclamation 10014 of April 22, 2020 -Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak (PP 10014).

PP 10014 was intended to stop the issuance of immigrant visas at embassies and consulates abroad in order to protect the U.S. labor market; however, it contained many notable exemptions. Exempt from PP 10014’s restrictions included immigrants with valid visas, those seeking to enter the United States in certain medical professions, EB-5 visa holders, immediate relatives of U.S. citizens, members of the U.S. armed forces and their immediate relatives, and those whose entry was deemed to be in the national interest, among others.

It is not clear whether PP 10014 has actually protected the U.S. labor market, given that by law the majority of employment-based immigrants must satisfy a labor market test or have shown such a test is unwarranted (i.e., extraordinary ability, national interest waivers or multinational managers). As the Biden administration noted in its presidential proclamation, PP 10014 appeared mostly to harm the United States by preventing certain family members of U.S. citizens and lawful permanent residents from entering the country. In that manner, PP 10014 served to function as a ban on family-based immigration and diversity visas. The U.S. immigration system was constructed by Congress to favor family-based immigration, and PP 10014 overturned that careful construction, leading some to believe that the Trump administration was using the pandemic as a pretext to push through an anti-immigrant agenda. Diversity visa winners were forced to sue in federal court for the right to utilize their lawfully obtained benefit to immigrate and have recently seen their visa expiration dates extended at the U.S. district court level.

While this will be a welcome step by many, it may not satisfy immigration advocates’ expectations of a full rollback of the Trump administration’s pandemic-related immigration restrictions. The Biden administration has not revoked Presidential Proclamation 10052 of June 22, 2020 – Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak (PP 10052), which has restricted the issuance of H-1B, H-2B, J and L visas from abroad. PP 10052 has also been subject to litigation and was enjoined at the U.S. district court level; however, that ruling was restricted to the plaintiff organizations and their members. This effectively limited the injunction to members of the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, TechNet, and Intrax, Inc.

In addition to PP 10052, the Biden administration has also continued the Trump administration’s suspension of the entry of certain travelers who spent any part of the 14-days prior to entry in the Schengen Area, United Kingdom, Republic of Ireland and Brazil. These restrictions overlap with the CDC requirement that all travelers to the U.S. obtain a viral test within three days of flight departure, leading some to find that the suspension of entry should be reconsidered.

Lastly, the final challenge to restoring the U.S. immigration system will be the restoration of routine visa services at embassies and consulates worldwide. Since the pandemic began, many embassies and consulates have completely shut down or severely restricted visa processing, both for immigrant and nonimmigrant visas. While these restrictions are largely pandemic-related and are in place with good reason, they have the effect of stymieing lawful immigration, as most foreigners who require a visa to enter the United States cannot obtain one, and therefore, cannot enter the country. This shadow ban on immigration affects all applicants, including family-based and employment-based immigrant and nonimmigrant visa holders. It is also the most inconsistent, as visa applicants are at the mercy of the operations of the consulate or embassy with jurisdiction over their foreign country of residence. Some embassies, like London, have severely restricted visa processing, while others, like Panama, are processing certain immigrant and nonimmigrant categories. In another example, the Amsterdam Embassy recently switched to only providing emergency nonimmigrant visa services despite the in-country case average hovering near its rate from October, a time when the embassy had expanded services. Visa applicants generally cannot shop around, as most embassies and consulates restrict processing at their location to residents of the jurisdiction they cover and, if they could apply at a different embassy or consulate, would have to pay a new visa fee.

While it is generally believed that the Biden administration will ultimately also revoke PP 10052 and resume routine consular operations worldwide (with appropriate pandemic-related measures), those actions cannot come soon enough for immigrants caught in limbo, many of whom are separated from loved ones or unable to start work.

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.

USCIS has proposed rules that could deny entry to non-immigrants seeking admission to the United States and adjustment of status to permanent residence to immigrants if they rely on public benefits for food, housing or medical care, and other forms of public assistance. The proposed rule – “Inadmissibility on Public Charge Grounds” – is published in the Federal Register. The public may comment on the proposed rule during the 60-day comment period ending on Dec. 10, 2018. USCIS will review comments to the proposed rule and then revise and issue a final public charge rule that will include an effective date. In the interim, and until a final rule is in effect, USCIS will continue to apply the current public charge policy.

Pursuant to Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”

Under 8 U.S.C. § 1601 (PDF)(1), “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”

Further under 8 U.S.C. § 1601 (PDF)(2)(A), “It continues to be the immigration policy of the United States that aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.”

While self-sufficiency has been the guiding principle of U.S. immigration law, as indicated in the above federal regulations, “public charge” has not been defined in statute or regulations. According to USCIS, there has been insufficient guidance on how to determine if an alien who is applying for a visa, admission, or adjustment of status is likely at any time to become a public charge. In determining inadmissibility USCIS has used the definition of “public charge” as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” (See, “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, USCIS considers several factors, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge.

The proposed rule will apply to foreign nationals seeking admission to the United States on non-immigrant and immigrant visas, as well as those non-immigrants who have availed themselves of public benefits within the United States and are seeking to seeking to either extend their stay or change their status. Under the proposed rule, USCIS would only consider the direct receipt of benefits by the individual alien applicant. Receipt of benefits by dependents and other household members would not be considered in determining whether the alien applicant is likely to become a public charge.

Factors that would generally weigh heavily in favor of a finding that an individual is likely to become a public charge include the following:

  • The individual is not a full-time student and is authorized to work, but cannot demonstrate current employment, has no employment history, or no reasonable prospect of future employment;
  • The individual is currently receiving or is currently certified or approved to receive one or more of the designated public benefits above the threshold;
  • The individual has received one or more of the designated public benefits above the threshold within the 36 months immediately preceding the alien’s application for a visa, admission, or adjustment of status;
  • The individual has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to support himself or herself, attend school, or work, and the alien is uninsured and has no prospect of obtaining private health insurance; or
  • The individual has previously been found inadmissible or deportable based on public charge.

Alternately, factors that would weigh strongly against a finding that a foreign national is likely to become a public charge include:

  • The individual has financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size; or
  • The individual is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size.

This proposed rule could have wide-reaching effects on legal immigration to the United States. The rule proposes not only to define “public charge” and the factors to be considered in making current and prospective public charge determinations, but also to add requirements for “public charge bonds” for certain applicants who are more likely to become a public charge. It is important for interested parties to comment on this proposed rule by the Dec. 10, 2018 deadline.

This is the fifth post in a series that discusses how EB-5 investors and their dependents can maintain eligibility for permanent residence and I-829 Petition approval. This blog focuses on accepting certain public benefits that may make an investor and/or his or her dependents a “public charge.”

The Trump Administration has stated that USCIS will start deportation proceedings for any conditional permanent resident or lawful permanent resident who has abused any program related to receipt of public benefits. Additionally, conditional permanent residents and lawful permanent residents alike cannot be a “public charge.” This means an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at the government’s expense.

USCIS can make a “public charge” finding at the time of the immigrant visa interview for the conditional green card and at the I-829 Petition interview. A finding that the investor or a family member is a “public charge” can lead to denial of the immigrant visa or the I-829 Petition, and commencement of deportation proceedings following the I-829 Petition denial.

Acceptance of the following types of assistance may lead to the determination that the individual is likely to become a public charge:

  • Supplemental Security Income (SSI) under Title XVI of Social Security Act;
  • Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act–the successor to the AFDC program);
  • State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs); and
  • Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution).

Under current USCIS guidance, non-cash benefits (other than institutionalization for long-term care) are generally not taken into account for purposes of a public charge determination. Non-cash or special-purpose cash benefits are generally supplemental in nature and do not make a person primarily dependent on the government for subsistence. Therefore, past, current, or future receipt of these benefits do not impact a public charge determination at present. Non-cash or special purpose cash benefits that are not considered for public charge purposes include:

  • Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care;
  • Children’s Health Insurance Program (CHIP);
  • Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs;
  • Housing benefits;
  • Child care services;
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP);
  • Emergency disaster relief;
  • Foster care and adoption assistance;
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education;
  • Job training programs; and
  • In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter).

The Trump Administration is attempting to expand the list of government benefits that could lead to a public charge finding. Specifically, the administration may expand list of “public charge” benefits to include Medicaid, subsidized Obamacare, food stamps, tax credits, or other non-cash government benefits. If an EB-5 investor and/or his or her dependents receive any of these benefits, and then the administration adds those benefits to the list of “public charge” benefits, USCIS may seek to deny the I-829 Petition. As such, EB-5 investors and their family members should try to avoid receiving these benefits following the grant of CPR status. Insurance paid for in the marketplace under the Affordable Healthcare Act should not result in a public charge finding.