The U.S. State Department has published the March 2024 Visa Bulletin. For EB-5 cases, the Chart A priority dates for the new “set aside” visa categories of rural areas, high unemployment areas, and infrastructure projects available under the EB-5 Reform and Integrity Act (RIA) remain current for all countries. For pre-RIA I-526 Petition cases in the unreserved EB-5 category, a visa backlog under Chart A of the Visa Bulletin continues for those investors born in mainland China (with a priority date of Dec. 15, 2015) and India (with a priority date of Dec. 1, 2020). 

Importantly, the State Department previously moved forward the Chart B priority dates in the unreserved EB-5 category to Jan. 1, 2017, for mainland China and April 1, 2022, for India. U.S. Citzenship and Immigration Services (USCIS) has been allowing adjustment of status (AOS) filings on Form I-485 using Chart B of the Visa Bulletin since Oct. 1, 2023. On Feb. 12, 2024, USCIS announced that applicants filing Form I-485 in March 2024 must use Chart A of the March 2024 Visa Bulletin, and that it will not allow employment-based AOS filings using Chart B of the Visa Bulletin. As a result, EB-5 applicants born in mainland China or India and who are eligible to file an AOS based on Chart B must file Form I-485 no later than Feb. 28, 2024, to be received at USCIS by Feb. 29, 2024. It is not clear when USCIS will allow Chart B AOS filings again, as this determination is based on visa usage by the State Department and USCIS.

The State Department updates the Visa Bulletin each month, and thereafter USCIS determines whether it will allow Chart B AOS filings in the family-based and employment-based green card categories. Applicants for AOS must check the Visa Bulletin and the USCIS website each month for whether Chart B filings will be available.

On Jan. 30, 2024, U.S. Citizenship and Immigration Services (USCIS) announced a final rule regarding the H-1B cap electronic registration process for fiscal year (FY) 2025. The announcement also included the initial registration period dates for the FY 2025 cap and the launch of an online filing option for H-1B petitioners. The new rule, effective March 4, 2024, is intended to “strengthen the integrity of and reduce the potential for fraud in the H-1B registration process.”

The final rule creates a beneficiary-specific H-1B cap registration selection process. Under this new process, H-1B cap registrations will be selected by beneficiary rather than by company registration, as was the case previously. This is designed to reduce the possibility of a beneficiary gaining an unfair advantage by having multiple employers submit H-1B cap registrations on their behalf. According to USCIS, the new process is aimed to ensure each beneficiary has the same chance of being selected, regardless of the number of registrations that are submitted by employers for the same beneficiary. Beginning with the FY 2025 H-1B cap registration period, employers will be required to provide valid passport information or valid travel document information for each beneficiary. The passport provided must be the one the beneficiary intends to use to enter the United States if issued an H-1B visa while abroad. Each beneficiary may only be registered under one passport or travel document. The H-1B final rule also codifies USCIS’ ability to deny or revoke H-1B petitions where the underlying registration contains a false attestation or is otherwise invalid.

Further, USCIS announced on Jan. 30, 2024, that the initial registration period for the FY 2025 H-1B cap will open at noon EST March 6, 2024, and will run through noon EST March 22, 2024. During this registration period, employers and their representatives must use a USCIS online account to register each beneficiary electronically for the selection process and pay the $10 registration fee for each beneficiary.

In addition, in the new rule, USCIS clarifies that requesting an H-1B cap employment start date after Oct. 1 of the relevant fiscal year is permissible.

USCIS also issued a fee schedule final rule to adjust certain immigration and naturalization benefit request fees for the first time since 2016. This rule with go into effect after this year’s H-1B cap registration period.

USCIS has passed a rule that significantly increased filing fees for new EB-5 Petitions. The new rule impacts EB-5 cases at all stages. Effective April 1, 2024, new filing fees will take effect for the petitions and applications filed on or after April 1, 2024 with the USCIS. The New EB-5 Fees are a substantial increase and will be:

  • I-526E, Immigrant Petition by Alien Entrepreneur $11,160
  • I-829, Petition to Remove Conditions on Permanent Residence $9,525
  • I-956, Application for Regional Center Designation $47,695
  • I-956F, Application for Approval of an Investment in a New Commercial Enterprise $47,695
  • I-485, Application to Adjust Status with biometric services $1,440
  • The Final Rule also unbundled the filling fees in connection with the ancillary Forms I-765 and Forms I-131 (filed to request employment and travel authorization) from the Form I-485, Adjustment of Status Application. Previously, there was one fee for these three (3) applications, and no fees to renew the employment and travel authorization. Applicants now will be required to include separate filing fees for each application. The Form I-485 filing fee will be a standalone filing fee. Applicants filing Form I-765, Application for Employment Authorization Document, alongside their Form I-485 will be required to include an additional $260 filing fee. Applicants filing Form I-131, Application for Travel Document, alongside their Form I-485 will be required to include an additional $630 filing fee.

Applicants may wish to lock in the old fees by filing where possible before April 1, 2024. Many regional centers and projects are accepting partial investments to facilitate the filing of new I-526E Petitions by the April 1st deadline to assist investors with filing cases before the new fee increase takes effect. 

The final rule was published Jan. 31, 2024; view the full text. The chart below outlines the new USCIS filing fee schedule for some categories:

Type of FilingCurrent FeeNew Filing FeeDifference in Dollar AmountPercent Increase
I-526E, Immigrant Petition by Alien Entrepreneur$3,675.00$11,160.00$7,845.00204%
I-829, Petition by Investor to Remove Conditions$3,750.00$9,525.00$5,775.00154%
I-829, Petition by Investor to Remove Conditions (with biometric services)$3,835.00$9,525.00$5,690.00148%
I-956, Application for Regional Center Designation$17,795.00$47,695.00$29,900.00168%
I-956F, Application for Approval of an Investment in a Commercial Enterprise$17,795.00$47,695.00$29,900.00168%
I-956G, Regional Center Annual Statement$3,035.00$4,470.00$1,435.0047%
I-485, Application to Register Permanent Residence or Adjust Status$1,140.00$1,440.00$215.0026%
I-485, Application to Register Permanent Residence or Adjust Status (with biometric services)$1,225.00$1,440.00$215.0018%
I-485, Application to Register Permanent Residence or Adjust Status (under the age of 14 in certain conditions)$750.00$950.00$200.0027%
I-131, Application for Travel Document$575.00$630.00$55.0010%
I-131, Application for Travel Document (with biometric services)$660.00$630.00$-30.00-5%
I-765, Application for Employment Authorization (Paper Filing)$410.00$520.00$110.0027%
I-765, Application for Employment Authorization (paper filing) (with biometric services)$495.00$520.00$25.005%
I-765, Application for Employment Authorization (online filing)$410.00$470$6015%
I-765, Application for Employment Authorization (online filing) (with biometric services$495$470-$255%

On October 11, 2023, United States Citizenship and Immigration Services (USCIS) updated its policy on the minimum investment period for EB-5 visa applicants. This update seeks to clarify how USCIS interprets changes made by the EB-5 Reform and Integrity Act of 2022 (RIA).

The RIA stated that an investment is expected to remain invested for not less than two years, but does not specify when the two years start. The new guidance published on the USCIS website states that this two-year period begins when investor funds are deployed to the job-creating entity (“JCE”). As long as 10 jobs have been created by an EB-5 investor’s investment, he or she can be repaid after two years and remain eligible for a U.S. Green Card. This is a significant change to the “at-risk” requirement for EB-5 investors.

Click here to read the full EB5AN article, co-authored by GT Shareholder Kate Kalmykov.

Kate Kalmykov, co-chair of the Global Immigration & Compliance Practice at Greenberg Traurig, spoke on a panel hosted by EB5AN on some newly released USCIS guidance with respect to the RIA and required investment timeframe and also terminated EB-5 regional centers.

Click here to watch the webinar (full transcript included).

Please join Kate Kalmykov, Co-Chair of the Global Immigration & Compliance Practice, at an upcoming webinar Oct. 16 from 12 to 1 p.m. EDT.

On Oct. 11, 2023, USCIS provided additional guidance on their interpretation of the EB-5 laws created under the EB-5 Reform and Integrity Act of 2022 (RIA). In their clarification, EB-5 investors are now eligible for repayment of their invested capital after two years of investment. In addition, investors now have more protection from regional center terminations.

Kate will be joined by immigration attorney Ron Klasko and EB5AN managing partners Sam Silverman and Mike Schoenfeld, who will explain the recent guidance released by USCIS and discuss how they expect both EB-5 investors and regional centers to be impacted.

The panelists will discuss:

  • In-depth analysis of USCIS’s Oct. 11 guidance.
  • Relevant changes to the required investment timeframe – key takeaways for investors and regional centers.
  • Provisions for investors associated with terminated regional centers.
  • Predictions for future developments.
  • First impressions from EB5AN.

Click here to register.

U.S. Citizenship and Immigration Services is updating guidance in its policy manual to further clarify voter registration access at their administrative naturalization ceremonies.

In the updated guidance, USCIS states that, effective immediately:

  • Access to voter registration services will be provided at each administrative naturalization ceremony, including information regarding points-of-contact for voting and voter registration.
  • Requests will be made of election officials from state and/or local government election offices to attend ceremonies as well as distribute, collect, and review voter registration applications, and officially register new citizens.
  • USCIS offices will coordinate with non-partisan, non-governmental organizations for voter registration services whenever state or local government election officials are not available.
  • Governmental or non-governmental organizations offering on-site voter registration services will receive opportunities to introduce themselves and address naturalization candidates before ceremonies.

For consistency and efficiency, USCIS also created the Form N-401, Voter Registration Services Attestation, for non-governmental agencies to submit one-time requests per field office to participate in these ceremonies.

This update is part of a broader push by the Biden administration to increase voter registration and expand access to voter registration for new U.S. citizens by promoting and encouraging the exercise of the franchise, and removing potential agency obstacles that may otherwise serve as a deterrent to these efforts.

On Aug. 24, 2023, USCIS announced further updates to Chapter 7 of the Policy Manual, made with the goal to expand the number of children who may be able to secure CSPA eligibility for permanent residence as dependents of their parents.

By way of background, on Feb. 14, 2023, USCIS updated the Policy Manual to clarify that USCIS would consider a visa number “available” for the purpose of calculating a child’s age under Child Status Protection Act (CSPA) provisions as reflected in the State Department’s Dates for Filing (“Chart B”) Visa Bulletin. To summarize, the CSPA was enacted with the goal to protect some dependent children from losing their ability to obtain permanent residence due to turning 21, or ”aging out.” To be eligible for CSPA protection, a dependent child’s biological age on the date of visa availability, less the number of days the immigrant visa petition of their parent was pending, must be less than 21. Applicants then have one year to seek to acquire their permanent residence, which can be done by filing an I-485 Application to Adjust Status, paying the immigrant visa fee bill, filing a DS-260 application, and a number of other ways. In implementing the Feb. 14, 2023, Policy Manual updates, USCIS explained that the Agency’s goal was to benefit those children whose parents have approved immigrant visa petitions but are unable to secure their eligibility to obtain permanent residents as dependents of their parents due to visa backlogs. USCIS then further clarified that it would consider the visa available per Chart B of State Department’s Visa Bulletin when calculating CSPA eligibility, only provided that USCIS was accepting Application to Adjust Status (Forms I-485) based on Chart B for the particular month.

In announcing further Policy Manual revisions on Aug. 24, USCIS explained that because of the policy as it was in effect prior to the Feb. 14, 2023, change, some of the dependent children may not have moved forward with applying for Adjustment of Status because a visa was not available to them per the Final Action Dates (“Chart A”) of the Visa Bulletin. Alternatively, they may have decided not to move forward with filing because their CSPA calculated age was over 21 at that time, leading them to believe they were not eligible to make an adjustment of status filing. 

With the new Policy Manual Update, USCIS clarified that the Feb. 14, 2023, policy update is considered an ‘extraordinary circumstance.’ As an extraordinary circumstance, USCIS can rely upon this policy to excuse the failure of dependents to seek to acquire their immigrant visas. Additionally, USCIS clarified that it may forgive an Adjustment of Status applicant’s failure to seek to acquire permanent residence if they correctly relied upon the prior policy in not applying for Adjustment of Status, but are now eligible for CSPA protection under the new policy. USCIS also stated that it would consider applicants to have satisfied the seeking to acquire requirement if they filed an Adjustment of Status application prior to Feb. 14, 2023, and if that application was filed within one year of visa becoming available based on Chart A as outlined in the prior policy.

While USCIS has updated its Policy Manual and interpretation of the CSPA terms such as “visa availability” and “seeking to acquire,” the State Department has not confirmed that it would extend similar interpretations to immigrant visa applicants. Similarly, USCIS has not explicitly confirmed whether, in filing a Form I-485, Application to Adjust Status subsequent to the enactment of the updated policy, applicants can satisfy the “seeking to acquire” component of CSPA by having paid an immigrant visa fee bill or filed a Form DS-260 Immigrant Visa Application within one year of visa availability as defined in USCIS’s latest Policy Manual update.

CSPA determinations and calculations can be complex and nuanced, with no regulatory interpretation available for this law. Those with questions regarding CSPA and its applicability to their case should consult with experienced immigration counsel.

On July 18, 2023, United States Citizenship and Immigration (USCIS) announced an update to the visa availability approach to managing the inventory of Form I-526, Immigrant Petition by Alien Investor, as part of an effort to improve efficiency in the processing of these petitions. The announcement comes as USCIS has been under scrutiny regarding the lengthy processing times for EB-5 cases. At the time of writing, the processing time for a Form I-526 petition filed prior to the passage of the EB-5 Reform and Integrity Act of 2022 (RIA) is at least 56.5 months for those investors not subject to a visa retrogression.

The USCIS Immigrant Investor Program Office (IPO) manages the inventory of Form I-526 petitions through workflow queues. Previously, these queues operated on a first-in, first-out basis and accounted for factors such as whether a visa was available or would be soon (i.e., whether the investor’s country of birth was subject to a visa retrogression).

Effective July 18, 2023, USCIS announced that the IPO will implement a new strategy in handling the workflow queues of Form I-526 petitions by grouping these petitions into three “queues” for adjudication. The first queue will contain Form I-526 petitions where a visa is not available and is not likely to be available soon. Presumably, this would be the longest queue and would contain those petitions subject to visa retrogression for investors born in mainland China. The second queue contains I-526 Petitions where a visa is available or will be soon available, but where the IPO has not yet reviewed the investment project materials. The third queue will contain those I-526 petitions where a visa is available or soon available and where IPO has previously reviewed the project, or the I-526 is a “direct” or non-Regional Center petition. While USCIS has not stated this explicitly, this third queue would likely receive priority over the other two queues because visas are available and the project was previously approved in other I-526 petitions; therefore, only the investor’s source of funds would need to be reviewed by the IPO adjudicator.

According to USCIS, this update will allow adjudicators to process Form I-526 petitions more efficiently as they will be handling multiple petitions associated with the same new commercial enterprise (NCE) and consequently, adjudicators will be simultaneously reviewing petitions that have overlaps in project documents and issues presented.

Importantly, this announcement from USCIS does not state that Form I-526E petitions filed under the RIA would be placed into any of these queues. It is not clear from the announcement how USCIS will process Form I-526E petitions, nor has USCIS updated its processing time website to reflect Form I-526E as a type of petition that has a posted processing time. Instead, the July 18, 2023, announcement deals only with those older pending I-526 petitions filed prior to the passage of the RIA. While this new visa availability approach should enable the IPO to increase processing efficiency, reduce the backlog and completion times for Form I-526 petitions, and support consistency and accuracy in adjudications, it is not clear how quickly this change will impact I-526 petition processing times. USCIS has not released recent statistics about the number of IPO adjudicators assigned to Form I-526 petitions, nor does this announcement commit to any specific processing times. Instead, some investors seeking to expedite the processing of their I-526 petitions have filed mandamus actions in U.S. district courts, asking the courts to intervene and order USCIS to decide the I-526 petition due to an unreasonable delay caused by the IPO.

Tucked away in the Code of Federal Regulations is a statute that provides employment authorization to nonimmigrants – such as holders of E-3, H-1B, H-1B1, L-1, or O-1 visas – who are in positions of last resort. Unfortunately, getting U.S. Citizenship and Immigration Services (USCIS) to approve an application for an Employment Authorization Document (EAD) under this stopgap provision may prove arduous and problematic.

However, with USCIS’s recent new guidance aimed at addressing EAD adjudication standards, approval rates may improve and individuals with compelling circumstances may be able to start obtaining this benefit.

USCIS guidance, documented in Volume 10 of the USCIS Policy Manual, provides comprehensive direction on eligibility criteria and application standards for obtaining an EAD based on compelling circumstances. Below are key aspects of this new guidance and its significance in assisting eligible nonimmigrants during difficult times.

A Common Scenario

An H-1B employee – “Kiran” – who is an Indian-born IT professional and has lived in the United States for nine years, is laid-off by his employer. He is given two weeks of severance and has a 60-day grace period in H-1B status. Kiran is the beneficiary of an approved I-140, Immigrant Petition. However, this I-140 is retrogressed and Kiran – who has been waiting for more than seven years for his priority date to become current – cannot file the final stage of his green card application, the I-485, Adjustment of Status Application due to retrogression. Kiran now faces challenging circumstances unless he can remain and work in the United States beyond the 60-day grace period:

  • His spouse has a significant ongoing medical concern.
  • He will need to end the college education of his two children.
  • He must sell their home or default on the mortgage.

Failure to secure H-1B sponsorship with a new employer within 60 days of his termination likely would require Kiran to return to India with his family. Facing these facts, Kiran would be a good candidate for a compelling circumstances-based EAD.

Background on Employment Authorization for Noncitizens

In order to work legally in the United States, noncitizens must obtain employment authorization. While certain individuals are granted automatic employment authorization based on their immigration status or circumstances, others must apply for it, and USCIS has the discretion to grant or deny it. In certain limited circumstances, employment authorization may be provided to individuals who face delays in obtaining immigrant visas due to backlogs. However, USCIS guidance specifically focuses on noncitizens experiencing compelling circumstances beyond the usual hardships associated with job loss.

Eligibility Criteria and Standards for EADs Based on Compelling Circumstances

The policy guidance outlines the eligibility criteria for both initial and renewal applications for an EAD based on compelling circumstances, applicable to both the principal applicant and their dependents. To qualify for an EAD based on compelling circumstances, noncitizens must be in the United States in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period when they file the Form I-765, at the time of filing the EAD application. Additionally, they must be the principal beneficiaries of approved I-140 petitions and must demonstrate compelling circumstances justifying the need for an EAD. Furthermore, individuals with pending adjustment of status applications (form I-485) or whose priority dates are current in the final action chart of the visa bulletin are ineligible for this EAD category. For an applicant to be eligible for an initial EAD based on compelling circumstances, they must also provide biometrics as required and they must not have been convicted of a felony or two or more misdemeanors

Establishing Compelling Circumstances and Supporting Evidence

USCIS provides a non-exhaustive list of situations that may warrant a finding of compelling circumstances. These include serious illness or disability, employer disputes or retaliation, significant harm to the applicant, or substantial disruption to the employer. The policy guidance offers instruction on the evidence that applicants can submit to demonstrate compelling circumstances. For instance, if an individual with a serious illness or disability needs to relocate for treatment and leave their sponsoring employer, relevant medical records and supporting information should be included.

Adjudication Process and Validity Periods

The USCIS policy update explains the process of adjudicating EAD applications based on compelling circumstances and specifies the maximum validity periods that USCIS may authorize. Noncitizens with a valid EAD under compelling circumstances, such as those outlined for Kiran, are considered to be in a period of authorized stay and are not deemed to be accruing unlawful presence. While they may become ineligible for adjustment of status under INA 245(a), they can later depart the United States to apply for an immigrant or nonimmigrant visa at a consular post abroad without triggering the grounds of inadmissibility due to unlawful presence, as long as they have not already accumulated periods of unlawful presence.

Implications and Application Process

The USCIS policy guidance on employment authorization based on compelling circumstances serves as a temporary measure to assist eligible nonimmigrants facing particularly challenging situations. The update not only provides guidance on eligibility criteria and the adjudication process but also highlights the types of evidence required to support compelling circumstance-based EADs. This policy is effective immediately and applies to applications filed on or after June 14, 2023.

Conclusion

Given the amount of recent layoffs, this policy announcement by USCIS may offer a relief mechanism for nonimmigrants like Kiran – people facing unforeseen difficulties. Nonimmigrants experiencing compelling circumstances should consider consulting with an immigration attorney to determine their eligibility for this benefit and receive guidance on the application process.