On Jan. 29, 2020, USCIS announced that it would be making a significant change to the processing of I-526 Petitions, commonly referred to as EB-5 Petitions. USCIS previously had a…
Continue Reading USCIS Announces Significant Change to EB-5 Adjudications Processing
This coming October, USCIS is allowing a number of foreign nationals to apply for adjustment of status earlier than they would otherwise be eligible. Specifically, USCIS has announced that it…
Continue Reading Important Development for Vietnamese and Chinese EB-5 Investors in October 2018
Today, President Trump joined Senator David Perdue (R-GA) and Senator Tom Cotton (R-AR) announcing the introduction of a bill titled “Reforming American Immigration for a Strong Economy Act,” known also as the “RAISE Act.” The president praised the work of the senators and in a statement added, “We want a merit-based system. One that protects workers, our workers, our taxpayers, and one that protects our economy. We want it merit-based.”
Highlights from the bill are included below:
- Eliminates the diversity visa program.
- Sets the maximum number of refugee admissions to 50,000 per fiscal year.
- Worldwide level of family sponsored immigrants is 88,000. The number of humanitarian paroles, if the individual has not departed or has not adjusted status, will be counted against that number.
- A new classification is created for the alien parents of adult U.S. citizens for admission for five years, but will not be able to receive public benefits or work authorization.
- A person cannot naturalize if the person who executed an affidavit of support failed to reimburse the Federal Government for all mean-tested public benefits received by the person during the 5-year period.
- Annual and quadrennial reports will be required to monitor the progress and numbers.
- The creation of an immigration points system to replace the employment-based immigrant visa categories.
- Effective date will be the first day of the first fiscal year that begins after the date of enactment. Those exempt are those who have been granted admission prior to enactment, but he or she will need to enter within one year of enactment.
The Department of State (DOS) recently published its annual report of immigrant visa applicants (2015 Annual Immigrant Visa Report), which tallies up the number of total applicants—including spouses and children—who are waiting for their respective priority date to become current, allowing for them to obtain their green card. The annual report, which totals the number of applicants up to Nov. 1, 2015, does not take into account those applicants who have adjustment of status applications pending with the U.S. Citizenship and Immigration Services (USCIS) as of Nov. 1.
Overall, 2015 saw a three precent increase of total applicants compared against last year, increasing from a total of 4,422,660 for 2014 to 4,556,021 for 2015. This total includes both family-based green cards and employment-based green cards. Employment-based green card applicants only accounted for roughly 100,000 of the 4.5 million. When compared against 2014, the percentage of employment-based applicants waiting to apply for their green cards increased from 90,910 to 100,747—an increase of 10.8 percent.
Once an EB-5 investor receives permanent residency (whether conditional or unconditional), they must follow certain rules and regulations to ensure they do not lose their permanent residency, including physical presence requirements. Additionally, if an EB-5 investor desires to obtain U.S. citizenship, he or she must meet certain residence and physical present requirements.
In order to maintain permanent residency, an EB-5 investor should not remain physically outside of the United States for more than one year without obtaining a reentry permit or returning resident visa. However, in determining whether an EB-5 investor has abandoned his or her status, USCIS may consider any length of absence from the United States, even if less than one year. If an EB-5 investor secures a reentry permit, he or she should not remain physically outside of the United States for more than two years after issuance of a reentry permit without obtaining a returning resident visa. EB-5 investors also should file their income tax returns in a timely fashion and make sure not to declare themselves a “non-immigrant” on such income tax returns. Lastly, USCIS will attempt to ascertain the intent of an EB-5 investor if it is inquiring about whether or not the EB-5 investor has abandoned his or her permanent residency. An EB-5 investor can take certain steps, including, without limitation, holding property within the United States; establishing personal connections with family, friends and other members of the community in which the EB-5 investor resides; ensuring employment can be completed remotely from the United States or does not require significant time spent abroad; and always declaring themselves to be a permanent resident of the United States and listing his or her permanent address as the United States on any government form, whether for the United States or another country, to demonstrate to USCIS the requisite intent to remain a permanent resident.
After finally being issued a Green Card, the last thing any Lawful Permanent Resident (LPR) of the United States would want is to lose his / her permanent residency status. It is important that LPRs understand certain requirements they must fulfill in order to maintain this status. Other than obeying all of the laws of the United States and filing income tax returns there, LPRs must take steps to ensure they are not risking abandonment of their permanent residency status. In order to do this, it is essential that LPRs spend at least 180 days each year in the United States. But what specifically is the “United States”?
According to the Immigration and Nationality Act Section 101 (a) (38): the term “United States,” except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands. Therefore, LPRs could spend time in the continental United States or any of the U.S. commonwealths to fulfill their residency requirements. This definition may be particularly interesting for LPRs who face a 7,136 mile, eleven hour long flight from China to the continental United States.