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EB-5 Insights

Where Government Policies and Business Realities Converge

By Jennifer Hermansky on Posted in EB-5, EB-5 Immigrant Investor Program, EB-5 Investment, EB-5 Program, Executive Order, Green Cards, Immigrant Visa, Immigration, Immigration Law, President Trump's Administration, USCIS

As we previously reported, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum entitled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens” on June 28, 2018. This Policy Memorandum was issued in response to President Trump’s Executive Order (EO), “Enhancing Public Safety in the Interior of the United States.” One of the priorities listed in the EO is to remove aliens from the United States where necessary, including those aliens who are deportable or inadmissible, with no exceptions. USCIS has the authority to file a Notice to Appear to start deportation proceeds against EB-5 investors in several instances:

  1. There has been an immigration violation and the alien is out of status;
  2. There is fraud, misrepresentation, and abuse of public benefit programs; and
  3. There is a conviction for a crime, or even an arrest for a criminal offense where the case has not yet been resolved.

It is now more important than ever for EB-5 investors to maintain their eligibility for conditional permanent resident status, especially during any period of visa backlog occurring in between the time of I-526 Petition approval and when the investor’s priority date becomes current.

This is the first in a series of blog entries discussing how EB-5 investors and their dependents can maintain eligibility for permanent residence. This blog post focuses on maintaining nonimmigrant status.

EB-5 investors and/or their dependent family members who may be in the U.S. with nonimmigrant status must be careful to maintain that nonimmigrant status to avoid being placed in removal proceedings by USCIS.

Many investors and/or their dependents are foreign students in the U.S. Foreign students in the U.S., including dependents of investors, should understand that they:

  • Must continue studies pursuant to the F-1 or J-1 or M-1 forms issued by the school;
  • Cannot work without permission. Students must work pursuant to CPT or OPT or part-time on campus employment. Students must keep in mind that even unpaid internships or volunteer work can be considered “employment,” thus they must check with their school and immigration attorney to see if the activity is permitted under the student status; and
  • Should check with their lawyer and international students office before: working, changing programs, reducing course load or stopping coursework.

Importantly, the Trump Administration recently changed certain immigration rules as they apply to foreign students. An F, J, or M nonimmigrant begins accruing “unlawful presence,” due to a failure to maintain his or her status on or after Aug. 9, 2018, on the earliest of any of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity (such as unauthorized employment);
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period);
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain;
  • The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

Any EB-5 investor or dependent who accrues more than 180 days of unlawful presence is thereafter barred from entering the U.S. in any category, including on a green card, for three (3) years. Any EB-5 investor or dependent who accrues more than 365 days of unlawful presences is thereafter barred from entering the U.S. in any category, including on a green card, for ten (10) years. Accruing unlawful presence following the violation of student status can bar an EB-5 investor and/or dependent from obtaining the EB-5 green card. It is critical for foreign students to check with their international student office and/or their immigration attorney prior to changing their coursework, reducing coursework, taking time away from school, or accepting any employment, including volunteer positions and unpaid internships.

For EB-5 investors or their dependents in another nonimmigrant status in the U.S., such as H-1B or H-4, L-1 or L-2, and E-1 or E-2, changes to employment can affect underlying nonimmigrant status. Changing employers, location of employment, wage rate and/or position can have an effect on whether the investor is maintaining proper status in the U.S. It is critical for the investor to check with his or her immigration attorney prior to making any changes to employment to ensure he or she is maintaining lawful status in the U.S. Failure to maintain lawful status in the U.S. can lead to the commencement of deportation proceedings and ineligibility for the EB-5 green card.

By Greenberg Traurig on Posted in EB-5, EB-5 Program, Immigration, Immigration Law

The National Law Journal selected the 2018 Trailblazers in Immigration. This year, Greenberg Traurig Immigration & Compliance attorneys Laura Reiff and Kate Kalmykov were recognized on the list for their notable achievements in the practice of law.

Kalmykov leads the immigration practice group in the firm’s New York, New Jersey, and Philadelphia offices.  She has more than 12 years of experience in managing large-scale EB-5 offerings and business immigration clients that include architectural firms, technology, research and development companies, major banks, universities, and hospitals.  Kalmykov represents clients in a wide-range of employment based immigrant and non-immigrant visa matters including students, trainees, professionals, managers and executives, artists and entertainers, treaty investors and traders, persons of extraordinary ability, and immigrant investors.

Reiff co-chairs the Business Immigration & Compliance Practice and is the co-managing shareholder of the firm’s Northern Virginia office. She focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies, as well as related employment compliance and legislative issues.  Reiff advises corporations on a variety of compliance-related issues, particularly related to Form I-9 eligibility employment verification matters.

To read the full list of NLJ Trailblazers, click here.

By Robert Y. Maples on Posted in E-Visa, Immigrant Visa, Immigration, Immigration Law, Visa, Visa Issuance

As an update to an earlier post, on Aug. 1, the president signed the Knowledgeable Innovators and Worthy Investors Act (KIWI Act) granting E-1 and E-2 status to certain New Zealand nationals under mutual considerations. This will permit citizens of New Zealand to apply for U.S. visas to carry on significant trade with the United States (E-1) or after making a substantial investment in the United States (E-2). The KIWI Act is now designated as Public Law 115-226 (132 STAT. 1625).

For more information on E-Visas, click here.

By Martha Schoonover on Posted in NTAs, USCIS

As previously reported, on June 28, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.”   USCIS has announced that because it is waiting for operational guidance on the Policy Memo from its internal components, the implementation of the Notice to Appear Policy Memorandum has been postponed until the operational guidance has been issued.  The agency did not indicate when that might happen.  Our team will continue to monitor and report updates on the status of the Policy Memorandum and its impact on our clients.

By Kristen W. Ng on Posted in Denials, NOID, Notices to Appear, RFE

On June 28, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” Later, on July 13, 2018, the USCIS issued a Policy Memorandum titled “Issuance of Certain RFEs and NOIDs.” The two memoranda do not necessarily go hand in hand, but the question lingers whether a denial on an immigration benefit (that leads to no status) will automatically lead to a Notice to Appear (NTA).

To read the full GT Alert, click here.

By Kristen W. Ng on Posted in President Trump's Administration, Travel

The U.S. Supreme Court, on June 26, 2018, upheld President Trump’s Proclamation on the Travel Ban in Trump v. Hawaii. As previously blogged, the Proclamation was issued by President Trump on Sept. 24, 2018. It was then blocked by the District Court, after which the Ninth Circuit partially stayed, and on Dec. 4, 2017, the Supreme Court issued an order allowing the Proclamation to go fully into effect.

Chief Justice Roberts delivered the opinion of the Court, with Justice Kennedy and Justice Thomas concurring. Justice Breyer dissented, joined by Justice Kagan, while Justice Sotomayor dissented, joined by Justice Ginsburg. Chief Justice Roberts begins by reiterating the timeline for the Proclamation, as well as the two previous Executive Orders on the Travel Ban. A summary of the two Executive Orders can be found in our blog posts “Summary of Executive Order: Protecting the Nation from Terrorist Attacks by Foreign Nationals” and “New Travel Ban Order to Temporarily Halt Entry for Those Seeking New Visas from 6 Muslim-Majority Countries.”

Chief Justice Roberts discusses the two issues at hand: 1) whether the president has the executive power to limit the entry of certain individuals, and 2) whether this Proclamation in particular violated the Establishment Clause. The Supreme Court held that 1) the president does have this broad authority and that the issuance of the Proclamation (as well as its contents) are in his authority, and 2) the contents of the Proclamation do not violate the Establishment Clause, as the plaintiffs have alleged. The discussion is below on the two issues.

First Issue: Does the President have the authority to issue the Proclamation?

Chief Justice Roberts addresses the plaintiffs’ argument that the Proclamation contravenes provisions in the Immigration and Nationality Act (INA), and that the president does not have the authority to issue the Proclamation under the INA because the authority only allows a halt of entry for those entering to engage in harmful conduct and that it discriminates on the basis of nationality in the issuance of immigrant visas.

The Court addresses these arguments by citing Section 1182(f) of the INA, where it states:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Chief Justice Roberts analyzes the Proclamation’s contents and writes in the opinion that President Trump met all the requirements as set forth. He cites the contents of the Proclamation, including the thorough review of the countries, the focus on exchange of information between countries, and also the review period that has allowed for countries to be removed from the list once they were deemed compliant. The Court cites examples of previous administrations that also issued Proclamations to suspend entry into the United States for certain individuals.

The plaintiffs also argued that Section 1182(f) does not give the president the authority to surpass congressional policies that have been laid out, specifically the vetting system designed by Congress to determine admissibility, and also the information sharing system created through the Visa Waiver Program. The Court addresses both issues and notes that the vetting system is only enhanced by the Proclamation and that the focus of the Proclamation is on the foreign country’s ability to provide the information needed. Second, the Visa Waiver Program is in place for countries that have already fulfilled the information exchange process, and that it does not necessarily apply here. For this sub-argument, the Court’s opinion is that the Proclamation only supplements the efforts of Congress.  In addition, the Court cites to historical practice of instances where Proclamations have been issued to limit the entry of certain groups of people.

Thus, the holding on the first issue is that the Proclamation is squarely within the scope of President Trump’s authority under the INA.

Second Issue: Does the Proclamation violate the Establishment Clause of the First Amendment?

The plaintiffs also claim that the Proclamation violates the Establishment Clause of the First Amendment because it targets Muslims/those in the Islamic faith. The Court looks at this issue and discusses statements made by the president and his advisors to understand the intent and rhetoric behind the Proclamation. The Court reviews the timeline and statements made by the president and his advisors and concludes “the President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf.”  In considering the statements made by the president, the Court also considers the president’s authority. In this particular case, the Court finds that the Proclamation has a legitimate purpose – it prevents entry of nationals who cannot be adequately vetted and induces other countries to improve their practices. Because the Court does not find any text on religion within the Proclamation and it notes that the policy only covers eight percent of the world’s Muslim population, the Court does not find a violation of the Establishment Clause of the First Amendment.

In concluding the opinion, Chief Justice Roberts writes that the activities surrounding the Travel Bans, starting with the Executive Orders, have already supported the fact that it was issued in response to a legitimate national security interest. First, three Muslim-majority countries have already been removed from the list of covered countries. Second, the Proclamation includes text that will provide exceptions to certain individuals from the listed countries such as permitting students and exchange visitors from Iran). Third, the Proclamation includes the ability to apply for a waiver.

By Robert Y. Maples on Posted in EB-5, EB-5 Immigrant Investor Program, USCIS

Today, the U.S. Senate Committee on the Judiciary held an oversight hearing on the Immigrant Investor EB-5 program.  The well-attended full committee hearing focused on reported fraud within the current program and the path forward for EB-5.  The sole witness was USCIS Director Francis Cissna.

There were a few takeaways from the hearing, including:

  • Director Cissna indicated that the proposed EB-5 Modernization and Regional Center regulations may take beyond the current September program authorization date to accomplish. He indicated that other agency priorities are competing for USCIS resources at the current time.
  • When asked by Sen. Graham (R-SC) if he supported the EB-5 program, Director Cissna responded, “it’s lawful.”
  • Director Cissna stated that without needed reforms to the program, he would recommend “letting it expire.”
  • Director Cissna also advocated for legislative reform to address needed authorities for USCIS and to make programmatic changes.

The Members seemed open to reform legislation and continuation of the program citing the economic success of EB-5 in their states.

The hearing was extended due to extraneous discussion of the Administration’s “Zero Tolerance” border policies.

For more on the hearing, please visit https://www.judiciary.senate.gov/meetings/citizenship-for-sale-oversight-of-the-eb-5-investor-visa-program

By Jennifer Hermansky on Posted in I-829, USCIS

On June 11, 2018, USCIS announced that Petitioners who file Form I-829 Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, will receive a Form I-797 receipt notice that can be presented with their Form I-551, Permanent Resident Card, as evidence of continued status for 18 months past the expiration date on their conditional Permanent Resident Card. Previously, USCIS only issued receipt notices that would be valid for 12 months past the expiration date on the conditional Permanent Resident Card. USCIS made the change from 12 to 18 months to reflect the current processing times for Form I-829, which have increased over the past year.

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By Sylvia Sobczyk on Posted in I-829, USCIS

On May 2, 2018, the United States Citizenship and Immigration Services (USCIS) issued a Policy Alert regarding an update made to the USCIS Policy Manual related to the documentation for conditional permanent resident (CPR) status provided by USCIS to immigrant investors with pending I-829 petitions.  Every EB-5 investor with CPR status must file an I-829 petition to remove conditions by filing a Form I-829 petition within 90 days of the expiration of the two-year CPR status. USCIS then issues receipt notices to each EB-5 investor and dependent family member upon receiving the properly filed I-829 petition. The I-829 receipt notices evidence continuing CPR status (including travel and employment authorization) for an additional year after the expiration of the CPR card until the I-829 petition is adjudication or an order or removal becomes final. The Policy Alert explains that the original guidance which was previously found in Chapter 25.2 of the Adjudicator’s Field Manual (AFM) and not yet published in the USCIS Policy Manual, is now reaffirmed in Volume 6, Part G of the Policy Manual.

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By Robert Y. Maples on Posted in EB-5 Immigrant Investor Program, Eb-5 Regional Center, USCIS

Today, the Office of Management and Budget via the Office of Information and Regulatory Affairs published the Spring Unified Agenda of Regulatory and Deregulatory Actions . This bi-annual publication informs the public of regulations under consideration or planned by federal agencies.  Agencies are not bound by these postings, but transparency in the rulemaking process is important and, as such, the Unified Agenda is an important regulatory guide.

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