Search results for: eb-5 modernization

On Dec. 14, the Office of Management and Budget Office of Information and Regulatory Affairs (OMB) published the biennial Unified Agenda.  A long-standing outgrowth of previous regulatory reform efforts, the Unified Agenda offers the public the “current thinking” of federal agencies on upcoming Agency regulatory priorities.

Of importance to the immigration community, DHS USCIS posed the following regulatory priorities-

United States Citizenship and Immigration Services

U.S. Citizenship and Immigration Services (USCIS) is the government agency that oversees lawful immigration to the United States. USCIS’s role is to efficiently adjudicate and manage petitions, applications, and requests for immigration benefits for foreign nationals seeking lawful immigration status in the United States and for individuals seeking to become citizens of the United States, and other matters within the jurisdiction of the agency, in a manner that detects, deters, and prevents fraud, protects the jobs and working conditions of American workers as appropriate, and ensures the national security, public safety, and welfare of the American people. In the coming year, USCIS will promulgate several regulatory and deregulatory actions to directly support these commitments and goals. Continue Reading OMB OIRA Releases Unified Agenda and USCIS Regulatory Priorities, Including H-1B, EB-5, and More

President Obama recently announced proposed changes in immigration policies that impact immigration, with many that may specifically influence the EB-5 Program. The purpose of this article is to outline the measures that could impact EB-5.

On the President’s trip to China he announced that Chinese nationals would be eligible to apply for a 10-year tourist visa. This has caused some Chinese to think that there is no reason to apply for residency via EB-5. This reasoning is incorrect for a few reasons. First, while the individual is eligible to receive a visa for 10 years, it does not mean that the person will receive a visa for 10 years. The consulate may choose to issue it for one year. Second, an entry on a tourist visa is for six months. And, third – most importantly – a tourist visa allows a person to vacation in the United States. That person cannot study or reside permanently in the United States. Thus, the EB-5 classification should still be pursued if an individual desires to reside or study in the United States. Next we move to the most recent Executive Action on Immigration by the President.

Continue Reading President Obama’s Recent Immigration Polices and EB-5 Impact

Yesterday, marked the release of the 844 page Border Security, Economic Opportunity, and Immigration Modernization Act of 2013. The comprehensive immigration reform will was spearheaded by the “Gang of Eight” – namely Senators Rubio, Flake, McCain, Graham, Schumer, Menendez, Bennet and Durbin – and includes various immigration provisions including a number of positive changes to the EB-5 program.

Please read GT’s overview of the key EB-5 provisions on the EB5investors.com website at: http://www.eb5investors.com/blog/key-eb5-issues-contained-senate-comprehensive-immigration-bill-introduced-on-april-17-2013.

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.

Continue Reading OMB/OIRA Publishes the Spring 2018 Unified Agenda of Regulatory Actions

The Department of State’s (DOS) January Visa Bulletin brings some New Years cheer for China and “All Other Countries” designations indicating that that the EB-3 subcategory for professionals and skilled workers will advance by nine months for China, from June 1, 2010 to March 1, 2011, and seven months for “All Other Countries,” from November 1, 2012 to June 1, 2013.  Unfortunately, the EB-3 category for India continues to wallow in a mire of retrogression advancing only two weeks, from December 1, 2003 to December 15, 2003.

The EB-2 category offers little in the way of good reading with China advancing only a month, from January 1, 2010 to February 1, 2010, and India seeing no change from last month’s Bulletin, staying put at February 15, 2005.  The EB-2 category remains “current” for “All Other Countries.”  The EB-5 category remains current for now, but is expected to change in the second half of the fiscal year.

EB Category All Other Countries China India
EB-1 Current Current Current
EB-2 Current 2/1/2010 2/15/2005
EB-3 (prof. & skilled workers) 6/1/2013 7/22/2005 12/15/2003
EB-3 (other workers) 6/1/2013 7/22/2005 12/15/2003
EB-5 Current Current Current

These developments come as no surprise to those of you who follow Charles (“Charlie”) Oppenheimer’s, Chief of the Visa Control and Reporting Division at the DOS, predictions for employment-based cut-off numbers, who expected to see forward movement, albeit at a slower pace than in early 2014.  In this regard, Charlie indicated that he expects to see some further advancement of the EB-3 category for China in February 2015.

For Indian nationals, in particular, the benefits contained in the upcoming Presidential Memorandum on Visa Modernization for employment-based immigrants cannot come soon enough, considering the lengthy wait times outlined above.  Specifically, the Presidential Memorandum is supposed to address, among other things, the following:

  • Allowing individuals whose EB-2 and EB-3 cases are retrogressed to file I-485, Applications to Adjust Status immediately rather than wait years.  The DOS is expected to modify the Visa Bulletin system, and U.S. Citizenship and Immigration Services (“USCIS”) should release a proposed rule change in Spring 2015 that compliments DOS’ modifications.  According to reports, this will result in changes as to when immigrant visas become available and approximately 410,000 people will benefit
  • Establishing faster processing times for PERM labor certification applications, similar to USCIS’ premium processing, along with revised recruitment methods and changes to the harmless error standard
  • Providing parole options for entrepreneurs, inventors, researchers and founders.  This will require a regulatory change and is unlikely to be implemented until late 2015 at the earliest.
  • Enhancing the flexibility and use of I-485 portability to accommodate job changes, such as promotions.  Unfortunately, it will be at least six months before specific application details are released by the White House and employers and employees can start enjoying the benefits that will be contained in the Presidential Memorandum, as outlined in the Executive Action announcement last month.

Some relief is around the corner – the Final Rule for H-4 Employment Authorization Documents is expected to be released sometime in January 2015.  For the meantime, employers and employees should keep tracking employment-based cut off dates in the DOS’s monthly Visa Bulletins.

As we begin the second half of the 113th Congress, the question of whether immigration reform is possible is in the forefront of the Obama Administration and federal legislators’ minds. The political environment is tense. The Republican-controlled House of Representatives is distrustful of the White House and its agencies. The issues surrounding healthcare reform, the government shutdown, and the new voting procedures applied to Administration appointees in the Senate has undercut bi-partisan efforts and momentum.

Many believe that efforts in 2014 to pass immigration reform are dead and can’t be resurrected until after the mid-term elections or even after the next Presidential election in 2016.

However, let’s look at what has been accomplished so far in the 113th Congress. On June 27, 2013, the U.S. Senate approved S.744, The Border Security, Economic Opportunity, and Modernization Act. The legislation includes a path to citizenship for 11 million undocumented immigrants, a new temporary worker program, increased visa numbers for skilled foreign workers, and a nationwide employment eligibility verification system. In the House, to date, there have been five immigration bills reported out of either the Judiciary or Homeland Security Committee. These include:

  1. The Border Security Results Act (H.R. 1417) was introduced on April 9, 2013 by House Homeland Security Chairman Michael McCaul and approved by the House Homeland Security Committee on May 20, 2013 by voice vote. H.R. 1417 requires results verified by metrics to end the Department of Homeland Security’s ad hoc border approach and to help secure our nation’s porous borders.
  2. The Strengthen and Fortify Enforcement Act (H.R. 2278), also known as The SAFE Act, was approved by the House Judiciary Committee on June 18, 2013. The SAFE Act seeks to improve the interior enforcement of our immigration laws by preventing the Executive Branch from unilaterally halting federal enforcement efforts. To this end, the bill grants states and localities the authority to enforce federal immigration laws.
  3. The Legal Workforce Act (H.R. 1772) was introduced on April 26, 2013 by Rep. Lamar Smith and approved by the House Judiciary Committee on June 26, 2013. This bill discourages illegal immigration by ensuring that jobs are made available only to those who are authorized to work in the U.S. Specifically, the bill requires employers to check the work eligibility of all future hires though the E-verify system.
  4. The Supplying Knowledge Based Immigrants and Lifting Levels or STEM Visas Act (H.R. 2131), also known as The SKILLS Visa Act, was introduced by Rep. Darrell Issa on May 23, 2013. The SKILLS Visa Act changes the legal immigration system for higher-skilled immigration and improves programs that make the U.S. economy more competitive. The SKILLS Visa Act was approved by the House Judiciary Committee on June 27, 2013.
  5. On April 26, 2013, House Judiciary Committee Chairman Bob Goodlatte introduced the Agricultural Guest worker Act (H.R. 1773), also known as The AG Act. The Committee approved this bill on June 19, 2013 in a voice vote (20-16). This bill attempts to provide farmers with a new guest worker program to ease access to a lawful, agricultural workforce that employers may call upon when sufficient American labor cannot be found.

The House Democrats even introduced a bill similar to the Senate Comprehensive bill in the form of H.R. 15, The Border Security, Economic Opportunity, and Immigration Modernization Act, with some bi-partisan support. This demonstrates that there is still a will to pass immigration reform.

After meeting with more than five dozen Republican offices over the past two months, it is very clear that there is a belief that the immigration policy in this country is broken and something needs to be done. How to thread the needle and get something passed by both the House and Senate that can ultimately be conferenced and signed by the President is the puzzle. Key Republican Representatives, including Speaker John Boehner, House Majority Leader Eric Cantor, Rep. Paul Ryan, Rep. Raul Labrador, Rep. Ted Poe, Judiciary Committee Chairman Bob Goodlatte and Rep. Darrell Issa, will be the folks to watch as the debate unfolds. Mr. Boehner will try to get key components of immigration reform passed and then sent to the Senate. The Senate will in turn need to pass individual pieces of legislation and hopefully come to an agreeable compromise. Some of the components in play include:

  • Border security
  • Kids brought to the U.S. illegally through no fault of their own
  • H-1B Reform
  • EB-5 Reform
  • New temporary work program
  • Mandatory E-verify
  • A program to deal with the undocumented immigrants currently living and working in the U.S.
  • Agricultural reform

We might settle for a smaller piecemeal reform in the 113th Congress with an eye toward greater reform in the 114th and 115th Congresses. There is still time to get this done!