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Immigration View

Navigating Complex U.S. Immigration Laws

Delay Reported in EAD and Greencard Issuance

Posted in EB-5 Immigrant Investor Program, Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, H-1B Temporary Workers, Immigrant Visas, Intrcompany Transferees (L-1 and Permanent Residence), Investors, Traders and Entrepreneurs (E visas and Permanent Residence), Non-Immigrant Visas (other than Es, Ls and H-1B), Permanent Residence, Startup Companies

If you’re waiting for your employment card or greencard to be issued, your wait may be slightly longer than usual by a few weeks. 

AILA (the American Immigration Lawyers Association) provided notice that there have been reports of delayed issuance of employment cards (EADs) and of US Permanent Residence cards.  The delay is not in the adjudication period, but rather in the amount of time between the date of an approval and the date when USCIS issues the EAD or greencard to the beneficiary. 

The delay is said to result from maintenance measures at one of the card-production facilities, which in turn necessitated the temporary transfer of card production processes to a different facility.  The timings are expected to return to normal sometime in the second half of September.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

 

USCIS Will Discontinue Legacy e-Filing System after September 20, 2015

Posted in Uncategorized

In order to maintain data security standards and focus resources on the replacement Electronic Immigration System, USCIS decided to discontinue its legacy e-Filing system, which has offered online filing for several USCIS forms. After the legacy e-Filing System is discontinued, the following forms must be filed in paper:

  • Form I-131, Application for Travel Document
  • Form I-140, Immigrant Petition for Alien Worker
  • Form I-765, Application for Employment Authorization
  • Form I-821, Application for Temporary Protected Status
  • Form I-907, Request for Premium Processing Service

Please note the last day to start new forms in the existing e-Filing system is August 30, 2015 and all forms must be completed and submitted by September 20, 2015, after which paper versions of above mentioned forms must be used. According to USCIS, the forms being removed from the legacy e-Filing system will not be available immediately in the Electronic Immigration System, but there are plans in place to add them in the future.

The City of Miami EB-5 Regional Center and Affordable Housing

Posted in EB-5 Immigrant Investor Program, General Immigration News and Updates, Investors, Traders and Entrepreneurs (E visas and Permanent Residence), Permanent Residence

I was fortunate to be invited to speak at the City of Miami EB-5 Summit on Affordable Housing a few weeks ago. I was a member of the panel that was comprised of attorneys, economists and other professionals in the EB-5 space. The City of Miami EB-5 Regional Center had sponsored the conference in order to discuss and explore the use of EB-5 capital in developing mixed-use projects that include affordable housing.

Mayor Tomas Regalado gave the key note address. He spoke of the need for affordable housing in the City of Miami and South Florida. According to Mayor Regalado the purpose of the summit was to attract developers and investor capital to projects that include an affordable housing component.

I discussed the use of EB-5 capital in Village Center mixed-use projects. I spoke about how attractive Village Center mixed-use projects are for developers and EB-5 investors. The village center concept includes retail, housing, office space, hotel and a village center. The concept includes substantial green space and pedestrian friendly boulevards. It is meant to be a space for living, working and enjoying life. The Village Center would provide residents with cultural and social activities. That in turn would create the fabric of the community.

Due to a lack of affordable rental housing in Miami the project is one that is financially attractive not only to investors, but also banks that provide construction financing. The abundance of green space in the projects combined with the potential to include health and wellness centers make the space ideal for families and senior citizens.

Currently there are several village center mixed-use projects on the drawing board in the South Florida area. They are slated for municipalities in Coral Gables, Miami and Aventura. All of them provide for rental housing and all include a village center.

During my presentation I stressed that EB-5 projects need to be marketable. Investors are very savvy and look for projects that have the greatest probability of financial success. The concept of the project is important, but so is the capital stack. The most successful EB-5 projects are those where the EB-5 component is less than 30% of the capital stack. Projects that are well capitalized and financed are usually successfully developed. Investors look for an assurance that the project they are investing in will be completed. The completion of the project guarantees the investor their immigrant visa. The return of the investor’s capital is more likely guaranteed in a project that is financially successful. The village center mixed use project is a good option for creating affordable housing in South Florida utilizing EB-5 capital. The City of Miami accomplished it goal of educating real estate developers and others concerning the benefits of EB-5 capital.

China EB2 Retrogresses significantly; India EB2 Retrogresses moderately; other categories move forward – Visa Office on Priority Dates, Demand, and Predictions

Posted in EB-5 Immigrant Investor Program, General Immigration News and Updates, Immigrant Visas, Investors, Traders and Entrepreneurs (E visas and Permanent Residence), PERM Labor Certification, Permanent Residence, Priority Dates

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (August 14, 2015), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie answers a series of questions from the public, with no individual commentary on the immigrant visa preference categories for this month or next:

QUESTION 1: Last month you were hopeful that EB-2 India/China would hold steady or possibly advance for September. However both categories have retrogressed significantly. What caused this to occur?

ANSWER: The September retrogression of EB-2 China and India can primarily be attributed to skyrocketing demand for EB-2 Worldwide, which has left fewer numbers available for India and China. Currently, the availability of visas for India and China is largely driven by Worldwide demand. Earlier this year, EB-2 Worldwide demand was around 2,400 per month and started creeping up in March. In June, demand peaked at 6,700, and with July usage totaling 4,400 it was necessary to take corrective action for EB-2 China and India to limit future number use.

Similarly, fewer EB-1 numbers are available to fall down to EB-2 China and India. During the second quarter of the fiscal year, 9,300 EB-1 numbers were used. That jumped to 13,500 EB-1 numbers in the third quarter.

In particular, overall EB-2 India usage is down significantly this year due to the fact that fewer unused numbers are available for this category. Last fiscal year, EB-2 India used approximately 23,000 numbers. This year, it is expected that EB-2 India will use approximately 7,500 numbers. This is approximately 9,700 fewer numbers than that which were used in FY 2013.

 

QUESTION 2: How likely is it that EB-2 India and China will advance significantly with the start of the fiscal year on October 1?

ANSWER: It remains to be seen what will happen in October as we enter the new fiscal year.

 

QUESTION 3: Is it expected that all numbers in all categories will be exhausted by the end of the fiscal year?

ANSWER: Yes. All visa numbers in all categories will be exhausted. There has been some concern about EB-3 number use because there appeared to be a decrease in demand which caused the Worldwide cut-off date to advanced rapidly. There is sufficient EB-3 India applicants in the pending demand file to ensure that all “otherwise” unused numbers will be used this fiscal year.

 

QUESTION 4: The “Visa Modernization” proposal promises to refine the monthly allocation of visas, increasing the number of visas allocated during the first three quarters, and implementing new processes for allocation during the final quarter of the fiscal year. Can you please elaborate on this plan? Do you expect to implement the changes effective 10/1/15?

ANSWER: This is still a work in progress but members should be happy with what is ultimately rolled out. Some changes have already been implemented. As stated in the Visa Modernization proposal, members may see more aggressive cut-off date movements for some preference categories earlier in the year. Similar movement occurred earlier this year with regard to EB-2 India; advancement of that category started much earlier than in prior years to allow USCIS sufficient time to complete processing of the cases, many of which were EB-3 upgrades, earlier within the fiscal year. However, aggressive movement earlier in the year can have “negative” consequences during the final quarter when there are fewer numbers available. As a result it could be necessary to take corrective action if it becomes clear that there would be fewer numbers available from other categories.

In addition to accelerating cut-off date movements earlier in the fiscal year, other options are being explored. As plans are refined, the information will be made available to the public.

You may access the August 2015 Visa Bulletin here and the September 2015 Visa Bulletin here.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

EB-2 China and India retrogress; other categories move forward: September 2015 Visa Bulletin Released

Posted in Consular Issues, General Immigration News and Updates, Immigrant Visas, PERM Labor Certification, Permanent Residence, Priority Dates

The Department of State has released the Visa Bulletin for September 2015. There was forward movement in most employment-based and family-based visa categories, however, EB-2 China and India experienced severe retrogression (to 1/1/06). This represents a retrogression of nearly 8 years for China EB2 and almost 3 years for India EB2. Also included is information on the worldwide numerical limits for FY2015.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

STEM OPT in Jeopardy After Judge’s Order

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement)

Since 2008 , DHS has permitted F-1 students whose study was in a STEM field and whose employer is an E-Verify participant to have an additional 17-month period of OPT (Optional Practical Training).  Thousands of students and E-Verify employers have benefited from this extended period of employment authorization.  The work of these students has resulted in a challenge to STEM OPT by tech workers; specifically a suit in the U.S. District Court for the District of Columbia, Washington Alliance of Technology Workers v. U.S. Department of Homeland Security.

On August 12, 2015, the Judge before whom the case is pending VACATED the STEM OPT Extension program as its creation failed to comply with the notice and comment requirements of the Administrative Procedures Act (APA).  The court recognized the serious disruption that would result from the immediate implementation of her finding, so stayed the order for 6 months, during which time DHS could comply with the requirements of the APA.

The litigation continues and hopefully, STEM OPT will be able to continue uninterrupted beyond February 12, 2016.

 

Be One of Our Blawg 100 Amici! Nominate the Immigration View blog and Put Us in the Top 100!

Posted in General Immigration News and Updates

It only takes a minute!

Every year, the ABA Journal invites nominations for its Blawg 100 list, a compilation of staff and reader “favorites” within the legal blogosphere. The rigorous selection process for the 2015 list has begun, with the magazine calling for recommendations from “Blawg Amici” – regular readers who wish to support and spread the word about their favorite legal blogs.

Here’s a sampling of posts from the past year:

If you have enjoyed and valued our updates during the past year and believe Immigration View deserves a spot in the top 100, we invite you to take a few moments to nominate us. The online nomination process is very quick – it shouldn’t take more than a minute or so.

Blawg Amici nominations will be accepted until 11:59 p.m. CT on August 16, 2015. Thank you in advance for your support!

Some Immigration Reform Is Coming!

Posted in EB-5 Immigrant Investor Program, Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, J-1 Waiver

Notwithstanding the years’ old gridlock in regard to immigration reform, some significant changes will take place on or before September 30th.  It’s not that Congress has had an epiphany.  Several important immigration laws will sunset on September 30th unless reauthorized by Congress.  If Congress does nothing, four major immigration programs will come to an end: E-Verify, the Conrad State 30, EB-5 and the Special Immigrant Non-minister Religious Worker programs.

E-Verify is the mostly voluntary electronic employment eligibility verification program used by hundreds of thousands of US employers in conjunction with their I-9 employment eligibility verification of new workers.

The Conrad State 30 program allows each state and the District of Columbia to recommend up to 30 waivers per year of the 2-year home-residency requirement imposed upon J-1 physicians who have completed medical training in the US.  In exchange for the waiver, the physician must practice medicine in a medically underserved area pursuant to state and federal guidelines. Conrad 30 waivers have resulted in countless medically underserved Americans having access to medical care that otherwise would not be available.

EB-5 is the employment creation visa that provides a path to permanent residence for aliens who invest $1 million or more in a new commercial enterprise which creates 10 or more full time jobs.  There is an option for investment of $500,000 in a high unemployment area known as a “targeted employment area”.  The EB-5 program has enabled billions of dollars in investment in the US and many thousands of new full-time jobs for US workers.

The Non-minister Religious Worker program is much more limited than the other 3 programs, but no less important for the religious organizations who rely on these workers.

These are major programs whose sunset would have such extraordinary implications.  As such, it is unlikely that they will all sunset; however, there may be material changes.  In anticipation of change, many potential EB-5 investors are filing their applications, many medical providers are seeking Conrad 30 waivers and religious organizations are petitioning for their currently eligible workers.

By September 30th, whether there is Congressional action or inaction each of these 4 immigration programs will be effected, resulting in their substantive change, simple reauthorization or termination.

Current Conrad State 30 Program Expires on September 30, 2015

Posted in General Immigration News and Updates

The Conrad State 30 Program is scheduled to sunset on September 30, 2015. The Conrad 30 Program allows state health agencies to hire up to 30 foreign physicians annually to practice in medically underserved areas. In turn, these sponsored J-1 medical physicians can apply for a waiver for the 2-year residence requirement upon completion of the J-1 exchange visitor program if they work for a minimum of three years with the medically underserved areas. Even though the program has existed since 1994 and has been extended by Congress several times, the current reauthorization expires on September 30, 2015.

Historically, Congress has reauthorized the Conrad 30 Program each time it has been set to expire.   U.S. This year, Senators Amy Klobuchar (D-MN) and Heidi Heitkamp (D-ND) have proposed legislation not only to reauthorize the Conrad 30 program, but also to improve it. The bill, “Conrad State 30 and Physician Access Act,” S.1189, would, among other things, remove the sunset provisions, clarify requirements of the Physician National Interest Waiver classification, and make important technical fixes to the program including confirming the ability of J-2 spouses to change status to classifications other than H-4.

If the Program is not reauthorized by September 30, 2015 and does sunset, it does not mean that the Conrad Program will immediately shut down. States will still be able to support waiver applications for J-1 physicians who were admitted in, or acquired, J-1 status before the sunset date. Failure to reauthorize the program affects the ability of J-1 physicians admitted in or acquiring J-1 status after the sunset.

USCIS Publishes Draft EB-5 Policy Memorandum for Public Comment

Posted in EB-5 Immigrant Investor Program, General Immigration News and Updates, Immigrant Visas

USCIS Publishes Draft EB-5 Policy Memorandum for Public Comment

USCIS issued a DRAFT policy memo relevant to EB-5 adjudication of Form I-526 and Form I-829 regarding the requirements for job creation and to sustain the investment during the conditional residence period.

Any interested party may submit comments to the draft memorandum by email to ope.feedback@uscis.dhs.gov by Tuesday, September 8, 2015.  USCIS asks that all commentators  include the following to make the comments clear:

  • State the title of the relevant memo in the subject line of your message;
  • Refer to a specific portion of the memo;
  • Explain the reason for any recommended change; and
  • Include data, information, or authority that supports the recommendation.

 

You may review USCIS has draft policy memorandum here:  Guidance on the Job Creation Requirement and Sustainment of the Investment for EB-5 Adjudication of Form I-526 and Form I-829

 

For complete information on the comment process, visit the Feedback Opportunities section of www.uscis.gov.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.