On Wednesday, July 24th 2019, the U.S. Department of Homeland Security published a new EB-5 regulation which will go into effect November 21, 2019.  The new EB-5 regulations will effectuate a number of changes, including increasing the minimum investment amounts, revising the standards for TEA determination, allowing investors to maintain their priority dates, and clarifying procedures for investors removing conditions on permanent residence.

  • Increasing the Minimum Investment Amounts:

 The new regulations increase the minimum investment amounts for TEA investments from $500,000 to $900,000 and for non-TEA investments from $1 million to $1.8 million.  This change maintains the 50% ratio as before with the minimum investment distinction between TEA and non-TEA investments.   Additionally, moving forward, the government will adjust the minimum investment amounts every 5 years to account for inflation.

Investors who have been considering making an EB-5 investment should move so immediately to avoid paying an additional $400,000 for a TEA investment.  There is sufficient time to file an investor’s I-526 petition before November 21, 2019.  The next 120 days provides investors with ample time to select a project, work on their source of funds documentation with immigration counsel, complete the subscription agreement, wire the funds, and authorize immigration counsel to file their I-526 immigrant investor petition.

  • Revising the Standards for TEA Determination:

The new regulation addresses one of the most hotly contested items surrounding the EB-5 program: TEA designation.  The regulation changes the manner by which TEAs are determined and removes State authority for TEA designation.  TEAs will now be managed by the Department of Homeland Security.  Specifically, TEAs may be issued for projects that can meet the 150% the national average unemployment through use of a single census tract, where the project is located, plus directly adjacent tracts that touch the tract where the project is located.

This revised standard will likely minimize the number of projects that qualify for TEA designation.  Likewise,  we expect to see a change in the types of EB-5 projects in the market with a shift out of major metropolitan areas and into smaller or rural areas, or areas of high unemployment.   The new regulations expressly address the contentious ‘gerrymandering.’

  • Allowing Investors to Maintain Priority Dates:

 One of the positive changes in the new regulations offers investors with approved I-526 petitions the flexibility to maintain their priority dates and file a new petition.  This is tremendous for investors who invested in a project that failed or a regional center that was terminated.

  • Clarifying Removal of Conditions:

The regulation also provides clarity for investors filing the I-829, Petition to Remove Conditions on Permanent Residence.  Specifically, the rule indicates that family members who are lawful permanent residents must file their own application to remove conditions on their permanent residence.  This would not apply to relatives who were included in the principal EB-5 investor’s petition to remove conditions.

  • Explaining Application of Grandfathering:

 Moving forward, there will be no grandfathering of projects, only filed I-526 petitions.  As a result, it is likely we will see some projects currently in the marketplace cease fundraising efforts.

Barring legislative action, we expect the new rule will go into effect on November 21, 2019 and become the new standard for the EB-5 program.  Developers, Regional Center Owners/Operators, and Investors should act within the next 4 months in order to benefit from the program under the current regulation.  There is sufficient time to file EB-5 investor petitions before the new rules become effective.  Please reach out to me immediately and directly should you wish to file an investor petition or establish a new EB-5 project.

 

Ali Brodie is a Partner and the Co-Chair of the Immigration and EB-5 Immigrant Investor Practice Groups of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance. Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide. You can reach Ali at (303) 446-3854 or at abrodie@foxrothschild.com.

USCIS’ previous practice of adjudicating the I-539, Application to Extend/Change Nonimmigrant Status, filed with a qualifying I-129 petition under Premium Processing has ended.  USCIS now requires every I-539 applicant pay a biometrics fee and an Application Support Center appointment take place to capture the applicant’s biometrics.  This has led to I-539 applications taking substantially longer to process.  I-539 applications cannot be premium processed.    

Applicants should contact an immigration attorney to discuss issues such as timing and travel restrictions. 

At a recent event, one of my former high school classmates who today is a distinguished Stanford University professor asked me whether there was much immigration legal work in Pittsburgh.  He then commented that 80 percent of his graduate students were foreign nationals.

Of course, the same likely could be said for Carnegie Mellon or the University of Pittsburgh because a majority of graduate students in the nation’s science, technology, engineering and mathematics (STEM) fields are foreign nationals.

Some surprising hard statistics drive home this point. A 2017 study reports that 81 percent of full-time graduate students in electrical and petroleum engineering at U.S. universities are international students, and 79 percent in computer science are foreign nationals. The Pew Research Center noted that the federal Optional Training Program or OPT has seen a 400 percent increase in foreign students graduating and working in STEM fields from 2008 to 2016.

Immigrants from all over the world are being educated at American institutions of higher education, and many are seeking or being sought after to stay and apply their knowledge and talent to the United States workforce.

Education, in many ways, is a U.S. export with a positive balance of trade. Many foreign students pay full tuition, others make academic, scientific, economic and entrepreneurial contributions to this country’s body of work, knowledge and innovations.  They are often top students or they wouldn’t have made it here.  Their numbers are declining because current immigration policy makes a foreign student’s ability to stay in the U.S., regardless of their accomplishments or an employer’s need for their service, less secure.

The U.S. Citizenship and Immigration Services (USCIS) claims to be “cracking down” on employment-based immigration. For example, the very popular H-1B visa – which provides for foreign workers to be temporarily employed in specialty occupations – is plagued with requests for evidence to prove in the extreme that the position sought to be filled requires at least a bachelor’s level education and that the immigrant has that education.  Recently, USCIS cracked down on a post-doctoral researcher whose visa was sought by a local university.  USCIS demanded proof that a position that requires a doctoral degree is one that also requires a bachelor’s degree. In another case, USCIS required a translation of the immigrant’s diploma into English because the esteemed University of Pennsylvania, from which he earned his degree, issues its diplomas in Latin.

Not all of the “crackdown” is that funny.  As USCIS re-adjudicates previously approved petitions, some long-employed H-1B workers are being denied extensions of their visas.

A highly valued tech worker whom I know had been in his position for close to a decade while waiting for the availability of visas so he and his family could file for permanent residency green cards.  The long wait is because of the simple fact that he was born in India.  The denial of his recent extension petition was because USCIS arbitrarily chose not to believe that a senior software developer for an international consulting firm required a bachelor’s degree – notwithstanding that three prior extensions had been approved, and in spite of the worker having a master’s degree, a decade of experience and praise from industry experts.  The worker and his family returned to India.  The company lost a valuable employee. The community lost a high earning family and taxpayer. After another family learned of the impediments to coming to the U.S. legally and staying legally, and realized that the U.S. is no longer very open to them, the nation lost even more rich talent who wanted to study, work or invest here.

This is not about undocumented individuals, refugees or criminal aliens.  It is a different story, sadder as the beacon of hope that once was the U.S.’s message to the rest of the world has grown dim.  It is about walls of a different sort – administrative and procedural and bureaucratic walls erected to deter immigrants from coming legally to the U.S. with the intention of learning, working and achieving. These same barriers are forcing U.S. firms to cease or relocate parts of their businesses that require foreign- born workers. Frustratingly, USCIS has been creative in its almost daily changes of processing protocols, changes that impose more restrictions, delays and roadblocks.

This year record numbers of H-1B petitions were filed in the annual lottery. The high demand reflects the need for workers and the absence of sufficient numbers of U.S. workers at a time when record numbers of Americans are reaching retirement age and leaving the workforce.

Why are there Pittsburgh based start-ups that export their research and development functions to Canada and Spain?  The answer is because their workers can safely secure and maintain lawful status and employment authorization in those nations.  Other countries welcome and benefit from foreign talent that the U.S. “doesn’t have room for.”

Is there immigration work in Pittsburgh?  Are there immigrants still coming to Pittsburgh?  Of course there is and are.  Walk through most business districts, and one likely will hear many passersby speaking a language other than English (and other than Yinzerese).

Our local schools, universities, hospitals, businesses, restaurants and institutions have a host of foreign immigrants learning, working and owning there.

Immigration can continue to make America great, if we let it!

Yesterday, United States Citizenship and Immigration Services (USCIS) announced that the agency has completed data entry for all fiscal year 2020 H-1B cap-subject petitions selected in the lottery. USCIS is still issuing receipt notices as a result of the computer-generated selection process.  We received a notice yesterday, so please note that others may be forthcoming.  Once all petitioners are notified, USCIS will start returning unselected petitions and issue an announcement.  There is no time frame in which this will happen.  Notifications of case transfers have also started to be issued, which is commonly done by the agency to balance workload.  Please continue to check in with your attorney regarding your H-1B petitions.

The Department of Homeland Security and Department of Labor jointly announced the addition of 30,000 H-2B temporary worker visas for fiscal year 2019.  These additional visas are available only to returning workers who received an H-2B visa or were granted H-2B status in the past three fiscal years.  The returning worker visas will prioritize those businesses that submit an attestation to USCIS in which the petitioner affirms, under penalty of perjury, that if the petitioning employer does not receive all of the H-2B workers requested under the cap increase, the employer is likely to suffer irreparable harm.  The rule defines irreparable harm to be permanent and severe financial loss.   No evidence is required to show this need at the time of filing, but the employer will have to present the evidence as requested by the Department of Homeland Security, Department of Labor or Department of State.

In March 2019, the Social Security Administration resumed issuance of Employer Correction Request Notices, commonly referred to as “Social Security No-Match Letters.”

The No-Match Letters are being sent to businesses throughout the country that are identified as having a name and Social Security Number (SSN) combination submitted on wage and tax statement (Form W-2) that do not match SSA records. Employers may recall receiving these notices until 2012 when the Obama administration suspended these communications.

Employers receiving No-Match Letters in 2019 must take proper steps in addressing the request. Most importantly, employers should not assume that a No-Match Letter is proof of an unauthorized or undocumented worker; likewise, an employer cannot use the letter alone as a basis to take adverse action against an employee.

Upon receipt of a No-Match Letter, an employer should take the following initial steps :

  • CHECK the reported no-match information against its personnel records.
  • If the reported discrepancy cannot be resolved, INFORM the employee of the letter and ask the employee to confirm his or her name/SSN.
  • If the discrepancy still exists, ADVISE the employee, in writing, to contact the SSA to correct and/or update his or her SSA records and give the employee a reasonable period of time to resolve it.
  • SUBMIT corrections to the SSA.
  • If the employee does not respond or act to resolve the issue, CONTACT immigration counsel to discuss next steps and document a continued proactive response.

An employer’s failure to address a No-Match Letter and/or failure to follow-up with an employee and their progress towards resolving the no-match could lead to a finding by ICE of constructive knowledge of employing unauthorized workers.

Additionally, it is worth noting during an ICE Form I-9 Audit, the Notice of Inspection usually requests employer records concerning receipt of No-Match Letters and evidence as to how the company responded to the letter(s).

The reintroduction of No-Match Letters is a reminder for employers across the country in all industries of the need to ensure accurate records for wage-reporting and Forms I-9.

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Ali Brodie is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance. Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide. You can reach Ali at (303) 446-3854 or at abrodie@foxrothschild.com.

Israelis will finally be eligible to receive an E-2 Treaty Investor Visa.  The U.S. Embassy in Israel has confirmed it will begin processing E-2 visas for Israeli citizens effective May 1, 2019.  This announcement follows years of negotiations between the United States and Israel.  This is welcome news for many Israelis, including those in hi-tech startups, medical innovation, small business, diamond dealers, restaurant operations and others who seek to invest and/or live in the U.S. and direct, develop or manage their investment.  Additionally, the corresponding B-5 Israel Investor Visa is available to U.S. citizens.

Please contact your Fox Rothschild immigration attorney for questions or clarifications, or a member of the Fox Rothschild Israel Practice Group.

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Ali Brodie is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance. Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide. You can reach Ali at (303) 446-3854 or at abrodie@foxrothschild.com.

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” (March 18, 2019), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie’s comments on the first quarter of this fiscal year are limited due to insufficient data, but we look forward to more specific predictions on demand trends and date movement in the coming months.

Check-in with DOS’s Charlie Oppenheim: March 18, 2019
Data and Projections
Charlie bases Final Action Date movement on the performance of each category over recent months, as well as his visibility regarding employment-based cases pending at the USCIS National Benefits Center and those already forwarded to the local USCIS field offices.

Following an early April 2019 meeting at the National Benefits Center, Charlie will have additional data upon which to base the Final Action Dates in the May 2019 Visa Bulletin. If that data demonstrates shifts in the demand trends, Charlie may alter his projections for Final Action Date movements through the second half of the fiscal year.

Family-Based Preference Categories
Charlie advises to expect movements in the family-based preference categories consistent with those in recent visa bulletins. However, he cautions that consistent rapid forward movement in these categories is not likely to continue. Charlie remains concerned that the lack of apparent demand in many of these categories, which is causing the dates to advance more quickly than usual, may eventually result in a great amount of demand materializing all at once. If this were to occur, it could result in an abrupt retrogression and lead to volatility in some categories.

Charlie recalls that this phenomenon occurred in the family-based preference categories in Calendar Years (CY) 2009 and 2010 when the U.S. economy was lagging. This economic slowdown caused low demand for immigrant visas, which in turn, spurred rapid movement for family-based categories. As the economy improved, the demand for immigrant visas heated up abruptly, causing a dramatic retrogression during the second quarter of FY2011.

In particular, there has been unusually rapid movement in FB-3 and FB-4 Philippines, each of which advance six months in the April 2019 Visa Bulletin. The visa bulletin’s “Section D. Final Action Date Movement” on page 8 contains more details on Final Action Date movements.

Employment-Based Preference Categories
EB-1:  Reported demand levels across all countries in the EB-1 category remain high, having changed since the “Visa Availability” projections were provided in Section E of the February 2019 Visa Bulletin on page 9. In absolute terms, EB-1 has used more total visa numbers this fiscal year than any other employment-based category, with usage up to 25% higher than that of EB-2, and EB-3. The increased demand for EB-1 Worldwide numbers is negatively impacting EB-1 China and EB-1 India, which in the past have normally benefitted from the availability of otherwise unused EB-1 numbers from other countries.

Charlie warns that there should not be an expectation of any movement for EB-1 China and EB-1 India Final Action Dates. Movement for both is only possible if EB-1 Worldwide demand slows down to a sufficient level that would allow otherwise unused numbers to be allocated to these countries. If the current demand trends continue, that is unlikely. For context, Charlie mentioned that EB-1 number use during January and February 2019 exceeded that of the entire first quarter of FY2019. From December to January, EB-1 Worldwide number usage increased by over 45%. In February, that number usage was slightly higher than December, but declined slightly overall. I t was still excessive, however, given that February is a short month. March is at least on par with the number usage that materialized in February 2019, indicating that the demand does not show signs of significantly decreasing at this time. Individuals should expect movement of anywhere from minimal movement to up to two months for EB-1 Worldwide Final Action Dates. Charlie is watching the demand trends in this category very carefully. He cannot yet conclude whether this elevated demand represents a bubble that will be processed and then quickly dissipate, or whether it represents an ongoing consistent demand trend.

EB-2 Worldwide:  Charlie mentioned that only about half of the EB-2 Worldwide numbers for this fiscal year have been used, which is approximately where he would like that number to be. If the current demand trend continues, EB-2 Worldwide should remain current throughout the FY2019.

EB-2 and EB-3 India Remain Flipped:  In the April 2019 Visa Bulletin, the EB-2 India Final Action Date once again advances only three days to April 12, 2009. EB-3 India remains ahead of EB-2 India, advancing a full month for a Final Action Date of June 22, 2009. While the same movement patterns are expected for the foreseeable future, individuals should continue to watch these two categories carefully. Since EB-2 Worldwide demand is on target to use, but not exceed its numbers this fiscal year, few, if any numbers can be expected to be left unused. Thus, there will likely not be any additional numbers available for EB-2 India use.

EB-2 and EB-3 China:  In contrast to India, EB-2 China remains ahead of EB-3 China. In April 2019, EB-2 China advances three months to a Final Action Date of April 1, 2016, and EB-3 China advances three weeks to a Final Action Date of August 1, 2015. Like India, these trends are expected to continue for the foreseeable future.

EB-3 Philippines:  Rapid advancement continues for EB-3 Philippines in April, as the category leaps forward three months for a Final Action Date of March 1, 2018. The rapid movement throughout the past year has covered most pending cases, and the current levels of new demand for this category are extremely low both overseas and at USCIS. Although a continuing lack of demand will create additional forward movement, individuals are cautioned to not expect this rapid advancement to continue indefinitely. If significant demand abruptly materializes, it can slow down advancement and even result in a retrogression. In last month’s check-in, Charlie addressed a similar demand pattern for EB-3 Philippines experienced in FY2014 and early FY2015.

EB-4:  EB-4 El Salvador, Guatemala and Honduras advance one week to a Final Action Date of March 8, 2016, and EB-4 Mexico advances three months to a Final Action Date of April 1, 2018. Individuals should expect continued forward movement in EB-4 Mexico until this category reaches it per country limit, at which time its Final Action Date will match that of EB-4 El Salvador, Guatemala and Honduras. EB-4 El Salvador, Guatemala and Honduras may experience some additional movement in May or June 2019, though it will be minimal. Charlie mentioned that there is currently enough pending demand for this category. However, the category may advance later in FY2019 if it becomes apparent that there are available numbers. According to Charlie, EB-4 India is likely to reach it’s per country limit again in either August or September of FY2019. He expects that when this occurs the category will retrogress briefly, and then come current again on October 1, 2019.

EB-5:  In the April 2019 Visa Bulletin, the Final Action Date for EB-5 China advances one week to September 15, 2014. In China, the Consulate in Guangzhou is trying to get scheduling up to speed following the recent periods in which the EB-5 I5 and R5 programs were not authorized. A decrease in the level of expected demand has been occurring for other countries. It is possible that applicants held off submitting documents while awaiting the reauthorization of EB-5 (I5 and R5) programs. Charlie expects the demand levels to increase again, as a result of the recent reauthorization. C harlie mentioned that EB-5 Vietnam has slightly less demand in the upcoming weekly groupings and is better positioned to advance, until the per-country annual limit is reached. The Final Action Date included in the April 2019 Visa Bulletin for EB-5 Vietnam is August 22, 2016. Charlie previously expected EB-5 India to reach it’s per country limit by July 2019. However, he is no longer certain that will happen. He is watching the demand data and should have a better sense of the number usage within a few weeks. The decline in demand mentioned above, possibly resulting from reauthorization concerns, makes it difficult for Charlie to estimate how many additional numbers may be used by “high demand” EB-5 countries.

You may access the March 2019 Visa Bulletin here and the April 2019 Visa Bulletin here.
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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance. Alka is situated in Fox Rothschild’s Morristown, 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.

Yesterday, U.S. Citizenship and Immigration Services (USCIS) announced start dates for premium processing of fiscal year (FY) 2020 cap-subject H-1B petitions.  USCIS will review premium processing requests in two phases.  The first phase will process cap-subject petitions that request a change of status and the second phase will include all other FY 2020 cap-subject petitions.

Starting on April 1, petitioners requesting a change of status may request premium processing by concurrently filing the Form I-907, Request for Premium Processing Service, along with their cap-subject H-1B petition.  USCIS will conduct the lottery and will begin processing these selected petitions no later than May 20, 2019.   The public will be notified once premium processing begins for these petitions.

USCIS estimates that premium processing for all other FY 2020 cap-subject H-1B petitions will not start until June 2019.  Premium processing requests for these petitions should not be filed concurrently with the initial H-1B petition.   These petitioners must wait until the USCIS announcement allowing for petitions in this category to request premium processing.

Yesterday, USCIS announced it will resume Premium Processing effective Tuesday, March 12, 2019 for all H-1B petitions.  Petitions processed with Premium Processing result in USCIS review within 15-calendar days.  If USCIS fails to act within this time period, the government will refund the petitioner’s premium processing fee.

The reopening of Premium Processing is not specific to FY 2020 H-1B cap petitions.  USCIS will make a separate announcement whether Premium Processing is available for FY 2020 cap petitions soon.  If your H-1B petition is already pending, it is important to file the request for premium processing with the correct USCIS Service Center.  Petitioners who have received a USCIS Transfer Notice, indicating the file was transferred to either the Nebraska or Vermont Service Centers, must file the request for premium processing with the USCIS Service Center now handling the petition.