Investors, Traders and Entrepreneurs (E visas and Permanent Residence)

If Congress cannot resolve FY2018 funding issues by December 8, 2017, it will result in another federal government shutdown. Such a shutdown will impact immigration services across a number of different government agencies, affecting many of the systems and processes employers rely on to facilitate employment, including E-Verify, visa petition processing, labor certifications and other government services that corporations and individuals rely upon.

We will closely monitor the circumstances and provide updates as they become available. Individuals with pending applications or who are planning to travel abroad to secure a visa should consult with their Fox Rothschild immigration attorney, prior to travel.

E-Verify

E-Verify, the Internet-based system that allows employers to determine the eligibility of prospective employees to work in the United States, would be unavailable during a shutdown. Although employers must still complete the Form I-9 on a timely basis, in the past, U.S. Department of Homeland Security has suspended E-Verify’s 3-day rule and extended the time for responding to Tentative Non-Confirmations. Federal contractors are recommended to contact their contracting officers to confirm time frames.

U.S. Citizenship and Immigration Services

As a fee-based agency, U.S. Citizenship and Immigration Services (USCIS) will continue to process applications and petitions for immigration benefits during the shutdown; however, processing delays are likely, as a certain portion of the staff will be furloughed. Further, delays may occur if adjudication of a petition/application is dependent on support from nonessential government functions that are suspended during the shutdown—for example, if a petition requires a certified Labor Condition Application (LCA) from the Department of Labor (DOL).

In the past, USCIS has relaxed its rules and accepted H-1B filings without certified LCAs when DOL operations have been suspended or delayed, however, USCIS has not yet announced whether it will do so during the current shutdown.

Department of Labor

The Department of Labor (DOL) will suspend all immigration-related functions during a shutdown, affecting PERM Labor Certifications and Labor Condition Applications. Filed and pending applications will not be processed, nor will filings be accepted during a shutdown.

U.S. Customs and Border Protection

The majority of the Department of Homeland Security’s U.S. Customs and Border Protection’s (CBP’s) employees are expected to stay on the job at the borders and ports of entry. CBP is deemed an essential function and will likely continue operations at near normal capacity, including the adjudication of applications/petitions for TN and L-1 status that are normally processed at the border.

The Department of State

In the past, The Department of State’s (DOS’s) consular operations have remained operational, although services may be limited. It is expected that U.S. Consulates abroad will continue to process visa applications as long as funds are available. This funding is expected to last only for a few days, at which point the State Department will likely cease processing visas and focus solely on diplomatic services and emergency services for American citizens.

The Bureau of Consular Affairs/Passport Office U.S. Passports

The Bureau of Consular Affairs is a fee-based agency; therefore, the Passport Office should continue to operate normally during a shutdown. However, some those passport offices that are located in federal buildings, which themselves may have to shut down, restricting access to those passport offices.

Social Security Administration

While The Social Security Administration (SSA) is expected to remain open during a shutdown, it will not accept or processing Social Security Number (SSN) applications. Although an employee may begin work without a social security number, the lack of an SSN could affect the individual’s ability to secure a U.S. driver’s license, open a bank account, secure credit or obtain other benefits.

State Department of Motor Vehicle Agencies

Although driver’s license and state identification cards are issued by state governments, applications by foreign nationals could be delayed during the shutdown because local agencies must access a federal database to verify the foreign national’s immigration status before it may issue a driver’s license or identification card. This database, known as SAVE, could be suspended during a shutdown.

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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 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.

 

Statue of Liberty
Copyright: dvrcan / 123RF Stock Photo

On our Emerging Companies Insider blog, Fox associate Alex Radus provided an update on the new International Entrepreneur Rule by the U.S. Citizenship and Immigration Services (USCIS). The rule, which would grant limited entrée to entrepreneurs establishing stateside startups, has undergone a public comment period. Slated to become effective July 17, 2017, the rule would permit the Secretary of Homeland Security to offer parole (temporary permission to be in the U.S.) to individuals whose businesses provide “significant public benefit.” That means the startup should have a substantial potential for rapid growth and job creation, and that the entrepreneur’s parole would significantly help the startup conduct and grow its business in the U.S. As a result of public comments, USCIS generally made it easier for foreign entrepreneurs to establish startup companies in the U.S. via the program.

Alex outlines the changes made in the final rule since his previous discussion, including the timeframe for startup formation, the definition of “entrepreneur,” the minimum investment amount and other aspects. He also notes that with the change to the Trump administration, the future of the role, which was spearheaded by former President Obama, is uncertain. He also notes some of the practical concerns surrounding the rule as proposed. We invite you to read his valuable discussion.

On February 3, 2017, a Seattle federal court judge granted Washington State and Minnesota’s emergency motion for a temporary restraining order (TRO) in its challenge to President Trump’s Executive Order (EO) on “Protecting the Nation from Terrorist Attacks by Foreign Nationals.”

In accordance with the court ruling, the Department of Homeland Security (DHS) has suspended any and all actions implementing the affected sections of the EO, including actions to suspend passenger system rules that flag travelers for operational action subject to the EO. DHS personnel will resume inspection of travelers in accordance with standard policy and procedure. Further, the Department of State (DOS) has lifted the provisional revocation of valid visas of nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen.

According to DOS, those visas are now valid for travel to the United States may travel if the holder is otherwise eligible. However, DOS also stated that “individuals whose visas are expired or were physically cancelled, must apply for a new visa at the a U.S. embassy or consulate, absent a Customs and Border Patrol (CBP) decision to grant parole or waive the visa requirement at the port of entry”. DOS has also resumed processing those immigrant and non-immigrant visa applications that were halted by the EO.

All CBP Field Offices have been instructed to immediately resume inspection of travelers under standard policies and procedures, and that all airlines and terminal operators have been notified to permit boarding of all passengers without regard to nationality.

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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.

Today, December 23, 2016, USCIS posted a large number of new form versions. The forms all have an effective date of today, December 23, 2016, and the website indicates that no other versions of the forms are acceptable, with the exception of Form I-129.  It appears USCIS is continuing to accept prior version of Form I-129. No prior notice of these changes was given, and there was no alert sent to stakeholders today.

Because USCIS elected to deviate from its normal procedures and did not provide notice to stakeholders or provide any grace period during which prior form versions could be submitted, it will pose some challenges to form vendors who will not have time to reprogram the case management software systems and applicants/petitioners who may remain unaware. 

USCIS has indicated to The American Immigration Lawyer’s Association (AILA) that ,while it strongly encourages people to use the new version of the forms, it is aware that there may be older editions of the forms that have already been completed and are in the queue to be mailed and/or filed. USCIS said that it will be flexible and will apply discretion when receipting forms, rather than rejecting them outright.

Affected forms include the following: I-90, I-102, I-129, I-129CW, I-129F, I-130, I-131, I-131A, I-140, I-191, I-192, I-212, I-290B, I-360, I-485, I-485 Supplement A, I-525, I-539, I-600, I-600A, I-601, I-601A, I-612, I-690, I-694, I-698, I-751, I-765, I-800, I-800A, I-817, I-824, I-910, I-924, I-924A, I-929, I-942, I-942P, N-300, N-336, N-400, N-470, N-600, and N-600K.

Please also note that regardless of the form edition submitted, applications and petitions postmarked or filed on or after December 23, 2016, must include the new fees or USCIS will reject the submission.

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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.

On October 24, 2016, the United States Citizenship and Immigration Service (USCIS) published a final rule confirming an increase to the processing fees for most of the applications and petitions it handles. This is a result of USCIS’ comprehensive review of the fee schedule for the fiscal year 2016/2017 the first USCIS fee increase since November 2010. The new fees will go into effect on December 23, 2016, which means that all applications or petitions postmarked on or after this date must include the new fees, or they will not be accepted by USCIS for processing.

According to the Department of Homeland Security, USCIS’ operational funding comes almost entirely from the user fees, and the current fees do not cover the full cost of services provided by the agency; the average fee increase of 21% is necessary to recover costs and maintain adequate level of services to the immigration benefits seekers.

While some applications see a relatively slight increase of $30 or $45, the cost of others, such as the Application for Adjustment of Status (I-485), Application for Naturalization (N-400), and Petition for a Nonimmigrant Worker (I-129) will go up by more than $100, which undoubtedly may affect certain applicants and petitioners, such as households with limited incomes or small employers. As a relief measure, simultaneously with the overall increase of the cost of services provided by USCIS, the agency now offers a reduced filing fee for the naturalization applicants (N-400) whose family income falls between 150% and 200% of the Federal Poverty Guidelines, which is adjusted annually by the U.S. Department of Health and Human Services to determine eligibility for certain federal programs. An additional benefit of the new rule is that USCIS will no longer automatically reject an immigration or naturalization benefit paid with a dishonored check or missing the required biometrics fee. Instead, applicants will be provided an opportunity to correct the deficient payment (i.e., USCIS will attempt to resubmit the insufficient check to the applicant’s bank once again) or by paying the required biometrics fee during their biometrics appointments or immigration interview. The new rule will not affect charge free services provided to refugees and asylum applicants, as well as other customers eligible for fee waivers or exemptions.

This chart lists some of the key new USCIS’ fees effective December 23, 2016. Applications and petitions postmarked or filed on or after December 23, 2016, must include these new fees or USCIS will reject the submission.  You can find the complete new fee schedule here.

Immigration Benefit Request New Fee ($) Old Fee ($)
I–90 Application to Replace Permanent Resident Card 455 365
I–102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document 445 330
I–129/129CW Petition for a Nonimmigrant worker 460 325
I–129F Petition for Alien Fiancé(e) 535 340
I-130 Petition for Alien Relative 535 420
I-131/I-131A Application for Travel Document 575 360
I–140 Immigrant Petition for Alien Worker 700 580
I–290B Notice of Appeal or Motion 675 630
I–360 Petition for Amerasian Widow(er) or Special Immigrant 435 405
I–485 Application to Register Permanent Residence or Adjust Status 1,140 985
I-485 Application to Register Permanent Residence or Adjust Status (certain applicants under the age of 14 years) 750 635
I–526 Immigrant Petition by Alien Entrepreneur 3,675 1,500
I–539 Application to Extend/Change Nonimmigrant Status 370 290
I–600/600A Petition to Classify Orphan as an Immediate Relative/Application for Advance Petition Processing of Orphan Petition 775 720
I–751 Petition to Remove Conditions on Residence 595 505
I–765 Application for Employment Authorization 410 380
I–824 Application for Action on an Approved Application or Petition 465 405
I–829 Petition by Entrepreneur to Remove Conditions 3,750 3,750
I–924 Application for Regional Center Designation Under the Immigrant Investor Program 17,795 6,230
I–924A Annual Certification of Regional Center 3,035 0
N–400 Application for Naturalization* 640 595
N–470 Application to Preserve Residence for Naturalization Purposes 355 330
N–565 Application for Replacement Naturalization/Citizenship Document 555 345
N–600/N–600K Application for Certificate of Citizenship 1,170 600/5503
USCIS Immigrant Fee 220 165
Biometric Services Fee 85 85

*Certain low-income naturalization applicants may pay a filing fee of $320 plus the $85 biometric services fee. For eligibility details and filing instructions, see Form I-942, Request for Reduced Fee and Form N-400, Application for Naturalization.

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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.

Statue of Liberty
Copyright: dvrcan / 123RF Stock Photo

On our Emerging Companies Insider blog, Fox associate Alex Radus published an excellent piece covering a proposed new rule by the U.S. Citizenship and Immigration Services (USCIS). The rule would grant limited entrée to entrepreneurs establishing stateside startups. The rule would permit the Secretary of Homeland Security to offer parole (temporary permission to be in the U.S.) to individuals whose businesses provide “significant public benefit.” That means the startup should have a substantial potential for rapid growth and job creation, and that the entrepreneur’s parole would significantly help the startup conduct and grow its business in the U.S.

Alex outlines the qualifications that foreign entrepreneurs will have to meet when seeking to benefit from the program, as well as the investor requirements and timespan involved. He also notes some of the practical concerns surrounding the rule as proposed. We invite you to read his valuable discussion and join the debate during the public comment period provided by DHS.

In a continuation of its effort to encourage eligible immigrants to become U.S. citizens, the Obama administration is proposing adjustments to the immigration benefit fee schedule that would raise the cost of some benefits but reduce naturalization fees for certain low-income immigrants.

The Department of Homeland Security (DHS) released its proposed changes to the U.S. Citizenship and Immigration Services (USCIS) Fee Schedule on May 4, 2016, affecting its fees for services.  The proposed rule has been published in the Federal Register (81 FR 26904, 5/4/16) and is open for comment. Comments are due by July 5, 2016. The proposed changes are likely to go into effect this fall.

According to USCIS, it conducted a comprehensive fee review, after refining its cost accounting process, and determined that current fees do not recover the full costs of the services it provides.  Accordingly, it has stated that adjustment to the fee schedule is necessary to fully recover its costs for services and to maintain adequate service levels.  DHS proposes to increase USCIS fees by a weighted average of 21 percent and add one new fee.  In addition, DHS proposes to clarify that persons filing a benefit request may be required to appear for biometrics services or an interview and pay the biometrics services fee, and make a number of other changes.  USCIS last adjusted its fee schedule in 2010.

This chart summarizes the proposed changes.  The range of fee changes varies, for example, increasing by $45 for an application for naturalization and by $195 for an application for a fiancé visa. The rules also include a new fee of $3,035 to recover the full cost of processing the Employment Based Immigrant Visa, Fifth Preference (EB-5) Annual Certification of Regional Center, Form I-924A.  In addition, the DHS proposal would clarify that people who apply for a benefit may be required to appear for biometrics services or an interview and to pay the biometrics services fee, among other changes

Largely exempt from the increases, however, are low income immigrants who wish to become U.S. citizens.  Under the proposed rule, “DHS would charge a reduced fee of $320 for naturalization applicants with family income greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines.”

“DHS is proposing this change to increase access to United States citizenship,” the proposed rule explains.  The allowance effectively cuts in half the current cost of naturalization — $680, including the $85 biometric fee for these individuals while seeking an additional $45 increase in the cost of naturalization applications for those immigrants who can afford it.

Rep. Luis V. Gutiérrez (D-IL), who has been promoting naturalization and voter registration across the country as a means for immigrants to “Stand Up to Hate,” cheered the rule.  “Right now, a lot of immigrants face a difficult choice: pay $700 or so for the chance to take all the tests and apply for citizenship, or pay $450 to renew a green-card for five years,” Gutiérrez said in a statement.

“Now, the math is much better,” he continued. “You can apply for citizenship and a fee waiver and become an American citizen – with all the rights, duties and honor of citizenship – for a more attainable price or maybe even for free.  The new calculation is going to mean that millions of those who are already eligible can finally take the step and apply for citizenship.”

Applicants can apply for a fee waiver if their income is below or 150 percent of the poverty line, they are receiving a means-tested benefit, or they are experiencing “financial hardship.”

In recent years the Obama administration has put an emphasis on encouraging the estimated 8.8 million eligible legal permanent residents in the U.S. to naturalize and become citizens. Immigration activists, like Gutiérrez, have also embarked on campaigns to help immigrants naturalize and register to vote in a bid to influence the upcoming 2016 election.

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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.

Since September 30, 2015 Congress has considered several immigration bills that would have completely overhauled the EB-5 program. All of us in the space, especially attorneys, had prepared ourselves for the inevitable change of the current EB-5 regulations. We all knew that the minimum capital threshold requirement would increase to $800,000. In addition, the targeted employment area (“TEA”) definition would change, thereby eliminating important metropolitan areas such as New York City from consideration. All of this was occurring against the backdrop of Congress trying to pass the appropriations bill so that our government would not run out of money.

Congress has been wanting to revamp the EB-5 program for a significant period of time. All of the recently introduced EB-5 bills contained measures to increase compliance and make the program safer for foreign investors that were seeking a “Green Card”.  Developers and attorneys lobbied for reform that would not be onerous and would provide a certain amount of compliance. Most of us did not want the new legislation to be the “death knell” of the EB-5 program.

Well, we all got our wish. Congress voted to renew the EB-5 program in its present state until September 30, 2016.  What will happen between now and the expiration of the legislation is anyone’s guess.  But I think the writing is on the wall. Congress seeks to reform the EB-5 program on two fronts. The first is the minimum investment capital threshold requirement. It is a foregone conclusion that prior to September 30, 2016 Congress will pass EB-5 legislation that increases the minimum investment in a targeted employment area (“TEA”) to $800,000. The second is on the compliance front. Congress will include provisions in the new bill that require “on-site audits” of projects and regional centers.  In addition, Congress will require all principals that have equity in a regional center to submit to a Federal background check. This will ensure that the players in the EB-5 space are not unscrupulous characters.

All in all, the changes would be welcome by most in the industry. The impact that the higher investment amount would have in China and other markets is something that is yet to be seen. All of us though are breathing a sigh of relief for the EB-5 extension.

 

As Congress works to pass renewal legislation to the EB-5 Regional Center Pilot Program that will expire on December 11, 2015, most observers in the EB-5 space have no idea what will happen. Initially most of us thought that Congress would not have the time to review and vote on several new bills that would overhaul the program. Everyone guessed that Congress would “punt the ball” and pass interim legislation extending the program again until May 2016. Well as of this afternoon, it looks like Congress might actually pass one of the bills. The bill that looks most likely to pass would completely redefine the requirements of an eligible EB-5 regional center based project. The minimum capital threshold requirement would jump from $500,000 to $800,00 for a project in a TEA census tract. A project developed in a non-TEA census tract would stay at $1,000,000.

The bill contains a 5 year extension of the EB-5 Regional Center Pilot Program. It also includes an enhanced compliance provision. The compliance section of the bill provides for annual site visits by USCIS personnel. USCIS personnel would be authorized to request job creation documents from the project developer and/or regional center. It would also require that ownership of regional centers be limited to individuals who are nationals or permanent residents of the United States.

Greater compliance and transparency in the EB-5 program translates into a new background check that would be required of all principals of regional centers. As a result, no person shall be permitted to be involved with any regional center, new commercial enterprise, or job-creating entity if the person has been found to have committed  a criminal or civil violation involving fraud or deceit within the previous 10 years; a civil violation resulting in a liability in excess of $1,000,000 involving fraud or deceit; or a crime resulting in a conviction with a term of imprisonment of more than 1 year. The bill also limits ownership of regional centers where the principal has a final order entered by the U.S. Securities and Exchange Commission for a violation of law or regulation involving fraud or deceit.

As part of the bill’s compliance provision, principals of regional centers would have to execute an attestation that would certify that their regional center was in full compliance with all SEC regulations. All regional centers will have to pay an annual fee in order to continue with their USCIS designation. The fee for regional centers that have 20 or more investors the preceding year shall be $25,000.00 Those regional centers with less than 20 investors shall be $10,000.

Also, the ability of investors to receive funds that have been gifted will be restricted. Gifted funds may be counted toward the minimum capital investment requirement only if such funds were gifted to the alien investor by the alien investor’s spouse, parent, son, or daughter, but not children, sibling, or grandparent and such funds were gifted in good faith and not to circumvent any limitations imposed on permissible sources of capital.

A bit of good news in the bill is that census tracts can still be combined (up to 12) and averaged in order to qualify a geographic area as a TEA. This seems to be a concession made to important metropolitan areas such as New York City that have benefitted from the EB-5 program.

The EB-5 picture should be come clear by the end of this week as Congress wrestles with a challenging task, an overhaul of the EB-5 Regional Center Pilot Program.

The Fox immigration team has expanded in size and scope.  We have welcomed two prominent attorneys; one to the Miami office and one to the New York office.  Before coming to Fox, Scott Bettridge (Miami) and Rogelio “Roy” Carrasquillo (New York) worked together to develop a significant practice that combines immigration and corporate representation, particularly involving Latin America and Puerto Rico.  Scott and Roy have skill and experience in handling complex corporate transactions, including  broad EB-5 experience.   

Their addition greatly enhances both our corporate immigration and EB-5 practices.  The Fox EB-5 team combines immigration, corporate, tax, pre-immigration tax planning, IP and Real Estate attorneys in our comprehensive nation-wide practice. Scott and Roy are welcome additions and will assist Fox clients in navigating the tricky immigration waters.  To learn more about our new partners, see Scott Bettridge’s bio page and Rogelio “Roy” Carrasquillo’s bio page.