On February 15, President Trump signed the Consolidated Appropriations Act, 2019 thereby averting another government shutdown.  The spending bill funds the federal government and extends the EB-5 Regional Center Program authorization through September 30, 2019.  EB-5 stakeholders will resume efforts towards achieving EB-5 reform and long-term reauthorization.

The U.S. Citizenship and Immigration Services has resumed processing of EB-5 Regional Center applications/petitions.  The EB-5 Regional Center Program has been authorized and extended for three weeks in connection with the short-term spending bill signed by President Trump, thereby ending the government shutdown.  The continuing resolution (CR) reopens the government through February 15, 2019.   The CR also lifts the suspension on other immigration programs including E-Verify, religious workers programs, and Conrad 30 Waiver Program for J-1 physicians.

President Trump signed a spending bill thereby averting a government shutdown.  The continuing resolution (CR) provides for a short-term extension of the EB-5 Regional Center Program through December 21, 2018.  The CR also extends the E-Verify and Religious Workers programs.   The CR extends the EB-5 Regional Center Program without any changes.  We will be closely following activity on Capitol Hill surrounding EB-5 reform and/or extension efforts.

President Trump signed a bill today, H.R. 6157, with a short-term continuing resolution (CR) preventing a government shutdown and extending certain programs, including the EB-5 Regional Center Program, through December 7, 2018.  Without the CR, the EB-5 Regional Center Program would have expired on September 30, 2018.  The CR extends the EB-5 Regional Center Program without any changes.  The spending bill includes funding for the departments of Defense, Education, Health and Human Services, and Labor.  We continue to closely follow activity on Capitol Hill as efforts towards EB-5 reform continue.

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” (September 13, 2018), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie comments on the close of this fiscal year and the recovery in certain categories at the start of FY2019, provides his predictions on final action date movement in the coming months, and answers questions from the public.

Check-in with DOS’s Charlie Oppenheim: September 13, 2018

On September 14, 2018, USCIS announced that it would accept adjustment of status applications based on the “Dates for Filing” chart for both family-based and employment-based cases.  Since Charlie sets the “Dates for Filing” based on where he expects the final action dates will be in the next 8 to 12 months, these charts are also helpful in understanding how far the final action dates are likely to advance in the near term.

Family-Based Preference Categories

Since most family-based cases are processed at Embassies/Consulates, Charlie’s visibility into family-based demand is good, which avoids dramatic fluctuations in the final action dates.  These categories are expected to advance modestly or hold steady, except Mexico.  Given lower than anticipated demand members may see the Mexico family-based categories move more rapidly than normal.  Demand from China continues to be relatively low, whereas India demand has rebounded over the past year.

Employment-Based Preference Categories

EB-1:  For October, EB-1 Worldwide along with all other countries except China and India, advances ten months to April 1, 2017.  Charlie remains pessimistic that the EB-1 Worldwide final action date will advance before the end of this calendar year.  He forecloses the possibility of advancement in November and is pessimistic that there will be advancement in December but notes that there will be some forward movement in all EB-1 categories after the beginning of 2019.  Demand is sufficiently high that Charlie is unable to predict at this time whether this category will become current in FY 2019.  Charlie does not expect any advancement of EB-1 China or EB-1 India before January 2019 and believes it is “almost guaranteed” that both categories will be subject to a final action date through the fiscal year.

EB-2 and EB-3 Worldwide:  As previously predicted, EB-2 Worldwide and EB-3 Worldwide will return to current in October and will remain current for the foreseeable future and well into the next calendar year.  Charlie has not seen expected growth in EB-3 Worldwide.

EB-2 China and EB-3 China:  While EB-2 China recovers to April 1, 2015 in October, it will not surpass the EB-3 China final action date, which advances to June 1, 2015.  It is unclear whether EB-3 China’s two-month lead will be significant enough to spur downgrade demand.  If there are not as many downgrades, EB-3 China could advance more rapidly than expected.  Charlie has no visibility into EB-3 China “downgrade” demand until a visa number is requested, so this category may move modestly to avoid future retrogression.

EB-2 India and EB-3 India:  EB-2 India advances to March 26, 2009 in October, with EB-3 India trailing behind by less than three months at January 1, 2009.  Based on the dates for filing and depending on the level of demand in each of these categories, it is possible that EB-3 India may surpass EB-2 India at some point this fiscal year.

EB-3 Philippines and Other Workers Philippines:  As predicted, EB-3 Philippines and Other Workers Philippines will recover to June 1, 2017 in October. Nnly minimal movement during the first quarter of the fiscal year is expected.

EB-4:  As predicted, EB-4 Mexico will fully recover in October to its June Visa Bulletin date of October 22, 2016, EB-4 India will return to current, and EB-4 El Salvador, Guatemala and Honduras remain at February 15, 2016 in October.  There will be forward movement in EB-4 El Salvador, Guatemala and Honduras this fiscal year, but anything more than minimal movement is unlikely in Q1.  Due to visibility into preadjudicated cases filed prior to the imposition of a final action date in May 2016, as well as potential future demand by cases with old priority dates, Charlie is moving this category conservatively to avoid a future retrogression.

EB-4 India:  It is expected that this category will be subject to a final action date again, but that will not likely happen until late in the fiscal year.

EB-5 Non-Regional Center:  for China and Vietnam will advance to August 15, 2014 and January 1, 2016 respectively in October.

EB-5 China:  Demand remains high, so members should not expect much movement in this category throughout the fiscal year.  EB-5 Vietnam, in contrast, is likely to advance modestly early in the fiscal year until it reaches its per country limit, at which time, its final action date will track EB-5 China.

Expiration of Two Visa Categories

Unless reauthorized by Congress, the EB-4 Religious Worker and EB-5 (I5 and R5) categories will be unavailable after September 30, 2018.  If Congress reauthorizes these programs, the EB-4 Religious Worker category will become current in October, except EB-4 El Salvador, Guatemala and Honduras which will have a final action date of February 15, 2016 and EB-4 Mexico, which will have an October 22, 2016 final action date.  If reauthorized, EB-5 Worldwide (I5 and R5) would become current, with EB-5 China (I5 and R5) subject to an August 15, 2014 final action date, and EB-5 Vietnam (I5 and R5) subject to a January 1, 2016 final action date.

QUESTION:  USCIS data from July 2018 indicates that there are only 473 pending applications for EB-3 India.  USCIS notes that this is for service centers only and doesn’t include field offices.  The number of EB-3 China cases is 161.  Do these numbers track to the information DOS is receiving from USCIS about pending demand?

CHARLIE’S RESPONSE: As these are USCIS statistics, I would suggest that you pose your question to USCIS.  However, I am told that the Service Centers have dramatically reduced their inventories as pending adjustment cases which were filed years ago have become current and were approved, and new cases are now being sent to field offices via the National Benefits Center (NBC).  If I were to speculate, the numbers posted likely represent only India and China cases that were pending and subject to a priority backlog on March 6, 2017, when USCIS started sending new cases to the NBC.  Therefore, it should be expected that the number of cases at the NBC and the field offices far exceeds those which remain at the Service Centers.

QUESTION: Can you explain why sometimes final action dates are the same for different countries in a certain preference category and why sometimes they are different?

CHARLIE’S RESPONSE: Whenever the total number of documentarily qualified applicants for an individual country or category exceeds the supply of numbers available for a particular month, it is considered to be “oversubscribed” and a final action date is established.  The final action date is the priority date of the first documentarily qualified applicant who cannot be accommodated for a visa number.  For example, if the monthly allocation target for the China and India EB-2 preference categories were 250, and each country had demand in excess of 500, a final action date would be established so that only 250 numbers would be allocated.  In this case, the final action date for each country would be the priority date of the 251st applicant.  That date could be widely different based on EB-2 demand patterns for each country.

QUESTION: Using the EB-1 patterns we have observed over the past couple of years as an example, can you explain how “otherwise unused” numbers are allocated?

CHARLIE’S RESPONSE: Section 202(e) of the INA says that if there are “otherwise unused” employment numbers under the respective Worldwide preference limit, such numbers may be made available to those countries which have already reached the per-country preference limit.  In the past, EB-1 has been listed as “Current” for all countries for at least the first six months of each fiscal year because the worldwide level of demand at that time was insufficient to use all numbers available under the annual limit.  However, the “otherwise unused” numbers situation is constantly monitored, and subsequent changes in demand patterns can negatively impact the availability of future numbers to countries which had previously benefitted from their use.  Such increases in EB-1 Worldwide demand later in the year have eventually required the imposition of a final action date for EB-1 China and India to allow other countries that had not yet reached the per-country limit to remain “Current.”  Any remaining unused numbers are then made available strictly in priority date order without regard to country, and a single date would be applied.  That has been the case in past years when it has been necessary to apply a final action date to govern the use of a more limited amount of unused numbers (or none) available for use by China and India EB-1 applicants.  This is the reason why the October China and India EB-1 date is earlier than the Worldwide date, with both being required to govern number use within the overall annual limit.

You may access the September 2018 Visa Bulletin here and the October 2018 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.http://www.foxrothschild.com/alka-bahal/

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” (April 13, 2018), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the dramatic final action dates movement in the April Visa Bulletin, which hold steady for May, and provides his predictions on final action date movement in the coming months.

Check-in with DOS’s Charlie Oppenheim: June 13, 2017

Given that USCIS takes roughly five months to process I-485 applications to completion, the dramatic final action date advancements in the April Visa Bulletin were not completely unexpected as the objective is to spur more applications in May and June in order to ensure that the full visa numbers will be used by the end of the fiscal year on September 30, 2018.  Since it is unlikely that most May I-485 filings will be processed to completion before the end of the fiscal year, many employment-based preference categories hold their April final action dates in the May Visa Bulletin, with only modest advancements in a few select categories.  These advancements were made in an abundance of caution, based on data Charlie received from USCIS regarding the number of pending cases.

Categories in which final action dates will remain the same include:

  • EB-1 China and India;
  • EB-2 India;
  • EB-3 China and Philippines;
  • EB-4 El Salvador, Guatemala and Honduras, and
  • EB-5 China.

There are only five categories with modest advancements-

  • EB-2 China will move forward one month to September 1, 2014;
  • EB-3 India will advance three months to May 1, 2008;
  • EB-3 Other Workers China and India will advance one and three months respectively, to May 1, 2007 and May 1, 2008; and
  • EB-4 Mexico will advance roughly five weeks to October 22, 2016.

As Charlie predicted, EB-5 Vietnam became oversubscribed, due to high demand, and will assume a final action date of July 22, 2014 in May, tracking to EB-5 China.

 Most family-based preference petitions are processed through the National Visa Center and U.S. consulates abroad, which accept applications based on the “filing date” rather than the final action date.  As a result, Charlie has excellent visibility into demand in these categories, enabling a slow and steady progression of the final action dates with much less volatility than is seen in the employment-based preference categories.  Final action dates advance modestly in May for all family-based preference categories, except FB-1 China, India and Worldwide, which hold at the April dates. T here is no retrogression in any of the family-based preference categories in May.

What can be expected in the coming months?

It is likely that most employment-based final action dates will hold at their May dates for the month of June with some changes possible in July.  What occurs is entirely dependent on demand that may materialize, and continuing consultations with USCIS.  The wildcard this year that could cause unanticipated fluctuations in the final action dates is the pace of USCIS field office processing of I-485s.

With regard to EB-1 China and India, it is too early to know whether the high worldwide EB-1 demand seen over the past few months is the result of a processing glut or sustained demand.  It is likely that EB-1 China and India will hold for at least another month, but Charlie will continue to watch demand to determine whether any advancements may be possible.

While Charlie is hopeful that the advancements made in April to EB-2 China will be sufficient to exhaust the visa numbers in this category, he continues to monitor China EB-3 downgrades and is likely to hold the final action dates in these categories for at least another month.  However, there still remains the possibility of some advancement later this fiscal year if the anticipated demand does not materialize.

As noted above, EB-4 Mexico advanced five weeks in May.  Although Charlie predicted a summer retrogression of this category to track to the final action date of EB-4 El Salvador, Guatemala and Honduras, if demand lightens it may be possible to avoid or perhaps delay retrogression for EB-4 Mexico.

You may access the April 2018 Visa Bulletin here and the May 2018 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.

The U.S. Congress extended the EB-5 Regional Center Program through December 8, 2017, without reform, as part of a stopgap continuing resolution to fund the federal government (H.R.601), which the President signed into law on September 8.

The language in H.R.601 Section 106 states that the program is “extended to December 8,” which does not necessarily mean “guaranteed to remain unchanged until December 8.” Congress is reportedly actively working on a major EB-5 reform bill and they could come up with legislation before December that affects multiple visa categories including EB-5.

The extension was expected after the summer recess due to other congressional priorities, like hurricane-relief, tax reform, missile defense against North Korea and other military spending, and prolonged budget negotiations. Under the package approved Friday, government funding will run out on Dec. 8. The biggest fiscal fights of the year will now be pushed to December, when lawmakers typically are under pressure to reach deals before leaving for the holidays.

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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, January 13, the Department of Homeland Security (DHS) will expand upon the notice of proposed rulemaking released on January 11, 2017 by publishing a Notice of Proposed Rulemaking in the Federal Register, titled ‘EB-5 Immigrant Investor Program Modernization,’ addressing a variety of policy issues including Targeted Employment Area (TEA) designation and minimum investment amounts.  Notably, minimum investment amounts may increase from $500,000 to $1.35 million for TEA investments, and from $1 million to $1.8 million for non-TEA investments.

Changes to TEA designation include eliminating the method of designation by which states designate areas of high unemployment, and limiting how census tracts can be aggregated to qualify for high unemployment designation.  These regulatory changes will impact both EB-5 Regional Center projects and EB-5 Direct projects.   The deadline for stakeholders to submit comments on the proposals is April 11, 2017.  EB-5 investors or those interested in pursuing an EB-5 investment opportunity should consider acting quickly.


Ali Brodie is counsel in the Denver and Los Angeles offices of Fox Rothschild LLP.

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.

On September 30, 2015, President Obama signed a Continuing Resolution to extend funding of the US government through December 11, 2015, and temporarily avoid a government shutdown.  See http://www.wsj.com/articles/senate-passes-government-funding-bill-prior-to-midnight-deadline-1443623598.  The Continuing Resolution contained extensions for several important immigration programs including:

  • EB-5 Regional Centers
  • Conrad 30 J-1 Physician Waivers
  • Nonminister Religious Workers, and
  • E-Verify.

These programs were continued unchanged until December 11, 2015.

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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.