On Saturday, September 22, 2018, the Trump administration announced the upcoming publication of a proposed rule designed to redefine a status known as “public charge” — a category used to determine whether someone seeking permanent resident status is “likely to become primarily dependent on the government for subsistence” for those seeking to immigrate to the United States. This rule was signed by Department of Homeland Security Secretary Kirstjen Nielsen on September 21, 2018 and will open for comment on the date of the official version’s publication in the Federal Register. As per past practices, the comment period should last for 60 days from the date of publication.

The 400 page rule expands greatly on how the government proposes to enforce a determination that a foreign national who is seeking a U.S. immigration benefit is or is likely to become a “Public Charge”, which means an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense. Specifically, under Section 212(a)(4) of the Immigration and Nationality Act, an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” Public charge does not apply in naturalization proceedings. If an individual is inadmissible, admission to the United States or adjustment of status is not granted. (Note that there are many exceptions in which a public charge finding would not apply, including but not limited to: Refugees and Asylees, those who are victims of violence (VAWA), Special Immigrant Juveniles (SIJ), Temporary Protected Status (TPS) applicants, Amerasians, Afghan/Iraqi interpreters or U.S. Government employees, Cuban Adjustment Act applicants, NACARA applicants, etc.)

Currently, there is no formal definition of a public charge, but DHS states that “A number of factors must be considered when making a determination that a person is likely to become a public charge”. The proposed new rule would define a public charge as “an alien who receives one or more public benefits.” In the past, people have been at risk of being defined a “public charge” if they took cash welfare — known as Temporary Assistance for Needy Families, or Supplemental Security Income — or federal help paying for long-term care. (Immigrants must be in the country legally for five years before being eligible for TANF or SSI.) The new rule would expand the list to include some health insurance, food and housing programs. Specifically, it would penalize green-card applicants for using Medicaid under certain conditions, using food stamps, Section 8 rental assistance, federal housing vouchers and even enrollment in a Medicare Part D program subsidy.

Specifically, pages 95-96 of the proposed Rule lists the following that would be considered Public Benefits:
· Monetizable benefits: – Any Federal, State, local, or tribal cash assistance for income maintenance, including: Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which may exist under other names);
– Benefits that can be monetized in accordance with proposed 8 CFR 212.24:
· Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”),
· Public housing defined as Section 8 Housing Choice Voucher Program;
· Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation); and
· Non-cash benefits that cannot be monetized:
– Many Benefits paid for by Medicaid;
– Premium and Cost Sharing Subsidies for Medicare Part D; Benefits provided for institutionalization for long-term care at government expense;
– Subsidized Housing under the Housing Act of 1937.

While public charge is an old idea dating back to the 1990s, the proposed changes are unprecedented. Including programs like Medicaid and food stamps, which are much wider in scope, is a significant change.

In the past, DHS has been forgiving regarding the issuance of immigration benefits if someone had obtained government benefits in the past, so long the individual can prove that he or she is not likely to become a public charge in the future. Under the proposed rule as currently envisioned, it is clear that DHS will not be forgiving now looking at multiple factors including age, health, and past employment history, and, most importantly, receipt of past public benefits.

If implemented as contemplated, DHS will look back within a 36 month period of receipt of government benefits in making their decision on admissibility. Immigrants are encouraged to reexamine any currently public benefits that he/she is currently receiving to determine whether in the upcoming months it will be necessary to drop-out of these public benefit programs once the new public charge rule formally goes into effect.

DHS estimates that 2.5 percent of eligible immigrants would drop out of public benefits programs because of this change — which would tally about $1.5 billion worth of federal money per year, but others expect a much larger impact, including a chilling effect on the use of routine health benefits, particularly for children. In the proposed rule, DHS itself notes that the changes could result in “worse health outcomes,” “increased use of emergency rooms,” “increased prevalence of communicable diseases,” “increased rates of poverty” and other concerns.

Fear of being deemed a public charge and being unable to attain lawful permanent residency, and ultimately U.S. Citizenship will necessarily result in a detriment to low-income immigrant populations and eventually, the separation of families.

This is an early step in the complex federal rule-making process and many things could still change. Once the proposed rule appears in the Federal Register, it opens a 60-day public comment period allowing members of the public to provide input. As such, a final rule is unlikely to take effect before 2019.

We recommend that any immigrant, regardless of immigration status, who has previously received a public assistance benefit in the past for themselves, or immediate family members, should contact an immigration attorney for evaluation of their case.

Fox Rothschild immigration attorney, Kristen Schneck will be speaking on this topic as a panelist on Oct 24th, at the DHS Advisory Committee meeting to be held in Pittsburgh hosted by the Allegheny Dept. of Human Services.

Fox Rothschild will continue to monitor and report on activity regarding these rule making efforts. Over the course of the next few weeks, we will publish a series of blog posts with more details and updated regarding the Public Charge proposed rule. As always, please refer to ImmigrationView for the latest information on topics of importance in the immigration law practice.
For questions or more information about this alert, please contact Mark Harley at (412) 391-2418 or mharley@foxrothschild.com, Alka Bahal at (973) 994-7800 or abahal@foxrothschild.com or any member of the firm’s Immigration Practice

 

 

Congressional negotiations on a federal spending bill remain very active. To avoid a federal government shutdown, a decision or a short-term continuing resolution (CR) to fund the government at current levels must be reached by Friday, January 19, 2017. Until a deal is made or a CR is passed, the threat of a shutdown remains a possibility. Generally, if the government shuts for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work.

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.

On May 1, 2017, the U.S. Citizenship and Immigration Services began issuing redesigned versions of the Permanent Resident Card (aka a “Green Card”) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project.

The redesigned cards use enhanced graphics and fraud-resistant security features to create cards that are highly secure and more tamper-resistant than the ones currently in use.

USCIS states that the new card designs are part of an ongoing effort between USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to enhance document security and deter counterfeiting and f raud and demonstrate USCIS’ commitment to continue taking a proactive approach against the threat of document tampering and fraud.

The new Permanent Resident and EAD Cards will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
  • Have embedded holographic images; and
  • No longer display the individual’s signature.
  • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Permanent Resident Cards will have an image of the Statue of Liberty and a predominately green palette;
  • Permanent Resident Cards will no longer have an optical stripe on the back.

Some Permanent Resident Cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Permanent Resident Cards and EADs will remain valid until the expiration date shown on the card. Additionally, older Permanent Resident Cards without an expiration date also remain valid. USCIS continues to encourage individuals who have Permanent Resident Cards without an expiration date to consider applying for a replacement card bearing an expiration date in order to reduce the likelihood of fraud or tampering if the card is ever lost or stolen, but have not mandated that they must do so.

The M-274 Handbook for Employers for Completing Form I-9 (Employment Eligibility Verification Form) was updated in July 2017 to depict the design of the new cards and those several still valid versions.

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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.

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What will Congress do with the soon to expire EB-5 regional center program?

That is the question that most everyone in the EB-5 world is asking each other. Congress chose on September 30th of this year to “kick the proverbial can down the road” until December 11, 2015 with an interim extension of the current legislation. As of the date of the writing of this blog Congress has before it several bills that seek to extend the EB-5 Pilot Program.

The possible changes on the horizon include increasing the minimum investment amount to $800,000.00 for TEA’s and $1,200,000.00 for other areas. Since there has been no change in the capital contribution amount since the creation of the program, most think this amendment will proceed.

The other change that would be controversial would modify the definition of a targeted employment area. The TEA’s would be limited and potentially not include state designations based on aggregated census tracts. This could eliminate many TEA’s.

In addition, it is anticipated that the regional centers will come under greater scrutiny by USCIS. This could include more comprehensive and frequent reporting requirements, as well as the ability of the agency to suspend regional center designation for those centers that do not fulfill reporting requirements or have little or no business activity.

Congress will also examine whether regional center principals can be non-resident aliens. Most regional centers currently are owned by U.S. Citizens or lawful permanent residents.  There are many non-resident aliens that are interested in creating regional centers and developing projects, especially in South Florida.

Developers, as well as investors are rushing to complete exemplars for projects and file individual I-526 immigrant visa petitions in order to “grandfather” their projects and/or investor applications under the present statutory requirements. It is noteworthy however, that no one is certain that “grandfathering” will be part of the final legislation. Will this all be for naught?

What we can be sure of are that changes to the EB-5 regional center program will occur before the end of the year. The changes to the program will hopefully make it better. The program will survive.

 

As major League baseball begins its post season and millions of fans are rooting for their home team to play in and win the World Series, many more people are entering the Diversity Lottery (DV) 2017 in hopes of winning a “green card”. 

This year’s Lottery season began at noon EDT October 1, 2015 and will end November 3, noon EDT.  During the season, applicants from low admission countries may file online, and online only, to secure a DV 2017 immigrant visa.  Qualified individuals may submit one, and only one, application before the end of the season by going to the Department of State website, www.dvlottery.state.gov , to review the rules and to file electronically. Starting in May 2016 entrants may begin to check to see if they were chosen. 

The process is entirely electronic and the lottery is by the luck of the draw.  It costs nothing to apply.  Although the percentage of winners is small, 50,000 people a year do win and most of them convert their DV lottery winnings into green cards.

 

 

In a move that has crushed the hopes of untold numbers of would-be applicants for US permanent residence, the US Department of State (USDOS) issued a revised October 2015 Visa Bulletin which dramatically set back the new “Dates for Filing Applications”.  See http://travel.state.gov/content/visas/en/law-and-policy/bulletin.html.

The revised October 2015 Visa Bulletin was issued last Friday, September 25, 2015, and supersedes the October 2015 Visa Bulletin that was issued on September 9, 2015.

As a result, the following categories now have later filing dates as indicated:

Category                  NEW Filing Date

EB-2 China…………..1/1/2013 (back 1 year and 5 months from the original October 2015 Visa Bulletin)

EB-2 India……………..7/1/2009 (back 2 years from the original October 2015 Visa Bulletin)

EB-3 Philippines…..1/1/2010 (back 5 years from the original October 2015 Visa Bulletin)

FB-1 Mexico…………..4/1/1995 (back 3 months from the original October 2015 Visa Bulletin )

FB-3 Mexico…………..5/1/1995 (back 1 year and 5 months from the original October 2015 Visa Bulletin ).

This means that an intending greencard applicant may only file an adjustment application in October 2015 if his or her priority date is earlier than the Date for Filing as listed in the revised October 2015 Visa Bulletin (the one that was released on September 25, 2015).

It’s impossible to tell how many people were fervently working toward preparing adjustment applications AND making life decisions based on the previously issued Dates for Filing.

As they say, “easy come, easy go”, but this just doesn’t seem fair.  Questions are also being raised regarding the legality of this unexpected move.

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Ms. Wadhwani is a partner in the Immigration Practice group of Fox Rothschild LLP.  She may be reached at cwadhwani@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).

This month, before we move into Charlie’s comments and analysis of current trends and future projections for the various immigrant preference categories, we’d like to provide you with an overview of the changes introduced with the October 2015 Visa Bulletin.

The release of the October 2015 Visa Bulletin represents an historical shift in how the State Department presents data regarding the availability of immigrant visa numbers. The October Bulletin, and all Bulletins going forward, now lists important dates for both the family and employment based immigrant visa applicants:

(1) the “Final Action Dateschart, which is the date when DOS or USCIS may render a final decision on the applications (i.e. approve the grant of permanent residency because an immigrant visa number is available).  This chart contains the same “cut-off” data that has historically been published in the Visa Bulletin.

(2) the “Dates for Filing” chart, which is the date upon which individuals may file their permanent residence applications (Adjustment of Status).

As part of the Obama Administration’s Visa Modernization Proposal, the State Department is now publishing the “qualifying dates” within the newly named “Dates for Filing” chart. Other than the publication of these dates in the Visa Bulletin, the Department of State/NVC process for issuing “agent of choice” letters has not changed.

The “qualifying dates” or “dates of filing” is representative of the demand, based on the information available at the time of the determination, that the State Department anticipates will be available for that particular preference category and country of chargeability at some point in the upcoming 8 to 12 months. The purpose of setting “qualifying dates” has been to elicit from applicants the necessary information and documents for their immigrant visa applications to be considered “documentarily qualified” or ready to adjudicate once their priority date is reached. Once the priority date for a documentarily qualified case becomes current (i.e., is earlier than the “final action date”), the immigrant visa interview can be scheduled (or the application may be approved, if no interview is required). In general, USCIS will continue to follow the “Final Action Date” chart for the acceptance of adjustment of status applications. However, if USCIS determines that there are additional visas available it may exercise its discretion to accept adjustment of status applications in accordance with the “Dates for Filing” chart. Each month, the Visa Bulletin will indicate whether USCIS will accept adjustment applications during the upcoming month in accordance with the “Dates for Filing” chart. For the month of October, USCIS has agreed to permit both family- and employment-based immigrants to use the “Dates for Filing” chart to file adjustment of status applications. Thus, individuals who have a priority date earlier than the “Filing Date” cut-off for the month of October may submit an adjustment of status application in October.  In the future, applicants should refer to USCIS’ site to determine when to file for adjustment of status.

Below are highlights from the most recent “check-in with Charlie” (September 14, 2015), reflecting his analysis of current trends and future projections for the various immigrant preference categories as well as his insights on the new “dates for filing” chart.

QUESTION 1: What Is the Anticipated Impact of the Addition of “Dates for Filing” to the Visa Bulletin?

Until now, the Visa Office had limited visibility into the employment-based demand for immigrant visas primarily being processed by USCIS. Though the Visa Office made educated estimates as to future demand, since these predictions were based on limited information (e.g., historical patterns, demand filed prior to subsequent retrogression of dates), unanticipated surges in demand would sometimes arise. As a result, cut-off dates in the employment-based categories have been vulnerable to fluctuation, often advancing significantly, then suddenly stopping, retrogressing, or becoming unavailable with little to no warning.

The State Department anticipates that as USCIS begins to accept adjustment applications based on the “Dates for Filing,” it will eventually have better information regarding overall immigrant visa demand. When USCIS receives an I-485 case, it pre-adjudicates the case and requests a visa number from the State Department. If the “Final Action Date” is current, the State Department will authorize an immigrant visa number and USCIS will approve the case and proceed with production of the permanent resident card. If the “Final Action Date” is not current, the State Department will be unable to authorize a visa number and the case is placed in the Visa Office’s “pending demand file.” The data maintained in the pending demand file data enables Charlie to better assess demand and move the “Final Action Dates” at a more reasonable and predictable pace over time. Based on published USCIS processing times it takes approximately six months for these cases to be received and pre-adjudicated by USCIS, so Charlie expects that he will have a better sense of overall employment-based immigrant visa demand at USCIS starting in the spring of 2016.

QUESTION 2: How will the “Dates for Filing” Change?

Charlie will determine the need for changes to the various “Dates for Filing” at the same time he is making the determination of the upcoming month’s cut-off dates. They will generally remain the same or may move forward slightly throughout the fiscal year.

QUESTION 3: Will Adding “Dates for Filing” to the Visa Bulletin Negatively Impact the “Final Action Dates”?

Although some members have expressed concerns that the addition of the “Dates for Filing” might negatively impact “Final Action Dates,” Charlie assures us that is not the case. The “Final Action Dates” listed in the October Visa Bulletin are conservative while he sees the time impact of recent changes in the dates, and they are not expected to retrogress in the foreseeable future, or without prior warning. Instead, USCIS allowing I-485 submission based upon the “Dates for Filing” will provide much needed visibility into USCIS demand which will ultimately result in more predictable and steady movement of the “Final Action Dates.” For example, earlier this year, the lack of visibility into demand initially resulted in the rapid forward movement of the cut-off date for EB-2 China in an effort to generated number use within the annual limit, which then abruptly rolled-back when demand materialized at a much higher rate than could have been anticipated. This “whiplash” phenomenon is likely to cease to occur once the new system is implemented and more reliable employment-based visa demand data is available to the State Department when determining Final Action dates.

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

http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-september-2015.html

http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2016/visa-bulletin-for-october-2015.html

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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.

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.

 

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.

Copyright: rabbit75123 / 123RF Stock Photo
Copyright: rabbit75123 / 123RF Stock Photo

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.

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.