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” (December 17, 2018), 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: December 17, 2018

Final Action Date Movements Largely Track Those of Q1 FY2019

With only modest movement in the employment-based preference categories for the first quarter of the fiscal year, we were hoping to see more dramatic forward movement in some of these categories starting with the January 2019 Visa Bulletin.  However, movement tracks similarly to what we experienced during the first quarter.

As of now, Charlie does not have sufficient data to know whether the current demand trend will continue into January so he is unable to comfortably predict final action date movements in the near term.  While Charlie initially hoped to publish specific projections in the January Bulletin, he now expects to publish projections in the February Visa Bulletin.

Since final action dates in several employment-based categories retrogressed during the final months of FY2018, demand in the first quarter was generally high across these categories, and applications which were unable to be processed for a few months are now coming through the pipeline.  Charlie is concerned that demand data may be artificially high and not reflect the true level of future demand.  He will continue to cautiously monitor demand levels over the next few weeks to assess whether this is a true trend and will make predictions accordingly.

Strike While the Iron is Hot!

It has been fortunate that USCIS has decided to accept adjustment of status applications based on the “Dates for Filing” through the first quarter of FY2019. It is Charlie’s understanding that USCIS will announce as early as Monday, December 17, that it will continue to follow the Dates for Filing for applications in January, but that the Final Action Dates may apply as early as February after that.  (Editor’s note: USCIS’ site on dates of filing appears to continue to track the dates for filing in the January 2019 DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS.   Therefore, applicants wishing to take advantage of the more liberal “Dates of Filing” should do so while that window of opportunity is open.  Interestingly, for both EB-3 China and India, the Dates for Filing for surpass those for EB-2.  This creates the potential for downgrade filings which may not be available after January.

Note: As always, as final action date movements can be unpredictable, it is critical for clients to file their applications to adjust status or to respond to the NVC Agent of Choice letter as soon as they are eligible to do so.

Programs that Will Sunset if Not Reauthorized

The EB-4 Religious Workers (SR) and EB-5 categories (I5 and R5) will sunset on December 21, 2018 unless reauthorized by Congress.  They are therefore listed as unavailable for January 2019.  The Visa Bulletin lists the final action dates that will apply to these categories, should they be reauthorized.

National Visa Center Filing Statistics Released

The January Visa Bulletin cites to an NVC report of immigrant visa applicants for both family-based and employment-based preference categories that were registered at the NVC as of November 1, 2018.

You may access the December 2018 Visa Bulletin here and the January 2019 Visa Bulletin here.


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

Congress in 2015 tried to tackle new EB-5 reform legislation, but instead chose to extend the program without any changes until September 30, 2016. This was a result of an impasse on issues relating to increase in the capital threshold amount and the change in the metrics used to determine what is a (“TEA”) targeted employment area. The contentious debate on these issues provided both developers and regional centers one more year of status quo in the program.

What will happen this year is anyone’s guess. What we do know is that Congress is holding hearings on EB-5 reform. These hearings provide the opportunity for individuals in the EB-5 industry to voice their opinion as to the future of the program.

On Wednesday April 13th 2016, the Senate Judiciary Committee held its second hearing of 2016 on the EB-5 Program titled, The Distortion of EB-5 Targeted Employment Areas: Time to End the Abuse.  The Senate Judiciary Committee heard from several witnesses including the Executive Director of IIUSA, Peter Joseph.  IIUSA is the national non-profit trade association representing EB-5 developers, regional centers and other professionals that are in the EB-5 space. Peter Joseph in his testimony pointed to several critical issues that the Committee should consider in the long term reauthorization of the EB-5 legislation. Those issues include:

  • Increase visa capacity to enhance economic impact of EB-5 and address the backlog of

investors currently waiting for visas to be available.

  • Staff commercially viable processing system at USCIS that addresses existing backlogs

and prioritizes predictability and length of processing times for EB-5 related petitions and


  • Avoid retroactive application of new law and reform to protect the existing EB-5

investors and their families and the billions of dollars in financial commitments and

contractual obligations.

  • Ensure all EB-5 investors with petitions currently filed, or at a later stage in the EB-5

process, are guaranteed adjudication (not approval) and eligibility for immigration

benefits throughout the entire EB-5 process (I-526 petition, EB-5 visa issuance, and I-829 petition)

regardless of future reforms, lapses, or expiration of the program.

  • Continue to allow economic impact models including indirect/induced job creation to

count for EB-5 purposes (using the same econometric models that are generally accepted

as economic policymaking tools by government, academia, and business).

  • Improve program integrity, including through enhanced oversight and reporting

requirements of Regional Centers that are not unduly burdensome, such as site visits

funded by user fees.

  • Clarify geographic (including targeted employment areas (TEAs)), structural, and

industry project characteristics that enable consistent adjudication of EB-5 petitions and


The issues that Peter Joseph mentioned in his testimony on Capitol Hill clearly mirror the position that most in the EB-5 industry have taken on EB-5 reform. The program has been largely a success with a substantial amount of foreign capital being invested in job creating projects in the United States. Everyone in the EB-5 space would like to see an extension of the EB-5 legislation for at least a five (5) year period.

Since 2008, the Program’s annual contribution to foreign direct investment inbound into the U.S. grew over 1,200% to total almost $5 billion in fiscal year 2015 alone. This investment capital is creating tens of thousands of jobs for U.S. workers in diverse communities by funding projects in a wide variety of industry sectors across the country.

Will Congress take any action this year to reform the current EB-5 legislation? I believe not.

This is a Presidential election year. It is very likely that Congress will defer on making any substantive changes to the EB-5 program until 2017. Immigration reform legislation has never passed both houses of Congress in an election year.

The economic benefits of the EB-5 program are not in dispute. The major issue that Congress needs to address is improving the compliance portion of the legislation. This will provide transparency to the program. Something that is much needed.


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.

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” (November 12, 2015), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the final action date movements in the December 2015 Visa Bulletin and provides his projections for monthly final action date movement through the first calendar quarter of 2016.

EB-2 India: In December, the final action dates for EB-2 India will advance ten months to June 1, 2007. This is largely the result of a necessary correction following a roll-back in the date at the end of last fiscal year. As noted in the Bulletin, Charlie projects that EB-2 India may advance monthly by as much as eight months over the course of the next few months. In speaking with AILA, Charlie mentioned that a monthly advancement of eight months would be the best case scenario, but that the actual advancement is likely to be around four to six months at a time. Charlie expects that this movement will spur EB-3 upgrades which will eventually impact demand, slowing EB-2 India advancement. He expects the upgrade demand will start to materialize in December/January which will slow advancement in early 2016. Should the demand fail to materialize at the expected rate, then the “up to eight” month movement could occur.

The EB-2 and EB-3 China Dynamic: The EB-2 China final action date will remain the same in December 2015 and Charlie does not anticipate much, if any movement in this category over the next few months as he already expects that number use will exceed the targeted usage for the first quarter of the fiscal year. Charlie received requests for 600 numbers in October and has already received approximately 200 requests for numbers to date in November. Therefore, holding the cut-off will allow the number use figure to fall back within the targeted level over a period of time.

Since the final action date for EB-3 China is later than the EB-2 China final action date, Charlie expects that some EB-2 China cases will downgrade to EB-3, which will take some of the demand pressure off of EB-2 China. This phenomenon has happened the last two years and ultimately results in increased EB-3 demand which slows movement or even retrogresses that category, while at the same time allowing EB-2 China to advance once again. Charlie expects this rebalancing to occur at some point next year, possibly as early as April.

F-2A and F-2B: Last year, the family-based 2B category advanced very quickly because the demand did not initially materialize. The dates have now advanced to the point where demand is materializing. A similar phenomenon is occurring with regard to F-2A. The agent of choice letters are not spurring sufficient demand, so until demand materializes, we can expect to see continued advancements in this category. As noted previously, the response rate is low in many of the family-based preference categories.

Impact of Addition of “Filing Dates” Concept: It is too soon to determine when the new process will begin to provide the Visa Office with better visibility into immigrant visa demand so as to even out priority date movements in the employment-based categories. While preliminary data does not suggest that the filing dates adopted by USCIS will show enough demand to be meaningful, the impact, if any, is not expected to be known until at least April 2016 when USCIS starts to request visa numbers based upon the October filings.

Coming Attractions . . .

  • Release of Revamped Foreign Affairs Manual (FAM): The December Visa Bulletin included an announcement that the State Department’s internal guidance, known as the Foreign Affairs Manual (FAM), will be replaced with 9 FAM-e, effective November 18, 2015. The new FAM upon release and updates will be available in the coming weeks.
  • Expect to See the “Visa Waiting List” in the January Visa Bulletin: Charlie and his team are currently compiling the “Visa Waiting List” which will provide information on the waiting list at the National Visa Center (NVC) as of November 1, 2015. An announcement should occur in next month’s Visa Bulletin, if not sooner.

You may access the November 2015 Visa Bulletin here and the December 2015 Visa Bulletin here.


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


Confused as to when you may file an I-485 Application for Adjustment of Status?

Beginning with the October 2015 State Department Visa Bulletin additional information appears pertaining to when an intending immigrant may file an application for adjustment of status.  This is specifically relevant to those for whom a visa number is not immediately available, such as those in the EB-2 Category from China or India, or those in the EB-3 Category from China, India, Mexico or the Philippines, among others.

In particular, the Visa Bulletin now includes “Dates for Filing” along with “Application Final Action Dates”.  (Please see my blog post, “October 2015 Visa Bulletin Includes New “Dates for Filing of Visa Applications”; Immigrant Visa Availability Procedures Revised to Permit Possible Earlier Filings” for details.)

The Immigration Service (USCIS) stated from the outset that it “may” (not “will”) use the Dates for Filing Applications to determine when an application for adjustment of status may be filed.  But, what does this mean?  How can one tell when the Immigration Service will permit an I-485 filing based on the Dates for Filing of Applications?  The answer can be found on the Immigration Service’s website at

Here is a summary of the information:

  • Unless “otherwise stated” on the USCIS website, plan to use the Application Final Action Date.
  • The “otherwise stated” information will appear on the USCIS website in the following charts, which USCIS anticipates updating within a week of the State Department’s release of each months’ Visa Bulletin):
    • Current Month Adjustment of Status Filing Chart, and
    • Next Month Adjustment of Status Filing Chart.

Currently, both of these charts contains a statement noting that USCIS has determined that one may use the Dates for Filing Visa Applications chart.  So, for October 2015 and November 2015, the Dates for Filing Applications may be used.

Of course, these dates were significantly rolled back from the originally announced October 2015 dates. (See my blog post, “October 2015 Visa Bulletin:  Dates for Filing Revised, Rolled Back,” for details.)

Perhaps December’s Dates for Filing Visa Applications will be favorable.


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

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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.


The procedures regarding immigrant visa availability have changed for the benefit of intending US permanent resident (i.e., greencard) applicants. These changes are reflected in the October 2015 Visa Bulletin which may be viewed at

The US Department of State’s (DOS’s) monthly Visa Bulletin will now include two charts per visa preference category for Family-based and Employment-based applicants as follows:

Dates for Filing Applications (Sections 4.B. and 5.B of Visa Bulletin)

In Sections 4.B. (Family-Sponsored Preference Cases) and 5.B. (Employment-Based Preference Cases), “Application Final Action Dates” are listed.  The information in this part of the Visa Bulletin “reflects dates for filing visa applications within a timeframe justifying immediate action in the application process”.

Consular Processing/National Visa Center

If an immigrant visa applicant has a priority date that is earlier than the cut-off date listed in Section 4.B. or 5.B., the Visa Bulletin indicates that the US Department of State National Visa Center (NVC) will notify the applicant with detailed instructions to assemble and submit documents to the NVC.  The NVC accepts documents needed to process a greencard application abroad at a consular post of the US Department of State.

Adjustment of Status

The October 2015 Visa Bulletin also states that USCIS may use the “Dates for Filing Applications” chart (in lieu of the “Application Final Action Dates” chart in paragraphs 4.A. and 5.A.) to determine when an application for adjustment of status may be filed.  Adjustment applicants are directed to visit for more information.  This statement in the October 2015 Visa Bulletin is consistent with USCIS’s announcement today that each month it will “monitor the visa numbers and post the relevant DOS Visa Bulletin chart” on its website under “When to File”.  An intending greencard applicant can then use this information to determine when to file an adjustment application (Form I-485 Application for Adjustment of Status).  The “Dates for Filing Applications” chart may be used only when USCIS determines that additional immigrant visa numbers are available.  Otherwise, per USCIS guidance, the “Application Final Action Dates” chart must be used by intending Adjustment of Status applicants.


The dates in the “Dates for Filing Applications” sections of the Visa Bulletin are significantly further ahead of those listed in the September 2015 Visa Bulletin.  For example, in September 2015, the EB-2 India cut-off date was January 1, 2006.  In the October 2015 Visa Bulletin, “Dates for Filing Applications” chart, the cut-off date for EB-2 India is July 1, 2011.  The implications are clear.  Under the revised process, considerably more people should be eligible to file their visa applications at earlier dates than under the prior system.

As an aside, a “C” in the Dates for Filing Applications chart indicates that the category is “current”, i.e., that applications may be filed “regardless of the applicant’s priority date”.

Application Final Action Dates (Sections 4.A. and 5.A of Visa Bulletin)

In Sections 4.A. (Family-Sponsored Preference Cases) and 5.A. (Employment-Based Preference Cases), “Application Final Action Dates” are listed when the class is oversubscribed.  This may be specific to preference categories for a particular country or could affect all countries.

If a category is oversubscribed it means that “not all demand” for visas could be satisfied for that country/category.  These dates are now noted as the “dates when visas may finally be issued” as determined based on available data.

A “C” in the Application Final Action Dates chart indicates that the category is “current”, i.e., that visa numbers are authorized to be issued to all qualified applicants for that country/category.  In other words, there enough visas available to meet the overall demand.

A “U” in the Application Final Action Dates chart means that visa numbers are not authorized to be issued during that month for that country/category.

Keep in mind that visa numbers are only authorized for issuance to applicants whose priority date is earlier than the cut-off date listed in the Visa Bulletin.

* * * * *

The new processes, implemented as a result of President Obama’s November 2014 immigration executive action and the subsequent July 2015 report captioned “Modernizing and Streamlining Our Legal Immigration System for the 21st Century”, are expected to enable the Department of State to more accurately predict the visa demand and cut-off date information which it publishes in its monthly Visa Bulletin.  It is anticipated that these revisions will facilitate use of all available visa numbers per fiscal year and reduce monthly fluctuations in the “final action dates”.


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

According to the recently released Department of State (DOS) Visa Bulletin which includes priority date processing information for the month of June 2015, there has been forward movement in both employment-based and family-based categories (for a change).

Although the cut-off date for EB-5 China remained at May 1, 2013, EB-2 China saw significant progress, moving from June 1, 2012 to June 1, 2013 and EB-3 China moved from MAY 1, 2011 to September 1, 2011.  EB-2 India saw some advancement moving from April15, 2008 to October 1, 2008 while EB-3 India moved slightly from January 15, 2004 to January 22, 2004.

In addition, the Kentucky Consular Center (KCC) has registered and notified the winners of the diversity visa lottery (DV-2016).  The Visa Bulletin also includes a statistical breakdown, by country, of the number applicants for the DV-2016 program.


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

Much has been reported regarding President Obama’s Immigration Accountability Executive Action (IAEA). And, of course, there is still uncertainty regarding when and exactly what measures will be implemented by the Immigration Service.

With so much speculation on the topic, and an abundance of DACA and DAPA information, it’s not particularly easy to understand what the Immigration Executive Action contains relating to the country’s legal immigration system. Below is a quick summary of USCIS’s January 29, 2015, notice [].

In the notice, USCIS indicated that it will work toward to goals of:

• Using all available immigrant (i.e., greencard) visa numbers when there is sufficient demand.

• Simplifying the Visa Bulletin system with regard to determinations of visa number availability.

• Clarifying I-485 portability (i.e., adjustment portability) to remove uncertainty relating to job mobility/career progression of the individual worker.

• Clarifying the National Interest Waiver I-140 (NIW I-140) greencard standard for foreign inventors, researchers and founders of start-up companies.

• Providing parole eligibility to certain inventors, researchers and founders of start-up companies who are not eligible for the NIW I-140, but who:

o Have been awarded substantial financing from US investors, OR

o Demonstrate promise of innovation and job creation through new technology development OR through the pursuit of “cutting-edge research”.

• Finalizing H-4 work authorization for the spouse of an H-1B worker whose greencard paperwork is in progress.

• Expanding and extending Optional Practical Training (OPT) for certain foreign students.

• Consolidating and clarifying L-1B Specialized Knowledge employee guidance to improve consistency in adjudications. Using these as a basis, there is great potential for an improved immigration system.

For now, we eagerly await additional details from USCIS regarding the provisions.


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