Green Cards

September Visa Bulletin

The Department of State (DOS) has released the final visa bulletin of this fiscal year. The Final Action dates remained virtually unchanged for India and China but, the Philippines EB2 and EB3 saw big jumps forward as did EB2 for all others. The DOS also announced that the worldwide limit for FY-2017 was set at 140,000 for employment based and the per-country limit was affixed at 25,620. With the October Visa Bulletin, the new fiscal year will start and we expect several retrogressed categories including EB1 India and China and EB2 all other and Philippines to return to current.

Latest on Trump’s Immigration Reform

On Wednesday, August 2, 2017, President Trump endorsed a new bill in the Senate aimed at slashing legal immigration levels, the Reforming American Immigration for a Strong Economy (RAISE) Act. This bill is a modified version of a bill senators Tom Cotton (Ark.) and David Perdue (Ga.) first introduced in April to cut immigration by half from the current level of more than 1 million green cards per year. To achieve this reduction and create what they call a “merit-based system,” Cotton and Perdue are taking aim at green cards for extended family members of U.S. citizens and legal permanent residents, limiting such avenues for grown children and siblings. Minor children and spouses would still be eligible to apply for green cards.

The highlights of the Senators’ bill propose to end the visa diversity lottery that awards 50,000 green cards a year, to areas in the world that traditionally do not have as many immigrants to the United States. The bill also caps refugee levels at 50,000 per year. Under the bill, the proposed immigration system would award points to green card applicants based on such factors as English ability, education levels and job skills. The senators said the proposal is modeled after immigration programs in Canada and Australia.

However, the bill’s prospects are dim in the Senate where Republicans hold a narrow majority. The legislation is expected to face fierce resistance from congressional Democrats, immigrant rights groups and business leaders, as well as, some moderate Republicans in states with large immigrant populations. Alex Nowrasteh, an immigration policy analyst at the CATO Institute, wrote in a blog that the bill “would do nothing to boost skilled immigration and it will only increase the proportion of employment-based green cards by cutting other green cards. Saying otherwise is grossly deceptive marketing.”

The Future? of the EB-5 Program

Numerous EB-5 legislation has been introduced with the intention of curbing some of the EB-5 program’s issues and problems. S.1501, the American Job Creation and Investment Promotion Reform Act of 2015, introduced by Sen. Grassley and Sen. Leahy, included a laundry list of EB-5 “integrity” measures. Sen. Charles Grassley and Sen. Dianne Feinstein, have proposed legislation to eliminate the EB-5 program.

In order to attempt to under the EB-5 landscape as it stands in the current political climate, we must understand the players:
Stephen Miller, Senior Advisor to the President for Policy, is a Former Senator Jeff Sessions alum who is well known for his opposition to legal immigration.

Gene Hamilton, Deputy Chief of Staff at the Department of Homeland Security (DHS) for Policy and Senior Counselor, is also a Sessions alum.

Lee Francis Cissna, nominee for Director of U.S. Citizenship and Immigration Services (USCIS), most recently assisted Sen. Grassley to write the H-1B and L-1 Visa Reform Act of 2015, a bill that would have dramatically enlarged the enforcement authority of the U.S. Department of Labor and restricted H-1B and L-1 visa requirements and benefits as well as S.1501.

Kathy Nueble Kovarik, Chief of the USCIS Office of Policy and Strategy, is also a Grassley alum.

Julie Kirchner is the USCIS Ombudsman. Ms. Kirchner served as Executive Director of FAIR, an organization actively opposed to the EB-5 program.

The USCIS Ombudsman is responsible for assisting “individuals and employers in resolving problems with” USCIS and due to limits recently placed by way of EB-5 protocols, is the only way for EB-5 stakeholders to escalate issues for EB-5 cases.
Ms. Kirchner, in her Ombudsman’s 2017 Report to Congress, acknowledged that lack of anti-fraud and national security protections, and failure to agree on a permanent or multi-year reauthorization of the Regional Center program, have resulted in adverse consequences. In addition, legislative efforts have stalled over the methodology for determining TEAs, the two-tiered investment framework and effective dates for new provisions. We are also seeing increased USCIS adjudications times and longer waits for Chinese nationals due to visa backlogs.

Most recently, on November 30, 2016, the Department of Homeland Security (DHS) announced the expansion of the USCIS Policy Manual which introduced a new section, Volume 6: Part G, Investors. Part G consolidates and replaces policy guidance found in the Adjudicator’s Field Manual (AFM) Chapters 22.4, Employment Creation Entrepreneur Cases, and 25.2, Entrepreneurs (Form I-829), as well as related AFM appendices and policy memoranda.

While comprehensive guidance is good, the new section of the USCIS Policy Manual is often unclear; provides little in the way of examples and definitions; ignores common and acceptable practices, definitions, and methodologies; and misstates or misinterprets the regulations.

Some of chapters with problems of note for the direct investor include the following:

Chapter 2.A.5 – Targeted Employment Area
• Confirms that a TEA will cease to qualify as a TEA over time if unemployment decreases or population increases. This text is problematic because of the uncertainty it introduces into the planning of EB-5 projects as the USCIS will continue to evaluate and re-evaluate TEA designation.
• Does not mention current USCIS practice granting state TEA designations a validity period of 12 months.
• Not clear as to when an area must qualify as a TEA.
Chapter 2.D.3 – Full-Time Positions for Qualifying Employees
• Refers to the job creation requirement to be “full-time and permanent” when both the INA and the CFR refer to the term “full-time.”
Chapter 4.C – Form I-526/Material Change
• Provides that a “change is material if the changed circumstances would have a natural tendency to influence or are predictably capable of affecting the decision” without providing examples to clarify what would be considered a “material change.”
Chapter 5.C – Removal of Conditions/Material Change/At Risk
• Misstates the plain language of the regulation by requiring evidence that the “at risk investment was sustained throughout the period of the petitioner’s conditional permanent residence in the United States.” The regulations only require investment be sustained “over the two years of conditional residence.”
• Excludes language confirming that an investor maintains his or her conditional permanent residence status even after the denial of the I-829 until a final administrative appeal is complete.

It is unknown if Ms. Kirchner and Mr. Cissna will be able to together resolve the issues and problem plaguing the EB-5 program. For the time being, we must utilize any and all means available to seek results for worthy cases. We should and must continue to submit well-document cases, participate in stakeholder meetings, advocate strenuously, and litigate if appropriate.

Should you have any questions about the future of the EB-5 program, please contact your HLG attorney.

August Visa Bulletin

The Department of State (DOS) recently released the August Visa Bulletin Big jumps were seen in EB3 India and EB3 Philippines however, these jumps were not unexpected as the DOS continues to make progress toward meeting the Dates for Filing chart released at the beginning of the fiscal year. In theory, by the end of the fiscal year, all dates listed in the Oct 2016 Dates for Filing chart will have been met during the fiscal year. EB2 for the Philippines and the rest of the world (ROW) retrogressed but, they are expected to return to current when the new fiscal year starts in Oct 2017.

July Visa Bulletin

The July Visa Bulletin has been released by the Department of State (DOS) and there was exciting news for many. The EB3 worldwide all other category is almost “current” as it jumped to June 8, 2017; the EB3 India category jumped ahead 9 mos.; and, the EB3 Philippines category jumped ahead 1 year. Unfortunately, there was also bad news for many as retrogression continues to be an issue for persons from India and China.

DOL releases PERM data

The DOL recently released FY 2017 2nd Q PERM data. Note that the denial rate has increased slightly and over 25% of cases are either under audit or appeal.

June Visa Bulletin

Retrogression rears its ugly head again in the June Visa Bulletin as the EB1 categories for India and China retrogressed from “current” to Jan 2012. This was predicted in the prior Visa bulletin and noted in this space so no surprise but, still troubling. It is expected that the dates for these 2 categories will return to ‘current’ with the new fiscal year and the October bulletin. Other categories saw small but, steady movement forward.

Calculating Your EB Experience Time

On April 17, 2017 an immigration policy memorandum was issued by the Service adopting “Matter of O-A- Inc.,” a copy of the memo can be found here, as a guidepost for USCIS decisions going forward. This case was focused on whether, at the time a provisional certificate is issued, a beneficiary has completed all substantive requirements to earn the degree and the university or college has approved the degree.

In this case, the beneficiary’s provisional certificate was issued May 17, 2006, but she did not receive her formal diploma until March 30, 2007, according to the decision. The priority date was Oct. 23, 2014. The director concluded that the beneficiary fell short of the five-year requirement because she accrued four years and eight months of qualifying experience between the diploma date and the priority date, but the agency said that, based on the evidence in the record, the issuance of the provisional certificate conferred the foreign equivalent of a U.S. bachelor’s degree. And the agency found that she had obtained at least five years of qualifying post-baccalaureate experience.

It was determined that the provisional certificate, together with the beneficiary’s statement of marks, showed that she had completed all the substantive requirements for her degree and that the university approved her degree. As such, the agency determined that the petitioner had shown that the beneficiary met the minimum education and experience requirements of the labor certification and EB-2 classification and sustained the appeal.

Going forward, the Service has been directed to conduct case-specific analysis to determine whether a beneficiary who received a provisional certificate had completed all requirements to earn the degree and that the school had approved the degree at the time the certificate was issued. This is good news for those beneficiary who get their provisional certificates much earlier than their diplomas.

May Visa Bulletin

In huge news, (not covered by CNN, Fox, or anywhere else, fake or otherwise) the EB3 category for India surged forward by one (1) entire day ! The rest of the Visa Bulletin was not much better as it announced that the EB1 category will soon retrogress for India and China and the EB2 category for the “all other world” and the Philippines will retrogress as early as July. Although summer retrogression is a necessary byproduct of the use it or lose it statutory scheme that allocates immigrant visas, it can be disruptive. We remain hopeful that among all of the talk of the need for immigration reform that retrogression relief is a topic being considered. You can find a copy of the May Visa bulletin here.

April Visa Bulletin

The Department of State (DOS) has released the April Visa Bulletin. There were no changes to the dates of filing chart but, since there is no expectation that the USCIS will utilize this chart, it has effectively become moot. The final action date chart showed nice gains for All Other EB3, China EB3 and Philippines EB3 but, India EB2 and EB3 were virtually unmoved. Retrogression relief remains badly needed but, positive legislation seems but, a dream under this Administration.