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Articles Posted in EB5 Investor Visas

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On May 7th just days after the President signed his controversial April 22nd executive order limiting the immigration of certain aliens to the United States for 60 days, Republican senators rallied together to urge the President to pass more immigration restrictions—this time targeting nonimmigrant foreign workers.

Republican Senators Tom Cotton of Arkansas, Ted Cruz of Texas, Chuck Grassley of Iowa, and Josh Hawley of Missouri fired off an impassioned plea to the President asking him to suspend all new guest worker visas for a period of 60 days, and certain categories of new guest worker visas for at least the next year until unemployment levels have returned to normal.

In their letter, the Senators justified their request stating that, “the United States admits more than one million nonimmigrant guest workers every year, and there is no reason to admit most such workers when our unemployment is so high.” The letter continued “given the extreme lack of available jobs for American job-seekers as portions of our economic begin to reopen, it defies common sense to admit additional foreign guest workers to compete for such limited employment.”

The Senators praised the President for passing the April 22nd proclamation but said that more needs to be done because guest worker programs “remain a serious threat to the U.S. labor market’s recovery.”

The Senators said that exceptions to the 60-day suspension should be rare and limited to time-sensitive industries such as agriculture and issued only on a case-by-case basis when the employer can demonstrate that they have been unable to find Americans to take the jobs.

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The Department of State has released the visa bulletin for May 2020 outlining the availability of immigrant visa numbers for the upcoming month.


Please note:

Unless otherwise indicated on the U.S. Citizenship and Immigration Services (USCIS) website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with USCIS in the Department of Homeland Security must use the “Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the “Dates for Filing Visa Applications” charts in this Bulletin. 


May Visa Bulletin Cutoff Dates


According to the Department of State’s May Visa Bulletin, the following cutoff dates will apply for the issuance of an immigrant visa:

  • EB-1: All countries except for China and India will become current on May 1. China will advance by five weeks to July 15, 2017, while India will advance by three months to August 1, 2015.
  • EB-2: China will advance by one month to October 1, 2015, and India will advance by one week to June 2, 2009. All other countries will remain current.
  • EB-3 Professional and Skilled Workers: All countries except India and China will remain retrogressed at January 1, 2017. Cutoff dates for China and India will advance, with China moving ahead by one month to May 15, 2016, and India moving ahead by more than five weeks to March 1, 2009.
  • EB-5: Most countries will remain current. China will advance by more than six weeks to July 1, 2015; India will advance by nine months to October 1, 2019; and Vietnam will advance by just under two months to April 1, 2017.

Employment-Based Priority Cut-off Dates for May 2020


USCIS recently announced that it will honor Final Action dates for adjustment of status filings in May. In order to file an employment-based adjustment of status application next month, employer-sponsored foreign nationals must have a priority date that is earlier than the date listed below for their preference category and country. This is the second consecutive month that USCIS has chosen the Final Action Dates chart, after several months of honoring the Dates for Filing chart.

The May Final Action Dates chart is current for EB-1 countries worldwide, after several months of retrogression.


How will the President’s Executive Order affect immigrant visas?


The President’s executive order will temporarily suspend and limit the entry of foreign nationals seeking an immigrant visa at a U.S. Consulate abroad. Although the order will apply for the next 60 days, the order will have little practical effect on immigration, given that U.S. Consulates and Embassies worldwide have suspending the issuance of all visas until the COVID-19 pandemic subsides.

If U.S. Consulates and Embassies resume operations within the next 60 days, the executive order will prevent foreign nationals from obtaining immigrant visas at U.S. Consulates worldwide. The suspension will apply to individuals who, as of Wednesday, were outside of the United States, do not have an immigrant visa, do not have official travel documents other than visas, and have not been exempted by the executive order.

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The long-awaited Executive Order temporarily suspending the immigration of certain aliens into the United States has been released.


WHO IS IMPACTED BY THE EXECUTIVE ORDER?


The order entitled, “Proclamation Suspending the Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” suspends and limits the entry of the following types of aliens (for a 60-day period) beginning 11:59 p.m. eastern daylight time on April 23, 2020.


Your entry is suspended and limited if all of the following are true:

THREE PART TEST


  • You are an alien outside of the United States on the effective date of the Proclamation (April 23rd)
  • You are an alien that does not have an immigrant visa that is valid on the effective date of the Proclamation (April 23rd) and
  • You are an alien that does not have an official travel document other than a visa on the effective date of the proclamation (April 23rd) or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission
    • Official travel documents include a transportation letter, an appropriate boarding foil, or advance parole document.

ENFORCEMENT


This Proclamation shall be enforced by U.S. Consulates worldwide at their discretion giving them the power to determine whether an immigrant has established his or her eligibility and is otherwise exempted from the Proclamation. The Department of State will implement the proclamation as it applies to immigrant visas, at the discretion of the Secretary of State in consultation with the Secretary of Homeland Security.

The Department of State governs the immigration process outside of the United States, while the Department of Homeland Security governs the immigration process within the United States and guides the United States Citizenship and Immigration Services (USCIS).


WHO IS EXEMPT FROM THE EXECUTIVE ORDER?


The order expressly exempts:

  • Lawful Permanent Residents of the U.S.
  • Aliens who are the spouses of U.S. Citizens
  • Members of the U.S. Armed Forces and any spouse and child of a member of the U.S. Armed Forces
  • Aliens under 21 years of age who are children of United States Citizens and prospective adoptees
  • Aliens seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional
  • Aliens seeking to enter the U.S. to perform medical research or other research intended to combat the spread of COVID-19
  • Any spouse any unmarried child under 21 years of age of any such alien who is accompanying or following to join the alien
  • Any alien applying for a visa pursuant to the EB-5 Immigrant Investor Program
  • Aliens whose entry furthers important United States law enforcement objectives
  • Any alien seeking entry pursuant to a Special Immigrant Visa in the SI or SQ classification, and any spouse and child of any such individual
    • SI: Certain aliens employed by the U.S. Government in Iraq or Afghanistan as translators or interpreters
    • SQ: Certain Iraqis or Afghans employed by or on behalf of the U.S. Government
  • Any alien whose entry would be in the national interest of the United States (national interest waivers)
  • Aliens seeking entry for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

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Welcome back to Visalawyerblog! In this blog post we cover the latest immigration news of the week.

USCIS Launches Online Form to Report Fraud

On March 3rd USCIS announced the launch of a new online form available on the USCIS website that can be used to report suspected immigration fraud and abuse including asylum/refugee fraud, religious worker visa fraud, employment-based visa fraud, investor visa fraud (EB-5 program), student visa fraud, marriage or fiancé visa fraud, unauthorized practice of law (notarios), and other types of immigration fraud.

This “USCIS tip form” provides space for the form user to describe alleged fraud or abuse in detail. According to USCIS, the tip form was created to make the tip process more effective and efficient, so that the agency can better collect information and make an assessment regarding the credibility of tips sent to the agency.

Previously fraud reporting was done by email, making it difficult for USCIS to respond and investigate tips.

This new online system for reporting fraud represents the Trump administration’s commitment to crack down and prevent various forms of visa fraud.

Over the years, the Trump administration has signed various directives and executive orders such as “Buy American, Hire American” aimed at rooting out fraudulent H1B, asylum/refugee, and EB-5 investor visas. The Trump administration has also worked to limit or slow down the issuance of these visas by issuing aggressive requests for evidence in the case of H1B visas and increasing the minimum investment amount for EB-5 investors.

Presidential Proclamation Suspending Entry of Certain Immigrants and Nonimmigrants who Pose a Risk of Transmitting the Coronavirus

On February 3rd the Department of State issued an important announcement reminding travelers of a Presidential proclamation signed on January 31st barring entry to the United States of immigrants or nonimmigrants who traveled to China within the 14 days immediately prior to arrival in the United States.

The proclamation went into effect on Sunday, February 2.

Travelers should note that the proclamation does not apply to U.S. citizens or lawful permanent residents of the United States.  Foreign diplomats traveling to the United States on A or G visas are excepted from this proclamation.  Other exceptions include certain family members of U.S. citizens or lawful permanent residents, including spouses, children (under the age of 21), parents (provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21), and siblings (provided that both the sibling and the U.S. citizen or lawful permanent resident are unmarried and under the age of 21).  There is also an exception for crew traveling to the United States on C, D or C1/D visas.

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In this blog post, we discuss visa bulletin trends and projections for the month of March. The U.S. Department of State (DOS) recently released the March 2020 Visa Bulletin revealing some good and bad news for employment based categories and family preference categories.

Adjustment of Status Filing Charts March 2020:

For Family-Sponsored Filings:
In the F2A category, there is a cutoff date on the Dates for Filing chart.  However, the category is “current” on the Final Action Dates chart.  Accordingly, applicants in the F2A category may file using the Final Action Dates chart for March 2020.

For all other family-sponsored preference categories, applicants must use the Dates for Filing chart in the Department of State Visa Bulletin for March 2020.

For Employment-Based Preference Filings:
For all employment-based preference categories, applicants must use the Dates for Filing chart in the Department of State Visa Bulletin for March 2020.

Employment-based Categories: The Highlights

China: This month, employment based categories for China experienced varying degrees of forward movement, with EB-3 experiencing the most advancement.

  • EB-1 China advanced ten days to June 1, 2017
  • EB-2 China advanced one month to August 15, 2015
  • EB-3 China advanced nearly three months to March 22, 2016

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As we approach the end of the year, in this blog post, we look back at the major policy changes implemented by the Trump administration in the year 2019 that have had a profound impact on the way our immigration system functions today.

JANUARY 

Government Shutdown Woes

The start of 2019 began on a very somber note. From December 22, 2018 to January 25, 2019 Americans experienced the longest government shutdown in American history (lasting a period fo 35 days) largely due to political differences between the Republican and Democratic parties on the issue of government funding to build a border wall along the U.S. Mexico border.

The government shutdown created a massive backlog for non-detained persons expecting to attend hearings in immigration court. Because of limited availability of federal workers, non-detained persons experienced postponements and were required to wait an indeterminate amount of time for those hearings to be re-scheduled.

To sway public opinion, 17 days into the government shutdown, the President delivered his first primetime address from the Oval office where he called on Democrats to pass a spending bill that would provide $5.7 billion in funding for border security, including the President’s border wall.

With no agreement in sight, on January 19, 2019, the President sought to appease Democrats by offering them a compromise solution. In exchange for funding his border wall and border security, the President announced a plan that would extend temporary protected status of TPS recipients for a three-year period and provide legislative relief to DACA recipients for a three-year period. The President’s proposal however did not provide a pathway to residency for Dreamers, and was quickly rejected by Democrats.

On January 25, 2019, with still no solution and pressure mounting, the President relented and passed a temporary bill reopening the government until February 15, 2019.

Meanwhile, immigration courts across the country were forced to postpone hundreds of immigration hearings, with Minnesota, Pennsylvania, and Kentucky being the most deeply affected by the shutdown.

Changes to the H1B Visa Program

On January 30, 2019, the Department of Homeland Security announced proposed changes to the H-1B visa program including a mandatory electronic registration requirement for H1B petitioners filing cap-subject petitions beginning fiscal year 2020, and a reversal in the selection process for cap-subject petitions. The government outlined that it would first select H-1B registrations submitted on behalf of all H-1B beneficiaries (including regular cap and advanced degree exemption) and then if necessary select the remaining number of petitions from registrations filed for the advanced degree exemption. Moreover, only those registrations selected during fiscal year 2020 and on, would be eligible to file a paper H1B cap petition.

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In this blog post we highlight the best features of E-2 Treaty Investor Visa program, for individuals seeking to live and work in the United States for a temporary period of time.

First let’s discuss what the E-2 visa is. The E-2 visa is a non-immigrant visa type, which means that it is a temporary visa option for individuals who do not wish to immigrate to the United States, but rather are interested in remaining in the United States for a limited period of time.

Secondly, the E-2 visa is a treaty investor visa. This means that in order to qualify for this visa type you must be a national of a country with which the United States maintains a treaty of commerce and navigation. This visa type allows a national of a treaty country to apply for admission to the United States under the E-2 visa category for the purpose of investing a substantial amount of capital in a United States business.

Currently, 89 countries maintain a treaty of commerce and navigation with the United States. Israel and New Zealand are the most recent countries to enter into a treaty commerce and navigation with the United States, allowing nationals of these countries to participate in the E-2 visa program. For a complete list of the countries with which the U.S. maintains a treaty of commerce and navigation, please click here.

The most frequently asked question when it comes to the E-2 visa is, how much money must I invest in order to qualify for this visa type?

The amount of money that must be invested depends on the nature of the business’ operations. USCIS defines the amount of capital to be invested as “a substantial amount of capital” interpreted as:

  • Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
  • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
  • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.  The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

Thirdly, to qualify for the E-2 visa the investment must be in a bona fide business enterprise that is real, active, and operating and is producing either services or goods for profit. Passive investments are not allowed.

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House Passes CR Bill to Fund EB-5 through November 21st 

Great news! On September 19, 2019, the House of Representatives passed H.R. 4378, a continuing resolution bill that will fund the EB-5 Immigrant Investor Program through November 21, 2019.

H.R. 4378 has now passed on to the Senate where it will be considered and voted on. The bill is expected to clear the Senate and be signed into law by the President prior to September 30, 2019, the fiscal year deadline.

If the Senate is unable to pass the bill by that date, a government shutdown will likely occur until Congress is able to pass the continuing resolution bill to keep the government open and federal programs afloat.

Performance Data Form I-829 and Form I-526

Just days before the House passed H.R. 4378, USCIS published its third quarterly report for FY 2019 providing insight on performance data for petitions filed by entrepreneurs to remove conditions (Form I-829) and performance data for Immigrant Petitions filed by Alien Entrepreneurs (Form I-526).

What does the Quarterly Report reveal?

  • First off, USCIS is approving dramatically fewer I-526 than ever before:
    • Completion rates for I-526 have fallen 63%, comparing FY2019 with FY2018 year-to-date.
    • In FY2019 Q3, USCIS processed fewer I-526 than ever before in its history – only 579 completions for the whole quarter, as compared with 3,000-4,400 completions per quarter last year.
    • In FY2019 Q3, a record number of I-526 decisions were denials — 42%. The average I-526 denial rate is 20% in FY2019 YTD, as compared with 9% in FY2018 YTD.
  • Secondly, USCIS is processing dramatically fewer forms in total than ever before:
    • Completion rates across EB-5 forms (I-526, I-829, I-924) have collectively fallen 59%, comparing FY2019 with FY2018 year-to-date.
    • In FY2019 Q3, IPO processed more I-829 than in the previous quarter, but still a low volume – lower than average 2017/2018 performance for I-829.
  • Overall this data reflects reduced performance combined with backlogs causing extremely long processing times (The Current Processing Times report indicates that an I-924 is only considered “outside normal” processing after 90 months)

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In this post, we would like to keep our readers informed about Visa Bulletin projections for the coming months. Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides a monthly analysis of each month’s Visa Bulletin including discussion of current trends and future projections for immigrant preference categories. This post will focus on the EB-1, EB-2, EB-3, and EB-5 categories.

Below are the highlights of those trends and projections for the coming months.

Employment-Based Immigration: First Preference EB-1

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The Trump administration is bringing about more changes to the world of immigration, this time targeting the EB-5 Immigrant Investor Program.

USCIS has just announced that it is planning to revise regulations governing the EB-5 Immigrant Investor Program.

Tomorrow, the agency will be publishing a final rule in the federal register outlining these changes. The final rule becomes effective on November 21, 2019.