Articles Posted in EB5 Investor Visas

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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.

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Photo credit: Scott Kirkwood/NPCA

Today marks the fifth day of a partial government shutdown that began on Saturday. The government was forced into a shutdown after Democrats refused to concede $5 billion dollars to fund the President’s wall along the southwest border.

Since then, Democratic leaders in the House and Senate have not opened negotiations to appease the President. If a resolution is not reached before the end of December, it is highly unlikely that the President will receive the money demanded to fund the border wall. When the new House of Representatives convenes after the holidays, the Democrats will command a majority in the House of Representatives, making it more difficult for the President to obtain the necessary funding.

The government shutdown will affect various government entities including the Department of Homeland Security and Department of Labor.

Here’s how it will affect immigration:

EB-5 Immigrant Investor Regional Center Program:

Without congressional authorization to continue the EB-5 Regional Center Program beyond December 21, 2018, USCIS will not accept new Forms I-924, Application for Regional Center Designation Under the Immigrant Investor Program. Any Form I-924 applications that are pending as of December 21, 2018, will be placed on hold until further notice.

Per the USCIS Website:

“We will continue to receive regional center-affiliated Forms I-526, Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status, after the close of business on Dec. 22, 2018. As of Dec. 22, 2018, we will put unadjudicated regional center-affiliated Forms I-526 and I-485 (whether filed before or after the expiration date) on hold for an undetermined length of time.

All Forms I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, filed before or after the expiration date, will not be affected by the expiration of the program.”

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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.

EB-1: The following categories are expected to experience some forward movement in the month of December, however it is not yet known how much advancement will take place: EB-1 Worldwide, EB-1 China, and EB-1 India. It is not expected for these categories to return to current during this calendar year. A cutoff date is expected for EB-1 Worldwide until the first half of the fiscal year.

EB-2 China: is expected to continue to experience forward movement

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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.

EB-1 Worldwide: this category is not expected to advance until January 2019. Time will tell whether this category will become current during the next year.

EB-1 China and EB-1 India: Also expected to experience forward movement until January 2019. A cutoff date for this category will continue through the next 12 months.

EB-2 Worldwide: This category is expected to remain current until at least the foreseeable future.

EB-2 China: is two months behind EB-3 China, which may prompt EB-2 applicants to downgrade.

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In this post, we would like to keep our readers informed about Visa Bulletin projections for the month of October. 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.

Below are the highlights of those trends and projections for the month of October.

EB-1 Worldwide: It is expected that heavy demand in this category will prevent this category from becoming current in October. Previously, it was believed that EB-1 Worldwide would become current on October 1st, but this will no longer be the case according to current projections. EB-1 China and EB-1 India will have earlier final action dates than the EB-1 Worldwide category, which are expected to fall in the month of October. It is projected that the EB-1 categories will not move forward until about December or 2019.

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Today, May 25, 2018, the Department of Homeland Security announced that it will be publishing a proposed rule in the Federal Register on May 29th to end the International Entrepreneur Rule, a program that gives foreign entrepreneurs the opportunity to apply for parole to come to the United States for the purpose of developing or starting a business venture in the United States.

As you may be aware, during July of last year, DHS took its first steps to dismantle the program by delaying the implementation of the rule until March 14, 2018. During that time, DHS began to draft a proposal to rescind the rule. In December of 2017 however, a federal court ordered USCIS to begin accepting international entrepreneur parole applications, vacating the delay.

In an act of defiance, DHS is now seeking to eliminate the international entrepreneur rule altogether because the department believes that the rule sweeps to broadly and doesn’t provide sufficient protections for U.S. workers and investors. According to the agency, the international entrepreneur rule “is not an appropriate vehicle for attracting and retaining international entrepreneurs.” This is once again an effort by the Trump administration to undermine Obama era policies such as Deferred Action, to better align with the President’s America-first policies on immigration.

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