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The bad news continues for the EB-5 Immigrant Investor Regional Center Program. As our readers will know, the EB-5 Regional Center program has been in a period of lapse following Congressional failure to reauthorize the program after its expiration at midnight on June 30, 2021. Such reauthorization was expected to be included in the government’s appropriations funding bills, but no such action has yet taken place to extend the program.

In a glimmer of hope, on December 3, 2021, President Biden signed H.R. 6119 into law, “Further Extending Government Funding Act” which includes a short-term continuing resolution that funds the federal government through February 18, 2022. EB-5 Regional Center legislation extending the program is expected to be included in future appropriation bills.

With its hands tied on the matter, on October 4, 2021, USCIS updated its website to indicate that it would not be accepting new I-526 petitions based on a regional center investment, but would be placing all pending I-526 petitions based on the Regional Center program in “abeyance,” (a temporary hold), as well as placing all pending I-485 green card applications based on a Regional Center investment on hold at least through the end of 2021, pending further action from Congress. No acting is being taken on applications placed on hold.

I-829 Petitions filed by conditional permanent residents under the Regional Center program remain unaffected. USCIS has confirmed that such applications are being accepted and processed by the agency.

Acting upon the government lapse, for its part, the Department of State has stopped processing immigrant visa applications for EB-5 Program applicants altogether.

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Welcome back to Visalawyerblog! In this blog post we share with you some recent news regarding a new class action lawsuit that has been filed by 49 plaintiffs against the Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS), seeking relief from the extreme processing delays currently taking place for I-765 applications for employment authorization (EADs) filed by individuals seeking adjustment of status (AOS) in the United States, and for I-765 applications filed by E-2 dependent spouses with USCIS.

Currently, USCIS reports that I-765 work permit applications based on a pending I-485 adjustment of status application are taking between 20 to 21.5 months to process at the California Service Center; while it is taking 9 to 9.5 months to process work permit applications at the National Benefits Center; and 9.5 to 10.5 months to process such applications at the Nebraska Service Center.

The new legal challenge against the government has been mounted by the American Immigration Lawyers Association (AILA), Wolfsdorf Rosenthal LLP, Joseph and Hall PC, Kuck Baxter Immigration LLC, and Siskind Susser PC.

The lawsuit seeks to hold the government accountable once and for all for the exorbitant processing times taking place for work permit applications to be adjudicated, especially those at the California Service Center. Under the law, applicants for adjustment of status are afforded the option of applying for temporary employment authorization while their green card applications are pending with USCIS, through what is supposed to be an easy procedure that involves filing a simple I-765 application for employment authorization. In normal circumstances, such employment authorization applications took on average 7 to 9 months to be adjudicated. Since the onset of the pandemic however USCIS has not been able to adjudicate these applications within reasonable timeframes.

Processing times have gotten worse and worse to the point that applicants are receiving their green card interview appointments before even coming close to receiving an approved employment authorization document. This has resulted in applicants being unable to seek employment while waiting for their green card applications to process. This has caused great cause for concern for individuals who have a job offer lined up or who need to work to maintain their households. Further, the American economy is experiencing more and more labor shortages as they struggle to get individuals back to work. The situation at the USCIS level is making it even more difficult for American businesses to find qualified workers.

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Welcome back to Visalawyerblog! In this post, we give you the rundown on the most exciting immigration updates recently announced by the United States Citizenship and Immigration Services (USCIS).

These announcements provide important information for applicants including, extended flexibility policies for responding to Requests for Evidence, new COVID-19 vaccination requirements for green card applicants, automatic 24-month extensions of status for petitioners who have properly filed Form I-751 Petition to Remove Conditions on Residence or Form I-829 Petition by Investor to Remove Conditions on Permanent Resident Status starting September 4, 2021, and continuance of TPS designations for nationals from certain countries.

The Rundown: What do I need to know about these new updates?

USCIS RFE/NOID Flexibility Continued for Responses to Agency Requests

USCIS has announced that it will continue its flexibility policy giving applicants and petitioners more time to respond to Requests for Evidence during the COVID-19 pandemic. On September 24, 2021, USCIS made the announcement that it will continue to grant applicants who have received a request for evidence, notice of intent to deny, or such a related document, an additional 60 calendar days after the response deadline indicated on the notice or request, to submit a response to a request or notice, provided the request or notice was issued by USCIS between March 1, 2020 through January 15, 2022. This is great news because it will allow applicants and petitioners more time to gather documents that are hard to obtain during the COVID-10 pandemic.

What documents qualify for this flexibility in responding?

Applicants who receive any of the below mentioned documents dated between March 1, 2020 and January 15, 2022 can take advantage of the additional 60 days to respond to the request or notice:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind;
  • Notices of Intent to Terminate regional investment centers; and
  • Motions to Reopen an N-400 pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings, if:

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Welcome back to Visalawyerblog and a very happy Thursday to all our loyal readers. In this blog post, we bring you the latest information regarding the expiration of the EB-5 Regional Center program.

What is the EB-5 Regional Center Program?

To become eligible to receive a green card (permanent residence) under the EB-5 Immigrant Investor Program, a foreign national must make either (1) a direct investment in a new commercial enterprise or (2) an investment in a Regional Center project, resulting in the creation of at least 10 jobs, during the time that the investor is granted conditional permanent residence. These are considered the two different “types” of investments under the EB-program. The amount required to be invested depends on whether the investment is “direct” or made in a Regional Center project.

Several considerations need to be taken into account by the investor when deciding which type of investment is right for them (whether “direct” or in a Regional Center). Most often “direct” investment is the most suitable option where the foreign investor wishes to open and operate his own commercial enterprise in the United States and wants to have full control over his or her investment.

The “direct” EB-5 program has three basic requirements: (1) investment in a “new commercial enterprise” (2) of at least $1,000,000 (or $500,000 if the investment is being made in a Targeted Employment Area (TEA) that is underserved) (3) that results in the creation of at least 10 new full-time jobs. Investors are also required to take an active enough role in the business having at least a policy-making position.

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Federal District Judge Rules to Reinstate $500,000 Minimum Investment For the EB-5 Visa Program

In this blog post, we share with you a new landmark court decision affecting the EB-5 Immigrant Investor Visa Program, known as matter of Behring Regional Center LLC V. Chad Wolf et al.

In this case, decided on June 22, 2021, the U.S. District Court of the Northern District of California vacated the controversial 2019 ‘EB-5 Modernization Rule’ that sought to ‘modernize’ the EB-5 visa program, by increasing the minimum investment amount from $500,000 to $900,000.  In her ruling, Judge Corley concluded that the 2019 Modernization Rule should be vacated because the former acting DHS Security, Kevin McAleenan was not properly appointed in his position under the Federal Vacancies Reform Act when he implemented the Regulations.  Therefore, the officials had no legal authority to make and to announce the changes.

The judge’s new ruling means that the district court’s decision will restore the original rules for the EB-5 program, initially established by the Immigration Act of 1990 as a legal pathway to provide qualified foreign/immigrant investors the opportunity to obtain permanent residency in the U.S. (commonly known as the “green card”). The now-defunct EB-5 Modernization Regulations of 2019 had increased the minimum investment amount from $500,000 to $900,000, but with this new ruling the minimum investment amount has again reverted to $500,000.

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Welcome back to the Visalawyerblog! We have a very exciting announcement for you this afternoon. The International Entrepreneur Parole Program is back and in full force!

Today, May 10, 2021, USCIS announced that it will no longer pursue Trump era efforts to terminate the International Entrepreneur Parole Program and will instead remain committed to the continuance and implementation of the program to benefit immigrant entrepreneurs.

This decision is all part of the Biden administration’s efforts to restore faith in our legal immigration system, as outlined in Executive Order 14012, requiring DHS to identify and remove agency actions that fail to promote access to the legal immigration system.

What’s been happening with the International Entrepreneur Parole Program?

The International Entrepreneur Parole program was first established during the final days of the Obama administration with a planned implementation date of July 17, 2017. The program was designed to expand the admission of certain entrepreneurs into the United States by granting them temporary permission to enter the United States, (also known as “parole”) for a period of up to five years in order for the entrepreneur to begin a start-up business in the United States. Qualifying businesses include those with a high potential for growth and expansion.

The program did not establish a permanent immigration option, nor did it qualify an entrepreneur for permanent residence. Instead, the program was implemented as an option for eligible entrepreneurs wishing to remain in the United States on a temporary basis. One of the main advantages of the program was that entrepreneurs could take advantage of a much simpler immigration process known as requesting “parole” instead of having to apply for an investor visa at a U.S. Embassy or Consulate abroad.

Sadly, shortly after Donald Trump assumed the Presidency in early 2017, his administration quickly went to work to dismantle and undo the International Entrepreneur Rule before its planned implementation date.

The Trump administration set the stage for the undoing of the program by first issuing a rule in the federal register to delay the program’s implementation date to March 14, 2018, giving the agency more time to terminate the program.

On May 29, 2018, the administration formally moved to terminate the program by publishing a proposed rule to terminate the program altogether. Since then, the program has remained in a state of limbo, with the Trump era proposed rule still sitting idle in the Federal Register.

Today, the Biden administration made clear that the International Entrepreneur Parole Program is here to stay.

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Welcome back to Visalawyerblog! It is the start of a brand-new week and we are excited to bring you more updates in the world of immigration.

We are happy to report that the Department of State has released important information for nonimmigrant visa applicants who may qualify for an interview waiver. That’s right. Certain nonimmigrant visa applicants will now be eligible to obtain a renewal of their visas without being required to attend a Consulate interview.

Who may take advantage of Non-Immigrant Visa Interview Waivers?

The Secretary of State, Antony Blinken, has consulted with the Department of Homeland Security, and temporarily expanded the ability of Consular officials to waive the in-person interview requirement, which is normally required of all individuals seeking nonimmigrant visas in the same visa classification – in other words renewal applicants.

Prior to the COVID-19 pandemic, interview waivers were only available to those applicants whose nonimmigrant visa was set to expire within 24 months.

The Secretary has now temporarily extended the Interview Waiver eligibility to those whose visas are set to expire within 48 months. This new policy will be in effect until December 31, 2021.

According to the Department of State, “This change will allow consular officers to continue processing certain nonimmigrant visa applications, while limiting the number of applicants who must appear at a consular section, thereby reducing the risk of COVID-19 transmission to other applicants and consular staff.”

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In this blog post we share with our readers several new developments in immigration relating to COVID-19.

At a Glance: What’s in This Blog?

  • DOS Announces One-Month Extension for Immigrant Visa Medical Examinations
  • Phased Resumption of Routine Visa Services
  • DOS Releases SEVP Online Course Guidance for F and M Students for Fall 2020
  • When will the Presidential Proclamation Suspending Entry for the Schengen Countries be Lifted?
  • Are there any National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland?
  • Are there any National Interest Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Nonimmigrants Presenting a Risk to the United States Labor Market?

DOS Announces One-Month Extension for Immigrant Visa Medical Examinations

We are pleased to report that on July 24, 2020, the Department of State issued an important announcement confirming that the Centers for Disease Control and Prevention (CDC) have approved a one-month extension for medical examinations conducted between January 1, 2020 and June 30, 2020. As many of you know, medical examinations for immigrant visa applicants are valid for a maximum of six months.

The Department of State has advised applicants (1) who were unable to travel on an issued visa, or (2) who obtained a medical examination but did not receive a visa, to contact the Immigrant Visa Unit of the U.S. Embassy or Consulate that issued or is adjudicating your visa application to determine whether you may be issued or reissued a visa for one additional month. Applicants who are unable to travel within one additional month, should consider waiting until they are able to travel to obtain a new, full validity medical examination and visa.

Phased Resumption of Routine Visa Services

In March 2020 the Department of State suspended routine visa services worldwide in response to the Coronavirus pandemic. On July 14, 2020 the Department of State released information on its webpage notifying the public that resumption of routine visa services will occur on a post-by post basis, in coordination with the Department’s Diplomacy Strong framework to safely return personnel to Department facilities. With that being said, the Department of State cannot provide a specific date for when each Consular post will return to processing at pre-Covid workload levels. Applicants are advised to monitor each individual U.S. Embassy or Consulate’s website for information regarding operating status, and updates on which services they are currently offering.

As always, U.S. Embassies and Consulates will continue to provide emergency and critical visa services.

The DOS has also stated that MRV fees are valid and may be used to schedule a visa appointment in the country where it was purchased within one year of the date of payment.

  • For more information about this announcement and FAQs please click here.
  • For a list of Embassies and Consular webpages click here.

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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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For many small businesses struggling to survive in the wake of the COVID-19 pandemic, receiving a Paycheck Protection Program (PPP) loan was the only option to stay afloat.

Unfortunately, the $350 billion in aid set aside by the CARES Act has run out. While it is believed that Congress will approve a second round of appropriations to fund the Paycheck Protection Program throughout the pandemic, there is no guarantee that this will occur.

What will happen to those who applied for a loan but did not receive any funds before the money ran out?

Those who submitted a PPP application through their lenders still have a good chance of getting funded as financial institutions continue to process loan applications that were submitted. Many lenders have not gotten around to notifying borrowers that they have been approved and will be funded. Borrowers should contact their lenders to follow up with the process.

Furthermore, according to recent information provided to the American Immigration Lawyers Association (AILA) by SBA expert Chris Chan, small business owners should keep the following things in mind when considering their next steps:

  • Businesses that applied up until a few days ago still have a real shot at hearing good news from their banks. Those that have already been approved by their bank should all get money within the 10 days required by law.
  • If the loan has an SBA number attached to it, that means it made it through the initial phase of processing and will likely be part of the loan amount that’s been approved. It doesn’t mean the loan could not be denied for other reasons, but there is hope in this scenario.
  • Other loans submitted under PPP may be declined, which would free up cash under the $349 billion for other loans in the queue to be processed.
  • There is bipartisan support of adding an additional $250 to $300 billion to the program in CARES Act 2. Congress is hung up over other provisions and adaptations that they want in the program, but there was news coverage this weekend that indicated they are close to an agreement.

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