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EB-5 Program to Be Extended to September 30, 2018 – Regulations to Increase Investment Amount Likely Meanwhile USCIS Approves Minors as Principal EB-5 Investors

3/20/2018

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By: Wolfsdorf Rosenthal LLP, Law Firm of Bernard P. Wolfsdorf, ABIL Lawyer
​Wolfsdorf Rosenthal Immigration Blog

​Invest in the USA (“IIUSA), the national EB-5 Regional Center trade organization, announced today that the EB-5 Immigrant Investor Visa and Regional Center Program Comprehensive Reform Act (the “EB-5 Reform Act”) will not be included in the omnibus appropriations legislation this week. The legislation does however, include an extension of the current EB-5 Regional Center Program through September 30, 2018 with no changes in the minimum investment amount.

Wolfsdorf Rosenthal LLP is a strong proponent for reform and predictability to the EB-5 Regional Center Program, but only if it provides a fair deal to current EB-5 investors who are waiting their turn to immigrate. We also support future reform attempts which include meaningful provisions to increase the number of immigrant visas to EB-5 investors and reduce the backlog for Chinese and Vietnamese investors (and possibly in the future, for Indian and South Korean investors too) who are presently subject to the 7% per country allocation of only 696 visas per year, or 58 visas per month limitation for each country.

In our prior blog making predictions about the EB-5 program we stated: “Most likely we will get another short Continuing Resolution extension, followed by regulations designed to reform the program, or new legislation, or possibly even both.”

This appears to be accurate with a likely extension to September 30, 2018, and likely regulations in the next few months with a chance of legislation also.

The good news from USCIS that affects applicants for EB-5 from China, Vietnam and possibly other countries that may be backlogged in the next 1-2 years is there appears to be an option for relief to parents with children who would “age out” as derivative beneficiaries.

The USCIS has begun to approve the Form I-526 petitions of principal applicants who were minors at the time of signing the relevant EB-5 investment agreements. These cases have to be structured in a way to ensure they conform to USCIS guidelines for minors.

Here are four things to know about this important update.
1.  Significance of Approvals for Chinese Investors. By allowing Chinese minors to be the principal EB-5 applicant, the USCIS has opened the door for more opportunities to invest in U.S. companies and create jobs for qualifying U.S. workers through the EB-5 Program. The significance of these Form I-526 approvals cannot be understated. The USCIS Ombudsman estimated in its 2017 Annual Report that an EB-5 investor from China may need to wait 10 years to obtain a visa to enter the U.S. after making the investment in a U.S. company, though reform to the EB-5 Program can modify this. For many Chinese nationals, the purpose of EB-5 investment is to provide their children with educational opportunities in the U.S. that are not available in China. While we are hopeful Congress may fix this, the long EB-5 visa backlog could prevent some derivative children from obtaining an immigrant visa. This is because a derivative child must obtain a green card before turning 21 years of age. There is likelihood that many of these children will “age-out” and will not be issued green cards. The Child Status Protection Act (“CSPA”) only allows a derivative child to subtract the time the immigrant visa petition (Form I-526) was pending from his or her age, but this cannot be done until a visa is available based on the Filing Date. Wolfsdorf Rosenthal has now had approvals for people age 15 at the time of filing but the legal theory for this success applies equally to children even younger at the time of filing. USCIS’ approval of these cases will increase demand for EB-5 investments in China where the minor is filing as the principal applicant.

2.  What does USCIS Question? USCIS is questioning whether a minor may file as the principal EB-5 applicant, as opposed to being listed as a derivative beneficiary on a parent’s application. USCIS has previously confirmed that there is no minimum age requirement in the EB-5 regulations and that a minor principal applicant can sign the Form I-526 without a parent’s or guardian’s signature required[1]. USCIS has publicly stated that a minor must show adequate legal capacity to enter into contracts such that the investment contract is irrevocable and thus a “committed investment” within the meaning of regulations. USCIS has issued Requests for Evidence (“RFEs”) to minor petitioners, questioning whether the minor’s age renders the contract unenforceable (and thus, the capital not “at risk”) due to the availability of a “guaranteed return.” USCIS’ wants to make sure the minor cannot repudiate the investment and avoid liability under the relevant EB-5 investment agreements. The RFEs invite minors to submit additional evidence to persuasively argue compliance under their facts and under the applicable law.

3.  Uniform Transfer to Minors Act. USCIS has approved Form I-526 petitions in which a minor’s parent, acting as a custodian for the minor under a state’s Uniform Transfers to Minors Act (“UTMA”), transfers funds to the new commercial enterprise and signs the relevant EB-5 investment agreements on behalf of the minor. The custodial relationship between the parent and minor is created when the parent signs the subscription agreement and other relevant investment agreements using a form mandated by the state UTMA, which for a security is designated as “_________ (name of parent) as custodian for _________________ (name of minor) under the _____________ (name of state) Uniform Transfers to Minors” During the period of custodianship, the parent acts as a fiduciary for, and has control over, the investment in the new commercial enterprise, but the actual title in (ownership of) the investment is irrevocably vested in the minor. By using the correct UTMA language when signing the applicable investment contracts, the parent creates a binding, non-voidable commitment to investment on behalf of the minor that is enforceable under applicable state laws of the United States.

4.  Minors Traveling to or Living in the United States Without Their Parents. Despite the like waiting line for China-born EB-5 applicants, USCIS may still have concerns with minor EB-5 investors travelling alone to live in the United States without their parents. The minors will likely be over 18 by the time they are lawful permanent residents but in the interim, the waiting line issue could be resolved sooner resulting in the child principal becoming eligible eve earlier. The U.S. Customs and Border Protection (“CBP”) generally requires notarized written consent letter from both the minor’s parents. The parents may also appoint a U.S. resident or citizen as legal guardian for the minor when he/she receives the permanent residence.

​USCIS’ acceptance that a minor may file as the principal EB-5 applicant is a huge relief to current and future investors. It is important that sound legal arguments responding to RFEs specific questions are used. Obtaining independent legal opinions from respected U.S. and Chinese contract and securities attorneys are essential in convincing USCIS of the legal basis behind contractual capacity, formation, and enforceability.
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10 Things to Know About the New EB-5 Reform Act

3/13/2018

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By: Wolfsdorf Rosenthal LLP, Law Firm of Bernard P. Wolfsdorf, ABIL Lawyer
​Wolfsdorf Immigration Blog

On March 8, 2018, a draft of the EB-5 Immigrant Investor Visa and Regional Center Program Comprehensive Reform Act (the “EB-5 Reform Act”) was released.  This new proposal is similar to earlier congressional reform attempts but also includes new provisions that would dramatically affect the EB-5 industry – both in the short-term and long-term.  If passed, the Act would authorize the EB-5 Regional Center Program – currently set to expire on May 23, 2018 – until September 30, 2023.  This longer-term extension is welcome news, as it would provide the certainty that the EB-5 industry has lacked during the past few years.
As of the publication of this blog, it does not appear that the EB-5 Reform Act has been formally introduced into Congress for debate or discussion.  Nevertheless, it’s possible that the legislation will be attached to the Omnibus bill that would fund the federal government through the remainder of the fiscal year, which is expected to be released this week.  It’s likely that if the EB-5 Reform Act is not passed in the next couple weeks, any legislative reform to the EB-5 Program before September 30, 2018 is unlikely. In summary, this may be the last chance for this year, as mid-term elections will undoubtedly freeze further action for the year.
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Here are ten things to know about the EB-5 Reform Act.
1.  Increased Minimum Investment Levels. The EB-5 Reform Act would increase the minimum investment amount from $500,000/$1,000,000 to $925,000/$1,025,000, depending on the type and location of the immigrant investor’s capital investment project.   The lower investment threshold is applicable primarily to capital investment projects located in rural or priority urban investment areas, or within a closed military installation; or through a small business investment fund.  The qualifying investment amount would be adjusted every three years.  Additionally, the EB-5 Reform Bill provides that USCIS may prescribe regulations to increase the qualifying capital investment amount.

2.  Reserved and Unused Visas. Also known as “set asides,” the EB-5 Reform Act provides that a portion of the annual number of EB-5 visas be reserved for immigrant investors who invest in rural areas (1,450), priority urban investment areas (1,450), or in infrastructure projects (200).  Any of these visas which go unused in each year would be available for immigrant investors who invest in these types of projects in subsequent years.

3.  Job Creation. The EB-5 Program is a job creation program with a U.S. immigration benefit.  The EB-5 Reform Act increases the job creation requirement to 12 U.S. employees.  However, it reduces the job creation requirement to only 9 U.S. employees for capital investment projects located in rural or priority urban investment areas, or in a BRAC; or a small business investment fund.  

Because of these three significant changes, and the potential for children to “age out” because of limited EB-5 visa availability, we expect many Regional Centers may seek projects which meet these criteria. However, anecdotal evidence is that many existing projects will qualify for the set-asides so the 4 benefit will largely be used up very quickly.

4.  More Stringent Source of Funds Requirements. Investors include needing to document the lawful source of the investment as well as for administrative costs and fees. It is now also specified in the definition of “capital” unsecured promissory notes or promissory notes secured by foreign property cannot be used as EB-5 capital. It is not clear whether this excludes mortgage loans obtained by foreign investors using their foreign properties as collateral.

5.  Moratorium on Filings and the Transition Period. Starting on the date of enactment, and continuing for 120 days thereafter, USCIS would not be authorized to accept or any new Form I-526 or Form I-924 application.  During this time, USCIS would continue to adjudicate pending applications, and would work to revise and update its forms and systems to be able to implement each provision of the EB-5 Reform Act.  Once the moratorium is lifted, there are separate rules for a “transition period” that begins on 121 days after the date of enactment until 365 days thereafter. Only petitions representing 7,000 foreign nationals (principal investor and their family members) will be accepted during the transition period and these petitions can be based on a minimum investment amount of $925,000. Petitions that are not accepted during the transition period after the 7,000-visa limit has been reached will be required to pay the investment amount depending on the type and location of the immigrant investor’s capital investment project.

6.  Exemplar Requirement. A Regional Center will be required to file a Form I-924 for each capital investment project through a new commercial enterprise, which must include any conflicts of interest which exist or may arise among the Regional Center, the new commercial enterprise, the job creating entity, and any principals/attorneys thereof; and any fees, ongoing interest, or other compensation to be paid to agents, finders, or broker dealers involved in the offering of capital investment project, along with each such persons name and contact information.

7.  Not Enough Relief for Potential “Age Out” Children. The EB-5 Reform Act provides that one child of a principal investor who has obtained conditional lawful permanent residency, and whose conditional lawful permanent residency is terminated may continue to be considered a derivative child of the principal alien, in the event a subsequent petition is filed within one year after such termination and if the child remains unmarried. Unfortunately, the EB-5 Reform Act provides no relief to immigrant investors with children who may “age out,” such as priority date retention for any subsequently filed Form I-526s. It does allow concurrent filing of I-485 Adjustment of Status applications if the visa number is current.

8.  Additional Fees; Premium Processing for Regional Centers. Under the EB-5 Reform Act, Regional Centers would be required to pay an annual fee of $20,000 into the “Employment Creation Visa Integrity, Fraud Prevention and Detection Fund,” though this amount is reduced to $10,000 for Regional Centers “with 20 or fewer total investors in the preceding fiscal year in its new commercial enterprises.” Regional Centers would also have the option to pay a premium processing fee of $5,000 for Form I-924 filings.  Additionally, USCIS would have the authority to increase the Form I-526 filing fee to comply with the requirement of placing $1,000 of the current Form I-526 filing fee into the Employment Creation Visa Integrity, Fraud Prevention and Detection Fund.

9.  Regional Center Integrity Measures. Like prior reform attempts, the EB-5 Reform Act places additional record-keeping, background checks, and due diligence requirements on Regional Centers.  Included in these requirements are new compliance measures for direct and third-party promoters, and for disclosures of conflict of interests paid to such promoters.  The proposed bill also continues to provide additional government oversight on Regional Center activities, such as audits and site visits.
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10.  Limited Judicial Review. Throughout the EB-5 Reform Act, there are numerous times in which USCIS’ determinations are limited, or even not subject to judicial review. This is particularly worrying due to the prevalence of litigation against USCIS for “arbitrary and capricious” decision-making in the EB-5 context.

​While this bill is slightly better than the prior similar proposal, it does nothing to protect investors who have already committed capital to the program expecting to be able to immigrate within a reasonable time. The U.S. government’s change in the visa allocation places those investors from China and now Vietnam that is also backlogged, into a substantial disadvantage. These investors anticipated that approximately 10,000 visas were available at the time they invested, only to discover that the U.S. government has now retroactively cut the visa supply to favor a subset category. This is plainly bad policy and undermines the U.S. government’s credibility and the very basis for the program.
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Korean Demand for EB-5 Surges – Will Korea be the Next Country to Face Retrogression and Have a Waiting Line?

2/21/2018

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By: Bernard P. Wolfsdorf, ABIL Lawyer and Lauren Sio, Associate
Wolfsdorf Immigration Blog


The EB-5 program has seen a surge of applicants in the last 5 years, with the vast majority from China. In Second place is Vietnam that will now reach its annual quota limit next month. But right behind is Korea, one of the early leaders in EB-5. The Korean market is both knowledgeable and supplicated in its understanding of the benefits of this investor program. Dwarfed by the Chinese market of the last 5 years, the Korean EB-5 market has recently experienced a “reawakening” primarily because its economy has grown. Uncertainty created by numerous short extensions has only added to this increased demand.  As a result, the recent surge creates the likelihood of a Korean Final Action Date, or cut-off date.

Changes to the EB-5 program in the next few months are likely, either because of new legislation or the implementation of new regulations first proposed in January 2017.  Either way, it is likely to be more expensive to apply for EB-5 and more difficult to invest in top tier real estate projects as restrictions on Targeted Employment Areas become more likely.

Also, U.S. immigration policy has shifted towards restrictionist policies, making other visa options even more difficult.  EB-5 applications continue to enjoy a relatively high approval rate.  In fiscal year 2017, USCIS approved over 92% of all I-526 petitions and 98% of all I-829 petitions—much higher than many other categories.

Of the 140,000 employment-based visas that are authorized each fiscal year, 7.1%, or 9,940 are allocated to the EB-5 program.  In addition, no more than 7% of all visas may be issued to nationals of a single foreign state.  If demand from one country exceeds its per-country quota, a backlog will be created, delaying issuance of the green card. While no-one likes to be stuck in waiting lines, this can have serious consequences for applicants with older children, who may age-out and not be eligible to immigrate with their parents.

Therefore, it has become critical to plan ahead and understand the rules regarding the Child Status Protection Act (CSPA).

If the EB-5 conditional immigrant visa process is not completed prior to the investor’s children turning 21 years of age, there is a chance these children will “age-out” and not be ineligible for a green card. The CSPA permits certain derivatives to retain the classification of “child,” even after reaching age 21 years, but it does not account for all the time it can take for a visa to become available, if there are backlogs or a waiting line, thereby limiting its effectiveness.

Often, demand for EB-5 visas grows when a country’s economy grows and when political instability increases. Of course, one of the biggest “drivers” is the opportunity to educate one’s children at top U.S. universities The Korean economy has been experiencing significant growth.  As a result, the demand for EB-5 visas in Korea is surging.

In the first quarter of Fiscal Year 2018 (from October 1, 2017 to December 31, 2017), DOS issued 118 immigrant visas to EB-5 investors and their derivative beneficiaries, up from just 30 the year before. This massive 293% growth rate is not an accident.  Equally concerning is that Korea used 58 visas in December 2017 alone, the latest data we have available.  If Korea uses 58 EB-5 visas per month, that volume is sufficient to use up its entire annual quota.  In addition, there are 278 Korean applicants currently waiting for their final interviews—approximately 40% of the annual quota.  These two factors would result in Korean EB-5 category being oversubscribed and subject to a backlog. Since it can take two years from filing to interview, this massive surge indicates that we most likely have a significant issue.
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On average, it takes about two years from filing before the actual number of visas used is counted by the Department of State. Therefore, the numbers we can see presently merely represent the “tip of an iceberg”. The most recent data available shows Koreans filed 156 I-526 petitions in Fiscal Year 2016.  However, based on the typical family size of EB-5 applicants, each I-526 petition results in approximately 2.5 visas used, meaning we can expect these petitions to use 390 visas, or 55% of the per country limit in Fiscal Year 2018.However if the first quarter of fiscal year 2017 is compared to the first quarter of fiscal year 2018, we see a surge of almost 300%. This surge, if consistent means we will hit the annual quotas for Korea either in later FY 2019, or early FY 2020.

The imposition of a waiting line for Koreans would have serious consequences, although it will not be as bad as the Chinese waiting line, which is currently at almost 5 years but, which may get to be twice as long.

When established, the Korean Final Action Date will initially be the same as the Chinese Final Action Date but when October 1, is reached it will “recover” and be better than the Chinese Final Action Date, which is presently lingering in July 2014.  When a country uses up its entire quota of visas, any remaining visas not used by other countries can be allocated to applicants from the backlogged country.  However, these visas are allocated based on the applicants’ priority dates or I-526 filing date.  Because there are so many backlogged Chinese applicants with 2014 and 2015 priority dates, any Korean applicants who files now will have thousands of Chinese applicants ahead of them.  Essentially, Koreans will be able to use their 696 allocated each year, and then Korean applicants will be stuck behind Chinese applicants with earlier priority dates.

If there were any lessons from the massive Chinese EB-5 backlog, it is this – if you want to apply for EB-5, don’t delay and file as soon as possible, not only to avoid a possible increase in the minimum investment amount, but also to avoid being stuck in a waiting line. This is particularly important for applicants with children about to turn 21 years old.  Given the filing volume and visa usage, a 20-year-old child may already not be safe, and as this gets worse, possibly even a 19-year-old could age out.  DOS has been generous in trying to warn investors but even with the Vietnamese, initially it was expected they would reach their quotas until later 2018, then it was April 2018, and now we are expecting to see a Vietnamese Final Action Date in next month in March 2018. Korean applicants who wait to file may find themselves stuck in a waiting line by the time their I-526 is approved two years after filing. That may be an extra year, or it may be an extra two years.

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New U.S. Immigration Public Charge Provisions – The Dawn of a New Era – "Do Not Give Me Your Tired, Your Poor ….”

2/16/2018

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By: Bernard P. Wolfsdorf, ABIL Lawyer and Senior Associate Robert J. Blanco
Wolfsdorf Immigration Blog


Under Section 212(a)(4) of the Immigration and Nationality Act (INA), as amended, an applicant is inadmissible if “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”  USCIS guidance from 2011 defined a public charge as someone likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.”

Under this narrow definition, many forms of public benefits would not render someone a public charge.  USCIS specifically stated that “non-cash benefits and special-purpose cash benefits not intended for income maintenance are not subject to public charge considerations” and proceeded to list fourteen different benefits not subject to a public charge consideration.

However, an immigration officer will now look at many factors and base this determination on the totality of circumstances.

Consistent with recent immigration restrictions and policy changes, it appears that USCIS intends to broaden its interpretation of public charge determinations.

The Department of Homeland Security recently published proposed rulemaking indicating changes that could be implemented shortly.  According to the draft rule, the following benefits will now be considered for purposes of public charge inadmissibility:

  1. Supplemental Security Income (SSI);
  2. Temporary Assistance to Needy Families (TANF);
  3. State or local cash benefit programs for income maintenance (often called State “General Assistance,” but which may exist under other names);
  4. Any other federal public benefits for purposes of maintaining the applicant’s income, such as public cash assistance for income maintenance;
  5. Certain Benefits under the Medicaid Program;
  6. Government-provided subsidies for premium payments under the Patient Protection and Affordable Care Act or other government subsidized medical insurance programs;
  7. Supplemental Nutrition Assistance Program (SNAP) (formerly called “Food Stamps”);
  8. Special Supplemental Nutrition Program for Women, Infants, and Children (WIC);
  9. State Children’s Health Insurance Program (CHIP) (formerly called “SCRIP”);
  10. Transportation vouchers or other non-cash transportation services;
  11. Housing assistance under the McKinney-Vento Homeless Assistance Act, as amended, or the Housing Choice Voucher Program (section 8), U.S. Housing Act of 1937, as amended;
  12. Energy benefits such as the Low-Income Home Energy Assistance Program (LIHEAP);
  13. Institutionalization for both long-term and short-term care at government expense;
  14. Certain educational benefits, including, but not limited to, benefits under the Head Start Act, as amended; and
  15. Any other Federal, State, or local public benefit program, except for those benefits described in § 212.24.
The draft rule only specifies two types of public benefits that will not be considered for purposes of public charge inadmissibility – 1) emergency or disaster relief and 2) educational and child care block grants.

Public charge inadmissibility will consider many factors, including the foreign national’s age, health, family status, assets, and education and skills.  Benefits given to a foreign national’s dependent family members, including U.S. citizen children can also cause a public charge finding.  Heavily weighted factors include whether the foreign national is authorized to work but is unemployed, has previously received public benefits, or has a costly medical condition, among others.

Notably, these changes will only effect public benefits received on or after the effective date of the final rule, so benefits received previously should be analyzed under the current public charge guidance.  These rules are not final and could change before they are implemented.  However, it appears that public charge inadmissibility will be a point of emphasis going forward.  Foreign nationals who have received any kind of public benefit should consult with an experienced immigration attorney to carefully consider whether a public charge ground of inadmissibility is likely.


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LEVELING UP… HOW TO HANDLE THE H-1B LEVEL I WAGE ISSUE.

1/30/2018

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By: Richard Yemm, Partner of Bernard P. Wolfsdorf, ABIL Lawyer
​Wolfsdorf Immigration Blog

On January 25, 2018, the Administrative Appeals Office (AAO) published two non-precedent decisions,  Matter of B-C, Inc and Matter of G-J-S-USA, Inc relating to H-1B petition denials based on the Petitioner’s classification of the proffered position as a Level I (entry-level) wage. The decision provides vital guidance to help resolve the “carnage” resulting from inconsistent interpretation and implementation of the Level 1 wage issue.

At the crux of both decisions was the issue of whether USCIS erred in comparing the Petitioner-indicated duties directly with the Department of Labor’s (DOL) generic definition of a Level I wage, i.e. “wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment.” In these non-precedent decisions, the AAO determined that, according to DOL guidance, the proper comparison should be between the Petitioner-indicated job duties and requirements and those associated with the appropriate Occupational Information Network (O*NET) occupation.

Moreover, the AAO stated that “there is no inherent inconsistency between an entry-level position and a specialty occupation,” asserting that every case must be judged on its own merits. The AAO clarified that “for some occupations, the ‘basic understanding’ that warrants a Level I wage may require years of study, duly recognized upon the attainment of a bachelor’s degree in a specific specialty…. Likewise, at the other end of the spectrum, a Level IV wage would not necessarily reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor’s degree in a specific specialty or its equivalent.”

We have previously discussed strategies to deal with such requests for evidence stemming from this issue and we remain hopeful that these decisions, while non-precedent, will help to clarify H-1B adjudications as we swiftly approach the FY 2019 H-1B filing season.

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Vietnam EB-5 Demand Exceeds Expectations – U.S. State Department Predicts April 2018 Final Action Date – What Does That Mean For the EB-5 Waiting Line?

1/17/2018

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By: Bernard P. Wolfsdorf, ABIL Lawyer; Joseph Barnett, Partner; and Robert Blanco, Senior Associate Attorney
Wolfsdorf Immigration Blog

​We previously blogged about the growing demand for EB-5 visas from Vietnam in October 2017.  Now, recent analysis from the U.S. Department of State (“DOS”) and from IIUSA, confirms this reality.  IIUSA recently indicated:
​The EB-5 visa usage for Vietnamese applicants jumped 190% year-over-year from October to December 2017. Since almost half of the annual EB-5 visa allocations for Vietnam (approximately 700) has already been used in the first quarter of the current fiscal year, the Visa Office predicts that Vietnam will face oversubscription by April [2018], at which time a Final Action Date will be required. After this happens, Vietnamese EB-5 visa applicants will subject to the same FAD [Final Action Date] established for Chinese EB-5 visa applicants for the rest of FY2018.
​Since the mainland Chinese category is backlogged, presently to July 22, 2014, it appears Vietnam will initially be subject to a sudden EB-5 backlog.
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This chart shows that nearly 45% of EB-5 visas available to Vietnamese nationals in Fiscal Year (F)2018 (312 out of 697) had already been issued by the end of the first quarter, that is from October 1,2017-Decmebr 31, 2017.

The DOS has indicated in the February 2018 Visa Bulletin that the Vietnam EB-5 category “will become subject to a Final Action Date no later than April.  The China-mainland born, and Vietnam employment fifth preference dates would be the same.”  The China Final Action Date is currently July 22, 2014, meaning Chinese investors who filed before this date can get final green card interviews, or file to adjust status.  Once Vietnam becomes subject to the same date as China, any of the demand for EB-5 visas from Vietnamese nationals that cannot be allocated for the remainder of the fiscal year (based on DOS’ predictions) will be held in “pending” status.

The annual limit for each country is only 7.0% of the EB-5 allocation of 9,940 or 696.8 visas. Therefore, each country has less than 700 visas available annually (for Vietnam and India this is only about 200-250 families). When one country uses all its available visas (like China for EB-5), applicants from those countries may be allocated unused visas available from the worldwide limit.  Any excess EB-5 visas available to oversubscribed countries will be issued based on an investor’s priority date.  Unfortunately, because there are so many Chinese investors with earlier priority dates, the Vietnamese will need to wait for those Chinese investors to clear first, or until the new annual limit becomes available at the beginning of FY 2019 (October 1, 2018).

However, unless an increase in the minimum investment amount slows demand, or Congress increases the number of EB-5 visas available, this problem will get exponentially worse as more Vietnamese investors file I-526 petitions.  If this level of demand continues, Final Action Dates for Vietnamese EB-5 investors can be expected for the foreseeable future.  The critical difference between the backlogged China quota and the Vietnam Final Action date is that demand from Vietnam isn’t as large, so that, when the new annual visa allocation becomes available at the beginning of FY 2019 (October 1, 2018), the Vietnam Final Action Date will likely be later than the Chinese one.  Some good news is that the DOS has informally advised that based on current indications, all Vietnamese applicants with priority dates through the end of 2017 will likely be processed to conclusion within the next 4 ½-5 years.



October 2018 (FY2019 Q1) Visa Bulletin Guesstimate

Chinese Final Action Date Guesstimate September 19, 2014

Vietnam Final Action Date Guesstimate 2015 or 2016 (most likely 2015)
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There are several significant issues arising from this surge. First, Vietnamese applicants may have to learn how the Child Status Protection Act (“CSPA”) works. CSPA allows the child to deduct the I-526 petition processing time, which is presently about two years, from the child’s actual age. However, this calculation is not done until the time an EB-5 visa is available. Then, the child must “seek to acquire” a visa by paying the National Visa Center fee bill and filing the DS-260 form. This action “locks” the child’s CSPA age. If the child’s age is “locked” then the child can derivatively obtain a green card, even if the child’s biological age is over 21 years old. Recently, our office successfully obtained an EB-5 green card for a 24-year-old child.

Vietnamese investors with teenage children should learn from the Chinese EB-5 wait line.  Unfortunately, derivative children stuck in a waiting line, where the visa number is not current at the time of approval, are unable to lock in their age under CSPA until their Final Action Date is “available”.

In addition to Vietnam, India has also seen a dramatic surge in EB-5 visa usage. EB-5 visa demand rose almost 500% from the first fiscal quarter of 2017 (October 1, 2016 – December 31, 2016) to the first fiscal quarter of 2018 (October 1, 2017 – December 31, 2017), proof that demand from India is skyrocketing.  However, this 500% trajectory is already two years old and estimation of current I-526 filings is speculative.  So, while India is very unlikely to use its annual visa quota in fiscal year 2019 (from October 2018-September 2019) according to unofficial State Department sources, we speculate that may change for fiscal year 2020, when India may also hit its annual quota, like Vietnam has now. Of course, this may not occur if there is a substantial increase in the minimum investment amount that slows demand, or Congress increases the number of EB-5 visas available



October 2020 Visa Bulletin Guesstimate

Chinese Final Action Date Guesstimate March 15, 2015

Vietnam Final Action Date Guesstimate 2016?

India Final Action Date Guesstimate 2016 or 2017?

South Korea or Brazil Guesstimate 2020 or 2021?

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The key takeaway is that Indian nationals and Vietnamese nationals with children need to proceed as soon as possible to file their cases, or possibly face the tragic consequences of “aging-out” and be separated from their family. It appears 17-year old derivatives that file now should be safe and 18-year-old derivatives may be safe.  But until we know how many cases have been filed for each nationality annually, precise calculations are difficult.

One way to guard against this is to file with the minor child as the principal applicant. Our office is now filing EB-5 applications for minor Chinese children as the principal investors using legal instruments such as UTMA, the Uniform Transfer to Minors Act and Chinese law. So far, the USCIS is open-mindedly approving these petitions. We have had approvals for children as young as 15 years old and will also be filing for children as young as 13 years old.

With almost 40,000 petitions filed in the last three fiscal years, representing about $20 billion in foreign capital investment, we can only anticipate increased waiting lines.  Applicants chargeable to the “Big Five”, China, Vietnam, South Korea, Brazil and India are advised to plan years ahead. Unfortunately, there are too many variable factors to precisely determine each country’s waiting line. The variables include attrition through the 4D’s, denial, dropout, death, or divorce.

While we realize that the visa allocation system under the Immigration and Nationality Act is complicated, it is critical for potential and current EB-5 investors to understand the waiting line system to plan their immigration strategy. Regional Centers and EB-5 projects need this information to prepare for return of capital to new commercial enterprises and for the redeployment of funds in compliance with current USCIS policy guidance.

As the U.S. Congress contemplates immigration changes, it should correct the drafting error that occurred when enacting the EB-5 Visa via the Immigration Act of 1990. Clearly expecting to admit 10,000 investors annually, the drafters inadvertently counted both investors and their families against the annual limit. While for the first 27 years demand for this program has been low, this has now changed creating long waiting lines for Chinese applicants, and creating a shorter waiting line for Vietnamese applicants, and maybe even for Indians, South Koreans and Brazilians, in the near future unless we see changes to the program.

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Options for TPS Recipients (English and Spanish)

1/12/2018

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By: Josune Aguirre, Associate of Bernard P. Wolfsdorf, ABIL Lawyer
Wolfsdorf Immigration Blog

In the recent Ninth Circuit Court of Appeals decision of Ramirez v. Brown, 852 F. 3d 954 (9th Cir. 2017), the court joined the Sixth Circuit and held that a Temporary Protected Status (“TPS”) recipient is considered to be in lawful status and thereby satisfies the “inspection and admission” requirements as a nonimmigrant, for the purpose of adjustment of status.  See also Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013).  Thus as established in Ramirez v. Brown, an individual who entered the United States without inspection and later received TPS status has been “inspected and admitted” and may adjust to lawful permanent resident status should that individual be otherwise eligible.

As such, TPS recipients may be eligible to adjust their status to lawful permanent residents pursuant to 
Ramirez and Flores.  

Who may benefit under Ramirez and Flores?

  1. Those who entered the United States without inspection prior to receipt of TPS;
  2. Currently in valid TPS status;
  3. Have a visa immediately available;
  4. Not be inadmissible, meaning none of the statutory or regulatory bars to adjustment apply (aside from entering without inspection); and;
  5. Reside within the jurisdiction of the Sixth or Ninth Circuits.

What does having a visa immediately available mean? 

Family based: as the law stands now, immediate relatives always have visas available as there is no numerical limit to immediate relative visas.  Immigration defines immediate relatives as the children and spouses of United States citizens and the parents of United States citizens who are 21 or older.  See INA § 201(b)(2)(A)(1) and § 245(a)(3).

Employment based: a limited number of TPS recipients who entered without inspection may be eligible to adjust status pursuant to an employment-based visa category.  What matters are the employment preference and the country of chargeability.

Do any of the statutory or regulatory bars to adjustment apply?

The failure to maintain lawful status since entry to the United States and engagement in unauthorized employment may make a TPS recipient inadmissible.  However, there are exemptions.

Family based:  If applying for adjustment as an immediate relative, the failure to maintain lawful status and the engagement in unauthorized employment are not applicable and the TPS recipient will be admissible.

Employment based: Section 245(k) of the INA can render the normal bars to adjustment of status based on the failure to maintain lawful status since entry to the United States or engagement in unauthorized employment inapplicable to employment preference categories 1 through 4, if since TPS recipient’s last lawful admission to the United States he or she has not, for an aggregate period of more than 180 days:

  1. failed to maintain, continuously, a lawful status;
  2. engaged in unauthorized employment; or
  3. otherwise violated the terms and conditions of his or her admission.

Are there any other options?

Following the reasoning of Ramirez and Flores, it should follow that a TPS recipient who initially entered without inspection and now seeks to change from TPS to a nonimmigrant status for which he or she is otherwise eligible should be viable because one of the requirements for changing to a nonimmigrant status is a lawful admission. Therefore, a TPS recipient living within the jurisdiction of the Sixth or Ninth Circuits should also be able to change his or her status to another nonimmigrant status if otherwise eligible.

​Visa opciones para los beneficiarios de TPS

En la reciente decisión del Tribunal de segunda instancia del Noveno Circuito en la causa de Ramirez v. Brown, 852 F. 3D 954 (noveno CIR. 2017), el tribunal se unió al sexto circuito y sostuvo que se considere que un beneficiario de TPS se encuentra en estado legal y por lo tanto satisface los requisitos de la “inspección y admisión” como no inmigrante, con el propósito de ajustar el estatus.  Véase también Flores v. USCIS, 718 F. 3D 548 (sexto CIR. 2013).  Así como en la causa de Ramírez v. Brown ha establecido, que un individuo que entró Estados Unidos sin inspección y más tarde recibió el estatus de TPS ha sido “inspeccionado y admitido” y puede ajustarse al estatus legal de residente permanente si esa persona fuese de alguna manera elegible.
Como tal, los beneficiarios de TPS pueden ser elegibles para ajustar el estatus a residentes permanentes legales de acuerdo con las causas de Ramirez y Flores.
¿Quién puede beneficiarse bajo Ramirez y Flores?
  1. Haber entrado en los Estados Unidos sin inspección previa al recibo del TPS;
  2. Encontrarse actualmente en un estado de TPS válido;
  3. Tener un visado inmediatamente disponible;
  4. No ser inadmisible, lo que significa que no se aplica ninguna de las barras reglamentarias o reguladoras; y,
  5. Vivir dentro de un estado dentro de la jurisdicción de los circuitos sexto or noveno.
¿Qué significa tener una visa inmediatamente disponible?
En cuanto a derecho familiar: de acuerdo la ley vigente ahora, los parientes inmediatos siempre tienen visas disponibles, ya que no hay límite numérico para las visas relativas inmediatas.  La inmigración define parientes inmediatos como los hijos y cónyuges de los ciudadanos estadounidenses y los padres de los ciudadanos estadounidenses que tienen 21 años o más.  Véase INA § 2010(b)(2)(a)(1) y § 245(a)(3).
En cuanto al derecho de empleo: un número limitado de beneficiarios de TPS que ingresaron sin inspección pueden ser elegibles para ajustar el estatus de acuerdo con una categoría de Visa basada en el empleo.  Lo que importa son las preferencias de empleo y el país de nacimiento.
¿Aplican algunas de las barras estatutarias o reglamentarias al ajuste?
El no mantener el estatus legal desde la entrada a los Estados Unidos y participar en empleo no autorizado puede hacer inadmisible a un beneficiario de TPS.  Sin embargo, hay exenciones.
En cuanto al derecho familiar: Si solicita el ajuste como pariente inmediato, el no mantener el estatus legal y la participación en el empleo no autorizado no son pertinentes y el beneficiario del TPS será admisible.
En cuanto al derecho por empleo: el artículo 245(k) de la INA puede hacer que las barras normales se ajusten al estatus basado en no mantener el estatus legal desde la entrada a los Estados Unidos o la participación en empleos no autorizados inaplicables a las categorías de preferencias de empleo del 1 al 4, si desde la última admisión legal del beneficiario del TPS a los Estados Unidos no lo ha sido, por un período agregado de más de 180 días:
  1. no pudo mantener, continuamente, un estatus legal;
  2. ocupados en empleos no autorizados; o
  3. de lo contrario infringió los términos y condiciones de su admisión.
¿Hay otras opciones? 
Siguiendo el razonamiento de las causas de Ramirez y Flores, deberá seguirse que un beneficiario del TPS que inicialmente entró sin inspección y ahora busca cambiar el TPS a un estatus de no inmigrante por el cual es elegible deberá funcionar como uno de los requisitos para cambiar de estatus y ser una admisión legal.  Por lo tanto, un beneficiario del TPS que viva dentro de la jurisdicción de los circuitos sexto o noveno deberá poder cambiar su estatus a otro estatus de no-inmigrante si reúne l
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EB-5 Regional Center Termination Overturned: AAO Gets it Right

1/2/2018

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By: Bernard P. Wolfsdord, ABIL Lawyer; Joseph M. Barnett, Partner; and Robert J. Blanco, Senior Associate Attorney
​Wolfsdorf Immigration Blog

In a huge win for EB-5 regional centers, the USCIS Administrative Appeals Office (“AAO”) overturned a previous regional center termination order by the Immigrant Investor Program Office (“IPO”) in Matter of P-A-S-, LLC, ID# 513109 (AAO Dec. 21, 2017).  This is the first time the AAO has overruled the IPO since creating the new standard for EB-5 regional center terminations articulated in Matter of S-D-R-C-, ID# 13768 (AAO Mar. 15, 2017).

In the non-precedent decision, the AAO issued a thorough and balanced analysis of the negative and positive factors for EB-5 regional center authorization.  This decision provides a particularly just outcome for the EB-5 investors, since all I-526 petitions would have been denied if the regional center’s termination had been sustained.  Wolfsdorf Rosenthal LLP has 
previously written on the types of “positive and negative indicators” that IPO is to balance when determining whether an EB-5 regional center is continuing to promote economic growth in accordance with 8 C.F.R. § 204.6(m)(6).

The EB-5 regional center in this decision, Path America SnoCo LLC, was first designated in August 2011.  In August 2015, the U.S. Securities and Exchange Commission (“SEC”) filed a complaint in federal court alleging that the former principal of the EB-5 regional Center fraudulently raised EB-5 capital and misappropriated investors’ funds for other projects or his personal use.  As part of the SEC litigation, a court-appointed receiver took possession and control of the regional center’s projects in October 2015.  Due to the SEC allegations, IPO terminated its regional center designation in November 2016 for failure to promote economic growth.

On appeal, the regional center provided documentation from federal court and the receiver indicating that the former principal accused of stealing the money is no longer a principal of the regional center and no longer controls its activity or EB-5 investor funds.  The regional center provided evidence of positive steps it took to overcome the diversion of EB-5 investor funds and to rectify the lack of procedural safeguards that allowed this to occur, including a new management company to run the regional center’s operations.  The regional center also presented evidence to show that the sponsored EB-5 project continued to make significant progress on construction before and during the SEC proceedings, and included evidence that the project was operational and creating jobs.  These positive factors outweighed the negative factors related to the diversion of funds, mismanagement, and lack of monitoring safeguards.

​EB-5 regional centers struggling with a dreaded Notice of Intent to Terminate (“NOIT”) should look to this pivotal decision with cautious optimism.  While it may be difficult to acquire traditional financing while under SEC investigation for budgetary shortfalls, and to recover misappropriated funds, the AAO appears to be looking more at the “whole picture” surrounding the regional center’s termination to determine whether it is more likely than not to promote economic growth in the future.

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Marry a Prince, become a Duchess, and Lose your American Citizenship? Could the Royal Wedding Create a Nationality Headache? Musings of an Immigration Lawyer

12/1/2017

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By: Bernard P. Wolfsdord, ABIL Lawyer, and Robert J. Blanco, Senior Associate Attorney
Wolfsdorf Immigration Blog

​The recent announcement that England’s Prince Harry is engaged to American, Meghan Markle has generated worldwide excitement and interest.  As immigration lawyers, it made us reflect on the issues relating to dual nationality.

While Meghan’s marriage will most likely make her eligible for U.K. citizenship, she is also likely to be named the Duchess of Sussex.  Will the U.K. demand that she renounce her U.S. citizenship?  If she doesn’t renounce her U.S. citizenship, will her becoming a duchess be an expatriating act, whereby she could lose her U.S. citizenship?
​
Article I, Section 9, Clause 8 of the U.S. Constitution, commonly referred to as the Emoluments Clause, states:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
It appears that there is nothing that directly prevents an “ordinary” U.S. citizen who does not hold office from receiving a foreign title and using it as she pleases, unless it leads her to pledge allegiance to a foreign power.  Such a pledge of allegiance would, in the past, automatically lead to a loss of U.S. citizenship.
​
In the 11th Congress (1809-11), an amendment to the Constitution was passed but never ratified by the states.  The proposed amendment stated:
​If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them.
Today, the U.S. does allow dual nationality, although it is generally disfavored.  The Supreme Court ruled in Afroyim v. Rusk, 387 U.S. 253 (1967) that Congress may not divest a person of U.S. citizenship absent voluntary renunciation.  Before the Supreme Court made this ruling, many women who married foreign nationals and lived abroad were stripped of their passports simply by taking an oath of allegiance. Currently, the U.S., following Supreme Court rulings, merely fails to recognize the second passport and requires that all U.S. citizens use only their U.S. passports to enter the U.S.  So, even if Meghan becomes a U.K. citizen, she still must use her U.S. passport to visit the U.S., unless she has renounced her U.S. citizenship.

The U.S. Department of State warns that naturalizing in a foreign country, or taking an oath of allegiance to a foreign country are potentially expatriating acts under INA § 349 (8 U.S.C. 1481), as amended.  However, U.S. citizens are subject to loss of nationality only if they perform certain specified acts voluntarily and with the intention to relinquish U.S. nationality.  Will Meghan’s acceptance of the tile of Duchess of Sussex be both voluntary and with the intention of renouncing?  It would appear not.  Fortunately for her, a natural born citizen cannot merely lose her citizenship without the intent to relinquish.

The second interesting issue concerns any children Meghan and Prince Harry may have.  A child born abroad to a U.S. citizen may automatically derive U.S. citizenship through his or her parent.   Specifically, under INA § 301(g), a child born to one U.S. citizen parent and one foreign national parent will acquire U.S. citizenship at birth if the U.S. citizen parent was physically present in the United States for at least 5 years, including at least 2 years after turning 14 years of age.  Given this requirement, any children born in the U.K. would automatically become U.S. citizens at birth, unless of course, Meghan renounces her citizenship first.  Since Prince Harry is fifth in line to the British throne, could a U.S. citizen technically become the King or Queen of England?

This seems highly unlikely as any U.S. citizen would almost certainly be required to renounce their citizenship before becoming a British monarch.
​
The complex nationality issues don’t end there.  For instance, if Meghan renounces her U.S. citizenship and subsequently divorces, how would she regain her U.S. citizenship?  Would she need to be sponsored for a green card through her U.S. citizen parents in the family-based first preference category and be stuck in the 6 to 8 year waiting line to get a green card?  What if her parents are no longer living and she has no other U.S. citizen relatives to sponsor her green card?  Would she lose her U.K. citizenship and become a stateless refugee?  Heavy is the head that wears the crown.
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