Investors File Lawsuit Against DHS To Stop EB-5 Regional Center Decertifications
A group of investment and capital firms filed a lawsuit on May 24, 2022, against the Department of Homeland Security, arguing that when U.S. Citizenship and Immigration Services (USCIS) decertified existing EB-5 regional centers, it violated the Administrative Procedure Act and misinterpreted the EB-5 Reform and Integrity Act of 2022, which was signed into law following a lapse in authorization for the EB-5 Regional Center Program. Plaintiffs say that by categorically decertifying more than 600 existing EB-5 regional centers and requiring them to recertify, USCIS “eviscerated” the program and determined that a wholly new regional center program was created rather than following congressional intent to reauthorize the program with a few changes and allow existing regional centers to continue their work.
Alleging that USCIS’s action was “unlawful for a host of reasons,” plaintiffs said the agency’s action meant that “all existing regional centers, which already have billions of dollars in invested capital, ongoing development projects, and investors awaiting adjudication of their visa petitions, must effectively pause all revenue-generating operations (while still maintaining regulatory obligations to existing investors) indefinitely until USCIS approves their new applications. At current processing rates, it will take well over a decade for more than 600 programs to become redesignated.”
Plaintiffs are represented by H. Ronald Klasko and Daniel B. Lundy, of Klasko Immigration Law Partners LLP, and Paul W. Hughes, Andrew A. Lyons-Berg, and Alex C. Boota, of McDermott Will & Emery LLP.
This is the second lawsuit challenging USCIS’s claim that all regional centers must be redesignated. A preliminary injunction hearing in Behring Regional Center LLC v. Mayorkas, No. 3-22-cv-02487-VC (N.D. Cal.), will be held June 2.
- EB5 Capital v. DHS, May 24, 2022, https://bit.ly/3NKljlz
- “DHS ‘Decimated’ EB-5 Visa Capital Firms, Investors Say,” Law360, May 24, 2022, https://www.law360.com/articles/1496566/dhs-decimated-eb-5-visa-capital-firms-investors-say (registration required)
USCIS To Implement Premium Processing for Certain Previously Filed EB-1 and EB-2 Form I-140 Petitions
U.S. Citizenship and Immigration Services (USCIS) said it is implementing premium processing for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. This expansion of premium processing applies only to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW), USCIS said. Petitioners who wish to request a premium processing upgrade must file Form I-907, Request for Premium Processing Service.
USCIS said the expansion will occur in phases:
- Beginning June 1, 2022, USCIS will accept Form I-907 requests for E13 multinational executive and manager petitions received on or before January 1, 2021.
- Beginning July 1, 2022, USCIS will accept Form I-907 requests for E21 NIW petitions received on or before June 1, 2021, and E13 multinational executive and manager petitions received on or before March 1, 2021.
- USCIS will continue working toward premium processing availability of additional Form I-140 petitions, Form I-539, and Form I-765 in fiscal year 2022.
USCIS said it will reject premium processing requests for these Form I-140 classifications that are filed before their start date of June 1, 2022, or July 1, 2022. USCIS will not accept new (initial) Forms I-140 with a premium processing request.
For the month of June, USCIS will accept both the 09/30/20 and the 05/31/22 editions of Form
I-907. Starting July 1, the agency will reject the older 09/30/20 edition of Form I-907.
- USCIS alert, May 24, 2022, https://www.uscis.gov/newsroom/alerts/uscis-to-implement-premium-processing-for-certain-previously-filed-eb-1-and-eb-2-form-i-140
DHS Announces TPS Designation, Registration Process for Afghans
The Department of Homeland Security has provided information on how to register for temporary protected status (TPS) under Afghanistan’s 18-month designation. The registration period began on May 20, 2022, and runs through November 20, 2023. USCIS estimates 72,500 individuals currently in the United States may be eligible for TPS under the designation of Afghanistan.
To be eligible for TPS under this designation, individuals must demonstrate their continuous residence in the United States since March 15, 2022, and continuous physical presence in the United States since May 20, 2022. Afghan nationals currently not residing in the United States or who arrived in the United States after March 15, 2022, are not eligible for TPS under this designation.
DHS said that through Operation Allies Welcome, most Afghan nationals who arrived as part of the evacuation effort were paroled into the United States on a case-by-case basis for humanitarian reasons for a period of two years and received work authorization. These individuals may also be eligible for TPS.
- Designation of Afghanistan for Temporary Protected Status, DHS (USCIS), 87 Fed. Reg. 30976 (May 20, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-20/pdf/2022-10923.pdf
- USCIS news release, May 19, 2022, https://www.uscis.gov/newsroom/news-releases/dhs-announces-registration-process-for-temporary-protected-status-for-afghanistan
- “Secretary Mayorkas Designates Afghanistan for Temporary Protected Status,” DHS, Mar. 16, 2022, https://www.dhs.gov/news/2022/03/16/secretary-mayorkas-designates-afghanistan-temporary-protected-status
June Visa Bulletin Includes Updates on ‘Other Workers,’ China, Diversity Visa Availability
The Department of State’s Visa Bulletin for June 2022 includes the following information:
- Establishment of Employment Third Preference “Other Workers” (EW) Final Action DateHigh number use in the Employment Third Preference “Other Workers” (EW) category has necessitated the establishment of a worldwide final action date in June to hold number use within the maximum allowed under the FY-2022 annual limit. All countries are subject to a final action date of 08MAY19 except for China-mainland-born, which is subject to a 01JUN12 final action date and India, which is subject to a 15JAN12 final action date.
- Establishment of C5 and T5 Final Action Date and Application Filing Date for China-Mainland-BornIt has become necessary to establish a final action date and application filing date for C5 and T5 China-mainland-born because sufficient demand has materialized as readers were cautioned was a possibility in Item D of the May 2022 Visa Bulletin. China-mainland-born C5 and T5 applicants are subject to a 22NOV15 final action date and an application filing date of 15DEC15.
- Availability of Diversity Visas (DV)Most regions have been set to “Current” for June 2022 in an effort to maximize the number used during the DV-2022 program year. However, rank cut-offs could be re-established for any region or country in future months to keep the number used within the applicable annual limits.
- Dept. of State Visa Bulletin for June 2022, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-june-2022.html
Federal Judge Blocks Effort to End Title 42 Policy at U.S.-Mexico Border
Shortly before the Centers for Disease Control (CDC) was set to terminate its Trump-era COVID-19 pandemic restriction at the U.S.-Mexico border, known as “Title 42,” a federal judge in Louisiana blocked its termination temporarily with a nationwide preliminary injunction. The judge found that several dozen Republican-led states were likely to prevail on their claims against terminating the policy based on the Administrative Procedure Act, and noted that termination would negatively affect plaintiff states and the Department of Homeland Security. He concluded that the policy should continue while the states’ lawsuit proceeds.
The Department of Justice plans to appeal the decision while enforcing the Title 42 policy pending appeal.
- State of Louisiana v. CDC, https://s3.documentcloud.org/documents/22026721/title-42-preliminary-injunction.pdf
- “Federal Judge Blocks Biden Administration From Lifting Title 42 for Now,” CNN, May 20, 2022, https://www.cnn.com/2022/05/20/politics/title-42-biden-us-mexico-border/index.html
New Forms, New Program Requirements Announced for Entities Seeking Regional Center Designation Under EB-5 Immigrant Investor Program
U.S. Citizenship and Immigration Services (USCIS) published two new forms for regional center designation under the EB-5 Immigrant Investor Program: Form I-956, Application for Regional Center Designation, and Form I-956H, Bona Fides of Persons Involved with Regional Center Program. USCIS said that all entities seeking regional center designation must submit these forms in compliance with new program requirements, which began May 14, 2022, and are effective through September 30, 2027.
Below are highlights of related news:
- USCIS said it will continue to adjudicate Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, and will adjudicate Form I-829 petitions associated with Form I-526, Immigrant Petition by Alien Entrepreneur, filed before March 15, 2022, under the applicable eligibility requirements in place before enactment of the EB-5 Reform and Integrity Act of 2022.
- USCIS said it also has resumed processing of regional center-based Form I-526, Immigrant Petition by Alien Entrepreneur, filed on or before the sunset of the previous regional center program on June 30, 2021. The agency will adjudicate all Form I-526 petitions filed before March 15, 2022, according to the applicable eligibility requirements at the time such petitions were filed (that is, the eligibility requirements in place before the enactment of the new law). USCIS will continue to process Form I-526 petitions under the “visa availability approach,” “prioritizing those Form I-526 petitions for investors with an available visa or a visa that will be available soon.” USCIS will continue to reject all Form I-526 petitions received on or after July 1, 2021, when the petition indicates that the petitioner’s investment is associated with a regional center.
- The filing fee for the I-956 is $17,795. (No, that’s not a typo.) There is no filing fee for the I-956H, but a biometric services fee of $85 per person is required. Filing and biometric service fees are final and non-refundable, regardless of any action USCIS takes on the application, or if the applicant withdraws the request. USCIS will reject the form if the applicant submits an incorrect fee.
- The agency released a related Q&A and held a “Listening Session” on April 29, 2022, that received negative reviews.
- Four senior members of Congress sent a letter on May 9, 2022, to the Department of Homeland Security (DHS). Among other things, the letter calls for DHS to confirm compliance with the new integrity measures required under the EB-5 Reform and Integrity Act of 2022 “without the need for a full-scale redesignation of existing regional centers.” The letter recommends a “transition” to avoid administrative burdens for the agency and “unnecessary complications to designated regional centers who have remained in good standing with USCIS and complied with the rules even during the program’s lapse.” The letter says, “Current guidance on the USCIS website requiring new regional center designations for every existing regional center is confusing and causing great concern in the EB-5 stakeholder community. We believe that there should be stakeholder engagement and then guidance on the implementation of the program.” The letter notes that an interpretation requiring new regional center designations would “result in all existing investors without approved conditional permanent residency facing denial.” The letter was signed by Rep. Jerrold Nadler (D-NY) and Sens. Chuck Schumer (D-NY), John Cornyn (R-TX), and Lindsey Graham (R-SC).
- USCIS alert, https://www.uscis.gov/newsroom/alerts/two-new-forms-published-for-regional-center-designation
- USCIS alerts, EB-5 Immigrant Investor Program, https://www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5-immigrant-investor-program
- USCIS Q&A (EB-5 Questions and Answers, updated April 2022), https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-questions-and-answers-updated-april-2022
- EB-5 Reform and Integrity Act of 2022 (H.R. 2471, Consolidated Appropriations Act, 2022), https://www.congress.gov/bill/117th-congress/house-bill/2471/
- USCIS EB-5 Reform and Integrity Act of 2022 Listening Session, https://www.uscis.gov/outreach/notes-from-previous-engagements/uscis-eb-5-reform-and-integrity-act-of-2022-listening-session
- Listening Session remarks by Ur Jaddou, USCIS Director, Apr. 29, 2022, https://www.uscis.gov/sites/default/files/document/outreach-engagements/EB-5_Reform_and_Integrity_Act_of_2022_Listening_Session.pdf
- Form I-956, Application for Regional Center Designation, https://www.uscis.gov/i-956
- Form I-956H, Bona Fides of Persons Involved with Regional Center Program, https://www.uscis.gov/i-956
- “USCIS Drops Bombshell EB-5 Q&A Hours Before One-Sided, Overwhelmingly Negative “Listening Session,” Investment Migration Insider, May 3, 2022, https://www.imidaily.com/program-updates/uscis-drops-bombshell-eb-5-qa-hours-before-one-sided-overwhelmingly-negative-listening-session/
Foreign Labor Certification Updates
The Department of Labor’s Office of Foreign Labor Certification (OFLC) announced updates to public disclosure data and selected program statistics; the H-2B Foreign Labor Recruiter List; and tips and assistance for stakeholders filing applications for prevailing wage determinations. Below are highlights.
Public disclosure data and selected program statistics for Q2 of fiscal year (FY) 2022. The OFLC released a comprehensive set of public disclosure data through the second quarter of FY 2022. The OFLC drew the data from employer applications requesting prevailing wage determinations and labor certifications for the PERM, Labor Condition Application (LCA) (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs. The files include all final determinations OFLC issued for these programs during the October 1, 2021, through March 31, 2022, reporting period of FY 2022. OFLC also released selected program statistics for Q2 of FY 2022 for the same programs. https://www.dol.gov/agencies/eta/foreign-labor/performance
H-2B Foreign Labor Recruiter List for Q2 of FY 2022. The OFLC published an updated list of foreign labor recruiters for the H-2B program. The list contains the name and location of persons or entities identified in Appendix C of the Form ETA-9142B that were hired by, or working for, the recruiter that employers have indicated they engaged, or planned to engage, in the recruitment of prospective H-2B workers to perform the work described on their H-2B application. The H-2B Foreign Labor Recruiter List includes only those names and locations associated with H-2B applications that were processed or issued a final decision from October 1, 2021 through March 31, 2022. https://www.dol.gov/agencies/eta/foreign-labor/recruiter-list (Foreign Labor Recruiter List); https://www.dol.gov/agencies/eta/foreign-labor/faqs/print (FAQs)
Tips and assistance for stakeholders filing applications for prevailing wage determinations. The OFLC hosted a webinar on April 19, 2022, providing tips and assistance for stakeholders on the process of filing Form ETA-9141, Application for Prevailing Wage Determination, for the PERM and LCA programs. The recording and presentation materials are linked via the Prevailing Wage Information and Resources page (scroll down to Webinars). https://www.dol.gov/agencies/eta/foreign-labor/wages
- OFLC announcements, https://www.dol.gov/agencies/eta/foreign-labor
Case Processing Info Changes Announced
U.S. Citizenship and Immigration Services (USCIS) announced changes to case processing information available online. Users can now immediately find processing time information for their particular type of case rather than seeing an aggregate of all related case types. Additional changes include:
- Adding drop-down options for form categories to help narrow results to the processing times that are relevant to a case;
- Adding a case inquiry tool where the user can insert their receipt date and get an immediate answer on whether they should contact USCIS with questions about their particular case; if so, benefit requestors will be provided a link to submit a case inquiry online;
- Displaying a single 80th-percentile processing time (rather than a range) to simplify the information provided and improve the ability of users to estimate how long it is likely to take USCIS to process a benefit request; and
- Revising, streamlining, and adding more content to the processing times webpages, including a new FAQ page.
- USCIS news release, May 5, 2022, https://www.uscis.gov/newsroom/news-releases/uscis-simplifying-improving-communication-of-case-processing-data
CBP Urges Travelers to Apply for I-94 Online Before Arriving at U.S. Land Borders
To reduce wait times, U.S. Customs and Border Protection (CBP) is urging travelers who require a Form I-94, Arrival/Departure Record, to apply and prepay online before arriving at a U.S. land border.
An I-94 is needed by all visitors except U.S. citizens, returning residents, those with immigrant visas, and most Canadian citizens visiting or in transit. Travelers are issued an I-94 during the admission process at the port of entry.
- CBP release, Apr. 29, 2022, https://bit.ly/3w9aMZX
- Travel information, CBP, https://www.cbp.gov/travel
- Advisories and wait times, CBP, https://www.cbp.gov/travel/advisories-wait-times
HIAS Pennsylvania Awards
HIAS Pennsylvania honored Ron Klasko at the 2022 Golden Door Awards: We Are America on May 24th for his continuous involvement and support in the immigration community. Since 2019, he has been supporting college-bound immigrants with the Ron Klasko Family Scholarships, and this year the scholarship awardees presented him with his Golden Door Award. Congratulations, Ron!
IN THE NEWS
Klasko Immigration Law Partners
The firm was mentioned in this Cision PR Newswire article for representing the EB-5 regional centers and IIUSA as they file suit against USCIS.
H. Ronald Klasko │ Daniel B. Lundy
Ron Klasko and Dan Lundy were mentioned in this Law360 article as the plaintiffs’ attorneys for regional centers filing suit against DHS and USCIS for the interpretation of the EB-5 Reform and Integrity Act of 2022.
H. Ronald Klasko
Ron Klasko hosted a webinar with EB5 Affiliate Network to discuss the impacts of recent USCIS policy announcements and strategies for I-956 approval as addressed in this article published by EIN Presswire.
H. Ronald Klasko
Ron Klasko was mentioned in this update regarding another lawsuit filed against USCIS in these articles published by Benzinga and StreetInsider.
RECENT SPEAKING ENGAGEMENTS
Andrew J. Zeltner │ Karuna C. Simbeck │ Arielle J. Ratush │ Grace Waweru
On May 5th, Drew, Karuna, Arielle, and Grace will answer questions submitted by YOU. Please submit your most burning immigration questions while registering for this event. Watch the recording here!
H. Ronald Klasko
On May 16th, Ron Klasko discussed new policy updates on EB-5 regional centers with EB5 Affiliate Network.
Elise A. Fialkowski
Elise Fialkowski was on the Worksite Enforcement Online Course committee and worked with other members to develop this course series.
UPCOMING SPEAKING ENGAGEMENTS
H. Ronald Klasko
On June 15th, Ron Klasko will be a speaker at the 2022 AILA Annual Conference on a panel entitled EB-5 and International Entrepreneur Parole: Current State of the Programs.
William A. Stock
On June 15th, Bill Stock will be a speaker at the 2022 AILA Annual Conference on a panel entitled Introducing Essential Terms and Concepts.
Elise A. Fialkowski
On June 18th, Elise Fialkowski will be a speaker at the 2022 AILA Annual Conference on a panel entitled The Overture and the Final Act: Hiring and Firing.
Michele G. Madera
On June 18th, Michele Madera will be a discussion leader speaker at the 2022 AILA Annual Conference on a panel entitled Remote Management Is the Future: Ethically and Effectively Managing Freelance and Remote Employees.
HIAS Pennsylvania Awards
HIAS Pennsylvania honored Ron Klasko at the 2022 Golden Door Awards: We Are America on May 24th for his continuous involvement and support in the immigration community. He has been supporting college-bound immigrants with the Ron Klasko Family Scholarships, and this year the scholarship awardees presented him with his Golden Door Award. Congratulations, Ron!
ICYMI: RECENT BLOG POSTS AND ALERTS
The Need for Permanent Relief for Spouses of H-1B Holders Suffering from the Employment Authorization Backlog
In this article, Nigel James covers the need for permanent relief for spouses of H-1B holders suffering from the employment authorization backlog.
Client Alert: USCIS Increases Automatic Extension Period for Certain Categories
In this client alert, Jessica A. DeNisi addressed USCIS increasing automatic extension period for EAD renewal applicants in certain categories.
Happy Pride Month! See more on our Instagram @klaskoimmigrationlaw.
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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.