USCIS Amends EB-5 Regulations, Raising Minimum Investment Amounts and Modifying TEA Designations
U.S. Citizenship and Immigration Services (USCIS) has published a final rule, effective November 21, 2019, amending the regulations governing the employment-based fifth preference (EB-5) immigrant investor classification and associated regional centers to reflect statutory changes and “modernize” the EB-5 program. The final rule provides priority date retention for certain EB-5 investors, increases the required minimum investment amounts, changes the targeted employment area (TEA) designation process, and clarifies USCIS procedures for the removal of conditions on permanent residence.
Among other things, the final rule:
- Clarifies that the priority date of a petition for classification as an investor is the date the petition is properly filed
- Clarifies that a petitioner with multiple approved immigrant petitions for classification as an investor is entitled to the earliest qualifying priority date
- Retains the 50 percent minimum investment differential between a TEA and a non-TEA instead of changing the differential to 25 percent as proposed, thereby increasing the minimum investment amount in a TEA from $500,000 to $900,000 rather than $1.35 million, as DHS initially proposed (the minimum non-TEA investment will be $1.8 million)
- Bases future inflation adjustments on the initial investment amount set by Congress in 1990 rather than on the most recent inflation adjustment
- Modifies the original proposal that any city or town with a population of 20,000 or more may qualify as a TEA, to provide that only cities and towns with a population of 20,000 or more outside of metropolitan statistical areas may qualify as a TEA, eliminates a state’s ability to designate certain geographic and political subdivisions as high unemployment areas, and gives the Department of Homeland Security responsibility for directly making TEA designations “based on revised requirements in the regulation limiting the composition of census tract-based TEAs”
Practitioners are expecting a rush on EB-5 investments in the months before the effective date of November 21, 2019, which could increase the already long waits for EB-5 visas for those from high-volume countries by years, assuming Congress does not allocate additional visa numbers or eliminate per-country caps.
Details: Klasko’s announcement is here. Watch our webinar recording here, or listen to the podcast here. USCIS announcement is here. Final rule is here.
Expedited Removal Expands to Interior of United States
With immediate effect, the Department of Homeland Security (DHS) issued a notice on July 23, 2019, to place certain persons determined to be inadmissible in expedited removal, with limited exceptions. Affected individuals include those who have not been admitted or paroled into the United States and who have not “affirmatively shown, to the satisfaction of an immigration officer, that they have been physically present in the United States continuously for the two-year period immediately preceding the date of the determination of inadmissibility.”
The notice makes the following points, among others:
- Currently, immigration officers can apply expedited removal “to aliens encountered anywhere in the United States for up to two years after the alien arrived in the United States, provided that the alien arrived by sea and the other conditions for expedited removal are satisfied.”
- For those who entered the United States by crossing a land border, DHS permits the use of expedited removal “if the aliens were encountered by an immigration officer within 100 air miles of the U.S. international land border and were continuously present in the United States for less than 14 days immediately prior to that encounter.”
- The DHS Secretary has the “sole and unreviewable discretion” under the Immigration and Nationality Act “to modify at any time the discretionary limits on the scope of the expedited removal designation.”
- The Acting DHS Secretary is exercising his statutory authority to designate several categories of aliens not previously designated for expedited removal:
- Aliens who did not arrive by sea who are encountered anywhere in the United States more than 100 air miles from a U.S. international land border, and who have been continuously present in the United States for less than two years; and
- Aliens who did not arrive by sea who are encountered within 100 air miles from a U.S. international and border and who have been continuously presenting the United States for at least 14 days but for less than two years.
- Aliens otherwise subject to expedited removal who indicate either an intention to apply for asylum or a fear of persecution or torture will be given further review by an asylum officer, including an opportunity to establish “credible fear” and thus potential eligibility for asylum.
- An alien otherwise subject to expedited removal is given a “reasonable opportunity to establish to the satisfaction of the examining immigration officer that he or she was admitted or paroled into the United States.” Aliens determined by immigration officers to be subject to expedited removal nonetheless “will receive prompt review of that determination if they claim under oath, after being warned of the penalties for perjury, that they have been admitted for permanent residence, admitted as a refugee, granted asylum, or are a U.S. citizen.”
This is a major expansion of expedited removal. An estimate of at least 20,000 additional immigrants per year may be subject to expedited removal under the new policy. The American Civil Liberties Union (ACLU) quickly put out a statement calling the policy “unlawful,” noting that under the plan, “immigrants who have lived here for years would be deported with less due process than people get in traffic court,” and vowing to “sue to end this policy quickly.” In the meantime, immigration lawyers are counseling clients of the need to be able to quickly document that they have been in the United States for at least two years, including carrying such documentation with them at all times.
Written comments may be submitted by September 23, 2019, via the method set forth in the DHS notice.
Details: DHS Federal Register notice is here. ACLU statement is here.
Judges Rule on Third-Country Asylum Ban
Following a joint interim rule issued by the Departments of Justice and Homeland Security on July 16, 2019, that restricted asylum, with some exceptions, for migrants traveling through third countries to reach the United States (most notably for many Central Americans passing through Mexico), two judges issued rulings in separate cases:
- Judge Timothy Kelly, of the U.S. District Court in Washington, DC, declined to issue a temporary order to block the asylum ban.
- Judge Jon Tigar, of the U.S. District Court in San Francisco, California, issued a preliminary injunction to block the ban until the arguments can be considered and a final decision can be issued.
Details: News reports: CBS News, Immigration Impact. DHS announcement of joint interim rule is here; interim final rule is here. ACLU complaint is here.
USCIS Ombudsman Says EAD Help Requests Constituted Single Largest Source of Work in 2018, Recommends Changes to H-1B Program Implementation Under BAHA
The U.S. Citizenship and Immigration Services (USCIS) Ombudsman recently released its 2019 Annual Report. The report notes that requests for help related to employment authorization documents (EADs) constituted the single largest source of work for the Ombudsman’s Case Team in calendar year 2018—over a third of its total case load. During a four-month period between December 2017 and March 2018, the number of incoming EAD cases spiked 400 percent, most related to processing delays. The Ombudsman also noted that it explored in depth the H-1B visa program. The lengthy, detailed H-1B section includes 290 footnotes and several recommendations for changing implementation of the H-1B program by USCIS and the Department of Labor to align with President Trump’s “Buy American and Hire American” (BAHA) executive order.
Details: USCIS Ombudsman’s Annual Report for 2019 is here. BAHA order is here.
House Holds Hearing on USCIS Policy Changes, Processing Delays
On July 16, 2019, the House of Representatives held a hearing on policy changes and processing delays at U.S. Citizenship and Immigration Services (USCIS). Witnesses included representatives from USCIS, the American Immigration Lawyers Association (AILA), Catholic Legal Immigration Network (CLINIC), the Immigrant Legal Resource Center, and the Center for Immigration Studies. Statements were also submitted by various organizations.
Regarding policy changes, Jill Marie Bussey, CLINIC’s Director of Advocacy, cited the expansion of in-person interview requirements and related “extreme vetting,” new rules on requests for evidence and notices of intent to deny, elimination of the 90-day processing requirement for employment authorization documents, information services “modernization” that includes narrowing of the options and points of access for stakeholders to request information and services regarding their pending cases, the ending of self-scheduling of in-person InfoPass appointments at field offices, and diverting resources to enforcement-focused activities. All of these policy changes, she said, are contrary to USCIS’s mission, contribute to backlogs and inefficiencies, and create unnecessary barriers for applicants and their legal representatives, are not justified by data, and thus have contributed to significant consequences and cascading effects for employers, legal service providers, individuals and families, and USCIS and other agencies.
With respect to processing delays, Marketa Lindt, AILA President, testified that USCIS’s average case processing time surged by 46 percent from FY 2016 to FY 2018 and by 91 percent from FY 2014 to FY 2018. “[I]n FY 2018 the agency processed 94 percent of its benefit form types more slowly than in FY 2014. For many of these form types, processing times more than doubled in recent years, and some tripled. This past fiscal year, the agency’s overall backlog of delayed cases exceeded 5.69 million, a 69 percent increase over FY 2014.”
Details: Hearing testimony and statements here.
State Dept. Announces Temporary Establishment and Retrogression of August Employment-Based Final Action Dates
The Department of State’s (DOS) Visa Bulletin for August 2019 notes that there has been a steadily increasing level of employment-based applicant demand since late May for adjustment of status cases filed with U.S. Citizenship and Immigration Services, and there is no indication that this trending increase will end. Therefore, the agency has established or retrogressed many of the August Final Action Dates in an effort to hold worldwide number use within the maximum allowed under the FY 2019 annual limits.
The implementation of these dates is expected to be only a temporary issue, DOS said. For October, the first month of fiscal year 2020, “every effort will be made to return these final action dates to those which applied for July.”
Details: DOS Visa Bulletin for August 2019 (scroll down to “D”) is here.
DHS, DOJ Issue Joint Third-Country Asylum Rule
On July 16, 2019, effective immediately, the Departments of Homeland Security and Justice issued a joint interim final rule barring eligibility for asylum, with some exceptions, for those entering or attempting to enter the United States via the southern border who did not apply for protection in at least one third country outside the person’s country of citizenship, nationality, or last lawful habitual residence through which they transited en route to the United States. The rule would also require asylum officers and immigration judges to apply this new bar on asylum eligibility when administering the credible-fear screening process applicable to stowaways and aliens subject to expedited removal under section 235(b)(1) of the Immigration and Nationality Act. The new bar established by this regulation does not modify withholding or deferral of removal proceedings.
The American Civil Liberties Union (ACLU) Foundation’s Immigrants’ Rights Project and others immediately filed suit in the U.S. District Court in San Francisco, California, to stop the asylum ban. They argued that under U.S. law, the government cannot disqualify asylum applicants solely on the basis of transiting through a third country. The complaint states that the rule “is a part of an unlawful effort to significantly undermine, if not virtually repeal, the U.S. asylum system at the southern border.”
Comments on the interim final rule are due by August 15, 2019, to be submitted by one of the methods listed in the rule.
Details: DHS announcement is here. Interim final rule is here. ACLU complaint is here.
USCIS Announces Changes to Naturalization Test
On July 19, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that it is revising the current naturalization test in English and civics.
In December 2018, USCIS formed a naturalization test revision working group with members from across the agency. The working group is reviewing and updating the naturalization test questions. The group will also assess potential changes to the speaking portion of the test. USCIS said it “is soliciting the input of experts in the field of adult education to ensure that this process is fair and transparent.” Details of the changes being considered were not released. USCIS plans to pilot the test revision this fall, and to set an implementation date in December 2020 or early 2021. USCIS is also formalizing a decennial revision process to allow for updates every 10 years. Critics have expressed concerns that the announcement is a continuation of efforts by USCIS to make naturalization more difficult, including dramatically slowing down the processing of naturalization applications.
Details: USCIS announcement is here. USCIS memorandum on the revisions is here.
State Dept. Announces Diversity Lottery 2020 Results
The Kentucky Consular Center has registered and notified the winners of the DV-2020 diversity lottery. Approximately 83,884 applicants have been registered and notified and may now apply for an immigrant visa, the Department of State (DOS) announced. Since it is likely that some of the persons registered will not pursue their cases to visa issuance, the agency said this larger figure should ensure that all DV-2020 numbers will be used during fiscal year 2020 (October 1, 2019, to September 30, 2020).
Applicants registered for the DV-2020 program were selected at random from 14,722,798 qualified entries (23,182,554 with derivatives) received during the 34-day application period in late 2018. The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country.
During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years. DOS said that those selected will need to act on their immigrant visa applications quickly. Applicants should follow the instructions in their notification letters and must fully complete the information requested.
Details: DOS Visa Bulletin for August 2019 (scroll down to “E”), which includes a country-by-country list of the numbers is here.
New EB-5 regulations were published in the Federal Register on Wednesday, July 24th. The Klasko EB-5 Team published blogs on the topic, and held a widely-attended webinar, The Impact of New EB-5 Regulations on Regional Centers, Developers, and Investors on Monday, July 29th. To watch the webinar recording, click here, or listen to the bonus podcast episode, click here.
IN THE NEWS
Ronald Klasko Interviewed by WGBH on the Effect of Nationwide Processing Delays
In this article and radio story, Ron is quoted on the serious problem of visa processing delays, and the impact on employers like Massachusetts General Hospital.
Ronald Klasko Recognized by the Philadelphia Business Journal as One of their ‘People on the Move’
Ron was recognized in the Philadelphia Business Journal’s “People on the Move” section highlighting his Founders Award acknowledgement.
Three Klasko Partners were Recognized by digitaljournal.com for Serving as Panelists at the 2019 AILA Annual Conference
Elise, Ron, and Bill led three different panels, which was acknowledged by digitaljournal.com.
William A. Stock Quoted in The American Bazaar Online Regarding the OPT Program
Bill was quoted in americanbazaaronline.com about updates on the new OPT lawsuit regarding the allowance of international students to work in the United States after their graduation while they are on their F1 student visas for up to a year.
William A. Stock Spoke with Forbes.com about Updates in the OPT Court Case
Bill interviewed with forbes.com, providing in-depth insight into developments in the OPT court case.
William A. Stock Spoke with Law360.com about the Best Ways to Communicate a USCIS Denial to Corporate Immigration Clients
Bill spoke with Law360 about the best way to rectify mistakes that result in denials and establishing client-employer-attorney trust.
RECENT SPEAKING ENGAGEMENTS
H. Ronald Klasko
Ron spoke on a webinar entitled Mandamus: When All Else Fails with the AILA Latin America & Caribbean Chapter on July 9th.
Maria M. Mihaylova
Maria presented at the 2019 Global Village event at Lehigh University discussing visa options on July 10th.
H. Ronald Klasko
Ron presented on a panel entitled E-5 on the Defense: Navigating Litigations, Suits, and Claims for the 2019 EB5 Investors Magazine EB-5 and Uglobal Expo in Los Angeles on July 19, 2019.
UPCOMING SPEAKING ENGAGEMENTS
H. Ronald Klasko
Ron will be leading a panel entitled The Journey from an E-2 Visa to an EM-5 Green Card: A Fast Track via webinar presented by the AILA Education Department On August 6th.
William A. Stock
Congratulations to Bill on his recognition as one of the Top 20 Most Powerful Immigration Attorneys by Human Resource Executive and Lawdragon.
Klasko Immigration Law Partners
For the fourth year in a row, the firm has landed on Philadelphia Business Journal’s Best Places to Work list . The firm is dedicated to a fulfilling, balanced, and positive work environment, and is proud to have this repeated recognition.
ICYMI: RECENT BLOG POSTS AND ALERTS
EB-5 Regulations to be Published Today!
Daniel Lundy issued this timely client alert covering the new EB-5 regulations that he previously reported as imminent. Four major changes, which become effective in November, will reshape the entire industry.
EB-5 Regulations Imminent
Daniel Lundy shared news that EB-5 regulations were on the horizon, and what those changes might be.
Ron Klasko Becomes First Person to Receive AILA’s Founders Award Twice
This blog covers more background on why AILA chose Ron Klasko for this historic honor.
Counting on Change: Looming Updates to EB-5 Visa Program and More
Jessica DeNisi explains the current state of the EB-5 Visa Program, possible outcomes, and how it can benefit or affect foreign nationals.
How Becoming Grenadian Can Help your American Immigration Journey
Ron Klasko and Patrick Findaro provide an anecdotal tale to explain how becoming a Grenadian citizen can help your American immigration process.
On Friday, July 26th, the entire KILP staff embarked on its annual summer event – on a boat! Every year in late July, the firm closes down so the entire staff can venture out into the summer heat, donning matching, themed t-shirts, to socialize, and partake in amiable competition. With a DJ, great food, and great views, a fun time was had by all!
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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.