USCIS Announces Processing Change to I-526 Petitions

Today, the United States Citizenship and Immigration Service (“USCIS”) announced that it will be changing the way in which it adjudicates I-526 Immigrant Petitions for Alien Entrepreneurs (i.e., immigrant visa petitions based on an investment under the EB-5 program). While historically, the service has used a first-in, first-out basis for these petitions, as of March 31, 2020, it will switch to a "visa availability" approach.

This change will apply to all cases pending as of March 31, 2020, and will result in USCIS prioritizing adjudication of petitions connected to individuals from countries where visas are currently available or will soon be available. USCIS currently employs this approach in other contexts, including the adjudication of certain I-130 Immigrant Petitions for Alien Relative. The stated reasons for the change were both ones of fairness and of better enabling applicants from countries where visas are immediately available to use their annual per-country allocation of EB-5 visas. The announcement made clear that this was a change in adjudication procedures only and did not create legally binding rights or change substantive requirements.

D&S will continue to monitor this developing situation and provide updates as they become available.

Department of State September 2018 Visa Bulletin Summary

The Department of State has released the September 2018 Visa Bulletin.  D&S provides a Monthly Summary of the family and employment-based priority dates.  

EB-1, EB-2, and EB-3 Worldwide will no longer be current in September, retrogressing to June 1, 2016, January 1, 2013, and November 1, 2016 respectively. They are expected to become progress or become current again at the start of the new fiscal year in October.  EB-1 China remains unchanged, EB-2 China retrogressed more than 2 years to January 1, 2013, and EB-3 China progressed 4 months to November 1, 2014. EB-1 India remained unchanged, EB-2 India retrogressed more than 2 years to January 1, 2007, and EB-3 India retrogressed 6 years to January 1, 2003.  EB-5 regional center and non-regional center filings remain current except for China and Vietnam, both of which progressed one week to April 8, 2014.

Application Filing Dates remain unchanged across all areas of chargeability for September 2018, with exception of F2B Worldwide, China and India, which progressed over 2 years from January 8, 2012 to March 22, 2014.

As of today, August 9, 2018, USCIS has not advised whether, in September 2018, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

Department of State March 2016 Visa Bulletin Summary

The Department of State released the March 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the employment-based preference category, there was forward movement in the Final Action date for EB-2 India, which advanced 2.5 months from August 1, 2008 to October 15, 2008.  The Final Action date for EB-3 India progressed just one month to July 15, 2004.  There was forward movement in both the Filing dates and the Final Action dates for EB-2 and EB-3 China.  For EB-2 China, the Filing date progressed 5 months from January 1, 2013 to June 1, 2013 and the Final Action date progressed 5 months from March 1, 2012 to August 1, 2012.  For EB-3 China the Filing date progressed 1 year and 7 months from October 1, 2013 to May 1, 2015 and the Final Action date progressed 8 months from October 1, 2012 to June 1, 2013.  Moreover, the Filing dates for EB-3 Worldwide and EB-3 Mexico will be current and the Final Action dates will progress 3 months from October 1, 2015 to January 1, 2016. EB-5 China Final Action Dates advanced by just 7 days from January 15, 2014 to January 22, 2014.  As of today, February 9, 2016, USCIS has not advised whether in March 2016, it will accept adjustment of status applications for family or employment-based petitions based on filing dates, rather than final action dates. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.

Department of State February 2016 Visa Bulletin Summary

The Department of State released the February 2016 Visa Bulletin today.  D&S provides a Monthly Summary of the family and employment-based priority dates.  This month, there was no forward movement in any employment-based or family-based Filing Dates.  For the employment-based preference category Final Action Dates, there was forward movement for EB-2 India, which advanced 5 months from February 1, 2008 to August 1, 2008.  EB-2 China advanced one month from February 1, 2012 to March 1, 2012. EB-3 Worldwide and Mexico remained unchanged and EB-3 China, India, and the Philippines all saw forward movement of between 1 and 3 months. EB-5 China Final Action Dates advanced by just 7 days from January 8, 2014 to January 15, 2014.  As of today, January 8, 2016, USCIS has not advised whether in February 2016, it will accept adjustment of status applications for family or employment-based petitions based on filing dates, rather than final action dates. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.

D&S Legislative Update: Omnibus Spending Bill Passed by the House, Up for Vote in the Senate

In the late hours of Tuesday evening, December 15, 2015, after days of intense negotiations, Congressional leadership announced that it has reached a sweeping year-end deal on the omnibus federal spending bill needed to continue to fund the Federal government. This announcement follows the five-day continuing resolution passed by Congress on December 10, 2015, to allow for additional time for the omnibus federal spending bill to be finalized and avoid a government shutdown.

On Thursday, December 17, 2015, the House passed the spending bill by a vote of 318 to 109.  The Senate is expected to vote on and pass the bill on Friday, December 18, 2015.  The omnibus appropriations bill contains a recommendation to extend the EB-5 program in its current form through September 30, 2016, without the widely discussed changes to the minimum investment amounts or the definition of Targeted Employment Area (TEA).  In addition to extending the EB-5 program, the bill will also extend other expiring immigration programs, including the E-verify program, Conrad 30 waivers for J-1 medical workers, and R-1 visas for religious workers. Finally, the bill contains reforms to the Visa Waiver Program (VWP), including the requirement that program users have electronic passports with biometric and biographic information and restricting use of the program for certain individuals who have traveled to Iraq, Sudan, Iran and Syria.

UPDATE: On Friday, December 18, 2015, the U.S. Senate approved the spending bill by a vote of 65 to 33. President Obama is expected to sign the bill into law no later than December 18th.

Senate Approves Five-Day Funding Measure to Prevent Government Shutdown at Midnight

On December 10, 2015, the Senate unanimously approved a five-day funding measure to prevent a government shutdown at midnight tonight.  This extension is in addition to the Temporary Spending Measures passed by Congress on September 30, 2015 to prevent a government shutdown starting October 1, 2015.  If passed, the extension would give Congress until December 16, 2015 to pass a comprehensive $1.1 trillion spending package.

According to numerous reports, today the House is expected to vote on and pass the measure and President Obama is expected to sign the short-term continuing resolution into law, thus avoiding the shutdown at midnight. Once passed, the short-term continuing resolution will also extend EB-5, Conrad 30, Special Religious Workers, and E-Verify for five additional days. Several experts have indicated that Congress is close to passing the omnibus federal spending bill.

D&S will continue to monitor this developing situation and provide timely updates.

EB-5 Alert: USCIS Message Warns that Certain Regional Center Naming Conventions May Violate Federal Law

This week, the Public Engagement Division of the United States Citizenship and Immigration Service (USCIS) issued an alert to Stakeholders reminding them that EB-5 regional centers and any related commercial enterprises affiliated with the regional center should not contain the words "United States," "U.S.," "US," and "Federal" in their names.  USCIS explained that such words may falsely imply a relationship between the entity and the U.S. government and, thus, using these names on website and promotional materials could be considered a deceptive act or practice or constitute false advertising in violation of federal unfair trade and false advertising laws.

USCIS also warned that any business operating in the financial services sector should not have advertisements containing the words "Federal" or United States," as such language could constitute false advertising or misuse of names to indicate a federal agency,  both of which are violations of federal law.

In cases where the Immigrant Investor Program Office (IPO) - the office that adjudicates EB-5 petitions nationwide - determines a regional center or related commercial enterprise has a questionable name or has employed questionable language in advertisements, it may refer the case to the Federal Trade Commission or Department of Justice, as appropriate, for further action.

EB-5 investors and practitioners should continue to review all regional center materials and advertisements closely and carefully to ensure that no questionable naming conventions or advertising language is used that could subject the regional center to federal investigation.

DEPARTMENT OF STATE SEPTEMBER 2015 VISA BULLETIN SUMMARY

The Department of State released the September 2015 Visa Bulletin today.  D&S provides a monthly Summary of the family and employment based priority dates.  This month, there was forward movement in most family-based and employment-based visa categories with the exception of EB-2 India and China, both of which retrogressed to January 1, 2006 (a retrogression of almost 3 years for EB-2 India and almost 8 years for EB-2 China).  EB-3 India and China both progressed over 6 months from June 1, 2004 to December 22, 2004.  EB-5 China, which retrogressed for the first time in June 2015, experienced a moderate progression from September 1, 2013 to September 22, 2013.