Tag: immigrant visa

USCIS Issues Updated Guidance on ‘Sought to Acquire’ Requirement of Child Status Protection Act

On Sept. 25, 2024, U.S. Citizenship and Immigration Services (USCIS) updated its Policy Manual to clarify the calculation of the Child Status Protection Act (CSPA) age for noncitizens seeking CSPA protection under the “extraordinary circumstances” exception. By way of background, CSPA protects dependent children from “aging out” and becoming ineligible for permanent residence as derivative beneficiaries under certain circumstances. Please review our coverage of USCIS CSPA policy updates.

While CSPA protection is generally determined based on the date an immigrant visa becomes available, requiring dependent children to seek to acquire it within one year of that date, the “extraordinary circumstance” policy provides exceptions to that requirement under limited circumstances. Specifically, where such circumstances were not created by the applicant but directly affected their ability to seek to acquire permanent residence within one year of visa availability, and these facts are reasonable, USCIS has said it would excuse dependents from the “seek to acquire” requirement. USCIS has now provided further clarity regarding the “seeking to acquire” component of CSPA calculation under extraordinary circumstances.

Key updates:

  • Seeking to Acquire: For applicants excused from the “sought to acquire” requirement due to extraordinary circumstances, the CSPA age would be calculated from the date the immigrant visa first became available, provided the visa remained available for a continuous one (1) -year period without any intervening visa unavailability.
  • Intervening Visa Unavailability: If the immigrant visa became available and subsequently unavailable, the CSPA calculation could rely on the date an immigrant visa first became available if they can demonstrate extraordinary circumstances prevented them from seeking to acquire their immigrant visa before it became unavailable.

USCIS has issued this new guidance to ensure consistent adjudication for all Applications to Adjust Status relying on extraordinary circumstances to secure CSPA protection. This updated guidance applies to all applications pending on or after Sept. 25, 2024, and supersedes any prior related instructions.

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For more on USCIS, visit the NLR Immigration section.

Retrogression for EB-5 Predicted at IIUSA Conference; July 2013 Cut-Off Discussed

Greenberg Traurig Law firm

The Chief of the Visa Control and Reporting Division of the U.S. Department of State, Charles Oppenheim, reported that the EB-5 immigrant visa category would likely retrogress in July 2015. However, this does contradict his prediction provided to AILA earlier last week of retrogression occurring in May 2015. What is striking about Oppenheim’s announcement was that retrogression of the EB-5 immigrant visa category would cause him to establish a cut-off date of July 2013. A cut-off date has the effect of establishing an orderly line for the issuance of EB-5 immigrant visas. The cut-off date is determined based on the date an I-526 Petition was filed and is the date included on each I-526 Petition approval notice in the “Priority Date” box. For example, if a cut-off date of July 2013 is established in July 2015, during the month of July 2015, only those EB-5 investors (and their derivative beneficiaries) with a Priority Date in July 2013 or earlier (i.e. June 2013, May 2013, etc.) may apply for an EB-5 immigrant visa.

As we have stated previously, EB-5 investors should continue to file I-526 Petitions in the regular course of business because retrogression will have no effect on the adjudication of I-526 Petitions by the U.S. Citizenship & Immigration Services. By filing an I-526 Petition, an EB-5 investor is reserving his or her place in line by establishing his or her Priority Date, which has the effect of determining when he or she may apply for an EB-5 immigrant visa after receiving approval of his or her I-526 Petition. However, there are other effects of retrogression which should be evaluated when making a decision to pursue an EB-5 immigrant visa.

Oppenheim attributed the establishment of a July 2013 cut-off date to the increasing volume of I-526 Petition approvals by the U.S. Citizenship & Immigration Services (the USCIS) and his estimation of approximately three derivatives per I-526 Petition. According to his own calculations, this would indicate that there are roughly 3,333 principal investors under the EB-5 Program, with the remaining 6,667 EB-5 immigrant visa slots filled by family members of EB-5 investors. As retrogression of the EB-5 immigrant visa category may cause a drop in market demand for the EB-5 immigrant visa, it appears the inclusion of dependents against the 10,000 limit of EB-5 immigrant visas available for each U.S. government fiscal year (Oct. 1 to Sept. 30) would likely constrain the flow of foreign investor capital to the United States.

ARTICLE BY

Dillon R. Colucci
OF
Greenberg Traurig, LLP

Effective September 12, 2014: New Fees for Some Nonimmigrant and Immigrant Visas

Mintz Levin Law Firm

The Department of State (DOS) has revised certain nonimmigrant and immigrant visa fees. DOS has adjusted the visa fees in the following categories:

  1. E visas – treaty/trader and Australian specialty occupation visas decreased to $205 (from $270).

  2. K visas – Fiancé(e) or Spouse of U.S. citizen category visa increased to $265.

  3. Immigrant visa application processing fee based on an approved I-130 Immediate Relative of Family Preference petition increased to $325.

  4. Immigrant visa processing fee based on an approved I-140 employment-based petition decreased to $345 (from $405).

As detailed on the DOS website, the following procedures apply:

  1. DOS will not refund the difference for fees that have been lowered.

  2. If you are applying for a category where the fee has been raised and you have already paid the fee, you are not required to pay the difference between the amount you paid and the new fee as long as your appointment is on or before December 11, 2014.

  3. If you are applying for a category where the fee has been raised, you are required to pay the difference between the amount you paid and the new fee if your appointment is on or after December 12, 2014.

ARTICLE BY

Barbara Chin
OF
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.