Tag: Immigration

Federal Court Temporarily Blocks Health Insurance Requirement for Immigrant Visa Applicants

On November 2, 2019, the U.S. District Court for the District of Oregon issued a temporary restraining order, blocking the Trump administration from enforcing a recent presidential proclamation requiring health insurance for immigrant visa applicants. The proclamation, which had been scheduled to take effect on November 3, 2019, would have required certain immigrant visa applicants to prove that within 30 days of their entering the United States they would have approved health insurance or that they otherwise possessed the “financial resources” to cover “reasonably foreseeable medical costs.”

The restraining order will remain in effect for 28 days. In the meantime, the court will hear arguments on November 22, 2019, to determine if the proclamation warrants a preliminary injunction.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

More on immigration on the Immigration Law page of the National Law Review.

Update on the Public Charge Rule

Despite litigation that enjoined USCIS from proceeding with the implementation of the Public Charge Rule, Department of State (DOS) seemed ready to proceed with it at Consulates abroad.

But, as of this week, DOS is no longer “fast-tracking” the Public Charge Rule. It withdrew its request for emergency review of its new public charge form, DS-5540, that it proposes to use to determine if applicants are “self-sufficient and not a strain on public resources” and, on October 24, 2019, began a 60-day comment period.

Once the comment period is over, Office of Management and Budget (OMB) review will take place. How long that review will run is hard to know. If the experience with the OMB review of another controversial Trump Administration rule – the rescission of the H-4 EAD Rule – provides any indication, the review could go on for months.

Jackson Lewis P.C. © 2019
For more developments, see the National Law Review Immigration law page.

President Trump Issues Proclamation Suspending Entry of Immigrants Who May Burden the U.S. Healthcare System

On Oct. 4, 2019, President Trump issued a Proclamation, that will be effective on Nov. 3, 2019, suspending the entry of immigrants who will financially burden the United States healthcare system. The reasoning behind the issuance of this Proclamation is to not burden American taxpayers with immigrants who utilize the U.S. healthcare system without payment and who allegedly contribute to overcrowding of emergency rooms and hospitals. The Proclamation includes a reference to data that shows lawful immigrants being three times more likely than U.S. citizens to lack health insurance, and while the United States will still continue to welcome immigrants, the country must protect its own citizens.

President Trump, through the Proclamation, declares the following:

    1. – The immediate suspension of immigrants entering the United States who does not have approved health insurance, within 30 days of entry, or unless the alien possesses the financial resources to pay for medical costs. Approved health insurance is defined in the Proclamation, which can be found here.
    2. – The Proclamation only applies to those who are seeking immigrant visas, as opposed to those seeking nonimmigrant visas.
      1. The Proclamation will not apply to those who hold a valid immigrant visa issued before the effective date of the proclamation; those who are seeking to enter the United States pursuant to a Special Immigrant Visa, who is a national of Afghanistan or Iraq, or any alien who is the child of a U.S. citizen seeking to enter the U.S. pursuant to the following categories: SB-1, IR-2, IR-3, IR-4, IH-3, IH-4, and IR-5 (with limitations).
      2. b. The Proclamation will also not apply to those aliens under 18, and any other aliens whose entry would be in the national interest.
      3. c. The Proclamation will not affect those who are lawful permanent residents (e.g., already received green cards), and will not affect eligibility regarding asylum, refugee status, etc.
    3. – The Proclamation will be implemented and enforced immediately, and a report must be submitted within 180 days of the effective date.

 

©2019 Greenberg Traurig, LLP. All rights reserved.

For more on the topic, see the National Law Review Immigration Law page.

The Fairness for High-Skilled Workers Act May Endanger Economy

The Fairness for High-Skilled Workers Act has passed the House of Representatives, and is pending before the Senate where it may pass by unanimous consent (i.e., with no actual vote or hearing).

On its face, the Fairness Act seems fair. By eliminating the 7% per country cap, Indian nationals and Chinese nationals who have been waiting and would continue to wait for years to capture green cards would be placed at the front of line. But this would be at the expense of workers from other countries who are also important to the United States.

About 25% of all STEM workers in the U.S., including those in the fields of healthcare, physical science, computer, and math, are foreign-born and that figure is on the rise. One quarter of all doctors in the U.S. are foreign-born — many from sub-Saharan Africa — and are particularly important in poor, rural areas of the country where physicians are scarce. One in five pharmacists and one in four dentists are foreign-born. Other types of healthcare workers come from Asia, Mexico, Central America, and the Caribbean and our need for these workers rises as baby boomers age.

If the Fairness Act were to pass, recruiting from countries other than India and China might become more difficult, and this talent may well turn elsewhere. New Zealand, Ireland, Australia and the UK are also dependent on foreign-trained doctors.

High-tech workers from India and China are also important to the U.S. and its economy; but our current immigration system is driving them out as well. This started in 2008, when it became difficult for high-tech companies to get the number of H-1B visas they needed. That frustration has grown with the increased scrutiny of H-1B petitions and the long green card waiting lines. Indian and Chinese talent is heading for other countries, and Canada is welcoming them and their companies with open arms. South Africa, Argentina, India, Chile, Japan, Hong Kong, South Korea, Israel, Australia, and Ireland also are popular competitors.

Quotas of one kind or another have been part of the U.S. immigration system since the early part of the 20th century. Literacy requirements limited immigration from some of the poorer countries of the world. Country-of-birth quotas benefited those from the UK, Ireland, and Germany at the expense even of those born in southern and eastern Europe. The 1965 Immigration and Nationality Act (the Hart-Celler Act), which is the basis of our current system, abolished national origin quotas (to eliminate discrimination) and focused on family reunification. The 7% annual ceiling on the number of immigrants from any one country was established. The ceiling was not meant to be quota, but rather a “barrier against monopolization.”

Senator Rand Paul, who opposes the Fairness Act, introduced the BELIEVE Act (Backlog Elimination, Legal Immigration and Employment Visa Enhancement Act) (S. 2091) on July 11, 2019. That bill would simply quadruple the number of employment-based visas by doubling the number available annually and exempting dependents from being counted toward the annual quota of visas. His bill also would exempt all shortage occupations from green card limits.

The Fairness Act may be just an interim solution. Rather than pitting family-based immigration against employment-based immigration and rather than pitting one country against another or one industry against another, perhaps it is time for legislation like the BELIEVE Act that would simply increase the number of green cards available to everybody.

Jackson Lewis P.C. © 2019

For more on green card legislation, see the National Law Review Immigration law page.

ICE To Increase STEM OPT Worksite Inspections

U.S. Immigration and Customs Enforcement (“ICE”) has recently increased site visits for employers who employ F-1 students under STEM OPT (short for Science, Technology, Engineering, Mathematics Optional Practical Training) work authorization. While ICE has had this authority since the STEM regulations were passed in 2016, the agency only recently started conducting site visits to ensure that employers and F-1 students remain in compliance with the regulations governing F-1 STEM OPT work authorization.

What Is STEM OPT?

STEM OPT allows eligible F-1 visa students with STEM degrees from accredited U.S. colleges or universities to apply for an additional 24 months of Occupational Practical Training. This is in addition to the initial, one-year post-completion OPT granted to all non-STEM-degree F-1 students. In addition to the STEM degree requirements, the F-1 visa student must secure employment with a bona fide employer, work a minimum of 20 hours per week for that employer, and the employer must provide a formal, practical training and learning program within the STEM field which is related to the F-1 student’s degree. Details of the training program are outlined by the employer on Form I-983, which is submitted to and approved by the Designated School Official at the F-1 student’s academic institution.

What Is a Site Visit?

ICE conducts site visits to ensure that STEM OPT students receive the structured and guided work-based learning experiences required by the regulations. The purpose of the site visit is to confirm that information reported on the F-1 student’s Form I-983 training plan is accurate and being executed by the employer.

ICE generally notifies employers at least 48 hours prior to conducting a STEM OPT site visit. However, ICE is authorized to conduct unannounced site visits in the event that the agency receives a complaint or other evidence of noncompliance with STEM OPT guidelines. ICE has been sending emails directly to the managers of F-1 student STEM OPT trainees with an attached Notice of Site Visit. These communications contain:

  • The date of the scheduled visit;
  • A list of F-1 students whose STEM OPT training has been selected for inspection;
  • A request for a copy of each F-1 student’s Form I-983, Training Plan for STEM OPT Students; and
  • A request for other documentation related to the organization’s STEM OPT training program.

If you receive any communication from ICE or the Department of Homeland Security, please notify your attorney immediately before responding. This is to ensure both the legitimacy of the correspondence as well as to ensure that an appropriate response is submitted to ICE.

What Will Happen During a Site Visit?

The purpose of the STEM OPT site visit is to ensure that the employer and F-1 student are following the training plan as outlined in the Form I-983, and that the employer possesses the ability and resources to provide the structured and guided work-based learning experiences outlined in the training plan. During a site visit, ICE may review several aspects of the F-1 student’s STEM OPT training plan, including a review of pay documents to ensure that the student is being paid properly, a review of the Form I-983 training plan, and a review of the trainee’s workspace.

The inspection may include individual interviews with company personnel, a review and discussion of the F-1 student’s training plan and its implementation, and a review of the F-1 student’s skills and degree in relation to the STEM degree. ICE may also request to view F-1 student workspaces or receive a tour of the premises.

It is important that students and STEM OPT employers accurately and comprehensively complete the Form I-983 training plan, and that the F-1 student, the student’s immediate manager, and the immigration contact are all familiar with the contents of the Form I-983 training plan. Inconsistencies between the opportunity as described in the training plan and what the student is actually doing can have serious consequences for students and employers.

While this type of site visit should focus exclusively on STEM OPT, if evidence of other immigration-related violations is found during the site visit, ICE may address the violation or refer it to the appropriate agency or ICE unit for further review.

How Can I Prepare for a Site Visit?

At each worksite where an F-1 STEM OPT student is being trained, your organization should designate a point of contact, such as a human resource or immigration manager, to receive ICE officers. Receptionists and security personnel should be advised to complete the following steps should an ICE officer arrive to conduct an inspection:

  1. Notify the designated point of contact to inform him or her that an ICE officer has arrived to conduct a site inspection;
  2. Verify the officer’s identity: ask to see and take note of the officer’s identification, including badge, name, and ID number. Ask for the officer’s business card and call the number on the card to verify the identity of the officer. Officers should expect this and it is important that the officer’s identity is verified before disclosing or discussing employee information;
  3. Wait for the designated point of contact to arrive before releasing any information.

During the visit, the officer will ask questions, request documentation, and may take photographs. The designated point of contact should remain with the officer throughout the visit and take detailed notes, including the name, title and contact information of each officer; the names and titles of anyone interviewed by the officer; questions asked during interviews; any company documents provided to the officer; worksite areas visited by the officer; and any photographs taken by the officer. If company documents are provided to the officer, the designated point of contact should be sure to list the documents provided and retain copies. If the officer takes photographs of the worksite, the designated point of contact should ask for copies. The officer may request that the designated point of contact not be present during interviews with the F-1 student or managers. In this instance, the designated point of contact should remain available to answer any questions that may arise.

Managers, supervisors and F-1 students should be prepared to answer questions on the following topics:

  • The information provided in the trainee’s Form I-983 training plan;
  • The nature of the F-1 student’s job duties at the organization;
  • How the job duties relate to the F-1 student’s degree and academic program;
  • Why the F-1 student is qualified for the position;
  • What qualifications managers look for when hiring for similar positions;
  • How the manager supervises the F-1 student and executes the training plan; and
  • If the F-1 student is placed at a third-party worksite, how does the manager supervise the F-1 student and implement the training plan.

Special Note for California Worksites: Immigrant Worker Protection Act (AB 450)

Employers who have worksites in California are also required to comply with portions of the Immigrant Worker Protection Act. In 2017, California passed the Immigrant Worker Protection Act (AB 450), placing requirements on how public and private employers could interact with Federal immigration authorities. On March 6, 2018, the U.S. Department of Justice filed a lawsuit challenging the Immigrant Worker Protection Act, and on July 5, 2018, the U.S. District court enjoined California from enforcing portions of the law related to worksite inspections and employment eligibility as it applied to private employers. This means that private employers cannot currently be prosecuted for:

  1. Allowing or consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace;
  2. Voluntarily allowing the federal immigration enforcement agent access to employee records; or
  3. Re-verifying the employment eligibility of a current employee outside the time and manner required by federal law, under Section 1324a(b) of Title 8 of the United States Code.

Private employers are still required to comply with the notice requirement provisions of the Immigrant Worker Protection Act. An explanation of the Immigrant Worker Protection Act, and information regarding the Act’s notice requirements, can be found here.

© 2019 Mitchell Silberberg & Knupp LLP

Read more regarding ICE activities on the National Law Review Immigration Law page.

ICE May Visit Your Company or University Campus – a Quick Checklist and Guidance

Lately, Immigration and Customs Enforcement (ICE) has been more active in making arrests of undocumented individuals. Statistically, however, the number of arrests are very small and the “bark” is much bigger than the “bite”. Nonetheless, it is helpful for employers and other stakeholders to know what the required protocols and duties are if ICE shows up, employee rights, and bystander rights. Below is a quick checklist to help you along with important guidance.

Major Points

  • Immigration is a civil matter, not criminal. The majority of ICE warrants are administrative civil warrants.

  • ICE priorities are arresting those with criminal convictions and those who have been previously ordered removed (absconders). ICE may pursue these activities in public areas.

  • Anybody arrested by ICE has the right to counsel.

  • ICE agents are federal employees that are working as directed. Nonetheless, it is the policy of most employers that ICE enforcement activities focusing on the  personal immigration issues of an individual shall not take place on company property.

  • If an ICE agent does attempt to arrest someone on company property, do not interfere as that will complicate matters. However, please contact your manager and they will coordinate with HR and Legal.

Public versus Private Property

  • Some parts of commercial property would be considered public property (i.e. parking lots shared by multiple employers) .

  • However, back office and areas where customers are not present are considered private property.

Arrest Warrants

  • Warrants come in many varieties.

  • Immigration warrants are civil administrative actions, not criminal.

  • Immigration warrants are signed by ICE Officers, not a Judge.

  • Immigration warrants do not allow ICE to enter private areas without consent.

  • If an ICE agent is seeking entry to a private area, it is the policy of most companies to deny such access. You should ask the ICE agent for a copy of the warrant, their name, and contact your manager.

  • In very rare instances, ICE may invoke “exigent circumstances” and make entry without a warrant.

Your Rights

 Generally speaking if you have a personal encounter with ICE:

  • You should not grant entry to any private areas.

  • You have the right to remain silent.

  • You have the right to ask “Am I free to go?” If they say “yes,” you may walk away.

  • If detained, you have the right to counsel.

  • If you are a foreign national, you have the right to contact your Embassy or Consulate.

  • You do not have to sign any document that you do not understand.

  • If you are stopped for questioning but not arrested, you may refuse a search. But the Officer may pat you down if they suspect you have a weapon.

Non-Immigrants must Carry Evidence of Legal Status

Section 264 (e) of the Immigration and Nationality Act requires every foreign national 18 years of age and over to carry with them and have in their personal possession at all times evidence of their status such as an I-94, work permit, or green card at all times.

ICE and Foreign Students   

  • ICE has jurisdiction over F-1 foreign students and J-1 exchange visitors.

  • ICE will routinely meet with the Designated School Official (DSO) who oversees F-1 and J-1 students on campus.

  • ICE may obtain limited private information about F-1 and J-1 students including their home addresses.

UNIVERSITY AB-21 REQUIREMENTS  

In 2017, the California Legislature passed AB-21 (codified in Education Code Section 66093) requiring Universities to take certain affirmative steps to notify students on at least a quarterly basis of ICE activities on campus. This includes the following:

  1. Quarterly E-Mail Update: E-mail to students, faculty, and all employees advising them about ICE activities and reminding them of their rights and obligations should ICE seek to take enforcement actions on campus against individuals.
  2. The University Intranet should include the following required information for students, faculty, and employees to access:
    • Notify University of ICE Activities:  Encourage those on campus to report an ICE visit.
    • Point of Contact at University for Personal ICE Issues: The University must designate a contact for students, faculty, and staff to contact if they need assistance
    • Emergency Family Contact: Can proactively notify the University in case they need to notify someone that a student, faculty, or staff has been detained by ICE.
    • ICE Detainee Locator: Should you need to find where an individual is being held in ICE custody, you can try the ICE detainee locator here. You will need their 9 digit Alien Registration Number (aka A#) and Country of Birth, or name, country of birth, and date of birth.
    • Legal Assistance: List of organizations that can assist with detention and removal issues.
    • Accommodation for Student Absence due to ICE Matter: Should a current student be unable to attend classes due to an ICE action, the University must take reasonable efforts to accommodate the students, including whenever possible  maintenance of financial aid and a seamless transition back to school.
    • Confidentiality: The University must refrain from disclosing personal immigration information about students, faculty, and staff to the greatest extent possible consistent with state and federal requirements.

GUIDANCE TO EMPLOYERS IF ICE INITIATES AN ICE AUDIT

  • If ICE issues a civil subpoena for an I-9 Notice of Inspection to an employer, the employer should request an extension of time to surrender the I-9’s. Absent an extension, ICE will require that they be ready 3 days later.

  • At a later time (frequently 6 to 12 months later), ICE will give the employer an opportunity to make technical corrections for minor errors on the I-9’s. There will be no monetary fines for technical errors that are corrected.

  • For substantive errors (i.e. the form is not signed or dated by the employee or employer, or failure to itemize the documents that HR looked at the time of hire etc.), ICE will fine – typically $2,000 per I-9 with a substantive error. A missing I-9 is also a substantive error.

  • If ICE determines that some of the employees are not work authorized (and their documents are not genuine), they will issue a Notice of Suspect Documents. The employer must then must meet with each employee on the list, and absent an error or misunderstanding, must timely terminate the employee. If a large number of employees will need to be terminated, the employer can request ICE for additional time to find replacement workers – ICE will sometimes grant an extension to do this.

  • Then ICE will issue a Notice of Intent to Fine for those I-9’s that have substantive violations. If the employer feels that the fines are excessive, they may appeal to the U.S. Department of Justice Office of the Chief Administrative Hearing Officer.

California AB 450 Notice Requirements After an ICE I-9 Audit Begins

  • If your company receives an I-9 Notice of Inspection from ICE, you must post a notice and notify any Union – all within 72 hours. The posting must be in the language that the majority of the workers converse in. If in doubt, post it in both English and Spanish.

  • Fines for violation of the notice requirements can be up to $10,000 per violation.

Here is the required posting notice issued by DLSE:
English version 
Spanish version
FAQ’s from DLSE can be found here.

  • In addition, each time ICE comes back with findings in the form of a Notice of Technical Corrections and also later on with a Notice of Suspect Documents (to terminate certain employees), each affected employee must be notified as well as any Union – all within 72 hours.

  • In addition, the employee has a right to counsel at their own expense when an employer is reviewing their I-9 with them.

ICE IMAGE Program

IMAGE is a voluntary partnership initiative between the federal government and private sector employers. The initiative is designed to foster cooperative relationships and to strengthen overall hiring practices and self-policing of I-9’s.  It can be used as a negotiating tool if a company is audited by ICE.

What does ICE agree to do as part of IMAGE?

  • IMAGE was designed as a partnership initiative between the government and private sector employers. To that end, ICE is committed to working with IMAGE participants in the following ways:

  • ICE will waive potential fines if substantive violations are discovered on fewer than 50 percent of the required Forms I-9.

  • In instances where more than 50 percent of the Forms I-9 contain substantive violations, ICE will mitigate fines or issue fines at the statutory minimum of $216 per violation.

  • ICE will not conduct another Form I-9 inspection of the company for a two-year period.

  • ICE will provide information and training before, during and after inspection.

For more information on Image see here.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

For more information see the National Law Review Immigration Law page.

USCIS Revising, Updating Naturalization Test

USCIS is on its way to revising and updating the Naturalization Test. It will start with a pilot test involving about 1,400 volunteers this fall, then a second field testing pilot in spring 2020.

Last updated in 2008, the new Naturalization Test is expected to be implemented as soon as late-2020.

Recent issues surrounding the Administration’s attempt to add a citizenship question to the 2020 census and delays in processing naturalization applications have prompted the Acting Director of USCIS, Ken Cuccinelli, to tell the Washington Post that paranoia regarding the reason for these changes is not warranted. People who are paranoid will be “sorely disappointed when [the new test] looks like another version of the [current] exam.” Decennial revisions are proposed to “ensure that the civics education requirements remain a meaningful aspect of the naturalization process.”

The working group revising the test includes staff from across USCIS. The group is “soliciting the input of experts in the field of adult education to ensure that this process is fair and transparent.”

Currently, naturalization applicants are asked 10 randomly selected questions from a list of 100 (the list is available on the USCIS website). The questions are on American government, history, and civics and reflect middle school and high school curricula. To pass, 6 of the 10 questions must be answered correctly. There is a 90% pass rate among applicants. A 2018 survey by the Woodrow Wilson National Fellowship Foundation showed the pass rate among U.S. citizens was only 36%. Citizens over the age of 65 had the highest pass rate: 74%.

Test yourself. Answer the following (answers are at the bottom of this post)

  1. Why did the colonists fight the British?

  2. When was the Declaration of Independence adopted?

  3. How many amendments does the Constitution have?

Along with changes to the civics test, the agency also is considering changes to the English language proficiency test. According to the naturalization statute, applicants must read and write “simple words and phrases” and “no extraordinary or unreasonable condition shall be imposed upon the applicant.”

When Francis Cissna, then-Director of USCIS, announced the revision he noted that the new tests would continue to provide “special consideration” to those over 65 who have lived in the U.S. as green card holders for at least 20 years. He also stated that “due consideration” would be given to “applicants’ education, background, age, length of residence in the United States, opportunities available and efforts made to acquire the requisite knowledge, and any other elements or factors relevant to an appraisal of the adequacy of the applicant’s knowledge and understanding.”

Last year, 750,000 applicants were naturalized. In the years preceding presidential elections, the application levels typically increase.

****

The answers:

  1. Because of high taxes (taxation without representation), because the British army stayed in their houses (i.e., boarding and quartering), or because they did not have self-government
  2. July 4, 1776
  3. 27
Jackson Lewis P.C. © 2019
This article is written by Peter A. Reca of Jackson Lewis P.C.
For more immigration news, see the National Law Review Immigration type of law page.

Modernization at Last: Insight to the Newly Published EB-5 Modernization Rules … Now the Race is On …

On July 23, 2019, United States Citizenship and Immigration Services’ (USCIS) regulations to update the Immigrant Investor Program were published in the Federal Register. The new EB-5 Immigrant Investor Program Modernization rules (New Rules) amend the historic Department of Homeland Security (DHS) 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 New Rules are creating quite a buzz in the EB-5 community with good reason. Of particular note, the New Rules modify the EB-5 program by:

  • Increasing the required minimum investment amounts;

  • Providing the long-awaited priority date retention to EB-5 investors in certain cases;

  • Amending targeted employment area (TEA) designation criteria;

  • Centralizing TEA determination;

  • Clarifying USCIS procedures for the removal of conditions on permanent residence fulfilment;

  • Providing for periodic minimum investment increases henceforth; and

  • Implementing a myriad other amendments.

The New Rules are effective 120 days from publication, which is November 21, 2019. The effective date of the New Rules presupposes that Congress will extend the EB-5 Program’s current sunset date of September 30, 2019. USCIS clarified that it will adjudicate investors, who file a Form I-526 petition before November 21, 2019, under the current EB-5 program rules. Now the race is on to initiate and complete investments by the effective date.

The “New” EB-5 Program: A Closer Look at Certain Changes.

Increased Minimum Investment. To account for inflation since the commencement of the EB-5 Program, the New Rules increase the minimum investment amount per investor to participate to $900,000 (from $500,000) if the project is located in a TEA or to $1.8 million (from $1 million) if not in a TEA. This increased amount commences on November 21, 2019. For many this is good news as the minimum investment amount increase is substantially lower than DHS’ initial proposal to increase to $1.35 million. To further adjust for inflation, the New Rules provide for periodic increases henceforth to the minimum investment every five years. USCIS proposes that this fixed schedule will create “predictability and consistency” by allowing EB-5 participants to plan accordingly.

TEA Determination. The amendments to TEA’s determination procedures that commence on and after November 21, 2019, are a hot topic. The biggest change in the New Rules is the abolishment of state sovereignty in the TEA determination process. No longer will the state in which the project is located determine TEA qualification. USCIS, which operates under DHS, will review and determine the designation of high-unemployment TEAs. EB-5 program stakeholders believe this change alone will dramatically limit the number of projects that qualify as a TEA, which could lead to an obsolescence of the EB-5 program. Also of note, the New Rules provide that any city or town with a population of 20,000 or more, whether inside or outside of a metropolitan statistical area, may qualify as a TEA henceforth. The New Rule also provides that a TEA may consist of a census tract or contiguous census tracts in which the new commercial enterprise (NCE) is principally doing business if the NCE is located in more than one census tract, and the weighted average of the unemployment rate for the tract or tracts is at least 150% of the national average. The applicability of TEA status to rural areas remains unchanged. Thus, only projects in metropolitan areas are at risk of no longer qualifying as a TEA under the New Rules after November 20, 2019.

DHS supports these steps with the position that the New Rules will ensure consistency in TEA adjudications by directing investment to areas most in need and increase the consistency of how high-unemployment areas are defined in the program. Of note, the New Rules do not include any preference for rural and urban distressed areas, notwithstanding the proposals for visa set-asides for such project. In addition, the New Rules do not integrate TEA determination with the new qualified opportunity zone designations under the 2017 Tax Cuts and Job Creation Act. These provisions might be addressed legislatively by Congress as part of a reauthorization bill this year. Some EB-5 stakeholders believe that Congress might overrule the New Rules in part (i.e., regarding the minimum investment amount and TEA changes) plus enact additional modernization rules such as authorizing additional visas, etc.

Priority Date Retention. For many years, both Congress and USCIS have recognized the value of a modification to the EB-5 Program to permit EB-5 investors to retain their visa priority date if they are required to amend their EB-5 petition for reasons unrelated to their own doing. The New Rules will allow EB-5 investors to use the priority date of a previously approved EB-5 petition. If and when an investor needs to file a new EB-5 petition, they can now retain the priority date of the previously approved petition, subject to certain exceptions.

An EB-5 immigrant petition’s priority date is normally the date on which the petition was properly filed. In general, when demand exceeds supply for a particular visa category, an earlier priority date is more advantageous. DHS will allow an EB-5 immigrant petitioner to use the priority date for a subsequently filed petition for the same classification for which the petitioner qualifies (unless the petition is revoked for material error, fraud or willful misrepresentation). We note that the New Rules allow an EB-5 petitioner to retain the priority date from an approved Form I-526 petition for a subsequently filed Form I-526 on or after November 21, 2019.

Removal of Conditions on Permanent Residence. The New Rules clarify that derivative family members must file their own Form I-829 to remove conditions on their permanent residence if they are not included in the principal petitioner’s I-829 petition. In addition, the New Rules streamline the adjudication process for removing conditions by providing flexibility in interview locations.

What happens next?

Until November 21, 2019, foreign investors, regional centers, developers and job-creating entities can rely on the existing rules. We urge those considering participation in the EB-5 program who desire to be grandfathered under the current law and the minimum investment amount of $500,000 to invest as soon as possible. As discussed above, if a project’s location in the market no longer qualifies as a TEA, then the minimum investment amount increases to $1.8 million, not just to $900,000. Accordingly, we recommend amending offering documents to include a discussion of the additional risks caused by the New Rules; principal among them is the potential inability to raise funds after November 21.

Regarding future viability of the EB-5 program, the increased investment amount may cause foreign investors to look to other United States programs, such as the L-1 and EB-1, as multinational executive or may look to the immigrant investor programs in other countries with a lower investment amount than the United States.[1]

[1] https://www.eb5investors.com/eb5-basics/international-immigrant-investor-programs

© Polsinelli PC, Polsinelli LLP in California
Article by Debbie A. Klis of Polsinelli PC.
For more on EB-5 immigration developments, see the National Law Review Immigration Law page.

Blocked from Adding Citizenship Question to Census, Administration Moves to Gather Data

President Donald Trump announced that the Administration will not be proceeding with any further census litigation. The 2020 Decennial Census, which is already being printed, will be sent out without a citizenship question. Nevertheless, President Trump does want to obtain statistics on the number of residents in the country who are and are not U.S. citizens. By means of an executive order, he is eliminating “obstacles to data sharing” and asking all government agencies to immediately hand over any and all relevant statistics and numbers to the Commerce Department. The President said that the Commerce Department will use this data, including data from the Social Security Administration and the Department of Homeland Security, to come up with an even more accurate count of citizens, non-citizens, and undocumented individuals than the citizenship question on the census would have yielded. The President indicated that this count will affect an “array of policy decisions” possibly including apportionment.

In his statement, the President made his view clear that people should be proud and glad to declare that they are U.S. citizens. Indeed, USCIS statistics indicate that naturalization applications skyrocketed just prior to the 2016 election – more green card holders want to become U.S. citizens. There are approximately 740,000 pending naturalization applications. In the New York area alone the backlog is anywhere from 12 months to 24 months.  Additional evidence of delays is seen in the number of lawsuits that are being filed in federal district courts due to these unreasonable delays. These lawsuits are at a 10-year high.

In what appear to be further attempts to restrict the processes for obtaining U.S. citizenship, the Administration has suggested that birthright citizenship could be limited, created a task force to “denaturalize” U.S. citizens who may have lied (intentionally or non-intentionally) on the citizenship applications, opposed creating a path to citizenship for DACA and TPS recipients, and been denying passports to individuals by questioning the validity of their birth certificates.

We will continue to follow how the new Commerce Department figures will account for all of the non-citizens who since 2015 have been trying become U.S. citizens and have been blocked by new USCIS policies that have created widespread delays.

 

Jackson Lewis P.C. © 2019
This article was written by Forrest G. Read IV of Jackson Lewis P.C.
For more on the census & citizenship questions, please see the National Law Review Immigration page.

HUD Says “No” to DACA Recipients

For some time the mortgage industry, without success, has asked the US Department of Housing and Urban Development to provide a clear answer to the question of whether Deferred Action for Childhood Arrival (DACA) recipients are eligible for FHA loans.  HUD finally provided a clear answer in responding to an inquiry from Representative Pete Aguilar (D-CA): “DACA recipients remain ineligible for FHA loans.”

HUD policy, currently reflected in HUD Handbook 4000.1, provides that “[n]on-U.S. citizens without lawful residency in the U.S. are not eligible for FHA-insured Mortgages.”  In its letter to Representative Aguilar, HUD addresses the legal status of DACA recipients by referencing statements made by the Department of Homeland Security Secretary when DACA was established:

“In establishing DACA on June 15, 2012, Janet Napolitano, then the Secretary of Homeland Security, made clear that DACA is merely an exercise of ‘prosecutorial discretion’ and ‘confers no substantive right, immigration status or pathway to citizenship.’ Secretary Napolitano further stated that ‘[o]nly Congress, acting through its legislative authority, can confer these rights.’”

We will have to see if HUD’s reliance on the status of DACA recipients to advise that they are not eligible to receive FHA loans prompts Congress to address their immigration status.

 

Copyright © by Ballard Spahr LLP
Learn more about DACA issues on the National Law Review Immigration page.