Tag: visa

EB-5 Filing Strategies: Continued Immigrant Visa Availability Under the RIA’s Set-Aside Categories

The passage of the EB-5 Reform and Integrity Act (RIA) in 2022 resulted in the most significant changes to the EB-5 investor immigrant visa program since its establishment in 1990. Among the most notable changes implemented through the RIA was the creation of new “set aside” visa categories for EB-5 investors. These set-aside categories allocate a certain amount of the 10,000 EB-5 immigrant visas available each year to investments in certain areas or projects, which include:

  • 20% reserved for qualified immigrants who invest in a rural area;
  • 10% reserved for qualified immigrants who invest in a ‘targeted employment area’ (TEA), which meets the requirements that apply to areas of high unemployment (unemployment rate of at least 150% of the U.S. national average); and
  • 2% reserved for qualified immigrants who invest in infrastructure projects.[1]

Additionally, the RIA allows for the concurrent filing of the investor immigrant visa petition on Form I-526E and adjustment of status (AOS) filing on Form I-485 for those present in the U.S.[2] While certain types of EB-5 investments filed prior to the passage of the RIA remain subject to visa bulletin backlogs, which particularly impact petitioners and dependent family members born in countries with the highest demand for immigrant visas (e.g., mainland China and India), the Visa Bulletin has not yet announced a visa backlog for any of the set aside categories established by the RIA.

With the establishment of the set-aside categories, the availability of EB-5 immigrant visas is now subject to multiple factors, in addition to country of birth, under the Department of State’s Visa Bulletin, which dictates an applicant’s ability to apply for an immigrant visa or concurrent AOS (if in the U.S.) based on per-country limitations released monthly by the Department of State (DOS).[3] As the visa bulletin is based on visas approved visa petitions and the petitioners’ countries of birth (as opposed to petitions filed with U.S. Citizenship and Immigration Services (USCIS) and currently in process), investors understandably are faced with a level of uncertainty when strategizing the timing of their investments and associated petition filings. This is due to the uncertain nature of the continued availability of immigrant visas, which can retrogress with little notice based on the DOS’ contemporaneous issuance of immigrant visas under the EB-5 program. This post will outline data and strategies available to investors to clarify questions related to potential changes to the visa bulletin that may impact EB-5 immigrant visa availability in the coming months. As the progression of the Visa Bulletin is subject to internal data shared between USCIS and the DOS, as well as the DOS’ internal visa issuance metrics, some level of obscurity and uncertainty should be accounted for when planning for immigrant visa petition filing, but the below is meant to help address and account for these inherent uncertainties.

Background on the Visa Bulletin

In connection with the U.S. government’s policy imperative to encourage a diverse pool of immigrants to the U.S., family- and employment-based immigrant visas are subject to a specific allocation of available visas every federal fiscal year. A total of approximately 140,000 immigrant visas are available every fiscal year for employment-based immigrant visas, including the EB-1, EB-2, EB-3, EB-4, and EB-5 immigrant visa categories. Of the total of 140,000 immigrant visas available annually, approximately 10,000 are allocated to the EB-5 investor visa program, which are also subject to the below per-country visa quotas.

To that end, no one country (based on the applicant’s country of birth) can be allocated more than approximately 7.1% of all available immigrant visas.[4] Importantly, the DOS recently revised its interpretation of the statutory language on the 7.1% per country limit to clarify that it applies in any preference only if a country’s use of visas exceeds 7.1% of all employment-based preferences together.[5] For example, the 7.1% per country limit for Vietnam will only start in the EB-5 category if Vietnam were to reach the 7.1% limit for the overall 140,000 employment-based visas available. In the past, investors born in Vietnam and Taiwan also have been high users of EB-5 visas; however, with this new interpretation by DOS, they will likely never be subject to a per-country limitation for EB-5 again given that these countries generally have never reached 7.1% of the overall 140,000 employment-based immigrant visas.

The above only tells part of the story on immigrant visa allocation. This is because in addition to the total of 140,000 employment-based immigrant visas allocated yearly to all countries, unused visa numbers from prior fiscal years (i.e. immigrant visas that are available to those born in under-subscribed countries, but not utilized) roll over for use by applicants of over-subscribed countries according to priority date and availability within the immigrant visa preference category.[6] Moreover, unused family-based immigrant visas may also be utilized to address excess demand in employment-based categories.[7] While the specific number of unused immigrant visas varies considerably year to year, there tends be some available unused family-based visa numbers from under-subscribed categories each federal fiscal year based on the most recent data made available by USCIS and DOS.[8] Additionally, unused EB-5 numbers from the unreserved ‘general pool’ of EB-5 immigrant visas available yearly (based on worldwide applicant demand), are reallocated to over-subscribed EB-5 categories, including the above-referenced EB-5 set-aside categories created post-RIA implementation.[9]

EB-5 Investor Immigrant Program Data

With the dynamic nature of the immigrant visa allocation process in mind, there is no simple, readily available formula that can help predict the numbers of EB-5 immigrant visas that may be available in a given fiscal year, nor one that can precisely predict how soon retrogression may impact the EB-5 program, particularly in connection with I-526E petitions filed by investors born in traditionally high-demand countries, like China and India. This process is made difficult because USCIS and the Immigrant Investor Program Office (IPO) have not released important statistics to the public that would allow investors to accurately predict how long of a backlog may form in the various set-aside categories. However, we do have some data.

To solve for the lack of government-released data, stakeholders have filed Freedom of Information Act (FOIA) requests that provide more nuanced data on the government’s current processing volumes. Notably, recent data disclosures made available through FOIA requests found a significant increase in demand for the rural set-aside category, but demand remains “below the needed level to absorb the near-term annual visa supply.” The data released also showed that demand for high unemployment TEA set-aside continued to increase through the end of 2023, which may result in a backlog for that specific set-aside category.[10] As expected, demand remains particularly high for immigrant applicants born in mainland China; the below chart published in connection with the data disclosed pursuant to FOIA provides further insight on the processing volumes:

TOTAL NUMBER OF I-526/I-526E FILED FROM APRIL 1, 2022,TO NOVEMBER 2023, BY TEA CATEGORY AND COUNTRY OF CHARGEABILITY (LATEST STATS AS PER AIIA FOIA DATA)[11]

China India Taiwan Rest of World Total Total %
Rural 767 174 18 134 1,093 32%
High unemployment 976 375 209 625 2,185 63%
Infrastructure 0%
Multiple TEA categories 7 3 5 16 0.5%
Not TEA 26 21 6 97 150 4%
Total 1,776 573 233 861 3,444 100%
Total % 52% 17% 7% 25% 100%

While the data above is subject to change and specifically reflects government filings through November 2023, and spanning multiple federal fiscal years (2022-23), it shows that about two times as many high unemployment set-aside I-526E Petitions were filed as compared to rural area set-aside I-526E Petitions. However, in June 2024, USCIS also released their January to March 2024 form data, which revealed that an additional 1,810 I-526E Petitions had been filed with USCIS over that three-month period, leaving 3,672 I-526E Petitions pending as of March 31, 2024.[12]

Importantly, the quarterly USCIS data shows a huge number of new I-526E Petitions were filed during Q2 2024. Half of all I-526E Petitions pending as of the date of this blog were filed just in Q2 of 2024. USCIS has not released any statistics to show the breakdown of I-526E Petitions filed in the high unemployment or rural area set aside categories. Anecdotal evidence from stakeholders and projects seems to show a strong uptick in the demand for rural area projects, and it is possible that many of these new I-526E Petitions were for rural area set-aside visa numbers. More data from USCIS will be required on this point to give investors a more accurate picture on visa wait times in both rural area and high unemployment set-aside projects.

Moreover, the USCIS Q2 2024 data shows that the agency only completed review of 356 I-526E Petitions this fiscal year. The statistics do not break down completions by approvals or denials. Given the small number of case completions during this fiscal year, no visa retrogression has been announced in the Visa Bulletin because an insufficient number of I-526E Petitions have been approved to necessitate announcement of retrogression for any country.

In fact, at a recent conference, the DOS indicated that there is a record amount of EB-5 visas available for this year and predicted again for next year. Specifically, DOS is predicting that there are more than 14,000 unreserved EB-5 visas and more than 8,000 set-aside visas available in FY 2024, and that there will be more than 11,000 unreserved EB-5 visas and more than 6,800 set-aside visas available in FY 2025. Together, that is more than 14,800 set-aside visas over this fiscal year and next, split between rural and high unemployment according to their percentages. This would mean approximately 9,800 rural visas and 4,900 high unemployment EB-5 visas are available over this fiscal year and next, with additional high numbers remaining available in the unreserved EB-5 category. Even assuming that each petitioner also brought two dependent applicants with them to the U.S., the sheer number of EB-5 visas available in these categories over this year and next would provide many immigrant visa numbers for applicants and their dependents in both set-aside categories, and drastic retrogression wait times are not yet predicted.

Additionally, note that the data provided reflects raw numbers of petition filings and does not take into account potential roll overs of additional unused immigrant visas, as noted above. In addition, applicants born in under-subscribed countries, like Vietnam and Taiwan, with robust demand for EB-5 immigrant visas that may qualify for the set-aside category, still have the option to choose to process under the general pool of unreserved EB-5 visa numbers, thereby freeing up additional availability under the reserved high-unemployment and rural TEA set-aside categories for individuals born in mainland China. This selection is typically made at the time that the National Visa Center (NVC) processes the immigrant visa application for applicants based outside of the U.S.

Key Takeaways

  1. There are a record number of EB-5 visas available to applicants in both the high unemployment and rural area set-aside categories in FY 2024 and FY 2025. While stakeholders need more data from USCIS on the breakdowns of pending I-526E Petitions between the high unemployment and rural set-aside categories, there is a record number of visas available and extensive backlogs are not expected to occur like those experienced by pre-RIA I-526 Petitions.
  2. File the I-526E Petition and associated AOS applications concurrently if possible. Although visa numbers remain available in the set-aside categories even for traditionally high-demand countries, the dynamics associated with the DOS Visa bulletin may result in retrogression with little notice. Filing concurrently where eligible can provide multiple benefits in the event of retrogression, including:a. Locking in dependent child’s age under chart A or chart B of the DOS Visa Bulletin, which under the Child Status Protection Act (CSPA) allows for a tolling of age progression while the petition is in process and based on the unavailability of a visa number; and

    b. Obtaining short-term U.S. immigration benefits that allow for work (employment authorization document (EAD)) and travel (advance parole (AP)) while the USICS processes the AOS filing.

  3. Individuals born in under-subscribed countries with qualifying investments in rural or high-unemployment TEAs should consider opting for processing under the general unreserved pool where possible. This would allow for use of additional reserved immigrant visas in the set-aside categories by those born in countries with higher demand for EB-5 immigrant visas, such as China and, potentially, India.
  4. Monitor visa bulletin progression and available government data. It will remain important to continue monitoring Visa Bulletin releases and planning for potential retrogression. As noted above, while the set-aside categories created under the RIA remain broadly available for immigrant visas and concurrent AOS processing, conditions may change with little notice as the government processes its backlog of filed EB-5 petitions or if USCIS speeds up its processing of I-526E Petitions.

[1] INA § 203(b)(5)(B)(i)(I).

[2] See INA § 245(n); 203(b)(5).

[3] See U.S. Dept. of State Visa Bulletin.

[4] See INA § 203(b).

[5] See 88 Fed. Reg. 50, 18252 (March 28, 2023).

[6] See, e.g. “Practice Pointer: Strategic Planning in an Era of EB-5 Visa Waiting Lines,” AILA EB-5 Committee, AILA Doc. No. 18060537, June 5, 2018.

[7] See, e.g., “The CIS Ombudsman’s Webinar Series: USCIS’ Backlog Reduction Efforts,” June 22, 2022 (“DOS currently estimates that approximately 57,000 unused family sponsored visa numbers from FY 2022 have been added to the employment-based limit for FY 2023.”).

[8] See, e.g., “Employment-Based Adjustment of Status FAQs,” USCIS, May 20, 2024 (“DOS determined that the FY 2023 employment-based annual limit was 197,091, due to unused family-based visa numbers from FY 2022 being added to the employment-based limit for FY 2023. In addition, 6,396 EB-5 visas carried over from FY 2022 to FY 2023 in the reserved subcategories.”)

[9] See id.

[10] See “AIIA FOIA Series: Updated I-526E Inventory Statistics for 2023,” American Immigrant Investor Alliance, Feb. 29, 2024.

[11] Id.

[12] See USCIS Quarterly Statistics “All USCIS Application and Petition Form Types (Fiscal Year 2024, Quarter 2).

©2024 Greenberg Traurig, LLP. All rights reserved.

by: Jennifer Hermansky, Jack Jrada of Greenberg Traurig, LLP

For more on EB-5 Filing, visit the NLR Immigration section

Summer, Baseball and H-1B Visa Filings in Full Swing

As summer and baseball season are now in full swing, so is the H-1B filing season. The U.S. Citizenship and Immigration Services (USCIS) completed its initial round of selections on April 1, prompting immigration practitioners and employers to get filings across the home plate by June 30. However, many potential employees are stuck in the dugout, so to speak, unable to get in the game, as they were not selected in the H-1B lottery.

The H-1B visa category provides temporary work authorization to individuals employed in a role involving a specialty occupation. Most commonly known for its restrictive numerical limitations, the H-1B visa category caps the number of new visas issued each year at 65,000, with an additional 20,000 available to graduates of U.S. master’s degree programs. While 85,000 H-1B visa holders would exceed more than twice the occupancy of the Atlanta Braves’ Truist Park, it has become increasingly difficult to obtain an H-1B visa under the current lottery system due to a high volume of submissions, the increased likelihood of fraud, and the number of submissions designed to beat the system.

While the H-1B remains a first choice among U.S. employers for the temporary employment of foreign nationals, many wonder whether it continues to be a game worth playing. Such thoughts have prompted employers to turn to other non-immigrant visa lineups, such as the H-1B1, E-3, TN, and O-1:

H-1B1, Specialty Occupation Workers from Chile or Singapore

The H-1B1 visa is a subcategory of the H-1B category, providing work authorization options to specialty occupation workers from Chile and Singapore. Current laws limit the annual number of qualifying foreign workers eligible to obtain an H-1B1 visa to 6,800, allocating 1,400 for nationals of Chile and 5,400 for those of Singapore.

The greatest advantage of this subclassification is the ability to forego the H-1B visa lottery. Further, the H-1B1 visa does not have a six-year limit. The period of employment is one year, with subsequent extensions available in one-year increments.

E-3, Specialty Occupation Workers From Australia

Applying only to nationals of Australia, the E-3 nonimmigrant visa classification provides another option for specialty occupation workers. Similar to the H-1B1, participation in the annual H-1B lottery is not a prerequisite to admission in E-3 status.

TN, Temporary Workers From Mexico and Canada

Yet another alternative to the H-1B visa is the TN visa, designated for select professionals who are citizens of Canada and Mexico. The U.S. Mexico-Canada Agreement, formerly the North American Free Trade Agreement (NAFTA), provides special economic and trade relationships for the U.S., Canada and Mexico. This classification permits qualified Canadian and Mexican citizens to work temporarily in the U.S. at a professional level. Professions on the list include accountants, engineers, lawyers, pharmacists, scientists and teachers.

Employers focused on expediency surely are interested in this nonimmigrant visa category. Not only does the TN visa forego the H-1B lottery, but it also can circumvent the Labor Condition Application requirement, which is a Department of Labor process requiring approximately seven days.

O-1, Individuals of Extraordinary Ability

The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and received recognition nationally or internationally for such achievements. Those eligible for O-1A classification are individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry).

The O-1B visa category is intended for individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.

Of particular importance, one of the top benefits of an O-1 visa in comparison to an H-1B is the lack of annual limits on the number of O-1 visas issued. Moreover, as numerical caps and a lottery process do not restrict the O-1 visa, the application period is not limited to a specific filing window. Further, unlike some nonimmigrant visa categories, O-1 filings are not restricted by an annual filing period, and the overall cost of the O-1 process can be significantly less.

The O-1 visa category also boasts employer flexibility as the beneficiary does not have to be directly employed by the entity for which they will work, but could work for a U.S. agent. The O-1 also provides significant relief with respect to the potential length of the visa, as this nonimmigrant visa classification offers unlimited one-year extensions of the initial three-year period.

As many potential H-1B employees have not received the call-up, these other nonimmigrant visa categories present viable alternatives.

Tieranny L. Cutler, independent contract attorney, co-authored this article.

© 2024 BARNES & THORNBURG LLP
For more information on H-1B Filings, visit the NLR Immigration section.

United States | H-1B Denial Rates Up Slightly From 2022

H-1B denial rates in fiscal year 2023 increased slightly from FY 2022, according to a National Foundation for American Policy analysis of U.S. Citizenship and Immigration Services data.

Despite the increase, H-1B denial rates for FY 2023 still remain substantially lower than during the Trump administration when they peaked in FY 2018.

Fiscal Year New Employment H-1B Denial Rate
2023 3.5%
2022 2.2%
2021 4%
2020 13%
2019 21%
2018 24%
2017 13%

The low denial rate in recent years is at least in part due to legal challenges that forced USCIS to issue new guidance on the adjudication of H-1B visas in June 2020.

The NFAP analysis stated that “H-1B temporary status remains often the only practical way for an international student or other high-skilled foreign national to work long term in the United States” and said the 85,000 H-1B cap “remains the leading immigration problem for most tech companies.” The report can be read here.

©2024 Berry Appleman & Leiden. All Rights Reserved.
by: BAL U.S. Practice Group of Berry Appleman & Leiden
For more on H-1B, visit the NLR Immigration section.

Domestic Visa Processing – Application Slots Now Available

On January 29, 2024, the Department of State’s stateside visa pilot renewal program began accepting DS-160s for qualifying individuals seeking to renew their existing H-1B visas while they are in the United States. As discussed in our previous blog post about this new program, the program allows individuals in the United States who are renewing an H-1B visa issued by US consular sections in Canada between 1/1/2020 and 4/1/2023 or one issued by US consular sections in India from 1/2/2021 and 9/30/2023 to do so online through the Department’s CEAC website rather than having to travel outside the US to obtain the visa.

Under the pilot program, each week for five weeks the Department will release 4000 application slots—2000 for applicants whose most recent H-1B visa were issued in Canada, and 2000 for those whose most recent H-1B visas were issued in India. If all designated slots are filled before the next week’s allotment becomes available, the Department will lock the portal until the next group is released. Applications can be submitted online at https://travel.state.gov/content/travel/en/us-visas/employment/domestic-renewal.html, where you can also find program FAQs published by the Department of State.

The first group of application slots was released on Monday, January 29. Later groups will be released on February 5, February 12, February 19, and February 26. The program will end when all available slots are filled or on April 1, 2024, whichever happens first.

Listen to this post.

Copyright © 2024, Hunton Andrews Kurth LLP. All Rights Reserved.
For more on Domestic Visas, visit the NLR Immigration section.

USCIS Issues New Policy Guidance for O-1B Visas

United States Citizenship and Immigration Services (“USCIS”) recently issued policy guidance to clarify how to determine the appropriate visa classification for persons of extraordinary ability in the arts. Given the massive changes in the entertainment industry in the past year, including the increasing popularity of internet and streaming services, this guidance provides essential insight for those seeking to understand the nuances of O-1B nonimmigrant visas and determine which visa applies to their unique circumstances.

O-1 Visa Program for Individuals with Extraordinary Ability or Achievement

The O-1 nonimmigrant visa program provides nonimmigrant visas for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who have demonstrated extraordinary achievement in the motion picture or television industry and been recognized nationally or internationally for those achievements.

The O-1 nonimmigrant visa program is broken down into the following classifications:

  • O-1A: Individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry);
  • O-1B (Arts): Individuals with an extraordinary ability in the arts;
  • O-1B (MPTV): Individuals with extraordinary achievement in the motion picture or television industry.

Generally, to qualify for an O-1 visa, a beneficiary must demonstrate “sustained national or international acclaim” in their respective field. To prove this, applicants must provide evidence of their credentials, including national or international awards or prizes, membership in professional organizations in their respective field, published articles in notable trade publications, high salary for their services, as well as other relevant evidence of exceptional expertise.

Under the O-1B category, as noted above, individuals in the entertainment industry can demonstrate either extraordinary ability in the arts or extraordinary achievement in the motion picture and television industry. With the recent shifts in the entertainment industry, including the prevalence of household names from YouTube, TikTok, Instagram, etc., it has become increasingly common for applicants to possess qualities that fall under both the O-1B (Arts) and the O-1B (MPTV) categories.

Determining the Relevant Standard for Artists with Some Connection to MPTV

The USCIS Policy Manual acknowledges the difficulties associated with petitions that have elements of both O-1B (Arts) and O-1B (MPTV) classifications. According to the newly issued guidance, inclusion in the motion picture or television industry is not limited to whether artistic content will air on television or movie screens, noting that “USCIS considers streaming movies, web series, commercials, and other programs with formats that correspond to more traditional motion picture and television productions to generally fall within the MPTV industry’s purview.” Indeed, USCIS gives weight to whether an individual”s work aligns with industry organizations such as the Academy of Television Arts and Sciences.

However, under USCIS guidance, not all television stars are considered equal for the purpose of visa qualification. For instance, reality television poses an interesting problem because many of the “stars” are non-actors involved in a competition of some sort that takes place on television. According to USCIS, contestants on reality television programs fall outside of the MPTV industry, but judges, hosts, and those employed by the production company generally fall within industry parameters.

Video blogging, a staple of the increasingly popular YouTube and TikTok platforms, poses similar questions. However, USCIS makes clear that static web content, like video blogs, generally falls outside the O-1B (MPTV) classification and is more appropriate for O-1B (Arts) petitions. USCIS notes that if an artist’s work or appearance on an MPTV production is incidental to their non-MPTV work as an artist, the MPTV classification may not be appropriate.

Guidance for O-1B Visas

The newly-issued guidance provides some clarification of the nuances that distinguish O-1B (Arts) beneficiaries from O-1B (MPTV) beneficiaries. Potential beneficiaries and practitioners can continue to consult the USCIS Policy Manual for up-to-date guidance in this quickly changing industry.

Article By Raymond G. Lahoud of Norris McLaughlin P.A.

For more immigration legal news, visit the National Law Review.

©2022 Norris McLaughlin P.A., All Rights Reserved

New USCIS Policy Guidance Alters Criminal Sentence Evaluation, Clarifies Definition of “Good Moral Character”

U.S. Citizenship and Immigration Services (USCIS) recently adopted new policy guidance altering the way immigration officers evaluate criminal sentences and make good moral character determinations. These changes may impact a foreign national’s eligibility for certain immigration benefits, including admissibility as a visa holder, permanent resident, or naturalized citizen.

USCIS’s recent policy guidance changes include the following:

Post-Sentencing Charges

What changed?

USCIS incorporated into policy Attorney General William Barr’s recent decision in Matter of Thomas and Thompson that, for immigration purposes, the relevant term of imprisonment or sentence for a criminal act will generally be the original sentence imposed by a state court.

What’s the impact?

Where a state court order subsequently modifies, clarifies, or vacates the original sentence, the new term of imprisonment or sentence will only be relevant for immigration purposes if the change was due to a procedural or substantive defect in the underlying criminal proceeding. If such a change was based on other considerations—such as rehabilitation or the avoidance of immigration consequences—the original sentence will still be considered for purposes of immigration decisions.

DUI Convictions

What changed?

USCIS also incorporated into policy the attorney general’s decision in Matter of Castillo-Perez that two or more convictions for driving under the influence (DUI) during the relevant lookback period may affect a foreign national’s good moral character determination.

What’s the impact?

Convictions for multiple DUIs will likely prompt an assessment by USCIS to determine whether the foreign national is a “habitual drunkard,” which would statutorily preclude him or her from possessing good moral character under the immigration regulations. Further, evidence of rehabilitation subsequent to two or more DUI convictions is insufficient on its own to rebut the presumption that a foreign national lacks the required showing of good moral character. Rather, the foreign national must provide evidence that good moral character was sustained for the entire lookback period, even at the time of the DUI convictions.

Conditional Bars for Unlawful Acts

What changed?

USCIS expanded its policy guidance to provide examples of unlawful acts that may prevent a foreign national from meeting the good moral character requirement for certain immigration benefits. The agency also emphasized the discretion of immigration officers to determine if the commission of an unlawful act reflects negatively on a foreign national’s moral character, and whether there were any extenuating circumstances involved.

What’s the impact?

Immigration officers may look to an expanded list of unlawful acts recognized as a bar to good moral character, including but not limited to:

  • failure to pay or file taxes;
  • false claim to U.S. citizenship;
  • falsification of records;
  • unlawful registration to vote; and
  • unlawful voting.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

For more USCIS policy guidance, see the National Law Review Immigration Law page.

Social Media Scrutiny on Visa Applications

On May 31, 2019, the Department of State added new questions to Forms DS-160/DS-156 Nonimmigrant Visa Application and Form DS-260, Immigrant Visa Application. These additional questions require the foreign national to disclose social media platforms they have used within the past five years, as well as provide their username(s) for each platform. Passwords for these accounts do not have to be disclosed and should not be provided. Additional questions request the visa applicant’s current e-mail and phone number, in addition to contact information for the previous five years. If applicants are unable to recall precise details, they may insert “unknown,” but should be prepared for the possibility of additional screening during the visa process. Please note, this a question that must be answered as fully as possible by the Foreign National. Not providing the requested details could result in denial or quite possibly the denial of subsequent immigration applications.

Forms DS-160/DS-156 and DS-260 are the online applications used by individuals seeking a nonimmigrant or immigrant visa from the U.S. Department of State. Completion of the forms is the first step in the process with the Department of State, and must be submitted before scheduling and attending the visa interview. The Department of State has stated that the changes are intended “to improve … screening processes to protect U.S. citizens, while supporting legitimate travel to the United States,” as well as “vetting … applicants and confirming their identity.”

Further, on September 4, 2019, the Department of Homeland Security proposed a federal rule to add similar social media questions to several forms, including the applications for naturalization, advance parole, adjustment of status, asylum, and to remove conditions on permanent residents, along with many others. Additionally, applicants for the Electronic System for Travel Authorization (ESTA) and the Electronic Visa Update System (EVUS), used for frequent international travel, are included in the proposed rule.

These changes stem from the President’s March 6, 2017 Executive Order, requesting heightened screening and vetting of visa applicants. The March 2017 Executive Order requested that the Secretary of State, the Attorney General, the Secretary of Homeland Security and the Director of National Intelligence create “a uniform baseline for screening and vetting standards and procedures.” The addition of the social media and contact information requirements to these application forms is part of the Department of State’s response to that Order. This represents a step up for the Department of State, which previously only asked that applicants voluntarily provide their social media information.

An individual’s social media content can be easily taken out of context, even more so when the postings are from long ago and/or are in a foreign language. Social media also provides an individual’s history of contacts, associations and preferences. While much (justifiable) concern has been expressed about the scrutiny of foreign nationals’ associations and political speech, many social media platforms and the posts thereon will provide information on a foreign national’s employment history and residency. Employment history and residency information can be particularly relevant in employment-based nonimmigrant and immigrant visa applications, such as the H-1B, L-1A and I-140 petitions. These details can also be very important in that the Department of State can use them to compare the information on social media to the information contained in the visa applications. Any discrepancies in that information can lead to difficulty in successfully obtaining both nonimmigrant and immigrant visas. Possible discrepancies can lead to delays in processing, requests for additional information, increased scrutiny in other areas of the application and even denial.

Additionally, many individuals do not keep their social media accounts up to date. As the requested information covers the last five years of the applicant’s social media history (including those accounts that may be closed at the time of the application) information is likely to be out of date, incomplete and out of context. Further, the tendency to embellish employment history or to inadvertently misstate employer information (e.g., indicating Company A as the employer while actually working for placement agency Company B that has been assigned to Company A) can work against an applicant. Both of these scenarios can result in the Department of State obtaining information contradictory to the nonimmigrant or immigrant form and can create obstacles to obtaining the desired visa.

Accordingly, it is imperative that foreign nationals are cognizant of the information they are posting on their social media accounts regarding their residency and employment history, paying particular attention that information contained on the social media platforms is consistent with the information contained in the visa applications.

© 2019 Vedder Price

For more on visa application requirements, see the National Law Review Immigration Law section.

USCIS Will Begin Accepting Cap-Subject H-1B Petitions for Fiscal Year 2020 on April 1, 2019

U.S. Citizenship and Immigration Services (USCIS) will accept new H-1B petitions subject to the annual quota for fiscal year 2020 (FY 2020) starting April 1, 2019. Employers should identify any current or future employees who may require new H-1B visas to work in the United States. Individuals currently holding F-1 student visas, individuals seeking to change to H-1B status from another visa status (such as L-1, TN, O-1, or E-3), and individuals outside the United States likely will require cap-subject H-1B petitions to be filed on their behalf.

Overview of the H-1B Visa Program

The H-1B visa program permits U.S. companies to employ foreign nationals in specialty occupations. A “specialty occupation” is a position that requires the theoretical or practical application of a body of highly specialized knowledge, such as that of an engineer, economist, or scientist. The specialty occupation must require a bachelor’s degree or higher (or its foreign equivalent) in a specific field.

The number of new H-1B visas available on an annual basis is subject to limitations for each fiscal year. Currently, the annual limit is 65,000 visa numbers per year with an additional 20,000 available to H-1B applicants who possess advanced degrees from U.S. academic institutions. Of the 65,000 available H-1B visas, 6,800 are reserved for citizens of Chile and Singapore. Due to the cap, employers will want to plan far in advance and file their cap-subject petitions as early as possible to help ensure they have the best chance to secure H-1B status for the next fiscal year.

When USCIS receives more cap-subject H-1B petitions than the annual fiscal year limitation, USCIS conducts a computer-generated random lottery selection process. The first lottery is limited to individuals who possess advanced degrees from U.S. academic institutions. If a qualifying advanced degree holder is not selected in this first lottery, his or her petition will be rolled into a second lottery for the regular H-1B cap.

Cap-subject petitions that have not been selected in the lottery will be returned with the U.S. government filing fees. Once the number of available H-1B visas has been fulfilled, USCIS will not accept or approve any additional cap-subject H-1B petitions until the filing period for the next fiscal year opens.

Cap-Exempt Petitions

Some H-1B petitions are exempt from the annual fiscal year limitation, including (1) H-1B petitions that are filed to extend or amend H-1B employment for foreign workers who are already in H-1B status and (2) petitions filed on behalf of new workers to be employed in H-1B status by institutions of higher education or related nonprofit entities, nonprofit research organizations, or government research organizations.

How to Prepare for the FY 2020 H-1B Cap

The annual fiscal year cap for H-1B visas is typically reached within the first week of filing. Because the number of cap-subject H-1B petitions that will be filed by employers for FY 2020 is uncertain, employers will want to mail all cap-subject H-1B petitions early within the filing window. The first day to mail FY 2020 cap-subject petitions will be March 29, 2019, for delivery to USCIS on April 1, 2019, which is the first day of the filing period. Employers should immediately begin identifying individuals for whom H-1B sponsorship will be needed to allow sufficient time for H-1B petition preparation.

In preparing FY 2020 H-1B petitions, employers should keep in mind the time required to file and receive certification of a Labor Condition Application (LCA). The LCA is a prerequisite to a properly filed H-1B petition. As part of the LCA, employers must attest that they will pay the H-1B worker the higher of the prevailing wage or actual wage for the position in the geographic area of intended employment. The LCA is then submitted to the U.S. Department of Labor, which can take up to 10 days to certify the application. Employers should keep this processing time in mind to ensure timely approval of an LCA. Timely filing and approval of an LCA will help ensure that an employer is best positioned to mail the H-1B cap-subject petition on March 29, 2019, for delivery to USCIS on April 1, 2019.

Employers can take action now to initiate cap-subject H-1B petitions.

 

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Administration Considering New Rule on Lawfully Present Immigrants Who Use Public Benefits?

The Trump Administration reportedly is considering a new rule that would make it easier for the government to deny visas to individuals on “public charge” grounds. This has drawn the criticism of many New York legislators.

The Administration may have been contemplating the move for a while. In January 2017, when the first travel ban was implemented, the Administration reportedly had been working on a draft executive order meant to fulfill some of President Donald Trump’s campaign promises based on the assumption that “households headed by aliens (legal and illegal) are much more likely than households headed by native-born citizens to use federal means-tested public benefits.” That executive order was never signed and never formally released.

More than 70 New York State legislators, headed by Assemblyman Andrew D. Hevesi, sent a letter to Trump on June 8, 2018, opposing the proposed rule because they would “fundamentally and negatively alter who we are as a nation, directly threaten the health and well-being of millions of New Yorkers, and impose a significant economic burden on [New York].”

Under current regulations, the government may deny individuals seeking visas or permanent resident status if they likely will become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” That cash assistance includes Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and state or local cash assistance programs known as “general assistance.” However, according to the USCIS Fact Sheet, simple receipt of those benefits does not necessarily lead to a public charge determination. “Each determination is made on a case-by-case basis in the context of the totality of the circumstances.” USCIS would not consider many government programs, including Medicaid, Children’s Health Insurance Program (CHIP), housing benefits, and unemployment compensation, among many others, in making public charge determinations.

Reportedly, under the proposed changes, programs not previously considered in making a public charge determination will be considered, including:

  • Certain health care subsidies

  • Some educational benefits, including Head Start

  • Affordable Care Act subsidies

  • Food Stamps, now known as Supplemental Nutrition Assistance Program (SNAP)

  • Women, Infants and Children assistance (WIC)

  • CHIP

  • Certain housing benefits

  • Transit vouchers

The New York legislators noted that immigrants, including those with U.S. citizen children, might stop enrolling in healthcare programs to preserve their ability to obtain immigration benefits. “It is not difficult to imagine the dire outcome for New York of hundreds of thousands of children disenrolling from health insurance benefits,” they observed.

The proposal has not yet been approved by Secretary of Homeland Security, Kirstjen Nielsen. The New York legislators have urged the Administration “to reject outright this ill-advised change in policy and recognize that this nation is not strong in spite of immigration; it is strong because of immigration.” States with large immigrant populations (such as New York and California) would be particularly affected by any change.

A Migration Policy Institute study found that almost half of noncitizens legally in the U.S. could be affected by the proposed rule – only three percent are affected by the current rule. Moreover, studies have shown that native-born Americans use public benefits at roughly the same rate as the foreign-born population.

Jackson Lewis P.C. © 2018
This post was written by Enrique Alberto Maciel-Matos of Jackson Lewis P.C.
Read more Immigration news on the National Law Review’s Immigration Page.

Foreign Entrepreneurs – The Facts

The United States has long been attractive to foreign entrepreneurs due to the county’s historically open marketplaces and tolerance for new ideas and new products. Foreign entrepreneurs have come to the United States in many different ways; however, there is still no direct “entrepreneur visa” or immigration status for entrepreneurs looking to come to the United States in order to grow a U.S.-based business enterprise. On this account, oftentimes foreign entrepreneurs will run into roadblocks while in the United States as they seek to both grow their businesses and obtain and maintain lawful immigration status.

More so, with global competition growing, the United States is no longer the default stop for the best and the brightest to set up their shops—in fact, numerous studies have shown that a growing number of would-be entrepreneurs are choosing to start and run their business elsewhere due to financial and societal incentives. Other countries are seeking to prevent their native entrepreneurs from leaving as nations such as China and India set up policies to dissuade would-be entrepreneurial immigrants from leaving their home countries.

Legal Avenues for Foreign Born Entrepreneurs

Entrepreneurial Parole

On January 17, 2017, the Department of Homeland Security (DHS) published a final rule establishing a parole program for international entrepreneurs seeking to improve the ability of certain startup founders to remain in the United States legally in order to grow their companies and help create new jobs for U.S. workers.

On July 11, 2017, less than a week before the final rule was set to take effect, DHS delayed the implementation of the rule, foreshadowing that it would seek to rescind the rule altogether pursuant to an Executive Order (EO) signed by the President on January 25, 2017. DHS originally estimated that approximately 3,000 entrepreneurs will be eligible to apply under this rule annually. If the rule is allowed to take effect, these entrepreneurs would then be granted a stay of up to 30 months, with the possibility of an additional 30-month extension if they meet certain criteria, in the discretion of DHS.

As there are currently limited visa options for international entrepreneurs, this rule would create an avenue in our immigration system for innovators and allow entrepreneurs the opportunity to establish new businesses in the United States, contribute to the economy, and help maintain the United States’ competitive edge in the world marketplace of ideas.

E Visas

Some entrepreneurs may be eligible for an E visa, which is a visa category reserved for nationals of certain countries that have treaties with the United States. Specifically, there is the E-1 and the E-2 visa category—E-1s can be for foreign nationals who conduct “substantial trade” between the United States and their home country, while E-2s can be for foreign nationals who come to the United States in order to develop and direct the operations of an enterprise in which they have invested a “substantial amount” of capital. Also, the E visa applicant must control at least 50% of the company.

E visas are nonimmigrant visas, meaning that they are by nature “temporary”; however, there is no limit to the amount of extensions an applicant may be eligible for, and, in certain instances, it can lead to permanent residence (i.e., a green card).

H-1B Visas

Although most people probably don’t think of the H-1B visa as an “entrepreneurial visa,” with proper planning and advice the H-1B visa category can be a viable option for an entrepreneur looking to start their own company and invest in the United States. For USCIS to grant an individual an H-1B visa they must demonstrate that there is a valid “employer-employee” relationship; this can be an issue with entrepreneurs since they are more often than not their own bosses and therefore will have trouble establishing the requisite employer-employee relationship between themselves and their companies. Even so, one option for the entrepreneur would be to set up an independent board of directors for their company that can exercise control over the entrepreneur’s employment. This requires extremely careful planning and oversight and the assistance of competent counsel. Also, the fact that H-1B visas are statutorily capped at 85,000 per year makes this visa category less appealing for entrepreneurs.

EB-5 Investor Visas

The EB-5 program is a statutory program that allows for investors to obtain conditional permanent resident status (and eventually full permanent resident status) based on a qualifying investment of between $500,000 and one million dollars. The required investment amount is dependent on the type of program in which the investor is participating (whether it be participating in a USCIS-designated regional center, investing in Targeted Employment Area, or direct investment in a new or existing company); however, in any scenario, in order for the investor to eventually obtain their full-fledged permanent residency, they must be able to create at least 10 U.S. jobs within two years. If the investment is successful after the initial 2 year trial period, then the investor may apply for their permanent green card with USCIS.

EB-2 National Interest Waiver

Certain foreign nationals may be eligible for permanent residency pursuant to the National Interest Waiver (NIW) provision of the Immigration and Nationality Act (INA) if they either: (1) are members of the profession holding an advanced degree (or their equivalent); or (2) possess exceptional ability in the arts, sciences, or business, and they will “substantially benefit the national economy, cultural or educational interests, or welfare of the United States.” In most cases, such workers are also required to obtain a Labor Certification from the Department of Labor (DOL) prior to filing their petition with USCIS; however, the INA gives USCIS the authority to waive the Labor Certification requirement, in their discretion, if it is determined that it would be in the national interest to do so. More so, NIW cases allow for so-called “self-petitioners” (meaning that no job offer or employee sponsor is required), which is uncommon in U.S. immigration law. These features therefore make this category extremely desirable as it allows for both skipping the tedious and pedantic Labor Certification process and for petitioning without the sponsorship of an employer (something that is ideal for an entrepreneur seeking to start their own business in the United States).

When a foreign national’s work will be deemed to be in the “national interest” is subject to a three-part test, which includes: (1) the foreign national’s proposed endeavor has both substantial merit and national importance; (2) the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus a labor certification.  This new standard—which was announced in early 2017—is less demanding than the old standard, but will still undoubtedly provide challenges to immigrant entrepreneurs seeking to utilize the category.

Conclusion

As seen above, there are several solid options for immigrant entrepreneurs seeking to enter the United States in order to start, manage, and run their own businesses. However, petitioning the United States government for any sort of immigration benefit is a complex process which requires competent counsel, proper planning and close oversight.

 

© Copyright 2018 Murtha Cullina
This post was written by Michael J. Bonsignore of Murtha Cullina.
Read more on Immigration Matters at the NLR’s Immigration Page.