EB-5 Investor and Three Other Popular Immigration Programs Set to Sunset September 30 Unless Reauthorized by Congress

September 4th, 2015

Once again we are at that time of year when four popular programs – the EB-5 “Regional Center” Visa Program, the Conrad 30 Waiver Program for Foreign Physicians, the E-Verify Electronic Employment Verification Program, and the Religious Workers Immigrant Visa Program – will sunset unless reauthorized by Congress. All four programs have been extended numerous times, but often at the last minute and without any change. This year, as in the past, the climate surrounding any kind of immigration legislation makes reauthorization – never mind change to the programs – uncertain and complex.  Let’s take a look at the EB-5 and the Conrad Waiver programs.

EB-5 Program

The EB-5 program has received significant negative criticism over the past several years; many believe the program needs major changes including increasing the minimum investment, addition of integrity provisions, and redefining the certain provisions, including what is a targeted employment area (TEA).  As of this writing, parallel efforts to extend the program are underway in both chambers of Congress.

In the U.S. House of Representatives, two bills have been introduced.  The first, H.R. 616, the “American Entrepreneurship and Investment Act of 2015” would, in part:

  • make the Regional Center program permanent;
  • require EB-5 petition adjudication within 180 days;
  • exempt spouses and children of EB-5 immigrants from EB-5 admissions limits;
  • authorize concurrent adjustment of status filing;
  • eliminate the per-country limit for employment-based immigrants and increase the per-country limit for family-based immigrants.

The second bill, the “EB-JOBS Act of 2015,” would:

  • extend and reform the EB-5 program;
  • create a new green card category for entrepreneurs who establish start-up businesses;
  • create a new green card category for certain treaty investors who have maintained their status for 10 years;
  • create a renewable reserve of 10,000 EB-5 visas upon exhaustion of the initial 10,000.

In the U.S. Senate, S. 1501, “American Job Creation and Investment Promotion Reform Act of 2015,” would, in part:

  • reauthorize the Regional Center program for 5 years;
  • increase the minimum TEA investment from $500,000 to $800,000 and non-TEA minimum investment from $1 million to $1.2 million;
  • eliminate state authority to certify TEAs;
  • limit high unemployment areas/TEA to a single census tract; and
  • create several different restrictions on indirect job creation calculations.

It is expected that these legislative efforts will combine at some point to fast-track an extension so that Congress can take a vote when members return to Washington after the August recess.

Conrad 30 Waiver Program

The Conrad 30 Program permits each state to support up to 30 foreign physicians for a waiver of the J-1 two-year home residence requirement that attached to the foreign physician’s visa status in exchange for the doctor’s two-year service in a medically underserved area in the United States.

A bill introduced in the Senate, S. 1189, “Conrad State 30 and Physician Access Act,” would:

  • remove the sunset provisions;
  • clarify requirements of the physician National Interest Waiver classification; and
  • make technical fixes, including confirming the ability of J-2 spouses to change status to classifications other than H-4.

NVC Corrects Erroneous Letters Indicating Possible Termination of Immigrant Visa Applications

September 4th, 2015

In July some visa applicants received e-mails from the National Visa Center (NVC) indicating that proceedings to terminate their immigrant visa application would commence, or that the application was being terminated for failure to contact the NVC within one year of notification of the availability of a visa, even when the individual or the attorney contacted the NVC within the one-year period. The NVC has since advised that is correcting the issue and is sending affected applicants a follow-up e-mail to let them know that their case is still in process, and that they should disregard the e-mail previously received.

Further clarification on the best process for reopening an erroneously terminated application is expected. A similar issue arose last year.

Certain DACA Recipients with Three-year EADS Must Return Them to USCIS

August 28th, 2015

In response to the injunction challenging President Obama’s executive action on immigration (Texas v. United States), USCIS is taking extreme measures to retrieve three-year employment authorization documents (EADs) issued to DACA recipients in violation of the court’s order even though the recall only applies to recipients who received the card after February 16, 2015. Such steps included making home visits to obtain the cards. There are more than 100,000 other DACA recipients with valid three-year EADs who do not need to return them.

As of August 5, 2015, USCIS has accounted for over 99 percent of the approximately 2,600 identified invalid work permits requiring return. USCIS sent multiple letters to such recipients warning them that they must return the EAD by July 17, 2015.  Failure to return the invalid EAD without good cause, USCIS warned, may affect the recipient’s deferred action and employment authorization. Indeed, USCIS reports that 22 recipients failed to respond to the recall, and their DACA has been terminated.

Meanwhile, the DHS Inspector General found no evidence that USCIS deliberately violated the court’s injunction when it issued the three-year EADs after the court enjoined the November 2014 executive actions on immigration.

New I-129 Form Work Visas Goes Into Effect May 1

March 19th, 2015

USCIS released a new Form I-129 Petition for Nonimmigrant Worker, that is visually and substantively different from the prior edition. The new form, containing an edition date of 10/23/14, includes a number of new attestations that must be made by the preparer. The new form is required for all filings received by USCIS on May 1, 2015 and thereafter. (USCIS had previously announced that the new forms would be required as of 2/23/15 but moved the effective date until after the H-1B filing season.)

News in Brief

February 28th, 2015

The following additional items may be of interest to our readers:

TPS Designation for Liberia, Guinea, and Sierra Leone: As a result of the recent outbreak of Ebola in West Africa, the DHS has designated Liberia, Guinea, and Sierra Leone for Temporary Protected Status (TPS). The designation is effective for an 18-month period from November 21, 2014, through May 20, 2015. Eligible nationals from these three countries may apply for TPS if they are already in the U.S.; if TPS is granted, they will not be removed from the U.S. and will obtain work authorization.

TPS Extended for Nationals from Nicaragua and Honduras: DHS extended the designation of Nicaragua and Honduras for Temporary Protected Status (TPS) for 18 months from 1/6/2015 through 7/5/2016.

New NIV I-129 Petition Form Must be Used after Feb. 24: USCIS recently released a new Form I-129, Petitioner for a Nonimmigrant Worker, containing an edition date of 10/23/14. USCIS currently accepts I-129 forms with the new 10/23/14 edition date — as well as editions dated 10/07/11, 01/19/11, and 11/23/10 — until May 1, 2015. However, after May 1st, USCIS will only accept the 10/23/14 edition.

California Driver’s Licenses for Undocumented Immigrants: Beginning January 1, undocumented immigrants will be able to apply for California driver’s licenses, thanks to AB60, which Governor Brown signed into law in 2013. This AB60 driver’s license will have a visible distinguishing feature and will subject cardholders to certain federal limits, such as entering restricted federal facilities. Further information is available on California’s DMV site.

DNA Evidence Not to Be Afforded Evidentiary Weight to Sibling to Sibling Relationships: A policy memo stating that because probability standards for sibling-to-sibling DNA test results have not been established, USCIS may not afford evidentiary weight to sibling-to-sibling DNA test results. USCIS will, however, continue to rely on DNA testing results between parents and children.

USCIS Approves 10,000 U Visas for Sixth Straight Fiscal Year: USCIS has approved the statutory maximum of 10,000 petitions for U-1 nonimmigrant status for FY2015. The agency announced that it will continue to review pending petitions for eligibility and notify eligible individuals that they are on a waiting list. USCIS will resume issuing U visas on Oct. 1, 2015. U visas are available for victims of certain qualifying crimes who have suffered substantial mental or physical abuse and are willing to help law enforcement authorities investigate or prosecute those crimes.

New Policy Announcement on the Effect of Assisted Reproductive Technology (ART) Immigration

February 25th, 2015

USCIS and DOS have recently collaborated in the development of a new policy on the effect of assisted reproductive technology (ART) on immigration and acquisition of citizenship. In an October 28 announcement, the agencies stated that a non-genetic gestational mother (person who carried and gave birth to the child) who is also the child’s legal mother may be recognized in the same way as genetic legal mothers are treated under the immigration laws. Previously, a genetic relationship with a U.S. citizen parent was required in order for a child born abroad to acquire citizenship at birth through his or her parent. Under the new policy:

(1)     a “natural mother” or “natural father” is a genetic parent or gestational parent. Accordingly, the “natural mother” of a child born out of wedlock includes a non-genetic gestational mother if she is the legal parent at the time of birth.

(2)     A gestational mother has a petitionable relationship without a genetic relationship to the child, as long as she is also the child’s legal parent at the time of birth.

(3)     A non-genetic gestational legal mother who is a U.S. citizen may transmit citizenship at birth, or after birth, when all other pertinent citizenship and naturalization requirements are met.

DHS To Implement Haitian Family Reunification Parole Program

February 20th, 2015

DHS announced in mid-October that starting in early 2015 it will implement the Haitian Family Reunification Parole (HFRP) program to expedite family reunification for certain eligible Haitian family members of U.S. citizens and lawful permanent residents.

Under this program, USCIS will offer certain eligible Haitian beneficiaries of already-approved family-based immigrant visa petitions, who are currently in Haiti, to be paroled into the United States up to approximately two years before their immigrant visa priority dates become current. The program is intended to promote “a fundamental underlying goal of our immigration system — family reunification” and “supports broader U.S. goals for Haiti’s reconstruction and development by providing the opportunity for certain eligible Haitians to safely and legally immigrate sooner to the United States.” Furthermore, the program is designed to discourage individuals in Haiti from undertaking life-threatening maritime journeys to the United States.  DHS advises that such individuals will not qualify for the HFRP program, and, if located at sea, may be returned to Haiti.

USCIS is not currently accepting HFRP program applications, and potential beneficiaries should not take any action at this time. Full program details are expected soon.

DOS Launches In-Country Refugee/Parole Program for Children in El Salvador, Guatemala, and Honduras Who Have Parents Lawfully Present in the United States

February 18th, 2015

In an effort to better manage and stem the tide of unaccompanied minors crossing the southern border to reunite with their parents, on December 3 the Department of State (DOS) launched an in-country refugee/parole program in El Salvador, Guatemala, and Honduras. The program will allow certain parents who are lawfully present in the United States to request access to the U.S. Refugee Admissions Program for their children still in one of these three countries. Children who are found ineligible for refugee admission but still at risk of harm may be considered for parole into the U.S. on a case-by-case basis. DOS also advises that, under certain circumstances, if the second parent resides with the child in the home country and is currently married to the lawfully present parent in the U.S., the second parent may be added to the child’s petition and considered for refugee status, and, if denied refugee status, for parole.

Applications for this program may be initiated by a lawfully present parent in the United States. The form (DS7699), however, must be filed with the assistance of a designated resettlement agency that works with the DOS Bureau of Population, Refugees, and Migration to help resettle refugees here. In addition to medical and security screening, DNA relationship testing will be required to confirm the biological relationship between the parent in the United States and the in-country child. While parents do not need to pay any fee to file the form or for assistance in completing and submitting it, they are expected to cover the initial costs of DNA testing. (Costs for DNA testing are reimbursable under certain circumstances.) There are some 350 resettlement agency affiliates in more than 180 communities throughout the United States. Additional information about the program, as well as a list of the resettlement agency affiliates that can assist with filing Form DS7699 can be found on the Central American Minors page on the Refugee Processing Center website (www.wrapsnet.org/CAMProgram/tabid/420).

It is anticipated that relatively few children from Central America will be admitted to the United States as refugees in FY 2015, given the anticipated December launch and the length of time it takes to be processed for U.S. refugee admission. Any child or parent admitted as a refugee will be included in the allocations prescribed for the Latin America/Caribbean regional, which is 4,000 for FY2015. If needed, there is some flexibility within the U.S. Refugee Admissions Program to accommodate a higher-than-anticipated number from Latin America in FY2015.

PERM Business Necessity: DOL Offers Guidance on Burden to Prove

February 13th, 2015

Recently, the Office of Foreign Labor Certification (OFLC) has been issuing a number of audit requests for PERM applications that require proving the business necessity of job duties or requirements. Fortunately, the OFLC has released a directive to help clarify what kinds of documents can help meet the standard of review. There are generally two issues that should be addressed to show the business necessity of a listed job duty or requirement: that it is a normal requirement in the industry, and that it is essential to the position. Common documents used to show business necessity include: employer or expert statements describing how the duty or skill relates to the business and showing that it is a typical requirement in the industry. Additionally, résumés from current or past employees in the position can show the employer has required this in the past, and that past employees have met the requirements. Moreover, evidence from other employers in the industry — such as job advertisements or résumés from people in the same position — can help show that they also require the minimum duties or skills requested. Business plans or contracts can demonstrate that the job duty or requirement is essential to the business. Finally, a statement from an employer explaining the negative impacts on the business can help convince an analyst of the necessity of the requirements.

Also keep in mind that the job must be a permanent, full-time position and cannot be finite or contracted. Employers are advised to prepare an anticipated audit response, including a business-necessity argument addressing both the industry standard and the position.

U.S. and China Extend Visa Validity Period for Business Travelers, Tourists, and Students

December 31st, 2014


On November 12, the United States and the People’s Republic of China began to reciprocally increase the validity of short-term business and tourist visas and student and exchange visas issued to each other’s citizens. Chinese applicants who qualify for B-1 or B-2 nonimmigrant visas may now be issued multiple-entry visas for up to 10 years for business and tourist travel. Qualified Chinese students and exchange visitors and their dependents who qualify for F, M, or J nonimmigrant visas are now eligible for multiple-entry visas valid for up to five years or the length of their program. U.S. citizens eligible for Chinese short-term business and tourist visas should also receive multiple-entry visas valid for up to 10 years, while qualified U.S. students may receive student residency permits valid up to five years, depending on the length of their educational program. All qualified dependent family members of students and exchange visitors will also be eligible for these same increases in visa validity.

The same standards of eligibility for a U.S. visa will apply as before the extension in validity, and the change in visa validity does NOT change the permitted duration of stay for any other visa class. Applicants with previous visas still will be eligible to apply for visa renewal via the Interview Waiver Program. The changed visa validity will not change visa application fees.

One should note that existing visas will be valid only until the expiration date printed on the current visa. This extension does NOT increase the validity of visas already issued. To obtain a visa with extended validity, holders of valid or recently expired visas will need to apply again.