Status of the EB-5 Regional Center Program in January 2022

 

Six months have passed since the EB-5 Regional Center Program (“Program”) expired and Congress has still not taken any steps towards its renewal.  Originally enacted in 1993, the Program was a pilot, or test, program and was never made permanent.    The Program had been extended on a regular basis for 28 years until June 30, 2021 when it lapsed without extension.

As a result of the lapse, tens of thousands of investors and their family members are without any visa category (I5 and R5) to process their immigrant visas and obtain conditional permanent residence.

The original EB-5 visa category, commonly referred to as “EB-5 Direct”, was signed into law in 1990.  It is permanent law and remains available.   Any investor that made an investment into a new business which can show at least 10 jobs were or are likely to be directly created by his or her investment can still qualify for their “Direct” EB-5 visas.

Unfortunately for approximately 97% of EB-5 investors – those who participated in the Program – there is no clear relief in sight. While it is rumored that the Program will be reinstated in February when the U.S. Federal budget is extended, this is mostly EB-5 stakeholder’s wishful thinking and reaching for hope. This is amplified by many stakeholders, mostly immigration agents that receive fees from EB-5 businesses, and EB-5 regional center businesses that have a financial interest to keep potential investors focused on the possible future reinstatement of the Program and not decide to invest into a business that would qualify them for EB-5 Direct. The same rumors circulated before the end of the U.S. fiscal year on September 30, 2021, and again when the U.S. Federal budget was extended to December 2021.   Sadly, there are strong differences of opinion among members of Congress whether the Program should return, and strong differences of opinion among stakeholders about in what form it should return.

I personally think there will not be consensus, and as a result, there will not be a new Program this February.

A silver lining is that there is strong support for a special law that would help all investors and family members who made an investment before the expiration of the Program.  There is at least one group that is working to submit a bill in Congress that would do this.

Some would argue that those investors who decided to invest under the Program knew the risk that it may not be extended.  While that is true, to offer an immigrant investment visa program designed to attract billions of dollars of investment into the U.S., then accept applications for investors to immigrate, and then deny them that benefit because a few individual Congressmen do not like the program, is un-American.   The U.S. should honor its commitment to these foreign national investors who risked making a considerable investment to obtain the “American Dream”.

I am of the opinion that sometime soon in 2022 such a bill will be passed into law, so if you are an investor waiting, hopefully the wait will not be much longer.

If you have questions about the EB-5 immigrant investor visa and the Program, contact us at info@enterimmi.com and speak with a U.S. immigration attorney in Ho Chi Minh City, Manila, and Taipei.

 

Copyright 2022. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of Enterline Immigration only.

DHS Drops Appeal of the U.S. District Court’s ruling in Behring Regional Center LLC v. Mayorkas

 

On January 5, 2022, the Department of Homeland Security (“DHS”), on behalf of the United States Citizenship and Immigration Services (“USCIS”), filed a motion to dismiss its appeal of a U.S. District Court’s ruling in the case Behring Regional Center LLC v. Alejandro N. Mayorkas, et al. (“Behring v. Alejandro”).

In the case of Behring v. Alejandro, on June 22, 2021, the U.S. District Court of the Northern District of California issued an order vacating the 2019 EB-5 Immigrant Investor Program Modernization Final Rule (“Rule”), holding that it and the regulations enacted by the Rule were invalid.  The most important impact for prospective EB-5 investors was that the minimum investment made in a Targeted Employment Area (“TEA”) returned to US$500,000 and investments made in non-TEAs reverted to US$1 million.

On August 23, 2021, DHS appealed the U.S. District Court’s decision in favor of Behring Regional Center.   The DHS motion to dismiss ends the appeal and clears up a lingering concern whether USCIS will adjudicate I-525 Petitions filed since the Court ruling and according to the pre-November 2019 regulations.

While other concerns about the EB-5 program remain, this is good news for those who are considering moving ahead with making an investment to immigrate to the United State via the EB-5 immigrant investor visa.

If you would like to learn more about EB-5 as an option for you and your family, you can contact us today at info@enterimmi.com and speak with a U.S. immigration lawyer in Ho Chi Minh City, Manila and Taipei.

 

Copyright 2022. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of the Enterline Immigration only.

USCIS Once Again Extends Flexibility for Responding to Agency Requests

 

In response to the COVID-19 pandemic, U.S. Citizenship and Immigration Services (“USCIS”) is again extending the time period within which applicants, petitioners, and requestors may respond to agency requests.   This flexibility applies if the issuance date listed on the request, notice, or decision is on or between March 1, 2020, and March 26, 2022 and applies to the following:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind;
  • Notices of Intent to Terminate regional centers; and
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

The USCIS will consider a response to the above requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action.

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:

  • The form was filed up to 90 calendar days from the issuance of a decision it made; and
  • It made that decision on or between November 1, 2021, and March 26, 2022.

Under previously announced flexibilities, USCIS considered a Form I-290B or a Form N-336 if the form was filed up to 60 calendar days from the issuance of a decision by USCIS, and if such decision was issued on or between March 1, 2020, and Oct. 31, 2021.

You can visit www.uscis.gov/coronavirus for USCIS updates related to COVID-19 or if you have any questions or concerns about the deadline to response to any of these requests, you can contact us today at info@enterimmi.com and speak with a U.S. immigration lawyer in Ho Chi Minh City, Manila and Taipei.

 

Copyright 2022. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of the Enterline Immigration only.

The United States Department of State (“DOS”) has extended the authority of consular officers to waive certain in-person non-immigrant visa interviews through the end of 2022

 

Along with B-1/ B-2 interview waivers, F, M, and J Academic visa applicant waivers have been extended to the end of 2022 under the same conditions as the previous interview waiver authorization.

In addition, DOS consular officers may now waive H-1, H-3, H-4, L, O P, or Q temporary visas under the following conditions:

  • The non-immigrant visa applicant is applying for either an H-1, H-3, H-4, L, O, P or Q temporary visa;
  • The non-immigrant visa applicant is applying in their country of residence or nationality;
  • The non-immigrant visa applicant has been previously issued the same temporary visa category;
  • The non-immigrant visa applicant has never been refused a visa unless the refusal was either overcome or waived;
  • The non-immigrant visa applicant has no apparent or potential ineligibility to receive a temporary visa.

The decision by DOS to extend existing policies is in continued response to the COVID-19 pandemic. As consular resources and local government restrictions vary widely by location, DOS emphasizes the ability to adjudicate visa applications may change with little notice.

For more information, contact us at info@enterimmi.com and speak with a U.S. immigration attorney in Ho Chi Minh City, Manila, and Taipei.

 

Copyright 2022. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of Enterline Immigration only.

U.S. Citizens Allowed to Travel to the United States on Expired Passports through March 31 2022

 

The United States Customs and Border Protection Agency and the Department of State have extended the ability of U.S. citizens to travel to the United States on expired passports through March 31, 2022. As with the previous policy scheduled to expire on December 31, 2021, travelers must meet the following conditions to qualify for this exemption:

  • A U.S. citizen;
  • Currently abroad seeking to return to the United States;
  • Flying directly to the United States, a U.S. territory, or have short-term transit (connecting flight) in a foreign country on their way to the United States;
  • The expired U.S. passport was originally valid for ten (10) years or five (5) years if issued to a U.S. citizen who was under 15 years of age;
  • The expired passport is still in their possession and remains undamaged.

In line with current protocol from the United States Centers for Disease Control, all U.S. bound air travelers, including U.S. citizens, must present proof of a negative COVID-19 test result taken within 24 hours of departure.

For more information, contact us at info@enterimmi.com and speak with a U.S. immigration attorney in Ho Chi Minh City, Manila, and Taipei.

 

Copyright 2021. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of Enterline Immigration only.

Department of State Publishes Interactive Non-Immigrant Visa Waiting Time Webpage

 

The United States Department of State (“DOS”) has published an interactive webpage allowing non-immigrant visa applicants to check the estimated waiting time for interviews at specific Embassies and Consulates. By clicking on https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/wait-times.html, applicants will be able to identify approximate waiting time for B-1/ B-2 Visitor Visas, Student or Exchange Visas (i.e. F, J and M), and all other non-immigrant visas such as L-1 Intracompany Transfer Visas and E-1 Treaty Trader and E-2 Treaty Investor Visas.

Because the posted waiting time is based on the current workload and staffing at a particular Embassy or Consulate (https://www.usembassy.gov/), DOS notes that waiting times are subject to change without notice and does not guarantee non-immigrant visa interview availability.

The DOS also notes that despite the lengthy waiting time for available interviews at Embassies and Consulates, consular sections may be able to approve expedited requests if there is an urgent, unforeseen situation such as a funeral, medical emergency or school start date. Applicants seeking an expedited interview appointment are encouraged to review the information at the specific Embassy or Consulate where the interview is scheduled.. Non-immigrant visa appointments for the purposes of attending weddings and graduation ceremonies, assisting pregnant relatives, or last minute tourism does not qualify for an expedited appointment and applicants are advised to schedule their interview appointments in advance.

Non-immigrant visa applicants in Asia who have questions are encouraged to contact info@enterimmi.com and speak with a U.S. immigration lawyer in Ho Chi Minh City, Manila and Taipei.

 

Copyright 2021. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of the Enterline Immigration only.

Department of State Waives Personal Appearances and In-Person Oath Requirement for Certain Immigrant Visa Applicants Due to COVID-19

 

Due to COVID-19, the U.S. Department of State (“DOS”) has implemented a Temporary Final Rule (“TFR”) providing flexibility for consular officers to waive the personal appearance of certain repeat immigrant visa applicants who were approved for an immigrant visa in the same classification and on the same basis as the current application on or after August 4, 2019.  The TFR also gives consular officers discretion to allow such applicants to affirm the accuracy of the contents of their visa application (DS-260) without appearing in person before a consular officer.

This TFR is effective as of December 13, 2021 and expires after 24 months, or if DOS concludes that the TFR is no longer necessary if the pandemic becomes less acute and ordinary travel resumes.

This waiver of the requirement for immigrant visa applicants to appear in person is discretionary.  Applicants eligible for a discretionary waiver of a personal appearance and interview pursuant to this TFR must be seeking an immigrant visa in the same classification (or another classification as the result of automatic conversion due to the death or naturalization of the petitioner of the previously issued immigrant visa) and pursuant to the same approved petition as their previously approved application, and they must continue to qualify for the immigrant visa.  The consular officer may communicate with the applicant by telephone or email, may request that the applicant provide additional information that the consular officer deems necessary, and may still request the applicant to appear in person.

Pursuant to the U.S. Immigration and Nationality Act, except as may otherwise be established by regulation, every immigrant visa application must be signed by the applicant in the presence of the consular officer and verified by the oath of the applicant before the consular officer.  Regulations further require immigrant visa applicants to be interviewed by a consular officer.  This TFR provides an exception to these personal appearance and interview requirements.

If you were approved for an immigrant visa after August 4, 2019 but it was not issued or it has expired, you may now be eligible to receive your immigrant visa without appearing in person before a consular officer.  Contact one of our lawyers to discuss whether you qualify.

For more information, contact us at info@enterimmi.com and speak with a U.S. immigration lawyer in Ho Chi Minh City, Manila and Taipei.

 

Copyright 2021. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of the Enterline Immigration only.

International Air Travelers to the U.S. Now Require a Negative COVID-19 Test within 24 Hours of Departure

 

Effective December 6, 2021, the United States Centers for Disease Control (“CDC”) has established new rules requiring international air travelers arriving in the United States to obtain a negative COVID-19 test within 24 hours of departure.

Under the current rules, vaccinated international air travelers may present a negative test result obtained within 72 hours of their date of departure date. Unvaccinated travelers currently must obtain a negative COVID-19 test within one day of departure.

The CDC stated that the new policy will require “all air travelers, regardless of citizenship or vaccination status, to present negative pre-departure COVID-19 viral test taken the day before they board their flight to the United States.”

The tighter testing timeline “provides an added degree of public health protection as scientists continue to assess the Omicron variant,” the White House stated in a factsheet released Thursday.

If you have questions about travel to the U.S. and your visa status, you can contact us at info@enterimmi.com and speak with a U.S. immigration lawyer in Ho Chi Minh City, Manila and Taipei.

 

Copyright 2021. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of the Enterline Immigration only.

December Visa Bulletin Shows Chinese, Vietnamese, Indian and Taiwanese investors all current for Direct EB-5

 

The Department of State (“DOS”) December 2021 visa bulletin is out and the priority date for non-regional center investments made by EB-5 investors under the EB-5 visa category is current for all countries including China. This is the first time that EB-5 visa numbers have been “current” for Chinese investors since 2015.

The priority date for non-regional center investors being current is a result of the regional center program (“Program”) having lapsed on June 30, 2021. The priority date for Regional Center investors is remains unavailable (U) for all countries.

Tens of thousands of EB-5 investors who filed petitions under the Program cannot be issued visas or be granted adjustment of status; thus, the annual EB-5 visa quota of about 10,000 visas are now available for any investors who have an approved Petition if they made a “Direct” EB-5 investment.   These visas are now available for “Direct” investors.  A “Direct” EB-5 investment means that the investor’s business must directly create 10 jobs for U.S. workers and cannot take advantage of indirect and induced job creation that was available under the Program.

The December visa bulletin also shows a current priority date for other countries like Vietnam and India which were also backlogged under the regional center program because of high demand.  Those countries have been current since the August visa bulletin, as well as all other countries worldwide.

Potential EB-5 investors from China and Vietnam who are considering making a Direct EB-5 investment now to qualify for an EB-5 visa should be cautious.  If Congress reauthorizes the Program, the annual quota of 10,000 visas should once again become available for all past EB-5 investors and this would push the priority date under the regional center program back to late 2015 for Chinese investors and early 2018 for Vietnamese investors.    This would in turn place those investors investing in a Direct business at the back of the visa waiting line.

There is still no indication if or when Congress will reauthorize the Program.  Making a Direct investment could result in a Chinese or Vietnamese investor obtaining a visa quickly and avoiding any “retrogression” of the priority dates, thus skipping ahead of other investors who invested before them.  Alternatively, if Congress acts to reauthorize the Program, it most likely will include changes such as an increase of the minimum investment amount (now US$500,000) and other changes that might make it more difficult for investors to qualify.

If you have any questions about the information herein, contact us at info@enterimmi.com and speak with a U.S. immigration lawyer in Ho Chi Minh City, Manila and Taipei.

 

Copyright 2021. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of the Enterline Immigration only.